author: Mr. Justice O’Connor

text:
    The People of the State of Illinois, Defendant in Error, v. Gustaf Lindquist, Plaintiff in Error.
    Gen. No. 38,797.

      Opinion filed March 15, 1937.
    Grenville Beardsley, of Chicago, for plaintiff in error.
    Thomas J. Courtney, State’s Attorney, for defendant in error; Edward E. Wilson, John T. Gallagher, Melvin S. Bembe and Blair L. Yarnes, Assistant State’s Attorneys, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.

On December 3, 1934, the grand jury, impaneled in the criminal court of Cook county, returned an indictment against Gustaf Lindquist, Abraham H. Karatz and five others charging that they conspired to obtain notes, mortgages, etc., belonging to the Abraham Lincoln Life Insurance Company, an Illinois corporation, of the value of $13,000,000 by false pretenses and to embezzle $25,000, the property of the insurance company. Lindquist and Karatz were tried together, the jury returned a verdict finding them both guilty, fixed their punishment at imprisonment in the penitentiary, and imposed a fine of $1,000. Afterward judgment was entered on the verdict and Lindquist prosecutes this writ of error. In addition to Lindquist and Karatz the indictment named Hayden Sanders, Otto Van Derek, Dave Barry, Walter Ehlers, Joseph Baiata, otherwise called Charles Carloni, otherwise called J. B. Farquhar, otherwise called Joseph B. Marsino, otherwise called Joseph Marcino, otherwise called Joseph Omar, otherwise called Joseph Omer, otherwise called Harry Goldman, otherwise called Frank Bianco. Just what disposition was made of these five defendants does not clearly appear.

The record discloses that in 1934 Baiata and Karatz were operating a tavern and restaurant on Madison street in the Loop of Chicago, and had employed Barry to “front” for them, thinking that as he had a large following he would bring in considerable business. They also had concessions at the World’s Fair on the Lake Front, at which Barry was also employed. The businesses were not a financial success but apparently resulted in losses. Baiata became acquainted with Van Derek, a man about 23 years old, who was employed as a bookkeeper by the Amalgamated Trust & Savings Bank located in downtown Chicago. Van Derek; through his meeting with Baiata, agreed to “pull” checks drawn by the tavern on the bank. The checks would he paid but when they were returned by the clearing house they were “pulled” by Van Derek and not charged against the account. In this way Van Derek had abstracted from the bank, for the benefit of Baiata, about $30,000 covering a period of a few months. Van Derek was constantly complaining to Baiata that he would pull no more checks, and that unless the defalcations were made up by Baiata, as he had promised, Van Derek would go to the police and confess. The amount embezzled by Van Derek from the bank was constantly increasing until it amounted to about $54,000. About August or September Baiata and Karatz, and probably some others, conceived the idea of getting control of a life insurance company with a view of making good the shortage at the bank from the profits of the insurance company or by abstracting its assets. Karatz had practiced law in St. Paul, Minnesota, for many years, and apparently was then a man of good repute. He had been acquainted with Lindquist for a number of years. About eight years before the indictment Karatz had removed to Chicago where he had been engaged in the insurance, real estate and other businesses.

Baiata had formerly been president of the Commonwealth Insurance Company and chairman of the board of directors of the Niagara Life Insurance Company and had been an officer of several banks. He had served terms in the Federal penitentiary at Atlanta, Georgia, and in the state prison at Charlestown, Mass., and at the time of the trial of the instant case he was brought from the Joliet penitentiary and testified on behalf of the People.

Lindquist was 53 years of age at the time of the trial; he was born in Sweden and had lived in St. Paul since 1901; he first worked as a laborer, went to night school and finally became an insurance salesman, then the proprietor of an agency. He was deputy to the Hon. John B. Sanborn, then Commissioner of Insurance and now Judge of the United States Circuit Court ■ of Appeals. In 1917 Lindquist was secretary to Gov. J. A. Burnquist of Minnesota, who in 1920 appointed him Commissioner of Insurance of that State. He was reappointed by Gov. Preus of Minnesota. He afterward resigned as Commissioner of Insurance to become president of the Travellers Equitable Insurance Co. of Minneapolis, which position he retained until 1930, at which time he became an assistant to the vice-president of the Equitable Insurance Company of New York; he later organized a company known as the Pioneer Mutual Life Insurance Company of Minnesota, of which he was president in September, 1934. As president of the Travellers Insurance Company his salary was $12,000 a year and the Equitable Insurance Company of New York paid $10,000 a year. In September, 1934, he was earning about $50 a week with commissions.

In the early part of September, 1934, Baiata went to St. Paul, apparently on some business, and dropped in to see Lindquist at the latter’s office; this was apparently the first time Lindquist had seen or heard of Baiata. Baiata told him that he and their mutual friend, Karatz, were contemplating buying a life insurance company and that they wanted an outstanding man in that line to take charge of the company, and Baiata mentioned a life insurance company of Springfield, Illinois. Lindquist said he had heard of that company through Karatz and had looked into its affairs but would not care to be connected with it. At that time Baiata said he had considerable money— represented considerable wealth — and that if he decided to buy a life insurance company he could obtain $1,000,000 for that purpose.

Robert Telfer, an insurance broker of Chicago who had been an official of Baiata’s former Commonwealth Insurance Company, was looking for an insurance company which Baiata and Karatz might buy. Karatz from Chicago wrote to Lindquist calling his attention to the life insurance company of Springfield above referred to; Lindquist declined the proposition for the reason that he thought the company was not a good one. During' the latter part of September, 1934, Teller from Chicago called up Cornelius J. Doyle of Springfield, Illinois, who was a prominent attorney and well known in insurance circles, and inquired about the purchase of an insurance company and the Abraham Lincoln Company of Springfield was mentioned. Pursuant to this talk Baiata and Karatz went to Springfield and had a conference with Doyle and officials of the Abraham Lincoln Insurance Company; it was there stated that Lindquist was to be the president of the company in case the controlling interest should be purchased by Baiata and Karatz. The president of the company stated he wanted to deal with the principal and thereupon Doyle, from Springfield, called Lindquist at his home in St. Paul on the telephone, the number having been given to him by Karatz. Doyle explained the matter and as a result Lindquist arrived in Springfield the next day and after a few days’ investigation of the Lincoln Company and after conferences with the company’s officials a written contract was entered into on September 29th between the officials of the Abraham Lincoln Company and Lindquist for the sale of about 53 per cent of the capital stock to Lindquist for about $400,000; $10,000 was paid at the time, checks for this amount being there furnished by Baiata, and $15,000 was paid shortly thereafter, the money also being furnished by Baiata. Further payments of $25,000 a month were to be made.

The Abraham Lincoln Insurance Company had been having difficulties with the Insurance Department of Illinois. A few months prior to September an agreement to sell the controlling interest in the company to some parties from Kansas City had resulted in objections by the Insurance Commissioner who refused to approve the contract for the sale and the deal fell through. The Commissioner had his representative in the office of the insurance company to see that the policyholders were protected; but the Commissioner was not advised of the contract of September 29th until October 15th. Pursuant to the terms of the contract, some of the officials and the officers of the insurance company resigned and Lindquist was elected president and director, and Sanders, named in the indictment, was elected treasurer. When the Insurance Commissioner learned of the sale to Lindquist he sent for him and the officials of the company. They went to his office and he told them he would not approve the contract, pointing out several objections. He stated that the officials of the company had promised him, after the failure of the sale to the Kansas City parties, that they would take no other action in the matter without securing his approval. He demanded the names of the persons who were to put up the money for the purchase of the controlling interest and afterward wrote Lindquist calling for this and other information. Lindquist wrote in reply, naming six men who were to be associated with him in the transaction, giving their names and addresses, five of whom lived in St. Paul and one in Minneapolis, Minn. Upon receipt of this letter the Insurance Commissioner wrote these six men advising them of the contract entered into by Lindquist and the officials of the insurance company, stating that Lindquist had advised him that they were to purchase some of the stock of the company and requesting them to advise him as to what amounts they were investing in the company and to attend a meeting in Springfield at the Commissioner’s office on October 31. Four of the six persons replied to the Commissioner’s letter but none of them said they were to be financially interested in the company, and each stated he could not attend the meeting of October 31. The Commissioner received no reply from the other two men.

November 1, 1934, the officials of the insurance company entered into another agreement with Lindquist whereby they were to sell him about 53 per cent of the capital stock of the company. This agreement was approved by the Commissioner. It provided, among other things, that Lindquist was to substitute in the portfolio of the insurance company cash or securities of sound value amounting to $307,350, in payment of 4,098 shares of the preferred stock of the Abraham Lincoln Hotel Company of Springfield, Illinois, to which the Insurance Commissioner had objected and insisted that this hotel stock be removed from the assets of the insurance company.

The Insurance Commissioner continued to have his representative in the offices of the insurance company to keep him advised as to what was being done so that the policyholders would be protected. Shortly after the agreement of September 29th was entered into between the officials of the insurance company and Lindquist, Baiata, Karatz and Lindquist entered into a written agreement whereby Baiata and Karatz were each to receive 42 5/10 per cent and Lindquist 15 per cent of the 53 per cent of the capital stock of the insurance company.

