author: Mr. Justice Hall

text:
    In re Estate of Anna M. Hebblethwaite, Deceased. J. Edward Hebblethwaite, Appellant, v. Leon L. Hebblethwaite, Appellee.
    Gen. No. 39,568.
    Opinion filed February 2, 1938.
    Elliodor M. Libónati, of Chicago, for appellant; Abraham Miller, of Chicago, of counsel.
    McNab, Holmes & Long, of Chicago, for appellee; Albert S. Long and F. Reed Dickerson, both of Chicago, of counsel.
   Mr. Justice Hall

delivered the opinion of the court.

On April 24, 1934, letters testamentary were issued to Leon L. Hebblethwaite, as executor of the last will and testament of Anna M. Hebblethwaite, deceased. From the record, it appears that the letters testamentary were issued after due proof of the execution of the alleged will had been made, and without objection.

On April 23, 1935, the following petition was filed in the probate court of Cook county:

“Petition of J. Edward Hebblethwaite states that he is the son of Anna M. Hebblethwaite, Deceased; that on February 24, 1934, the Deceased died; that on April 24, 1934, Letters Testamentary were issued to Leon L. Hebblethwaite predicated on a will which purports to be signed--by Anna M. Hebblethwaite, deceased; that petitioner is familiar with the signature of the Deceased, Anna M. Hebblethwaite and is of the opinion that the signature of Anna M. Hebblethwaite to said will is a forgery; that the petitioner has had the said signature examined by a handwriting expert and has been informed that the said signature is • a forgery; petitioner prays for an order setting aside the will so that the. estate of the Deceased may be distributed according to the laws of the state of Illinois and for an order finding that said will is null and void. Said petition is signed and sworn to by J. Edward Hebblethwaite, April 29, 1935.” Thereafter, on February 10, 1936, the following order and recitation were entered by the probate court of Cook county:

“Order entered by Probate Court on February 10, 1936, recites that this cause came on to be heard upon the motion of the attorneys for Leon L. Hebblethwaite, executor, to strike the petition of J. Edward Hebble-thwaite filed herein on April 23, 1935, and it appearing to the court upon the records of this court, that the said petitioner was present by counsel in court when said will was offered for. probate and participated in the hearing .upon the. offer of the said will for probate, and that more than twenty days had elapsed at the time of the filing of the petition after the time at which the said will was admitted to probate; that no appeal from said order of admission to probate has been taken by said petitioner, it is ordered that said petition of J. Edward Hebblethwaite be and the same is hereby stricken.” From this order an appeal was taken to the circuit court of Cook.county, and.on March 10,1937, that court dismissed the appeal for want of jurisdiction. . From the last mentioned order, an appeal was taken to this court.

The only provisions in the statute giving authority to the probate court to revoke letters testamentary after the same have been issued, are as follows (Ill. Rev. Stat. 1937, ch. 3, secs. 29 and 30, §§30 and 31; Jones Ill. Stats. Ann. 110.030, 110.031):

“Sec. 29. In all cases where a will, testament or codicil shall have been proved and letters granted thereon, as aforesaid, and such will shall thereafter be set aside by due course of law, the letters granted thereon shall be revoked. (Italics ours.)

“Sec. 30. The county court may revoke all letters, testamentary or of administration, granted to persons who become insane, lunatic or of unsound mind, habitual drunkards, are convicted of infamous crimes, waste or mismanage the estate, or who conduct themselves in such manner as to endanger their co-executors, co-administrators or securities, in all which cases the court shall summon the person charged to be in default or disqualified, as aforesaid, to show cause why such revocation should not be made. When revocation is made, the reason therefor shall be stated at large upon the record.”

Chapter 148, § 7, Ill. Rev. Stat. 1937; Jones Ill. Stats. Ann. 110.219, is, in part, as follows:

‘ ‘ When any will,. testament or codicil shall be exhibited in the County Court for probate thereof as aforesaid, it shall be the duty of the court to receive the probate of the same without delay, and to grant letters testamentary thereon to the person or persons entitled, and to do all other needful acts to enable the parties concerned to make settlement of the estate at an early day as shall be consistent with the rights of the respective persons interested therein:

“Provided, however, that if any person interested shall within one (1) year after the probate of any such will, testament or codicil in the County Court as aforesaid, appear and by his or her complaint in chancery contest- the validity of the same, an issue at law shall be made up whether the writing produced be the will of the testator or testatrix or not, which shall be tried by a jury in the Circuit Court of the county wherein such will, testament or codicil shall have been proven and recorded as aforesaid, according to the practice in other civil cases; but if no such person shall appear within the time aforesaid, the probate, subject to the provisos hereinafter set forth, shall be forever binding and conclusive on all parties concerned, saving to infants or non compos mentis, the like period after the removal of their respective disabilities.”

In Munroe v. People, 102 Ill. 406, the county court of Will county attempted to revoke letters of administration already issued, and on the question as to the power of the court to revoke, the Supreme Court said: “On inspection of the transcript of the proceedings of the county court, in which the supposed revocation of her letters occurred, we are of the opinion that the order of revocation was and is utterly void, and of no effect whatever.” In this same case, after citing and quoting section 30 of the Administration Act hereinbefore referred to, the Supreme Court further said:

“These are the cases, [those provided by statute] and (so far as called to our attention) the only cases, wherein power is given by statute to the county court to remove an administrator and revoke and repeal his letters of administration. • Until some one of the causes mentioned in the statute is placed before the court for action, the court has no power to act at all in this regard, — has no jurisdiction to act. To render the judgment of any court valid, it is essential that such court shall have jurisdiction of the person, and also of the subject matter. Looking at the full transcript, we find that when the county court made the order revoking the letters granted to Mrs. Osgood, that court had neither. ’ ’

In Clark v. Patterson, 214 Ill. 533, in a case very similar to the instant case, the Supreme Court said: “The legislature has not deemed it wise to confer on

the courts unrestricted power to revoke letters of executorship, but has expressly declared the grounds on which such revocation may be ordered. It is only when one or more of such statutory causes are properly brought before the court for judicial action thereon that the courts have jurisdiction to revoke letters of administration or letters testamentary. (Munroe v. People, 102 Ill. 406.) The statutory grounds for revocation of letters testamentary are, that the will has been set aside by ‘due course of law,’ (sec. 29); that the executor has ‘become insane, lunatic or of unsound mind, habitual drunkards, are convicted of infamous crimes, waste or mismanage the estate, or who conduct themselves in such manner as to endanger their co-executors, co-administrators or securities,’ (sec. 30,) and the effect of removal from the State is set forth in sections 31 and 32. Some one or more of the causes enumerated in section 30 must, of course, be relied on as grounds for revocation as applied to this case.”

See also In re Last Will and Testament of Graney, 245 Ill. App. 407.

In the instant case; the probate court had no power to revoke the letters testamentary, except that given by section 30 of the act quoted, and we are of the opinion that the only remedy provided by law for contesting the validity of this will after the same had been admitted to probate and letters testamentary had been issued thereon, is that provided by ch. 148, § 7, Ill. Rev. Stat. 1937; Jones Ill. Stats. Ann. 110.219, entitled, “Wills.” The probate court was correct in its finding and order, and the circuit court was right in dismissing the appeal. The judgment is, therefore, affirmed.

Affirmed.

Hebel, P. J., and Denis E. Sullivan, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    People of the State of Illinois, Appellant, v. Clarence DuBois, Appellee.
    Gen. No. 39,662.
    Opinion filed February 2, 1938.
    Thomas J. Courtney, State’s Attorney, for appellant. Edward E. Wilson and Amos P. Scruggs, Assistant State’s Attorneys, of counsel.
    No appearance for appellee.
   Mr. Justice Hall

delivered the opinion of the court.

Upon a hearing on a petition in the nature of a writ of error cor am nobis, filed on March 15,1937, by which it was sought to vacate and annul a finding and judgment of the municipal court of Chicago theretofore entered, where the court had found that defendant, Clarence DuBois, was guilty of an assault with a deadly weapon upon Betty DuBois, the court granted a new trial, and after a second hearing, entered the following order and judgment: ‘ ‘ The court finds the defendant, Clarence DuBois, guilty in manner and form as charged in the information herein. Wherefore it is ordered that the same be entered of record herein.” It is recited in the abstract that after the latter judgment was entered, “the court, upon application for probation, released the defendant on his signing recognizance in the sum of $500.00 for one year. The cause was to stand continued for one year, defendant to be under the probational care of the Chief Probation Officer of Cook County under the terms and condition that he violate no criminal law of Illinois, or ordinance of any municipality, etc.” This appeal is by the People of the State of Illinois from the' judgment and order mentioned.

