author:
      Mr. Justice Matchett
      Mr. Justice McSurely,

text:
    People of the State of Illinois ex rel. Oscar Nelson, Complainants, v. Chicago Lawn State Bank, Defendant. George S. Van Schaick, Appellant, v. Charles H. Albers, Appellee.
    Gen. No. 40,908.
    Opinion filed June 24, 1940.
    Barnes & Murphy and Glenn, Real & Browning, all of Chicago, for appellant; Raymond G. Real, of counsel.
    Kirkland, Fleming, Green, Martin & Ellis, of Chicago, for appellee.
   Mr. Justice Matchett

delivered the opinion of the court.

I.

On June 9, 1931, the Chicago Lawn State Bank suspended business and its books and assets were turned over to the auditor of public accounts. The auditor appointed a receiver and the appointment was later approved by the court. Joseph B. McDonough, the county treasurer of Cook county, had on deposit with the bank when it closed $100,000, which had been placed with it under a written agreement that the deposit would draw interest at the rate of 2½ per cent. This deposit was secured by a bond of the Constitution Indemnity Company of Philadelphia, executed January 9,1931. When the bank failed, McDonough demanded payment from the surety company and October 29, 1931, the surety company paid the amount of the deposit with interest, a total of $101,240. October 31, 1931, the surety company filed its petition to be subrogated to the right of the State of Illinois to have the amount which it had paid under its bond allowed as a claim entitled to preference over all other general and preferred creditors. The receiver answered denying petitioner’s right to subrogation or preference. The cause was referred to a master who reported recommending allowance as a general claim but disallowance as a preferred claim. The chancellor overruled exceptions and on May 31, 1939, entered a decree as recommended. Van Schaick, superintendent of insurance, who through consolidations and insolvency proceedings has succeeded to the rights of the surety company, appeals.

II.

The subrogation of a surety to the rights of a party whose obligation the surety has been required to pay is an elementary rule of equity law. The right of the sovereign to have a debt due to the sovereign from an insolvent paid in full and in preference to general creditors has been recognized by the courts of England and of Illinois. In this and other States it has been held that this right exists even in the absence of any statute declaring the right. People v. Farmers State Bank, 335 Ill. 617; People v. Bank of Chebanse, 340 Ill. 124; People v. West Englewood T. & S. Bank, 353 Ill. 451; Marshall v. New York, 254 U. S. 380, 65 L. Ed. 315; People v. Marion Trust & Savings Bank, 347 Ill. 445; American Legion Post No. 279 v. Barrett, 371 Ill. 78. These cases also hold that the right exists notwithstanding a statute similar to those which in some other States has been held to indicate a legislative intention to the contrary, of which In re South Philadelphia State Bank’s Insolvency, 295 Pa. 433,145 Atl. 520, and United States Fidelity & Guaranty Co. v. McFerson, 78 Colo. 338, 241 Pac. 728, are illustrative.

III.

The courts of Illinois have not expressly held that the prerogative right of the State passes by subrogation to a surety company upon its complying with its voluntary contract to guarantee the payment of moneys due from an insolvent institution. The right of such surety company to be subrogated to the right based on the sovereign prerogative is denied by the respondent. There is conflicting dicta on the question without direct decision. In re Nelson v. Colegrove & Co. State Bank, 268 Ill. App. 56, and the same case in 354 Ill. 408 at p. 415, where the Supreme Court remarked in substance that the plaintiff in error had failed “to show how this attribute of sovereignty can be acquired by an individual . . . .” On the other hand, in People v. Farmers State Bank, 335 Ill. 617, a statement in the opinion indicates that a public official might be subrogated to this prerogative. Petitioner cites Lochenmeyer v. Fogarty, 112 Ill. 572, where, however, the question was not involved. Also, Richeson v. Crawford, 94 Ill. 165; Whitbeck v. Estate of Ramsey, 74 Ill. App. 524, with Hunter v. United States, 5 Pet. 173 (8 L. Ed. 86) in which the right of a surety to subrogation is considered with reference to the provisions of particular statutes. Such a distinction was said not to be important under the facts in People ex rel. Barrett v. Peoples Savings Bank & Trust Co., 362 Ill. 395, and the validity of such distinction has been denied in a majority of the States. United States Fidelity & Guaranty Co. v. Borough Bank, 146 N. Y. Supp. 870; Maryland Casualty Co. v. McConnell, 148 Tenn. 656, 257 S. W. 410; State ex rel. Rankin v. Banking Corporation, 77 Mont. 134, 251 Pac. 151; and American Surety Co. v. Pearson, 146 Minn. 342, 178 N. W. 817.

The doctrine of subrogation is an equitable doctrine and when enforced by court of equity it would seem it should be applied according to equitable principles. The reason for the rule giving the State a prerogative right in such a case is stated to be the necessity that the State may enjoy sufficient revenue. It would seem upon principle that when a surety complying with its contract has performed its obligation and paid the debt, the reason for the rule would cease. In these days the undertaking of a surety is usually made for a consideration. It is difficult to see the equity or justice of giving such a surety who has merely complied with the terms of a contract voluntarily undertaken by it for profit, a right of subrogation to be paid in full to the exclusion of other creditors and depositors. We are much impressed by the reasoning in In re South Philadelphia State Bank’s Insolvency, 295 Pa. 433, 145 Atl. 520.

IV.

The county treasurer statute (Ill. Rev. Stat. 1939, ch. 36, § 5 of the act, § 21 of the statute, p. 1024 [Jones Ill. Stats. Ann. 35.23]) provides for a classification of the funds in the hands of the county treasurer in a manner which would earmark the money in his possession. Section 6 of the act (§ 22 of the statute) makes it the duty of the county treasurer to deposit these funds as classified in separate accounts. The county treasurer did not comply with this statute. In People v. Dime Savings Bank, 350 Ill. 503, the Supreme Court held that the responsibility of keeping accounts so as to distinguish between taxes collected and money in the custody of the county derived from other sources was on the county treasurer. Respondent points out that there is no proof that the Chicago Lawn State Bank knew of the methods used by the county treasurer in bookkeeping. It further points out that the bond executed by the bank and signed by the surety described the moneys to be loaned as “county moneys of the County of Cook, ’ ’ and that the moneys to be loaned were many times described in this agreement by substantially similar phrases. Section 1 of the act (§17 of the statute, p. 1023) declares that “the term ‘county moneys’ shall include all moneys to whomsoever belonging received by or in the possession or control of the incumbent of the office of County Treasurer, when acting as such or in any other official capacity incident to his incumbency of the office of County Treasurer.” This language would be broad enough to include undistributed tax moneys, and petitioner contends that it must be supposed that the terms used in the bond and contract were used in this sense. Respondent contends this construction is untenable for the reason that the definition is applicable only to the writing of which it is a part, unless there is a clear intention to incorporate it in a definition as used in another writing, which is not the case here.

Respondent goes on to argue that as the county treasurer made a deposit of what was ostensibly Cook county funds, he and his subrogee (the bond company) are now estopped to maintain that the deposit was not Cook county funds as distinguished from funds in which the State had an interest. There might be some merit to this contention by a receiver representing the rights of other claimants if it is held, as a matter of law, the petitioner cannot be subrogated to the prerogative right of the State. However, assuming as a matter of law, petitioner may be so subrogated and substituted, it seems (standing in the shoes of the State) estoppel could not be urged as a defense against petitioner. Seeger v. Mueller, 133 Ill. 86; Catlett v. People ex rel. State’s Attorney, 151 Ill. 16; People v. Gary, 196 Ill. 310, 328; People v. Bradford, 372 Ill. 63.

Y.

However, the master and the trial court put their decision on a ground sustained, we think, by the record, namely, that the petitioner failed to prove the fund deposited in the Chicago Lawn Bank by McDonough, the treasurer of Cook county, was a deposit of funds belonging to the sovereign State. Illinois cases hold the right of the state to preference is limited to moneys undistributed to the various taxing bodies. When distribution is made the right to exclusive preference is lost. People v. Bank of Chebanse, 340 Ill. 124; People v. Home State Bank of Grant Park, 338 Ill. 179; People v. Dime Savings Bank, 350 Ill. 503.

The deposit of the county treasurer in the Chicago Lawn State Bank was made on January 15, 1931, by his check on an active account in his name in the National Bank of the Republic. The total account on which the check was drawn was $5,056,472.69. The county treasurer at that time also carried a time deposit account in the same bank amounting to $15,000,000. This account was opened December 29,1930, and was closed on February 2,1931. The books of the county treasurer indicate that the total amount of cash on hand to the credit of the county treasurer on the day the check was drawn on the National Bank of the Bepublic for deposit amounted to $22,332,865.31. In another deposit and in petty cash the treasurer had on hand the further sum (as the books indicated) of $2,276,392.62.

Cases already cited and the cases of People v. Waukegan State Bank, 351 Ill. 158, and People ex rel. Nelson v. Wiersema State Bank, 361 Ill. 75, we think fairly established the proposition that the burden was upon the petitioner to prove in the first instance the facts necessary to establish its claim to exclusive priority. It was therefore necessary for petitioner to show that the money deposited with the Chicago Lawn Bank on January 15,1931, was undistributed tax moneys belonging to the State. It appears from the proofs that on the date the deposit was made, the county treasurer held the following items properly regarded as such tax moneys: General 1928 Taxes, $6,427,171.93; Delinquent 1927 General Taxes & Prior, $2,733,382.40; Delinquent 1928 General Taxes & Prior, $129,896.15; Redemptions 1927 General Tax & Prior, $120,784.37; Country Special Assessment Tax, $807,599.98; City Special Assessment Tax, $1,451,665.11; Forfeiture Special Assessment Tax, $119,227.19; Delinquent City Special Assessment Tax, $1,732.31; Delinquent Country Special Assessment Tax, $157.55, a total of $11,791,616.99. The respondent admits that on January 15,1931, all these items in possession of the county treasurer, amounting to $11,791,-616.99, were undistributed tax moneys. The evidence also tends to show that the balance of the $22,332,865.21 on hand J anuary 15, 1931, consisted of two groups of accounts. The first of these included Inheritance Tax Deposits, $3,505,787.87; of which $2,485,921.01 was afterwards turned over to the State; Personal Property Tax Deposits, $1,025,559.10, and Appeal Tax Deposits, $546,041.47, a total of $5,077,388.44. The petitioner claims (the receiver denies) that this first group of accounts should be regarded as State money. The second group (as shown by petitioner’s Exhibit 24) consisted of these items: Condemnation Tax Deposits, $81,376.04; Torrens’ Law Indemnity Fund, $19,679.94; Series “Z” Bond Fund, $2,888,465; County Collector’s Contingent Fund, $240,890.87; General Forfeiture Deposit, $96,716.36; Suspense Account, $294,267.50; Motor Fuel Tax, $871,555.05; Condemnation Deposit, $764,-827.80; Miscellaneous Fund, $206',081.32, a total of $5,463,859.88. It is not contended these items were in any sense moneys due to the State.