Shortly before the instalment for $25,000 fell due on November 15th, Baiata was having trouble in raising the money with which to pay this instalment, and the idea was conceived of buying the controlling interest in a bank in Indianapolis with a view of looting the bank to the extent necessary to make the payment; for this purpose Baiata, Karatz, Ehlers and Sanders went to Indianapolis, and on November 9th a written agreement was entered into between Sexton, president of the bank, and Ehlers and Sanders, whereby Sexton agreed to sell and deliver to them 510 shares of the capital stock of the bank for $165 a share, or a total of $84,150, to be paid for in cash or its equivalent. This was the controlling interest in the bank. The agreement provided that upon the consummation of the deal certain officers and directors of the bank were to resign and Ehlers was to be elected a director and vice president of the bank and Sanders was to be elected a director and president of the bank. It was agreed that it would take from 10 to 15 days for Sexton to secure the necessary number of shares of stock.

Apparently Baiata and some of the others were fearful that the $25,000 instalment might not be paid when due, and the deal might fail through the action of the Insurance Commissioner of Illinois. About this time the insurance company deposited money in the Amalgamated Trust & Savings Bank of Chicago. Afterward the insurance company caused some of its checks to be printed at Springfield to be thereafter drawn on the Amalgamated Bank. Karatz went to Springfield from Chicago and registered at the St. Nicholas Hotel under the name of A. Kahn, claiming he did so because he did not want other parties with whom he had been negotiating in other business transactions to know he was in Springfield.

At Springfield on November 13th a check was drawn by the Abraham Lincoln Life Insurance Company on the Amalgamated Bank for $25,000, payable to Ehlers, which was signed by Sanders as treasurer and countersigned by Lindquist as president of the insurance company. This check was given to Karatz at the St. Nicholas Hotel. The check states on its face that is for “Purchase 32M. La. Port Comm. 5% bonds.” It was brought from Springfield by Karatz and given to Ehlers in Chicago. Ehlers took the check to the Amalgamated Bank and received for it a cashier’s check of the Amalgamated Bank dated November 14th for $25,000, payable to Ehlers and drawn on the First National Bank of Chicago. Ehlers presented this check to the First National Bank and it was certified by the bank.

About that time Karatz’s father, who lived in Minneapolis, died and Karatz and his son went to that city to attend the funeral. While he was there Baiata took the check to the First National Bank to Minneapolis and delivered it to Karatz’s son, who, pursuant to his father’s direction, took the check and delivered it to attorney Scott, apparently to have the check cashed. Scott was unable to do this, and the check was then delivered to Harry A. Weiss, a practicing lawyer in St. Paul. Weiss apparently deposited the check in his bank there, but the First National Bank of Chicago refused to pay the check because the payee, Ehlers, was not identified. Lindquist learning, as he says, that the check was in St. Paul, went there, got the check, came back to Chicago and proceeded with Ehlers to the Amalgamated Bank where it was to be redeposited to the account of the insurance company in that bank. When Ehlers went into the bank he was placed under arrest. Karatz and Baiata had been arrested the evening before; Van Derek, who had been looting the funds of the Amalgamated Bank as above stated, having gone to the officers and told them the story of his embezzlement. The next day Lindquist went to the State’s attorney’s office, where he was interrogated about the matter.

Counsel for Lindquist contends that the evidence is insufficient to prove his guilt beyond a reasonable doubt and therefore the judgment cannot stand. In support of this, counsel says that a great part of the evidence against Lindquist was the testimony of Baiata, the chief actor in the instant case, a self-confessed criminal whose criminality had extended over a period of years and that the law caught up with him sufficiently to cause his confinement in prisons in Atlanta, Charlestown, Mass., and Joliet, Ill., where he was serving a sentence at the time he testified. Baiata also admitted his guilt in the instant case, but what disposition was made of him does not appear. Baiata was known by eight aliases and apparently his chief vocation was defrauding persons of their property and corrupting young and old with whom he came in contact.

Baiata’s testimony is to the effect that on November 3,1934, he told Lindquist in Karatz’s presence that Van Derek had stolen money from the bank and that it was “our business” to replace the money and save Van Derclc and “ourselves.” This is the earliest date at which the evidence tends to connect Lindquist with knowledge of the crooked business in which Baiata and others were engaged in looting the bank and procuring the insurance company for the same purpose. And it was only 16 days thereafter that Van Derek went to the police and the arrests followed.

There is some other evidence that Lindquist knew that Sanders on November 8th was taking $80,000 worth of securities belonging to the insurance company to Indianapolis to be used toward the purchase of a bank in that city. Sanders so testified. He also gave testimony to the effect that Lindquist knew of and took an active part in making out the check of November 13, for $25,000, drawn on the insurance company’s account in the Amalgamated Bank of Chicago in an endeavor to obtain $25,000 of the insurance company’s money to be used in paying the November instalment of $25,000 on the contract for the purchase by Lindquist of 53 per cent of the capital stock of the insurance company.

The contention of the People that Lindquist had surreptitiously taken the blank check from those then being printed in Springfield, before they were assembled in book form, is in some measure supported by the testimony of witnesses who were not accomplices, to the effect that at the time in question Lindquist was seen looking over the printed proofs of the blank checks in the printing plant and that the check in the record is No. 2, while a similar number also appears in the checkbook that was afterward made up.

Counsel for the People also contend that after this check was signed by Sanders and Lindquist in Springfield it was sent to Chicago, and Ehlers and the other conspirators being unable to obtain the money on it in Chicago sent it to Minneapolis for the purpose of having it cashed there and the money forwarded from St. Paul to Springfield so as to make it appear that Lindquist’s friends there were furnishing money, as he had theretofore told the Insurance Commissioner of Illinois would .be done; that the evidence shows Lindquist actively participated in an endeavor to wrongfully obtain the $25,000, and that this evidence, together with other evidence in the record, warranted the jury in finding him guilty beyond a reasonable doubt on this phase of the case.

Lindquist denied any wrongdoing; he testified that he understood the entire transaction, from its inception until just before Ehlers was arrested, was legitimate in every way and that he first became suspicious when he learned that the $25,000 check was in St. Paul. He further testified that the $25,000 check was brought to him by Sanders in Springfield, having theretofore been filled out by Sanders; that the check on its face showed that the $25,000 was to be used to purchase $32,000 worth of Louisiana Port bonds which Sanders said he had bought for the insurance company and which he said would result in a profit of $7,500 to the insurance company; that Sanders said the bonds had been purchased from Ehlers in Chicago and the check was to be sent to Ehlers in payment of the bonds, and that Sanders said he was going to obtain the Insurance Commissioner’s approval, which he was certain would be forthcoming because of the profit that would be made for the insurance company in the transaction.

Lindquist further testified that throughout the dealings he had no notice, knowledge or intimation that Van Derek was stealing from the bank the money Baiata had used in part payment for the purchase of the controlling interest in the insurance company.

The evidence is voluminous (consisting of about 2,300 pages) much of which we do not discuss in detail in this opinion.

The evidence shows that Lindquist was a man of good standing in Minnesota where he had resided practically all his life, during a great many years of which he was engaged in the insurance business as Commissioner of Insurance or in connection with the operation of other insurance companies. Thirteen witnesses came from Minnesota, and testified that .they had known Lindquist as a citizen of Minnesota for a great many years and that his general reputation for honesty, integrity and square dealing was good. Some of these witnesses were business men, some clergymen, all of them men of high standing. Nor is there any contention by counsel for the People that Lindquist’s reputation was not as testified to by these witnesses. Lindquist did conceal from the Insurance Commissioner of Illinois that the man who was to put up the money for the purchase of the stock of the insurance company was Baiata, but on the contrary let the Commissioner believe that he was being backed financially by men from Minnesota. He attempts to explain this by the fact that the officials of the insurance company had theretofore had difficulties with the Insurance Commissioner, and that through their suggestion he referred the Commissioner to the six citizens of Minnesota, and did not name Baiata as the real purchaser of the stock. The evidence shows further that although the Commissioner wrote to the six citizens of Minnesota (to whom Lindquist had referred as the persons who were to be interested financially in the insurance company) and although four of them replied that they would not be interested in it in a financial way, yet the Commissioner apparently had such confidence in Lindquist (knowing him by reputation) that he approved the contract of November 1 for the purchase of the controlling interest in the insurance company.

Lindquist, as the evidence all shows, was a man of standing and it seems incredible that he would be the principal actor in obtaining control of the insurance company with funds that were being stolen from the Amalgamated Bank by the young man, Van Derek, employed by that bank, through the suggestion and connivance of the criminal, Baiata. It is also, we think, incredible that Lindquist would be one of the chief actors in obtaining $25,000 of the insurance company’s money from the Amalgamated Bank to make a payment of that sum on the contract of November 1. We think there could be no possibility of this fraud not becoming known, which of course would subject Lindquist to prosecution and the penalty imposed by law. We think it .likewise incredible that Lindquist would take part in a crooked deal involving the attempted purchase of the Indianapolis bank whereby the funds of that bank were intended to be abstracted by Baiata to pay for the insurance company stock. Most of the damaging evidence against Lindquist is given by accomplices.

In People v. Vehon, 340 Ill. 511, and People v. Semenick, 360 Ill. 250, it was held that in a conviction of one of a crime where the evidence is so unreasonable or improbable or unsatisfactory as to justify a reasonable doubt of the defendant’s guilt, it is the duty of a court of review to reverse the judgment. It is also the law that where one view of the evidence may be reasonably reconciled with the innocence of the defendant rather than with his guilt, a conviction cannot be sustained. People v. Oberlin, 355 Ill. 317.