The facts are as follows: On December 30, 1936, and after a hearing by the court upon an information charging the defendant with being guilty of the crime charged, the defendant was found guilty and sentenced to the house of correction of the city of Chicago for one year and fined $1 and costs. The bailiff was ordered to take defendant from the bar of the court and deliver him to the superintendent of the house of correction, which was done. Thereafter, on March 15, 1937, defendant filed a verified petition under section 72 of the Practice Act, Ill. Rev. Stat. 1937, ch. 110, § 196; Jones Ill. Stats. Ann. 104.072, and as provided for in the Municipal Court Act, Ill. Rev. Stat. 1937, ch. 37, §§ 356-426; Jones Ill. Stats. Ann. 108.027-108.095 wherein, (as the abstract recites) he states that at the time of the alleged assault, “that he, defendant, and his wife, Betty DuBois were having an argument and that the complainant, Betty DuBois, called the defendant a bad name; that he turned to grab her and she ran out of the room, fell and struck her head on the steps; that the said Betty DuBois, upon advice of friends, got a warrant for the defendant’s arrest for assault with a deadly weapon.” In this petition, defendant also alleges that at the time of the first hearing, he was without counsel to defend him and that he was not aware that he was to be charged with assault with a deadly weapon, and that at the time of the assault there was no one present but the petitioner and his wife, Betty DuBois. Accompanying the petition is the affidavit of Betty DuBois, in which she states that “she swore falsely with reference to the injury to her scalp, and that her husband did riot hit her on the head with a deadly weapon, that she fell and hit her head on the steps, and that ‘I am sorry of the mistake for I did not intend to mislead the court or tell a falsehood but I did state to the police officers that he was the cause of my running and falling.’ ” The State’s attorney moved to dismiss the petition, which motion was denied.

In People v. Bruno, 346 Ill. 449, the defendant was charged with robbery while armed with a pistol, and after trial, was found guilty and sentenced to the reformatory at Pontiac for a term of from one year to life. Thereafter, a petition similar to the petition filed here, was presented to the criminal court of Cook county, and upon demurrer, the petition was dismissed. On appeal to the Supreme Court, that court affirmed the order of the criminal court, and said:

“While the writ of error dor am nobis has been abolished, the same errors which at the common law could have been corrected by that writ may now be corrected under section 89 of the Practice act, upon motion in writing, by the court in which the error was committed. The office of the writ of error coram nobis was to bring the attention of the court to and obtain relief from errors of fact, such as the death of either party pending the suit and before judgment therein; or infancy, where the party was not properly represented by guardian; or coverture, where the common law disability still exists; or insanity, it seems, at the time of the trial; or a valid defense existing in the facts of the case but which, without negligence on the part of the defendant, was not made, either through duress or fraud or excusable mistake, these facts not appearing on the face of the record and being such as, if known in season, would have prevented the rendition and entry of the judgment questioned. (People v. Noonan, 276 Ill. 430.) The motion, however, is not available to review questions of fact which arise upon the pleadings or to correct errors of the court upon questions of law. (Jacobson v. Ashkinaze, 337 Ill. 141.) The motion under section 89 is an appropriate remedy in criminal cases to set aside a conviction if obtained by duress or fraud, or where by some excusable mistake or ignorance of the accused, and without negligence on his part, he has been deprived of a defense which he could have made at his trial, and which, if known to the court, would have prevented a conviction. (People v. Moran, 342 Ill. 478; People v. Crooks, 326 id. 266.) While the motion provided for in section 89 of the Practice act to correct errors of fact may be availed of by a party who without fault or negligence has been prevented from making a defense, yet the motion is not intended to relieve a party from the consequencés of his own negligence. (McCord v. Briggs & Turivas, 338 Ill. 158; Cramer v. Commercial Men’s Ass’n, 260 id. 516.) All of the facts stated as grounds for relief in plaintiff in error’s petition or motion were facts which were known to him at the time of his trial in the criminal court on the charge of robbery and they were not brought to the attention of the court by reason of his negligence. Plaintiff in error, therefore, could not obtain this relief by his petition or motion under section 89 of the Practice act, and the criminal court properly sustained the demurrer filed by the State’s attorney to the petition.” See also People v. Nakielny, 279 Ill. App. 387.

In People v. Fisher, 303 Ill. 430, one Hyman DeVorken, on April. 22, 1921, after a hearing in the municipal court of Chicago, was found guilty on a charge of carrying upon his person a concealed deadly weapon, to wit, a loaded revolver, and was sentenced to the house of correction of the city of Chicago for a term of one year. On December 13, 1921, a writ of habeas corpus was issued out of the circuit court, and upon a hearing De Yorken was discharged. Thereupon, and upon a petition of the people, a writ of mandamus issued out of the Supreme Court, directing the circuit court of Cook county to expunge the order discharging De Yorken, and in passing upon the power of the circuit court to act in the premises, the Supreme Court said: “The offense with which De Yorken was charged was a misdemeanor punishable by a fine or imprisonment in the county jail, or both. The municipal court clearly had jurisdiction of the subject matter and of defendant, and when this appeared the circuit court should have refused to entertain the petition for a writ of habeas corpus. . . . From the order that was entered in the habeas corpus proceeding it appears that the judge used the writ to release the prisoner on parole. The law of this State vests the authority to pardon or parole in another department of the government and the judiciary have no right to usurp this power. The order of Judge Fisher being absolutely void, this court has the clear right, and it- is its duty, to order him to expunge the void order from the records. People v. Zimmer, 252 Ill. 9; People v. Green, 281 Ill. 52; People v. Windes, 283 id. 251.” (Italics ours.) .

Chapter 37, § 376, sec. 21, Ill. Eev. Stat. 1937; Jones Ill. Stats. Ann. 108.046 (municipal court of Chicago) provides:

‘ ‘ That there shall be no stated terms of the Municipal Court, but said court shall always be open for the transaction of business. Every judgment, order or decree of said court final in its nature shall be subject to be vacated, set aside or modified in the same manner and to the same extent as a judgment, order or decree of a circuit court during the term at which the same was rendered in such circuit court, provided a motion to vacate, set aside or modify the same be entered in said Municipal Court within thirty days after the entry of such judgment, order or decree. If no motion to vacate, set aside or modify any such judgment, order or decree shall be entered within thirty days after the entry of such judgment, order or decree, the same shall not be vacated, set aside or modified excepting upon appeal or writ of error, or by a bill in equity, or by a petition to said Municipal Court setting forth grounds for vacating, setting aside or modifying the same, which would be sufficient to cause the same to be vacated, set aside or modified by a bill in equity: Provided, however, that all errors in fact in the proceedings in such case, which might have been corrected at common law by the writ of error coram nobis may be corrected by motion, or the judgment may be set aside, in the manner provided by law for similar cases in the circuit courts.” It is to be noted that by the very terms of this act, the municipal court of Chicago is deprived of the power to vacate a judgment after 30 days, except in cases where “errors of fact . . . which might have been corrected at common law by the writ of error coram nobis ... or in the manner provided by law for similar cases in the circuit courts.” There is no showing made here which brings this case within the exception noted in the statute.

As to whether or not the petitioner’s statement that he was not represented by counsel at the first hearing was sufficient ground for the court to vacate the judgment and grant a new trial, see People v. Williams, 293 Ill. App. 92, and cases there cited. We hold that it is not sufficient.

From the record before us, we conclude that in the case at bar, at the last hearing no evidence was heard by the court other than that adduced at the first hearing. We say this in spite of the fact that the court, in its finding on the hearing of the petition, recites that evidence was heard. If, however, any evidence was heard, it is not in the record, and if heard, was apparently not convincing, since the court again found defendant guilty of the offense with which he was originally charged.

We are of the opinion that the court was in error in vacating the first judgment, in granting a new trial, and in placing the defendant on probation. After the expiration of 30 days from the entry of the judgment, the court was without jurisdiction to enter any order in the case, other than such order as the statute quoted, allows. Further, section 21 of the Municipal Court Act does not give that court power to order a new trial under any circumstance after the prisoner has begun serving his sentence, even though the order be made within 30 days of the entry of the judgment. (People v. Whitman, 277 Ill. 408.)

The effect of the order appealed from was to release the defendant from the penalty imposed, which the court was without power to do. The procedure used here has become quite common in some of the courts, and should cease. It is, in effect, usurping the power to pardon. The judgment is, therefore, reversed and the cause is remanded with the direction that the court order the remandment of the defendant to serve out the term of imprisonment, and to pay the fine originally imposed.

Reversed and remanded with directions.

Hebel, P. J., and Denis E. Sullivan, J., concur.


text:
    People of the State of Illinois, Defendant in Error, v. Clement Amore et al., Plaintiffs in Error.
    Gen. No. 39,686.
    Opinion filed February 2, 1938.

      Thomas Marshall, of Chicago, for plaintiffs in error.
    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. Justice Hall

delivered the opinion of the court.

Defendants, Edna Sulli, Dorothy Berger and Rose Amore, as judges, and Nancy Delmonico and Kate Paldo, as clerks, of a primary election held in the 4th precinct of the 20th ward in the city of Chicago on April 14, 1936, together with Barney Siegel, John Zittello and Sanders Caravello, as watchers, were found guilty of a charge of conspiracy to violate the election laws in a trial in the criminal court of Cook county before a jury. After a written motion for a new trial had been entered and overruled,' Clement Amore, Barney Siegel, John Zittello, Sanders Cara-vello and Dorothy Berger, were each sentenced to serve a term in the Illinois penitentiary of not less than one year and not more than five years, and Edna Sulli, Rose Amore and Nancy Delmonico were each ordered to pay a fine of $200. The written motion for a new trial filed in the cause, is as follows :

“Now come the defendants above named and move the Court to grant a new trial in the above entitled cause for the reason that the above defendants were convicted without proof beyond every reasonable doubt. That said conviction was the result of prejudice on the part of the jury impanelled herein.

“These defendants further show unto your Honor as a reason for a new trial that the indictment in this case concludes ‘Contrary to Law’ rather than ‘Contrary to Statute.’

