author: Mr. Justice Jones

text:
    S. R. Lewis and James Killelea, Appellees, v. DeForest Matteson, Appellant.
    Gen. No. 8,062.

      Opinion filed November 19, 1929.
    Boys & Osborn and Monahan & Monahan, for appellant.
    Butters & Butters and C. B. Chapman, for appellees.
   Mr. Justice Jones

delivered the opinion of the court.

R. R. Davis was the owner of a 296-acre farm near Marseilles in LaSalle county, subject to a trust deed made to appellee, S. R. Lewis, trustee, securing an indebtedness of $40,000, due March 1,1926, and also subject to a second mortgage securing a debt of $3,000, due March 1, 1924. On May 22, 1922, Davis conveyed the premises to DeForest A. Matteson, subject to the above-mentioned mortgages. As a part of the transaction, Matteson conveyed to Davis certain residence property in Ottawa for $1,000. The trust deed and mortgage were afterwards foreclosed. The court held that Matteson, as a part of the purchase price of said farm land, agreed with Davis to pay the indebtedness secured by both encumbrances; and that the amount due on the trust deed, was $45,512.20 plus $4,000 solicitor’s fee, and on the mortgage, $3,516.82. It was ordered that unless the mortgagors or Matteson pay said sums and interest thereon within ten days after the date of the decree, the master in chancery should issue a certificate in due form as provided by statute then in force. Matteson prayed an appeal and filed a bond but afterward abandoned his appeal. The property, not having been redeemed, was sold by the master in chancery for $14,800 and a deficiency judgment was rendered against Matteson for $36,001.05. This appeal is prosecuted to reverse that judgment.

It is contended by appellant, Matteson, that he did not assume and agree to pay the mortgage indebtedness and that the decree finding him personally liable was erroneous. It appears from the testimony that when the trade between Davis and Matteson was made, its terms were reduced to writing and the agreement was signed by both parties. The deed conveying the property to Matteson contained no covenant or recital binding Matteson to pay the indebtedness. Appellee offered testimony to prove that in certain conversations had by Matteson with Davis and one Bower-master, Matteson had agreed to assume the mortgage indebtedness. This testimony was objected to on the ground that the written contract of the parties was the only evidence admissible to show the terms of the agreement and that oral testimony was not admissible to vary its terms.

A copy of the written agreement for the sale of the land was in the possession of appellees and was exhibited on the hearing but for some reason, not apparent to us, it was not offered in evidence. What its terms are we do not know. The oral testimony to support appellees’ contention that Matteson agreed to assume and pay the mortgage indebtedness is vague and indefinite. Davis testified that Matteson said “he (Matteson) would take care of those mortgages. He didn’t say he would go down and pay them, he said he would take care of them.” Bowermaster, Davis’ agent, was even more indefinite. He first testified Matteson said he would pay them off. Later he testified that Matteson said he would take the land subject to the mortgages. On the other hand, Matteson positively denied that he promised to pay the indebtedness. There is one convincing circumstance to corroborate him. Davis went to Chicago and tendered Matteson a deed. It contained a clause binding the grantee to assume the payment of the mortgage indebtedness. Matteson refused to accept the deed because of that clause and there stated he never had agreed to assume the indebtedness. Then the present deed without such a provision was prepared by Davis and delivered to Matteson who accepted it. The fact that Matteson did not assume and agree to pay the indebtedness seems to be well established. The evidence convinces us that it was no part of the consideration that he should retain out of the purchase price a sum sufficient to pay the mortgages. He traded for the equity of Davis, and the trade was made with the understanding and agreement that Matteson would not assume or pay the indebtedness.

Counsel for appellee contend (a) that the decree for foreclosure was a final decree and definitely determined that Matteson had assumed and agreed to pay the mortgage indebtedness; (b) that he was personally liable therefor; and (c) that the findings of that decree cannot be attacked on an appeal from an order giving a deficiency judgment.

The foreclosure decree ordered Matteson and the defendants, R. R. Davis and Euphemia Davis to pay the complainant or the trustee $45,512.20 with interest within ten days, together with a foreclosure fee of $4,000. It also ordered said defendants to pay the Merchants & Farmers Trust and Savings Bank or the trustee, $3,516.82 with interest within ten days. It was further ordered that in default of said payments being made within that time, a certificate should issue, and if the premises be not redeemed within the time fixed by law, they should be sold. No mention was made of a deficiency judgment or decree in case the premises did not sell for enough to satisfy the debt, interest, and costs. It is the contention of appellees that this decree amounts to a personal judgment against appellant.

Originally a mortgagee was relegated to his action at law to obtain a judgment for any deficiency which might be due him after the sale of the mortgaged premises. (Eggleston v. Morrison, 185 Ill. 577.) And in the absence of a statute, no money decree could be rendered in a foreclosure proceeding against the mortgagor or other person liable for the mortgage debt. (Bouton v. Cameron, 205 Ill. 50.) However, by a statute originally enacted in 1865, it is provided that in all suits directing foreclosure of mortgages, a decree may be rendered for any balance of money that may be found due to the complainant, over and above the proceeds of the sale, and that execution may issue for the collection of the balance. Such decree may be rendered conditionally, that is, the foreclosure decree may provide that the complainant shall have judgment for such balance, or, in the absence of a conditional decree, a decree for the deficiency may be rendered after the sale and the ascertainment of the balance due. A deficiency decree in no event shall be rendered, unless the party liable has been personally served or his appearance entered in the suit.

A decree which merely provides for the foreclosure and sale of lands is deemed a decree in rem, but if it provides for a conditional deficiency judgment, it is in that regard in personam. (Eggleston v. Morrison, supra.) Its effect is to find that the complainant is entitled to a personal decree, provided, however, there is a deficiency remaining after the application of the proceeds of the sale. The decree in this case is not even a conditional one. It found the amount of the mortgage indebtedness then due. It ordered Matteson and others to pay it and directed that the premises be sold unless the said indebtedness was paid within the period fixed by law. It was not a money decree against the defendants upon which an execution could have issued. Under that decree the only penalty for nonpayment was a sale of the lands. No personal judgment was rendered against the defendants on account of the indebtedness and none could have been rendered except as provided by the statute.

Complainant did not seek to obtain a conditional decree, but availed himself of the alternative provision of the statute and waited until after the amount of the deficiency was ascertained and then procured a deficiency decree. This decree was the final order which fixed the personal liability of appellant and was the only decree from which he had the right to appeal and have his liability tested. (Cotes v. Bennett, 183 Ill. 82, 87; Thomson v. Black, 208 Ill. 229; Springer v. Law, 185 Ill. 542; George v. Walters, 224 Ill. App. 1.)

In what we have said we are not to be understood as holding that a decree for foreclosure is not a final decree from which an appeal may be prosecuted. The extent of our holding is that such a decree is not a personal decree upon which execution can issue and that there is no final judicial determination as to personal liability for a deficiency until the amount of it is actually ascertained after a sale.

For the reasons above set forth, the decree of the trial court is reversed and the cause remanded.

Reversed and remanded.


source: Caselaw Access Project

license: Public Domain

text:
    The People of the State of Illinois, Defendant in Error, v. Isaac Franklin, Plaintiff in Error.
    Gen. No. 8,047.

      Opinion filed December 6, 1929.
    Rehearing denied February 4, 1930.

      J. E. Bairstow and George W. Field, for plaintiff in error.
    Ashbel V. Smith, for defendant in error; Sidney H. Block, of counsel.
   Mr. Justice Jones

delivered the opinion of the court.

Isaac Franklin was found guilty by a jury on 23 counts of an original and amended information charging him with possession and sales of intoxicating liquor in violation of the Prohibition Act, Cahill’s St. ch. 43, HI et seq. The original information consisted of two counts. Subsequently the information was amended by the addition of 22 other counts. Counts 1, 3, 4, 7, 8, 11, 12, 13, 14, 19, 21, and 23 charge unlawful possession. The other counts charge unlawful sales. The original information and amendment were verified by the State’s Attorney. A motion to quash the information as amended and each count thereof was overruled. On the trial, defendant was found guilty on all the counts except count 2. Motions for new trial and in arrest of judgment were overruled and judgment entered on the verdict, that defendant be imprisoned on the Illinois State Farm at Vandalia for a period of 60 days on each of the counts on which he was found guilty of unlawful sales, aggregating 660 days. The terms of imprisonment are to run consecutively and not concurrently. Defendant was also fined $150 on each of the counts charging unlawful possession aggregating $1,800. It was further ordered by the court that if at the expiration of said term of imprisonment, the fine of $1,800 was not paid, defendant should stand committed until such fine and costs were satisfied and worked out on said State Farm at the rate of $1.50 per day.

