text:
    The People of the State of Illinois, Defendant in Error, v. Marion Evans, Plaintiff in Error.
    Gen. No. 9,166.
    Opinion filed April 14, 1937.
    L. H. Hanna, of Monmouth, for plaintiff in error.
    Earl Knox, State’s Attorney, for defendant in error; Charles E. Lauder and Frederick H. Lauder, both of Monmouth, of counsel.
   Mr. Justice Wolfe

delivered the opinion of the court.

The State’s attorney of Henderson county filed an information in the county court against Marion Evans, charging him with the offense of driving a motor vehicle on the public highways in said county while he was under the influence of intoxicating liquor. The case was submitted to a jury for trial, who found the defendant guilty. The court sentenced the defendant to pay a fine of $500 and costs of suit, and to serve a term of 30 days in the county jail of said county. From this judgment the defendant, Evans, has sued out a writ of error to this court.

The original information, consisting of two counts, was filed on April 18, 1936. On April 30, an amended information was filed. The first count of the amended information sets forth a former conviction of the defendant, of driving a motor vehicle upon the public highways while he was under the influence of intoxicating liquor. To this amended information, the defendant entered a plea of not guilty. On June 9, 1936, the defendant entered a motion to exclude all counsel, other than the State’s attorney, from participating in the prosecution of the suit. This motion was overruled. The case was then submitted to a jury, but they did not agree upon a verdict.

The case was set for a second trial on August 3, 1936, at which time the State’s attorney entered a motion for leave to file an amended information. The defendant objected to the granting of said motion, but the objections were overruled and leave granted to file the- amended information. The amendment was filed and a motion to quash the amended information was overruled. The defendant was then arraigned and entered a plea of not guilty to the amended information. It was upon this lastly amended information that the trial was had and the defendant found guilty.

The plaintiff in error insists that the trial court erred in allowing the State’s attorney to file the second amended information. The second amendment was filed within a few months after the arrest of the defendant. The matter of amendment is largely in the discretion of the trial court. We cannot see in what manner the defendant’s rights could be prejudiced by the court granting leave to make this amendment.

The plaintiff in error insists that the court erred in permitting a witness for the People to testify, without giving notice to the defendant prior to the time of the trial. The defendant made no request for the names of the witnesses to be used against him. On the prosecution of a misdemeanor, the law does not require all the names of witnesses to be indorsed on the information, nor a list of them furnished to the defendant.

At the time of the arrest of the defendant, a lady was riding with him in his motor vehicle. In response to a question by an officer, whether they had any intoxicating liquor in the car, this young lady reached into the front of the automobile and handed him a bottle containing intoxicating liquor. This bottle of liquor was introduced in evidence and the plaintiff in error insists that it was error to admit it in evidence as the same has not been properly identified. In this, we think, he is in error, as the evidence connects this bottle of liquor step by step from the time it was handed to the officer by the young lady, until it was introduced in evidence in the case. The bottle was not uncorked before the jury, and was not permitted to be taken to the jury room with them. We find there was no error in the admission of this evidence.

After the jury had been instructed by the court and had been placed in charge of an officer, the jurors were permitted to talk to other people, and no doubt, were not kept together as they should have been. There is no showing that the defendant’s rights were in any way jeopardized by the misconduct of the jury.

The complaint is made that the court erred in giving instructions for the plaintiff, especially instructions numbers 7, 9, and 11. The seventh instruction, in our opinion, states the law most favorable to the defendant. It seems to us that there can be no question that the words used relative to the condition of the defendant must be brought about by the influence of intoxicating liquor. It is our conclusion that the court did not err in giving this instruction. The ninth and eleventh instructions both relate to the charge in the first count of the amended information in which they charge the defendant of a second offense of driving a car while under the influence of intoxicating* liquor. Whether thes,e instructions state the law correctly is ■ immaterial in this case, because the jury have found the defendant not guilty of this charge, so that he cannot be prejudiced in any manner by the giving of these two instructions.

There is no evidence in the record upon which to base the defendant’s refused instructions. No one testified that the defendant, at the time he was arrested, was under excitement, nervousness, or anger. Nor is there any evidence that in any way tends to show that while the defendant was operating his car just prior to the time he was arrested, there was anything to cause him to be excited, nervous or angry. The court properly refused to give this instruction.

The plaintiff in error strenuously contends that there is not sufficient evidence to sustain a conviction that at the time he was driving the automobile he was under the influence of intoxicating* liquor. The officers testified that they followed the defendant from Monmouth to the village of Kirkwood, in Henderson county; that the defendant drove his car in a zigzag manner across the highway; that a part of the time the car was on the pavement and part of the time on a part of the shoulder; that they followed him for several miles and arrested him in Henderson county; that in his presence, the lady who had been riding with him handed the officer the bottle of liquor and they could smell intoxicating liquor upon the defendant’s breath; that he seemed to be in .a sort of a stupor, slow of speech, rather helpless, and his eyes terribly bloodshot; that in their opinion, he was intoxicated.

Doctor C. J. Eads testified that on April 15, he went to the jail where the plaintiff in error was confined. He said two policemen called for him and wanted him to go to see the defendant. He testified that the first thing he noticed was a very strong smell, or odor, of some kind of a stimulant on the defendant’s breath. The doctor said, “His general look and his heart action and several other different things went to tell me — I wouldn’t say he was drunk, but I do say he was under the influence of a stimulant.” Q. “Intoxicating?” A. “Yes sir. I had a conversation with him, and he did not look like he was exactly right for a sober man. The expression of his eyes, his actions, so on. There is always a peculiar glint in a man’s eyes. If you are experienced along that line you can pretty well tell when he is under the influence of liquor. His eyes, more or less, squint up and there is a peculiar glint in them. I don’t know how to describe it, but it is so. His eyes showed he had had some booze. I have an opinion as to whether he was under the influence of intoxicating liquor. I would say he was somewhat under the influence of liquor.” The doctor also examined People’s Exhibit No. 1, and testified that the bottle contained whiskey. This evidence remains in the record undisputed. We think the evidence shows beyond a reasonable doubt, that the plaintiff in error was guilty of driving a motor vehicle on the public highways while under the influence of intoxicating liquor. We find no reversible error in this case, and the judgment of the trial court is hereby affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Wolfe

license: Public Domain

text:
    Edwin Pratt’s Sons’ Company, Appellee, v. John A. Schafer et al. Louis F. Olson and Clyde Smith, Appellants.
    Gen. No. 9,144.

      Opinion filed February 8, 1937.
    Rehearing denied May 7, 1937.
    Clyde Smith, of Dixon, for appellants.
    George C. Dixon, of Dixon, and Miller & Shapiro, of Kankakee, for appellee.

       See Callaghan’s Illinois Digest, same topic and section number.

   Mr. Justice Wolfe

delivered the opinion of the court.

The plaintiff, Edwin Pratt’s Sons’ Company, is engaged in the business of manufacturing and dealing in all kinds of forms and combinations of steel, iron and other metals including structural steel. The defendants, John A. Schafer and Louis F. Olson, in 1922 and thereafter, were building contractors, doing business as partners under the name of Schafer & Olson. The defendant, Clyde Smith, intervened as a defendant during the process of the suit, as an assignee pendente lite of Schafer & Olson. There is nothing in the record indicating that the defendant, assignee, has any greater rights in or to the subject matter of the suit than his assignor. This appeal is being prosecuted by the defendants, Louis F. Olson and Clyde Smith.

On June 17, 1927, Schafer & Olson, as contractors, entered into a written contract with the State of Illinois, acting through the Department of Purchases and Construction, to furnish all material and labor for permanent improvements of the Dixon State Hospital. The plaintiff, on July 16, 1927, entered into a written contract with Schafer & Olson to furnish the material and perform the labor for the miscellaneous and ornamental iron and steel work, for the improvements as described in the specifications, etc., which were made a part of the contract between Schafer & Olson and the State. The improvements were completed, accepted and approved by the State, many years ago. The plaintiff maintains that, as provided in 1929' by section 23 of the Mechanics’ Lien Act, it filed on May 1, 1929, with the State officials, then named in that section, a sworn statement of claim of lien, to the amount of $13,283.99, upon all money due Schafer & Olson under the building contract with the State. The plaintiff, as provided in said section 23, on May 15, 1929, filed its bill against Schafer & Olson, in the circuit court of Lee county to enforce its lien. The sum of $1,397, the balance due Schafer & Olson from the State under the building contract, has been paid over to the clerk of said court (by the State) by agreement of the parties. The parties have stipulated that this amount shall be held by the clerk, there to abide the final decision on said action in said court.

So far as applicable to this case, the provisions of said section 23 in 1929 were as follows: “Any person who shall furnish material, apparatus, fixtures, machinery or labor to any contractor having a contract for public improvement for the State, may have a lien on the money,'. . . due . . . such contractor under the contract, by filing1 with the State Treasurer, Auditor of Public Accounts, Director of Finance and the director of the department whose duty it is to let such contract, a sworn statement of the claim showing with particularity the several items and the amounts claimed to be due on each, etc. The person so claiming a lien shall, within thirty days after filing notice with the State official, commence proceedings by bill in equity for an accounting*, making* such contractor to whom such material, apparatus, fixtures, machinery or labor was furnished party defendant, and shall, within the same period notify the official of the State of the commencement of such suit by delivering* to him a certified copy of the bill filed; provided, that suit shall be commenced and a copy of the bill served upon the State official not less than fifteen days before the date when the appropriations from which such money is to be paid, will lapse. It shall be the duty of the State official after the sworn statement has been filed with him, to withhold payment of a sum sufficient to pay the amount of such claim, for the period limited for the filing* of suit, unless otherwise notified by the person claiming the lien. Upon the expiration of this period the money so withheld shall be released for payment to the contractor, unless the person claiming* the lien shall have instituted proceedings and served the official of the State with the certified copy of the bill as herein provided, in which case, the amount claimed shall be withheld until the final adjudication of the suit is had: Provided, the State official may pay over to the Clerk of the Court in which such suit is pending, a sum sufficient to pay the amount claimed to abide the result of such suit and be distributed by the Clerk according to the decree rendered.”