Petitioner argues upon a theory which we shall later consider, that when the loan to the Chicago Lawn State Bank was made there were no funds in the hands of the county treasurer except undistributed tax moneys; that other funds had all been checked out for other purposes and dissipated. Therefore, it is said, all the money on hand January 15, 1931, was undistributed State money. For the present (disregarding this theory) we find no proof in the record as to what percentage of the $15,000,000 time deposit was undistributed tax moneys, nor what, if any, percentage of the $5,056,472.69 account from which the Chicago Lawn Bank deposit was withdrawn was such, nor what, if any, part of the $2,276,392.62 held elsewhere by the county treasurer was such undistributed tax moneys, and petitioner’s claim fails for want of proof as the master and the chancellor found.

VI.

Petitioner, however, argues on respondent’s own theory that each account of the county treasurer had a percentage of undistributed taxes equal to the ratio of the total undistributed tax moneys to the total cash wherever held. Respondent admits that of the $22,332,-865.31 on hand January 15, 1931, the items above enumerated amounting to $11,791,616.99 were undistributed tax moneys. The petitioner argues under the facts as above stated he is at the least entitled to a preference and priority of his claim in proportion which the undistributed moneys belonging to the State bears to the whole amount of the credits of the county treasurer on the day the loan was made. This proposition on petitioner’s theory is about 76 per cent and on respondent’s theory something more than 50 per cent. To this point petitioner cites People v. Marion Trust & Savings Bank, 347 Ill. 445; People v. Dime Savings Bank, 350 Ill. 503; People v. Bank of Chebanse, 340 Ill. 124.

These cases are all distinguishable in that there was in each of them specific proof of the amount and character of each of the items. There is no such proof here. There is a clear distinction between a mingled account into which items specifically proved as to character and amount have been deposited and a mingled account from which general withdrawals have been made, as was the case here. There is no presumption and there was no proof that withdrawals were made in any given proportion. Petitioner cites Boaz v. Ferrell (Tex. Civ. App.), 152 S. W. 200, and Commissioners v. Springfield, 36 Ohio St. 643, cases where a public official having mingled trust funds of various kinds embezzled a part of them, and the court held that the parties in interest should share the losses proportionately. These cases are not applicable to the situation disclosed by this record. There is no contention here that there was any embezzlement by the county treasurer.

vni.

The petitioner finally contends that as a matter of fact all the moneys on hand to the credit of the county treasurer on January 15, 1931, were undistributed tax moneys belonging to the State. In support of this theory there was offered in evidence Exhibit 25, a consolidated account showing the cash balance in the office of the county treasurer on May 1,1930, and receipts and disbursements from that date until January 15, 1931, when the deposit was made by the county treasurer to the Chicago Lawn State Bank. In support of this exhibit, A. J. Nickerson, who for about three years was a clerk in the bookkeeping department of the county treasurer’s office, testified he had prepared it from the general cash book covering cash receipts and disbursements. The argument is made (based on this exhibit) that as a matter of fact all funds other than undistributed tax moneys belonging to the State had been drawn out and dissipated at the time the loan was made, leaving only undistributed tax funds in the possession of the county treasurer. This conclusion is urged although contradicted by evidence originally given for petitioner by auditor Kelly of the county treasurer’s office and other witnesses who testified in support of petitioner’s Exhibit 24. It would be a tedious task to discuss Exhibit 25 in all its phases and in relation to other exhibits in the case. Acceptance of the inferences drawn by petitioner would require us to assume the county treasurer made improper and dishonest expenditures from escrow moneys deposited with him as well as from other Cook county funds. There is no such proof. Respondent does not question the accuracy of the particular items shown by Exhibit 25 but denies the inferences drawn therefrom. Exhibit 24 (also introduced by petitioner) showed the moneys on hand January 15, 1931, and it was verified by the testimony of the auditor and other witnesses for petitioner as stated.

The petitioner says (and it seems to be agreed) that the apparent conflict between the two statements arises from the fact that Exhibit 25 reflects entries made in the cash book, while Exhibit 24 is based on a compilation made also reflecting entries from the ledger and the journal of the county treasurer. Petitioner says these are mere book entries and not proper evidence. These entries show the transfer of $16,062,150.41 to various Cook county accounts, being the approximate share of Cook county in the general taxes of 1928. The petitioner argues (and this is the gist of his argument as we understand it) that the “mere transfer by journal entry” would not constitute a distribution of funds, and cites People v. Dime Savings Bank, 350 Ill. 503. That case does not bear out this contention. The court there said in substance under the circumstances there appearing certain mere entries on the county collector’s book were not enough to constitute a distribution which involved delivery to the persons entitled. The opinion cites with approval People v. Bank of Chebanse, 340 Ill. 124 to the effect that when funds pass into the hands of the county treasurer as “county funds” the treasurer is not entitled to a preference (p. 516). Here the journal entries show the allocation of proper amounts to various accounts and show the expenditure of funds thus allocated. The county treasurer of Cook county was the custodian of these funds. It would have been a useless gesture to require the county collector in order to make a distribution to himself as county treasurer to deliver funds in specie or checks to himself for the sums due these various accounts. We cannot assume that there were dishonest expenditures of these funds by the county treasurer, and there is no proof thereof. We cannot ignore the testimony of the auditor and petitioner’s witnesses who testified to the account as to funds actually on hand when the deposit in the Chicago Lawn State Bank was made. There is no evidence in the record showing that during the period from May 1, 1930 to January 15, 1931, there was any overdraft on any escrow money or “Cook County funds.” Substantially all the receipts deposited in these accounts were in cash. Upon the whole evidence, assuming the law of subrogation to be as petitioner contends, we agree with the master and the court that the intervening petitioner failed to establish a right to subrogation to the prerogative of the State as to preference in payment, and that petitioner’s claim was properly allowed as a general claim. The decree will be affirmed.

Decree affirmed.

O’Connor, P. J., concurs.

(See next page.)

Mr. Justice McSurely,

specially concurring:

I concur in what is said in the opinion and the result but I go further and say that in my opinion the right to priority is not transferred to an individual with the right to subrogation. Priority is the exclusive right of the sovereign State, for the reason that the affairs of government must be continued. This reason does not exist in the case of an individual. In re South Philadelphia State Bank’s Insolvency, 295 Pa. 433.


source: Caselaw Access Project

author: Mr. Justice McSurely

license: Public Domain

text:
    E. Edelman and Company, Appellee, v. Emil Stromberg, Trading as E. A. Stromberg Company, Appellant.
    Gen.. No. 40,947.

      Opinion filed June 24, 1940.
    Hershenson & Hershenson, Rappaport & Rappaport and James B. McKeon, all of Chicago, for appellant.
    Teller, Levit, Silvertrust & Levi, of Chicago, for appellee.
   Mr. Justice McSurely

delivered the opinion of the court.

Defendant appeals from an injunctional order requiring it to refrain from certain unfair trade practices. The order was entered pursuant to a complaint filed by plaintiff, an amended answer by defendant and the report of a master, who recommended a decree in accordance with plaintiff’s complaint.

The proceeding grew out of a bankruptcy. On November 3, 1937, an involuntary petition was filed in the United States District Court by the creditors of the Stromberg Motoscope Corporation, of which defendant E. A. Stromberg was president, asking that it be adjudged a bankrupt; appraisers were appointed by the court, a receiver appointed and leave given to solicit bids for the assets of the bankrupt; the appraisers stated that the stock in trade, including furniture, fixtures and equipment, were appraised at $6,117.24, and the “good will, consisting of unfilled orders, advertising, right to use the name ‘Stromberg Motoscope Corporation’ ” etc., $2,500.

January 7, 1938, an order was entered reciting the solicitation of bids, notice to creditors and the sale of the assets of the bankrupt to Michael Tauber & Company for $4,500, which was approved. April 8, 1938, an order was entered directing the trustee of the bankrupt to execute, in legal form, assignments of patents, copyrights, trade-marks and a bill of sale of the good will and right to use the name of the bankrupt corporation, Stromberg Motoscope Corporation, to Michael Tauber & Company or to whomsoever it should designate, and to date the document as of the date of the sale, that is, January 7,1938.

It is the position of defendant that the sale on January 7,1938, to Tauber & Company was for the physical assets only and not for copyrights, patents or good will; that the order of April 8, 1938, is void and therefore there is a break in the chain of title of plaintiff, who acquired nothing by this order and sale. Defendant says that when Tauber & Company bought the tangible assets the intangible assets were destroyed, as there can be no good will apart from physical assets; that there is no such thing as property and good will except in connection with an existing business.

We are of the opinion the sale of the assets on January 7, 1938, included the good will, and if this was not specifically mentioned, the order of April 8 confirming the sale made it clear that the good will, etc., were included in the assets sold.

Defendant says. plaintiff did not obtain any of the assets or any title through Michael Tauber & Company. The report of the master includes certain documents reciting the sale to Tauber & Company of the goods, wares and merchandise of the bankrupt, “as well as the good will,” including copyright of the name “Motoscope,” any interest in other patents, trade-marks and copyrights, and that an order had been entered by a referee in bankruptcy ordering the trustee to execute to whomsoever Tauber & Company should designate an assignment “of said patents, copyrights and trademarks,” and that Tauber & Company had designated that said assignment be executed to Edelman and Company, a corporation, which is the plaintiff here. The master received in evidence two documents in much the same language, reciting the designation of plaintiff as the assignee of the copyright of the name “Motoscope” and other trade-marks and copyrights. The master concluded that by virtue of these documents plaintiff acquired the good will of the bankrupt corporation and the copyright, trade-mark and interest in and to the patents described. The court sustained this conclusion, and it therefore will not be disturbed unless manifestly against the weight of the evidence. Pasedach v. Auw, 364 Ill. 491.