In People v. Buchholz, 363 Ill. 270, the court, in reversing a judgment of conviction said (p. 278): “While evidence of good reputation is not proof of innocence it is not to be disregarded, and it may be sufficient to raise a reasonable doubt as to defendant’s guilt; In the present case the defendant’s good reputation stands uncontroverted and must be accorded some consideration and weight.”

Upon a careful consideration of all the evidence in the record, we are of opinion that it is insufficient to prove Lindquist’s guilt beyond a reasonable doubt. From what we have said the judgment would have to be reversed and the cause remanded, but counsel for defendant says that since the indictment is invalid by reason of the illegality of the grand jury, the judgment should be reversed and the cause not remanded.

At the proper time the defendant made a motion to quash the indictment on the ground that the grand jury was illegally constituted because the record of the criminal court of Goolc county shows the chief justice of that court ordered the clerk of fhe court to repair to the office of the jury commissioners and draw from the grand jury box the names of 23 qualified persons for grand jury service, and that the sheriff summon them to appear; that the names were so drawn and the sheriff performed his duty; that 18 of the 23 responded, 2 of whom were excused by the chief justice, leaving 16 of the panel; that thereupon the chief justice entered an order that the sheriff go into the body of the county and summon seven additional men having the statutory qualifications as found in the Jurors Act, which was done. Counsel contends that the names .of the seven men should have been drawn by the clerk from the jury commissioners’ list, as required by section 9 of the Jury Commissioners Act (ch. 78, f 34, Ill. State Bar Stats. 1935; Jones Ill. Stats. Ann. 107.255; Smith-Hurd Ill. Rev. Stats. 1935, ch. 78, j[ 32). That section provides that when jurors are needed, one or more of the judges of the court shall “certify to the clerk of the court the number of petit jurors required each month. The clerk shall then repair to the office of the jury commissioners and there, in the presence of the persons mentioned in section 8 of this Act, proceed to draw by lot the necessary number of names from those made available for such drawing as in section 8 of this Act provided. The clerk shall thereupon certify to the sheriff the electors whose names are so drawn, to be summoned according to law. If more jurors are needed during the month, a judge of the court shall so certify, and they shall be drawn and certified forthwith in the manner above provided. Whenever a grand jury is required by law or by order of the court, it shall be drawn and certified in like manner.” This section was in effect in 1931.

On the other hand, the State’s attorney’s position is that section 9, from which we have just quoted, was repealed by implication in 1933, when the legislature amended section 9 of the Jurors Act. (Ch. 78, sec. 9, p. 1723, Cahill’s .1933 Stats.) Section 9 was amended June 21, 1933, and went into effect January 1, 1934. It provided that “If a grand jury is required by law or by the order of the judge for any court, the county board in each of the counties of this State ... at least twenty days before the time of appearance specified in the summons hereinafter mentioned shall select twenty-three persons possessing the qualifications provided in section 2, of this Act, . . . and cause their clerk within five days thereafter, to certify the names of the persons so selected as grand jurors to the clerk of the court for which they are selected, who shall issue and deliver to the sheriff ... a summons commanding him to summon the persons so selected ... to appear before such court ... to constitute a grand jury in the Circuit Courts and in the Criminal Court of Cook County for the term for which they are summoned, ... If for any reason the panel of grand jurors shall not be full at the opening of such court, the judge shall direct the sheriff to summon from the body of the county a sufficient number of persons having the qualifications of jurors, as provided by this Act, to fill the panel.” That section expressly provided that the drawing of grand jurors throughout the State, including the criminal court of Cook county, should be by the county board of each county and if the 23 men summoned did not all respond at the opening of court, the judg-e should direct the sheriff to summon, from the body of the county, a sufficient number of persons to fill the panel of 23. There was a conflict between that section, which went into effect January 1, 1934, and section 9 and other sections of the Jury Commissioners Act of 1931; and to obviate this conflict the legislature on April 26, 1934, again amended section 9' of the Jurors Act, eliminating the criminal court of Cook county from the body of that section and adding the following proviso: “Provided, that nothing in this Act relating to the selecting of the grand jury shall apply to counties of more than 250,000 inhabitants. ’ ’

The State’s attorney’s position is that the provision of section 9 of the Jury Commissioners Act of 1931, being in conflict with section 9 of the Jurors Act which became effective January 1, 1934, was by implication repealed and that section 9 of the Jury Commissioners Act of 1931 was not thereafter revived and made effective by the amendment of section 9 of the Jurors Act on April 26, 1934; that section 9 of the Jury Commissioners Act of 1931, having been repealed by implication, and thereafter section 9 of the Jurors Act so amended as not to apply to Cook county, there is no statute for impaneling a grand jury in Cook county, and that the only law applicable to Cook county for the summoning of a grand jury is the common law, viz., that the sheriff go into the body of the county and summon all of the grand jurors.

In the instant case the original 23 grand jurors were summoned in accordance with the provisions of the Jury Commissioners Act which we hold is effective in Cook county. The panel not having been filled, the seven additional names should have been summoned in accordance with the provisions of section 9 of the Jury Commissioners Act.

In People v. Sweitzer, 266 Ill. 459, the court said (p. 475): “The nomination of candidates for such offices was by such repeal again brought under the operation of the Ballot Act of 1891, under the provisions of which such nominations had been made prior to the enactment of the Primary Election Act of 1910, and this notwithstanding the provision of section 3 of chapter 131 of Hurd’s Statutes of 1913, that ‘no act or part of an act repealed by the General Assembly shall be deemed to be revived by the repeal of the repealing act. ’ That provision has no application where the effect of an act is not to entirely abrogate a former act, but merely to withdraw from the operation of the earlier act a portion of the cases included within its terms, leaving the earlier act still in force except as to the cases specifically provided by the. later one. Under such circumstances the repeal of the later act has the effect of again bringing the cases provided for by it under the operation of the original act.” Citing 26 Amer. & Eng. Ency. of Law, 761; Smith v. Hoyt, 14 Wis. 252; State v. Sawell, 107 Wis. 300; State v. Mines, 38 W. Va. 125; Dykstra v. Holden, 151 Mich. 289, and State v. Prather, 84 Kan. 169. The court there continues discussing the cases just cited to sustain the rule just quoted.

In the instant case, we are of opinion that under the rule announced in the Sweitzer case, section 9 of the Jury Commissioners Act of 1931 with reference to the impaneling of a grand jury was not repealed but “merely suspended and superseded” by the amendment of section 9 of the Jurors Act of 1933, which by express terms applied to the impaneling of a grand jury throughout the State, including the criminal court of Cook county, and when the criminal court of Cook county was on April 26, 1934, eliminated by the legislature the suspension of section 9 of the Jury Commissioners Act of . 1931 no longer obtained, and that section again became effective. The provisions of that section not having been followed in the selection of the additional seven grand jurors, we hold that the grand jury was not legally constituted, and that the motion to quash should have been sustained.

But the State’s attorney further contends that under the rule announced by the Supreme Court in People v. Lieber, 357 Ill. 423, the defendant is not in a position to complain because it was there held that the provisions of the statute concerning the manner of selecting grand jurors was directory and not mandatory; and that as said in the Lieber case (p. 436): “The reason of this rule is that the grand jurors do not try the case but merely charge the accused. The manner of their selection is of no consequence to him, he being entitled to claim' only fair and impartial grand jurors who possess the necessary qualifications, whereas it is of great consequence that the administration of justice shall not be delayed by mere technical objections. Such statutes need not be followed with technical or literal strictness. A substantial compliance is all that is required, and mere irregularities in the drawing and selection do not invalidate the grand jury’s action.” In the Lieber case the court ordered that 60 persons be summoned for grand jury service; 56 responded and 23 were selected from those persons. The names of the 60 persons were drawn by the jury commissioners as required by the Jury Commissioners Act, and it was held that the proper method to be followed under the statute was to summon but 23 in the first instance, and if that number did not report additional names should be drawn in the same manner by the jury commissioners until the panel was filled; that the irregularity did not render the grand jury which returned the indictment illegal.

But in the instant case the seven men were not drawn by the jury commissioners in the manner required by the statute but were selected from the body of the county by the sheriff. In People v. Clampitt, 362 Ill. 534, where petit jurors were summoned by the coroner instead of by the sheriff, it was held that a challenge to the array should have been sustained although the defendant did not show that he was prejudiced. The court there said (p. 537): “Where no attempt is made to comply with the legal method provided for summoning jurors, a challenge to the array must be sustained even though no prejudice is shown. (Jeople v. Mankus, 292 Ill. 435; People v. Fudge, 342 id. 574.)”

In the Mankus case (292 Ill. 435) an information was filed charging defendants with selling intoxicating liquor within anti-saloon territory. The case was taken to the Supreme Court where the judgment was reversed and the cause remanded. The county court there appointed a special bailiff in all criminal cases to act in lieu of the sheriff on the ground that the sheriff was interested in the prosecution of the case. The special bailiff summoned the jurors and a motion was made to quash the venire and the return on the ground that the court had no authority to appoint the special bailiff. The motion was overruled and then defendants challenged the array. The court there said (p. 438): “The common law powers of courts to provide juries is subordinate to the methods expressly provided by statute, and where there is such a statute it is not to be departed from but must be substantially complied with'. (Healy v. People, 177 Ill. 306.) While it has been often held that such statutes are directory, that a substantial compliance with their requirements is sufficient and that a mere irregularity will not be fatal, that is only so where an attempt has been made to follow the statute and there has been some irregularity in doing so. . . . Here no attempt was made to get a jury by either of the methods provided by section 110, but the jury was drawn and summoned in a manner not mentioned or referred to by the statute.”