The defendants, Schafer & Olson, demurred to the bill on the ground that it failed to specifically aver that the sworn statement was personally served upon the State officials mentioned in said section 23. The demurrer being* sustained, the plaintiff amended its bill (in response to the particulars specified in the demurrer) to read as follows: “Your orator represents that on the first day of May 1929, your orator caused to be delivered to the Director of Purchases and Construction of the State of Illinois, in his own proper person as such Director of Purchases and Construction of the State of Illinois, a sworn statement of a claim for lien on the moneys, bonds or warrants due or to become due said John A. Schafer and Louis F. Olson, a co-partnership as Schafer & Olson as aforesaid, under said contract, which said sworn statement of claim showed with particularity the several items and the amount claimed to be due on each and copy of which said claim for lien is hereto attached marked Exhibit ‘1,’ and made a part of this bill; that on the second day of May 1929, your orator caused to be delivered to the following: The State Treasurer, in his own proper person as such State Treasurer of the State of Illinois; the Auditor of Public Accounts of the State of Illinois, in his own proper person as such Auditor of Public Accounts of the State of Illinois; and the Director of Finance of the- State of Illinois, in his own proper person as such Director of Finance of the State of Illinois, each a sworn statement of claim for lien, copy of which is marked Exhibit ‘1,’ and made a part hereof.”

It'is now contended by the two defendants appearing here that the bill does not state a cause of action because it does not allege that the statement of the claim was filed with the State officials mentioned in said section 23. In the case of Seymour v. Woodstock & Sycamore Traction Co., 281 Ill. 84, 98, a demurrer to a bill on the ground that it did not state a cause of - action was sustained by the chancellor. The Supreme Court in that case says: “This is a proceeding in equity. ‘A demurrer for want of equity cannot be sustained unless the court is satisfied that no discovery or proof properly called for by or founded upon the allegations in the bill can make the subject matter of the suit a proper case for equitable cognizance— Bleeker v. Bingham, 3 Paige 246; 1 Johns Cas. 427.’ Coryell v. Klehm, 157 Ill. 462; Wormley v. Wormley, 207 id. 411.” Section 23 is a remedial statute. The money devoted to the payment of the work of the defendants ’ contractor, was brought under the control of the court and subject to whatever decree might be finally made. Standard Oil Co. v. Vanderbroom, 326 Ill. 418; New Erie Coal Co. v. H. McMullen, 247 Ill. App. 515.

The bill alleges that the claim for a lien was delivered to each of the State officials mentioned in section 23, in his proper person, as such official. This allegation was sufficient to call for proof, to show for what purpose, the claim for a lien had been delivered and that the delivery thereof, under all the circumstances connected with its delivery, constituted a filing of the claim for a lien. Filing a paper is now understood to consist in placing it in the proper official custody, on the part of the party charged with the duty of filing the paper, and the making of the appropriate indorsement by the'officer. . . . Winfield’s Adjudged Words and Phrases, citing Phillips et al. v. Beene’s Ex’r, 36 Ala. 251; Johnson v. Hodges, 65 Mo. 589, and Naylor v. Moody, 2 Blackf. 247. A paper is said to be filed, when it is delivered to the proper officer, and by him received, to be kept on file. (Peterson v. Taylor, 15 Gra. 483.) In order that a notice may be filed with a certain officer, it is not necessary that it be delivered to him personally or that he acquire possession thereof by manual tradition; it is sufficient if delivered in his office to the designated custodian of the records. (Hildreth Granite Co. v. Hudson County, 87 N. J. Eq. 316, 100 Atl. 158; Albany Builders’ Supply Co. v. Eastern Bridge & Structural Co., 235 N. Y. 432, 139 N. E. 565; Reed v. Inhabitants of Action, 120 Mass. 130.) The delivery of the claim for lien constituted filing or not filing thereof dependent upon the facts or proof incident to its delivery. Hamilton v. Beardslee, 51 Ill. 478; Brelsford v. Community High School, etc., 328 Ill. 27. The actual, or manual, filing of the sworn statement of claim for lien was the duty of the State officials named in section 23, if the delivery thereof by the plaintiff was for the purpose of having the statement filed with such officials. The hill was not without equity as under its allegations, proof was called for to show the purpose and circumstances of the delivery of the statement with the State officials named in section 23.

It is also contended by the defendants that the plaintiff lost its lien because on March 28, 1929, it filed a claim for lien for the contract price of the materials furnished for said public improvements, and plaintiff failed to file a bill for an accounting* within 30 days after this claim was filed, as provided by section 23. This claim for lien was filed with the Director of Purchases and Construction, the Auditor of Public Accounts, the State Treasurer and the Supervising Architect. It was not filed with the Director of Finance as then required by section 23. In 1929, under said statute, the Department of Finance had power: “To examine, at any and all times, into the accuracy and legality of the accounts, receipts and expenditures of the public moneys and the disposition and use of the public property by the several departments; to examine and approve, or disapprove, vouchers, bills and claims of the several departments, and such as are made subject to the approval of the Governor, and no voucher, bill or claim of any department shall be allowed without its approval and certificate; to prescribe the form of receipt, voucher, bill or claim to be filed by the several departments with it.” Smith-Hurd Ill. Annot. Statutes, ch. 127, sec. 36.)

Under section 23, the lien of the plaintiff was created by the performance of the work and the furnishing of the materials for the said public improvements and was capable of being perfected and made enforceable, as to all funds not paid over by the State to the defendant, contractor, upon service of a sworn statement, as required by the section, on the officials named therein. Spalding Lumber Co. v. Brown, 171 Ill. 487. Any other construction of the section would render it inoperative. Spalding Lumber Co. v. Brown, supra. (Vide, Pittsburgh Plate Glass Co. v. Kransz, 291 Ill. 84, 89.) The lien was not enforceable unless the sworn statement was filed with the officials named in the section. (Pirola v. Turnes Co., 238 Ill. 210.) The sworn statement, or claim for lien, in the present case not having been filed with the officials named in the section, was irregular and defective. In cases of this kind, where the claim for lien is defective and not sufficient in law, the lien claimant is entitled to fix and attach his lien by filing a second claim for lien. Berger Mfg. Co. v. New York, 206 N. Y. 24, 99 N. E. 153. (See, also, 40 C. J. 177.)

It is also contended by the defendants that the sworn statement filed on May 2, 1929, was fatally defective. It, with a particularized statement of account attached thereto, and made a part thereof, was made a part of the bill. The particularized statement consisted of a set of figures to which there was no dollar sign affixed to indicate that they referred to dollars, as will hereafter appear. Defendants demurred to the bill and the plaintiff, without judgment of the court on the demurrer, obtained leave of court to amend, and did amend, the bill and particularized statement by adding the dollar sign before said figures. Attached to the claim of lien, and made a part thereof, is a copy of the contract between the plaintiff and Schafer & Olson and designated, “The Standard Form of Subcontract.” By the terms of the subcontract, the plaintiff agreed to furnish the work and materials for all structural steel, miscellaneous and ornamental iron and steel complete according to “G-eneral Conditions,” drawings and specifications, pages 46, to 54 inclusive, all prepared under the direction of the Division of Architecture and Engineering, of the Department of Purchases and' Construction of the State of Illinois. The subcontract, by its terms, is made a part of the building contract. The “General Conditions,” specifications and drawings are made a part of the building contract by its terms. The building contract, by its terms, refers to the drawings for each improvement by their titles. As illustrative of these latter terms of the building contract and applicable to each improvement, we quote from the building contract:

“Set 4.
Nursery Building.
Sheet No. 29, Foundation and First Floor plan.
30, Second Floor and Roof plan.
31, Heating piping plan.
32, Elevations.
33, Details. ’ ’
The particularized statement attached to the sworn statement of lien relative to the Nursery Building is as follows:
“Ornamental Nursery:
Stairway......................... 450.00
Grilles............................ 8.50
Radiator guards .................. 487.00
Shelf brackets .................... 10.00
Coat rack ........................ 24.00
Wire mesh gate................... 10.00
Toilet partitions .................. 98.00
Coat rack pipes..."................ 22.87
Hot plate ........................ 8.00
Legs for sink..................... 6.00
Thresholds....................... 7.00
1131.37”

The materials furnished for the other improvements ■ are similarly stated in the particularized statement of account under proper heading for each improvement. The grand total of the claim (being the sum of the group totals) as shown by the particularized statement, is 13,283.99. The particularized statement is headed: ‘ ‘ Sold to: Schafer & Olson, General Contractors, Chippewa Falls, Wis. Balance due on Dixon State Hospital Buildings, Dixon, Illinois.” The subcontract is made a part of the claim for lien, together with a statement showing with particularity the several items and the amount claimed to be due on each item, furnished under said subcontract. The claim of lien further states: ‘ That there is now due this claimant, Edwin Pratt’s Sons’ Company, a corporation, as aforesaid, from the said John A. Schafer and Louis F. Olson, a co-partnership as Schafer & Olson, aforesaid, after allowing* to them all just credits, deductions and set-offs, the sum of thirteen thousand and two hundred eighty-three and 99/100 dollars ($13,283.99.)” The affidavit to the claim for lien states: “That the several items and the amount claimed to be due on each, as set forth in ‘Exhibit B,’ (the particularized statement) and made a part of said statement, are severally true and correct as therein stated.” It is our opinion that the plaintiff was within its rights in making* the amendment to the bill and the claim for lien. Illinois Southern Ry. Co. v. People, 215 Ill. 123; City of Chicago v. Wheeler, 25 Ill. 478; First Nat. Bank of Chicago v. City of Elgin, 136 Ill. App. 453; McMillan v. Joseph P. Casey Co., 231 Ill. App. 422.