The record shows that defendant was operating a so-called soft drink parlor and poolroom, serving lunches and selling tobacco, cigarettes, etc. The place was frequented by both white and colored people. It was equipped with a bar and back bar and defendant employed a colored bartender. During a raid, two constables armed with a search warrant, found behind the bar a bottle of intoxicating liquor labeled “Grin” and some empty whiskey bottles on the floor. Several of the witnesses who testified for the prosecution were employees of a detective agency and it is urged that they were unworthy of belief. No one except the defendant disputed their testimony. All of them except one testified to purchases of intoxicating liquor in defendant’s place of business. The evidence of hired discoverers of supposed delinquencies has been frequently criticised by the courts when their remuneration was dependent upon the extent of their discoveries. However, it is not a rule of law that the testimony of informers and detectives must be weighed with greater care than that of other witnesses. The fact that they are informers and detectives, or are otherwise interested, should be taken into consideration and given such effect in determining their credibility as the jury, after fair and candid deliberation think it should have, but the weight of their testimony is to be determined by the jury as a matter of fact, and not under a legal rule of comparison with other witnesses. (People v. Newbold, 260 Ill. 196.)

The jury were permitted to take the amended information to their room but before it was given them, the verifications were detached by direction of the court. No objection was made at the time. Defendant’s counsel was not present, having retired from the court room without asking that the proceedings be suspended. Counsel’s absence was voluntary and he thereby waived any right to complain that he did not object because of his absence. (Sahlinger v. People, 102 Ill. 241.)

The affidavit attached to the information was no part of it (People v. Clark, 280 Ill. 160), and it was not error to detach the affidavit before the information was taken by the jury. (People v. Doe, 250 Ill. App. 657.), The jury may take the information with them upon their retirement. The common-law rule was that the jury might take with them such books and papers as had been produced in evidence and as the judge may direct. Whether a writing should be delivered to the jury upon their retirement is largely within the sound discretion of the trial court. (Cooke v. People, 231 Ill. 9.)

The 12th instruction given on behalf of the prosecution read: “To constitute the offense charged in this case, the intent alleged in the information is necessary to be shown, but direct and positive testimony is not necessary to prove the intent; it may be inferred from facts and circumstances shown by the evidence.” The instruction assumed in the last clause that the facts and circumstances shown by the evidence justified the inference of the intent alleged in the indictment. This instruction was condemned in People v. Johnson, 333 Ill. 469.

The 13th instruction informed the jury that the reasonable doubt the jury is permitted to entertain to authorize an acquittal must be as to the guilt of the accused on the whole of the evidence and not as to any particular fact in the case not necessary to constitute the crime charged. A similar instruction was condemned in People v. Clark, 301 Ill. 428; People v. Seff, 296 Ill. 120; People v. Cramer, 298 Ill. 509; People v. Johnson, 317 Ill. 430; People v. Rongetti, 331 Ill. 581, 598; and People v. Mooney, 303 Ill. 469.

Notwithstanding the error in giving the instructions above mentioned, it is well settled that unless upon a new trial, a different result might reasonably be expected, a court of review will not reverse the judgment of a lower court for an error in the giving of instructions. (Stansfield v. Wood, 231 Ill. App. 586; Ehrenheim v. Yellow Cab Co., 239 Ill. App. 403.) From a consideration of the whole record, it is apparent that no different result might be expected upon another trial, as the evidence of defendant’s guilt is conclusive. In a close case, or if it were reasonable to think that upon another trial a different verdict might be rendered, this court would not hesitate to reverse the judgment and remand the cause on account of the error in the giving of the instructions mentioned.

Defendant was properly sentenced under each of the counts charging unlawful sales. Each sale charged constitutes a separate and distinct offense, even though growing out of the same transaction. Section 39, Cahill’s St. ch. 43, ft 40, provides that separate offenses may be united in separate counts and the defendant may be tried for all on one trial, and the penalty for all offenses may be imposed. That provision of the statute has been upheld in People v. Brush, 324 Ill. 261.

A more serious question arises from that part of the sentence imposed under the counts charging unlawful possession. Each count of the information charging unlawful possession alleges a different date, except the 1st and 21st counts name the same day. The earliest date on which unlawful possession is charged in the information is January 10, 1928. The last date on which unlawful possession is charged is January 20, 1929, and the dates alleged by the other counts range between those two dates. It was incumbent upon the prosecution to show that the possession charged in the information was an unlawful possession. In order to sustain a conviction for an unlawful possession on more than one day or on more than one occasion on the same day, under different counts in the information, it was necessary for the prosecution to show that each possession charged was a different possession than that charged in the other counts. That is' to say, the same possession of the same liquor on two different days or occasions does not constitute two separate offenses. Two convictions cannot "be had for the same offense. The judgment imposed a separate sentence under each count charging unlawful possession. There is no proof in the record that the unlawful possession charged in any one of the counts was not the same possession of the same liquor charged by the other counts.

It was therefore error to enter judgment against the defendant on more than one count charging unlawful possession of intoxicating liquor. The date of the offense charged in the third count is January 10, 1928, and is the earliest date fixed in any of the counts under which the defendant was found guilty. According to the rule as applied to prosecutions under the Prohibition Act, Cahill’s St. ch. 43, If 1 et seq., as laid down in People v. Brush, 324 Ill. 261, the judgment of the county court is affirmed as to the convictions under counts charging unlawful sales and is also' affirmed as to the conviction charging unlawful possession of intoxicating liquor as laid in count 3,- but is reversed as to all other convictions.

Judgment affirmed in part and, reversed in part.


author: Mr. Justice Jett

text:
    Clarence P. Corney, Appellant, v. John Corney, Appellee.
    Gen. No. 8,099.

      Opinion filed February 11, 1930.
    Chester F. Barnett and Rudel McKinney, for appellant.
    Robert N. McCormick, for appellee.
   Mr. Justice Jett

delivered the opinion of the court.

This suit was instituted by Clarence P. Corney, appellant, in the circuit court of Peoria county, against John Corney, appellee, to recover money in the possession of appellee which he claimed to hold as administrator of the estate of Eliza Ann Forney, deceased.

The declaration consisted of the common counts, with affidavit of claim. The plea of appellee was non assumpsit, with an affidavit of merits.

A jury was waived and at the close of the testimony on the part of the appellant, the court directed a verdict and judgment was rendered against the appellant in bar of the action and for costs of suit. From this judgment appellant has appealed.

The money sought to be recovered in this proceeding is in the possession of appellee, and he claims to hold it as administrator of the estate of Eliza Ann Forney, deceased, the said Eliza Ann Forney having been entitled to the use of the money for her life, and at her death to be distributed among certain persons including appellant under the terms of the last will and testament of Sarah Jane Bale, deceased.

It is insisted by the appellant that his interest in the funds in the hands of Eliza Ann Forney for life, was fixed at the sum of $1,000 by the terms of said will. It is this sum, with interest, from the time it should have been paid to appellant, the suit was brought to recover. It is the contention of the appellee that he had the right, as administrator of the estate of Eliza Arm Forney, to administer the life fund; that appellant had no remedy except to file a claim in the probate court within the year from the granting of letters to appellee, which was not done.

The record discloses that Sarah Jane Bale died testate and that her will was admitted to probate in Peoria county on March 26, 1917. By the terms of said will appellant was devised 80 acres of land and was to pay Eliza Ann Forney, sister of testatrix, $150 per year so long as she should live. Appellant was also to have a gold watch and chain of the testatrix. After the death of said Eliza Ann Forney, appellant was also to have $1,000 in cash, an organ, a dresser, testatrix’s marriage certificate, a china set, and one bed and bedding.

The will further provided that the said Eliza Ann Forney “is to have full possession of all my possessions except the above-described 80 acres of land and gold watch, as long as she lives, and after her death all that remains of my possessions shall be equally divided among all my heirs except the above-mentioned Clarence P. Corney.”

Appellant and the said Eliza Ann Forney were appointed executors of said will. The record further shows that notice and hearing on the petition for probate of said will was sent to appellee, together with the other heirs and legatees.

An inventory of the assets of the estate of Sarah Jane Bale was filed by her executors. A final report was made and filed by the executors showing that personal assets in the sum of $2,597.26 were turned over to the said Eliza Ann Forney. The final report was approved and the executors discharged on May 8, 1928.

On the day the final report was approved, and the executors were discharged, Eliza Ann Forney received the sum of $2,597.26 from the estate of Sarah Jane Bale, and issued a receipt to appellant, evidencing that fact. The receipt states that the said sum of $2,597.26 was a part of the corpus of said estate, the income to be used by the said Eliza Aim Forney during her lifetime, the appellant to receive the share to him from said estate at final distribution.

On the day Eliza Ann Forney gave the receipt to appellant, she took out a certificate of deposit of the First Trust and Savings Bank for the amount last above mentioned. Subsequently she placed the sum in the fourth issue of United States Bonds, known as Liberty Bonds. The denominations of the bonds were two $1,000 bonds, one $500 bond and one $100 bond.

Appellant testified that he saw the bonds in the home of Eliza Ann Forney, in the fall of 1918.