In the instant case no attempt was made to comply with the legal method provided for summoning1 grand jurors and the motion to quash the indictment should have been sustained.

The judgment of the criminal court of Cook county is reversed.

Judgment reversed.

Hatchett, P. J., and HcSurely, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    G. A. Schillinger, Appellant, v. William L. O’Connell et al., Appellees.
    Gen. No. 39,105.
    Opinion filed March 15, 1937.
    James H. Burr, of Chicago, for appellant.
    Joseph B. Both and Benjamin Weinberg, all of Chicago, for appellees.
   Mr. Justice O’Connor

delivered the opinion of the court.

Gr. A. Sehillinger filed his complaint in chancery against William L. O’Connell as receiver of the West Town State Bank and others, praying that a judgment entered against him by the municipal court on October 4, 1933, in favor of the receiver of the bank, “be set aside and vacated and that plaintiff may be granted a new trial in said cause”; and that the receiver be enjoined from attempting to enforce the judgment. Defendants’ motion, in the nature of a special demurrer to the amended complaint, was sustained, the suit dismissed, and plaintiff appeals.

The facts as appear from the complaint as amended are that on May 18,1931, Schillinger executed his three promissory notes for $2,050, $1,500 and $1,350 respectively to the order of the West Town State Bank, due 30 days after date, and to secure their payment deposited as collateral five real estate bonds of the face value of $5,000. June 11, 1931, the bank was closed by the auditor of public accounts and Thomas B. Roberts was appointed receiver on July 21, 1931. October 4, 1933, Roberts, the receiver, caused judgment by confession to be entered against Schillinger for $2,104.11, the balance due on the notes, together with $166.24, attorney’s fees. January 11,1935, Schillinger filed his verified petition in the municipal court case, praying that the judgment be vacated and set aside, or opened up, and he be given leave to defend, the petition to stand as his affidavit of merits. The municipal court denied the motion. Schillinger appealed to this court, where the judgment of the municipal court was affirmed June 17,1935. Roberts v. Schillinger, 280 Ill. App. 629.

It is further alleged in the complaint that this court affirmed the judgment of the municipal court on the ground that Schillinger was barred by laches, also that he had failed to «state a meritorious defense in his petition ; that at the time Schillinger filed his petition in the municipal court he was not sufficiently informed of the circumstances attending the pretended sale of the collateral bonds by the receiver of the bank, and that the acts and doings of the receiver “relative to the handling of the said bonds were not known to plaintiff at the time of the filing of his said petition and were not set forth therein, and did not come to his knowledge until immediately prior to the time of filing his said petition in the Municipal court”; that Roberts resigned as receiver June 11,1934, and was succeeded by O’Connell; that on October 11, 1934, the receiver filed a creditor’s bill in the circuit court of Cook county against Schillinger and others; that at the time of the confession of judgment Schillinger lived in Michigan; that the municipal court of Chicago has no jurisdiction to enter a judgment by confession on a warrant of attorney where more than $1,000 is involved, and therefore it had no jurisdiction to enter the judgment against Schillinger for the $2,104.11; that the warrant of attorney in the notes did not authorize the confession of judgment to include interest on the notes; that defendant had a meritorious defense to the action in the municipal court and a set-off; that Schillinger had purchased from the bank the $5,000 real estate bonds pledged as collateral for the notes; that on May 18, 1931, the fair cash market value of the bonds was $5,000; that on February 8, 1932, Schillinger paid to the bank $1,000 on account of his indebtedness and received one of the bonds and his indebtedness was reduced accordingly; that the receiver did not in good faith sell the bonds for a fair price, but in January, 1933, published a notice that on February 20, 1933, he would sell the bonds at public auction to the highest and best bidder, at the banking room of the West Town Bank; that it was the duty of Roberts to protect the interests of Schillinger in the sale of the bonds; that Schillinger is informed and believes that no sale was held in accordance with the public notice, no auctioneer was employed to conduct the sale, no bids were made or accepted, and that no sale was held in accordance with the provisions of sale contained in the notes; that seven days after the pretended sale the receiver credited $1,300 on the notes; that on such information and belief Schillinger charges the receiver converted the bonds and credited him with a much smaller sum than the fair market value and then resold the bonds at an increased price.

Plaintiff contends that the judgment entered by the municipal court was void for lack of jurisdiction, and therefore may be collaterally attacked in the instant case, although the judgment of the municipal court was affirmed by this court. Of course a judgment that is void may be attacked collaterally at any time. Rybarczyk v. Weglarz, 204 Ill. App. 232; Follansbee v. Scottish-Am. Mort. Co., 7 Ill. App. 486.

The question for decision is, whether the municipal court had jurisdiction of the subject matter and of the parties.

Section 2 of the Municipal Court Act, ch. 37, par. 390, Ill. State Bar Stats. 1935; Jones Ill. Stats. Ann. 108.028, provides that the municipal court shall have jurisdiction of cases designated as of the first class “which shall include (a) all actions on contracts, express or implied, . . . when the amount claimed by the plaintiff, exclusive of costs, exceeds one thousand dollars ($1,000)”; but plaintiff contends that a proceeding to confess judgment is not an “action” and cites cases from other jurisdictions such as Dullard, v. Phelan, 83 Iowa 471. In discussing that case counsel for plaintiff says that it was “held that a judgment by confession is one entered without action,” and in support of this the Iowa court cites sec. 2894 of the Code. We think this case and the other authorities cited by counsel are not in point.

In Trustees of Schools v. Farnsworth, 278 Ill. App. 474, the court said (p. 483): “The term ‘action’ has been used as synonymous with the terms ‘case,’ ‘cause,’ and ‘proceeding at law.’ ” 1 C. J. 928. But we think it unnecessary to discuss the authorities further on this question because we must construe the statute as we find it in the Municipal Court Act. It has been so construed since the establishment of the court more than 25 years ago, because throughout that period the municipal court of Chicago has been entering judgment by confession on notes where the amount involved is more than $1,000. Where judgment by confession is entered by the municipal court, as in the instant case, the proceeding is an action on an express contract and comes clearly within the meaning of section 2 of the Municipal Court Act.

Section 88 of ch. 110 of the Practice Act of 1907 provides, “Any person for a debt bona fide due may confess judgment by himself or attorney dnly authorized either in term time or vacation, without process.” That same provision is found in sec. 50 of the Civil Practice Act, Ill. State Bar Stats. 1935, ch. 110, f 178; Jones Ill. Stats. Ann. 104.050. Section 28 of the Municipal Court Act, ch. 37, Ill. State Bar Stats. 1935, IT416; Jones Ill. Stats. Ann. 108.051, provides: “That, until otherwise provided by the rules of said Municipal Court . . . cases of the first class mentioned in section two (2) of this Act shall be commenced and prosecuted in said Municipal Court in the manner which may be provided by the rules of said court which may be in effect at the time of the taking effect of this amendatory Act, or, in matters not covered by said rules, in accordance, as near as may be, with the practice prescribed by law for similar cases in other courts of record. ”

Buie 22 adopted by the municipal court and which was in force and effect at the time of the entry of the judgment by the municipal court, October 4, 1933, expressly provided that section 88 of the old Civil Practice Act of 1907, which we have above quoted, shall apply to and govern all civil proceedings in the municipal court as far as the same may be applicable and not inconsistent with the Municipal Court Act. The effect of this rule was to make applicable the provisions of section 88 of the Practice Act of 1907, which authorized the confession of judgment by the municipal court in the same manner as such judgment might be entered in other courts of record.

The municipal court had jurisdiction of the subject matter at the time the judgment by confession was entered. Moreover, defendant, Schillinger, having entered his written motion in that court, supported by a verified petition to vacate the judgment and for leave to defend, thereby entering his appearance if such personal appearance were further required, the judgment cannot be attacked collaterally as is sought to be done in the instant case.

The judgment of the superior court of Cook county is affirmed.

Judgment affirmed.

Matghett, P. J., and McSurely, J., concur.


author: Mr. Justice McSueely Matchett, P. J.,

text:
    The People of the State of Illinois ex rel. Wieboldt Stores, Inc., Appellee, v. City of Chicago et al., Appellants.
    Gen. No. 39,301.

      Hatchett, P. J., dissenting.
    Opinion filed March 16, 1937.
    Barnet Hodes, Corporation Counsel, for appellants ; Joseph F. Grossman, Arthur A. Sullivan and J. Herzl Segal, Assistant Corporation Counsel, of counsel.
    Sidley, McPherson, Austin & Burgess, Urion, Bishop & Sladkey and Louis J. Victor, all of Chicago, for appellee; Edwin C. Austin, Howard F. Bishop, Louis J. Victor and Philip H. Schofield, of Chicago, of counsel.
   Mr. Justice McSueely

delivered the opinion of the court.

Relator sought by mandamus to compel the payment of interest at the rate of five per cent per annum upon an unpaid judgment in a condemnation proceeding; defendants filed an answer and upon hearing by the court the issues were found in favor of the relator and defendants were ordered to pay the amount of the judgment, $371,028, together with interest thereon amounting to $169,899.90, making a total of $540,927.90. Defendants appeal from this order and in this court question only the order relating to the interest on the judgment.