It is further contended by the defendant that there is no competent evidence in the record on which to base a decree that the defendants, Schafer & Olson, are indebted to the plaintiff. In this connection it is deemed advisable to refer to the decree, which finds that Schafer & Olson are indebted to the plaintiff in the sum of $17,319.40 and costs of suit. The decree orders that the circuit clerk pay the unpaid costs of the suit out of the sum of $1,397, held by him and the balance of said sum, to wit, $1,204.30, to the plaintiff in partial satisfaction of the sum of $17,319.40; and that the plaintiff have and recover of and from John A. Schafer and Louis F. Olson, a partnership, the sum of $16,155.10 and costs of suit and have execution therefor.

Under the terms of the subcontract Schafer & Olson agreed to pay for the materials furnished by the plaintiff according to the specifications and drawings prepared by the State Division of Architecture and Engineering, the sum of $27,075. It is admitted by both parties that of this amount, $14,186 has been paid on account by Schafer & Olson. There is positive evidence in the record that no other payments have been made on the contract price, and that the plaintiff did furnish to the contractor, Schafer & Olson, all the materials and labor called for in the subcontract, which were used and employed in the public buildings erected under the building contract herein referred to; and that said buildings have been accepted by the State of Illinois, as fully completed and erected according to the said specifications and drawings. The evidence is sufficient on which to base a decree that the plaintiff has established his lien to the full amount of the money held by the circuit court to abide the result of the suit. Nothing appears in the proof of which a court of equity takes cognizance, excepting the allegations and proof, alleging and sustaining the claim for lien, and asking* for its enforcement. (Toledo, St. Louis New Orleans R. Co. v. St. Louis & O. R. R. Co., 208 Ill. 623.) In the case of Brauer v. Laughlin, 235 Ill. 265, 273, appears the following quotation from 16 Cyc. 45 (now 21 C. J. 56): “Where compensation in money will afford a party complete and efficient relief the law is usually adequate for that purpose, and plaintiff will be relegated thereto if the legal remedy is unimpeded. Thus, general assumpsit or the common counts have at an early date been adapted to the enforcement of equitable demands on equitable basis of compensation, and must be resorted to where available. This is true even where plaintiff claims a specific fund, or part of a specific fund, which defendant has received, provided no further equity exists.” Under section 23 of the Lien Act, the suit to foreclose the lien is a proceeding to reach funds not paid to the contractor by the State of Illinois. Alexander Lumber Co. v. Farmer, 272 Ill. 264. Section 23 of the Lien Act provides that the funds are to be distributed according to the degree rendered. Unless the lien was established, as alleged in the bill, a court of equity had no authority to proceed with the suit. Turnes v. Brenckle, 249 Ill. 394. The proceeding is in rem in the absence of a statutory provision that a personal or deficiency may be rendered, the court had no authority to render such a decree in a case of this kind. (Bouton v. Cameron, 205 Ill. 50, 66.) That part of the decree which rendered a personal or deficiency decree against Schafer & Olson is extrajudicial.

That part of the decree which orders, ‘ That the said complainant, Edwin Pratt’s Sons’ Company have and recover of and from the said John A. Schafer & Louis F. Olson, a co-partnership, doing business under the firm name, style and description of Schafer & Olson the sum of $16,155.10, and costs of suit taxed and that the said complainant, Edwin Pratt’s Sons’ Company, a corporation and have execution therefor,” is hereby reversed. The decree of the circuit court of Lee county is in all other respects affirmed.

The parties to this appeal will pay the cost incurred by them respectively, and the appellants are hereby charged, jointly and severally, for the costs of the appeal made or incurred by them or either of them.

Affirmed in part and reversed in part.


text:
    Elvin Hartley and Leta Hartley Hiestand v. Ray Hartley et al. Elvin Hartley and Leta Hartley Hiestand, Appellees, v. E. L. Scott et al., Appellants.
    Gen. No. 9,171.
    Opinion filed February 8, 1937.
    Rehearing denied May 7, 1937.
    Madden & Laden, of Rockford, for appellants.
    Miller & Thomas, Karl C. Williams and Hyer & G-ill, all of Rockford, for appellees.
   Mr. Justice Wolfe

delivered the opinion of the court.

Horatio Hartley died on the 27th day of August, 1912, leaving a last will and testament, which was duly admitted to probate in Winnebago county, on the 14th day of September, 1912. At the time of his death, he was the owner of the property involved in this suit. He left surviving him Alice Hartley, his widow and Leta Hartley Hiestand, Elvin Hartley and Ray Hartley, his children, as heirs at law. The testator, in his lifetime, had discussed with his wife and children the contents of his will, and informed them that he was leaving the farm and home to his wife, Alice Hartley, for and during her natural life, and at her death the property was to go to his three children.

At the time the will was to be probated, the Hartley family met at the office of attorney Fred A. Smith, in Rockford, Illinois. Mr. Smith informed them that according to his interpretation of the language used, the testator had given Mrs. Alice Hartley the fee in the property, and the children took nothing under that clause of the will. Alice Hartley and each of her three children 'stated that this was not the intention of Horatio Hartley. Alice Hartley there declared that she wanted the property to go as her husband had stated to her, viz., that she would take a life estate in the property and the fee should vest in the three children. Between the Hartleys, it was then considered and agreed that the three children owned the fee in this land and the widow merely had a life estate.

Later, the following agreement was entered into between the Hartleys: “Articles of Agreement, Made this first day of April, A. D. 1917. Between Alice Hartley, widow, Let-a Hartley Hie stand, widow and Ray Hartley, bachelor, parties of the first part and Elvin Hartley, party of the second part:

“Witnesseth, That if the party of the second part shall first make the payments, and perform the covenants hereinafter mentioned on his part to be made and performed, the said parties of the first part hereby covenant and agree to convey and assure to the said party of the second part, in fee simple, clear of all incumbrance whatever, by a good and sufficient Warranty Deed, the lots, pieces or parcels of ground, situated in the County of Wimiebago and State of Illinois known and described as:” (Here follows a description of the property in question which is a farm of approximately 222 acres.) “and the said party of the second part hereby covenants and agrees to pay to the said parties of the first part the sum of Twenty-two Thousand and Two hundred ($22,200.00) Dollars, in the manner following: $5,000.00 cash in hand receipt of which hereby acknowledged, $100.00 or more in even hundredths on April 1, 1918, and $100.00 or more in even hundredths on the 1st day of each and every April thereafter until April 1, 1937, then balance of the purchase price shall be paid in full, with interest at the rate of five per centum per annum, payable annually on the whole sum remaining from time to time unpaid, and to pay all taxes, assessments, or impositions that may be legally levied or imposed upon said land, subsequent to the year 1916. And in case of failure of said party of the second part to make either of the payments, or any part thereof, or perform any covenants on his part hereby made and entered into, this contract shall, at the option of the parties of the first part, be forfeited and determined, and the party of the second part shall forfeit all payments made by him on this contract, and such payments shall be retained by the said parties of the first part in full satisfaction and in liquidation of all damages by them sustained, and they shall have the right to re-enter and take possession of the premises aforesaid.

“It is further mutually agreed by and between the parties hereto that said second party will keep the buildings and improvements on said premises properly insured in the name of the parties to this contract; that he will keep all of the buildings, improvements and fences on said premises in good repair at all times; that he will properly farm and cultivate said premises at all times and will keep the land and buildings from depreciation and waste and will not allow any mechanic’s lien or any claim of any kind to come against said premises,

“It is further expressly understood and agreed by and between the parties hereto that in case of the death of said Alice Hartley, prior to April 1, 1937, then said party of the second part will within one year from the date of the death of said Alice Hartley, pay to said Leta Hartley Hiestand and said Bay Hartley all the balance due them under this contract, it being understood and agreed by and between the parties hereto that all of the payments under this contract, both the principal and interest shall be paid to said Alice Hartley; that said Alice Hartley is to have all the interest accruing on this contract from time to time during her lifetime, and is to invest all of the principal paid in on this contract in a proper manner so that the principal shall be preserved; that said Alice Hartley has the life use of all of the proceeds derived from the sale of the above described premises, but that all the principal at the death of said Alice Hartley is to be equally divided between said Leta Hartley Hiestand, said Bay Hartley and said Elvin Hartley, their heirs, executors, administrators and assigns, and share alike; that whenever the full amount of the purchase price of said premises is fully paid, said first parties shall execute and deliver to said second party good and sufficient Warranty Deed of the above described premises subject, however, to the interest and rights of said second party, and pay two-thirds of the costs of a merchantable abstract showing merchantable title.” This contract was signed by all the parties and was under seal.