Eliza Ann Forney died August 4, 1925. Appellee was appointed administrator of her estate. On September 8, 1925, he filed an inventory showing $4,630 in notes and accounts, in the estate, among which were four United States Liberty Bonds, of the par value of $2,600. On January 4, 1926, the probate court of Peoria county, on petition of appellee, granted leave to him to sell one United States Fourth Liberty Loan Bond at the par value of $100; one United States Fourth Loan Bond at the par value of $500; two United States Fourth Liberty Loan Bonds of the par value of $1,000 each. The report of sale of appellee shows the sale of said bonds for the sum of $2,749.25, on September 29, 1927.

On June 19,1928, appellee filed the report of account in the probate court, which shows, after making a partial distribution to the next of kin, except appellant, the sum of $1,426.46 still in his possession.

Appellee, in his affidavit of merits, admitted the receipt of $2,600 worth of Liberty Bonds among the assets of the estate of Eliza Ann Forney, but denies any knowledge of the source of the bonds from which they came. The defense is that appellee received the Liberty Bonds and other assets of Eliza Ann Forney in a representative capacity; that he is not liable individually ; that appellant is not entitled to recover for the reason that he did not file a claim in the probate court within one year of the grant of letters of administration to appellee.

It is insisted by the appellant that his interest in the estate of Sarah Jane Bale, decéased, passed to him on the death of Eliza Ann Forney without any action on the part of her administrator.

The distribution or delivery of property to a legatee or devisee, who has a life estate therein, inures to the benefit of the remainderman, and upon the termination of life estate, the title and right of possession vest absolutely in the remainderman without any action on the part of the executor or administrator. Miller v. Miller, 232 Ill. App. 86-92.

Property in which a decedent has only a life estate cannot go to his personal representatives as assets. 23 Corpus Juris 1151.

The remainderman of a fund which has passed into the hands of the life tenant’s executor is not a creditor of the life tenant’s estate within the provisions of the probate law, relating to actions by creditors of deceased persons. Probate Court v. Williams, 30 R. I. 144,19th A. & E. Ann. Cases, 554.

Miller v. Miller, supra, is authority for the rule that when the life fund under the will of Sarah Jane Bale was delivered to Eliza Ann Forney, the delivery inured to the benefit of the remainderman, and, upon the termination of the life estate, the title and right of possession vested in the remainderman, without any action on the part of the administrator.

The vesting of an interest devised by will does not depend upon the right to the immediate possession of it, but where the interest is fixed, it may vest though there be no right of present enjoyment. Wills v. Southwell, 334 Ill. 448.

The title of Eliza Ann Forney to the corpus was divested immediately upon her death. Neither her representatives nor her heirs had any right, title, claim, interest or demand of any kind or character against it.

Under the language of the will in question, upon the death of Eliza Ann Forney, the only logical conclusion to be reached is that the interest of the appellant, under the provisions of the will, were vested in him and he was entitled to the same without any action on the part of the administrator. The title being so vested, there was no necessity for filing a claim or bringing a suit to recover the fund in question. Since the devise in question to the legatee was vested, it was not assets of the estate of Eliza Ann Forney.

In Havill v. Newton, 202 Ill. App. 15; Sando v. Smith, 237 Ill. App. 570, the rule is announced that an administrator is personally liable in an action at law to recover assets which are not any part of the estate which he represents. In Gillette v. Plimpton, 253 Ill. 147-152, an administrator collected notes payable to his intestate and another party. The court held that the administrator was personally liable in an action at law by the administrator of the other party for the share of the other party in the proceeds of the notes. In Havill v. Newton, 202 Ill. App. 15, plaintiff failed in his action because it was brought against the administrator, as such, involving a recovery of assets which did not belong to the estate. The action should have been against the individual. This case announces the rule that where an administrator is sued in his individual capacity, a judgment recovered against him, the probate court should allow credit in his account for payment, especially where the defense is made in good faith on behalf of the estate, and a proper showing is made to that effect.

The case of Sando v. Smith, 237 Ill. App. 570-585, 586, supports the contention of the appellant that it was proper, since the fund involved was not a part of the estate of Eliza Ann Forney, to sue the appellee in his individual capacity.

In Mills v. Bailey, 88 Md. 320, it was held that where it is proved that a legatee held the residue of the testator’s estate for the benefit of the remainderman, subject to her power to consume and dispose of it, and that the legatee’s administrator received an undisposed portion of the residue, it entitles a remainderman to judgment 'against him in an action for money had and received. The same principle is found in Gillett v. Hickling, 16 Ill. App. 392.

It is a well recognized doctrine that the action for money had and received may be maintained whenever the defendant has obtained money of the plaintiff which, in equity and good conscience, he has no right to retain. When money has been thus received, the law implies a promise to pay, notwithstanding there was no privity between the parties. First Nat. Bank of Springfield v. Gatton, 172 Ill. 625.

During the trial it appears that appellee objected to certain testimony that was offered on the part of appellant. It is insisted that appellant was disqualified from testifying to conversations with Eliza Ann Forney. We think that appellant was competent to testify, either as to conversations or transactions with Eliza Ann Forney, during her lifetime, that related in any manner to the fund in question. It will be remembered that appellee was not sued and was not defending in a representative capacity.

The case of Sondo v. Smith, supra, announces the rule that sustains the contention of the appellant, that appellant was a competent witness to testify as to conversations had by him with Eliza Ann Forney and concerning the fund in question, and at pages 585 and 586 the court said, “Inasmuch as there is to be another trial of this case, we feel that we ought to say that, in our opinion, the plaintiff should be permitted to testify, as she did in the first trial of the case, as to occurrences which are alleged to have happened prior to the death of the deceased. The defendant is properly sued here, not as an administrator, but in his individual capacity. Havill v. Newton, 202 Ill. App. 15; Whitaker v. Shuman, 161 Ill. App. 568. It is true that he claims the right to retain the money sued for, on the theory that it is a part of the estate of his deceased sister and, therefore, he, himself, will not be permitted to assume an attitude inconsistent with that position. It is for that reason that we have held that he, claiming the right to retain this money as an officer of the court, will not be permitted to invoke the rule as to voluntary payments in ignorance of legal rights. But when it comes to the rules of evidence to be applied to the plaintiff as to the proof of her case, we must remember that the plaintiff may only recover in this case on the theory that the money she is suing for is not a part of the estate of her deceased sister, and that such being the case, the defendant, in wrongfully retaining it, is liable as an individual. Inasmuch as the plaintiff may recover only on the theory that the money sued for was not a part of her deceased sister’s estate, the rules of evidence eliminating the testimony of a plaintiff in a suit against an administrator may not properly be applied here.”

It has already been shown that Eliza Ann Forney received $2,597.26 under the terms of the will of Sarah Jane Bale; that she immediately invested the fund in a certificate of deposit; in the fall of 1918, the fund was changed into U. S. Bonds, known as the Fourth Liberty Bonds, the denominations of which have heretofore been stated. This possession of the life fund in the form of Liberty Bonds in the fall of 1918 is presumed to have continued until the contrary is proved. Burgener v. Lippold, 128 Ill. App. 590; 10 Ruling Case Law 872. If no such bonds had been found in the possession of Eliza Ann Forney at her decease, then it is likely that the presumption of continued possession would have been overcome.

The appellee, in his affidavit of merits, and the inventory and order of sale of personal property, in the estate of Eliza Ann Forney conclusively show that Eliza Arm Forney did have in her possession at her death Liberty Bonds, answering the description of the bonds which she was shown to have possessed, and into which the life fund had been converted.

It is insisted by appellee in his affidavit of merits, and as evidenced by his objection to the admissibility of certain evidence, that no formal demand was made upon him by appellant for the fund in question. The evidence shows that appellee had notice of the probate of the will of Sarah Jane Bale. Appellant sought to show that he talked to and notified the attorney for appellee, and had advised him of the nature of his demand, under the will of Sarah Jane Bale, after appellee had been appointed administrator of the estate of Eliza Ann Forney, but the court refused to admit the testimony. In this we think the court was in error. It was essential to the claim of appellant to identify the fund. It appears to us that it was admissible for the appellant to explain and to furnish appellee with such information he possessed relative to the fund. It was likewise the duty of appellee to inform himself as to the facts concerning the fund.

In conclusion, we are of the opinion that the devise of the $1,000 in question was a vested one; that it was vested in the appellant at the time of the death of the testatrix; that the suit in question was properly instituted against appellee in his personal capacity; that the fund involved is not a part of the assets of the estate of Eliza Ann Forney; that the court erred in refusing to admit certain testimony, as herein indicated, on the trial of the cause.

We conclude therefore, that the judgment of the circuit court of Peoria county should be reversed and the cause remanded.