In Turk v. City of Chicago, 352 Ill. 171, and in Feldman v. City of Chicago, 363 Ill. 247, it was held that the Interest Act, Ill. State Bar Stats. 1935, ch. 74, allowing interest on judgments, applies to a final judgment under the Local Improvements Act, Ill. State Bar Stats, ch. 24,j[120 et seq.; Jones Ill. Stats. Ann. 76.001 et seq. Defendants now in this court seek a reversal of this holding for a reason which they say was not presented to the Supreme Court in those cases. The argument is that the Feldman case held it was necessary to allow interest in order to award just compensation; that section 13 of article 2 of the State Constitution, which provides that private property shall not be taken or damaged for public use without just compensation, also provides that “Such compensation, when not made by the State, shall be ascertained by a jury, as shall be prescribed by law.” Therefore, it is argued, the amount of interest must be ascertained by the judicial branch of the government and cannot be fixed by statute enacted by the legislative branch; that the legislature has no power under this provision of the constitution to fix by statute any rate of interest as just compensation, hence the interest statute does not apply to judgments of this nature.

However this may be, this point -more properly is for the Supreme Court to consider. Both the Feldman and Turk cases definitely decide that interest on condemnation judgments, where there is a delay in making payment, must be paid at the statutory rate, and we shall follow these cases.

Defendants in their answer also asserted that the property, at the time of condemnation and at the present time, was and is improved with a seven-story and basement and sub-basement reinforced concrete building, a two-story and basement and sub-basement concrete building and a two-story ¡and basement brick building; that from the time of the institution of the condemnation proceedings until the present time the relator has been in undisturbed physical possession of the property condemned and of the improvements thereon, and during all this time has had full beneficial use of the property in the same manner and to the same extent as it had prior to the institution of the proceedings to condemn; that the relator has occupied and used these improvements for a department store; that the beneficial use has not been depreciated by the condemnation proceedings and that the value to the relator of this beneficial use from the date of the judgment to the present time is in excess of $200,000, and that if the relator is entitled to interest upon the judgment, then these defendants are entitled to have such interest canceled or reduced by the value of this beneficial use.

It was stipulated that the premises condemned has a frontage of about 235 feet on Ashland avenue, that the property is improved as above described, and that in the condemnation proceedings a 17-foot strip was condemned from the front of these buildings, and that relator was and is now in possession of these premises.

Upon the hearing defendants offered to prove by a qualified witness the reasonable rental value of the premises condemned from the date of the judgment to the time of the hearing; objection was made on the ground that such evidence could have no bearing on the question of whether interest is recoverable on the judgment, which objection was sustained; another offer as to the value of the beneficial use to the relator of the property condemned was made to which objection also was sustained.

Where the law allows interest on judgments in condemnation proceedings, may the amount of such interest be reduced by the money value of the beneficial use of the property by the owner who retains possession after judgment? There is an impressive list of decided cases holding that such a reduction should be made. A general statement is in Lewis on Eminent Domain (3rd ed.), vol. 2, sec. 742, p. 1320, to the effect that the interest in such cases should “be reduced by the value of the use of the property to the owner while he continues to have such use.” In Irrigation Co. v. McLain, 69 Kan. 334, the trial court instructed the jury that in determining compensation it should include interest, but the Supreme Court held this was error because it omitted to tell the jury to take into consideration the beneficial use made by the landowner and to reduce by that value the amount of interest. In Plum v. City of Kansas, 101 Mo. 525, the owner sought an injunction to restrain the city of Kansas from taking-possession of land condemned until payment of just compensation was made; pending the appeal to the Supreme Court the city did not take possession of the property; plaintiff was tendered the principal but refused it, claiming interest from the date of judgment; on appeal it was held that the final judgment drew interest by virtue of the general statute on interest. But the court further held that the plaintiff should account for such rents and profits as had accrued to him from the possession of the land since the date when the judgment became final, saying, “it would be inequitable to permit him to recover interest on that judgment and retain the benefits of the possession held by him meanwhile. . . . ” In Metler v. Easton & A. R. Co., 37 N. J. L. 222, the court said: “This general rule for the allowance of interest is liable to be controlled by the circumstances of each particular case. If the owner has not been disturbed in the possession, and has had a profitable use of the premises, or has received the rents for them pending the appeal, these' circumstances should be taken into account and the interest abated accordingly.” In re Mayor, 58 N. Y. S. 58, involved a question similar to that presented in the instant case, namely, whether interest on a delayed payment of the judgment should be allowed and whether the beneficial use of the owner should be valued and applied to reduce the amount of interest. The court said, “It becomes, in each case, a simple question of fact as to what use, if any, survives the taking of the particular parcel, and to what extent this use may be treated as an equivalent for the use of the money withheld. ...” To the same effect was In re Mayor, 69 N. Y. S. 742, affirmed in 167 N. Y. 627; In re Grote Street in City of New York, 134 N. Y. S. 844; In re Second Street, Harrisburg, 66 Pa. 132, where the court said, unequivocally: “If the owner continued undisturbed in the full receipt of the rents and profits, it would not be right that he should in addition receive full interest on the value of the land. ’ ’ The same rule was stated in Pennsylvania Co. for Ins. v. Philadelphia, 262 Pa. 439; Pattison v. Buffalo, R. & P. R. Co., 268 Pa. 555; Fink v. Newark, 40 N. J. L. 11, and Warren v. First Div. of St. Paul & P. R. Co., 21 Minn. 424. In West v. Milwaukee, L. S. & W. Ry. Co., 56 Wis. 318, the court quoted with approval from Metler v. Easton & A. R. Co., quoted above. Another Wisconsin case is Uniacke v. Chicago, M. & St. P. Ry. Co., 67 Wis. 108, where this rule was reasserted.

Both counsel refer to certain expressions appearing in the Feldman and in the Turk case as indicating that the value of such beneficial use by the owner of the property need not be considered in fixing the amount of interest due, but we do not read these opinions as having under consideration the question now before us.

Those cases were confined to the consideration of whether the Interest Act applied to condemnation judgments.

Relator cites three cases which it is said, hold contrary to the rule stated in the above cited cases. One of these is Trustees, etc. v. Third M. E. Church of Brooklyn, 18 N. Y. S. 257. This decision apparently was repudiated in the later cases of In re Grote Street of City of New York, and In re Mayor, supra. The two other cases cited by the relator are Imbescheid v. Old Colony R. Co., 171 Mass. 209, and Whitman v. City of Providence, 44 R. I. 33. The Massachusetts case was a proceeding governed by a statute for the assessment of damages to land and building taken by the railroad; apparently under this statute the trial court returns a verdict and then reports the case for determination to the higher court. The court did not hold that the condemnor was not entitled to recover the value of the beneficial use of the property by the owner but only held that under the particular statute controlling the proceedings such a claim could not be entertained in that proceeding, saying that the rights of the parties growing out of that possession “are not to be settled in the proceedings for damages. ...” Much the same situation was presented in the Rhode Island case, the court holding that the proceeding, which was for the assessment of damages, was under a statute which was solely for the purpose of ascertaining the amount of the compensation, and that any other issue was outside the purview of the statute.

No case has been cited which holds that the value of the beneficial use of the possession of the owner cannot be considered, and all the cases, except those from Massachusetts and Rhode Island, hold that the value of this use may be set off in reduction of the amount of interest on the judgment.

The equities of the position support the rule above stated. The relator is in full possession of the strip of land condemned, 17 feet wide and approximately 235 feet long, fronting on North Ashland avenue; upon this strip is located the front portions of a seven-story building and two two-story buildings, all of which are used for department store purposes to the same extent that they were used before the condemnation proceedings; the relator has not been disturbed in the use of this property throughout the entire period for which it claims interest. Under these circumstances it would be clearly unjust, where the property owner obtains interest on his judgment, to permit him at the same time to have the free use of the premises.

This is not a case of landlord and tenant. It is simply a method of arriving at the just compensation for the premises taken, and to do this, manifestly the use of the premises by the owner must be taken into consideration.

Counsel for defendants say that the petition for mandamus should be dismissed because the relator cannot show a clear and undoubted right to the relief demanded. That the relator must show such right is undoubtedly the general rule, and in the instant case the relator has shown such a right to interest. The fact that defendants may present a counterclaim cannot deprive the relator of the right to proceed by the action of mandamus. Section 2, ch. 87, Mandamus Act, as amended, Ill. State Bar Stats. 1935, ch. 87, Ü 2; Jones Ill. Stats. Ann. 109.428, provides that, “No matters not germane to the distinctive purpose of the proceeding shall be introduced by joinder, counterclaim or otherwise.” This contemplates the filing of a germane counterclaim. The word “germane” means “closely allied.” City of Chicago v. Reeves, 220 Ill. 274, 298. It is obvious that in fixing the amount of just compensation, any factor entering into the computation is germane to the distinctive purpose of the proceedings. Counsel for relator do not urge this procedural point.