Alice Hartley died intestate on the 15th of May, 1932, and left surviving her, as next of kin and heirs at law, Elvin Hartley, Leta Hartley Hiestand and Bay Hartley, all of legal age. Leta Hartley Hiestand was appointed administratrix by the probate court in Winnebago county to settle the estate. As such administratrix, she filed an inventory of the property, but did not inventory the farm, nor the house and lot involved in this suit. The appellants each filed a claim against the estate of Alice Hartley, deceased, and on a hearing before the court, each of the claims were allowed as just and true claims. These claimants joined in a petition to the probate court to compel Leta Hartley Hiestand to inventory as assets of the estate of Alice Hartley, deceased, the 222-acre farm, and the house and lot at 840 Haskell avenue in Rockford, Illinois, which properties are the subject matter of this suit. The petition alleged that Alice Hartley, in her lifetime, was the owner in fee of the properties, which should be used for the payments of the claims of the appellants.

In October, 1932, Elvin Hartley and Leta Hartley Hiestand filed a bill in the circuit court of Winnebago county, asking that the court construe the last will and testament of Horatio Hartley. The bill set forth the contents of the Horatio Hartley will. The appellants were granted, leave to intervene in said suit and to become parties defendant thereto. After numerous pleadings, the original complaint was amended setting forth the facts as heretofore stated, and the complainants alleged that under said contract of April 1917, Elvin Hartley had become the owner of the premises, and they asked to have all of the appellants’ claims removed, as clouds upon the title of said real estate of said Elvin Hartley.

All of the appellants filed answers to the amended bill. A. B. Culhane, receiver for the Forest City National Bank, filed a cross-bill to foreclose a mortgage that was given said bank by Ray Hartley, Alice Hartley and Myrtle Hartley for the sum of $1,450 on Ray Hartley’s alleged interest in said farm. The parties filed an answer to this cross-bill. The court heard the case without a jury and rendered a decree in favor of the complainants, Elvin Hartley and Leta Hartley Hiestand, and in favor of the cross complainant, A. B. Culhane, the receiver. It is from this decree that the appellants have prosecuted this appeal.

At the time of the death of Alice Hartley, Elvin Hartley had paid her the sum of $9,546 on said contract of purchase, leaving a balance of $12,654 as principal. Elvin Hartley paid the $12,654 and interest to Bay Hartley and Leta Hartley Hiestand. In September, 1932, Bay Hartley and Myrtle Hartley, his wife, and Leta Hartley Hiestand, conveyed to Elvin Hartley and Eva, his wife, the farm in question. The amended bill of complaint sets forth the facts, as herein stated, and charges the same were true. The answers of the various defendants denied these facts.

The evidence of the appellees clearly sustains the material allegations of their bill of complaint. The defense has made very little, if any, efforts to disprove these facts. Some of the evidence was objected to, but was permitted to stand in the record by the court. The appellants did not assign any error on the court’s ruling on the admission of evidence, and therefore, they are not in a position at this time, to object to it and have not done so in their printed argument. Therefore, we will assume that all the evidence was properly before the court and he so considered it.

From the record, as it now stands, there can be no doubt that the Hartley family met at the office of attorney Smith shortly after Horatio Hartley’s death and discussed what construction they would give to the will, and agreed that Alice Hartley had a life estate only in the property, and the fee was in the three children. Elvin Hartley was living on the farm and farming* it. This condition was uninterrupted until April 1, 1917, when the contract of sale was entered into between Alice Hartley, her daughter, Leta, and son, Bay, to sell the farm to Elvin Hartley and the contract heretofore referred to had been executed by the parties. It is under this agreement that Elvin Hartley paid his mother the sum of $9,546. The contract of sale is in the usual form, excepting the statement of how the proceeds of the sale shall be disposed of.

The appellants insist that neither the oral agreement entered into between the parties in 1912, nor the written agreement of 1917, have any binding force and effect as to their claims, since they were judgment creditors of Alice Hartley, deceased, ' and had no knowledge of any secret agreement, or any other kind of agreement, between the parties, and had had no notice that Elvin Hartley claimed to own the farm in question. On the other hand, the appellees contend that Elvin Hartley was in the open and exclusive possession of the farm and that the agreement of 1912, and the written contract of 1917, were open and above board and were not done with any intent to defraud any of the creditors of Alice Hartley; that she had no creditors in 1917, and that the appellants now are not judgment creditors, as contemplated by the recording act to have priority over Elvin Hartley’s unrecorded deed.

The record discloses that the indebtedness on which the claims of G-race Scott and the E. L. Scott were based was not incurred until sometime during the year 1921; that the North Burritt Church’s claim was in 1927; the claim of Harry Burkee was in 1932, and the claim of Lula Johns was in 1928. From the dates of these claims, it will be observed, so far as the record discloses, that Alice Hartley was not indebted to anyone until the year 1922, as the G-race Scott and E. L. Scott claims were on promissory notes that were not due until one year after date. This conclusively shows that there was no actual fraud contempted by the parties at the time when either the oral agreement of 1912, or the contract of sale of 1917, was entered into.

There are numerous errors assigned and argued by the appellants, as to why this judgment should be reversed, but it seems to us that the construction which the court gives to the latter paragraph of the contract of sale entered into between the parties in 1917, is conclusive to the rights of the parties in this suit. If the language therein used created a trust in favor of Elvin Hartley and he had the equitable title to the premises, and if the money which he paid to his mother, during her lifetime, as part of the purchase price under the contract of sale, was held by her in trust, as provided in the agreement, then there can be no question but that the trial court properly decreed that the land now belongs to Elvin Hartley.

It seems to us that there can be no doubt that the language used in this contract did create a trust. The latter part of the contract clearly provides that Elvin Hartley was to pay a stipulated price for this farm and that all the money which was paid to Alice Hartley, during her lifetime, should be held in trust for a definite purpose, and if she lived until April 1st, 1937, then Elvin Hartley should pay the full amount of the purchase price and procure a deed. If she should die before April 1, 1937, then the other children, according to the contract, upon Elvin Hartley paying the full purchase price, shall make a deed to the premises to him, and divide equally among themselves, the amount of the purchase price of the farm. Pursuant to this agreement, Elvin Hartley paid the full purchase price and Eay Hartley and his wife and Leta Hartley Hie-stand, conveyed their interest in and to said farm to Elvin Hartley and divided the money, as provided in the written contract.

It is seriously insisted by the appellants that the oral agreement of the Hartleys’ dividing the land of Horatio Hartley (not as the will provided, but as they contend he had meant it to be) is an attempt to create a trust by an oral agreement and that it was void and contrary to the statute of frauds and could not be ratified by a subsequent agreement of 1917.

Not every parol trust is void. In the case of People v. Tombaugh, 303 Ill. 591, at p. 593, our Supreme Court in discussing trusts, uses this language: “Appellant contends the agreement of Mrs. Allen to hold the property in trust for the children and leave it to them by will at her death was an unenforcible agreement to make a will; that it was an express trust, and being in parol was within the Statute of Frauds and void. An express trust resting in parol is not absolutely void even though it may not be enforcible, if the Statute of Frauds is relied on as a defense, where performance of the trust is sought to be enforced. Trusts very similar to the one here involved have been enforced as constructive trusts. (Stahl v. Stahl, 214 Ill. 131; Ward v. Conklin, 232 id. 553; Hilt v. Simpson, 230 id. 170.) A parol agreement which the Statute of Frauds requires to be in writing, is, when performed, as good and valid as if it had been in writing. (Swanzey v. Moore, 22 Ill. 63; Jones v. Jones, 281 id. 595.) Mrs. Allen always recognized and admitted she held the beneficial interest in the property for the children and by her will performed the trust. The Statute of Frauds cannot be invoked to avoid a contract which has been carried into execution. (Cleveland, Cincinnati, Chicago and St. Louis Railway Co. v. Wood, 189 Ill. 352; Pearce v. Pearce, 184 id. 289.) It is also well settled that the Statute of Frauds can not be interposed by strangers to the agreement. Pasquay v. Pasquay, 235 Ill. 48, and cases there cited.1’

In the present case, the Hartleys agreed among themselves how this property should be divided. The children took possession of the farm under this agreement and Alice Hartley, the mother, claimed only the life interest in the farm. She recognized that the fee was vested in her three children. It seems to us that the oral agreement of 1912, has very little, if anything, to do with the merits of the case, since there was a valid written agreement entered into by the parties in 1917. The 1912 agreement does show the intention of the parties in regard to how they disposed of the property. It is a serious question whether the defendants, who did not become judgment creditors of the estate of Alice Hartley, until 1932 (20 years after the oral agreement was entered into) are in a position to raise the question of the statute of frauds in this particular case.