Reversed and remanded.


author: Mr. Presiding Justice McSurely

text:
    Rudolph Lederer, Appellee, v. Railway Terminal & Warehouse Company, Appellant.
    Gen. No. 33,556.
    Matchett, J., dissenting.
    Opinion filed March 17, 1930.
    Rehearing denied March 31, 1930.
    Tenney, Harding, Sherman & Rogers and Winston, Strawn & Shaw, for appellant; Roger Sherman, Henry F. Tenney, John C. Slade, Richard H. Hollen and Thomas A. Reynolds, of counsel.

      Defress, Buckingham, Jones & Hoffman, for appellee; Wilfred M. Doherty, of counsel.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.

This is an appeal by defendant from an adverse judgment for $56,234 entered upon the verdict of a jury in an action to recover damages from fire to some bonded whisky which was stored in a room in defendant’s warehouse in Chicago.

The first two counts of plaintiff’s declaration, as amended, were the usual counts in bailment, alleging that plaintiff had delivered cases of whisky to the bonded warehouse of defendant, for which defendant issued warehouse receipts to plaintiff, but so carelessly and negligently kept the same that a large number of cases were lost and damaged. The third and fourth counts charge specific negligence in respect to a sprinkler system, in that defendant caused the water to be shut off from the sprinklers in its warehouse, by reason of which a large number of cases of whisky were burned, destroyed and damaged by fire. The fifth count was a count in trover. As to this last count, trover can be maintained only where plaintiff can show possession or immediate right of possession at the time of the alleged conversion. The facts hereafter stated wholly negative the existence of this element.

The case was tried on the theory of an ordinary bailment and the jury was instructed accordingly. In such a case, where the goods delivered to the bailee are not returned or are returned damaged, the law presumes negligence on the part of the bailee unless he shows that the loss did not result from his negligence. Byalos v. Matheson, 328 Ill. 269. Considering this as an ordinary bailment case, we hold that the evidence shows that the fire which did the damage to plaintiff’s whisky was not caused by any negligence of defendant.

In 1919, before national Wartime Prohibition became effective, plaintiff was the holder of distiller’s Certificates for a large quantity of Kentucky whisky held on deposit in bond in various distillery warehouses in that State, upon which the internal revenue tax had not been paid. In that year those certificates were turned over to a whisky salesman named Weis for the purpose of having the whisky brought to Chicago. This was done and the whisky with a considerable amount in addition was transferred to the warehouse of Wakem & McLaughlin, in Chicago. In 1923 the United States Government ordered the Wakem & McLaughlin bonded warehouse discontinued and that the whisky held therein be transferred to two other Chicago warehouses — one the building of the Sibley Warehouse & Storage Company and the other the building of defendant. The designation of these warehouses was under what is called the Concentration Act of February, 1922. In accordance with this order, 12,350 cases of plaintiff’s whisky were transferred to defendant’s building in 1923. This was under bond, pursuant to government permits, and under guard and control of government officers. Upon arrival of the cases at defendant’s warehouse building they were deposited in the government warehouse room and placed in charge of a government storekeeper. The rate of storage was in accordance with an agreement made between plaintiff and the defendant and was paid by plaintiff monthly. Weis testified that a representative of the defendant had asked him to store all of plaintiff’s whisky in defendant’s warehouse, but this was not done, approximately half of it being transferred to the Sibley warehouse. Under the law the commissioner of internal revenue had the power to designate the particular warehouse to which the whisky should be transferred.

Defendant owns and operates a general warehouse building comprising six floors and a basement. It is of brick and heavy laminated mill construction and is divided into three vertical sections known as A, B and C, by heavy brick fire walls with automatic fire doors in the openings between sections. The government bonded warehouse room occupied the entire top floor of section C — a single large room 150 feet long and 91% feet wide; alterations were made so that it should comply with government regulations for the storage of whisky. Certain openings were entirely closed up with brick and the steel doors locked on the inside, so that when the whisky was moved in there was only one entrance to this room. The windows in the outside wall had bars, as the government regulations required ; steel shutters were added. A small office for the use of the government storekeeper was built in one end of the room, provided with windows about 4 feet from the floor, so as to give the storekeeper a full view of the room. The single door to the warehouse room was kept securely locked, in accordance with government regulations, with a special government padlock, and was never opened or unlocked except by the storekeeper, who had the only key. Except when the storekeeper was there, no employee nor anyone had any means of access to the room. While the storekeeper was present employees of defendant could enter with the storekeeper’s permission, and it is in evidence that certain employees were permitted at times to enter. No whisky could be brought in or taken out of the room except by government authority and upon government permit.

The storekeeper was regularly on duty from 8:30 a. m. to 5:30 p. m., except Saturday afternoons and Sundays. The fire which damaged the whisky occurred on Saturday afternoon, January 31, 1925, while the storekeeper was absent and the government room was locked and sealed. The fire was first discovered about 5 o’clock by someone outside the building, nearly four hours after the government storekeeper had left the premises after locking the door and attaching the government seal to the lock. The fire started in this government warehouse room and was confined to it except at one spot in the floor where it burned through to the lower floor but did no damage there on account of the sprinklers operating on that floor. The discoverer of the fire notified some of defendant’s employees who were in the building. Among these was defendant’s superintendent,- Peterson, who testified that he then went as rapidly as he could to the door of the government warehouse room and found it locked; that the firemen who arrived there at virtually the same time broke the government padlock with an iron bar and opened the door. The room was in a mass of smoke. The firemen, after breaking holes in the roof and pouring in a large amount of water for several hours, extinguished the fire. The deputy collector of internal revenue was notified and arrived at the warehouse about 10 o’clock that night and immediately assigned men to guard the room both day and night. The roof was repaired the following week, the government officials remaining in charge continuously.

There is no definite evidence as to how the fire started. A Mr. Both, an inspector for the Chicago Board of Underwriters, testified that he had inspected the room in question on December 1, 1924; that he noticed in the little office in the room a wooden box with some sawdust used as a cuspidor; that he told the government man in charge that he should not have a wooden cuspidor, as it was a fire hazard. There is no evidence that the wooden cuspidor was there when the fire occurred two months afterwards. He also testified that he next saw the premises on February 2, 1925, two days after the fire, and he gave his opinion that the fire started in that office. The witness, however, qualified this statement by saying that he would make no definite assertion as to where the fire started; that “nobody knows”; that he based his opinion on the fact that the fire had burned through the floor of the office and that this was the only place he found where the fire burned through the floor; that the fire probably originated in that section. He testified that the fire clearly started in the government warehouse room and did not go outside of that room.

These admitted facts prove that the fire was ndt the result of any negligence of defendant. The fire originated in the warehouse room after the government custodian had left. It was impossible for defendant’s employees to enter the room in question after the custodian had locked the door and sealed the lock. The evidence tends to indicate that the fire was caused by some carelessness of this custodian, who did not testify. There is a total absence of any evidence indicating that it was caused by any negligence on the part of defendant. Where a bailee shows that the damage was the result of no negligence on his part, he has relieved himself of the presumption that his negligence caused the damage.

Another view leading to the same result, presented in defendant’s brief and which the writer of this opinion is inclined to favor, is that this is not an ordinary bailment case, for the reason that the possession of the goods is not in the defendant as bailee but is in the possession and control of the government storekeeper. In re Miller Pure Rye Distilling Co., 176 Fed. 606; Taney v. Pennsylvania Nat. Bank, 187 Fed. 689, 232 U. S. 174. If the possession of the bailee is not actual, it does not devolve upon him to account for the loss by showing that he was free from negligence. Lemnos Broad Silk Works, Inc. v. Spiegelberg, 217 N. Y. S. 595; 6 C. J. 1159; Bertig Bros. v. Norman, 101 Ark. 75, 141 S. W. 201. However, we do not develop this latter view, as the result upon either theory of the case is the same.

Plaintiff in the third and fourth counts of his declaration asserted specific negligence of the defendant with reference to its sprinkler system.

Defendant’s warehouse was equipped with water sprinklers and the room where this whisky was stored was equipped with such sprinklers placed close to the ceiling in considerable number. When there is a fire the heat will fuse the link in the sprinkler and cause it to melt, releasing a cap and letting water flow into the room. The office of these sprinklers is to extinguish or retard a conflagration which has already started. The evidence was, and it is conceded, that the sprinkler pipes in the room in question were intentionally shut off by defendant two weeks before the fire.