The practice followed in State ex rel. Donofrio v. Humes, 34 Wash. 347, commends itself to us. The facts there are in all respects like those before us. The relator sought by mandamus to compel the payment of a judgment in a condemnation proceeding, with interest; the defendant. Mayor of Seattle, alleged that the city had never been in possession of the condemned property and that the relator had been in possession of it and enjoyed the beneficial use; relator demurred to this answer on the ground that it did not state facts sufficient to constitute a defense; demurrer was overruled ; the defendants elected to stand by their answer and the writ of mandamus was issued and defendants appealed. The opinion of the Supreme Court states that the question presented was, “may the judgment holder retain the rents and profits of the land, and for the same time recover interest upon the condemnation award?” The court followed Plum v. City of Kansas, 101 Mo. 525, and held it would be inequitable to permit the relator to recover interest and at the same time retain the benefits of the possession held by him, saying that in a measure the rents and profits offset the interest, although the one was not the necessary legal equivalent of the other. The court held that there must be an accounting of the value of the beneficial use enjoyed by the relator and that he would be entitled to any excess of interest over this value. The court further said: ‘ ‘ On an accounting, however, the city would not be entitled to deduct from the face of the judgment any excess of rents over interest, for the reason that no express contract to pay any sum as rent' exists, and since the city has voluntarily permitted the use and occupation it ought not to be heard to demand a sum in excess of its own fixed interest obligation in the premises.” The case was remanded with instructions to modify accordingly the judgment for interest.

We are in accord with this holding. Defendants should not be eompelléd by a separate action to assert their right to the value of any rents, profits, or the beneficial use of the premises possessed by the relator. These matters can be determined in the present suit, where the value of relator’s use of the premises can be found, either with or without a jury trial, Wilke v. City of Chicago, 212 Ill. App. 414; People v. Czaszewicz, 295 Ill. 11.

We hold that the relator is entitled to the payment of the amount of its judgment; that it is also entitled to interest thereon, subject to a possible reduction by the value of the use the relator has made of the condemned property from the date of the final judgment to the date of the trial, and that evidence may be introduced as to this value.

For the error in sustaining objections to this evidence the mandamus order is reversed and the cause is remanded for further proceedings consistent with what we have said in this opinion.

Reversed and remanded with directions.

O’Connor, J., concurs.

Matchett, P. J.,

dissents: The decisions of the Supreme Court in Turk v. City of Chicago, 352 Ill. 171, and Feldman v. City of Chicago, 363 Ill. 247, were rendered after great consideration. The argument of the City is ingenious but does not convince me that we should depart therefrom.


author: Mr. Presiding Justice Denis E. Sullivan

text:
    The Northern Trust Company et al., Appellees, v. William A. Stewart and G. Ross Stewart, Appellants. William A. Stewart, Co-Appellant.
    Gen. No. 38,976.
    Opinion filed March 24, 1937.
    Rehearing denied April 12, 1937.
    Wilson & McIlvaine, of Chicago, for appellants; Calvin F. Seleridge, of Chicago, of counsel.
    John J. IIealy, of Chicago, for appellees.
    George F. Mulligan, of Chicago, guardian ad litem for Mary R. Stewart and Donald E. Stewart, minors.
    Earl C. Hales, of Chicago, trustee for persons not now in being.
   Mr. Presiding Justice Denis E. Sullivan

delivered the opinion of the court.

This is an appeal from an order of the superior court of Cook county dismissing a petition filed by defendants and we are asked to review such order and incidentally a decree entered by that court.

A bill in equity was filed by testamentary trustees asking the court to construe the will and the partnership agreement of Bavier C. Miller, deceased, and give them instructions as to the distribution of certain sums of money received by them in payment of the testator’s interest in a partnership. A partnership agreement, a copy of the will and a list of the payments received by the trustees were made a part of the bill. The payments enumerated were made by the surviving members of the partnership and were in accordance with the terms of the partnership agreement. These payments were made following decedent’s death covering a period of 30 months as provided in said partnership agreement. The trustees, plaintiffs herein, asked the court to determine whether such sums received were income to be distributed to the life beneficiaries or principal to be added to the corpus. All parties in interest were represented in the case.

The prayer for relief in the trustees’ bill is as follows :

‘ ‘. . . That this Honorable Court may by its decree determine and state whether or not your orators shall treat the moneys received from the partnership firm of Critchell, Miller, Whitney & Barbour as principal or income and for that purpose shall construe the last will and testament of said Bavier C. Miller and the said articles of co-partnership hereinbefore referred to and shall decide and determine whether your orators shall pay and apply all or any part of the moneys so received from said co-partnership to the life beneficiaries named in said will or whether said copartnership funds shall be retained by your orators as a principal part of said estate to be ultimately paid to the remaindermen who under the terms of said will may then be entitled to receive the same; . . . and that your orators may be fully instructed and advised as to their rights, duties and powers in the premises, and that your orators may have such other further and different relief in the premises as equity may require and to your honors may seem meet. ’ ’

Answers in which the defendants, Gr. Boss Stewart and William A. Stewart joined in complainants’ prayer to the court to adjudicate the rights of the parties defendant in said estate were filed to the bill and the cause was at issue on November 12, 1935, and after a full hearing of the evidence before the court, a decree was entered disposing of all the matters alleged in said pleadings and answers, and fixing the rights and interests of all parties to the suit, also determining what the intention of the deceased was in making the said will and partnership contract. From this final decree no appeal was taken.

The material substance of the decree of November 12, 1935, is as follows:

“The court further finds that in his life time, to wit: in the year 1901, the said Bavier C. Miller entered into a partnership agreement with Charles P. Whitney, Frank Barbour, Lyman M. Drake, Clarence S. Pellett and Nelson J. Bennett by the terms of which the parties associated themselves together in the insurance agency brokerage business in the City of Chicago, in the County of Cook and State of Illinois, under the firm name of Critchell, Miller, Whitney & Barbour, and thereafter from time to time and continuously from the year 1901, by supplemental articles of co-partnership, said association was renewed and continued.

“That on the 25th day of May, 1927, supplemental articles of co-partnership were entered into between said co-partners by the terms of which said co-partnership was to extend and continue to and until the 31st day of May, 1931.

‘ ‘ That on the 22nd day of May, 1931, said agreement of co-partnership was further extended by an instrument in writing, to and until the first day of June, 1932, in and by which extension agreement the articles of co-partnership made and entered into on the 25th of May, 1927, were expressly extended, confirmed and ratified in all of their provisions, conditions, and agreements and that at the time of the death of said Bavier C. Miller, said co-partnership agreement of May 25, 1927, as extended, was in full force and effect.

“That in and by said articles of co-partnership it was agreed among other things as follows:

“ ‘In the event of the death of any of the parties hereto, during the term of this co-partnership, the interest of the deceased partner then remaining in said business shall cease, and his or their legal representative shall be paid by the surviving members of said co-partnership within sixty days after the date of his death, the pro rata share of such deceased partner in the undivided profits of such co-partnership up to the date of his death and thereafter for a period of thirty (30) months there shall be paid to the legal representative of such deceased partner or partners in monthly installments, the share of the profits which would have accrued to said deceased partner or partners had he or they lived. It being expressly understood and agreed that the payments to the legal representatives of such deceased partner herein provided for, shall extinguish all claims on account of the interest of said deceased member. The interest of such deceased member to be divided between said surviving co-partners per capita. The profits to be so paid to said legal representative to be borne by the parties to whom such interest shall pass per capita<

“That it was also provided in said articles of co-partnership the surviving partners should have the option, privilege or right to pay to the legal representatives of Bavier O. Miller in full of his interest in said co-partnership, an amount equal to the share of the profits received or credited upon the books of the firm to Bavier C. Miller, during the period of thirty months next preceding his death.

“That said option, privilege or right was never exercised by the surviving members of said co-partnership.

“That in pursuance of the terms of said articles of co-partnership, the surviving members of said firm continued to carry on the said insurance business and from and after the death of said Bavier C. Miller, beginning on the 11th day of March, 1932, paid to the executors under the will of said decedent the sum of Twenty-One Thousand Four Hundred Fifty-One Dollars and Sixty Cents ($21,451.60), representing the profits which had accrued to said decedent up to the time of his death and thereafter paid to said executors the additional sum of Fifty-Five Thousand Three Hundred Thirty-Eight Dollars and Ninety-Five Cents ($55,338.95), representing the share of the profits which would have accrued to the said decedent had he lived and continued to be a co-partner in said firm during the period of thirty months next succeeding his death.

“That the last of said payments made by said surviving partners was under date of July 18, 1934, and extinguished and fully discharged any and all interest which the said Bavier C. Miller or his legal representatives had or might have in said co-partnership.

“The court further finds that the defendants, William A. Stewart and G-. Boss Stewart, individually and as executors under the will of Henrietta A. Miller, deceased, claim, and Henrietta A. Miller in her lifetime claimed that the said sum of Fifty-Five Thousand Three Hundred Thirty-Eight Dollars and Ninety-Five Cents ($55,338.95) paid by the surviving members of said co-partnership, constituted income coming into the hands of the trustee, and that a one-third part thereof should be paid to the executors of the Estate of Henrietta A. Miller, deceased, under the terms and provisions of the will of Bavier C. Miller, deceased.

“That the trustees herein and the guardian ad litem for the minor defendants and the trustee representing the interests of persons not now in being, claim and contend that said sum of money constituted a part of the principal of said trust estate and should be held and retained by the trustees as a part of the corpus of said trust estate and should not be treated as income.

“The court therefore finds that a controversy exists as to the construction of said will of Bavier C. Miller, and that this court should construe said will and said articles of co-partnership in conjunction therewith.

“That at the time of the making of said co-partnership agreement, it was the intention of the parties thereto to acquire and purchase the interest of any deceased partner by the payment to his legal representatives of a sum of money, the amount of which should be equal to the amount of the profits which such deceased partner would have received had he lived and continued to be a member of said firm.

“That under the terms of said articles of co-partnership, the legal representatives of said Bavier O. Miller did not become partners in said firm and were not entitled to share in any profits nor were they required or obliged to pay or share in any losses which might be sustained in carrying on said business by the surviving members thereof.