The bankruptcy proceeding from the time of its commencement, by the filing of a petition, until final settlement, is one suit. Sandusky v. Nat. Bank, 90 U. S. 289. Any order made may be subsequently set aside and vacated upon a proper showing. There" are no terms of court in bankruptcy proceedings. Therefore, the court had the right at any time before final settlement to supplement or confirm the order of January 7, 1938, by entering the order of April 8, 1938, which clarified any doubt as to the sale of the good will, etc., of the bankrupt. Moreover, this order of April 8, did not deprive any other person of any rights or property. In Klintz v. Marx, 205 Ill. App. 376, it was contended that it was beyond the power of a bankruptcy court to invest the receiver with power to sell the good will and right to use the name. It was held that the circuit court could not review collaterally the proceeding in the bankruptcy court as that court could ratify and confirm a sale which had already been made. See also E. Edelman & Co. v. Fredericks Armature Mfg. Co., 3 F. Supp. 973, to the effect that even though a bankruptcy court may have entered an order erroneously, its order can be questioned only in that particular court.

There was abundance of evidence that defendant was guilty of acts constituting unfair competition. After the sale of the assets of the bankrupt corporation he commenced business, taking upon himself the trade names of “E. A. Stromberg, Not Inc.,” and “E. A. Stromberg Company, Not Inc.,” and advertised in a trade journal that he, formerly president of the Stromberg Motoscope Corporation, was manufacturing and repairing testing instruments for the automotive trade. Also, he inserted advertisements similar to the advertisements of the old bankrupt corporation, with cuts, names of instruments, model numbers, description of each instrument and prices, all identical with those advertised by the bankrupt corporation.

In January, 1938, he received from an auto supply company an inquiry as to when their order would be filled; to this Stromberg replied that he did not have a copy of this order but if the auto company would mail a copy of it it would be taken care of without delay, thus giving the impression that he had succeeded to the business of Stromberg Motoscope Corporation. One witness testified that there were probably one hundred instances like this one. There were numerous other instances involving appliances used in connection with automobiles and advertised by Stromberg under the names “Acitron” and “Zerotron,” using the same tradenames as they appeared in advertisements by the Stromberg Motoscope Corporation.

The master recommended that defendant should have the privilege of assembling and selling all the chattels purchased by or for him within a reasonable time. The court fixed this time as on or before January 2, 1940, a period of over 8 months after entry of the decree. This indicates the disposition of the master and chancellor to treat Mr. Stromberg fairly.

The fact that he inserted the letter “r” in his advertisements of the word “Motoscope” so as to read “Motorscope” sufficiently proves that he intentionally attempted to reap the benefit of the good will, etc., of the Stromberg Motoscope Corporation, which had been purchased by plaintiff.

The decree restrains him from the use of certain trade names in any manner calculated to deceive the general public into the belief that he is the successor of the former Stromberg Motoscope Corporation. The decree treats all parties fairly and it is affirmed.

Decree affirmed.

Hatchett, P. J., and 0 ’Connor, J., concur.


text:
    Continental Illinois National Bank and Trust Company of Chicago, Trustee under Last Will and Testament of Emery H. Fahrney, Deceased, Appellee, v. Marion Hills Hardeen et al., Appellees and Merry Fahrney, Appellee and Cross Appellant, and Peter Fahrney, Minor, by Maclay Hoyne, Guardian ad Litem, Appellant.
    Gen. No. 40,957.
    Opinion filed June 24, 1940.
    Rehearing denied July 8, 1940.

      Maclay Hoyne and John E. Foster, both of Chicago, for appellant; Maclay Hoyne and John E. Foster, of counsel.
    Poppenhusen, Johnston, Thompson & Raymond and Frank E. Cantwell, all of Chicago, for certain appellee ; Floyd E. Thompson and Albert E. Jenner, Jr., of Chicago, of counsel.
    Defress, Buckingham, Jones & Hoffman, of Chicago, for certain other appellee; Don Kenneth Jones and Kenneth M. Fiske, of Chicago, of counsel.
    Kirkland, Fleming, Green, Martin & Ellis, of Chicago, for certain other appellee; Jay Fred Reeve and William H. Symmes, both of Chicago, of counsel.
    Harry H. Talcott, of Chicago, for certain other appellee ; Harry H. Talcott, of counsel.
   Mr. Justice McSurely

delivered the opinion of the court.

Plaintiff filed its complaint asking for the construction of the will of Emery H. Fahrney, deceased, with special reference to whether Peter Fahrney, a minor, the adopted son of the testator, was entitled to receive the income from the residuary trust created by the will as if he were a natural child born to the testator, and whether the life of Peter Fahrney is to be considered in computing the time of the termination of the trust; answers were filed by the interested parties, evidence was submitted, and Maclay Hoyne was appointed guardian ad litem for Peter Fahrney; subsequently Mr. Hoyne died and John E. Foster was 'appointed in his stead; after hearing the chancellor decreed that Peter Fahrney was not entitled to receive the income from the trust as though he were a natural son of the testator, and that he should not be considered as a natural son in computing the time of the trust. Peter Fahrney has appealed from this decree. The complaint also raised the question as to the allowances for attorneys’ fees and costs. The chancellor took evidence on this question and made certain findings, and certain allowances are questioned.

Emery H. Fahrney, residing in Oak Park, Illinois, died October 7, 1935, leaving him surviving his wife, Marion Fahrney, and his two daughters, Myrtle Fahrney Seamann and Merry Fahrney Pickering; also a grandson, Peter Fahrney, the son of his daughter Mrs. Pickering, and a granddaughter, Myrtle Seamann, the daughter of Mrs. Seamann; he left a will dated June 2, 1926; a codicil was executed dated April 9,1932; October 27,1933, Emery H. Fahrney and his wife Marion, by legal proceedings, adopted Peter, the minor child of Mrs. Pickering, who took the name of Peter Fahrney. In the petition for adoption Emery H. Fahrney and his wife stated that they desired to “rear, nourish and educate said child as their own child and to adopt him as their legal heir.” On the same day, October 27, 1933, the last of the two codicils to the Fahrney will was executed, at which time the testator had an estate of over $2,500,000.

Emery H. Fahrney having died October 7, 1935, the will and codicils were admitted to probate December 5, 1935.

Counsel for Merry Fahrney Pickering, the mother of the child Peter, questions the validity of this adoption, but the chancellor, on her motion, entered an order without objection of the parties, that the consideration and determination of the validity of the adoption proceedings should be reserved for later consideration, should such adjudication become necessary to the decision of the case. It therefore will be assumed that Peter Fahrney is the adopted son of the testator.

Paragraph Fifth of the will created a trust fund, naming Continental Illinois National Bank and Trust Company of Chicago, plaintiff, as trustee; subparagraph (a) of paragraph Seventh provides that the net income of the trust estate shall at certain specified times each year “be paid to my then surviving lawful issue per stirpessubparagraph (d) provides that “The trust hereby created shall continue until the death of my wife and until twenty years shall have elapsed after the death of the survivor of my wife and my children, and shall then terminate; provided, however, that the trust shall terminate at any time before then when neither my wife nor any lawful issue of mine shall survive. Upon the termination of the trust the principal of the entire trust estate and the unpaid net income therefrom shall thereupon go to, vest in, and be paid, transferred and delivered to my then surviving lawful issue, per stirpes. In case no lawful issue of mine shall then survive, such principal and unpaid income shall go to, vest in, and be paid, transferred and delivered to the then surviving of my niece, Elsie Louise Vette, and nephews, Walter F. Beachy and Harold P. Beachy, provided that the then surviving lawful issue of any deceased such niece or nephew of mine (whether he or she shall have died before or after my death) shall be paid and receive per stirpes the share of such trust estate which such deceased niece or nephew would have been entitled to receive if then living. ” It is unnecessary to discuss the provisions of the will respecting the wife because she has renounced them.

The first codicil of the will is not involved. The second and last codicil, executed on the day of the adoption of Peter Fahrney, recites: ‘ ‘ Having adopted Peter Fahrney Pickering, son of Mary Fahrney Pickering and Hugh Parker Pickering, As my legal Child, said child to be hereafter known as Peter Fahrney, I hereby make the following provisions for him: . . .” $50,-000 was given to plaintiff, the income to be used to maintain, educate and support Peter Fahrney until he attains the legal age of 21, and when he attains this age the principal of this $50,000 trust and the accumulations thereof are to be paid and transferred to him; if he should die before attaining the age of 21 the trust shall cease and the principal and accumulations shall be paid over to the trustees under the will and distributed according to its terms.

Does Peter Fahrney come within the provisions of subparagraph (a) of paragraph Seventh, which provides that after the death of the wife the net income shall be paid “to my then surviving lawful issue per stirpesor the further provision in subparagraph (d), paragraph Seventh, which provides that the trust shall terminate “when neither my wife nor any lawful issue of mine shall survive.”

A beneficiary under a will, regardless of his relationship to the testator, is entitled to what the will gives him and nothing more. The intention of the testator as expressed in his will must govern. Is there anything in the language of the will which includes the adopted son as a beneficiary, entitled to receive the same income as his mother and his aunt? The guardian ad litem cites Flannigan v. Howard, 200 Ill. 396, as holding that an adopted child is entitled to all the rights of a natural child under the statute of descent. That case holds that when a child is adopted after the making of a will, the effect in law is precisely the same as the birth of a child after the making of a will. In the instant case Peter Fahrney was adopted before the making of the last codicil, hence the testator had the right to disinherit even a natural child. It should be noted that this last codicil, after making provision for the $50,000 trust for the benefit of Peter Fahrney, specifically confirms the original will of June 2, 1926. Munie v. Gruenewald, 289 Ill. 468, can be distinguished from the case at bar. There the will provided that the remainder should be divided among testator’s children and if any of these should die before the termination of the life estate the share that would fall to such child should go to his or her children; a daughter died leaving no children of her body but leaving an adopted child. The court held that the word “children” was intended by the testator to include this adopted child, which had been adopted several years before the will was executed and had lived with the family of the testator and was considered by him and the rest of the family as one of his grandchildren. In the instant case, on the date of the will, June 2, 1926, the two children of the testator’s body were then unmarried and when the testator used the words “surviving lawful issue” he did so having in mind the ordinary meaning of such words and certainly not the unusual possibility that he would adopt one of his prospective grandchildren. Moreover, after the adoption the testator by an added codicil created a special trust fund for the benefit of the adopted son, Peter Fahrney, which would indicate that he did not intend that the adopted son should be included in the term “lawful issue.”