“These defendants further represent unto -your Honor that the jury were also prejudiced by reason of the inflammatory remarks of the Assistant State’s,Attorney who tried the cause herein.

“As a further reason for a new trial, these defendants represent unto your Honor that the jury in this cause were carried away and inflamed by a passion and prejudice, a further discussion of which will be presented to the Court upon the oral hearing on this Motion. ’ ’

In People v. Hatcher, 334 Ill. 526, we find the following :

‘ ‘ Complaint is made of the first, thirteenth and fourteenth instructions on behalf of the People. No question was raised in the trial court as to the first and thirteenth instructions. Defendants filed a written motion for a new trial and a written motion in arrest of judgment, in both of which they complained that the court was in error in giving the fourteenth instruction but no error was assigned as to any other instruction. Under the practice in this State, decisions of the court made in the progress of the trial upon instructions, objections to evidence, or other matters of law arising in the cause which have been incorporated in a bill of exceptions, may be assigned for error and reviewed by an appellate court without any motion for a new trial. They are not waived by making a motion for a new trial if such motion is submitted without any points stated in writing, but after a motion is made for a new trial and the grounds thereof are stated in writing the party is limited to the errors alleged in the written motion and all other errors are deemed to have been waived. (Chicago City Railway Co. v. Smith, 226 Ill. 178; Yarber v. Chicago and Alton Railway Co., 235 id. 589; People v. O’Gara, 271 id. 138; People v. Cione, 293 id. 321; People v. Perlmutter, 306 id. 495; People v. Vickers, 326 id. 290; People v. Gabrys, 329 id. 101.)” (Italics ours.)

The Practice Act (Ill. Rev. Stat. 1937, ch. 110, § 192; Jones Ill. Stats. Ann. 104.068) among other things, provides that “If either party may wish for a new trial . . . he shall before final judgment . . . within such time as the court may allow ... by himself or counsel, file the points in writing, specifying the grounds in such motion. . . .”

The evident purpose of this act, and the reason for the holding of the Supreme Court in the various cases cited, in our opinion, is that the trial court be given an opportunity to correct its own errors, and that if such opportunity is not given, then and in that case, no errors, other than those noted in the written motion, may be urged in. a court of appeal.

One of the points raised by the defendants in the motion for a new trial is that “the indictment in this case concluded contrary to law rather than contrary to statute.” It will be noted that no other or further objection was made to the indictment.

In People v. Curran, 286 Ill. 302, a number of persons were found guilty of the crime of conspiracy. They were all members of certain labor unions — the Painters’ District Council, the Glaziers’ Union, the Wood Finishers’ Union and the Fixture Hangers’ Union. The alleged scheme was to extort money from owners of property desiring to have painting or glazing done, in order to have their properties taken off of a black list. Objection was made to the indictment, which charged an offense under the Criminal Code, that it should have concluded against the form of the statute instead of, as here, contrary to law, and the Supreme Court said:

“If an act is an offense both against the common law and the statute, the prosecutor may proceed under either the statute or the common law or both. (Chicago, Wilmington and Vermilion Coal Co. v. People, 214 Ill. 421.) It was not necessary, to constitute the offense of conspiracy at common law, that the object of the conspiracy should constitute a criminal act, but it was sufficient if the object was unlawful though not indictable. (Smith v. People, 25 Ill. 17.) ” (See also People v. Maloney, 132 Ill. App. 184.)

In Smith v. People, 25 Ill. 17, the Supreme Court said:

“To attempt to define the limit or extent of the law of conspiracy, as deducible from the English decisions, would be a difficult if not an impracticable task, and we shall not attempt it at the present time. We may safely assume that it is indictable to conspire to do an unlawful act by any means. . . . ”

Counsel do not contend that the indictment did not sufficiently charge a conspiracy to do an unlawful act, but, as stated, object to the fact that it concludes “contrary to law” instead of “contrary to statute.” We think the objection is hypercritical, and is without merit.

In the written motion for a new trial, the misconduct of counsel for the State, and the prejudice of the jury, are noted, but as these errors are not suggested here, they will be disregarded. Many other errors are suggested here, based upon instructions and matters incorporated in the certificate of evidence, but as they were not mentioned in the written motion for a new trial, they also will be disregarded.

It is insisted by counsel for defendants that “there is no credible evidence of guilt of defendants.” Most of defendants’ contentions as to the last mentioned proposition are predicated upon testimony adduced in another case, No. 39710 in this court, which is an appeal from a judgment of the county court, wherein defendants were found guilty of contempt of court. Of course, none of the evidence adduced in that case was before the jury in the instant case, and cannot be considered here.

E. E. Haythorne, a witness for the State in the trial in the criminal court in the instant case, testified to the effect that he was a watcher at the election in question ; that he arrived at the polling place at about 5:30 in the morning and that he left at about 1:45 the following morning; that he saw all the defendants there during the time the election was being held; that Dorothy Berger took charge of one of the registers and Edna Sulli took charge of the other; that the witness observed voters asking for instructions; that when the first of these voters asking for instructions, took a democratic ballot, Dorothy Berger took the ballot, went into the booth, marked it, brought it back, gave it back to the person who was voting, and that this person put it in the ballot box, and that he saw Dorothy Berger do this thing about 70 times during the day; that on most of these occasions, no other member of the board went into the booth with her. He also stated that on a number of other occasions, he could not remember whether the voter went into the booth with Dorothy Berger or not, but that on many occasions, she picked up the ballot, went into the booth, marked the ballot, brought it out and gave it to the voter, who deposited it in the box, as stated; that he saw Bose Amore go into the voting booth with other voters about 70 times; that he saw John Zittello at the polling' place, and that about midafternoon of election day, he, Henry L. Hill, a witness hereinafter mentioned, and Zittello had a conversation; that Zittello told the witness and Hill that he, Zittello, would like to put some votes through, and asked the witness if he, Zittello, would be allowed to do so, and that Zittello said, “We will make this worth your while if you will allow us to do it.” This witness further testified to the effect that when the polls closed at 5 o’clock in the afternoon, he looked at the poll books and observed that the last name written on the books at that time was that of Mary Sasso, opposite line 473; that later in the evening, he saw the poll books and that there were other names added, and that the last number on the poll book at that time was 511; that after the polls were closed and the counting had begun, Dorothy Berger called, off the names of the candidates to the clerks for about an hour, and that during the rest of the evening, John Zittello and Clement Amore called them off; that Clement Amore handled the ballots, and that he would look at the ballot and call off the name, but “not all the names on the ballot”; that during the evening Caravello said: “Why doesn’t my candidate Vacco get more votes?” Barney Siegel answered him, stating, “Pipe down, we have our orders.” On further examination, this witness stated that he was a student at the University of Chicago; that a man named Mc-Queeny came out to the University and gave him his credentials as a watcher, and that McQueeny delivered a lecture on the proper procedure to be carried on by boards of election; that he was hired by McQueeny and received $10 for his services, to be paid by Mc-Queeny; that he made pencil notes of matters that occurred during the election; that Dorothy Berger was the democratic judge; that he saw Clement Amore vote more than once, and distinctly remembered the first and second time he voted; that 140 persons voted by instruction given to the voters by either Dorothy Berger or Bose Amore, and that only 81 affidavits of illiterate voters were made out.

Henry Hill, a witness for the State and a watcher at the election in question, testified to the effect that he arrived at the polling place about 6 o’clock in the morning, and that the people officiating at the polls at that time were Dorothy Berger, Edna Sulli, Kate Paldo, Nancy Del Monico and Bose Amore; that Edna Sulli handled the register and that Bose Amore wrote the names in the poll books; that Kate Paldo handled one register and also wrote in the poll books; that voters asked for and received instructions; that when a democratic voter asked for assistance, Dorothy Berger rendered assistance by going into the booth alone with the voter, and that no other board member went with her, and that when a republican voter asked for assistance, Bose Amore went into the booth with such voter, and that no other judge or clerk went with her; that Dorothy Berger rendered assistance to 40 or-50 voters, and that Bose Amore rendered assistance to about the same number; that he saw Clement Amore vote early in the morning, and that he saw him vote again later in the day. This witness identified John Zittello and testified that he had a conversation with him at the polling place about 3 o’clock in the afternoon, at which Mr. Haythorne was present; that Zit-tello told them that he, Zittello, had a certain number of votes to get through, that it was getting late, and that he wanted to know if he could rush a few through in a hurry, that the board was afraid to do anything because of the presence of the witness and Haythorne, and that if he, the witness, and Haythorne would permit him to do so, it would mean a few dollars to them, and that when they refused to accede to the request, Zittello turned to them and said: “Well, let us let the whole thing drop.” Both Haythorne and this witness testified that Zittello and Clement Amore took part in handling, counting and tallying the ballots, and that a man named Sulli, husband of one of the judges, together with Barney Siegel, handled other ballots, and that he saw Sanders Caravello sitting next to Sulli, marking X’s in the sections opposite the name of Carmen Vacco.

Twenty-three witnesses,, whose names appear on the poll books as having voted at this election, testified that although they were registered voters, they did not vote at the election in question. Several witnesses, voters, testified that they asked for a ballot, received it, and asked for instructions, and that but one judge went into the booth with them. A handwriting expert testified that since the election, he had examined approximately 500 ballots; that he observed one democratic ballot which bore a number of crosses marked by a red pencil, and that he also found on this same ballot, a cross marked before the name of Carmen Yacco, made by a black graphite pencil. He also testified that a number of ballots had crosses before the name of Yacco, which were made by a different person than the one who made other crosses on the ballot. He testified that a great number of ballots were each marked by two persons.