Plaintiff alleged that defendant in shutting off these sprinklers from the room in question caused the loss and damage of a large number of cases of whisky in said fire. Plaintiff introduced no evidence whatever tending to support this allegation. On the other hand, defendant’s witnesses testified that the sprinklers were turned off from this room to prevent freezing. The president of defendant’s company testified that it was a good system but that from his many years of experience in the operation of such systems it was found necessary under severe weather conditions to close off parts of the same for longer or shorter intervals to prevent freezing; that he gave instructions to turn off the sprinkler system from this room; that the sprinklers were close to the roof and if they were left turned on, were liable to freeze; that with the room in question locked and with no access possible to defendant’s employees from approximately Saturday noon until the following Monday morning, it was unsafe, at the particular time of the year, to leave the sprinkler system with “the pipes filled with water in that government room under periods of low temperature outside. ’ ’ This witness also testified that he kept track of the weather forecasts in order to determine whether the sprinkler system should be turned off; that the forecast for the night of Saturday, January 31, 1925, and for the following Sunday for Chicago and vicinity was “Fair; cold wave; lowest temperature tonight 15° above zero, or lower, and probably near zero Sunday night; strong northwest winds. ’ ’

Another witness, the chief engineer of the Chicago Board of Underwriters, testified that he was thoroughly familiar with various types of sprinkler systems used in Chicago, and that on or about January, 1925, there was a general practice in Chicago with respect to closing off portions of sprinkler systems under certain conditions; that where such systems are exposed to freezing they are generally shut off; that if the water was left on and freezing occurred, it was usually accompanied by a bursting of the pipes or the fittings and the water flowed through the openings. Another witness who at the time was an engineer for defendant, testified that their general practice was, whenever the temperature got down to the freezing point, about 28° or 32°, to close the sprinkler system on the top floor; that the valves controlling the system in the government room were within the room and that it was closed off so that water in the pipes would not freeze. With these facts testified to by witnesses, there was nothing to submit to the jury tending to support the charge of negligence with reference to the sprinkler systems.

Furthermore, there was and could be no evidence even remotely connecting the sprinkler system with the origin or cause of the fire, nor any evidence that, even if it had been operating, it would have prevented the fire. Possibly at a certain stage of the fire already existing, the heat might have reached a point which would have melted the fuse bars and released the water and thus hindered the progress of or extinguished the fire, but the record leaves this solely to speculation and guesswork. As was said in Peterson & Co. v. Industrial Board, 281 Ill. 326, “liability cannot rest upon imagination, speculation or conjecture.” See also Chicago Union Traction Co. v. Hampe, 228 Ill. 346; Coffin v. Chicago City Ry. Co., 251 Ill. App. 169.

The defendant moved the court that the jury be instructed to find for the defendant, which was refused. We are of the opinion that such an instruction should have been given, as there was a total failure of proof that defendant was guilty of any act of negligence which caused or contributed to the fire or to any of the damage resulting therefrom.

The judgment will therefore be reversed with a finding of fact.

Reversed with finding of fact.

O’Connor, J., concurs.

Hatchett, J., dissents.

We find, as an ultimate fact, that defendant was not guilty of any of the charges of negligence made in plaintiff’s declaration or any count thereof.


text:
    Otto Ziebell et al., Appellees, v. Village of Posen, Appellant.
    Gen. No. 33,895.

      Opinion filed March 17, 1930.
    W. Otto Wielgorecki, for appellant; Walter F. Brody, of counsel.
    Deneen, Healy & Lee, Oscar M. Torrison and William G. Worthey, for appellees; Roy Massena, Oscar

      M. Torrison, William G. Worthey and Marshall A. Pipin, of counsel.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.

October 3, 1927, the complainants, 44 in number, a majority of the voters in the territory which the Village of Posen, defendant, attempted to annex, filed their bill asking for an injunction to restrain this attempt. A temporary injunction was issued. Subsequently an .amended bill was filed, to which defendant demurred. This was overruled and a decree entered making the injunction permanent. Defendant appeals.

Defendant raises only one point in its brief, namely, that the validity of the annexation proceedings can be tested only by quo warranto and that a court of equity has no jurisdiction over the subject. Complainants reply that quo warranto is founded on possession and user of the disputed office or territory and that their bill was filed before this stage was reached and pending an uncompleted attempt to annex.

Bearing on this major issue is the question as to whether the proceedings were attempted under the annexation statute in force prior to an amendment thereto, effective July 7, 1927, or after such amendment. The statute prior to this amendment is found in ch. 24, Cities and Villages Act, if 409, Cahill, 1925, p.375. This is the act of 1872. The statute as amended July 7, 1927, is in ch. 24, Cities and Villages Act, if 409, Cahill, 1929, p. 401. They are quite lengthy and it is unnecessary to recite all their provisions in this opinion. Complainants contend that the annexation proceedings are void whether under the 1872 act or the amended act of 1927. The facts admitted by the demurrer show that one or both of these statutes was violated in the following respects:

The petition for annexation circulated by the defendant was signed by 13 names, of which 8 were property owners and 5 legal voters. These 13 signers were not a majority either of property owners or legal voters of the territory, as there were 62 property owners and legal voters therein. The statute of 1872 and of 1927 requires a majority of property owners or legal voters as signers. In People v. City of St. Elmo, 306 Ill. 168, the court in construing this statute held that if the petition did not contain the signatures of a majority of the owners of real estate in the territory proposed to be annexed, it did not meet the requirements of the law and the proceedings under it were void.

The demurrer admitted that the petition was signed by three persons purporting to be property owners and legal voters, but who in fact were neither and were only temporarily residing in the territory sought to be annexed.

Notices of the election called under the ordinances passed by the board of trustees were posted only 6 days prior to the election. The statute (ch. 46, 47, Cahill’s Illinois Statutes) requires at least 20 days prior posting.

The bill alleges and the demurrer admits that the lands lying in the territory sought to be annexed are used exclusively for farming and agricultural purposes and are more than one-third of the area of the Village of Posen. The annexation of such lands is forbidden by both the old and the amended statutes, except with the written consent of the owners, which was not obtained. The statute, Cahill’s St. ch. 24, jf410, says: “No tract of land used exclusively for agricultural purposes shall be embraced in such proposed annexed territory without the written consent of the owner or owners thereof attached to and filed with said petition. ’ ’

Under the statute of 1872 annexation elections must be held within 60 days after the petition is filed. The bill alleges an election was held September 6, 1927. The petition, then, must have been filed July 8, or after the amendment of July 7,1927, was in force; otherwise the election on September 6th was held more than 60 days after the petition was filed.

The bill alleges that when complainants learned of the proposed annexation, they made a request upon the village officers and agents to see the petition, ordinances and records, but the officers did not produce them, claiming they did not know where they were; that the defendant was about to file a copy of the ordinances and map of the territories annexed with the county clerk of Cook county and the recorder, as the statute of 1872 requires, and thereupon to levy and collect taxes from the owners and voters in such territories and to exercise authority over the inhabitants and property therein. The bill was filed before the ordinances and map were filed and a temporary injunction was allowed, restraining the defendant, its officers and agents from filing said ordinances and map and restraining the defendant from taking any proceedings purporting to annex said territories.

The bill alleged that the day after the injunction writ had been served on the defendant and while it was in full force and effect, the president of the defendant filed or caused to be filed with the recorder of Cook county a copy of said ordinances, together with a map of said territories and filed the same also with the county clerk of Cook county, contrary to the writ of injunction, and that during its pendency and while the injunction was in full force taxes were attempted to be levied and collected from the inhabitants of said territories by the Village of Posen.

Under the circumstances shown by the record before us, is quo warranto the exclusive remedy, or may complainants properly seek relief in a court of equity? Under the law of 1872 it is provided that, where a majority of votes are cast for annexation, the board of trustees “shall within ninety days thereof, by ordinance, annex such territory to such city, village or town, upon filing a copy of such ordinance with an accurate map of the territory annexed ... in the office of the recorder of deeds.” This would indicate that the proceedings to annex are not completed until . the ordinance and map are filed as required and that this was a necessary step. If we view the proceedings as under the 1872 statute, they were not completed when complainants’ bill was filed and the temporary injunction issued.

In this respect the instant proceedings differ from those under consideration in Baird v. Community High School Dist., 304 Ill. 526; Ogle v. City of Belleville, 238 Ill. 389; Manchester Community High School Dist. v. Murrayville Community High School Dist., 309 Ill. 403, cited by defendant. In the first of these the court rests its decision upon the fact that the bill specifically alleged a de facto district and that the board was in actual possession and exercising its powers and franchises. In the second case the bill alleged that annexation had been completed and that the mayor and city council had assumed corporate jurisdiction over the annexed territory. In the last case it appears that the school district under consideration was already in existence and functioning. In Board of Education v. Thorp, 336 Ill. 227, the opinion recites that the board “has assumed and exercised dominion and control over the disputed territory. ’ ’ Some of the other cases cited by defendant involved proceedings to collect taxes, where it was held that the validity of completed annexation proceedings could not be tested indirectly. In all of the cases cited by defendant the proceedings were to test by quo warranto the validity of completed annexation, where the authorities had been exercising their functions for some time.

As against defendant’s position, it has been held as a general proposition that an injunction will lie to prevent unlawful acts of a municipal corporation. Griswold v. Brega, 160 Ill. 490; People ex rel. Nelson v. Taylor, 281 Ill. 355, and cases there cited. To the same effect are decisions in other jurisdictions. Layton v. Mayor and City Council of Monroe, 50 La. Ann. 121; City of Pueblo v. Stanton, 45 Colo. 523; Morris v. City of Nashville, 74 Tenn. 337.