Point 5 of the appellants’ argument is, “Assuming for the purpose of the argument that the agreement of April 1, 1917, did create a trust, said agreement was never recorded and the possession of said farm by Elvin Hartley was notice only of his rights therein and not of the rights in said farm of Bay Hartley and Leta Hartley Hiestand, so that their interest in said farm and the amount due them as beneficiaries of said claimed trust was subject to the claims of the creditors of the said Alice Hartley.” The appellants, by this argument, assume that they are judgment creditors, and as such they had rights of an innocent purchaser for value. In the case of Noe v. Moutray, 170 Ill. 169, the court, after a careful analysis of the different eases which had considered this question, by it and other courts, concluded as follows: “For the reasons stated, we are of the opinion, that a creditor, whose claim against an estate has been allowed in the probate court, is not such a judgment creditor, having a lien within the meaning of the recording acts, as entitles him to priority over an unrecorded deed, executed by the deceased in his lifetime, and remaining unrecorded at the time of the allowance of such claim. ’ ’

As before stated, the contract of sale entered into between the Hartleys on April 1, 1917, is in the usual form with the exception of how the proceeds of the sale are to be divided. After this contract was entered into between the parties, Alice Hartley, Ray Hartley and Leta Hartley Hiestand had no authority or control over this land except to convey it to Elvin Hartley on his completion of the payments, as provided in the contract. They could not sell or incumber the land so as to prejudice the rights of Elvin Hartley. The case of Doolittle v. Cook, 75 Ill. 354, is in many respects similar to the one that we are now considering. In the Doolittle case Henry Chase on January 14, 1864, was the owner of certain lands. On that date he sold it to Richard Cook for $3,000. $100 was paid in cash, and notes given for annual payments running for ten years. Chase gave to Cook a bond for a conveyance with his complying with the terms of purchase. Cook had occupied the premises for several years prior to purchasing it as a renter, and after he purchased it, he continued to occupy it by residing with his family on the same. He made his payments and in 1870, received a deed of conveyance on March 9th of that year. Chase’s contract for deed was not recorded. He gave a mortgage back for a part of the unpaid purchase price.

On August 5, 1868, Chase gave Doolittle a note for $4,000, and executed a mortgage to secure this note on the premises he had sold to Cook. In 1869, Chase gave another mortgage on the same premises and other property. Doolittle filed a bill to foreclose his mortgage. The court found that the mortgage on the premises, not including the land covered by Cook’s contract of sale, was a valid and existing mortgage and so decreed, but found in the decree that the mortgage wTas void as to Cook’s land and was a cloud on his title, and ordered it to be canceled as far as it related thereto. The court in their opinion use this language, “The important question presented in this record is as to what interest the plaintiff in error acquired in the land purchased by Cook, or in the purchase money he was to pay for the same. Being in actual occupancy of the premises, according to the numerous and uniform decisions of this court, he whs as fully protected in his purchase as if his bond had been recorded before and not after the mortgage. He occupied the same relation to the land and to the parties as if the plantiff in error had been actually notified of the entire facts of the transaction.” The court affirmed the decision of the trial court and held that Chase had no interest in the land and that the mortgage he gave did not affect the rights of Cook, the purchaser.

This case has been followed by later decisions of our Supreme Court in the following cases: Winemitter v. Mossberger, 355 Ill. 145; Bullard v. Turner, 357 Ill. 283. In the case of Thorne v. Oberg, 286 Ill. App. 352, the vendor had entered into a contract of sale of certain premises and later had.given a mortgage on the same premises. We there held that when a vendee under an executory land contract has made the agreed payments and is entitled to a deed, or has paid the contract down to a balance such that, under its terms, he is entitled to pay the balance of the purchase price by execution and delivery of a mortgage to the vendor, the vendee is entitled to a deed clear of any lien, right or title of any subsequent purchaser, or any incumbrancer of the vendor.

It is our conclusion that the contract of sale in question was a valid and binding contract; that as between Elvin Hartley and the appellants, they had no valid claim against said land and the court properly found that Alice Hartley had no interest in said farm and the same should not be inventoried as assets in her estate.

The appellants insist that although this court may find that Alice Hartley was not the owner of the land in question, still, the articles of agreement of April 1, 1917, did not create a trust in favor of the children of Alice Hartley in the proceeds of the sale of the farm and therefore, this money should be used to pay the indebtedness of the estate of Alice Hartley.

An examination of this part of the contract clearly shows that Alice Hartley had no interest whatsoever in the principle of the payments under this contract, but was to have the use of it only during her lifetime, and at her death it was to be distributed equally between her three children.

It is our conclusion that the instrument in question created a trust in favor of Alice Hartley’s children, and at her death, the proceeds of the sale, the $22,000, should be divided equally among them and that Alice Hartley had no interest whatever in the corpus of this fund, but had only the use thereof, during her lifetime.

The court, by its decree, found that the mortgage given by Bay Hartley et al., to the Forest City National Bank was a lien on an undivided one-third of the said farm. The appellees, in their brief and argument, have not questioned the validity of this mortgage. We do not pass upon the validity of this mortgage, because the same has not been questioned in this court.

No reversible error has been called to our attention in this case, and the decree of the circuit court of Winnebago county is hereby affirmed.

Decree affirmed.


author: Mr. Presiding Justice Pulton

text:
    Matthew Campbell, Appellee, v. Civil Service Commission of the City of Springfield et al., Appellants.
    Gen. No. 9,022.
    Opinion filed April 16, 1937.
    Hugh J. Dobbs, of Springfield, for appellants.
    Gillespie, Burke & Gillespie and Edmund Burke, all of Springfield, for appellee.
   Mr. Presiding Justice Pulton

delivered the opinion of the court.

This is an appeal from an order of the circuit court of Sangamon county quashing the record of proceeding’s filed in this cause wherein a writ of certiorari had been issued upon the petition of the appellee, Matthew Campbell, to secure a review of a record of the Civil Service Commission of the city of Springfield, which on the 30th day of July, A. D. 1935, found the petitioner-appellee guilty of neglect of duty as set forth in charges filed by the superintendent of police of the city of Springfield on the 24th day of June 1935, and ordered that he be discharged from the police department and from the service of the city of Springfield.

The petition for the writ of certiorari was filed on December 30, 1935, ag’ainst the respondents, and on February 27, 1935, the Civil Service Commission filed its return to the writ consisting, among other things, of the charge, notice, findings and order of the Commission. Thereafter, by stipulation of the parties, the respondents filed a transcript of the testimony upon which the finding and order were based. The record shows that the specific charge made against the appellee, was “failure in performance of duty.”

Appellee moved to quash the record of the proceedings filed as a return to the writ of certiorari upon the ground that the Commission had no jurisdiction to make the order of discharge for the reason that no evidence was offered or received in proof of the charge; that no evidence was offered or received which reasonably tended to prove the charge; that the order was without just and reasonable cause, and that the finding of the Commission states no evidence or facts justifying its order of discharge. Upon a hearing of the cause the circuit court on March 4,1936, sustained the motion and ordered that the record of the proceeding's filed in this cause be quashed.

Section 12 of the City Civil Service Act provides that an employee holding a position with any city under the provisions of that act shall not be removed, except for cause upon written charges and after an opportunity to be heard in his own defense. The record shows that the appellee, Matthew Campbell, was 54 years of ag*e and had a service record in the police department of the city of Springfield of about 22 years. During all that period his record was clean and there is no evidence of any misconduct or violation of duty on his part. At the time the charges were lodged against him he had been assigned to duty as an assistant jailer working under the direction of the prison keeper. His hours for work were from 7 a. m. to 3 p. m. On the night of June 5, 1935, at about 9 o’clock in the evening and while appellee was off duty, five prisoners escaped from the city prison by prying off a steel plate in a cell block and making their way out through a narrow passage way or alley provided for plumbing and other conduits between, the cell blocks. It is claimed by the appellants that some of the work of preparation for the escape was done without appellee’s knowledge while he was on duty; that the prisoners worked some two or three days providing the means for the escape and necessarily made considerable noise which should have been sufficient to attract the attention of appellee.

The jail was a modern one constructed in 1928 by the Pauley Jail Building Company and was generally regarded by everyone as practically escape proof. It was a large institution built for the detention of many prisoners. In the block where the break was made there were accommodations for 16 men with another tier above it and there were a number of other cell blocks and tiers of cells in the jail. It is contended by the appellants that the preparation for the escape was readily ascertainable from an inspection of the cell block and by observation from the passageway outside the cell block. In addition to the testimony of the witnesses it appears from the record that the Civil Service Commission viewed the jail, saw the damage which had been done by the escaped prisoners, and had personally observed the conditions in the jail as described by the witnesses.

The appellants contend that the weight or sufficiency of such evidence was not before the circuit court and cannot be considered by this court; that the only questions are, Was a hearing* in fact conducted with appellee given adequate notice and opportunity to be present and heard, and in such hearing was evidence presented to the Commission, or did the Commission observe facts or circumstances relating to the charge? That if the Civil Service Commission had jurisdiction and proceeded according to the forms of law, the circuit court on certiorari had no power to determine whether or not its decision was a mistake or the charge had been sustained by the evidence presented. In support of this contention appellants relied largely upon the recent case of Hopkins v. Ames, 344 Ill. 527. In that case, the court said, quoting* from the case of Carroll v. Houston, 341 Ill. 531:

“Under a common law writ of certiorari it is not necessary that the evidence be certified or that there be a certificate of facts outside of the record but the trial must be upon the record alone. (Donahue v. County of Will, 100 Ill. 94; Chicago and Rock Island Railroad Co. v. Whipple, 22 id. 105.) The court has no power to pass upon the findings and conclusions of the inferior tribunal but it may examine the proceeding to determine whether the inferior tribunal had jurisdiction, and the facts upon which the jurisdiction is founded must appear in the record, which also must show that the inferior tribunal acted upon evidence. If the inferior tribunal had jurisdiction to hear and determine the case and it proceeded legally, the court is powerless to review the order on the ground that the inferior tribunal wrongfully removed the defendant from office. People v. City of Chicago, 234 Ill. 416; Joyce v. City of Chicago, 216 id. 466; City of Chicago v. People, 210 id. 84; People v. Lindblom, 182 id. 241; Wilcox v. People, 90 id. 186.”