The record indicates that the ballots in question, poll books, tally sheets and other documents referred to, were, by agreement, introduced and received in evidence. They are not in the record filed here.

Both Dorothy Berger and Bose Amore testified that they only gave instructions to a voter when requested so to do, and that on each of such occasions, one of them went into the booth with the voter. They each denied that either of them marked the ballot, each insisting that the ballot was marked by the voter. None of the defendants attempted to explain why affidavits were not requested by voters who asked for assistance, as provided by the statute, and each of the election officials denied ever hearing either Zittello or Caravello make complaint of the fact that candidates in which they were interested, were not receiving enough votes. All of the defendants denied participating in or having knowledge of any wrongdoing at the election. Several witnesses produced by defendants testified that they were assisted in voting, but that two judges, one representing each political party, accompanied them into the booth at the time they voted.

It is suggested that the court was in error in sentencing Dorothy Berger to the penitentiary, and that her conviction for that reason, should be reversed.

In People v. Gawlick, 350 Ill. 359, Tillie Gawlick was found guilty and sentenced to the Women’s Beformatory on a charge of larceny. On appeal to the Supreme Court, it was insisted that the finding of the jury in that case was erroneous, because there was no evidence adduced upon which any such verdict could be predicated. In reply to this argument, the Supreme Court said:

“Since the enactment of the statute providing for the State Reformatory for Women, approved June 30, 1927, as amended, (Smith’s Stat. 1931, chap. 23, par. 250,) any female person convicted of an offense punishable by imprisonment in the penitentiary is required to be committed to the State Reformatory for Women. The objection of plaintiff in error is without substantial merit. ’ ’

In People v. Mikula, 357 Ill. 481, Stanley Mikula was found guilty of robbery and was sentenced to “the penitentiary of this State at Joliet,” and it was claimed that the judgment was erroneous because it failed to designate the specific place of confinement, in accordance with sections 1 and 2 of the Sentence and Parole Act, (Cahill’s Ill. Rev. St, 1933, ch. 38, 1(795, p. 1089) which provides that the sentence shall be to the “Illinois State Penitentiary. ’ ’ In passing upon this alleged error, the Supreme Court said: “Section 1 of the act relates only to definite sentences for the crimes of treason, murder, rape and kidnaping. Obviously it has no application to this case. Sections 2 and 3 provide for indeterminate sentences (except to jail) for all crimes not enumerated in section 1. Section 2 provides that every such sentence ‘shall be a general sentence of imprisonment. ’ Section 3 requires that persons convicted of felony or other crime punishable by imprisonment in the penitentiary (other than minors of certain ages) shall ‘be sentenced to the penitentiary. ’ Neither section requires the court to fix a specific place of confinement.”

The jury saw and heard the witnesses, had before them the ballots and documents referred to, and in view of this fact and the state of the record, we do not feel justified in disturbing the verdict. Therefore, the judgment of the criminal court of Cook county is affirmed.

Affirmed.

Hebel, P. J., and Denis E. Sullivan, J., concur.


author: Mr. Justice Hall Mr. Justice Denis E. Sullivan

text:
    People of the State of Illinois ex rel. John S. Rusch, Appellee, v. Fred Savaiano et al., Appellants.
    Gen. No. 39,711.
    Denis Sullivan, J., dissenting.
    Opinion filed February 2, 1938.
    Thomas Marshall, of Chicago, for appellants.
    Thomas J. Courtney, State’s Attorney, for appellee; John F. Cashen, Jr., of Chicago, of counsel.
   Mr. Justice Hall

delivered the opinion of the court.

Under section 13 of art. 2 of Election Laws, (ch. 46, IT 267, Ill. State Bar Stats. 1935; Jones Ill. Stats. Ann. 43.277), a proceeding was begun in the county court of Cook county in and by which the ‘ respondents were charged with misconduct as judges and clerks in a primary election in the 31st precinct of the 20th ward in the city of Chicago, held on April 14, 1936. Each was found guilty of contempt of court, and each was sentenced to imprisonment in the county jail of Cook county for a term of one year. This is an appeal by each of the respondents from the judgment and order by which they were found guilty and sentenced.

The trial court found that Fred Savaiano, Mike Corso and Carmen Bagnola, while serving and acting as judges at such election, and Alex J. Morelli and John Cantore, as clerks, had called and recorded the votes contrary to the statute, had unlawfully assisted and acquiesced in assisting voters to vote without first examining them as to their disability and inability to vote and without requiring them to make oath concerning their disability and inability to mark their ballots; had permitted persons to vote whose names did not appear on the register; had assisted voters and had fraudulently marked ballots in the voting booths without a representative of the opposite political faith being present at such time, and without the voter asking for assistance and without the voter being illiterate; had permitted ballots to be changed after being voted, had unlawfully permitted and acquiesced in permitting 14 names to be placed upon the poll books between the hours of 4:20 and 5 :00 p. m., such 14 names not representing persons that were present and voting; had allowed liquor to be consumed in the polling place; had permitted and acquiesced in permitting William Cavico to examine the official registers, and to direct certain of the clerks of election to place the names of these 14 persons on the poll books, the said 14 persons not being the names of persons present in said polling place at the time of presenting themselves to vote; that the judges permitted and acquiesced in permitting James Prignano and William Cavico to examine the official ballots cast at the election, and fraudulently permitted James Prignano and William Cavico to alter and change the official ballots of voters, and that Fred Savaiano, Mike Corso, Carmen Bagnola, Alex J. Morelli and John Cantore each, while serving and acting as judges and clerks in the primary election, fraudulently made a false canvass, tally, proclamation and return of the votes cast in the precinct named.

Many points are presented by counsel for the respondents to support the charge that the entire proceedings in the county court, and the statute under which the proceedings are prosecuted, are invalid. An examination of the briefs filed in People ex rel. Rusch v. Williams, 292 Ill. App. 228, indicates that exactly the same points were raised and by the same counsel in that case as are raised here, and upon this subject, this court said:

“Counsel for defendants make a number of points with reference to the validity of the proceedings and of the statute. It is sufficient to say that these points have already been considered and passed upon adversely to defendants’ contentions in a number of cases. Sherman v. People, 210 Ill. 552; People v. Blackwell, 342 Ill. 223; Catherwood v. Morris, 360 Ill. 473, 479; People v. Enger,, 364 Ill. 464.” See also People ex rel. Rusch v. Rivlin, 277 Ill. App. 183, and People v. Hoffman, 116 Ill. 587.

Prior to the hearing in the county court, the respondents prayed for a change of venue, which prayer was denied. In People ex rel. Rusch v. Williams, supra, the same prayer was presented by the same counsel who represents respondents here, and the same order was entered. In that case this court said :

“It is also argued that the trial court should have granted defendants’ prayer for a change of venue. The point is without merit. Sec. 13, art. 2 of the Elections Act, Ill. State Bar Stats. 1935, ch. 46,1Í 267; Jones Ill. Stats. Ann. 43.277, makes judges and clerks of election officers of the county court, and as such liable in a proceeding for contempt for any misbehavior in their offices. We do not understand how there could be any change of venue from the court trying its own officers for contempt.”

In Crook v. People, 16 Ill. 534, in the circuit court of Peoria county, upon a bill filed in chancery, an injunction was allowed, a writ issued and served upon the defendants by the sheriff of Peoria county. Thereafter, an affidavit was filed by the complainant charging the defendants in the bill of complaint with a breach of the injunction. A writ of attachment issued compelling the defendants to appear at a rule day to answer for the breach. After a hearing, defendants entered into a recognizance for their appearance at the following term of the circuit court of Peoria county, and at this term they filed their affidavit for change of venue, and the circuit court of Peoria county entered an order changing the venue to Tazewell county. Thereafter, it was ordered by the circuit court of Tazewell county that the proceedings for contempt be remanded to Peoria county, and on appeal from this order, the Supreme Court said:

“Informations against persons for contempts, in disturbing the order of court in its presence or out of it, for breach of injunctions, and disobeying its orders and decrees, and such like, are not within the meaning, nor of the character of informations, in the 5th section of the act in relation to change of venue, Rev. Statutes, 528. Informations, within the meaning of said act, are such as are punishable under the provisions of the criminal code, upon presentment of the grand jury, informations filed ex-officio by the State’s attorneys, and on appeals from justices of the peace, etc. The order of the Peoria circuit court, changing the venue in this case, was simply void, and did not have the effect to divest the court of its jurisdiction, and no order of the Tazewell circuit court was necessary to reinstate it.”