March 28, 1934, the testator executed a trust agreement with the First Wisconsin Trust Company, a corporation located at Milwaukee, Wisconsin, by which he turned over bonds of the face value of $1,000,000 to be held in trust. The agreement provided that on certain fixed dates each year, as long as he lived, the settlor should be paid the net income from this fund; that upon his death a third of the net income should be paid to the wife if living, but if she be not living, then in equal shares to such of the following persons as shall then be living, namely, his daughters Merry and Myrtle, and his adopted son Peter. The creation of this Wisconsin trust throws no light upon the intention of the testator with reference to the creation of the trust in his will. The Wisconsin agreement clearly expressed the intention that Peter was to share equally in that trust with his mother and his aunt. If the testator intended that Peter should have a like share under the will he could have said so in equally clear language at the time of the drafting of the last codicil. This codicil makes the only specific reference to him that appears in the will and codicils, and the language used makes it clear that the provision there made is the only benefit the adopted son is to receive under the will and codicils.

The guardian ad litem suggests that the other beneficiaries under the Emery H. Fahrney will by consenting to the adoption are estopped to deny that Peter Fahrney is entitled to share equally with his mother and his aunt in the income of the trust. The adoption of Peter did not estop the testator to make such disposition of his property by will as he might wish to make. The fact that his daughter Merry consented to the adoption of her son Peter, and that the other daughter Myrtle, was apparently pleased with this, could not limit the right of the testator to make any disposition of his property he chose to make. Moreover, paragraph Tenth of the will renders void any contract of the beneficiaries which attempts to dispose of their interests under the will.

A further consideration against the contention of the guardian ad litem is that the testator would hardly have so discriminated against his granddaughter, the daughter of Myrtle, in favor of his grandson Peter, the son of Merry. Why should he give Peter an income for life on a third of his estate and provide that he should take outright a third of the corpus of the estate as the descendant of his mother Merry, and then make no provision for his granddaughter Myrtle, except that she should take a third as the descendant of her mother, testator’s daughter Myrtle?

In Wyeth v. Crane, 342 Ill. 545, is a discussion of the effect of the words “issue” or “descendants,” and it was held that while there was a diversity of opinion, the correct rule in this State is that where a gift is made to “descendants” or “issue,” children do not take concurrently or per capita with their living parents but take per stirpes. In Northern Trust Co. v. Wheeler, 345 Ill. 182,191, “issue” was defined to include all persons who proceeded from, the body of the person named, and it was said that “The Illinois law favors such a construction of a devise to descendants as will cause the division among descendants per stirpes and not per capita,” but if it is shown that the intention of the testator is that the descendants shall take per capita and not per stirpes, this intention must be given effect as the courts have no right to make a new will for the testator. In Miller v. Wick, 311 Ill. 269, the question was whether an adopted child satisfied the condition “or until such time in his life as he shall have a child, his lawful issue, who shall attain unto the age of three years.” It was held that the words “lawful issue” mean a child issuing in lawful wedlock or the words were meaningless. This applies to the instant case. The language of the will of June 2, 1926, executed before Peter Fahrney Pickering was born, clearly limited the benefits of the income of the trust to the wife and the two daughters. When the testator adopted Peter he changed his will by adding the last codicil by which he made provision for the adopted son and, as we have said included in the codicil the provision that his will of June 2, 1926, shall remain in full force and effect except as expressly changed by the codicil, thus leaving unchanged the language of his will giving the benefits of the income to his “then surviving lawful issue per stirpes.” Hale v. Hale, 237 Ill. App. 410, is another case in point, and many cases from other States might be cited.

The chancellor properly held that Peter Fahrney, the adopted son, was not entitled to receive the income from the residuary trust created by the will as if he were a child born to the testator. It is also equally clear that the testator intended to describe by the words “my children” or “lawful issue of mine,” as used in paragraph Seventh (d) of his will, the lives which should measure the time when the trust should terminate. He named his wife and two children in this will and could have had only them in mind when he provided that their lives should determine the period of the trust. Peter, the adopted son, was not yet born and there is nothing to indicate that the testator contemplated at that time ever to adopt any child.

The chancellor allowed to the plaintiff, Continental bank, for its services as trustee, $1,550; found that plaintiff will have to pay its attorneys ’ fees, amounting to $7,500, and that such fees are reasonable and customary charges for the services rendered. The court found that the Harris Trust & Savings Bank had been appointed as conservator of the estate of Myrtle Fahrney, insane, and it was allowed $7,500 as attorneys ’ fees. Marion Hills Hardeen, formerly Marion Fahrney, wife of the testator, was allowed $1,500 for attorneys’ fees, and the guardian ad litem for Myrtle Fahrney Seamann, a minor defendant, was allowed $2,500. The attorneys for Merry Fahrney were allowed $7,500. Maclay Hoyne, guardian ad litem of Peter Fahrney, asked to be allowed $15,000; the chancellor was of the opinion this was too much but that he was entitled to something more than the other parties, and allowed him $8,500.

The chancellor in making these allowances went into the services performed carefully. While, possibly, we might not agree as to every item, we see no reason to conclude that the allowances were unreasonable. The chancellor was a man of experience and was acquainted with the character and amount of the services rendered in this litigation. We see no reason to disagree with his conclusions and his judgment as to the propriety of these allowances will remain undisturbed.

Upon the entire record we are of the opinion that there is no reversible error appearing in the decree and it is affirmed.

Decree affirmed.

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


text:
    Trust Company of Chicago, Administrator of Estate of Goodman Aranoff, Deceased, Appellant, v. Lewis Auto Sales, Inc. and Oscar Ozeran, Appellees.
    Gen. No. 40,971.
    O’Connor, J., dissenting.
    Opinion filed June 24, 1940.
    Philip Rosenthal, of Chicago, for appellant; Philip Rosenthal and Stuart B. Krohn, of Chicago, of counsel.
    Lord, Bissell & Kadyk and Edwin A. Halligan, all of Chicago, for appellee Lewis Auto Sales, Inc.; Donald B. Hatmaker, of Chicago, of counsel.
   Mr. Justice McSurely

delivered the opinion.of the court.

Plaintiff brought suit against Lewis Auto Sales, Inc., and Oscar Ozeran to recover damages for the wrongful death of Goodman Aranoff, who was struck by an automobile driven by Ozeran; on plaintiff’s motion the suit was dismissed as to Ozeran. At the conclusion of plaintiff’s case the trial court instructed the jury to find the defendant Lewis Auto Sales, Inc., not guilty and judgment was entered in its favor, from which plaintiff appeals.

Plaintiff correctly says that when such a motion is made the only question the court has to determine is whether there is any evidence in the record which, if true, fairly tends to prove the allegations of the complaint. McFarlane v. Chicago City Ry. Co., 288 Ill. 476.

July 26,1937, Ozeran purchased a secondhand Ford automobile from the Lewis Auto Sales Company, a dealer in used automobiles; Ozeran says he only drove this car once and that was the day of the accident, August 15, 1937; the car was driven most of the time by Mack Glickman, Ozeran’s friend.

Glickman testified that in applying the brakes the car swerved about a foot and a half — the brakes were not “equalized.” Glickman took it to be tested but it failed to pass the safety test and the car was taken back to defendant’s place of business, which attempted to repair it, working on it about an hour; Glickman again took the car to the safety lane for a second test but was not given a sticker indicating that the car was in good condition; he again took the car back to defendant to have the brakes repaired and again because of motor trouble or a leak in the radiator; the last time it was brought back to defendant was about two weeks before the accident.

Ozeran testified that the car was sent back to defendant four times but “there wasn’t any change for the better in the brakes”; that on the afternoon of August 15,1937, he was driving alone going north on Independence boulevard in Chicago, to Lexington street, where he applied his brakes, reduced his speed and made a wide turn east into Lexington street; that there was a Good Humor (ice cream) cart parked in the middle of Lexington street and, “knowing that with my brakes the way they were, I couldn’t stop in time ... to avoid hitting the Good Humor” cart, struck it on the right side, overturning it; that “I lost control of my car and the car shot over the curb” and struck Aranoff, who was sitting with others on the ledge of a basement window of a building located on the south side of Lexington street.

Plaintiff’s complaint alleges that this action of the automobile was caused by the failure of defendant to equip it with good and sufficient brakes, and to repair them after receiving notice that they were defective.

The evidence shows that the automobile was sold to Ozeran under a conditional sales contract wherein, among other things, it was provided that the title to the car should remain in the seller until all purchase instalments had been paid. Plaintiff argues that defendant owned the car at the time of the accident and that it was negligent in permitting Ozeran to operate it on a public highway knowing the brakes were defective. To this defendant replies that the complaint does not allege it owned the automobile involved in the accident, but in any event the Uniform Act Regulating Traffic On Highways provides that “. . . in the event a vehicle is the subject of an agreement for the conditional sale . . . with an immediate right of possession vested in the conditional vendee . . . , then such conditional vendee . . . shall be deemed the owner for the purpose of this Act.” (Ill. Rev. Stat. 1939, ch. 95½, par. 106, subpar. (d) [Jones Ill. Stats. Ann. 85.138].)

It has been held that the vendor under a conditional sales contract retains the title solely for the purpose of security. The other attributes of ownership, such as possession, use, control or right thereto under such a contract belong to the purchasing vendee. Coombes v. Letcher, 104 Mont. 371; Bergstresser v. Van Hoy, 142 Kan. 88; Hansen v. Kuhn, 226 Iowa 794, 285 N. W. 249.

The complaint alleges that Lewis Auto Sales Company was engaged in the business of buying and selling used automobiles and it was its duty to equip them so that they could be kept under control and not become dangerous and a menace to the general public. The complaint alleges a failure of defendant in this respect.