“That the legal representatives of said Bavier C. Miller did not have the right to participate and did not participate in the affairs of said business so carried on by the surviving members and were not required to nor did they contribute in any way to the success or operation of said business.

“That said legal representatives did not contribute any money, property or other capital work or labor to the business carried on by said surviving members after the death of said Bavier C. Miller.

“That prior to 1901 when the said Bavier O. Miller became a member of said firm of Critchell, Miller, Whitney & Barbour, and for many years prior thereto, the said Bavier C. Miller had been associated with others in the insurance brokerage business in the said City of Chicago, and thereby became and was well and favorably known to many persons requiring the service of insurance ag'ents and brokers.

“That by reason of such prior.experience and by reason of his membership in the firm of Critchell, Miller, Whitney & Barbour, and by reason of extensive advertising, the firm of which deceased was a member became well and favorably known to the insurance public and there was thereby created a large and valuable good will by said firm in the insurance world in said city, and which good will existed and was of large value at the time of the death of said Bavier C. Miller.

“That said firm of Critchell, Miller, Whitney & Barbour was at the time of the death of said Bavier C. Miller, one of the larg’e and favorably well known insurance agents or brokers in said city, doing an annual business of between three and four million dollars in insurance premiums, and that by reason thereof, said firm had created and established in the insurance field a large and valuable good will which enured to the benefit and advantage of the surviving members of said firm and which would have been of comparatively little value if the death of said Bavier C. Miller had worked a complete and final termination of the business formerly carried on by said firm.

“That said Bavier C. Miller and his co-partners were men of large experience in the insurance field and each had built up during their partnership association an individual clientele; that the value of an insurance agency and brokerage business consists largely of the probability that insurance originally written as a result of the efforts of a member of the agency, will be renewed from year to year through the same agency; that the value of the tangible assets of the partnership existing at the time of the death of Bavier C. Miller was small in comparison with the value of its good will and that after the death of Bavier C. Miller, his personal clientele was solicited by the surviving members for a continuation of the business originally procured by Bavier C. Miller, and that the efforts of the surviving members in that respect for a limited period of time met with a substantial degree of success.

“That it was the intention and purpose of all of the members of said firm, including said Bavier C. Miller in his lifetime, to keep and conserve said good will, whereby they provided and agreed that upon the death of any partner the survivors should become entitled to the good will so created and established by paying to the legal representatives of a deceased partner, a sum of money, the exact amount of which would be an amount equal to the share of the profits received by or credited upon the books of the firm to the deceased partner during the period of thirty months next preceding his death; or a sum of money the exact amount of which should be ascertained and determined at the expiration of thirty months after the death of any partner and which amount would be equal to the profits to which such deceased partner would be entitled had he lived and continued as a partner in said firm.

“And the court finds that the payment of said sum of Fifty-Five Thousand Three Hundred Thirty-Eight Dollars and Ninety-Five Cents ($55,338.95), to the legal representatives of said decedent constituted a purchase by the surviving members of the interest which said decedent had in said firm at the time of his death, and was in extinguishment of any and all interest which decedent or his estate might have in the assets, good will or other property belonging to said co-partnership at the time of the death of said Bavier C, Miller,

“That the death of said decedent dissolved the then existing partnership and that after the death of said decedent, his legal representatives had no right, title or interest in said co-partnership nor in any of its property or assets, other than a claim against the surviving members of said firm in their individual capacities, under their agreement for the purchase of the interest of said decedent as specified, and set forth in said articles of co-partnership as extended.

“The court further finds that the said sum of Fifty-Five Thousand Three Hundred Thirty-Eight Dollars and Ninety-Five Cents ($55,338.95) paid to the executors of said deceased, and now in the possession of the complainant trustees, being in purchase of the interest of Bavier C. Miller in said firm, was at the time of its payment and now is corpus or principal belonging to said trust estate and is not now and was not at the time of its receipt, income arising from said trust estate.

“And the court finds that in construing the terms, conditions and provisions of the will of Bavier C. Miller, deceased, and the terms, conditions and provisions of said co-partnership agreement, the said complaining trustees should be advised, authorized, empowered and instructed in the administration of said trust estate to treat said last mentioned sum as corpus and not as income, and to administer said fund under the terms, conditions and provisions of the will of Bavier C. Miller, deceased, as a part of the corpus or principal of said trust estate and not as income coming to their hands.

‘ ‘ The court further finds that in the administration of said trust estate the trustees under the will of Bavier C. Miller, deceased, should keep and retain said sum of Fifty-Five Thousand Three Hundred Thirty-Eight Dollars and Ninety-Five Cents ($55,338.95), as a part of the corpus of said estate to be distributed in accordance with the provisions of the will of Bavier C. Miller, deceased.

“It Is Therefore Ordered, Adjudged and Decreed that the sum of Fifty-Five Thousand Three Hundred Thirty-Eight Dollars and Ninety-Five Cents ($55,338.95) received by the executors under the will of Bavier C. Miller, deceased, and now in the hands and possession of The Northern Trust Company and Grace M. Haskins, as trustees under the will of Bavier C. Miller, deceased, was paid to said executors by the surviving members of the firm of Critchell, Miller, Whitney & Barbour for the purchase of the interest of Bavier C. Miller, in said firm and in extinguishment of the interest which said decedent had in said firm at the time of his death and not.otherwise.

“And it is further ordered, adjudged and decreed that said sum so paid as aforesaid, came to the hands and possession of said executors and trustees as corpus and as a part of the principal of said trust estate and not as income arising- therefrom. And said trustees are hereby advised, instructed, directed, empowered and ordered in the administration of said trust estate to treat and administer said sum of Fifty-Five Thousand Three Hundred Thirty-Eight Dollars and Ninety-Five Cents ($55,338.95) as apart of the corpus or principal of said estate and not as income arising from said trust estate, and in the further administration of said trust estate and in carrying out the terms, provisions and conditions of the last will and testament of Bavier C. Miller, deceased, said trustees are ordered and directed to keep, hold and eventually dispose of said sum under the terms of said will as corpus and not as income.

“And it is further ordered, adjudged and decreed that the claim and contention of William A. Stewart and G. Boss Stewart, individually and as executors of the will of Henrietta A. Miller, deceased, that the said sum of Fifty-Five Thousand Three Hundred and Thirty-Eight Dollars and Ninety-Five Cents ($55,338.95) constitutes a part of the income arising from said trust estate, be and the same is hereby denied.

“It is further ordered that Paragraph Fourth of the will of said Bavier C. Miller, deceased, with reference to the payment of governmental' charges, taxes or liens which may be imposed upon the estate or, the interests of any beneficiaries therein, shall stand and be in full force and effect as to the interests of all beneficiaries as provided in this decree, and that all of the other provisions of said will except as herein specifically construed, shall be binding and in full force and effect upon the trustees of said estate.

“It is further ordered that the complainants shall pay out of the principal of said trust estate now in their possession and custody, the compensation, fees, expenses and disbursements stated and set forth herein, including the fees, expenses and disbursements of the said John J. Healy, counsel for the complainants; George F. Mulligan, guardian ad litem for Mary B. Stewart and Donald B. Stewart, minors; Wilson & Mc-Ilvaine and Joseph V. Murphy, attorneys for certain defendants herein, and Earl C. Hales, the trustee heretofore appointed by the court to appear for and defend the interests of persons not now in being who may be now or hereafter interested in the subject matter of this suit, and that said compensation, fees and disbursements shall be paid by the complainants out of the principal of said estate in sums not to exceed the amounts hereinabove respectively specified and that all of the defendants in said cause and all other persons now or hereafter being or standing in like relation to or in interest or in privity with said defendants or any of them, and who might at any time hereafter acquire or claim any right title or interest in the subject matter of this suit, or in the estate of the said Bavier C. Miller, deceased, are hereby forever precluded and barred from challenging’ or impeaching the terms, conditions, provisions and orders of this decree.

“It is further ordered that this court retain jurisdiction of the subject matter and of the parties to said bill of complaint and the amendment thereto for the purpose of hearing and passing upon any further question that may arise on the petition of any party hereto with reference to the carrying out of said trust, pursuant to the terms of this decree. ’ ’

On November 30, 1935, William A. Stewart and Gr. Boss Stewart, as executors of the estate of Henrietta Miller, deceased, filed a petition in this cause in which they allege that the interest of the decedent in the partnership of Critchell, Miller, Whitney & Barbour, was an unproductive asset of the estate of Bavier C. Miller from the date of his death until the respective dates on .which payments were made to the estate of the surviving partnership on the purchase price of said interest. They further set forth in their petition the dates on which the payments were received on account of said partnership interest and the amounts of the various payments which they claim should be apportioned between principal and income as follows: The different payments total $55,339.35; amount which should be apportioned to remaindermen total $50,459.68; and, the amount which should be apportioned to life tenants total $4,879.67. This they allege was computed upon a 5 per cent interest basis and ‘ ‘ said executors pray that one-third of said sum of $4,879.67, or such other sum as the court may find due, be paid to the estate of Henrietta A. Miller.”

Thereafter, on January 21, 1936, an order was entered denying the prayer of the petition of William A. Stewart and Cr. Boss Stewart as executors. In that order the court recited its decree of November 12,1935, and the facts which it therein found, which decree has heretofore been set forth in full, and in which instance the same contention was made and denied by said prior decree.