Quo warranto would not lie in the instant case because there had been no usurpation or assumption of franchise by the defendant. In People v. O’Connor, 239 Ill. 272, involving the validity of annexation proceedings, the court said:

“The sole purpose of the information (in quo warranto) is to require the defendant to show by what warrant he is holding and exercising the license, privilege or franchise in question. ’ ’

In People ex rel. Koerner v. Ridgley, 21 Ill. 65, it was held that the information for quo warranto was insufficient because there was no distinct averment that the defendants held or exercised any office or franchise. Other cases to the same effect are People ex rel. Evans v. Callaghan, 83 Ill. 128; People ex rel. Brothers v. Dodds, 310 Ill. 607; People ex rel. Wilcox v. Barber, 265 Ill. 316; People ex rel. Marh v. Hartquist, 311 Ill. 127. In High on Extraordinary Remedies, 3rd Ed., sec. 627, the author says that to lay the foundation for proceeding by quo warranto:

“There must in all cases have been an actual possession and user of the franchise. It is not sufficient, therefore, that the person against whom the remedy is invoked should have merely claimed the right to take the official oath, but an absolute user must also be shown. ’ ’

In the case at bar the territory had not yet been annexed and the defendant had not yet assumed to exercise control over it when the bill was filed; consequently, it was not possible by quo ivarranto to inquire by what right the village exercised authority over the territory. Under such circumstances complainant properly sought the assistance of a court of equity. People v. McWeeney, 259 Ill. 161; Morgan Park v. City of Chicago, 255 Ill. 190.

We have, for the most part, considered these proceedings as having been commenced under the act of 1872 and prior to the amendment of 1927. We are of the opinion, however, in view of the date of election— September 6, 1927, — that the conclusion is inescapable that no annexation proceedings were commenced prior to July 7, and therefore any annexation proceedings were controlled by the statute in force July 7,1927.

The statute as amended requires that a petition in writing, signed by a majority of property owners and also signed by a majority of the legal voters residing in the territory proposed to be annexed be filed with the county court, praying for the annexation of the territory to the village, and that the village submit the question of annexation to the board of trustees. The cause is then docketed by the court and time for hearing on the petition is fixed. After proper notice of the hearing, any interested person may appear and file objections thereto, and the court, after hearing, may allow or dismiss the petition. After it is allowed an order is entered finding that the petition conforms to the requirements of the act and directing that the question of annexation of the territory be submitted to the board of trustees, which question must be passed by a two-thirds majority of said board and entered on the records of said village. The ordinance does not become effective for 30 days thereafter, and not then if a referendum is ordered by the board. Not one of these steps required by the statute was taken. It would seem that the purported annexation proceedings were not only incomplete but were in fact and in law not even commenced.

It would be unreasonable to ask property owners to sit by and permit such futile and void proceedings to continue without objection on their part until after the defendant had taken possession of the disputed territory and then to file an action in quo warranto. The circumstances called for the intervention of a court of equity which could afford an adequate and direct remedy. Equity, in restraining the completion of the attempted annexation, the assumption by the defendant of jurisdiction over the disputed territory and levying of taxes, affords a more direct remedy by disposing of the matter in one proceeding. Morgan Park v. City of Chicago, 255 Ill. 190.

Another reason supporting equity jurisdiction is that otherwise complainants would have been put to many different actions to protect their interests and to prevent the levying and collection of taxes or the sale of their property for nonpayment of taxes. It is a well established principle that a court of equity has jurisdiction to interpose by injunction where it is necessary to prevent a multiplicity of suits. Smith v. Bangs, 15 Ill. 399, 400.

The demurrer admits that defendant knew that the petition was signed by an insufficient number of owners and legal voters in the territory, that no notice was given complainants of the annexation election, that notice of the election was not posted for the proper time, and that defendant concealed from complainants information of the proposed annexation and the petition. These facts would call for the interposition of a court of equity. Griswold v. Brega, 160 Ill. 490.

As a general proposition, when a proceeding is void it is a nullity and may be attacked in any manner; and it is unimportant how technically and precisely certain in point of form the record may appear. People v. Seelye, 146 Ill. 189; Payson v. People, 175 Ill. 267; People v. Chicago, B. & Q. R. Co., 231 Ill. 463; People v. Hausen, 276 Ill. 204.

For the above reasons we hold that the bill was properly filed in a court of equity, which had jurisdiction of the matter, and that the record justified the issuance of the permanent injunction, and the decree is affirmed.

Affirmed.

Hatchett and O’Connor, JJ., concur.


text:
    Rudolph Singer, Appellee, v. G. T. Cross et al., Appellants.
    Gen. No. 34,016.

      Opinion filed March 17, 1930.
    Kremer, Branand & Hamer, for appellants.
    Herman Waldman, for appellee.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.

In a fourth class case brought by plaintiff to recover damages to his -automobile, upon trial by the court plaintiff had a judgment against defendants jointly for $331.95, from which they appeal.

Plaintiff’s statement of claim alleged that the defendants or their servants owned, operated and controlled an automobile which was so carelessly operated that it collided with plaintiff’s automobile. In the affidavit of merits the defendant Illinois Hertz Driv-UrSelf Stations, Inc., a corporation, alleged that it was not operating, maintaining or controlling any automobile at the time and place alleged. The other defendants, Cross and Wilbert, denied that they were guilty of the negligence charged. The amount of damages was also denied.

The evidence shows that between 4 and 5 o’clock p. m. of March 10, 1929, plaintiff was driving his automobile north on Wabash Avenue in Chicago, when there was a collision at the intersection of 39th Street with another automobile coming from the east. This latter automobile was owned by the Illinois Hertz Driv-Ur-Self Stations, Inc. It was rented for a consideration to Wilbert, who had taken in the defendant Cross, who was driving the automobile at the time of the accident.

The defendant Hertz Company argues here that, as it rented the automobile to the codefendant Wilbert, he thereupon became a bailee with respect to the auto- . mobile and that the law is that a bailor is not liable to third persons for injuries received through the negligence of the bailee. That this is the rule has been stated in a number of cases in this State. City of Rockford v. Nolan, 316 Ill. 60; Woods v. Bowman, 200 Ill. App. 612; Freeman v. Dixon, 233 Ill. App. 196; Mansfield v. Shapiro, 234 Ill. App. 596.

Plaintiff replies that the affidavit of merits admitted ownership of the automobile by "the Hertz Company and this made a prima facie case that the driver was the servant of the Hertz Company at the time of the accident, citing Howard v. Amerson, 236 Ill. App. 587. This rule may be conceded, but the evidence sufficiently proves that the Hertz Company was not operating or controlling the automobile at the time of the accident. It was stipulated that this company had rented the car to the defendant Wilbert for a money consideration, and the contract of rental was introduced in evidence. There was no evidence that the defendants Cross and Wilbert had any legal relation with the Hertz Company except that Wilbert was a bailee for hire. In addition to the cases above cited, 3 R. C. L. 145 may be cited, where it is said:

“It seems to be very well settled that a bailor cannot be held responsible to a third person for the negligent use by his bailee of the chattel bailed. Such a liability could only be sustained on the theory that a bailor stands in the relation of principal or master to the bailee, and that such a relationship does not exist is indicated by the fact that the duties and obligations of the bailor and bailee are totally different and that the former has no control over the servants of the latter. Thus in accordance with this principle it has been held that the owner of a team demised for a term is not liable for an injury done by it while being driven along the highway by the bailee, although the owner is in the vehicle at the time, if there is no positive and active concurrence in the injury on his part. Pro hac vice the bailee is the exclusive owner of the thing bailed.” See also 6 C. J. 1151.

We are urged to declare that there must be an exception to this rule, as a matter of public policy, where, as here, the bailor is engaged in the business of renting automobiles. There is some merit to. this 'suggestion, but we are unable to find any substantial ground for mailing such an exception. The obligations and responsibilities of a bailor and bailee, respectively, would seem to be the same whether or not the parties are individuals or corporations engaged in letting vehicles for hire.

The judgment having been entered jointly as to all the defendants and being void as to the defendant Illinois Hertz Driv-Ur-Self Stations, Inc., it is invalid as to all the defendants. Woods v. Bowman, 200 Ill. App. 612; South Side Elevated R. Co. v. Nesvig, 214 Ill. 463; Seymour v. Richardson Fueling Co., 205 Ill. 77; Freeman v. Dixon, 233 Ill. App. 196.

Defendants argue that the greater weight of the evidence proves the plaintiff was guilty of contributory negligence. Plaintiff testified that, when he had passed the northerly street car track on 39th Street, going about 18 miles an hour, he first saw the other car coming from the right 200 feet away, at the rate of 45 to 50 miles an hour. It is doubtful if defendant’s car, even at the rate of speed estimated by plaintiff, could have reached plaintiff’s car before it crossed 39th Street. Defendant Cross testified he was driving about 15 miles an hour and that when he was 10 feet east of the intersection he saw plaintiff’s car approximately the same distance to the south of the intersection, traveling at 35 miles an hour. Wilbert gave corroborating testimony, saying in effect that the respective cars reached the street intersection at about the same time. If this was the position of the cars, plaintiff should have yielded the right of way to the other car. Partridge v. Eberstein, 225 Ill. App. 209; Fisher v. Johnson, 238 Ill. App. 25; McCarthy v. Fadin, 236 Ill. App. 300.