Is a dealer under such circumstances liable to the general public for accidents caused by such negligence? Plaintiff cites in support, Richardson v. Moore, 254 Ill. App. 511. This case is not in point as the suit was brought by a guest against the owners of a car in which she was riding. The decision in Flies v. Fox Bros. Buick Co., 196 Wis. 196, seems to support the position of plaintiff in holding that an automobile dealer is liable to the general public. The opinion indicates that Johnson, the driver of the car, relied on the representations of the vendor that the brakes were adequate whereas here the contrary was the case. In the instant case there is no claim that defendant misrepresented the condition of the brakes. On the contrary the evidence shows that both the driver and defendant, which was attempting to repair them, knew that the brakes were defective. Cases where the injured plaintiff was the purchaser of a defective automobile are not in point. (Rotche v. Buick Motor Co., 267 Ill. App. 68, 358 Ill. 507; MacPherson v. Buick Motor Co., 217 N.Y. 382.)

As opposed to plaintiff’s claim is Shepard v. Kensington Steel Co., 262 Ill. App. 117. There the plaintiff, a pedestrian, brought suit to recover damages sustained by reason of the alleged negligence of the vendor, the Ford Motor Company. The opinion assumes that the vendor would have been liable to the purchaser while driving the car because of its defective condition. The opinion discusses a number of decided cases and concludes that there was no contractual relation between the dealer who sold the truck and plaintiff, and to the argument that when the dealer permitted the truck to go out upon a public street it permitted the use of an agency which was dangerous to any person upon the street passing along where the truck was going, the opinion says: “Morally this might be true, and there would appear to be an obligation on the part of the vendor of a machine, under such circumstances to the public at large. We are unable to see, however, any legal obligation existing on the part of the vendor, the defendant here, toward the plaintiff. If the law should recognize such an obligation as a legal obligation, the vendor of an automobile would be bound not only to the purchaser and those who used the machine, but to the entire public and would open the door of litigation to such an extent that it might never again be closed. Its results would be far-reaching and in most instances remote.” The opinion noted that the rule of liability has been extended to include “not only the vendee, but those who might be using the instrumentality itself by or with the permission or consent of the vendee, and only in those cases where it is evident that the instrumentality was intended for the use of and by others, and so used.” The court reversed the judgment for plaintiff with a finding of fact that there was no legal obligation on the part of defendant to plaintiff growing out of any contractual or other relationship.

The facts in Bergstresser v. Van Hoy, 142 Kan. 88, are much like those in the case at bar. There the defendants sold a secondhand automobile which had defective brakes; the purchaser drove it and struck and injured plaintiff, a pedestrian. The court held that when the dealer informed the buyer of the defective condition of the automobile it had discharged its duty and was relieved of liability to persons who may be injured through the operation of the automobile by the buyer. In Mosby v. Kimball, 345 Ill. 420, it was said that an automobile is not so dangerous an agency as to make the owner liable for injuries caused by it to travelers on the highway. In Foster v. Ford Motor Co., 139 Wash. 341, the court said: “That, the manufacturer, who puts out an article with notice to the purchaser of its limitations, restrictions, or defects, is not liable to third persons injured thereby is so thoroughly established as to be undisputed.” In the Restatement of the Law on Torts, § 388, it is said to be the secondhand dealer’s duty to inform the buyer of the defective condition of the automobile. In the instant case the testimony on behalf of plaintiff shows beyond doubt that Ozeran, the vendee, knew of the defective condition of the brakes.

Other points are made which we do not deem necessary to discuss. We are of the opinion the trial court correctly ruled upon defendant’s motion for a directed verdict, and the judgment is affirmed.

Judgment affirmed.

O’Connor, P. J., dissents.

Matchett, J., concurs.


text:
    Charles Brignall, Appellee, v. Frank P. Merkle, Appellant.
    Gen. No. 40,995.

      Opinion filed June 24, 1940.
    Rehearing denied July 8, 1940.
    Sidney J. and Arthur Wolf, both of Chicago, for appellant; Arthur Wolf, of counsel.

      Reuel H. Grunewald, of Chicago, for appellee; Robert F. Kolb and Francis M. Cooper, both of Chicago, of counsel.
   Mr. Justice McSurely

delivered the opinion of the court.

Plaintiff brought suit on three notes made by defendant ; an attachment in aid was sued out and the writ was levied on a portion of certain improved real estate in Kenilworth, Illinois; issue on the attachment was first heard and the trial court denied defendant’s motion to quash the return of summons and to dismiss the attachment. Defendant appealed to this court; we sustained a motion to dismiss the appeal on the ground the order was not appealable, as the case on the merits was still pending (296 Ill. App. 250). We there said that where the attachment is tried first the merits of the controversy should be disposed of expeditiously so that both matters may be reviewed in one proceeding.

Subsequently the main case was tried before a jury, which rendered a verdict finding the issues in favor of plaintiff and assessed his damages at $19,653.96; judgment was entered on the verdict and defendant now appeals, bringing before this court for review the judgment rendered and the orders sustaining the attachment.

Plaintiff in his affidavit in attachment alleged, among other things, that defendant on due inquiry could not be found, that process cannot be served upon him, and upon diligent inquiry his place of residence cannot be ascertained; that his last-known place of residence is in Evanston, Illinois, at 940 Michigan avenue; publication was had and certificates of mailing were mailed to 940 Michigan avenue, Evanston, Illinois; summons was issued and served.

Defendant first argues that the service of the summons and the sheriff’s return were invalid and should have been quashed. The argument is that section 13 of the Civil Practice Act [Ill. Rev. Stat. 1939, ch. 110, § 137; Jones Ill. Stats. Ann. 104.013] provides that service of summons shall be made “by leaving such copy at his usual place of abode, with some person of the family, of the age of ten years or upwards. . . .” Defendant asserts as a fatal defect in the service of the summons, that the sheriff’s return is that the summons was served upon defendant “by leaving a copy of the same at his usual place of abode in my county, with Aletha Voris, mother-in-law, a person of his family of the age of 10 years or upwards and informing such person of the contents thereof . . . ”; that by adding the words ‘ ‘ in my county, ’ ’ section 13 of the Civil Practice Act has not been followed. Swift v. Meyers, 37 Fed. 37, seems to support this position, although Healey v. Butler, 66 Wis. 9, holds to the contrary. Other cases cited are not convincing. The return of the sheriff in the instant case follows the statute, and the words “in my county” may be considered as surplusage. Even without these superfluous words the presumption would be that the words “usual place of abode” would mean in Cook county, for it is not the practice of tlie sheriff to serve summons outside of his county.

Moreover, defendant filed what is called a special appearance, for the “sole purpose of traversing allegations of affidavit in attachment, ’ ’ and on the same day filed what is called a plea in abatement, denying the allegations in the attachment affidavit. These are signed on defendant’s behalf by his attorneys and neither is limited to a jurisdictional objection but they show on their face that defendant is specifically presenting issue on the merits of the attachment. An appearance for any other purpose except to object to the jurisdiction of the court amounts to a general appearance. People v. Bloomington Cemetery Ass’n, 266 Ill. 32; People v. Smith, 281 Ill. 538; People v. Southern Gem Co., 332 Ill. 370.

Upon the trial of the attachment, evidence was heard. Among other witnesses testifying was the maid employed by defendant at his Evanston apartment. She testified that defendant instructed her not to accept any registered or special delivery letters; that to all inquiries she was to say he and his wife were separated; that he did not come to Chicago and was not living there. At the close of plaintiff’s evidence in the attachment case leave was granted to file an amended affidavit in attachment and defendant argues that this was improper as putting in issue additional matters. This is not the case. The amended affidavit did not purport to set up any new cause of action. The amendment asserted that at the time of making the original affidavit defendant concealed himself or stood in defiance of an officer so that process could not be served upon him. The Attachment Act permits the filing of an affidavit to cure any insufficiency in the original affidavit. Ill. Rev. Stat. 1939, ch. 11, sec. 28 [ Jones Ill. Stats. Ann. 109.062], Bailey v. Valley Nat. Bank of Des Moines, 127 Ill. 332. And in Ray v. Keith, 134 Ill. App. 119 (231 Ill. 213), it was held that as the additional grounds for attachment shown by the amendment were grounds which existed at the time the attachment issued, there was, therefore, no new suit and no new writ of attachment.

Moreover, the participation by defendant in the trial, both of the original case and the attachment issue, waived all defects, if any, in the return of the summons. Zandstra v. Zandstra, 226 Ill. App. 293. He made a motion to dismiss the attachment for want of a replication to his plea; he cross-examined plaintiff’s witness with special reference to her testimony tending to prove that he had concealed himself and stood in defiance of an officer; he objected to documentary evidence and made a motion at the close of plaintiff’s evidence to dismiss the attachment. After the court sustained the attachment he filed a motion to vacate that order and for a new trial in the attachment case without limiting the motion to jurisdictional objections; he filed a motion that plaintiff’s attachment bond be increased. In Brown v. VanKeuren, 340 Ill. 118, it is held that “While a defendant may stand on all his legal rights ... he may dispense with the process altogether, waive irregular process and appear in the case”; that defendant’s participation in the trial upon the merits constitutes a general appearance and he cannot be heard to claim that the court did not have jurisdiction of his person. The judge who tried the attachment issue properly found that the evidence of Margaret Grenley, a maid employed in the family of defendant, sufficiently proved that defendant concealed himself or stood in defiance of an officer so that process could not be served upon him.

Defendant says plaintiff failed to prove that the real estate upon which the attachment was levied belonged to defendant. To this plaintiff replies that defendant in his plea to the original affidavit in attachment did not deny this property belonged to him. Moreover, the record shows defendant admitted upon cross-examination that title to the attached property had been in his and his wife’s name ever since its purchase in 1927 until March 23,1937; on that date there was recorded a warranty deed from defendant and his wife to Aletha Voris, defendant’s mother-in-law. Also, on the same day a trust deed was recorded conveying the property to secure an alleged note of defendant and his wife in the sum of $12,000. These conveyances were made the next day following the commencement of the present action. The trust deed was delivered to a Mr. McNulty, who admitted that at the request of defendant’s attorneys he had returned the trust deed to them. There are circumstances which indicate that these conveyances were made for the purpose of hindering and delaying defendant’s creditors. As was said concerning similar conveyances in Birney v. Solomon, 348 Ill. 410, these conveyances must be deemed to have been fraudulently made. Other points are made attacking the rulings of the court in the attachment proceedings but these are without merit.

