text:
    Armin F. Hillmer et al., Appellants, v. Chicago Bank of Commerce et al. Michael J. O’Brien et al., Appellees.
    Gen. Nos. 40,819—40,822.
    Heard in the first division of this court for the first district at the October term, 1939.
    Opinion filed April 8, 1940.
    Behoaring denied April 22, 1940.

      Leonard & Leonard, of Chicago, for appellants; Gordon McLeish Leonard, George Edward Leonard and Ernest E. Freeman, Jr., of Chicago, of counsel.
    Levy & Lawrence, Campbell, Clark & Miller, Taylor, Miller, Busch & Boyden and Cameron, Heath & Burry, all of Chicago, for appellees; John R. Heath, J. Arthur Miller, James J. Lawrence, Richard V. Henry, Jr. and Richard C. Bleloch, all of Chicago, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.

The Chicago Bank of Commerce was being liquidated by the Auditor of Public Accounts and certain of its creditors brought a representative suit on behalf of themselves and other creditors of the bank against the stockholders to enforce the superadded constitutional and statutory liability of the stockholders. After the cause was at issue the matter was referred to a master in chancery who took the evidence, made up his report and recommended that a decree be entered adjudging the stockholders liable for specific amounts. Afterward, September 17, 1938, a decree was entered substantially in accordance with the recommendation of the master. Hillmer v. Chicago Bank of Commerce, 303 Ill. App. 43. The decree lists the stockholders and the amount each is decreed to pay. These amounts are 146 in number. October 14, 1938, executions were issued and after demand for payment made by the sheriff they were returned “no part satisfied.” Afterward, January 30, 1939, four affidavits for garnishment summons were filed in the suit. In each affidavit a brokerage firm, doing business in Chicago, was named as garnishee. At the time the affidavits were filed, plaintiffs filed interrogatories, one addressed to each of the four garnishees. The summons were served and afterward each of the garnishees filed a motion to quash the garnishee summons and to dismiss the garnishment proceeding “upon the grounds of improper joinder of separate and distinct judgments in one garnishment proceeding and lack of the necessary jurisdictional elements.” March 10, 1939, the court sustained the motions, entering four separate orders, one as to each garnishee. The garnishees were discharged and plaintiffs took four separate appeals. Four records were filed in this court and, upon motion, they were consolidated by orders of this court and submitted on one set of abstracts and briefs. The question involved in each case is identical.

Counsel for the garnishees contend the judgment should be affirmed for the reason that (1) “Neither the Garnishment act nor the Civil Practice Act authorizes the joinder of several and distinct judgments against several and distinct defendants in one garnishment action,” and (2) “The motion to quash the garnishment summons and discharge the garnishees was properly sustained because of the lack of a proper affidavit. ’ ’

(1) Counsel for the garnishees, in their brief say, “In each of these four causes the plaintiffs attempted to join in one garnishment action 154 stockholder liability judgment debtors and require each of the four garnishees to answer as to such assets as they might have belonging to each of the 154 judgment debtors. Thus the plaintiffs were attempting to join in one garnishment action 146 separate, distinct and unconnected judgments against 154 separate, distinct and unconnected defendants for various amounts,” and that such a proceeding is not authorized by sec. 1 of the Garnishment Act (sec. 1, ch. 62, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 109.284]).

In Freeport Motor Casualty Co. v. Madden, 354 Ill. 486, 489, it is said: ‘ ‘ Garnishment is a statutory proceeding unknown to the common law. The jurisdiction of our courts in such a proceeding is not- exercised according to the course of the common law and it cannot be extended to cases beyond the provisions of the statute. (Siegel, Cooper & Co. v. Schueck, 167 Ill. 522.) It has been said that the proceeding is an anomaly. Whether or not it is a leg*al or equitable action the authorities are not agreed. (12 R. C. L. 776.) It is in the nature of a proceeding in rem but moves against a garnishee in personam. It is not an independent proceeding but is ancillary or auxiliary. It depends upon another proceeding in law or equity. It is entirely remedial, and is resorted to either in aid of a pending action or in aid of an execution issued on a judgment already recovered.”

In Chanute v. Martin, 25 Ill. 63, 65, the court said in speaking of a garnishment proceeding: “This whole proceeding is in the nature of process to obtain satisfaction of a judgment. ’ ’ It has a number of times been said by the Appellate Court that a garnishment proceeding, although brought on the law side of the court, is a statutory one and in its nature equitable. Brown v. First Nat. Bank, 271 Ill. App. 424.

The liability imposed by the constitution of Illinois upon stockholders of a State bank is an individual liability on the part of each stockholder to each creditor of the bank. Golden v. Cervenka, 278 Ill. 409.

The pertinent part of sec. 1 of the Garnishment Act provides: “Whenever a judgment shall be rendered by any court of record, . . . and an execution against the defendant or defendants in such judgment shall be returned by the proper officer ‘No property found,’ on the affidavit of the plaintiff, or other credible person, being filed with the clerk of such court . . . that said defendant or defendants has or have no property within the knowledge of such affiant, in his or their possession, liable to execution, and that such affiant hath just reason to believe that any other person is indebted to such defendant, or defendants, or to either or any of such defendants, or hath any effects or estate of such defendant, or defendants or of either or any of such defendants, in his possession, custody or charge, it shall be lawful for such clerk ... to issue a summons against the person supposed to be indebted to, or supposed to have any of the effects or estate of said defendant, or defendants, or of either or any of such defendants, commanding him to appear before said court ... as a garnishee; and said court . . . shall examine and proceed against such garnishee or garnishees, in the same manner as is required by law against garnishees in original attachments. If the garnishee is indebted to or has any effects or estate of a part only of such defendants, judgment shall be against the garnishee in favor of such part of the defendants for the use of the plaintiff.”

In Siegel, Cooper & Co. v. Schueck, 167 Ill. 522, decided in 1897, it was held that a judgment creditor of two persons could not maintain garnishment on his judgment to reach a debt due from the garnishee to one of the judgment debtors because it was not authorized by sec. 1 of the Gfarnishment Act.

After the decision in that case, the scope of sec. 1 was broadened by the legislature by amending that section in 1923 so as to permit a plaintiff who had a judgment against several defendants to garnishee any party who was indebted to any one of the defendants. Boska v. Buchaniec, 245 Ill. App. 602. That section has not been changed since that time.

It has often been said that the judgment creditor stands in the shoes of the judgment debtor; that the judgment debtor is really the plaintiff and according to the approved practice when judgment goes against the garnishee it is entered in favor of the judgment debtor for the use of the garnisheeing creditor. Bartell v. Bauman, 12 Ill. App. 450. This is the approved'practice. But it is also often said in opinions of courts of review of this State that unless the judgment debtor could maintain an action against the garnishee the proceeding will not lie and the garnishee must be discharged. This is the correct rule where there is but one judgment debtor. Siegel, Cooper & Co. v. Schueck, 167 Ill. 522. But since the amendment to sec. 1 of the Garnishment Act that rule does not apply where there is more than one judgment debtor and the garnishee is indebted to but one of them. Boska v. Buchaniec, 245 Ill. App. 602; Alexander v. Live Stock Nat. Bank, 282 Ill. App. 315.

We think it is clear that one garnishment proceeding cannot be maintained if it is based on several judgments entered in separate suits or actions. In such case, plaintiff would be obliged to bring a separate and independent garnishment proceeding in each case. But in the instant case the question remains whether there are “146 separate, distinct and unconnected judgments” as counsel for garnishees contend or whether there is but one decree made up of 146 separate items, which in effect, constitute but one judgment within the meaning of sec. 1, as counsel for plaintiff contend. It seems clear that in the case at bar, garnishment would lie if plaintiff had filed a separate affidavit for garnishment summons and separate interrogatories whereby it was sought to determine whether the brokerage house named as garnishee was indebted to any one of the stockholders held liable by the decree. If this procedure were followed, it would require the filing of 146 separate affidavits and the same number of sets of interrogatories and each of the four garnishees would be required to malee and file 146 answers. This method of administering justice ought not to be countenanced unless required by sec. 1 of the Garnishment Act. Here there was but one suit brought against the stockholders of the bank and but one decree entered finding each stockholder liable for a specific amount depending upon the number of shares held and the unpaid liabilities of the bank which accrued during the period the stock was held by each stockholder. We think the “judgment” mentioned in sec. 1 includes not only a judgment entered in an action at law but also a decree rendered in a suit in equity and all items of such decree. This was, in effect, the holding in Ihorn v. Wallace, 88 Ill. App. 562.