While the above language and other similar expressions were contained in that opinion showing that after a trial is had before the Civil Service Commission in the manner pointed out by the statute and evidence is taken tending to show the guilt of the person charged, the action of the Civil Service Commission is final and not reviewable by the courts, the final conclusion of the court was, “In this case, as in the Carroll case, supra, the trial Court was without jurisdiction to review the findings of the Commission, and it was in error in holding that there was no evidence fairly tending to support the charges.” We do not understand that the above opinion is in conflict with the case of Funkhouser v. Coffin, 301 Ill. 257, and other prior cases which announce that evidence fairly tending* to prove guilt is essential to jurisdiction to the Commission and the courts may inquire whether there is any such evidence. In that case the Supreme Court said:

‘ ‘ There is no presumption of jurisdiction in favor of a body exercising a limited or statutory jurisdiction. Nothing is taken by intendment in favor of such jurisdiction but the facts upon which the jurisdiction is founded must appear in the record . . . ‘and the record must show that the board acted upon evidence and contain the testimony upon which the decision was based, in order that the court may determine whether there was any evidence fairly tending to sustain the order.’ ”

In the case of Murphy v. Houston, 250 Ill. App. 385, the court said: “While it is true that it is for the Com- ■ mission to decide what is cause for removal, it may not make an arbitrary and unreasonable rule in this respect.”

In this case we cannot find any evidence fairly tending to prove guilt on the part of the appellee. The record does not disclose any duty on the part of the appellee concerning the inspection of cells or checking of prisoners. They were all checked at meal time and the only other person ever on duty at the same time with appellee was the prison keeper himself under whose direction appellee was working. The fact that some prisoners escaped from the city jail, while appellee was not there, and because they had, without appellee’s knowledge, made some preparations for the escape while the appellee was performing his usual duties under the direct supervision of his superior, is not evidence fairly tending to prove the appellee guilty of a charg*e of “failure in performance of duty.” The finding of the Commission must have been based upon speculation and inference and not upon facts. We believe therefore, that the order of the Commission was without jurisdiction and that the circuit court correctly ordered the record and return to be quashed. The judgment of the circuit court is affirmed.

Affirmed.


author: Mr. Presiding Justice Fulton

text:
    William S. Wright, Appellant, v. Peabody Coal Company, Appellee.
    Gen. No. 9,036.

      Opinion filed April 16, 1937.
    Edward E. Adams, of Taylorville, for appellant.
    Provine & Williams, Amos M. Pinkerton, all of Taylorville, and M. J. Cherry, of Chicago, for appellee.
   Mr. Presiding Justice Fulton

delivered the opinion of the court.

William S. Wright instituted this action at law against appellee in the circuit court of Christian county for breach of an agreement to pay appellant compensation or provide employment for personal injuries, and for fraud and deceit in inducing appellant to refrain from presenting to the industrial commission a claim for compensation for his injuries until by the lapse of time the commission was deprived of jurisdiction to determine his claim and make an award.

The original complaint filed September 10,1935, consisted of three counts. The first count alleges that on April 8,1931, the appellee was operating a coal mine in Christian county, where appellant was an employee, and in the course of his employment suffered an accidental injury to his back; that he g’ave notice and demanded compensation, whereupon the appellee, by its agents having authority over the appellant, used argument and persuasion to induce the plaintiff to refrain from pressing such demand for payment; that it was represented to appellant on account of his position as á “boss” the payment of compensation or an application for same before the industrial commission would look bad for the company, and would be prejudicial to the best interests of the appellee, and that if the appellant would forbear to press said claim before the industrial commission, the appellee would provide compensation or some permanent employment to him on terms mutually satisfactory; that relying upon the said promises the appellant refrained from filing* or presenting any claim before the commission, or from starting any suit at law to recover wages until such time as the commission was deprived of jurisdiction to hear and determine his claim for compensation.

The second count of the complaint is like in all respects to the first count, except that it avers another injury of like nature on July 24, 1933, the like notice and demand, the like promises and representations, his reliance on them, forbearance to present a claim before the industrial commission, and breach of agreement to his damage.

The third count alleges the happening of an injury on July 24, 1933, the aggravation thereby of a similar injury before that time sustained by him in the course of his employment, and in all other respects similar to and like the averments of the first and second counts.

The appellant also filed two additional counts setting up the foregoing facts as to the two separate injuries, and further averring that by reason of the trust and confidence reposed by him in the agents of the appellee, and of the relations existing between him and the appellee, the appellant believed and relied upon the promises and representations of appellee, and refrained from presenting any claim before the industrial commission until it was deprived of jurisdiction to determine his claim. The said counts further aver that it was the duty of appellee to act in perfect good faith with the appellant in inducing him to forbear the assertion of his rights, and to refrain from misleading him to his prejudice; that the representations were made falsely and fraudulently, and with the intent that the plaintiff would rely thereon and would refrain from presenting his claim with the commission until such time as the commission would be deprived of jurisdiction ; that the appellee, notwithstanding such promises and representations, has failed to make compensation or provide employment to him, whereby he has been deceived and defrauded to his damage, etc.

The appellee filed its motion to dismiss the complaint on the ground that the circuit court did not have jurisdiction of the subject matter because the suit was an action at law arising out of an alleged cause of action; jurisdiction of which is by law vested solely in the industrial commission of Illinois; and that the cause of action is barred by a prior final judgment of a tribunal of competent jurisdiction. There was attached to and filed with the motion of the appellee to dismiss, the affidavit of its attorney setting forth that the appellant filed his claim with the industrial commission on January 24,1934, and a second petition on October 29,1934, each of said petitions being based upon allegations of the identical injuries, facts and circumstances as alleged in the pending complaint; that the appellee respondent, in defense thereto, moved that the petitions be dismissed for want of jurisdiction for the reason that it appeared on the face of the applications that the petitioner had not filed his claims within one year as required by section 24 of the Workmen’s Compensation Act, Ill. State Bar Stats. 1935, ch. 48, H 224; Jones Ill. Stats. Ann. 143.39; that both parties were subject to the provisions of said act, both residents of this State, and that appellant petitioner was free from any legal disability; that on hearing, both the arbitrator and the industrial commission held that the petition be dismissed on the ground that the application for adjustment of claim was not filed with the commission within one year after the alleged accidents.

On a hearing in the circuit court upon the motion of appellee to dismiss and the exhibits attached thereto, the complaint and each count thereof were ordered dismissed. The only error urged by appellant as a ground for reversal was the entry of the judgment by the trial court dismissing’ the complaint.

It is plain from the pleadings that appellant relied upon two theories to recover in this suit. First, upon a breach of an agreement to provide compensation or employment because of his forbearance to assert his right to compensation within the time he was permitted by law to present his claim before the industrial commission. Second, an action for damages based upon the fraud and deceit exercised by appellee in inducing such forbearance:

As to the first claim outlined in the three counts of the original complaint it seems clear that no recovery can be had in this suit. This is not a case where the industrial commission was without authority to deliberate and decide the merits of the claim but it was dismissed by that body because the application was not filed within one year from the date of the injury as required by section 24 of the Workmen’s Compensation Act. Section 6 of said act provides:

“No common law or statutory right to recover damages for injury or death sustained by any employee while engaged in the line of his duty as such employee, other than the compensation herein provided, shall be available to any employee who is covered by the provision of this Act,” etc. Ill. State Bar Stats. 1935, ch. 48, if 206; Jones Ill. Stats. Ann. 143.21. Our Supreme Court has many times announced the rule that the common law right of action of an employee against his employer for negligently injuring him in the course of his employment was abolished by the "Workmen’s Compensation Act. O’Brien v. Chicago City Ry. Co., 305 Ill. 244; Faber v. Industrial Commission, 352 Ill. 115. The late case of Wintersteen v. National Cooperage dk Woodenware Co., 361 Ill. 95, cited by appellant in support of his contention does not change or vary this rule. In that opinion the court said: “The Workmen’s Compensation Act of Illinois does not wholly deprive the workman of the right of recovering damages for personal injuries received by him but only goes to the abolishment of his common law right to recover against his employer for injuries received by the employee in the course of his employment. Where the injury is occasioned by the negligence of a third party not under the provisions of the act the cause of action may be brought by the employee in his own name and recovery had as at common law, with the right of the employer to be subrogated in the recovery to the extent of any compensation payment made by him by reason of such injuries to the employee.”

In this second position, based upon the two additional counts appellant has attempted to state a cause of action for fraud and deceit. The essential elements of an action on the case for fraud and deceit are that the defendant made representations that were false; that they were known by the defendant to be false and made to deceive the plaintiff; that the plaintiff believed the representations; that the plaintiff reasonably relied on said representations, and acted thereon to his damage or injury. Krankowski v. Knapp, 268 Ill. 183. In setting forth a good cause of action in a complaint for fraud and deceit the Supreme Court have further said: “Both at law and in equity, it is essential that the facts and circumstances which constitute fraud and deceit should be set out clearly and concisely and with sufficient particularity to apprise the opposite party of what he is called upon to answer. ’ ’ Bouxsein v. First Nat. Bank of Granville, 292 Ill. 500.

Furthermore it is the settled law of this State that in order to constitute fraud in law, a representation must be an affirmance of fact and not a mere promise or expression of opinion or intention. Keithley v. Mutual Life Ins. Co., 271 Ill. 584; Bielby v. Bielby, 333 Ill. 478. A false representation within the meaning of the law in order to constitute a cause of action must be a representation as to an existing or past fact and not a mere promise to do some act in the future. A failure to comply with a future promise does not constitute fraud. The general rule is that to amount to fraud, there must be a wilful, false representation as to an existing or past fact. Brodsky v. Frank, 342 Ill. 110.