In Lester v. People, 150 Ill. 408, a fine had been imposed upon one Lester for contempt in refusing to comply with the order of the circuit court of Cook county to produce certain books for inspection by plaintiff and his attorney, in order to enable them to prepare for trial. Upon the defendants having failed to comply with this order, an attachment was entered against them for contempt. Upon a hearing upon the attachment, Lester was fined $200, and ordered to stand committed until the fine and costs be paid. From this order, an appeal was taken to the Supreme Court, and we call attention to the fact that Crook v. People, supra, is there cited with approval, upon the question as to what is a civil and what is a criminal contempt. Upon this question, the Supreme Court, in Lester v. People, supra, said: “We are of the opinion that this proceeding, although criminal in form, is purely a civil remedy, intended to enforce the private right of the party litigant. There is, as held in Howard v. Durand, 39 Gra. 358, a clear distinction, both upon principle and by the authorities, between that class of cases where it is sought to vindicate the authority or dignity of the court, and those where the proceeding is remedial, and intended to compel the doing or omission of an act necessary to the administration of justice in enforcing some private right. In The People v. Compton, 1 Duer, 572, it is said that ‘a solid and obvious distinction’ exists between contempt cases strictly, and those acts denominated contempts which are punished as such only for the purpose of enforcing a civil remedy. In Crook v. The People, 16 Ill. 534, we said: ‘Proceedings as for contempt are recognized as a right of the party in interest, and distinguishable from merely criminal contempts. ’ ” Numerous cases are cited in support of the court’s finding.

The proceeding in this case, as stated by this court in Rusch v. Williams, supra, is purely statutory. In the section of the act referred to, to wit: section 13, art. 2 of the Elections Act, Ill. State Bar Stats. 1935, ch. 46, H 267; Jones Ill. Stats. Ann. 43.277, after providing for the manner of appointing judges and clerks of election, and the confirmation of their appointment by the county court, it is provided that: “After confirmation and acceptance of such commission, such judges and clerks shall thereupon become officers of such court and shall be liable in a proceeding for contempt for any misbehavior in their office, to be tried in open court on oral testimony in a summary way, without formal proceedings, but such trial or punishment for contempt of court shall not be any bar to any proceedings against such officers, criminally, for any violation of this act. ” (Italics ours.)

In Johnson v. Von Kettler, 84 Ill. 315, the Supreme Court, in passing upon the question as to the jurisdiction and power of county courts, said: “Power [of county courts] to imprison is a special," statutory power, and can be exercised only in the cases and in the manner specifically prescribed by the statute.”

In Sherman v. People, 210 Ill. 552, an appeal from a contempt order was entered under the same section of the statute as is invoked here and for substantially the same offense as is charged against these defendants, 'and the question was raised there as to the power of the county court to punish for contempt under this statute. In upholding the right of the county court to so act, the Supreme Court said: “It has . . . always been the right of courts of record to punish for contempt, not by virtue of any specific legislative authority, but by the common law; and in recent years this power has been greatly enlarged so as to cover a multitude of cases, some of which are not entirely judicial in their nature. Courts have power to punish, in certain cases, administrators, executors, guardians, masters in chancery, reporters, sheriffs, bailiffs, clerks, jurors, attorneys and receivers. Some of these are merely ministerial officers of the court, charged with no duties which are judicial in their character, and yet where a court appoints officers to act with reference to the subject matter committed to it for administration, it is necessary that these officers should be concerned with the judicial conduct of the court, and hence guilty for violation of the same. . . .

‘ ‘ The misbehavior referred to in the statute does not mean any misbehavior at the mere caprice of the county court, but refers to misbehavior of the judges in connection with the duties of their office, — to conduct in violation of the law and the instructions which they have received concerning their duties.”

In the case at bar, we are of the opinion that the contempt charged here is in the nature of a criminal contempt; that the purpose of the statute is that in case of its violation, the penalty provided may be" imposed in order to vindicate the authority of the court with respect to matters connected with the holding of elections, and that it is distinguished from the class of cases where the proceeding is remedial. See People v. White, 334 Ill. 465, Also, our opinion is that the court was not in error in refusing to grant the change of venue.

It is also urged by counsel for respondents that the court had no right to recount the ballots, nor to consider the tally sheets, ballots and other documents and papers used in the election, showing the returns made by these officials, but that under the statute, nothing but oral evidence should have been received upon the charge made. The same counsel, in People ex rel. Rusch v. Williams, supra, in the county court and here, urged this same point, and this court there said:

“It is also said that the trial court had no authority to recount the ballots as the proceedings contemplate a hearing ‘on oral testimony’ exclusively. We do not read the statute as limiting the character of evidence which may be submitted in this proceeding. It is self-evident that the court must, in passing upon the charges, consider the tally sheets, ballots, or any other documentary or oral evidence from which the court may determine the innocence or guilt of the parties accused.”

Sam Hair, a fourth year University of Chicago student and a watcher at the election in question, testified, in substance," that he arrived at the polling place on the morning of the election at 5:50 a. m., and remained until after 12 o’clock the next morning, and that he was present in the polling place during the entire time; that he saw the ballots when they were opened up in the morning, and that he watched the entire election procedure; that respondent Bagnola assisted at least 100 voters and Savaiano and respondent Corso at least 25 each; that the persons mentioned went into the polling booth with each individual voter, and either told the voter how to mark his ballot, or that the persons mentioned marked the ballots themselves; that occasionally a judge would ask a person if they needed assistance, but there were no affidavits of voters needing assistance, filled out during the day; that at 3 o’clock in the afternoon, beer and whiskey were served in the back room of the polling place; that at 20 minutes after 4 o’clock in the afternoon, there were 415 names on the poll books, and that at 5 o’clock there were 444 names on the poll books, and that between 20 minutes after 4 and 5 o’clock, no more than 15 people voted. He also testified that William Cavico had charge of the poll books, and that he gave extra names to the clerks, which names the clerks wrote in poll books; that after the polls were closed at 5 o’clock, the ballot boxes were opened and the ballots sorted; that shortly thereafter the entire board went out for dinner and came back about 6:30 o’clock and began the count; that Prignano, the democratic precinct captain, took the democratic ballots, and with a pencil and eraser changed the markings on them, which took about two hours; that Corso and Morelli were tallying the republican votes during this time, and that the other judges stood by while Prignano and Cavico went through the democratic ballots; that by this time, there were about 15 people in the polling place. This witness further testified that he made notes of various matters in connection with the election, and the next day turned these notes over to McQueeny of a private detective agency; that prior to the election, McQueeny had demonstrated to a school of prospective watchers the method by which elections were held, and that for his services as a watcher, he was paid $10. He further testified that Mike Corso voted about 2 o’clock, that he voted again about 2:10, and that he saw him vote again about 3:55, and that he saw him put his ballots in the ballot box. It is stipulated that, if she were present, one woman whose name appeared as having voted, would testify that she did not vote at the April 14th primary.

Larry G-randahl testified, in substance, that he was a student at the University of Chicago, and that he was a watcher at the election in question; that he arrived at the polling place about 6 o ’clock in the morning, and remained there until after midnight; that 40 per cent of the voters voted “as though by instruction”; that the voter would come in and ask for instructions, and that he would be accompanied to a booth by one of the judges, sometimes by both judges; that no affidavits were made out, and that later in the afternoon his attention was called to the fact that the clerks were writing names in the poll books; that one of the clerks, Morelli, would get the names from a worker who was getting these names from William Cavico, who was getting the names from the register; that a large percentage of the vote was cast between 2 and 4 o’clock. This witness also testified to the effect that he looked at the poll book and then counted the people who came in and voted between that time and closing time, and that his report showed there was a discrepancy of about 15 votes. His testimony was also, to the effect that the officials and workers split up in three groups, one working on democratic, one on republican and one on proposition ballots; that he watched the republican end, and that most of the time the republican ballots were counted and recorded in a manner known as “keeping a dummy tally sheet”; that Cavico did “writing and erasing on ballots”; that he saw one Victor G-allanti vote more than once, and that this person accompanied voters into the booths, and that there was no judge or clerk present with G-allanti and the voter at this time. He also testified that "prior to the election, a Mr. Kennon of the employment agency of the University of Chicago had asked for persons who desired to work at the polls, and that at this time McQueeny of the detective agency gave certain of the students credentials and instructions. He testified that there were about 100 University of Chicago students who acted as watchers in various precincts in Chicago at this electipn, and- that he was paid for his services.

Rudolph B. Salmon, a handwriting expert, testified that he had been a witness on disputed documents over 200 times; that after the election in question held on April 14,1936, he examined the ballots for the purpose of determining the similarity of crosses and any other alleged irregularities; that he found numbers of them which, in his opinion, were each marked by more than one person, and that many other ballots, in his opinion, were marked and changed by persons other than the voters. The record indicates that as these ballots were referred to by the witness, they were exhibited to the court. The ballots are not in the record.

Mike Corso, one of the republican judges at this election, testified that on the morning of the election the judges opened up the packages of ballots consisting of 100 each; that the polling place was on DeKoven street, east of Halsted street, in a basement; that the voting was done in the front room, which is about 18 feet wide and 30 feet long; that 444 votes were cast in the precinct. This witness testified that 25 per cent of the voters asked for assistance, and that the package of affidavits was opened up early in the morning; that these affidavits were used in connection with assisting voters. This witness stated that he made certain of such persons sign an affidavit, but that affidavits were not signed in all cases; that when a voter called for assistance, he would call another judge and they would both go into the booth and assist the voter. This witness further testified that in the morning he noticed a gallon of liquor on the sink, after everything had been sealed up and counted. He testified that Cavico handled no ballots, and that he was checking the names off of a card, and that Prignano did not alter any ballots. He denied that he voted more than once. He testified that Bagnola did not mark any ballots, or that the clerks wrote names on the poll books when nobody was voting. Bagnola, another judge of the election, testified to the same effect as did Savaiano, a republican judge.

Alex Morelli, ^testified that he was an ¡ apprentice druggist at 1330 South Sangamon street;- that he had been a republican clerk of election before this election; that he was not in the habit of drinking, and did not see any drinking going on at the polling place during the election. He also denied that there was anything irregular about the election, as did John Cantore.