Iii that case Ella and Joseph Ihorn and others, filed suit against John H. Ihorn and others in the circuit court of Monroe county in which a decree was entered awarding Ella $75 and Joseph $335 against John H. Ihorn. An execution was issued for the collection of the two amounts and returned by the sheriff “no part satisfied.” Afterward Ella and Joseph instituted garnishment proceedings against Coke B. Wallace who was claimed to be indebted to John H. Ihorn. The garnishee answered admitting he owed John H. Ihorn $344.50. But the trial court discharged the garnishee apparently for the reason that the garnishment was not based on a “judgment” as mentioned in the statute but on a decree in favor of two defendants for two distinct amounts. The Appellate Court reversed the judgment and remanded the cause with directions. The garnishee was held liable. The court there said:

“The first question arising upon this record is, whether the decree rendered in the chancery proceeding is such a judgment as may be collected by garnishment. Sec. 1, Chap. 62, of our statutes, provides that ‘whenever a judgment shall be rendered by any court of record . . . and an execution against the defendant in such judgment shall be returned . . . “no property found,” ’ then, upon the filing of a proper affidavit, garnishee summons may issue. The decree is a money decree, in personam, for specific amounts, and ordered collected by general execution. The garnishment act is remedial in its character and should receive a liberal interpretation, so that the remedy may be promoted and its purposes subserved. Luton v. Hoehn, for use, etc., 72 Ill. 81. A party has a right to the same remedies to enforce the collection of decree in chancery in personam for a specific sum of money, as he has to enforce collection of a judgment at law. Weightman et al. v. Hatch, 17 Ill. 281. We can perceive no reason why a personal money decree rendered by a court of equity is not a judgment of a court of record, within the meaning of the word 'judgment’ as used in the garnishment act.”

We might add that although sec. 1 of the act mentions an “execution” and not “executions,” the fact that counsel for plaintiffs had a separate execution issued against each stockholder who was held personally liable by the decree, is of no importance because we see no reason why one execution could not have been prepared in which all of the stockholders would be named and the amounts of their several liabilities stated.

We think plaintiffs were authorized to institute garnishment proceedings based on the decree by virtue of the provisions of sec. 1 of the Garnishment Act, and the court erred in holding* to the contrary.

(2) Was the affidavit for garnishee summons a sufficient compliance with sec. 1 of the Garnishment Act! Counsel for the garnishees contend it was not because the statute requires that the person making the affidavit “hath just reason to believe that any other person is indebted to such defendant, or defendants or to either or any of such defendants, or hath any effects or estate of such defendant, or defendants, or of either or any of such defendants, in his possession, custody or charge. ’ ’ And in support of the contention counsel say that an examination of the affidavit, after reading the above excerpt from the statute shows “It is impossible for any reasonable person to believe that the affiant who executed the affidavit for garnishment summons could have had just reason to believe that any one of these four brokerage houses was indebted to the 154 defendants. It is contrary to human experience that the affiant could have had any such belief, and this court is not obliged to indulge any such presumption. ’ ’ The affidavit is made by one of plaintiffs’ counsel. It names the 154 persons and the 146 sums due from such persons; that an execution had been issued and returned by the sheriff “no property found”; that the “defendants have no property within the knowledge of this affiant in their possession, liable to execution; that this affiant has just reason to believe that [Paine, Webber & Co.] is indebted to said defendants, or to any of said defendants.”

The substance of the affidavit is that the affiant had “just reason to believe” that the garnishee, Paine, Webber &i Co., were indebted “to any of the defendants,” i. e., any one of the 154 persons held liable in the decree. We think it cannot be said that it is obvious that the affiant had insufficient knowledge to swear he had just reason to believe Paine, Webber & Co. was indebted to any one of the 154 persons. We hold the affidavit was sufficient.

The judgment of the superior court of Cook county is reversed in each of the four appeals, and the matters remanded with directions to each of the garnishees to answer the interrogatories.

jReversed and remanded with directions.

McSurely, J., concurs.

Hatchett, P. J., dissents.


source: Caselaw Access Project

author: Mr. Justice O’Connor

license: Public Domain

text:
    The First National Bank of Chicago, Appellee, v. Louis L. Marks and Meyer S. Marks, Appellants.
    Gen. No. 40,977.
    Heard in the first division of this court for the first district at the October term, 1939.
    Opinion filed April 8, 1940.

      Rosenberg, Stein & Rosenberg, of Chicago, for appellants.
    D’Ancona, Pflaum & Kohlsaat, of Chicago, for appellee.
   Mr. Justice O’Connor

delivered the opinion of the court.

Plaintiff brought an action against defendants on a written contract by the terms of which they guaranteed the payment of a promissory note for $12,000 dated July 8,1927, due three years after date. The note was made by Louis L. Simon, who executed a trust deed on certain real estate in Chicago to secure the payment of the note. The trust deed was foreclosed, the property sold and there was a deficiency of $12,543.04, for which the maker of the note was held to be personally liable. It is to recover this deficiency that plaintiff brings suit. The case was tried before the court without a jury; there was a finding and judgment in plaintiff’s favor for the amount claimed and defendants appeal.

The record discloses that July 8, 1927, Louis L. Simon executed his three principal promissory notes, one for $1,500 due in one year; one for the same amount due in two years, and the third for $12,000 due in three years. To secure the payment of the $15,000, Simon executed his trust deed conveying certain Chicago property to the Foreman Trust & Savings Bank, trustee. The first and second notes and some interest were paid. At the time the $12,000 note was executed, it bore the following endorsement: “For value Received -hereby guarantee the payment of this note and all expenses of collecting the same, including attorneys’ fees, and waive protest and notice of non-payment and diligence in collecting the same, and consent that security may be taken or the time of payment be extended without impairing this guarantee.” Then follow the signatures of defendants, Louis L. Marks and Meyer S. Marks.

Afterward the trustee filed its bill to foreclose the lien of the trust deed for the nonpayment of the $12,000 note. No mention was made in the bill of the contract of guarantee. The bill contained the usual allegations and in one paragraph a number of persons are mentioned, including Louis and Meyer Marks, and it is alleged that these persons “have or claim to have some right, title, interest or lien in and to the real estate . . . but . . . that the right, title, interest and lien of such persons, ... if any they have ... is subject, inferior and subordinate to the lien” of complainant. The prayer was the usual one in such cases; and that “the Court may in and by its decree determine or find the person or persons personally liable for, said indebtedness.” The Marks, as defendants to the foreclosure, suit, filed their answer in which they demanded strict proof of the allegations of the bill. A decree of foreclosure was entered which approved the master’s report (to which no objections were filed), and finds the amount due to be $17,922.08, for which Louis L. Simon, the maker of the note, was decreed to be personally liable to plaintiff, the First National Bank of Chicago, with which the Foreman Bank, as trustee, had merged.

Afterward the property was sold by the master for $6,000 leaving a deficiency of $12,543.04. The master’s report of sale and distribution was approved by the chancellor. Nowhere in the foreclosure proceeding is any reference made to the contract of guarantee which is the basis of the instant suit.

Defendants contend the plaintiff’s failure to take a deficiency decree in the foreclosure suit against Louis and Meyer Marks released them from liability on their guarantee; that the foreclosure decree is res ad judicata of the issues involved in the instant case, and reliance is chiefly placed on Travelers’ Ins. Co. v. Mayo, 170 Ill. 498. That suit was an action of assumpsit brought on a joint and several promissory note made by Mr. and Mrs. Mayo. Mrs. Mayo filed a plea that under the law of Florida, a married woman was not liable on a promissory note. The suit was then dismissed as to Mr. Mayo and the declaration was amended charging Mrs. Mayo as guarantor. She then filed a plea setting up the execution of the note and mortgage on Florida real estate; that the mortgage was foreclosed in that State and the property sold, leaving a deficiency for which judgment was entered against Mr. Mayo alone, although Mrs. Mayo had been duly served with process in that case and contended the action was barred. The court said the “only question to be passed upon by this court is, whether the said deficiency decree rendered by the Florida court against R. G. Mayo alone was an ex-tinguishment of the cause of action against” Mrs. Mayo. The court held she was released by the Florida judgment.

We think that case is not in point. In that case the Mayos were co-makers of the note. They were both served with process by the Florida authorities and in foreclosure a deficiency was taken alone against the husband. In the instant case, the Marks are not comakers of the note but guarantors of it. They were made parties defendant to the foreclosure suit but it was not sought in that suit to hold them liable as guarantors or in any other manner. As stated, the question of their guarantee was in no way mentioned. But defendants say the decree in the foreclosure suit adjudicated not only the matters involved in that suit but every other thing which might have been adjudicated in that proceeding. Counsel say that “Since the plaintiff in the foreclosure suit asked the court to find the person or persons personally liable for the debt and made the defendants herein defendants to its suit, the decree entered in the foreclosure suit was res adjudieata and a bar to plaintiff’s suit. ’ ’ We think this contention cannot be sustained. Plaintiff made no attempt to hold them as guarantors. Moreover, the foreclosure suit was instituted before the Civil Practice Act became effective.

See Bride v. Stormer, 291 Ill. App. 502, 507, where the court said: “It is generally considered, except in States having an express provision of statute to the contrary, that the holder of a mortgage cannot join a third party claimed to be liable for the debt, with the mortgagor, in an action of foreclosure, for the purpose of obtaining a judgment for a deficiency against him. This rule was recognized in this State as far back as the case of Walsh v. Van Horn, 22 Ill. App. 170. A similar holding is to be found in Christensen v. Niedert, 259 Ill. App. 96, 103, 104, 105; Shiel v. Chicago Title & Trust Co., 262 Ill. App. 410; Elkhart State Bank v. Schlarman, 270 Ill. App. 440, 452, (certiorari denied); and Nelson v. Zemans, 275 Ill. App. 447.”

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

Judgment affirmed.

Matohett, P. J., and MoSurelt, J., concur.


author: Mr. Presiding Justice Denis E. Sullivan

text:
    Paul O’Donnell, Appellee, v. Elmer Holdorf and Ruby Holdorf, Trading as Evanston Riding School, Defendants. Appeal of Elmer Holdorf, Appellant.
    Gen. No. 40,877.