It is said that the verdict and judgment were the result of errors committed by the trial court in giving instructions. The instructions are not numbered in the abstract or in the record, so there is some doubt as to which instructions are criticized. In People v. Hubbard, 355 Ill. 196, the court said instructions should always be identified in the record as well as in the abstract by number or letter. Criticism is made of four instructions which told the jury that the defendant must “establish” his defense by the preponderance of the evidence. The use of the word establish ” has been criticized in certain eases, but in Chicago Union Traction Co. v. Mee, 218 Ill. 9, it was held that the use of this word in instructions was unobjectionable. To the same effect are Tedens v. Schumers, 112 Ill. 263, 268, and Taylor v. Pegram, 151 Ill. 106,117. Other instructions are criticized as being peremptory and failing to contain all the facts. These criticisms are not justified. The instructions refer to certain issues and properly tell the jury who had the burden of proof on these issues. There was no reversible error in this respect.

Defendant says part of its affirmative defense was the claim that one of the three notes upon which suit was brought had been canceled, and that having such burden he was entitled to open and close the arguments to the jury; that the court improperly refused him this right and plaintiff was permitted to open and close the arguments to the jury, citing Liptak v. Security Benefit Ass’n, 350 Ill. 614, which held that the party having the burden of proof has the right to open and close argument before a jury. But in that case it appears no plea of general issue was filed and the only controversy was on the affirmative special plea of the defendant. In the instant case the amended answer filed by defendant required plaintiff to prove Ms claim; it did not admit the execution of the notes or the indorsements. It therefore was incumbent upon plaintiff to prove his claim and he was entitled to open and close the arguments to the jury.

It was not error to permit in evidence plaintiff’s exhibits 4 and 5, although these documents were not included in the list of documents filed by plaintiff pursuant to Civil Practice Act, rule 17, ch. 110, par. 259.17 [Jones Ill. Stats. Ann. 105.17]. Subparagraph 4 of the rule provides that no document required by this rule to be listed and-not listed shall be introduced in evidence unless it shall be made to appear that failure to list the same “was due to the bona fide and reasonable belief of the party that such document was not material to the cause or matter in litigation.” Defendant in his brief does not state the nature of these documents and does not show how they were material to the matter in litigation. However, examination of the record shows that the documents introduced, which were not listed, were simply for the purpose of impeaching the testimony of defendant and were only offered for this purpose. They were not material to plaintiff’s original case.

Defendant has raised a large number of points which would greatly extend this opinion to note in detail. Upon the entire record we see no reason to disagree with the trial court as to the orders and judgment appealed from, and they are affirmed.

Affirmed.

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


text:
    Ida Johnson Opdahl, Appellant, v. Mamie Jones Johnson et al., Appellees.
    Gen. No. 41,073.
    Opinion filed June 24, 1940.
    Aiken, McCurry & Bennett, of Chicago, for appellant ; Charles R. Aiken, of counsel.

      John J. Sherlock, of Chicago, for appellee Mamie Jones Johnson; C. B. Chapman, of Ottawa, of counsel.
   Mr. Justice McSurely

delivered the opinion of the court.

The appeal in this case was first taken to the Supreme Court of this State, which transferred it to this court on the ground no freehold was involved (372 Ill. 180).

The facts and questions presented for determination are succinctly stated in the Supreme Court opinion. Plaintiff, Ida Johnson Opdahl, was married to John William Johnson in 1890; in 1896, she obtained a divorce from him because of his wrongdoing; the decree made no provision for alimony or maintenance of their two infant sons but awarded her their custody; both parties afterward remarried. Johnson died testate in 1938; he made small bequests to his two sons, leaving the residue of his estate to his second wife, Mamie Jones Johnson; the will was admitted to probate and the second wife appointed as executrix; plaintiff then instituted the present suit against the executrix.

Her complaint consisted of two counts, the first asking for the assignment of dower in the estate of her divorced husband and the second seeking recovery of moneys spent by her in the support and maintenance of their two children. On defendant’s motion her complaint was dismissed and plaintiff has appealed.

As the Supreme Court opinion states, two principal questions are involved: (1) whether the Dower Act in effect at the time of the divorce or that in effect at Johnson’s death is applicable; (2) whether plaintiff is barred by laches from the recovery of money spent by her for the support of her two sons.

The opinion notes that the Dower Act of 1874, which was in effect at the time the divorce was obtained, gave the surviving wife a life estate in a third part of the lands whereof the deceased husband was seized during the marriage but not in personalty (Rev. Stat. 1874, ch. 41, sec. 1). The amendment adopted in 1927, which was in effect when Johnson died, gave a dower right in personalty. As there was no allegation in the complaint that Johnson held any real property before the divorce it was held that the controversy pertained exclusively to plaintiff’s rights in the personalty held by Johnson at the time of his death and her right to recover under the second count of her complaint.

Plaintiff contends that whatever rights were granted to her under the Dower Act were preserved to her by section 14 of the Dower Act [Jones Ill. Stats. Ann. 41.14] which provides, “If any husband or wife is divorced for the fault or misconduct of the other, . . . he or she shall not thereby lose dower. . . .” That upon her divorced husband’s death she stood in the position of his widow in so far as her dower is concerned. Defendant replies that the Dower Act at the time of the divorce gave no interest in personalty and the legislature could not change her dower right after the divorce so as to extend it to a share of the personal estate.

Counsel for plaintiff says the precise point has not been presented to the courts of this State for determination, although in some jurisdictions statutes have been enacted which entitle the wife, after the granting of divorce for the husband’s fault, to receive her dower at once. 17 Am. Jur. (Dower) sec. 83, p. 739. We have no such statute in Illinois.

The argument seems to be that as a wife’s right to dower remains inchoate until the husband’s death, and that as it is a mere expectancy of property in the future, the legislature may enlarge or diminish dower while it remains inchoate, citing Schoellkopf v. DeVry, 366 Ill. 39, and Steinhagen v. Trull, 320 Ill. 382. The sole issue presented in the first of these cases was whether an alien widow of a deceased citizen of the United States and of Illinois was entitled to dower in real estate located in Illinois. The second case involved the validity of an amendment affecting the manner of the assertion of dower or the method in which it may be waived. In neither of these cases was the existence of the dower itself involved. The decisions in these cases are not applicable to the present situation, in which there was no dower in personal property at the time of the divorce.

' Defendant presents as her answer, sec. 1 of ch. 41 of the Dower Act [Jones Ill. Stats. Ann. 41.01 et seq.], which provides that the “surviving husband or wife shall be endowed” etc. Was plaintiff the “surviving wife” of the deceased Johnson within the meaning of the act? The decision in Kent v. McCann, 52 Ill. App. 305, is in point. There Delia McCann was divorced from Patrick McCann for his fault and wrong; he subsequently died leaving a will disposing of his property, real and personal, without reference to his former wife; she filed a bill asking that dower be assigned to her in the lands of which the deceased died seized and also that she be awarded one-third of the personal estate. The court noted that dower attached only to real estate and to the argument that the law was that “whatever a surviving wife takes of the estate of the husband, she takes as dower, ’ ’ it was held that Delia McCann was not the surviving wife of Patrick McCann and she could not be regarded as his widow, citing Jordan v. Clark, 81 Ill. 465; Bishop on Marriage and Divorce, vol. 2, secs. 1628-1629; 5 Amer. and Eng. Ency. of Law, 839 and cases cited, note 1, p. 840. It was held that while the statute preserved to her dower in such lands as he was seized of during coverture, “all other interest in his property terminated with and was destroyed by the divorce, together with the relation of husband and wife.” In the case of Jordan v. Clark, 81 Ill. 465, the question arose as to the effect of a divorce where the man had died. It was held that the divorced wife “never became his widow. . . . Ceasing to be the wife of Clark, she could not become his widow. . . . ”

We hold that since the statute in force at the time of the divorce gave the surviving widow no interest in personal property, the trial court correctly held that she takes no interest in the personal property owned by the deceased at the time of his death, as the Dower Act then in force gave a dower interest to a “surviving wife” only, and plaintiff was not a surviving wife.

The second count of the complaint alleges that at the time of the divorce proceedings John William Johnson, then plaintiff’s husband, persuaded her to permit his company’s lawyer to represent her in the divorce proceedings upon the representation that Johnson would pay her $5 per week for the support of each of the minor children; that as a result of this conspiracy between Johnson and his company’s lawyer the agreement to pay for the support of the children was not incorporated in the decree; that this fact was not ascertained by plaintiff until after she learned of her husband’s death; that thereafter Johnson disappeared and plaintiff never saw or heard from him again; that afterwards she learned he was living in Milwaukee, Wisconsin, under an assumed name; that she called on the lawyer who had represented her and was informed that Johnson could not be found; that she later read in a newspaper of his death in River Forest, Cook county, Illinois.

The decree of divorce was entered 42 years before the present complaint was filed. The youngest of the two children became of age in 1913, almost 25 years before the complaint was filed. There is no allegation that any payments for the childrens ’ support was made or any demand made for such payments. She does not state in her complaint how many years ago she called on her attorney. She knew that her former husband was one of the owners of the J. W. Johnson Company but so far as shown by her pleadings she never inquired of this company or ever went there to find him. There is no allegation that she had endeavored to locate him within the last 25 years, although she knew his place of business. Assuming the agreement was as stated by her, it could not be performed within one year as the youngest child would not be of age for more than a dozen years thereafter. It was an oral contract, not to be performed within one year, and sec. 1 of chapter 59 of the statutes of Illinois [Jones Ill. Stats. Ann. 55.01] provides that no action shall be be brought to charge any person upon any agreement that is not to be performed for the space of one year from the making thereof, unless the agreement shall be in writing and signed. Taylor v. Scott, Foresman & Co., 178 Ill. App. 487.