Mildred Caduto, a democratic worker, testified that there were no republican workers at the polling place on that day; that she knew the judges; that she saw the count, and that no one took part in the count except the judges; that no one interfered with the ballots, and that she saw the ballot boxes opened up.

John Nawrancy, another watcher, testified that no one but the judges handled the ballots; that no one made erasures or markings on the ballots; that he was at the polling place from 5 a. m. to 12 o’clock at night; that he saw no one drink beer, whiskey or anything of the kind, and that he, the witness, was not a drinking man. Anthony Mango and Frank Piagaro, both democratic watchers, testified to the same effect.

The trial court sat and heard the witnesses, had the same opportunity as the handwriting expert to examine and observe the ballots and we are not prepared to say that the finding of the court is not justified by the evidence. If the respondents are guilty of the offense charged, — and the evidence seems to prove that they are — then the penalty imposed by the court is not too severe. The judgment of the county court of Cook county is, therefore, affirmed.

Affirmed.

Hebel, P. J., concurs.

Mr. Justice Denis E. Sullivan

dissenting:

I am obliged to dissent for the following reasons:

1. The information does not charge a conspiracy and, consequently, the clerks should not be found guilty of things which, if true, were only done by the judges and vice versa.

2. The election statute did not change or repeal the change of venue statute and this is a “ suit or proceeding” within the purview of ch. 146, Ill. Rev. Stat. 1937, § 1 et seq.; Jones Ill. Stats. Ann. 107.316 et seq., entitled, 1 ‘Change of Venue.”

3. This is a civil and not a criminal contempt. If it were a criminal contempt the respondents would have to be discharged on their answer. Whilst it is important that the purity of the ballot be maintained, I think it is of equal importance that citizens charged with an offense be tried in accordance with the law and before a judge not disqualified. The defendants were not guilty of criminal contempt. See People v. McDonald, 314 Ill. 548, and cases therein cited.

4. I think the court erred in preventing the cross-examination of the witness Salmon who was introduced by the State as an expert and testified to possessing the extraordinary power of being able to tell by looking at two straight lines whether or not they were made by the same person. I think the counsel, Mr. Rathbun, was well within his rights in insisting upon a cross-examination of the expert as to how he acquired and possessed this extraordinary power.

5. The written summary of the findings of the expert Salmon was read by the trial judge over the objection of Rathbun and taken as evidence. Whilst the statute, ch. 46, § 381, Ill. Rev. Stat. 1937; Jones 111. Stats. Ann. 43.400, entitled, “Elections” states that cases shall be tried “in open court, on oral testimony, in a summary manner, without written pleadings,” I do not think the legislature intended to do away with the protection to which an accused is entitled at all times when in court charged with an offense. The presumption of innocence, the burden of proof, a change of venue and the right to cross-examine have all been proven to be safeguards of justice and too firmly established in our jurisprudence to be denied at this time and as they were in the instant case.

6. Two witnesses were produced by the State who testified to the facts upon which this conviction is based. These two were employees of the Detective McQueeny and were paid $10 a day for their services, including the day they testified in court. They had been schooled by McQueeny and had been instructed as to what they should look for at the election polls.

7. Ten witnesses were produced on behalf of the defense who denied the wrongdoing and the intent to do anything which would constitute an offense. Whilst the familiar rule is that the trial court who sees the witnesses and hears them testify is in a better position to judge as to their credibility, than is a court of review and that the number of witnesses testifying on one side or the other is not controlling, nevertheless, there are occasions when the printed page reveals certain statements that were apparently overlooked at the time of the trial, and the number of witnesses testifying cannot be wholly disregarded in determining the weight of the evidence. I do not think this record is supported by proof so clear and convincing as to justify the affirmance of the judgment.

The punishment of one year in the county jail for all defendants is too severe. Investigations and experience have shown and I think that it is almost universally conceded throughout the civilized world by those who have given the subject any thought, that it is the certainty of punishment and not the severity of punishment that acts as a deterrent to the violation of law.

For the reasons I have given I think the judgment should be reversed and the cause remanded with directions that the cause be tried in accordance with the law.


author: Mr. Justice Denis E. Sullivan

text:
    Oscar Consaer, Plaintiff, v. John Wisniewski, Defendant. Appeal of Louis D. Glanz, Appellant, v. George C. Peterson and Company et al., Appellees.
    Gen. No. 39,633.
    Opinion filed February 2, 1938.
    Rehearing denied February 18, 1938.
    Jacob Levy, of Chicago, for appellant; Edward Mc-Tiernan, of Chicago, of counsel.
    Kamfner, Halligan & Marks, of Chicago, for ap-pellee Frank Lynn; Edwin A. Halligan and Samuel ' M. Lanoff, of Chicago, of counsel.
   Mr. Justice Denis E. Sullivan

delivered the opinion of the court.

Louis D. Glanz, trustee, and plaintiff herein, brings this appeal from an order entered in the circuit court allowing certain bills for supplies as liens upon certain real estate more than 15 months after a sale of the real estate in question under a foreclosure decree. These bills were incurred by the receiver in the operation of a building. Plaintiff contends the court erred in allowing certain compensation to the receiver and his attorney, as specified.

On October 11,1934, a decree of foreclosure and sale was entered in this case and on March 7,1935, the master’s sale was approved. During all this time a receiver was, on motion of plaintiff, in possession of the premises. On October 15, 1936, an order was entered that the claims of certain supply creditors be made first and prior liens, on a parity with each other, against said premises in question, and on November 27, 1936, an order was entered, overruling the objections to the final account and report of the receiver, and allowing the claims for supplies furnished the receiver and also the receiver’s fees in the sum of $275, and the attorney for the receiver $100 as fees, and making the same a lien against said premises.

Plaintiff contends there is nothing in the record to justify the court’s action in allowing fees to the receiver and his attorney, and that the court erred in allowing the claims of supply creditors to be made first and prior liens on the real estate and in allowing receiver’s fees and receiver’s attorney’s fees.

Defendant contends that the court was justified in entering the order of October 15, 1936, making the .claims of supply creditors first and prior liens on the real estate, and in allowing fees of $275 to the receiver, and fees of $100 to the attorney for the receiver.

Defendant also contends that the attorney for plaintiff gave his consent to the order entered on October 15, 1936, mailing the claims of the supply creditors a prior lien on the real estate and, therefore, said order is not subject to review by appeal.

Turning to the additional abstract we find the following :

“The Court: Is there any objection?

“Mr. Jacob Levy: No it is agreeable that an order be entered allowing the supply creditor’s claims as long as the ninety (90) day period appears in the order.

“Mr. Kabaker: Yes, the ninety (90) day period appears in the last paragraph of this order.”

In the case of Bergman v. Rhodes, 334 Ill. 137, the court in deciding this issue said at page 142: “Parties who are competent to contract may agree to the rendition of a decree in respect to any right which may be the subject of litigation. When such a decree is entered it is a decree by consent. As a general rule, such a decree should show upon its face that it was entered by consent, (5 Ency. of PL & Pr. 961,) but it has been held by this court that such a showing in the decree is not indispensable and that an agreement may be shown by other evidence which does not contradict the record but is consistent with it. (Krieger v. Krieger, 221 Ill. 479; Armstrong v. Cooper, 11 id. 540.) The last case is one of the leading cases in this State and has been referred to and followed by this court on several occasions. In that case an agreement was made between counsel representing the respective parties that certain amendments should be made to the bill and the complainant should be permitted to take a decree under the bill as amended. It was held that the decree taken was a consent decree, and such consent could be shown by evidence which did not contradict the record. A consent decree is not a judicial determination of the rights of the parties. It does not purport to represent the judgment of the court but merely records the agreement of the parties. A decree so entered by consent can not be reviewed by appeal or writ of error. (Paine v. Doughty, 251 Ill. 396; Galway v. Galway, 231 id. 217.) It can only be set aside by an original bill in the nature of a bill of review. (Hohenadel v. Steele, 237 Ill. 229.) In Hungarian Benevolent Society v. Aid Society, 283 Ill. 99, it was held that where neither party objected to a master’s report, a decree in accordance with the master’s finding, which was approved before entry by the 0. K. and signature of counsel for both sides, became a consent decree; that where an attorney is the counsel of record for a client, his agreement in the conduct and management of the litigation must be considered as the agreement of his client, and if any of his acts áre without sufficient authority as between him and his client the remedy of the client is against the counsel.”

The order of October 15, 1936, so far as its terms purport, is therefore a consent decree and is not subject to review by appeal or writ' of error.

As to the other claims, there is nothing in the record to show the receiver was not employed during the period for which he was paid, or that the compensation he received was excessive. The same applies to counsel for the receiver.

Counsel, for plaintiff-appellant contends that the court committed error in allowing the receiver’s and solicitor’s fees and other expenses of the receiver after the master’s sale. Evidence was heard by the court as to the services of the receiver and was considered both as to the extent and value of such services and expenses. The receiver was appointed on motion of the plaintiff at the time of the commencement of the suit and again such appointment was approved and continued; on motion of plaintiff at the time of the report of sale by the master. At that time the said receiver was ordered to remain in possession of the said premises until the further order of the court. The plaintiff was the purchaser at the master’s sale and later at the expiration of the statutory period of redemption the said plaintiff received the master’s deed. There was no question presented as to the rights of an innocent third party. Plaintiff having caused the employment of the receiver, he should now be es-topped to question the retention of the receiver in possession of the premises or the payment to him of reasonable fees and expenses. We think the court properly made the allowance for fees and expenses and also the charges of supply men as well as such fees for liens on the premises.