      Heard in the third division of this court for the first district at the October term, 1939.
    Opinion filed April 10, 1940.
    Winston, Strawn & Shaw, of Chicago, for appellant ; James H. Cartwright, of Chicago, of counsel.
    Royal W. Irwin, of Chicago, for appellee.
   Mr. Presiding Justice Denis E. Sullivan

delivered the opinion of the court.

Elmer Holdorf, one of the defendants named in the above entitled cause, brings this appeal from a judgment entered in the circuit court in favor of Paul O’Donnell, plaintiff, for the sum of $2,500, for personal injuries sustained while plaintiff was riding a horse which he had rented from the defendant. Buby Hol-dorf was dismissed from the suit as it developed that Elmer Holdorf was the sole proprietor.

Plaintiff’s complaint alleges that the defendant was engaged in the livery stable business and owned and rented saddle horses for hire to persons desiring to ride horseback; that on or about May 16, 1937, plaintiff rented for hire from defendant a riding horse known as Black Ace, and then and there agreed to pay the usual and customary charge for the hire of said horse; that said renting by said defendant was a warranty that the horse was gentle, tractable and well trained for horseback riding, but on the contrary was vicious, stubborn, temperamental and not well trained, tractable or gentle, which was well known to defendant and was not known to plaintiff; that said horse reared and threw plaintiff to the ground and fell on him and thereby injured him.

Defendant’s answer denies the viciousness or stubbornness attributed by plaintiff to the horse Black Ace; admits he is engaged in the business of renting riding horses for hire; denies any warranty or that plaintiff relied on it; admits that the horse, Black Ace, was on the day in question rented to the plaintiff for the purpose of riding said horse with saddle and bridle and states that plaintiff knew that' said horse was only rented to persons who were skilful and experienced riders; denies that the horse, Black Ace, was not well trained or was vicious or stubborn; admits that the plaintiff represented himself as being a skilful and experienced rider; denies that the plaintiff at the time of the alleged injury was conducting himself as an experienced and skilful rider and was exercising ordinary care and caution for his own safety as an experienced and skilful rider in and about the management of the said horse Black Ace.

Plaintiff’s theory of the case is that he rented a saddle horse from the defendant and was injured while riding the horse. He contends that his injury resulted from no fault of his own in the management of the horse, but rather from the vicious and ungovernable character of the horse and from his vicious habit of rearing and throwing* himself over backward when one rein was pulled; that the evil character of the horse and his bad habit were well known to the defendant; that plaintiff established his case by proving the accident and the injuries and then by testifying himself, which was corroborated by his daughter; that five weeks after the accident the defendant, in a conversation at which only plaintiff and his daughter and the defendant were present, said that the horse had done the same thing before and that he had this eccentricity of rearing when one rein was pulled.

The defendant’s theory of the case is that by testifying to the supposed admission, plaintiff made out the barest prima facie case; that when the defendant denied the admission and produced the testimony of himself and everyone else who would be expected to know anything about the horse, that the horse was not a vicious or dangerous horse, and that the horse not only did not have the habit of rearing, but that he had never reared before with any rider, and therefore plaintiff’s bare prima facie case was completely overcome.

The defendant further contends that the plaintiff’s own testimony shows conclusively that his injuries resulted from his own unskilful and improper management of the horse after he had admittedly represented himself, in hiring the horse, to be a skilful and experienced rider; that plaintiff requested this particular horse after he was told that it required an experienced rider to ride him.

The defendant further contends that it was necessary for plaintiff to prove that the horse was unsuitable for riding by a skilful and experienced rider and that he had this dangerous habit and that the defendant knew of it; that the testimony of plaintiff and his daughter attempting to establish these vital elements of his case by the supposed admission of the defendant should be given little weight, and that that testimony is completely overcome by the uncontradicted evidence in the case; that the horse was a lively spirited horse, but easily controlled and that he had never, in three and one-half months’ use, misbehaved in this manner before.

This case was tried before a judge without a jury. Plaintiff maintains that he has proven his case by a preponderance of the evidence, while defendant maintains that the finding and judgment of the court are contrary to the manifest weight of the evidence.

Plaintiff testified that he was a man 54 years of age and lived in Evanston, Illinois; that he has a daughter Rosemary who is 18 years of age; that on May 15, 1937, the defendant telephoned the Holdorf stables and talked with Mrs. Holdorf; that he told her that he wanted to get two horses for horseback riding the next day, a horse for his daughter and one for himself; that he told Mrs. Holdorf that his daughter had suggested Black Ace for him to ride and Black Rock for herself ; that he asked if Black Ace was all right and she said, “Yes, if you are an experienced rider;” that he, the plaintiff, said he was; that he had never ridden nor had he seen Black Ace before that day; that his daughter told him about the horse.

Plaintiff further testified that on Sunday morning his daughter and he arrived at the stable a little before 10 o’clock; that when the horses were brought out he mounted Black Ace; that he was a big horse and had an English saddle on and had a bridle with a double bit, that is he had a snaffle bit and a Pelham bit; that he thought it was a curb bit although he has since been informed that there was no curb chain on it; that the horse had no mane as it had been clipped; that there was no martingale; that the stirrups were adjusted to his length, rather long; that he rides the old cavalry style, that is ride with long stirrups, just reached it with the ball of your foot.

Plaintiff further testified that he “was up first” and waited a minute or two for his daughter to get up; that the horse was a little nervous and pranced around a bit ; that he patted him on the neck and then Rosemary was up; that her horse started to move out and that his horse started to move out; that nothing was said to him by Mr. Holdorf or Mrs. Holdorf about the horse at the time the horse was delivered to him; that he had never heard of the horse before; that his horse was fresh; that he judged that he had not been ridden that day; that he wanted to go; that be blew a little heavy, probably because he was running fast, trotting fast; that during the time he wanted to go he, the plaintiff, held a firm rein; part of the time it was a fast trot and part of the time it was a canter; that plaintiff reached the bridge south of the golf course, went across it and some distance on the other side of the bridge is the bridle path where you ride back to the stables and then there is another sort of path or road that continues south; that when he was approaching this road that leads back east, which would be on his left as he was riding south, Black Ace kept pulling over to go back to the stable; that the horse wanted to go that road but that plaintiff guided him the other way; that plaintiff kept pulling Black Ace away from this road so as to make him continue south; that plaintiff had been riding 20 minutes; that he got Black Ace by this road perhaps 100 feet when Rosemary, who was back of him, uttered a cry as though she were scared or that something was wrong; that he saw an automobile ahead of him on that road and turned and pulled his horse to the left and up into a field and that there were no fences there; that the field was either of grass or wheat ; that when he got up there he faced his daughter and she came up to him; that he asked his daughter whether she was all right and she said that she was; that he said, “Let’s go.”

Plaintiff further testified that at this point he started to turn the horse; that he was facing northwest; that the road back to the stable was on his right, a little way off, and the road he just left was on his left, running almost due north and south, that is the road he guided his horse toward; that he had no spurs and had no whip; that he pulled the horse to the left to guide him that way and hit him with his heel; that the horse pulled away to get toward the road back to the stable; that plaintiff pulled him again toward the way he wanted the horse to go; that the horse then reared up; that he held a firm hand on the rein and bit; that he seized the horse strongly with his knees for the jump as he expected; that instead, the horse went straight up on his hind legs, until his head was in front of him with the horse’s ears almost touching plaintiff’s nose and the horse backed right over, almost vertically backwards; that plaintiff was astride the horse at that time and on the way down was still astride him, but that he got his feet out of the stirrups and dropped the reins so that the horse landed on him between his leg’s, with plaintiff’s back on the ground, with the horse’s back between his legs; that the horse rolled off plaintiff and that a stone or something hit him and cut his forehead a little left of his left eyebrow, his left cheek and also across the bridge of his nose; that he horse did not step on him; that plaintiff was driven to St. Francis Hospital in Evanston by Mr. Holdorf.

We quote the conversation which plaintiff testified he had with Mr. Holdorf at that time: ‘ ‘ On my way to the hospital I said to Mr. Holdorf ‘I have been wondering what made that horse rear.’ He said, ‘Well, he has a tender mouth, you probably pulled too hard on the bit.’ I said ‘No, I was not pulling back, I was not pulling back. I was not trying to back him. I was not pulling on the bit at all. I was pulling sidewise. I was trying to get him to go to the left.’ He said, ‘Well, He is a spirited horse.’ ”

Plaintiff further testified that on the fifth Sunday after his injury he went out to Mr. Holdorf’s place with his daughter Rosemary; that he asked one of the men if Black Ace had been injured, and he said “No”; that Holdorf sat on a bench with plaintiff and his daughter and Holdorf said he was sorry about plaintiff’s getting hurt and was glad to see that plaintiff was out again; that plaintiff said to Holdorf: “I have been trying to figure out and I can’t figure out still what made that horse rear that way. What do you think made him rear?