Defendant further says plaintiff’s action is barred by laches as it appears by the pleadings that the cause of action had accrued more than 25 years before the suit was commenced. The point seems to be well taken. During all of this time plaintiff must have known of her rights. She knew the business in which her former husband was engaged, she knew where it was located and did not go there to see him or to make any demands. There was clearly a negligent omission on her part to assert her rights, if any. Wilcoxon v. Wilcoxon, 230 Ill. 93. In Forster v. Brown Hoisting Machinery Co., 266 Ill. 287, 12 years was held to bar the claim of the plaintiff, and in Carpenter v. Carpenter, 70 Ill. 457, 18 years without action was held to be laches.

Moreover, her suit is barred by the five-year statute of limitations (sec. 15, ch. 83, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 107.275]). The cause of action occurred certainly not later than 1913, the date the youngest son became of age. The complaint was filed November 14, 1938.

For the above reasons we hold that the order of the trial court dismissing plaintiff’s complaint was proper, and it is affirmed.

Order affirmed.

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


author: Mr. Presiding Justice O ’Connor Mr. Justice Matchett

text:
    J. Frank O’Brien, Appellant, v. William J. McCarthy and Northern Trust Company. William J. McCarthy, Appellee.
    Gen. No. 40,857.
    Opinion filed June 24, 1940.
    Latimer, Donovan & Brown, of Chicago, for appellant.
    George J. Kabrine, of Chicago, for appellee.
   Mr. Presiding Justice O ’Connor

delivered the opinion of the court.

Plaintiff brought an action against defendants to recover $300 claimed to be due him for commissions earned as a real estate broker. Defendants denied liability. The case was tried before the court without a jury and at the close of plaintiff’s case defendants moved for judgment in their favor which the court took under advisement. Thereupon defendant McCarthy called witnesses who testified in his behalf and after the evidence was all in, but before the court made any ruling, plaintiff moved for a nonsuit which the court allowed but which order was afterward set aside and the motion for a nonsuit denied. Thereupon the court found the issues against plaintiff and that defendants recover costs against him and for execution. Plaintiff appeals.

The question for decision is whether plaintiff, after the evidence on both sides had been heard, has the legal right to orally take a nonsuit or whether the court may, in its discretion, overrule the motion and dispose of the case on the merits.

Sections 20 and 30 of the act in relation to the municipal court of Chicago, ch. 37, pars. 375 and 385, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 108.045,108.053] provide : “ § 20. That the judges of said municipal court shall have power to adopt, in addition to or in lieu of the provisions herein contained prescribing the practice in said municipal court, or of any portion or portions of said provisions, such rules regulating the practice in said court as they may deem necessary or expedient for the proper administration of justice in said court. The adoption of said rules shall be accomplished by an order or orders signed by a majority of said judges, which order or orders, when made, shall be spread forthwith upon the records of said court and shall be printed in pamphlet or book form at the expense of the city. Amendments and changes of said rules may be made from time to time by like orders. ’ ’

Section 30 provides that if a jury trial is desired, a demand be made, etc., and the section continues, “Every person desirous of suffering a non-suit on trial shall be barred therefrom unless he do so before the jury retire from the bar, or before the court, in case the trial is by the court without a jury, states its finding.”

The Municipal Court Act was enacted in 1905 and §§20 and 30, among other sections of the act, were amended in 1907. Section 20, as then amended, authorizes the judges of the court “to adopt, in addition to or in lieu of the provisions herein contained prescribing the practice, in said municipal court or of any portion or portions of said provisions, such rules regulating the practice in said court as they may deem necessary or expedient for the proper administration of justice therein: Provided, however, that no such rule or rules so adopted shall be inconsistent with those expressly provided for by this Act.”

In 1931, § 20 was again amended and the provision of § 20 above underscored was eliminated so that §§20 and 30 are now as first above quoted.

Pursuant to the authority conferred on the judges of the municipal court in the making of rules, Rule 122 was adopted by the judges. It provides that plaintiff may at any time before the filing of the defendant’s defense or after the filing of such defense but before taking any other proceeding, by notice in writing or in open court discontinue his action or any part of it, but after the filing of the pleadings if plaintiff takes any further action he is not authorized to take a nonsuit as a matter of right, but only in the discretion of the court.

Counsel for plaintiff contend that “The Municipal Court of Chicago has no power to change substantive rights by means of rules of court”; that “The right to a non-suit is a substantive right”; and that Rule 122 is inconsistent with § 30 of the Municipal Court Act and therefore void.

Begulating by rule the method of plaintiff’s taking a nonsuit in Rule 122 of the municipal court, is in relation to “practice” as mentioned in § 20. Ptacek v. Coleman, 364 Ill. 618, 621, 625; Danoff v. Larson, 368 Ill. 519; Huber v. Van Schaack-Mutual, Inc., 368 Ill. 142, 144; Chicago Title & Trust Co. v. County of Cook, 279 Ill. App. 462.

In the Ptacek case, the Supreme Court held that § 52 of the Civil Practice Act was not applicable to the municipal court of Chicago. In the course of the opinion the court said: “Section 20 as amended in 1931 provides : ‘ That the judges of said municipal court shall have the power to adopt, in addition to or in lieu of the provisions herein contained prescribing the practice in said municipal court, or of any portion or portions of said provisions, such rules regulating the practice in said court as they may deem necessary or expedient for the proper administration of justice in said court. . . . Amendments and changes of said rules may be made from time to time by like orders.’ Prior to the amendment of 1931 section 20 carried the proviso that no such rule should be inconsistent with those expressly provided for by the act, and that the Supreme Court might, in its discretion, substitute other rules and make any order respecting the rules as it deemed proper.” (p. 625): “It is to be noticed that by the amendment of section 20 in 1931 the power to adopt rules in lieu of the practice provisions contained in the act is specifically delegated to the court. ’ ’ The court said the Municipal Court Act or any amendment thereto must be submitted to a vote of the people but this was not required of the Civil Practice Act and the court held that § 52 of the Civil Practice Act was inapplicable to the municipal court.

In the Danoff case it was held that the rule of the municipal court which sought to regulate the service of summons was void. The court there said that § 20 of the Municipal Court Act applied only to rules of practice in that court and did not permit the judges of the municipal court to regulate the manner of service of summons; that (p. 521) “Section 20 of the Municipal Court act . . . provides that the judges of that court shall have power to adopt, in addition to or in lieu of the provisions therein contained, such rules regulating the practice in said court as they may deem necessary or expedient for the proper administration of justice. It appears, therefore, that the legislature has delegated to that court the power to prescribe its own rules of practice in addition to or in lieu of the provisions made in respect thereto by the legislature. This delegation of rule-making power has been held constitutional. Hopkins v. Levandowski, 250 Ill. 372; People v. Gill, 358 id. 261; Ptacek v. Coleman, 364 id. 618.”

And in discussing the authority of the judges of the municipal court of Chicago to enact rules governing practice in that court the Supreme Court in the Huber case [368 Ill. 142, 144], said: “In Ptacek v. Coleman, 364 Ill. 618, we reaffirmed our holding that the municipal court of Chicago is a part of the local municipal government of that city established pursuant to section 34 of article 4 of the constitution as amended in 1904, and we reviewed, at length, that court’s rule-making power. We held that it had the power to adopt a different rule as to the taking of a non-suit and that this was not governed by the Civil Practice act. It is not necessary to repeat here the sections of the municipal court act set out in that decision.”

From the foregoing we are of opinion that the judges of the municipal court were, by virtue of § 20 of the Municipal Court Act, authorized to pass Rule 122, which made it discretionary with the trial judge in a case tried without a jury to allow or deny the motion of plaintiff for a nonsuit after the evidence was heard. We think the conflict between § § 20 and 30 of the Municipal Court Act is more apparent than real but in any event § 20 expressly authorizes the judges to adopt rules of practice “in addition to or in lieu of” the provisions of the act. We think the rule is valid and is just and equitable. Chicago Title & Trust Co. v. County of Cook, 279 Ill. App. 462,14 Cyc. 396; Johnson v. Bailey, 59 Fed. 670; Washburn v. Allen, 77 Me. 344; Shaw v. Boland, 15 Grey [81 Mass.] 571; United States v. Humason, 8 Fed. 71, 73.

In the Chicago Title & Trust Co. case, we held that a plaintiff, after the evidence was heard and argument of counsel was proceeding, had no right to take a non-suit unless he complied with § 52 of the Civil Practice Act. We there said that the practice of permitting plaintiff to take a nonsuit after the evidence was in ‘ ‘ often made the administration of justice a mere travesty.” And it was to remove this obvious defect that the legislature enacted § 52 of the Civil Practice Act.

In 14 Cyc. 396, it is said: “It is considered that the granting or the refusal of leave to dismiss, to discontinue, or to take a nonsuit is a matter of practice resting in the discretion of the court, which discretion is to be exercised with reference to the rights of both the parties. ’ ’

In the Johnson case, [59 Fed. 670] it was held that after the trial had actually begun the plaintiff had no absolute right to take a nonsuit but the refusal or granting of plaintiff’s motion for a nonsuit ‘ ‘ lies in the liberal discretion of the court, but will be denied when plaintiff gets all his own evidence in, and is not surprised by defendant’s evidence.” The court then discussed a great many authorities as well as the common law rule and said: “it seems little short of a perversion of justice, without any good cause shown, to hold that the plaintiff shall, at any time before verdict rendered, and when the court is in possession of the means for a just and final determination upon the merits, have the absolute power, at his own pleasure, and without showing any cause, of discontinuing his action with the right to bring a new suit for the same cause. ’ ’ The court there quotes from authorities which hold that the common law rule of England, permitting a plaintiff to take a nonsuit before verdict, had been changed by statute. That opinion was written in 1894.

In the Washburn case [77 Me. 344], the court analyzes and discusses a number of authorities on the right of plaintiff to take a nonsuit and reached the conclusion that such right was within the discretion of the trial court and said: “The reason of the rule is apparent, and needs no discussion. It is founded upon principle. If there were no place at which a party defendant could have any rights, save as to costs, till after verdict, great injustice might oftentimes result, with no power in the court to correct or restrain it. As a nonsuit is no bar to a future action for the same cause, a plaintiff, if .so disposed, might harass the opposing party, whose residence or situation might be such as to necessitate great expense in the preparation or defense of a cause, with continued litigation, and the costs recoverable would be absolutely inadequate to compensate him for either. Courts of law are instituted for the administration of justice, and in so doing must be governed by wise and salutary rules that will neither afford improper advantage to one party nor work injustice to the other. ’ ’ And to the same effect is the law in Massachusetts where the court in Shaw v. Boland, 15 Grey [81 Mass.] 571, 573 said: “And this law seems to us to be eminently just. As a nonsuit is no bar to another suit for the same cause of action, a plaintiff might harass a defendant by unlimited litigation, if the court had no authority, in any case to prevent a nonsuit.”