Nowhere in the two additional counts can we find statements that meet the requirements set forth in these authorities.

For the reasons advanced we do not feel that the complaint in this suit presented a good cause of action upon the theory of either breach of contract or that of fraud and deceit and the trial court very properly granted the motion to dismiss. The judgment of the circuit court is affirmed.

Affirmed.


author: Mr. Justice Davis

text:
    James Coplea, Appellee, v. Earl Bybee and Herman A. Greenawalt, Appellants.
    Gen. No. 9,024.

      Opinion filed April 16, 1937.
    Acton, Acton & Baldwin, of Danville, for appellants ; W. M. Acton, of counsel.
    David Allison and Walter V. Dysert, both of Dan-ville, for appellee; J. R. Dean, of Danville, of counsel.
   Mr. Justice Davis

delivered the opinion of the court.

Appellant, Earl Bybee, recovered a judgment against James Coplea, appellee, for $145.62 in the court of Henry E. Brown, a justice of the peace, upon which an execution was issued and placed in the hands of Herman A. G-reenawalt, a constable, who served the same on October 22, 1934, and levied upon certain personal property of appellee, at which time appellee was served with a copy of said execution, containing’ a notice that he must file a schedule of his property within 10 days from service thereof in order to be entitled to claim his exemption.

On October 26,1934, appellee delivered a schedule of his personal property to said constable. Thereupon three men were selected to appraise said property, who, after making said appraisement, filed the same with said constable.

It was claimed by appellee that the appraisal was illegal because one of the appraisers was wholly disqualified to act for the reason he was not a householder, and that the appraisers put some of the property together instead of listing and appraising it separately, so as to deprive the plaintiff of his right of selection. Appellee filed an affidavit with Ben G. Seibert, a justice of the peace, alleging that he was entitled to the possession of certain personal property, being the property taken by Herman A. Greenawalt, on the execution-issued in the case of Bybee v. Coplea in the justice court of Henry E. Brown, and that Herman A. Greenawalt, constable, wrongfully detains the goods and chattels from him, the said Coplea, and that said goods and chattels were not seized under any execution or attachment against the goods and chattels of -said James Coplea liable to execution or attachment.

Said justice of the peace, Ben G. Seibert, issued a writ of replevin for said property, which was served upon Greenawalt by Don R. Sizelove, a constable; and thereupon Greenawalt with Earl Bybee, as surety, delivered to said constable serving said writ a forthcoming bond, as permitted by statute.

Upon the trial of said cause a judgment was entered in favor of plaintiff, Coplea, and against the defendant, Greenawalt, for a return of the property. No appeal was taken from said judgment, and the time in which an appeal might .be taken had expired. A writ of retorno habendo was issued out of the court of Harold A. Craig, a justice of the peace, before whom said case was tried on a change of venue from Ben G. Seibert, which was served upon defendant, Greenawalt, by D. R. Sizelove, constable, on December 10, 1934, and said Greenawalt failed and refused to deliver said goods and chattels to said constable; that Greenawalt and Bybee, after Greenawalt refused to surrender said property, sold the same under said execution and reported in writing* to appellee that said property had been sold for $263, and tendered to him $68.32, the balance received from the sale of said property after deducting the amount of said execution and costs.

Plaintiff appellee commenced this suit against. Earl Bybee and Herman A. Greenawalt by filing* a complaint on January 8, 1935, alleging among* other things the foregoing facts and charging that from the time said writ of retorno habendo was served upon said Greenawalt the defendants had no legal right to further detain said property; that by reason thereof the plaintiff was injured and damaged; that said execution was issued in favor of Earl Bybee and said levy and the sale was for his use and benefit and at his request; that the sale of said property and the refusal to turn it over to the constable, Sizelove, under the writ of retorno habendo was wanton, wilful and malicious on the part of both defendants, and for the purpose of oppressing and depriving the plaintiff of the value of his property without due process of law and through the malicious abuse of said execution in so selling the property of plaintiff.

In answer to the complaint defendants admit that Bybee obtained a judgment against James Coplea for $145.36 and that an execution thereon was placed in the hands of Herman A. Greenawalt, constable, who served the same on appellee on October 22, 1934; that appellee delivered to said constable a schedule of all of his personal property on said date; that said property was appraised. Defendants deny that they knew said appraisal was illegal and unlawful, and deny that one of the appraisers was disqualified under the law because he was not a householder; allege that each of said appraisers were householders. They admit the filing of the affidavit by plaintiff and the replevying of the property and the trial before the- justice of the peace and a judgment for the return of all of said property, and that no appeal was taken from said judgment, and that the time provided for appeal by law had expired. They deny that they maliciously, wilfully and unlawfully abused said civil process of said court under which they procured possession of said property for the purpose of oppressing and wronging plaintiff, and deny they refused to surrender said property and return the same under said forthcoming bond; and deny they illegally, unlawfully, wilfully, wantonly and maliciously pretended to sell said property and dispose of the same and convert it into cash under said execution, but admit that said property was sold by the defendant, Greenawalt, as hereinafter set forth, and that he tendered the plaintiff the sum of $68.32; admit that a writ of retorno habendo was issued; deny that defendant had no legal authority to sell said property, and alleged that all their actions were legal; aver that, after judgment was entered by Harold A. Craig, justice of the peace, the defendant, Greenawalt, did on November 21, 1934, return all of the property mentioned in said judgment in trucks to a point on the public highway from which a lane extended to the property of plaintiff and was starting into said lane to deliver said property to plaintiff and that he met Greenawalt and he refused to let him enter on said premises to deliver the property.

That on November 20, 1934, justice of the peace, Henry E. Brown, summoned three householders to appraise the property described in the schedule filed by plaintiff, and that said appraisers appeared and were present at the time said Greenawalt returned and offered to deliver to plaintiff the goods and chattels mentioned in said judgment of replevin and that plaintiff met said appraisers and ordered them not to come upon his premises and refused to let them enter his premises and see said goods and chattels and appraise them. Thereupon, after said demand upon plaintiff and his refusal to permit said goods and chattels to be appraised, the defendant, G-reenawalt, levied upon said goods and chattels described in said judgment of replevin and, after giving notice, sold the same for $263.

Allege that the value of all of the personal property-scheduled was $741.75; and, in addition to the property scheduled, the plaintiff had $50 in money he did not schedule, 50 bushels of corn and three heifers, and was guilty of filing a false schedule; and by reason of the actions of the plaintiff, above set forth, he is not entitled to any judgment against either of these defendants.

Appellee filed a replication in which he denied the new matters set up in the answer of the defendants. The jury returned a verdict in the amount of $800 in favor of the plaintiff and, upon a motion for a new trial, plaintiff remitted the sum of $300 and the court entered judgment in favor of the plaintiff for $500 and costs of suit, from which said judgment this appeal was taken.

It is admitted by the pleadings that the appellant, Bybee, obtained a judgment against appellee and that an execution issued on said judgment and was delivered to G-reenawalt, constable, who served the same on appellee on October 22, 1934, and at the same time levied upon the property in question; that appellee delivered a schedule to G-reenawalt on October 26, 1934; that three appraisers were appointed who appraised the property at $747.75; that appellee commenced a replevin suit before Justice Seibert, and that the case was taken on change of venue to Justice Craig, who tried the case on November 16, 1934, and ordered the property returned to appellee by G-reenawalt; that no appeal was taken from said judgment and the time for appeal had expired; that a writ of retorno habendo was issued.

Greenawalt testified he had taken the property back to James Coplea’s residence on November 21, 1934, in two trucks, after the replevin suit was ended. That he saw Coplea in his barn lot, and told him he had come to deliver his cattle and stock back to him, and he said: “You are not coming in here.” Greenawalt told him that the court had ordered its return; that he said, “He didn’t care, you are not coming in here with it.” He went back to the trucks and told the men to wait until he went to Potomac to call up to find out what to do. He called up Bybee to tell him what Coplea said, and Bybee told him to bring the stuff back to Danville. Greenawalt gave notice of sale and sold the property and reported the same to Coplea. All of the property that Greenawalt had taken was in the trucks. He testified that he went up there to redeliver the property. He didn’t tell Coplea about reappraising the property on that day. Coplea told him to unload the property in the road. The reason the three appraisers were there was that they were going to appraise the property if Coplea would let them; they were going to unload it if he would let them appraise it, but he wouldn’t so we brought it back to Danville and sold it.

Appellee testified that Greenawalt did bring back to his farm his stuff, after the replevin suit in Craig’s court; they had two trucks and drove one truck off of the pavement at the end of the hard road, and drove the next truck just inside of the lane, and Greenawalt said: “I am going to unload this stuff, if we can make a new appraisement”; and I said, “I am not telling you what to do, but you can’t make no new appraisement”; and I told them to unload the stuff right there. They turned around and took the stuff back. Greenawalt said he was going to unload the stuff if I would let him appraise it, and I said “I am not going to let you make a new appraisement. ’ ’ He said he was not going to unload it.

Appellants take the position that appellee alleges in his complaint that the property was exempt and that he hipiself was not in the wrong in preventing an appraisement of the property; that appellee cannot recover damages for the sale of property claimed to be exempt without proving that it was exempt. They argue at length and cite many authorities relating to actions for recovery of damages for selling exempt property.