“He said ‘He has this eccentricity when he is inclined to go to one side,’ I think to the right or to the left side, anyway, he is inclined to go one way, the driver would pull on the opposite side of the rein to get him away from that direction, pull too hard, that would irritate him. I said ‘Has this horse reared that way beforeV he said, ‘Yes, he has. He is temperamental, and he has to be handled just right. If I had been here when you went out, I would have cautioned you about him, but I was out on the bridle path with some customers.’ We talked a little longer about different things. At that time he said again in that conversation that this horse was a good spirited horse, that he was a good jumper.”

Plaintiff further testified that he had been raised in Vincennes, Indiana; that he came to Chicago in 1903 and has lived here ever since; that while in Vincennes he only rode a horse in the summertime when he visited some cousins who lived on a farm; that the first time he rode a horse in Chicago was after he had joined the First Cavalry of the Illinois National Guard in the summer of 1909; that in 1916, he went into the border service as a member of the Cavalry troop and they went into regular service; that they drilled with horses twice a week after he became an officer and these drills lasted two or three hours; that his first connection with the cavalry was in 1909, and that he was continually active in it up to and through the time he went to the border; that he returned from the border in the latter part of November, 1916; that after he resigned from the army, he rode mainly on summer vacations, spring, summer and fall; that during the past few years he rode on horses from various stables in this vicinity; that once or twice when he was in the cavalry he had had horses rear up, reared on its hind feet and gave a jump forward; that he had had horses that balked with him; that he had ridden horses that were scared and that he had ridden horses who refused to go the way he wanted them to go; horses that wanted to follow their own heads and would not turn when he wanted them to; that he often had horses that wanted to go back to the barn, a common trait in horses both buggy horses and saddle horses and that he may have had a horse that temporarily refused to go forward with him; that at Worth, Illinois, one of the boys had a horse who would not go along with the troop, he kept side-stepping; that he gave his horse to that boy and he took his; that he had quite a time with that horse.

Plaintiff further testified that he has had horses that wanted to go in a different direction to which he wanted them to go.

Plaintiff further testified that his daughter Rosemary was at that time attending Marywood school in Evanston; that she had gone with a class from that school and had been riding* at the Holdorf School for some time; that a teacher, Miss DuBois, of his daughter’s class had ridden Black Ace and that this teacher was the athletic instructress of that school; that they rode in the arena; that his daughter told him that Black Ace looked like a good horse and suggested that he take Black Ace; that Miss DuBois liked and rode Black Ace.

Plaintiff further testified that Holdorf had told him that he had no liability insurance and that he, plaintiff, told Holdorf that he had no accident insurance.

Rosemary O’Donnell, daughter of plaintiff, testified that she was 17 years of age and that she was present at the telephone conversation between her father and the Holdorfs on Saturday; that on Sunday she went with her father to the riding academy and got a couple of horses; that she got the horse Black Rock, which horse she had ridden before; that she had seen Black Ace before asi her “gym” teacher, Miss DuBois, had ridden that horse; that she knew nothing* of the habits of the horse and had never ridden it.

Miss O’Donnell further testified that at the place where the accident happened her horse stumbled or shied on some gravel and she called out and her father stopped; that it was in a rounded spot and he went up a little way off the path and by that time she had her horse under control; that her father was again going to turn south but the horse did not want to turn that way; that the horse wanted to go back to the barn; that her father pulled the horse’s rein to the left and that the animal reared up and fell over on top of her father: that the horse reared only once; that the road back to the stable went in a slightly northeast direction, mostly north and that this is the path that the horse wanted to follow.

Miss O’Donnell further testified that she remembered going over to the stables five weeks after the accident; that her father talked with Mr. Holdorf and that she heard the conversation; that her father said he had just been out of the hospital a short time and Mr. Holdorf said how sorry he was about the accident ; that her father asked him if the horse had reared before; that Mr. Holdorf said the horse was rather temperamental; that if you pulled the rein he wanted to go one way and that if you pulled the rein the other way he would rear; that Mr. Holdorf said that if he had been in the stable when her father took the horse that he would have warned him; that the boys there hadn’t sense enough to do it; that during the conversation at the stable her father asked Mr. Holdorf if he had liability insurance; that Mr. Holdorf said no, the people who insure thought his business was too dangerous to insure or something to that effect; that she remembered distinctly that Mr. Holdorf said that that horse had done that before; that if you pulled on one rein he was apt to rear.

Miss O’Donnell further testified that she had tallied this matter over with her father several times and had told him what her testimony would be; that the first time her father talked to her about the conversation was immediately after they had left the place; that he told her to remember it; that she had talked with him several times since then; that she did not recall talking with Mrs. Holdorf about reserving Black Ace for her father for that Sunday; that she had spoken of rides there with her father at some time but.had not made an appointment; that she did not recall having asked Mrs. Holdorf if her father could have Black Ace to ride with her; that she remembered having a conversation in which she asked Mr. or Mrs. Holdorf if her father could have Black Ace, and was asked whether her father was a good rider; that as she remembered the conversation.it was with Mr. Holdorf, but that she could not be sure; that she knew she talked about it and had said that her father was a good rider.

Elizabeth DuBois testified that she is a physical education instructress at Marywood school; that she is acquainted with Elmer and Ruby Holdorf; that she rides quite often at their stable; that she rode Black Ace quite often prior to May 16, 1937; that she has a class of girls that ride out of Mrs. Holdorf’s stable and that she usually rode that horse in class; that she rode him in the ring and on the bridle path; that she is an average rider and that Black Ace is an average horse; that she never had any trouble with him; that Black Ace never reared with her nor otherwise misbehaved; that she never had any trouble making Black Ace go where she wanted him to go; that she -never noticed any peculiarities or eccentricities about the horse; that he never tried to turn back with her; that she found no trouble with his mouth, but that it was an average mouth; that she had ridden Black Ace about 15 or 16 times.

Catherine Loucks testified that she had ridden Black' Ace four times, once in the arena and three times outside when she went through the woods; that she is not positive as to which direction she went, but she just rode around the bridle paths and through Harms Woods; that Black Ace was high-spirited, but a very pleasurable horse to ride; that he never showed any signs of viciousness and that he never reared up with her; that he never refused to go anywhere she wanted him to go. She further testified that when a horse rears up with you, you release the reins in order to give him his head to let him go down; that you do not keep pulling on the reins; that she never had a horse go clear over backwards with her.

Elmer J. Holdorf, defendant herein, testified that he had been in the horse business for approximately 18 years in training and finishing horses; that he always had between 35 and 45 head of horses and when he testified had 105 horses in the stable; that he had been in his present place of ■ business for over five years; that he teaches people how to ride and later they buy horses of their own; that he got the horse Black Ace in February, 1937 in Moline, Illinois; that he had ridden Black Ace on many occasions over the bridle paths and trails; that he never reared up with him; that Black Ace was a three-gaited saddle horse, that is a walk, trot and canter and that he had an excellent trot; that the bit used on Black Ace was a rubber Pelham bit and that there is no gentler or milder bit on a horse’s mouth.

Defendant further testifying denied that he said to plaintiff that the horse had done the same thing before, or anything like that; that the horse had never reared to his knowledge and that he never used the word “eccentricity” in his life; that it is not a smart thing to keep a tight hold on a horse if he balks; that you should give him his head; that no disciplinary measures were taken on Black Ace during the time he was in defendant’s possession; that Black Ace did not need any; that the horse never kicked anybody to his knowledge nor struck at anybody with his front feet nor tried to bite anybody; that around the stable he was a very nice horse to handle.

Hilmer Setterman, testifying for defendant, stated that he first started to work for Holdorf in 1920 as a groom; that he had ridden Black Ace on three or four occasions; that the horse was not vicious and that he never refused to go where he wanted him to go; that on one occasion he drove up to the stable where there was a big sliding door on rollers; that when Black Ace saw the sliding door he got scared and reared up, he was too close to the door and he got up and slid right up on top of it; that he, the witness, yanked him back; that he had never seen Black Ace come back home, without a rider and that he did not know of any bad habits the horse had; that Black Ace had a good disposition.

Arthur Sass, testifying for defendant, stated that in the Spring of 1937 he had three horses of his own at the stable and that he had ridden Black Ace on three or four occasions; that he was learning to ride at the time and was just a beginner; that he had been told that Black Ace was a good horse on cantering; that he was very poor riding a canter and he was told that the horse could help him on that; that he rode Black Ace around the paths and through the woods; that he ,had no trouble with the horse and that it never refused to do a thing which a perfect saddle horse would not do.

Frank Moran, an assistant of Mr. Holdorf’s, testified that he had been connected with the horse business for 15 years; that he remembered Black Ace and that the horse was about 15-3; that he was just a nice horse, three-gaited and high; that he was with him quite a while and that he was all right as far as he knew; that he had ridden him every day Mrs. Lowrey rode ; that he rode him for school work, teaching and instructing ; that the horse responded on the bit any way you wanted him to; that he never had any trouble making the horse go where he wanted him to go; that he never kicked, struck or tried to bite him; that he never reared with him; that the horse was well broke.