The judgment of the municipal court of Chicago is affirmed.

Judgment affirmed.

McSurely, J., concurs.

Mr. Justice Matchett

dissenting:

Plaintiff, a licensed real estate broker, filed a verified statement of claim for commissions. Defendants filed affidavits of merits. On hearing, plaintiff made a motion for a nonsuit, which was allowed on January 29, 1939. March 1,1939, the court on motion of defendants, pursuant to notice served February 25, 1939, vacated the order permitting the nonsuit, overruled the motion therefor and entered judgment in favor of defendants and plaintiff appeals.

The judgment of the court was entered pursuant to Rule 122 of the municipal court covering the practice of that court with relation to voluntary discontinuances, which in the circuit and superior courts is controlled by § 52 of the Civil Practice Act (Smith-Hurd Anno. Stats, ch. 110, § 176 of the statute, p. 466 [Jones Ill. Stats. Ann. 104.052].) Section 52 is not applicable to the municipal court. Ptacek v. Coleman, 364 Ill. 618.

The contention of plaintiff is that the right to take a voluntary nonsuit is a substantial right of which plaintiff could not be deprived by rule of court; that the municipal court was without power to enact Rule 122, and that it is invalid for that reason. Defendants contend this question has been settled in their favor by Ptacek v. Coleman, 364 Ill. 618. It has not. The sole question in that case was whether § 52 of the Civil Practice Act should be held to apply to the practice in the municipal court. This court and the Supreme Court held it did not. The question of whether Rule 122 was valid or invalid was not raised.

Plaintiff’s contention is that the right of a litigant to take a nonsuit is a substantive right and that the municipal court is wholly without power to deprive a litigant of it by rule of court or any other way. Plaintiff concedes power to make rules of practice is granted to the municipal court by § 20 of the Municipal Court Act (see Ill. Rev. Stat. 1939, ch. 37, par. 375, pp. 1061-1062 [Jones Ill. Stats. Ann. 108.045]), but says the right to take a nonsuit is provided for by § 30 (Ill. Rev. Stat. 1939, ch. 37, par. 385, p. 1064 [Jones Ill. Stats. Ann. 108.53]) and that Rule 122 is invalid because it deprives plaintiff of a substantive right contrary to the statute. In Danoff v. Larson, 368 Ill. 519, the Supreme Court held § 20 of the Municipal Court Act did not authorize judges to-determine by rule the method of serving summons which had been prescribed by the legislature. This holding was followed in Cohen v. Bendix, 369 Ill. 507. In Barry v. Knight, 296 Ill. App. 277 (appeal refused by the Supreme Court), an attempt by rule to give to the municipal court general equity jurisdiction was held invalid. In People ex rel. v. Municipal Court of Chicago, 297 Ill. App. 431, it was held a writ of prohibition would not issue to determine the extent of the jurisdiction of the municipal court.

Plaintiff argues the right to a nonsuit is a substantive right, and this being true, it follows, it is said, that a litigant may not be deprived of the right by court rule. Plaintiff cites Daube v. Kuppenheimer, 272 Ill. 350, where the right of a plaintiff to take a nonsuit after the court had directed a verdict against him at the close of all the evidence and while the court was stating its reasons for directing the verdict but before the jury had actually signed it was sustained. It was there held that a trial at which the court directed a verdict for one of the parties was a trial by jury within the meaning of the statute, which by implication permitted the plaintiff to take a nonsuit at any time before the jury retired. The court held plaintiff had an absolute right to take the nonsuit. The opinion reviewed at length the history of nonsuits, stating that at common law plaintiff was permitted to take a nonsuit at any time before the verdict was rendered in court and pointing out the various modifications of the rule by statutory enactment.

In Ex Parte: In the Matter of Skinner and Eddy, Corporation, Petitioner, 265 U.S. 86, the Supreme Court of the United States granted a mandamus to compel the court of claims to allow plaintiff to assert his right to take a nonsuit. The opinion by Chief Justice Taft pointed out that at common law plaintiff had an absolute right to discontinue or dismiss his suit at any stage of the proceedings prior to verdict or judgment and that this right had been declared to be substantial, citing Barrett v. Virginian Ry. Co., 250 U.S. 473; Confiscation Cases, 7 Wall. 454, 457; Veazie v. Wadleigh, 11 Pet. 55; United States v. Norfolk & Western Ry. Co., 118 Fed. 554. The opinion goes, on to say (citing authorities) that it is ordinarily the undisputed right of a plaintiff to dismiss a bill in equity before a final hearing, and except in certain cases an examination of English and American authorities showed that the right of a complainant to dismiss his bill.without prejudice, on payment of costs, was as of course; that the exception was where the dismissal of the bill would prejudice the defendants in some other way than by the mere prospect of being harassed and vexed by future litigation. The court said:

“The right to dismiss, if it exists, is absolute. It does not depend on the reasons which the plaintiff offers for his action. The fact that he may not have disclosed all his reasons or may not have given the real one cannot affect his right.”

Plaintiff says the right of dismissal is identical with the right to take a nonsuit, and that “In view of the decisions cited herein, it is evident that the right to a non-suit is not a mere matter of practice that can be changed to suit the whims of the Judges of the Municipal Court of Chicago. It is not even a matter which can be changed by the Judges no matter how noble their motive. It is a substantive right — a right existing at common law — a right limited by Section 30 of the Municipal Court Act, but not otherwise — and not a matter of procedure which can be changed by rules of court. ’ ’

It may be well to recall the language of Eule 122 and the interpretation of it. It provides:

‘ ‘ Plaintiff may discontinue before or after defence.

“The plaintiff may, at any time before the filing of the defendant’s defence, or after the filing of such defence before taking any other proceeding in the action (other than an interlocutory application), by notice in writing or in open court to the defendant or defendants, wholly discontinue his action against all or any of the defendants or withdraw any part or parts of his alleged cause of action and thereupon he shall pay to the defendant or defendants their costs in the action, or, if the action be not wholly discontinued, such portion of such costs as the court may deem just. Save as in this rule is otherwise provided, it shall not be competent for the plaintiff to discontinue the action, but the court may, before, or at, or after the hearing or trial, upon such terms as to costs, and as to any other action, and otherwise as may be just, order the action to be discontinued, or any part of the alleged cause of action to be struck out. A discontinuance of any action by the plaintiff shall not affect the right of a defendant to prosecute any counterclaim theretofore filed. ’ ’

A note to Rule 122 shows the construction of it. The note says the rule fakes away the power of a plaintiff heretofore existing to claim a nonsuit; that neither party can by devices of amendment or otherwise, evade these rules, nor can it be used for bringing about indirectly that which cannot be effected directly; that two or more co-plaintiffs cannot withdraw without the consent of the others, if a co-plaintiff declines to proceed the usual order will be to strike him out as a plaintiff and add him as a defendant, upon such terms as to costs as may be ordered by the court; that if the defendant is an infant, the plaintiff cannot discontinue until a guardian ad litem has been appointed and appearance enteredthat leave is required for a plaintiff if after the filing of a defense he has taken any proceedings, other than interlocutory, in continuation of the litigation; that leave will be given upon such terms as may seem just (1) either as to costs, or (2) any other action, or (3) otherwise; that a plaintiff who, without leave, discontinues or withdraws part of .his action is not prevented from bringing another action for the same subject matter, but where leave is required the court will consider all the circumstances and if it seems just will impose terms that no other action shall be brought; or leave to discontinue may be refused and judgment given for the defendant.

Section 30 of the Municipal Court Act, with certain provisions with reference to jury trial, further provides :

“Every person desirous of suffering a non-suit on trial shall be barred therefrom unless he do so before the jury retire from the bar, or before the court, in case the trial is by the court without a jury, states its finding. ’ ’

The difference between the rale and the statute is deep and fundamental. The note to the rule plainly states that the rule takes away the power of a plaintiff heretofore existing to claim.a nonsuit. The statute gives to the person who is the owner of a cause of action absolute control of it until the jury retires or until the court states its finding if the trial is by the court. Under the rule that power and control becomes conditional as soon as a defendant files his defense. From that moment the exercise of the right ceases to be absolute. There might be many reasons why the plaintiff would deem it unwise to continue the existing law suit. At common law and under the statute his right to continue or discontinue was in his control. The rule takes this from him. The note to the rule says so. There is a clear contradiction between the statute and the rule. The statute was passed by the legislature. The rule is made by the court under supposed statutory authority. We cannot assume that the legislature intended to grant to the municipal court power to repeal the statute which the legislature itself enacted. That is precisely what has happened here. Danoff v. Larson, 368 Ill. 519, is, as we read it, decisive. In that case the municipal court acting under the same authority as here, undertook to prescribe a method by which a defendant might be summoned to court. The opinion of the court said that the legislature had prescribed the manner in which a summons should be served and pointed out that while under § 20 of the Municipal Court Act (Ill. Rev. Stat. 1937, ch. 37, par. 375 [Jones Ill. Stats. Ann. 108.045]) the judges of the court were given power to adopt in addition to or in lieu of the provisions of the statute, such rules regulating the practice as they might deem necessary or expedient, this power did not extend so far as to give authority to prescribe the time or manner of serving initial process. The Supreme Court declined to attempt to give by precise definition the meaning of the word “practice,” saying that so far as the briefs advised or independent investigation had shown “there is no authority precisely in point.” The opinion of the court, however, points out that the Municipal Court Act was not intended to give to judges of that court power to make substantive rules of law; that it was clear the means by which a person was summoned into court went deeply into the substance of his rights and was more than a mere matter of form. Can it be said that the power to prescribe the manner in which notice shall be given to a defendant of a court proceeding is fundamental and a part of his substantial right while that of controlling his own suit after the court has acquired jurisdiction is not! I think this question must be answered in the negative.

For the reasons indicated I would hold the rule invalid. I think the judgment should be reversed and the cause remanded with directions to permit plaintiff to take a nonsuit.