Production of a repair bill and evidence of payment thereof, where'there is nothing to show that it was not rendered and paid in good faith, is sufficient proof of damage. Byalos v. Matheson, 328 Ill. 269; Cloves v. Plaatje, 231 Ill. App. 183.

For the reasons above indicated the judgment as to all defendants is reversed and the cause is remanded as to defendants Cross and Wilbert, and judgment of nil capiat will be entered here as to the defendant Illinois Hertz Driv-Ur-Self Stations," Inc.

Reversed and remanded as to certain defendants. Judgment of nil capiat as to one defendant.

Hatchett and O’Cohhor, JJ., concur.


author: Mr. Justice O’Connor

text:
    Central Trust Company of Illinois, Appellee, v. Christopher J. McGurn et al., Defendants. Appeal of Christopher J. McGurn, Appellant.
    Gen. No. 34,206

      Opinion filed April 3, 1930.
    Philip R. Toomin and Everett Lewy, for appellant; Philip R. Toomin, Everett Lewy and A. L. Stein, of counsel.
    Chapman & Cutler, for appellee; Perry M. Chadwick and Charles M. Thomson, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.

By this appeal the defendant, Christopher J. McG-urn, seeks to reverse an order appointing a receiver in a mortgage foreclosure suit.

On December 14, 1929, complainant filed its verified bill to foreclose a trust deed given to secure an indebtedness of $190,000 on certain real estate in Chicago. The indebtedness was evidenced by a series of bonds and it was alleged that bonds aggregating $38,500 had beeen paid; that on August 1, 1929, default was made in the payment of 10 bonds of $500 each and a default in payment of interest due on the same date of more than $4,900; that the owners of the premises were unable to pay the taxes and special assessments levied against the property as a result of which there was a sale for the general taxes of 1927, and another sale for certain special assessments; that a mechanic’s lien had been filed and that the property was inadequate security for the protection of the bondholders, and under the provisions of the trust deed the whole indebtedness remaining unpaid was declared due.

Attached to and made a part of the bill was a copy of the trust deed. On December 18, notice was served on McGurn that application would be made for the appointment of a receiver, and on the 19th an order was entered appointing a receiver. December 21, the receiver filed its acceptance of the appointment and December 31, an order was entered on motion of the complainant nunc pro tunc as of December 19, amending the order appointing the receiver. January 16 following McG-urn took his appeal by filing bond under the statute with the clerk of the court.

By the trust deed the rents, issues and profits of the premises, as well as the premises, were pledged as security for the payment of the bonds, principal and interest. The trust deed further provided that in case of default it should be lawful for the complainant to enter into and take immediate possession of the premises and that immediately upon filing any bill for foreclosure a receiver might be appointed to take possession of the premises, collect all rents, etc., with or without notice to the mortgagor and without regard to the solvency or insolvency of the mortgagor or to the value of the premises.

The defendant contends that the court was without power to appoint a receiver without first requiring complainant to give a bond, unless the giving of such bond was dispensed with in the order of appointment as required by paragraph 55, chapter 22, Cahill’s 1929 statutes, and that since the order appointing a receiver did not provide that no bond need be given by the complainant, the order is erroneous and should be reversed. The section referred to provides: “That before any receiver shall be appointed the party making the application shall give1 bond to the adverse party in such penalty as the court or judge may order and with security to be approved by the court or judge, conditioned to pay all damage's including reasonable attorneys’ fees sustained by reason of the appointment and acts of such receiver, in case the appointment of such receiver is revoked or set aside; provided, that bond need not be required, when for good cause shown, and upon notice and full hearing, the court is of opinion that a receiver ought to be appointed without such bond.”

It is conceded by counsel for complainant, as indeed it must be, that an order appointing a receiver must comply with the provisions of the statute. The order entered on December 19, appointing a receiver, states that the matter for the appointment of a receiver was heard on the verified bill of complaint, and that due notice of the application for the appointment was given to the defendant, McG-urn, the owner of the mortgaged premises. And it was ordered that the-Foreman State Trust and Savings Bank he appointed receiver. There are other matters appearing in the order appointing the receiver which we think it unnecessary to refer to here. But no mention is made in the order that a bond need not be filed by the complainant as required by the statute. Obviously the order was erroneous in failing to comply with the statute, and there is no contention to the contrary. But counsel for complainant contend that the error in the order was remedied by the order entered December 31, which the court ordered entered nunc pro tunc as of December 19.

The record discloses that on December 31, the court entered an order which recites that the matter came on for hearing on motion of solicitors for complainant for the entry of an order amending the order of December 19 appointing the receiver, and it was ordered and adjudged that the order of December 19 be amended by inserting in an appropriate place the following: “And upon notice and full hearing, the court being of the opinion that the filing by the complainant of a bond to the adverse party need not be required, for good cause shown, and that a receiver ought to be appointed without the filing of such bond.” And by inserting a further provision that the receiver be appointed without giving bond except the funds and securities deposited by the receiver with the auditor of public accounts as by statute provided.

The defendant contends that the order of December 31 purporting to amend the order of December 19, was improper, but that even if the order might be considered as having been properly amended, it is still insufficient because no facts are set forth in the order which would excuse the giving1 of the bond. What such an order should contain has been the subject of consideration in a great many cases, some of which are: Walker v. Kersten, 115 Ill. App. 130; Watson v. Cudney, 144 Ill. App. 624; Sherman Park State Bank v. Loop Office Bldg. Corp., 238 Ill. App. 450; Chicago Title & Trust Co. v. Bickley, 255 Ill. App. 45; Mason v. Hooper, 166 Ill. App. 537.

In the Walker case, after the sale of the premises under a foreclosure decree, there was a deficiency and a receiver was appointed. Upon appeal to this court one of the contentions urged for reversal was that the order appointing the receiver did not require the complainant to give bond and no cause was shown why bond should not be required and that this was contrary to section 1 of the statute in question. In passing on this question Mr. Justice Baker, in speaking for the court said (p. 132): “In this we think the court erred. But the error was not harmful. The statute provides that the complainant shall give a bond to the adverse party conditioned to pay all damages, etc., ‘in cáse the appointment of such receiver is revoked or set aside.’ Hurd’s B. S., ed. 1903, p. 23T: The case was a proper one for the appointment of a receiver. The order appointing a receiver, therefore, will not be set aside or revoked, and there could be no recovery by appellant on the bond if one had been given.” In that case, it will be noted that, although the statute had not been complied with in any particular, yet the order appointing the receiver was affirmed because it affirmatively appeared that the case was a proper one for a receiver and therefore there could be no liability because the purpose of the statute, as expressly stated by the legislature, was to require the party making the application to give bond to the adverse party conditioned to pay the adverse party all damages, including reasonable attorney’s fees sustained by reason of the appointment, if it developed that the appointment should not have been made. It would have been an idle and useless ceremony to reverse the order because it was not in accordance with the statute where no purpose would be served by doing so. The law never requires the doing of a useless act. To the same effect is Bothman v. Lindstrom, 221 Ill. App. 262.

One of the cases often cited which holds that an order appointing a receiver will be reversed where the statute has not been complied with is Watson v. Cudney, 144 Ill. App. 624. In that case a bill was filed to foreclose a chattel mortgage and a leasehold interest, and a receiver was appointed to reopen a restaurant which had been conducted on the premises. On appeal it was sought to reverse the order appointing a receiver. The court there pointed out that the appointment of a receiver in such ease rested in the sound discretion of the chancellor; that there was a disputed ownership as to the leasehold; that to authorize the appointment1 of a receiver there must be a showing “of a right to foreclose the mortgage,” and that the allegations of the bill were insufficient to show such right. Other reasons were then pointed out why the receiver should not have been appointed. The court then referred to the statute which we now have under consideration, and said that the record failed to disclose that the applicant for the receivership had given the bond required nor was there any showing that any attempt had been made to comply with the statute, and continuing the court • said (p. 629): “To entitle appellee to the appointment of a receiver, he must as a sine qua non to the enforcement of that right give the bond required by the statute, unless it is the opinion of the court that a receiver ought to be appointed without bond, and then the court’s opinion must affirmatively appear in the order making the appointment. The statutory requirement in this regard cannot be dispensed with. It was evidently enacted for the purpose of making liable the moving party in a receivership proceeding, for such damages as might result from the improvidence of his act in bringing, about a receivership where none should have been asked.” The order appointing the receiver was reversed. In that case it is obvious that the statute in question should have been complied with because the right to the appointment of a receiver was held unwarranted under the allegations of the bill.