On cross-examination Moran testified that bad traits that a horse may have are kicking, biting, rearing and that sort of thing; that running away is bad and dangerous; that he has ridden horses that reared; that it does not take a very good rider to “stick” on a horse that rears; that if you know how it is very simple, with an English riding saddle, to correct this; that when the horse rears you just turn his head and lean forward; that you grip the horse with your knees; that they never had a horse that would lie down on you; that some horses after they are frightened, stop and look; that if a sudden noise or something unusual confronts a horse, sometimes he will make a jump and stop; that horses do not run away if a piece of paper flies in front of them, he might shy a bit, some of them do but not all of them; that horses are like individuals, they have their own pecularities; that he never warned anybody about Black Ace rearing; that if he knew a horse reared he would either not let him out or would have warned people that he did; that the horse was there about six months; that up to that time he let the horse out to people who were experienced riders; that he had ridden Black Ace longer than anybody around the place.

W. E. Butler, testifying on behalf of defendant, stated that he is in the automobile business; that he had ridden Black Ace on the bridle paths and through the woods, the forest preserves; that the horse was a three-gaited horse and had some jumping qualities too; that he was a nice ride; that he had ridden the horse at Mr. Holdorf’s suggestion; that he never had any trouble with the horse and that he never reared with him; that he was looking for a horse on the hunter type, but that he was not quite ready to buy but would need one within three months; that he later bought a horse from Mr. Holdorf.

Ruby Holdorf, wife of defendant Elmer Holdorf, testified that she had a conversation with Rosemary O’Donnell, daughter of plaintiff, prior to the time Mr. O’Donnell went on this ride; that plaintiff’s daughter said that she and her father were planning to ride Sunday morning; that she asked Rosemary O’Donnell if her father could ride and that she replied that he had had a lot of experience in the army; that she does not know who actually booked the horses; that she may have had a telephone conversation with some one, but does not remember who called; that after the accident she talked with Miss O’Donnell who had been escorted into the office by one of the other riders who met her at the scene of the accident; that she was quite excited and said her father had been injured; that she, Mrs. Holdorf, asked her what had happened and Miss 0 ’Donnell said the horse had gone up and over on her father; that at that time she, the witness, said, “1 thought you told me, Miss 0 ’Donnell, your father could ride.’’ This was later stricken out by the court.

We have set forth the testimony in this case at considerable length for the reason that the claim of plaintiff is based almost entirely on questions of fact. It is alleged that the horse was well known to be a vicious and dangerous animal, stubborn, temperamental, not well trained, gentle or tractable. We have been unable to find any evidence bearing out these allegations. The evidence shows that this horse was purchased by defendant several months before the occurrence in question; that there was no record against him and from the testimony, of the various witnesses it was disclosed that the horse had no bad habits so as to make it unsafe for persons to ride. No evidence was introduced showing that this horse had a reputation as a vicious and dangerous animal, which is the main charge set forth in plaintiff’s complaint. Plaintiff was a rider of many years experience, a cavalry officer in the army. When he asked if Black Ace was all right to ride, he was told that the horse was all right if he was an experienced rider. He accepted the horse on this condition and the mere fact that the horse reared and showed some spirit and life was not a sufficient reason why the horse should be termed a “vicious horse.” We think the plaintiff relied upon the recommendation and selection of his daughter as being a proper horse for him to ride rather than any representation or warranty by defendant. An experienced rider, such as plaintiff claims he is, should have instantly known how to handle the horse instead of doing as he did, pulling him to the left, causing the horse to become over-balanced which caused the accident. We think pulling the rein, as plaintiff says he did, more nearly accounts for the actions of the horse than any innate viciousness on the part of the horse.

In the opinion of the trial court its decision seems to be based upon the admission which it was claimed Holdorf had made five weeks after the accident. In referring to such conversation the opinion states in part as follows: “As I view the evidence in this case, that fact is determined, binding on the Court as showing — not that the Court is satisfied beyond a reasonable doubt, or that the Court feels it is established by any clear preponderance, but under the rules of law, it has been proved by the weight of the evidence, ...”

In commenting upon the weight to be given to evidence consisting of oral admissions and confessions, Dean Wigmore on Evidence, 2nd Ed., sec. 2094, at p. 464, states: “In the following passage, the typical warning is well phrased; here, as usually, it is applied specifically to proof of oral admissions or confessions of a party, because these are the commonest in practice; but the general warning applies to all oral utterances :

“1833, Earle v. Pichen, 5 C. & P. 542: ‘In the course of this circuit, Mr. Justice Parke several times observed that too great weight ought not to be attached to evidence of what a party has been supposed to have said, as it very frequently happens, not only that the witness has misunderstood what the party has said, but that by unintentionally altering a few of the expressions really used, he gives an effect to the statement completely at variance with what the party really did say.’
“1866, Redfield, C. J., Note to Greenleaf on Evidence, 12th ed., § 200: ‘In a somewhat extended experience of jury trials we have been compelled to the conclusion that the most unreliable of all evidence is that of the oral admissions of the party. And especially where they purport to have been made during the pendency of the action, or after the parties were in a state of controversy. It is not uncommon for different witnesses of the same conversation to give precisely opposite accounts of them; and in some instances it will appear that the witness deposes to the statement of one party as coming from the other; and it is not very uncommon to find a witness of the best intentions repeating the declarations of the party in his own favor as the fullest admissions of the utter falsity of his claims. When we. reflect upon the inaccuracy of many witnesses in their original comprehension of a conversation, their extreme liability to mingle subsequent facts and occurrences with the original transactions, and the impossibility of recollecting the precise terms used by the party, or of translating them by exact equivalents, we must conclude that there is no substantial reliance upon this class of testimony.’ ”

Other points have been urged for our consideration, but as the cause will have to be retried we shall not discuss them at this time.

For the reasons herein given the judgment of the circuit court is reversed and the cause is remanded for a new trial.

Judgment reversed and cause remanded.

Hebel and Burke, JJ., concur.


text:
    George Zozaski, Minor, by Anthony T. Scolaro, His Next Friend, Appellant, v. Mather Stock Car Company and Alonzo C. Mather, Appellees.
    Gen. No. 40,907.
    Heard in the third division of this court for the first district at the October term, 1939.
    Opinion filed April 10, 1940.
    Gallagher, Rosenberg & Richter, of Chicago, for appellant; Harold J. Rosenberg and C. A. Caplow, of Chicago, of counsel.
    Rtjdnick & Wolee, of Chicago, for appellees.
   Mr. Presiding Justice Denis E. Sullivan

delivered the opinion of the court.

This is an appeal from a judgment entered in the municipal court in favor of defendants with costs against plaintiff.

Plaintiff, a minor 19 years of age, filed an action in the municipal court of Chicago to recover the sum of $647.98, which had been deducted from his wages by his employer, Mather Stock Car Company, a corporation, and alleged to have been turned over to the other defendant, Alonzo C. Mather. The defendant corporation alone was served with a summons and only its appearance was entered by counsel. The other defendant, Alonzo C. Mather is not in court.

Plaintiff’s second amended statement of claim is substantially as follows :

Count 1 alleges that plaintiff is a minor and that on or about October 25,1936, he was emancipated because his father relinquished to plaintiff all right, title and interest in plaintiff’s earnings and income; also because plaintiff exercised complete control of and had possession of his earnings, paid for his own room and board and bought his own clothes; because his father exercised no control over plaintiff’s earnings and contributed nothing to plaintiff’s support; that plaintiff was employed by the defendant corporation from October 25, 1936, to and including November 25, 1938, and during that period the defendant corporation deducted the sum of $647.98 from his wages, and accordingly the said defendant became indebted to him in said sum; that said deduction was not made for insurance, sick benefit, or other relief which might inure to plaintiff; that plaintiff made demand on his employer to return said money so deducted, but it refused and vexatiously delayed in payment thereof and plaintiff claims interest on said sum at the rate of 5 per cent from November 25,1938.

Count 2, among other things, alleges that on or about February 17,1936, the defendant Alonzo C. Mather demised certain farm lands to plaintiff’s father, a copy of which lease is marked Exhibit A; that plaintiff knew of the execution of the lease but did not know its contents; that pursuant to said lease, the defendant corporation wrongfully withheld said money from plaintiff’s wages and purportedly turned it over to the defendant Alonzo C. Mather, whereby both defendants became jointly and severally liable.

Said count further alleges that the defendant corporation paid wages directly to plaintiff, never paid any of plaintiff’s wages to his father and treated plaintiff as the owner of and entitled to his earnings.

Defendant interposed a motion to strike as to the second amended statement of claim on the ground that no legal cause of action is set up or alleged.

Plaintiff’s theory of the case is that the second amended statement of claim sets forth a good cause of action, under which he is entitled to judgment against the defendant corporation in view of its motion to strike.

Defendant’s theory is that the second amended statement of claim does not state a good cause of action.

On motion of the defendant, the court dismissed the plaintiff’s suit.

The errors relied upon for reversal are as follows:

1. The court erred in sustaining defendant’s motion to strike plaintiff’s second amended statement of claim.

2. The court erred in dismissing plaintiff’s suit and entering judgment for the defendant.

3. The court erred in dismissing plaintiff’s suit entirely where no issue was formed as to another defendant upon whom plaintiff had not procured service of process.

One of the first questions presented for our consideration and determination is whether plaintiff’s claim states a cause of action. The complaint alleges that he was emancipated; that he had up to that time received his earnings, paid for his board and room and bought his own clothes and that no part of his earnings had been given to his father and that none of his salary had been deducted for insurance, sick benefit or other similar relief. Plaintiff in his pleadings showed he is 19 years old and is a young man in control of his own affairs, the same as an adult.