It is quite apparent from a reading of the pleadings and the final decree entered in this cause on November 12, 1935, that the petition of William A. Stewart and Gr. Boss Stewart, executors under the will of Henrietta Miller, deceased, the dismissal of which is the basis of this decree, was a renewal of the same questions already decided. If the petition were permitted to stand, it would result in an attempt on their part to have the final decree which was entered on November 12, 1935, reviewed by the trial court after the time for appeal had expired. The trial court was bound by its former decree as is also this court.

Our attention has been called to the recent case entitled Rettig v. Zander, 364 Ill. 112, wherein the court says at page 115:

“A decree is said .to be final when it terminates the litigation between the parties on the merits and fully decides and finally disposes of the rights of the parties to the cause. (Smith v. Bunge, 358 Ill. 229; People v. Stony Island Savings Bank, 355 id. 401; Free v. Successful Merchant, 342 id. 27.) A decree is final and appealable even though it does reserve incidental matters for consideration and directs a reference to a master to state an account.”

No jurisdiction was retained to dispose of any final matters in the original decree, November 12, 1935, but it was merely provided in the decree that:

“It is further ordered that this court retain jurisdiction of the subject matter and of the parties to said bill of complaint and the amendment thereto for the purpose of hearing and passing upon any further question that may arise on the petition of any party hereto with reference to the carrying out of said trust, pursuant to the terms of this decree. ’ ’

It is quite evident that the final decree of November 12, 1935, disposed of all the substantial final matters prayed for in the bill as well as the matters contained in the subsequent petition. In our opinion the petition was merely again raising the same questions which had already been decided and disposed of by such decree.

For the reasons herein given the order of the superior court is hereby affirmed.

Order affirmed.

Hebel and Hall, JJ., concur.


text:
    John B. Bobzien, Appellee, v. Benjamin Michael Schwartz et al., Defendants. Chicago Securities Corporation, Appellant.
    Gen. No. 38,988.
    Opinion filed March 24, 1937.
    Rehearing denied April 12, 1937.
    Vernon E. Lotices, A. J. Hennings and Verne B. Selle, all of Chicago, for appellant.

      Litsinger, Healy, Eeid & Bye, of Chicago, for appellee.
   Mr. Presiding Justice Denis E. Sullivan

delivered the opinion of the court.

John B. Bobzien, who was a successor trustee in a trust deed securing a first mortgage for $90,000 on certain premises located in Cook county, commenced foreclosure proceedings on August 13, 1935.

It appears from the record that on October 25,1935, Bobzien, by order of court, was authorized and directed to enter into the possession of the premises, as trustee, under the trust deed herein sought to be foreclosed, and to collect the rents, issues and profits from said premises for the use and benefit of the owners and holders of the bonds and interest coupons secured by said trust deed; that Bobzien thereupon took possession of the premises and is still in possession; that on or about October 5, 1935, the Chicago Securities Corporation, defendant, commenced a suit in ejectment involving the premises above described, making as parties defendant in said proceeding .the record owner of said premises, Clarence J. Olsen, as well .as 10 tenants of the building, being a portion of the 22 tenants occupying the 22 apartments in the building.

The record further shows that the trustee Bobzien was not made a party in the ejectment proceedings; that on January 8, 1936, the plaintiff dismissed said suit in ejectment as to Clarence J. Olsen and judgment was entered against the 10 tenants of Bobzien; that after obtaining a judgment for possession against the 10 tenants the said Chicago Securities Corporation threatened to evict said tenants from possession of said premises pursuant to the judgment heretofore entered in said ejectment proceedings; that thereafter a petition was filed by Bobzien without notice to the Chicago Securities Corporation and on February 15, 1936, a restraining order was entered by the court against them, their attorneys, agents and employees until the further order of that court, from molesting* or interfering with the tenants, or any of them occupying the premises and were restrained from in any manner molesting or interfering with the possession of the aforesaid premises by John B. Bobzien, trustee, or in any way interfering with the collection of the rents, issues and profits from said premises.

The record further shows that on March 26, 1936, an answer was filed by the said Chicago Securities Corporation, asking that the injunction be dissolved and that they be awarded $5,000 as damages; that on April 25, 1936, an order was entered that the special appearance of the Chicago Securities Corporation stand as a general appearance and that additional attorneys appear in the cause and “that all parties serve notice of all matters on said attorneys ’ ’; that the proceedings before the master in the foreclosure suit were had without notice in violation of this code; that on April 15, 1936, an order was entered denying the prayer of the answer of the Chicago Securities Corporation; that on May 15, 1936, a decree was entered in the foreclosure suit, which decree found that the trustee Bobzien, as the owner of the mortgage, was entitled to a first lien on the premises and that the property should be sold to pay the debt and that the rents, issues and profits should be retained by said trustee to pay said indebtedness; that no mention was made of the Chicago Securities Corporation in said decree.

The record further shows that on May 23, 1936, a motion was made on the petition of the Chicago Securities Corporation to vacate the decree of .May 15, 1936, and for leave to intervene. One of the principal reasons for said motion, after reciting* the history of the foreclosure suit, is that no provision was made in the decree for the Chicago Securities Corporation, as plaintiff in the ejectment suit. It appears from the petition of the last named corporation that it claimed that its rights were based upon a tax deed obtained by it upon assignment from one George J. Lawton for the sum of $2,307.19; that they also claim that the decree was entered without notice to them.

The record further shows that on May 23, 1936, the prayer for leave to intervene and to vacate the decree heretofore entered was denied; that on May 25, 1936, a notice of appeal was filed in the office of the clerk of the circuit court, by which the said Chicago Securities Corporation gave notice of an appeal from the entire order entered on April 25, 1936, refusing to dissolve the restraining order which had theretofore been entered on the 15th day of February, 1936, that again on the said date of May 25,1936, notice of appeal was filed by the Chicago Securities Corporation from the entire decree of sale entered on May 15, 1936, for the reason as stated in the notice as follows:

“ . . . and prays that the same may be reversed and set aside for failure on the part of the plaintiff to serve the defendant, Chicago Securities Corporation, or its attorneys, notice as required. ’ ’

This record discloses two law suits, one a bill to foreclose by the trustee, and the other a suit in ejectment ; the latter resulted in a judgment in favor of the appellant. This latter suit was based on a tax deed. These suits were pending at the same time in different courts and involved the same premises. The court had at the request of the plaintiff, and without notice, enjoined the defendants-appellants and when the latter came before the court with an answer and a petition for leave to intervene in the foreclosure suit, the court denied such request and refused to either dissolve the injunction or permit them to intervene.

Subsequently, apparently a hearing was had on the issues set -forth in the petition and the answer thereto in which answer the defendants set up all their claims and asked that the decree of foreclosure be set aside, which the court denied. No evidence was heard on said petition and answer and the courts also denied the other relief prayed by defendants including the request to intervene.

Chapter 110, 153, sec. 25, Illinois State Bar Stats. 1935; Jones Ill. Stats. Ann. 104.025, provides as follows:

“153.] § 25. (Bringing in New Parties.) Where a complete determination of the controversy cannot be had without the presence of other parties, the court may direct them to be brought in. Where a person, not a party, has an interest or title which the judgment may affect, the court, on application, shall direct him to be made a party. A new party shall be brought in by the service of a summons, which shall be drawn in the usual form with the addition of the statement, preceding the teste thereof, that this summons is issued pursuant to an order of the said court made on a date named. ’ ’

The purpose and intention of the Civil Practice Act is as set forth in par. 132, ch. 110, Ill. State Bar Stats. 1935-; Jones Ill. Stats. Ann. 104.004, which reads as follows:

“132.] § 4. (Act To Be Liberally Construed.) This Act shall be liberally construed, to the end that controversies may be speedily and finally determined according to the substantive rights of the parties, and the rule that statutes in derogation of the common law must be strictly construed shall not apply to this Act or to the rules made pursuant thereto.

“No statute hereafter enacted shall be construed to limit or affect the provisions of this Act or the rules adopted in accordance therewith, unless expressly declared to supersede or take precedence of designated provisions thereof or designated rules adopted pursuant thereto.”

When it came to the notice of the court that other parties were claiming a lien on the said premises and an interest therein, it was the duty of the court to stop the foreclosure suit and direct that such claimants be made parties. The court should not have refused such parties the opportunity to be heard or to intervene and be made parties thereto and set up their interests. This would be imperative because to do otherwise would be in violation of Cahill’s Ill. Rev. St. 1931, ch. 120, 240 (ch. 120, 210, Smith-Hurd Ill. Rev. Stat. 1931), which reads as follows:

“. . .No final judgment or decree of court in any case either at law or in equity or in proceedings under the Eminent Domain Act involving the title to" or interest in any land in which such party holding such tax deed shall have an interest or setting aside any tax deed procured under this Act shall be entered until the claimant shall make reimbursement to the party holding such tax deed and payments as herein provided in so far as it shall appear that the holder of such deed or his assignors shall have properly paid or be entitled to in procuring* such deed. ...”

A motion was made in this court by the plaintiff for a dismissal of the defendants’ appeal, which was reserved until a final hearing. We have considered said motion, but as the cause must be retried, said motion for dismissal is denied.

For the reasons herein given the decree of the circuit court is reversed and the cause is remanded with directions to permit the defendants to intervene in the said proceeding’s and be made parties thereto, and that the court may enter such further orders as are consistent with the views expressed in this opinion.

Decree reversed and cause remanded with directions.

Hebel and Hall, JJ., concur.