Appellants also contend in their reply brief that for the first time appellee takes the position that the cause of action is not an abuse of process in the sale of exempt property, but, on the contrary, the failure to return the property as directed in the writ of retorno habendo. That appellee cannot shift his ground to a different theory on appeal.

Although, appellants tendered instructions on that theory of the case, that were given by the court, appellee tendered no instructions and there is nothing in the record showing that he sought to recover damages occasioned by the sale of exempt property.

In his complaint appellee sets forth what he alleges occurred from the time of the issuing and serving of the execution and seizure of the property up to and including the sale of the same, and charges appellant had no legal right to retain the property, and that he was injured and damaged through the wilful and malicious sale and disposition of his property by appellants; that the refusal to turn over the property to Constable Size-love under the writ of retorno habendo was wanton, wilful and malicious on the part of appellants and for the purpose of oppressing and depriving appellee of the value thereof without due process of law, through the malicious abuse of said execution.

Appellee is not seeking to recover damages because appellants sold property of his that was exempt, but is seeking to recover damages for malicious abuse of civil process.

Two elements are necessary to an action for the malicious abuse of legal process:

First, The existence of an ulterior purpose; and Second, An act in the use of the process not proper in the regular prosecution of the proceeding. Bonney v. King, 201 Ill. 47, 66 N. E. 377; Keithley v. Stevens, 238 Ill. 199, 87 N. E. 375.

“In a suit for an abuse of process it is not necessary to allege and prove that the action in which the process issued has terminated or that the judgment was vacated. A warrant valid on its face, issued in good faith upon a complaint sworn to by a party having a reasonable or probable cause for so doing, or an execution issued upon a valid judgment for a bona fide claim against a defendant, is no defense to an action for abuse of process, if there has been such abuse, after the issuing of the execution. This is so because an abuse of process exists when a party employs it for some unlawful object or purpose which it was not intended by the law to effect. The £ abuse of process, ’ as used in such cases means the perversion of it, — i. e., accomplishing some illegal object or purpose for which such process was not legally intended.” Dixon v. Smith-Wallace Shoe Co., 283 Ill. 234, 119 N. E. 265.

The test as to whether there is an abuse of process is whether the process has been used to accomplish some end which is without the regular purview of the process, or which compels the party against whom it is used to do some collateral thing which he could not legally and regularly be compelled to do.

The civil injury for which appellee is seeking to recover damag’es is sometimes referred to as “malicious abuse of process,” and at other times as “abuse of process.” There is also some conflict of authority as to the necessity of averring and proving malice in cases of this character. The term “malice” in this connection is not to be given its ordinary meaning, but is to be extended so as to include wilfulness. Actual malice is unimportant if the process is wilfully used to accomplish the purpose intended, since unlawful acts wilfully done are to be deemed malicious as to those injured thereby. Therefore, if process is wilfully used to accomplish a purpose not justified by the law, it is an abuse for which an action will lie. The abuse consists in the unlawful method by which the act is done, and the intentional use of this method constitutes malice in law. 1 Am. Jur. Abuse of Process, secs. 6 and 8.

Abusing* the process of the law, to the injury of another, is of itself malicious. Schaper v. Sutter, 63 Ill. App. 257; Cripe v. Pevely Dairy Co., 275 Ill. App. 231.

It is also held that in an action for abuse of legal process, it is not necessary to prove malice or want of probable cause, for the law will imply both, if an abuse is proven. Wicker v. Hotchkiss, 62 Ill. 107; Phoenix Mut. Life Ins. Co. v. Arbuckle, 52 Ill. App. 33.

After the court in the replevin suit adjudged plaintiff to be entitled to the possession of the property levied upon and ordered Greenawalt to return the same to him, Greenawalt, on November 21, 1934, conveyed the property in two trucks to a point on the public highway in front of the residence of appellee, from which a lane leads to his barn lot. On November 20,1934, Henry E. Brown, justice of the peace, before whom the judgment against appellee was recovered, summoned three householders to appraise the property scheduled by appellee. Greenawalt had served notice upon appellee on November 20, 1934, notifying* him that Browm had summoned Glen Albert, Richard Chasteen and Ira Albert as appraisers to appraise the goods and chattels scheduled and that said appraisers would appear at his residence on November 21, 1934, at 10 o’clock a. m. to appraise said goods and chattels, at which time he was to be present and have the property present for the purpose of appraisement. Said appraisers went with Greenawalt and were present when the trucks arrived, the two Alberts having driven the trucks.

Greenawalt went to Coplea’s place to redeliver the property and he testified that the reason the three appraisers were there was that they were going to appraise the property if Coplea would let them; they were going to unload it, if he would let them appraise it, but he wouldn’t, so we took it back. G-reenawalt only offered to return the property upon condition that appellee would let them appraise it. Under the terms of the judgment of the court appellee was entitled to the possession of the property and Greenawalt was ordered to return the same to him unconditionally and appellee was not required to accept the property with any conditions attached to the delivery thereof.

After appellee refused to accept the property on condition that he permit them to appraise the property scheduled, Greenawalt went to Potomac and called up Bybee, and Bybee told him to bring the property to Danville. Greenawalt then gave notice of sale and sold the property. Bybee gave him an indemnifying bond to protect him, before he sold the property.

Greenawalt was in possession of the goods and chattels replevied, by virtue of a bond given to Don R. Size-love, constable, and was legally required under the law to deliver said goods and chattels, in accordance with the order of the court, in as good condition as it was when the action of replevin was commenced. Ill. State Bar Stats. 1935, ch. 119, 1114; Jones Ill. Stats. Ann. 109.512; Smith-Hurd Ann. St., ch. 119, sec. 14.

From the time the property was replevied until the termination of the suit, the property may be regarded as in the custody of the law and the court has the right to see that it is not interfered with. Knott v. People, 83 Ill. 532; Yott v. People, 91 Ill. 11.

' When the court in the replevin suit adjudged that appellee was entitled to the possession of the property and ordered Greenawalt to return the same to him, the levy of the execution was held illegal and the property was still regarded as in the custody of the law and was not liable to be again seized upon execution until after the same was returned to the possession of appellee.

When appellant, Greenawalt, under the direction of Bybee, in disregard of the judgment of the court in the replevin suit wilfully refused to return the property to appellee and took the same back to Danville and levied said execution then in his hands upon said property, when the same was in the custody of the law and not subject to levy and sale under said execution, they were guilty of a malicious abuse of process.

Appellants further insist that the court erred in refusing' to give instructions numbered seven and eight offered by them. We have examined these instructions and are of opinion that the court did not err in refusing to give them to the jury. Instruction No. seven has reference to matters that were settled in the replevin suit and could not be considered by the jury in determining the issues in the suit on trial and instruction No. eight was improper in form and assumed certain facts to be true. An instruction should be so drafted as to convey to the minds of the jury the correct principles of law applicable to the evidence submitted to them, in order that, having determined the final state of facts from the evidence, the jury may, by the application of the proper legal principles, arrive at a correct conclusion according to the law and the evidence.

Appellants contend that the damages awarded by the verdict of the jury are grossly excessive. That the jury acted with prejudice and passion and that the record contains no evidence of any wanton, wilful and malicious act that would justify such amount as punitive or exemplary damages, and deny that appellee could recover punitive or exemplary damages.

Although the authorities are not agreed upon the right to recover punitive or exemplary damages, yet, when an officer illegally levies an execution upon property at the instance and request of the plaintiff in the execution, whose purpose it is to effect a sale of the property, even though illegally, exemplary damages may be recovered.

It is held in Illinois that where property is seized on execution without authority of law, the officer making the levy, and the plaintiff in the execution, if he directed, advised or encouraged the levy, will both be liable to the defendant in the execution, in an action of trespass, for all damages sustained; and if the seizure is wanton or malicious, punitive damages may be allowed. McDaniel v. Fox, 77 Ill. 343.

It was the duty of Greenawalt to act fairly and in good faith and not permit the plaintiff in the execution to cause him to do an illegal act in endeavoring to enforce the execution.

Prior to the commencement of the replevin suit Mr. Allison, attorney for appellee, asked Greenawalt to return the property. Greenawalt asked Bybee who his attorney was, and then went out and returned with Mr. Boyle who represented Bybee. Mr. Boyle examined the appraisement and advised Greenawalt it was his duty to return the property. Greenawalt still retained the property, and when the writ of replevin was served upon him he gave a forthcoming bond, with Bybee as surety, and after the judgment of the court in the replevin suit was entered directing him to return the property to appellee, he took the property in two trucks to a point on the highway where the lane leading to appellee’s barn lot is located and offered to return the property on condition that appellee would let the appraisers whom he had in attendance value the scheduled property and, after appellee refused to receive the property under such conditions, he went and called up Bybee and was told by him to return the property to Danville, after which he returned to the farm of appellee and refused to return the property and took it back with him, and after procuring an indemnifying bond from Bybee for his own protection advertised and sold the property at the request of Bybee. All of which conduct plainly indicates a disposition on the part of appellant Bybee to retain the possession of and to sell the property in the hands of Greenawalt, notwithstanding the judgment of the court, and a willingness on the part of appellant Greenawalt to carry out the wishes of Bybee if he were kept harmless from damages.

In our opinion the jury was justified from the evidence in the record to find that the action of appellants was wilful and a malicious abuse of legal process and was warranted under the law in assessing exemplary damages, in addition to the actual damages suffered by appellee.

The judgment of the circuit court is affirmed.

Affirmed.