It further appears that the defendant Mather Stock Car Company treated him as an adult because it paid him part of his wages and deducted the balance, and as our Supreme Court said in the case of Iroquois Iron Co. v. Industrial Commission, 294 Ill. 106, at p. 109:

“Whether there has been an emancipation is a question of fact but what is emancipation is a question of law. ’ ’

In Panther Creek Mines v. Industrial Commission, 296 Ill. 565, at p. 567, the court said:

“It has long been the rule in this State that where a son is supporting himself, controlling his own income and is without the control of his parents he is emancipated. . . .
And again in the case of Auburn & A. Coal Co. v. Industrial Commission, 296 Ill. 568, the court at p. 569, said: ‘ ‘ There is not a word of testimony in this record from which it can be determined that this minor son was emancipated. . . . proof that he has been supporting himself and that his father had not been contributing to his support would be sufficient to show that the son was emancipated and that the father was not under legal obligation to support him.”

Plaintiff’s claim alleges that he was entirely free, received his own pay, paid his own bills, bought his own clothes, etc., and that his father had not been contributing to his support, but, on the contrary, plaintiff was supporting himself; that he received all his salary, excepting the sum which was retained by the defendant. We believe these allegations, if proven, clearly indicate that plaintiff was emancipated.

We believe the complaint states a cause of action. The cause was not at issue, at least as to Mather, the individual, but the entire suit should not have been dismissed on the motion to strike as it admits all the facts well pleaded.

For the reasons herein given the order of the municipal court dismissing the suit is reversed and the cause is remanded with directions to vacate the order of dismissal and reinstate said suit and direct that an answer be filed and the cause proceed to trial on its merits.

Judgment reversed and cause remanded with directions.

Hebel and Burke, JJ., concur.


text:
    In re Estate of William E. Folksdorf, Deceased. Harold R. Weinacker, Appellee, v. Earl Spiegler, Administrator De Bonis Non With Will Annexed of Estate of William E. Folksdorf, Deceased, Appellant.
    Gen. No. 40,930.
    Heard in the third division of this court for the first district at the October term, 1939.
    Opinion filed April 10, 1940.
    Frank Moland, of Chicago, for appellant.
    Mayer, Meyer, Austrian & Platt, of Chicago, for appellee; David F. Rosenthal, Louis A. Kohn and Thomas H. Alcock, all of Chicago, of counsel.
   Mr. Presiding Justice Denis E. Sullivan

delivered the opinion of the court.

Plaintiff Harold R. Weinacker, as owner of a note secured by a trust deed, covering certain real estate in Chicago, filed a claim in the probate court against the estate of the mortgagor. The administrator paid no part of the claim, although there were two parcels of property scheduled in the estate, in addition to other assets. After petitioning the administrator to sell the property pledged to secure the claim and after the administrator refused to obey the terms of a court order directing him so to do, the plaintiff foreclosed his trust deed in the circuit court. The moneys realized at the foreclosure sale were insufficient to pay the total mortgage indebtedness. A claim of $811.15 was allowed by the probate court and was affirmed by the circuit court, from which order this appeal is taken.

The trial court approved the master’s report and found the total amount due in the State court to be $2,709.86, for which amount the premises were sold. Plaintiff bid $2,100 and received a certificate of sale with a deficiency of $811.15, which the court ordered paid out of the income during the period of redemption.

Plaintiff filed his petition in the probate court, setting forth that out of said $2,100 realized at the sale, the sum of $1,108.20 was paid him after deductions of $118.20 for master’s fees and expenses; $375 for taxes and $120.60 for title examinations and that the claim, after the application of said balance was reduced to $811.15 with interest from March 16,1937 and the probate court ordered the claim reduced to $811.15 and ordered the administrator to sell the real estate and to pay the claim. On an appeal to the circuit court a similar order was entered.

No point is raised on the pleadings.

The claimant says that he is entitled to receive $811.15 from the real estate on the theory that said amount is still due him by reason of the sale of said real estate for less than the amount found due by the decree of foreclosure.

Defendant appellant contends that the debt allowed as a claim in the probate court for $1,793.73 was satisfied by the purchase of said real estate for $2,100; that the plaintiff has no deficiency judgment and elected to and did obtain complete satisfaction of the mortgage indebtedness by appropriating the real estate and the income during the period of redemption in full of the reported deficiency.

It appears from the evidence that plaintiff’s claim was filed on August 4,1933, just prior to the expiration of the statutory year in which to file claims; that said claim was based upon a note which was not due until October 26, 1933; that there are two parcels of property involved, namely the Hancock street property and the LeMoyne street property; that the LeMoyne street property was conveyed by a trust deed as security for said note owned by plaintiff; that the administrator failed to comply with an order of the probate court dated June 9, 1936, rendered on the petition of plaintiff, directing him to sell the LeMoyne street property, and that thereafter plaintiff instituted foreclosure proceedings in the circuit court of Cook county, Illinois; that the foreclosure decree of February 17, 1937, provided that all tax advancements, title charges, attorneys’ fees, master’s fees and court costs be paid first, from the proceeds of any sale; that while the master turned over $1,603.70 to plaintiff out of the proceeds of the foreclosure sale, nevertheless, after said title charges and tax advancements were paid, the net proceeds of said sale applied on the mortgage debt amounted to only $1,107.60; that no net income was realized by the State court receiver during the 15 months’ period of redemption for application on the deficiency, and as a matter of fact plaintiff advanced an additional $600 to rehabilitate the property, which amount has not been repaid and constitutes no part of the claim herein asserted in the amount of $811.15, which claim was allowed by the probate court and affirmed by the circuit court.

The order appealed from in addition to directing the administrator to sell the Hancock street property, held that there was $811.15 still due and owing to plaintiff.

We gather from plaintiff’s brief that because the plaintiff was the purchaser at the sale and bid $2,100, and at the conclusion of the period of redemption obtained the premises, such action on the part of the defendant was an. election which would preclude the defendant from further pursuance of his debt and was to be considered as payment of the entire indebtedness. We do not understand the law as so holding. It has long been the law in this State, as evidenced by the decision in the case of Vansant v. Allmon, 23 Ill. 30, wherein it was said:

“A creditor by note and mortgage may pursue several remedies until his debt is satisfied.”

In Rohrer v. Deatherage, 336 Ill. 450, the court at p. 455, said:

“Upon default in the condition of the mortgage, the mortgagee has the right to possession against the mortgagor, his grantee, lessee, or anyone claiming under him by any right. In such case the mortgagee has several remedies which he may pursue to enforce the payment of his debt. He may sue the mortgagor in assumpsit for a judgment upon the personal obligation; he may sue in equity for the foreclosure of the mortgage; or he may recover the possession of the mortgaged property by an action of ejectment. These remedies are concurrent or successive, as the mortgagee may deem proper, and he may pursue any two or all three of the remedies simultaneously.”

Although plaintiff has the right to pursue the remedies provided by law, he is entitled to but one satisfaction. The amount remaining due in the foreclosure proceeding should be paid the same as any other part of the indebtedness and the mere fact that the creditor was the sole bidder at the master’s sale and that he eventually secured the property at the price which he bid, which left a deficiency to be paid in the future, is no reason why he should be precluded from following any other remedy necessary in order to obtain the balance which was due him.

We think both the circuit court and the probate court did right in allowing the claim against the estate of the deceased, and for the reasons herein given the order of the circuit court is affirmed.

Order affirmed.

Hebel and Burke, JJ., concur.


text:
    People of the State of Illinois, Defendant in Error, v. Russell Combs, Plaintiff in Error.
    Gen. No. 40,946.
    Heard in the third division of this court for the first district at the October term, 1939.
    Opinion filed April 10, 1940.
    Rehearing denied April 24, 1940.

      Ellis & Westbrooks, of Chicago, for plaintiff in error; Richard E. Westbrooks, of counsel.
    Thomas J. Courtney, State’s Attorney, for defendant in error; Edward E. Wilson, John T. Gallagher, Melvin S. Rembe and Blair L. Varnes, Assistant State’s Attorneys, of counsel.
   Mr. Presiding Justice Denis E. Sullivan

delivered the opinion of the court.

Russell Combs, plaintiff in error, was arrested and brought into the municipal court of Chicago on August 25, 1938. The arrest having been without a warrant, an information was filed in open court against him by Mary Jaskowiak. The information charged contributing to the delinquency of a child. Defendant, upon arraignment, entered a plea of not guilty. A jury trial was waived and upon the issue being submitted to the court, the defendant was found guilty in manner and form as charged in the information.

Defendant Combs was sentenced to the House of Correction of the city of Chicago “for the term of one year from and after the the delivery of his body to the Superintendent of the House of Correction.” The bailiff was ordered by the court to take the body of the defendant from the bar of the court and deliver said defendant to the superintendent of the House of Correction. The superintendent was commanded to receive the defendant, confine him at labor for the term of one year and to discharge the defendant thereafter.

The concluding paragraph of said judgment order reads as follows:

“It is ordered that the term of imprisonment now here imposed in this cause commence at the expiration of imprisonment in Case 1589705.”