As this court said in the case of Neuffer v. Chicago Trust Co., 284 Ill. App. 247, 254: “The intervener not being an innocent purchaser, but having bid in the property for the benefit of the bondholders, it was proper to decree that the amount of unpaid bills incurred in the preservation of the property be a lien on the property. Knickerbocker v. McKindley Coal Co., 172 Ill. 535.” See also Pittsburgh Plate Glass Co. v. Kransz, 291 Ill. 84; and Driever v. Shephard, 259 Ill. App. 239.

For the reasons herein given the action of the chancellor is approved and the decretal orders of the circuit court are affirmed.

Decretal order affirmed.

Hebel, P. J., and Hall, J., concur.


text:
    John F. Ryan, Appellee, v. Harry’s New York Cabaret, Inc., Appellant.
    Gen. No. 39,768.

      Opinion filed February 2, 1938.
    Andrew J. Farrell, of Chicago, for appellant; Allan J. Moore, of Chicago, of counsel.
    Royal W. Irwin, of Chicago, for appellee.
   Mr. Justice Denis E. Sullivan

delivered the opinion of the court.

This is an appeal from a judgment entered in the superior court for $8,500, in favor of plaintiff and against defendant upon the verdict of a jury, because of personal injuries alleged to have been sustained by plaintiff while he was dancing on the dance floor of the defendant corporation.

No question is raised as to the pleadings.

Plaintiff’s theory of the case is that while he was in the exercise of due care for his own safety he was caused to fall on the dance floor of the defendant while he, the plaintiff, was dancing thereon; that the injuries which he sustained were caused by defendant’s negligence in permitting the dance floor to become in a dangerous and unsafe condition; that the agents and the employees of the defendant immediately prior to a roller skating act, spread and caused to be spread upon said dance floor divers substances and powders which rendered said dance floor unsafe for dancing and that said defendant allowed said powders and substances to remain on said floor for a long period of time and that as a direct and proximate result of the negligence so charged plaintiff was caused to fall.

Defendant’s theory is that it did not allow the dance floor to become in a dangerous and unsafe condition while plaintiff was dancing thereon or at any other time; that defendant had no notice of any powder or other substance being on the dance floor prior to plaintiff’s fall or had no notice that the dance floor was in an unsafe or dangerous condition; that the agents and employees of the defendant did not spread powder or other substance on- the dance floor prior to the appearance of the “roller skating act,” nor did the defendant allow powder or other substances to remain on the dance floor for a long period of time; that there was nothing about plaster of Paris powder on a dance floor that would create a dangerous condition; that there is no competent proof in the record to show that a spot of powder on the dance floor caused plaintiff to fall or that any powder that may have been on the dance floor at.the time of plaintiff’s fall was the same powder that was used in the “roller skating act”; that there is no proof, in the record to show that the roller skating artist was an employee or agent of defendant and defendant contends there is no evidence in the record showing that the dance floor was in a dangerous or unsafe condition at any time, nor is there any evidence to show that the defendant had notice that the dance floor was in an unsafe or dangerous condition prior to plaintiff’s alleged fall.

The evidence shows that the defendant corporation, Harry’s New York Cabaret, Inc., was maintained as a place of amusement and was located at 400 North Wabash avenue in Chicago; that on the second floor of the premises there was a restaurant and dance floor; that the portion of the floor used for dancing was made of ordinary narrow maple flooring, sanded and smooth and highly polished with wax; that the lighting of the place was rather dim; that defendant furnished a floor show for the amusement of its customers and that the show consisted of music, singing and fancy dancing.

The evidence further shows that as part of the entertainment, defendant had about a week prior to the accident, employed a man by the name of Smith who gave an exhibition in roller skating and that this act had been given at least four times every night during the period of the engagement; that Smith did not skate upon the surface of the dance floor, but used a wooden mat about 10 x 10 feet square and that it was made of narrow strips of maple about three-sixteenths of an inch in thickness glued to some sort of fabric; that because of its construction the mat could only be rolled up in one direction; that when the mat was laid out on the dance floor it was spread out so that the fabric rested on the dance floor and the maple strips were on top where the skating took place; that to prevent his skates from slipping Smith applied powdered plaster of Paris to the mat. Smith testified that the powder was put on the mat to “keep us from slipping and holding us to the floor. It prevents the mat from being slippery. I put it on the mat with a can. It is put on every performance. Approximately about a teaspoonful or a little less is put on each time.”

The evidence further shows that as the skating was done only in the center of the mat the powder was sprinkled only over an area of four or five feet; that after the skating act was finished it was the custom to roll the mat downward as it was lying on the dance floor before it was removed; that it had been the practice of the skater and those assisting him to sprinkle plaster of Paris on this mat every time a performance was given and afterward to roll it up in the manner described.

The evidence further shows that on the night of January 21, 1936, the plaintiff drove to Wheeling, lili-nois, where he picked up Felix Rogalski and his wife, Rogalski’s daughter Blanche and Rogalski’s cousin Elsie Rogalski who was their cook; that Felix Rogal-ski conducted a tavern in Wheeling; that they drove to the Parkway Hotel in Chicago and plaintiff had one drink; that plaintiff then got some money and they took a cab to the “Royal Frolics,” on 22nd street, arriving there about 12 o ’clock; that plaintiff had three or four “Scotch and sodas” and then some supper; that about 3:00 o’clock the party left for Harry’s New York Cabaret, the place conducted by defendant herein, and after their arrival three of them ordered coffee and while sitting there Charles Hepp and Dolores Walker came over to the table; that a skating act had just finished and the skater rolled the mat he had been skating upon and set it to one side; that shortly thereafter some singers came out and sang and a closing chorus of six girls came out and danced; that the last act was the finale and the dancing followed immediately and about 15 couples went onto the dance floor.

The evidence further shows that the dancing continued for about 5 minutes and then there was an encore and the music started again, the orchestra playing a one-step; that Ryan was dancing with Miss Blanche Rogalski; that Felix Rogalski and his wife danced together and Dolores Walker, a witness for plaintiff, danced with a man from Detroit; that the floor was crowded with people; that after the encore the orchestra played a fox trot or a one-step and Ryan and his partner ‘1 stepped it up a little bit, ’ ’ and all of a sudden he turned his ankle and fell on his leg; that he was carried to a table and afterward all the party got into a cab and started for Ryan’s residence; that from there he took a cab to St. Luke’s hospital.

The evidence further shows that the accident happened at 400 North Wabash avenue on the second floor; that the room was about twice the size of the average courtroom; that on one side of the room was a bar and in the room was a dance floor about 16 feet square; that the dance floor was made up of small boards and' the floor was waxed and polished; that it was waxed twice a week by a waxing machine; that at each of the corners of the dance floor was a brick pillar; that the pillars had electric lights hanging from them on the side toward the dance floor and the opposite side; that there were eight lights in all.

Dudley Thomas Moore, a witness on behalf of defendant, testified that he was a chemist and analyzed some of the powder and that it contained 90.9 per cent calcium sulphide and 9.1 per cent of water; that the powder had no abrasive qualities nor was it sticky or adherent.

Frank Smith, the roller skate performer, was called as a witness on behalf of defendant and testified with reference to the powder getting from the mat to the floor that his purpose of sifting the plaster of Paris on the jointed mat was to get traction “it keeps from sliding when you use pressure on it.”

Some of the witnesses testified at the trial to having seen some white substance on the floor after the skaters had left.

John F. Ryan, the plaintiff, testified that he was 46 years old and lived at 2100 Lincoln Park West; that on January 21, 1936, while he was dancing in Harry’s New York Cabaret, his foot stopped suddenly, it struck something, some sticky substance on the floor and he turned on his ankle and fell on his leg; that he did not see any substance on the floor before or after he had fallen; that he was carried to a table and fainted and was taken to St. Luke’s hospital; that his leg had been broken; that he was in the hospital from January 21 to March 2; that he started to walk on his leg sometime in June; that where the leg was broken it always hurts and when the weather is damp the leg swells up and gets very sore.

Plaintiff further testifying stated that prior to the accident he had an income in excess of $400 per week, which income he lost on account of his permanent injury.

Felix Rogalski, a witness on behalf of plaintiff, testified that at the time in question he was dancing with his wife; that he did not see anything on the floor; that he was not paying any attention; that Mr. Ryan was sober and was dancing with his daughter; that Mr. Ryan fell on the dance floor and was picked up and carried to a taxi and taken to the hospital.

Mrs. Blanche Rogalski, testifying on behalf of plaintiff, stated that they had the Union Hotel at Wheeling and were thinking of putting entertainers in their place and wanted to make some investigations about it; that they went to the Frolics and later to the New York Bar; that there were entertainers there; that she was dancing with her husband and did not see plaintiff fall down and did not notice the floor.

Elsie Rogalski, a witness on behalf of plaintiff, testified that she saw plaintiff fall while he was dancing with Blanche Rogalski; that she did not remember what made him fall; that Mr. Ryan was sober; that she never saw Mr. Ryan drunk.