Counsel for defendant contends that the order is void because it is indefinite, vague and uncertain. One has but to read the order to ascertain that it was quite impossible to determine when it was intended the sentence was to commence and when it was to terminate. If, as the order reads, “for the term of one year from and after the delivery of said defendant to the Superintendent of said House of Correction,” and in the same order it provides that the term of imprisonment shall begin at some other time, it is very confusing and difficult to determine just what is meant. It is very obvious that any given term of imprisonment, such as for the period of one year, cannot commence on two different dates.

It is a well-settled rule in criminal law that a sentence must be certain, definite and consistent in all its terms and should not be ambiguous. 16 Corpus Juris 1303; 19 Ency. Pl & Pr. 476.

It is contended by the State that there being no certificate of evidence or bill of exceptions attached to the record here, we must presume that a proper order was entered.

The liberty of an individual is not of such little consequence that we have a right to presume that there is some other document which will justify the imprisonment. What is meant by case No. 1589705, is not explained and we have no way of knowing what bearing it has on this case, or why it was set forth in the order.

As was well said in the case of People ex rel. Clancy v. Gray don, 329 Ill. 398 [wherein the court quoted from Ex parte LaMar, 274 Fed. 160], at p. 402: “ ‘A prisoner, while suffering the penalty of the law, should always have preserved to him whatever remains of his rights and condition. A sentence should be so complete as to need no construction of a court to ascertain its import. It should be so complete that to ascertain its meaning it will not be necessary to supplement the written words by either a non-judicial or ministerial officer. He must find what the sentencing judge intended from the language which he used: The rascality of the petitioner, or the merits or demerits of his case, or the appropriate punishment which has been inflicted, can not enter into this determination. The punishment which the worst criminal has inflicted upon him must be legal, and when, this is not so, however unintentional, an offense is being committed in the name of the law against the person.’ ”

In People v. Decker, 347 Ill. 258,. at p. 261, the court said:

“The judgment entered in a case of cumulative punishment must be of such certainty that the commencement bf the second and termination of the first sentence may be seen from the record.”

As before stated, no one can tell from a reading of this order when the term of imprisonment should commence as two different dates are indicated.

In People v. Welch, 331 Ill. 20, the court in reversing a conviction for an indefinite and confusing order at p. 23, said: “There is nothing in the record by which it may be determined when the commitment under the first count expires. It necessarily follows that it is likewise impossible to determine either the commencement or termination of the sentence under the second count. ’ ’

We think the judgment order of commitment in this case is too uncertain and for the reasons herein given, the same is reversed and the cause is remanded.

Judgment order reversed and cause remanded.

Hebel and Burke, JJ., concur.


author:
Mr. Presiding Justice Denis E. Sullivan
      Burke, J.,

text:
    National Builders Bank of Chicago, Appellee, v. Robert L. Simons, Defendant. Sidney Landis, Intervening Petitioner, Appellant. University State Bank, Garnishee.
    Gen. No. 40,956.
    Heard in the third division of this court for the first district at the October term, 1939.
    Opinion filed April 10, 1940.
    Rehearing denied April 24, 1940.
    Landis & Landis, of Chicago, for appellant; Alvin Landis, of counsel.
    Ringer, Reinwald & Sostrin, for appellee; M. Lester Reinwald and Morris Sostrin, of counsel.
   Mr. Presiding Justice Denis E. Sullivan

delivered the opinion of the court.

From a rather incomplete statement as to the merits of the controversy in this case, we gather that the petitioner, doubtless meaning the intervening petitioner, appeals from an order entered on his petition to quash a writ of attachment issued against the University State Bank, garnishee, under which writ the plaintiff, meaning, we think, the intervening petitioner, claimed that certain liberty bonds owned by the petitioner, or perhaps the intervening petitioner, were held by the garnishee. After the pleadings were filed and issue made, the trial court entered an order finding that the petitioner was the owner of the bonds, but finding that the attachment writ was properly issued.

The petitioner’s theory of the case is that the plaintiff’s attachment (meaning the National Builders Bank of. Chicago), was wrongfully sued out; that the letter (Landis exhibit 1 for identification, which the court refused to allow in evidence), sent by the plaintiff’s attorneys to the University State Bank, the garnishee, compelled the garnishee to hold the bonds of the petitioner ; that the trial court after finding that the property belonged to the petitioner should have quashed the attachment and permitted the petitioner to have his remedy against plaintiff for wrongfully attaching petitioner’s property.

The plaintiff’s theory of the case is that the plaintiff, (meaning perhaps the National Builders Bank of Chicago) never attached the bonds of the petitioner, and that the garnishee was under no duty to pay any attention to the letter (Landis exhibit 1) sent by the plaintiff’s attorneys to the garnishee.

Much evidence was heard and, as a result of the trial, the order heretofore referred to was entered by the court from which this appeal is taken..

The plaintiff appellee, National Builders Bank of Chicago, gives as its first reason why the appeal should be dismissed, that the certificate of the trial court attached to the report of proceedings does not state that the report of proceedings contains all of the evidence and it is fatally defective. This point is a repetition of the motion made by defendant on November 18, 1939, to dismiss the suit. The record shows that the motion was denied, but it is evident from an inspection of the record that the court thought it better to hear the arguments on both sides before denying a further hearing.

We have carefully inspected the record in this case and we cannot find a certificate by the trial judge as to the evidence which was heard and presented to this court, as being all the evidence which was heard by him in reaching a decision of this case. We are inclined to believe now that we should have dismissed this suit upon said motion at the time it was made. No motion to amend or correct the record or to supply the certificate of the trial judge was made in this court.

In the case of Sheean v. Beil, 300 Ill. App. 364, a rather full discussion appears as to the necessity of complying strictly with the rule, especially in cases where the evidence is conflicting. In that case the appellee assigned the following reasons for his motion to strike: “That the trial court did not certify that said purported copy of the testimony contained all of the evidence, or testimony received in the trial.” In the same case the judge’s certificate reads as follows: “ ‘This is to certify that the above and foregoing testimony was taken down in shorthand by the official court reporter at the hearing in the above entitled cause, on April 4, and 5, and May 18, 1938, in the Circuit Court of Jo Daviess County, Illinois, and that the same was by him correctly transcribed. ’ A casual examination of this certificate disclosed that all that the judge certifies to, is that the testimony was taken down in shorthand on certain days, and was correctly transcribed by the reporter. Whether this was all of the evidence taken, no one knows. The record does not show that the hearing of the evidence was concluded, or that either side rested their case. There is no court reporter’s certificate that the testimony taken is all of the testimony, and that the same is a true and correct copy, as transcribed by him. Our courts have frequently held, that such a certificate of the judge is fatally defective on appeal. There was a dispute of fact in this case, and the appellants now contend there is not sufficient evidence in the record to sustain the judgment. In the case of Sutton v. Board of Education, 259 Ill. App. 193, the court there states the law to be, that where the bill of exception does not purport to contain all of the evidence, the verdict of the jury will not be questioned, and a certificate of the court reporter, that the bill of exceptions contains all the evidence, is not sufficient for that purpose. People v. Clark, 298 Ill. 170. To the same effect is Siegle v. Mitchell, 249 Ill. App. 116; Cogshall v. Beesley, 76 Ill. 445. The court held where a bill of exceptions fails to show that it contains all of the evidence, this court will not decide whether the evidence it does contain, supports the verdict. • The reporter’s certificate at the foot of the testimony, that it contained all the evidence, will not answer. The judge who tries the case must so certify.

“In the case of Henry v. Holloway, 78 Ill. 356, we find the following: ‘Where the bill of exception fails to show that it contains all the evidence introduced upon the trial in the court below, it will be presumed on appeal to the Supreme Court, that other testimony was heard, and that the evidence before the court was sufficient to authorize the judgment rendered.’ To the same effect is the case of the Board of Trustees v. Misenheimer, 89 Ill. 151. Also People v. Nelson, 320 Ill. 273.”

It is pointed out by the appellant that on page 186 of the record, appears the following:

“Which were all the proceedings had or proppered IN THE TRIAL OF THE ABOVE ENTITLED CAUSE. ’ ’

No signature appears under the foregoing statement, so we have no way of knowing who made the statement.

Appellant calls our attention to the fact that in reply to the motion to dismiss, the certificate of the judge there reads as follows:

‘ ‘ Forasmuch as the matters and things contained in the foregoing Report of Proceedings do not otherwise fully appear of record herein, the Respondent tenders this his Report of Proceedings and prays that the same be signed and sealed by the presiding Judge in this case and made a part of the record herein.
“Which is done accordingly in said County and State this 30th day of June A. D. 1939.
(Signed) Francis B. Allegretti (seal) ”

No reference is made here as to the “evidence,” nor does the trial judge purport to certify that this was all the evidence taken. This court is now confronted with the problem of deciding an issue of fact without knowing whether the evidence presented for our consideration is all that was heard by the trial judge. The presumption, under the law, is that the trial judge heard sufficient evidence upon which to base his judgment or decree.

In Cogshall v. Beesley, 76 Ill. 445, wherein the question as to the necessity of having a certificate to show that it contained all the evidence, is discussed, it is stated: “The judge who tried the case must so certify.”

We are inclined to think that the motion made by ap-pellee to dismiss the suit was perhaps premature. It is not an entirely jurisdictional matter but one that is usually decided on the merits of the ease when considering the evidence, as we have been requested to do by the appellant. The presumption that the trial judge heard sufficient evidence, and no certificate appearing to the contrary, and no motion having been made to amend the record setting forth the certificate of the judge, if such certificate exists, we are, under such rule of law, precluded from reversing the judgment.

For the reasons herein given the order and judgment of the superior court are hereby affirmed.

Judgment and order affirmed.

Hebel, J., concurs.

(See next page.)

Burke, J.,

dissenting: Paragraph 4 of Supreme Court Rule 36 provides that the motion to strike the record shall be supported by an affidavit showing' not only that the matter complained of is not properly authenticated, but that it is, in fact, incorrect, and that injury will result to the objecting party because of its inclusion, and that unless a motion is made in the manner required by the rule, the record shall be deemed to be correct. Paragraph 2 of section 74 of the Civil Practice Act [Ill. Rev. Stat. 1939, ch. 110, § 198; Jones Ill. Stats. Ann. 104.074] provides that the trial court record shall include every writ, pleading, motion, order, affidavit and other document filed or entered in the cause, and all matters before the trial court which shall be certified as part of the record by the judge thereof, and that all matters in the trial court record actually before the court on appeal, shall be considered by the court for all purposes, but if not properly authenticated the court may order such further authentication as it may deem advisable. Subparagraph c of paragraph 1 of section 92 of the Civil Practice Act [Ill. Rev. Stat. 1939, ch. 110, § 216; Jones Ill. Stats. Ann. 104.092] provides that the reviewing court may, in its discretion, and on such terms as it deems best, order or permit the record to be amended by correcting errors, or by adding matters which should have been included. I am of the opinion that under the liberal provisions of the Civil Practice Act and the rules adopted by the Supreme Court, we should pass on the points presented on the record, such record including, of course, the report of proceedings at the trial.


author: Mr. Presiding Justice Denis E. Sullivan Burke, J.,

text:
    Hiram J. Buchanan et al., Appellees, v. Harry H. Stephens et al. Appeal of Harry H. Stephens, Appellant.
    Gen. No. 40,985.
    Heard in the third division of this court for the first district at the October term, 1939.
    Opinion filed April 10, 1940.
    Philip Baim, of Chicago, for appellant.
    Harry K. Ward, of Chicago, for appellees.
   Mr. Presiding Justice Denis E. Sullivan

delivered the opinion of the court.

Defendant Harry H. Stephens brings this appeal from a judgment entered in the superior court in favor of plaintiffs and against Harry H. Stephens and Nelda M. Stephens upon two notes signed by the defendants on November 2, 1923 and November 12, 1925, respectively, the face value of the first note was for $500 and the second note was for $400, each to bear interest at the rate of 6 per cent per annum. Both notes were due on demand. Suit was commenced on December 20, 1938.

The reverse side of the note dated November 2, 1923, contained the following notation: “Reed $30.00 acct on note. Reed payment $50.00 on acct notes Nov. 1st, 1934 by check, Harry H. Stephens. ’ ’

On the reverse side of the note dated November 12, 1925, appeared the following notation: “Dec. 5, 1935, reed, payment $50.00 on notes, by check, Harry H. Stephens.”

In none of the pleadings filed by plaintiffs is there any allegation or claim that the notations made on the notes represent payments which were made by defendant on said notes, and thereby prevented the running of the statute of limitations.

A petition was filed by the defendant which was stricken by the court and two subsequent amended petitions, containing substantially the same allegations, were stricken by the court. The final order of the court dated June 9, 1939, denied the third amended petition and it is from such order that this appeal is taken.

In his amended petition filed March 1, 1939, Harry H. Stephens alleges in substance that on December 22, 1938, a judgment by confession was entered against him in the superior court for $1,515.20; that an execution had been served upon him on January 7, 1939, which was the first notice petitioner had that the aforesaid judgment had been entered against him; that this petition is not made for the purpose of delay and that petitioner has been diligent in filing his petition and comes into court without laches and has a good and meritorious defense.

Said amended petition further alleges that the two notes, payable on demand, which are the subject of the suit, were executed and aré dated November 2, 1923 and November 12, 1925, respectively, and that no payment has been made by petitioner on account of said notes, from the date of the execution thereof, nor has petitioner given or made any new promises or undertakings since the execution of said notes to pay same; denies that he paid $30 or any other amount on the aforesaid note dated November 2, 1923, and avers that any indorsement appearing on said notes was placed there without his knowledge and consent and that no payment was made by petitioner on said note or otherwise, and that said alleged indorsement was made without any consideration.

Said amended petition further denies that the petitioner paid the sum of $50 or any other amount on account of the aforesaid notes on November 1, 1935, or on any other date by check or otherwise and petitioner avers that any indorsement appearing on said note, dated November 12,1925, was placed there without his knowledge and consent and that no payment was made by petitioner on the said*notes or otherwise, and that said alleged indorsement was made without any consideration; that the cause of action did not accrue to plaintiff, at any time, within 10 years next, before the commencement of this action, and that plaintiffs’ said action is barred by the statute of limitations. Petitioner prays that the court set aside and vacate the judgment heretofore entered against him and stay the execution and that petitioner be allowed to file his appearance and that the said petition stand as an answer to the complaint.

From a review of these pleadings, it is quite apparent that if the defense had been permitted to offer and proved the allegations of his petition, that the statute of limitations would be a defense to the claim of the plaintiffs. While judgments should not be permitted to be vacated and easily set aside, without a showing of a meritorious defense, this being largely discretionary with the court, yet when such meritorious defense appears from the pleadings, and no fault appearing on the part of defendant, it is the duty of the court to give a defendant an opportunity to have his day in court. We think in this case that justice would be more nearly served if defendant had been given an opportunity to be heard. We believe that the court should have so ruled and his failure to do so was error.

For the reasons herein given the order of the superior court is reversed and the cause is remanded with directions to open said judgment to the extent of permitting the defendant to enter his appearance, file proper pleadings and the evidence to be presented and the cause tried on the issues presented by the plaintiffs and defendant, the present judgment to stand as security until the final determination of the suit. Order reversed and cause remanded with directions.

Hebel, J., concurs.

Burke, J.,

dissenting: Buie 26 of the Supreme Court provides that a motion to open a judgment by confession shall be supported by affidavit in the manner provided by rule 15 for summary judgments. Under the provisions of rule 15 it was incumbent upon appellant to support his motion to open the judgment by a verified petition or affidavit made on his personal knowledge, and that the petition set forth with particularity the facts upon which his defense is based; which petition shall not consist of conclusions but of such facts as shall be admissible in evidence, and shall affirmatively show that the affiant if sworn as a witness, can testify competently thereto. If all the facts to be shown are not within the personal knowledge of the petitioner, two or more affidavits may be used. The petitioner in the instant case avers that “at no time since the execution of said note has he made any payments or given any moneys to the said plaintiff, without the specific direction as to the application of said moneys, and denies that any said funds or moneys so given to plaintiff were to apply upon said note.” This aver- • ment is equivalent to saying that he did make payments or give moneys to the plaintiff but without specific direction as to the application of the moneys. The further denial that any funds or moneys so given to the plaintiff were to apply upon «the.note, is a mere conclusion. In his briefs the defendant states that it is his intention that the petition be considered as one to open up the judgment with leave to plead and defend. Hence, he concedes that on the face of the record the court had a right to enter the judgment. The only basis for his appeal is that the court committed error in dechning to open up the judgment. As his motion is one to open up the judgment, rather than to vacate the judgment, the sufficiency of the complaint is not questioned. It will be observed that attached to the complaint as an exhibit are the notes sued upon. The reverse side of the notes bear indorsements of payments on account thereof by check of Harry H. Stephens, the defendant. In the ordinary course of business, the canceled check, after clearing through the bank, would be returned to the defendant. The petition does deny that the defendant made the indorse-ments on the reverse side of the note, and also denies that he at any time made a payment which he directed to be applied on the note. However, if there were no other transactions between the parties and he did not owe anything to the plaintiff other than the debt represented by the notes sued on, it logically follows that the payment made could only apply on the notes. A judgment by confession should not be opened up unless the defendant shows that he has a defense in accordance with the provisions of rules 26 and 15. The trial court gave him four opportunities to set out the facts. All he did was to state conclusions. It would be a simple matter for the defendant, if he had a defense, to set out the ultimate facts, showing, if he could, what payments he made and when, and what amounts were owing from the defendant to plaintiff at the time of such payments. Under sec. 17, ch. 83, Ill. Rev. Stat. 1939 (section 16, Limitations Act [Jones Ill. Stats. Ann. 107.276]) actions on promissory notes shall be commenced within 10 years after the cause of action accrues, but if any payment on any note is made within or after the period of 10 years, then an action may be commenced at any time within 10 years after the time of such payment. The defendant herein denies that he indorsed the notation of payment on the reverse side of the note. The complaint does not purport to aver that the indorsement as to payment was made by defendant. Under the statute it is not necessary that the indorsement of payment shall be made by the defendant. All that is necessary is that payment be made on the note. There must be an actual affirmative intention on the part of the debtor to make payment on the note. However, if at the time of payment there was no other debt owing by defendant to plaintiff on which the payment could be applied, it would be quite clear that it was intended to be applied on the note. The defendant did not comply with the provisions of rules 26 and 15 and the superior court of Cook county was right in refusing to grant him leave to defend, allowing the judgment to stand as security. He is entitled to a trial when there is an issue to be tried.