Dr. John Lindquist, a witness on behalf of plaintiff, testified that he was a physician on the staff of St. Luke’s Hospital; that he first met plaintiff while he was in bed at the hospital; that plaintiff was in shock at the time and had a fractured leg; that the tibia and fibula of plaintiff’s right leg were broken, a spiral or oblique fracture; that the tibia was broken at about the junction of the lower and middle thirds; that the bone was not projecting through the flesh, but there was a deep laceration over the fractured site, which made Mm assume it had been compounded; that there were small fragments there and some comminution; that there was also a fracture of the fibula in the upper tMrd which was also oblique and ran along the shaft of the bone, but was not compounded; that there were small fragments there; that X-ray pictures were taken- and examined and plaintiff was removed to the operating room where he was given a local anesthetic and a wire was passed through the bone of the heel, that is the calcaneus, and on that wire a traction apparatus was applied to apply traction to the leg; that the wire used was about a foot long and about the size of a lead pencil; that they made a hole with a drill and it drills the wire through the bone of the heel; that the leg was put in a splint to hold it in position and then the weight pulls the fragments out; that at first about 15 pounds of traction was used and was gradually cut down to 10; that later a complete plaster cast was put on extending from the thigh down to and including the foot; that he was in the hospital from January 21,1936 until March 2, 1936, when he went to the Parkway Hotel; that at that time he was still in the cast; that on March 13 the doctor testified he took plaintiff back to the hospital and had a lighter cast put on; that plaintiff had two nurses while at the hospital and had one nurse in attendance after he left the hospital and went to the Parkway; that in April the cast was taken off and there was some atrophy of the muscles and plaintiff had to exercise his leg in the bath tub under water as the ability to move the leg is better under water; that the doctor continued to see plaintiff until May and at that time plaintiff still had some stiffness in the joints and there was a tendency of the ankle and foot to swell after the removal of the cast.

Dr. John Lindquist further testifying stated that the usual, reasonable and customary charge for the services which he rendered would be from $500 to $750 and accommodations at St. Luke’s Hospital would be about $10 a day and the nurses’ charge would be $7 a day each and board.

Dolores Walker, an employee of defendant and a witness on behalf of plaintiff, testified that she had danced on the floor hundreds of times the week before Byan was hurt; that the floor was slippery; that it was smooth and shiny; that she did not see anything on the floor until after Byan fell, when she saw a gray powder on the floor; that there was quite a crowd on the dance floor; that customers fall occasionally on cabaret floors, even before the skating rink was there; that on a crowded floor sometimes people are tripped and pushed.

Charles J. Hepp, called as a witness by plaintiff under section 60 of the Civil Practice Act, Ill. Rev. Stat. 1937, § 184, eh. 110; Jones Ill. Stats. Ann. 104.060, testified that he did not notice any powder on the floor at the time Byan fell.

Charles J. Hepp, recalled as a witness on behalf of defendant, stated that he did not look at the floor; that he did not look to see if there was any foreign substance on the floor and nothing was said by anybody about any foreign substance being on the floor; that he had seen the skating act and knew they were using powder and had seen some of the powder on the floor, and on some occasions it had been swept up; that he did not know whether they had swept up after every performance or not; that he did see them sweep; that at the time the skating act was on they had a bag of balloons above the floor and some of them would break; that the heat caused them to break and the rubber would drop to the floor and that would be swept up; that plaintiff was not intoxicated.

From this evidence, it appears that plaintiff, a man 46 years of age was a patron in the so-called night club or cabaret of the defendant; that among other entertainment furnished by defendant for its patrons, there was a dance floor which was kept thoroughly waxed and smooth and was used at defendant’s invitation to its patrons for the purpose of dancing; that among the other forms of entertainment furnished by defendant, was a so-called roller skating act which was performed by two artists on a portion of the space reserved for the dance floor, which was 16 feet square, they first having spread out a mat 10 feet wide and 10 feet long which they sprinkled with powder; that the mat when being removed was rolled up and taken from the floor and in rolling the mat up it could only be rolled one way — underneath.

The testimony shows that in order to perform the skating act, it was necessary to overcome the smoothness of the dance floor and that the performers of said skating act with the knowledge of the defendant used plaster of Paris powder on the mat, which was put on the dance floor, in order to get traction for the skating act to keep the skaters on the mat and to keep them and it from sliding and hold the mat to the floor; that the powder prevents the mat from being slippery, from which fact the interference can easily be drawn, and in fact proven, that when the mat was removed some of the powder fell upon the dance floor; that it was the custom that this powder be swept up and the manager of the cabaret saw that this was done at other times than just prior to the accident; that at the time in question he testified that he did not know whether it had been swept up or not, although he was present in the room at the time.

The evidence also shows that plaintiff was sober at the time of the accident and that while dancing, his foot came in contact with some foreign substance on the floor, which was described as the powder which had been applied to the “skating mat,” and he was caused thereby to fall to the floor, breaking his leg and ankle.

Where the keeper of a night club or cabaret maintains a dance floor for the use of its patrons, said keeper must use reasonable care to maintain it in a safe condition for its use for that purpose and this obligation is an affirmative one and continues so long as the dance floor is being used for such purpose. If said keeper permits the floor to be used for any other purpose, such as was done in the instant case — for a skating exhibition or act — it is his duty to see that said floor is restored to a reasonably safe condition before again permitting his patrons to dance upon said floor, so that they will not be injured whilst in the exercise of reasonable care for their own safety.

In the instant case we think it was a question of fact as to whether or not the plaintiff was injured by the negligence of the defendant in permitting the floor to be used for dancing while the plaster of Paris powder used on the skating mat was still upon the dance floor, and what was the proximate cause of plaintiff’s injury.

We think the conflicting testimony in this regard was properly left for the jury to consider, and upon which to return their verdict. We think the evidence shows that the powder was placed upon the skating mat for the definite purpose of overcoming the smoothness of the dance floor and that when the mat was removed after the act was finished some of the powder fell upon the dance floor rendering it difficult for dancing. This condition existed without the knowledge of the plaintiff and with the knowledge of the defendant.

Counsel for defendant cite the case, of Davis v. South Side El. R. Co., 292 Ill. 378. In that case plaintiff slipped on a banana skin and fell on the stairway leading from the elevated station to the street. The evidence did not show that the company had notice that the skin was on the stairway or that it had been permitted to be upon the stairway for a sufficient time to imply notice. The court at page 386, said: “If it had been shown that the banana skin had been permitted to be upon the stairway for a sufficient time that notice might be implied or actual knowledge were shown, that might have justified a verdict against the: company under the rule requiring the exercise of ordinary care, but such actual or implied notice was not shown on this record. ’ ’

The circumstances in the instant case are decidedly different, the president of the defendant company, Charles Hepp, testified that he knew the skaters were using this powder and he also knew that it was necessary to have it swept off the floor after each skating act, which, at the time of the accident, had not been done. Therefore, the doctrine enunciated in the case from which we have just quoted is not applicable in the instant case.

In this case the manager or president of the company must have known that to permit the powder to remain on the floor was dangerous to patrons who wished to dance, as ordinarily he had it swept from the floor. Plaintiff was dancing at defendant’s place of business at defendant’s invitation and had every reason to believe that the floor was in a proper and safe condition for dancing. We think the jury was justified in so believing. As was said in Pauckner v. Wakem, 231 Ill. 276: “ . . .if appellee was on the premises at the time and place of the accident by the invitation, either express or implied, of appellants, they owed him the duty to exercise ordinary care for his safety while upon said premises. ’ ’

Counsel for defendant complains that a witness upon being cross-examined, in answer to a question asked by him, mentioned an insurance company. It appears that the witness had filled out a questionnaire for a brother of defendant’s lawyer who was an investigator, and she, the witness, had previously testified that this investigator with whom she was acquainted had filled in the questionnaire and she signed it as he directed. The questions by counsel for defendant and answers made thereto, were as follows :

“Q. You told him he could write up anything he wanted to and you would sign it ?

“A. Yes, sir.

‘ ‘ Q. What was the purpose or reason for yonr tell- . ing him that!

“A. Because he had always been ill, never had any work, and he told me he was working for his brother and he was worldng for an insurance company and they wanted to get an immediate settlement for Mr. Ryan.

“Mr. Crowe: Now, I move to strike that answer, if your Honor please.

“The Court: The answer may be stricken.”

The lawyers on both sides then retired to the judge’s chambers where the trial judge admonished the witness and explained to her that she should not have mentioned anything about an insurance company. We think the defendant has no cause to complain. The question asked “opened the door” for almost any answer and we think the witness’s answer was responsive to the inquiry. However, in excessive caution, the trial judge struck the answer, and as before stated in chambers cautioned the witness against making similar statements. We do not think the rights of the defendant were in any way prejudiced by this incident.

Complaint is made as to the instructions given. None was refused. We think from an examination of them that the jury was fairly instructed as to the law applicable to the facts as developed by the evidence.

We do not think the amount of damages is excessive. The plaintiff was earning between $400 and $500 a week. As a- result of his injury he lost his positions and his income and is still unable to earn a living. He incurred considerable expense for doctor’s bill, hospital bills and nurses, etc., all of which when considered together with the pain and suffering he underwent as a result of the injury, seem to justify the amount of the verdict and judgment.

The jury saw and heard the witnesses testify and were in a better position to judge as to their credibility than is a court of review.

For the reasons herein given the judgment of the superior court is affirmed.

Judgment affirmed.

Hebel, P. J., and Hall, J., concur.