In Sherman Park State Bank v. Loop Office Bldg. Corp., 238 Ill. App. 450, it was held that the appointment of a receiver was erroneous where the only-authority for the appointment was the bill of complaint, which was not sworn to. After stating this in the opinion the court- referred to the statute we are now considering and said that the order appointing the receiver did not comply with the provisions of the statute because it did not affirmatively show “that the court was of the opinion that the receiver should be appointed without bond”; that “It is not enough to recite that the bond is waived ‘upon good and sufficient showing.’ The facts must be shown which would excuse the giving of a bond”; and that “The specific reason for appointing a receiver without bond must be recited in the order.” (Citing the Cudney case.)

Chicago Title & Trust Co. v. Bickley, 255 Ill. App. 45, was an appeal from an interlocutory order appointing' a receiver in a mortgage foreclosure suit. The court there quoted part of the statute in question but omitted that part of it which provides that the bond required of the party making the application shall be conditioned to pay “all damages . . . sustained by reason of the appointment ... in case the appointment ... is revoked or set aside,” which omitted part shows the sole purpose of the statute, viz., that the party obtaining the appointment of a receiver shall pay to the adverse party damages in case the appointment was unwarranted. The power of appointing a receiver in a suit is inherent in a court of chancery. The statute in question does not give the court any power but only limits the action of the court. In the Bickley case part of the order appealed from was as follows: “It is ordered by the court, upon consideration of the sworn bill of complaint herein and of the provisions of said trust deed, and for good cause shown, that the complainant herein be and it is hereby excused from giving, and shall not be required to give, the bond provided by the statute in case of the appointment of a receiver on motion of a party to the cause.” In passing on this order the court said (pp. 48-49): “There was no full hearing, and no showing that the trust deed was scant security for the indebtedness . . . and the court failed to set forth in the order of appointment that the court was of the opinion that a receiver should be appointed without bond . . . furthermore, there is no recital of any fact which would justify the court in waiving the statutory bond of complainant. . . . The fact that the court was of such opinion should have been recited in the order.

“The authorities are uniform to the effect that the order appointing the receiver must contain all the necessary findings of fact showing that the requirements of the statute were complied with, and that such findings cannot be dispensed with by reference to any other part of the record.” In that case, the reason why no part of the record, except the order appointing the receiver, could not be referred to, is not pointed out, nor is any authority cited, nor does any case passing on this question go so far. We áre unable to see why the rule that obtained in other chancery cases does not apply here. The general rule in chancery is that where the evidence is preserved in the record, the facts need not be found in the order or decree but reference may be had to the evidence to ascertain whether it sustains the order or decree. Hilenski v. Beman, 291 Ill. 543. It is certain that there is nothing in the statute that prevents such reference.

The question whether a receiver was properly appointed without requiring the bond mentioned in the statute, we think should be determined from an examination of the entire record, and if upon such examination it appears that the statute has been substantially complied with, the order appointing the receiver ought not to be disturbed. In the instant case the evidence upon which the order was entered is in the record — the verified bill — and we think it shows sufficient facts to warrant the court in excusing the complainant from giving the bond mentioned in the statute, and that they need not be repeated in the order. •

We have examined all of the cases passing on the statute in question, but we think it would serve no purpose to refer to them here. It is sufficient to say that the language used in the opinions, as to what the order appointing a receiver should contain, has not always been uniform, some of them holding in effect, as in the Gudney case, that an order appointing a receiver without requiring bond of the party making the application for the receiver, is void unless it in terms sets forth the specific facts which excuse the giving of the bond, and that where this is not done, the order is void and will be reversed; while there are other cases which hold that the order is not void but merely erroneous, such as Walker v. Kersten, 115 Ill. App. 130; Bothman v. Lindstrom, 221 Ill. App. 262, and Walenti v. Krolik, 234 Ill. App. 407.

Upon a careful consideration of all the- authorities passing on this statute, we have reached the conclusion that the whole record may be examined to determine whether a bond should be required of the complainant, and that it is not necessary that the order appointing the receiver contain the facts which, in the opinion of the court, excuse the giving of the bond. But we think the order appointing the receiver ought to show, as the statute requires, that for good cause shown upon notice and full hearing the court was of the opinion that a receiver ought to be appointed without complainant being required to give bond.

In the instant case, the record discloses that the defendant, McQ-urn, was notified that an application would be made for the appointment of a receiver; that the motion came on for hearing on the verified bill of complaint, and, so far as the record discloses, no objection was made to the appointment of a receiver. The order appointing the receiver was entered on December 19. This order was amended on December 31, and there is nothing in the record from which it appears that the defendant, McGrurn, was not notified that the complainant was seeking to have the order appointing the receiver amended. The amendment excused the giving of the bond by the complainant and it states: “And upon notice and full hearing, the court being of the opinion that the filing by the complainant of a bond to the adverse party need not be required, for good cause shown, and that a receiver ought to be appointed without the filing of such bond.” We think this amendment showed a sufficient compliance with the statute and therefore the order appealed from ought not to be reversed. Moreover, even if we were of the opinion that the amendment of the order was not properly made, we would not reverse the order because we are of the opinion that the allegations of the verified bill were sufficient to authorize the appointment of the receiver without the complainant giving bond to the adverse party. It showed that there was a default in payment of principal and interest; that the general taxes and special assessments were in default; and as a result, the property had been sold. A mechanic's lien was filed, and there is no contention that the bill did not set up such facts as would warrant the appointing of a receiver. It would therefore be 'an idle ceremony to reverse the order, which we will not do. Walker v. Kersten, 115 Ill. App. 130.

The order of the circuit court of Cook county is affirmed.

Affirmed.

McSurely, P. J., and Hatchett, J., concur.

We have examined the construction of paragraph 55, section 1, chapter 22, Cahill’s 1929 Statutes, as set forth in last paragraph of page 54, ending on page 55, of the foregoing opinion, and agree with such construction.

Barnes, P. J., G-ridley and Scanlan, JJ., Appellate Court, Second Division.

Wilson, P. J., Ryner and Holdom, JJ., Appellate Court, Third Division.


text:
    Lawrence R. Van Ness, Complainant, v. Richard J. Arado et al., Defendants. Appeal of Madison & Kedzie State Bank, Individually and as Trustee, Appellant.
    Gen. No. 34,328.

      Opinion filed April 16, 1930.
    Isaac B. Lipson, for appellant; Randolph Thornton and Fred E. Newton, of counsel.
    No appearance for appellee.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.

This is an appeal by Madison & Kedzie State Bank, individually and as trustee, from an interlocutory order appointing a receiver of certain premises involved in a mortgage foreclosure proceeding. Neither the complainant, Van Ness, nor the defendant, Victor, has appeared in this court to defend the interlocutory order.

Complainant, Van Ness, filed a bill to foreclose a second mortgage. Various mortgage and mechanics’ lien claimants, judgment creditors and the holders of a third mortgage were made defendants. The bill of complaint stated that the mortgage sought to be foreclosed was subject to a prior incumbrance to the Madison & Kedzie State Bank, as trustee, and that no priority was claimed against its lien. This first incumbrance was for $125,000, and default had been made in the payment of interest secured thereby prior to the filing of the bill to foreclose the second mortgage. Pursuant to the terms of its trust deed the Madison & Kedzie State Bank had taken actual possession of the mortgaged premises and was operating the same and collecting the rents. The answer of the bank to the bill set forth the indebtedness due it, amounting to $125,000 and the execution of the notes for the same, dated May 18, 1928, and the execution and delivery of a trust deed of the same date to secure the same. Louis J. Victor, a defendant, filed an ■answer disclaiming knowledge as to all the matters in the bill of complaint, but claiming an interest in the premises by virtue of a judgment against defendant Arado without giving the amount of said judgment, entered in the municipal court January 23, 1929. No affirmative relief was sought in this answer. Victor next filed a petition claiming that he obtained a judgment, no amount given, against Arado, one of the defendants, and setting forth the existence of the first mortgage to the Madison & Kedzie State Bank and also of the second mortgage, and also alleged mechanics’ liens; that the rents of the premises were being collected under an assignment of rents by the bank and that the premises were but scant security for the payment of the mortgages, mechanics’ liens and the judgment of your petitioner.z Without allowing the defendant bank any opportunity to plead, answer or demur to the petition and without any affidavits to support the petition, the court ordered the appointment of the Citizens State Bank as receiver of the premises. The defendant bank immediately moved by petition to vacate the order, proffering a bond, and asked leave to file an answer thereto, but the court refused to require Victor to answer the bank’s petition and denied the same and also denied the motion to remove the receiver upon filing a bond as substitute therefor, as permitted by paragraph 56 of the Chancery Act, Cahill’s St. ch. 22.

For a number of reasons the order appointing the Citizens State Bank was erroneous and must be reversed. The appointment of a receiver at the instance of a judgment creditor on merely a petition is erroneous. Such appointment must be predicated upon some pleading praying affirmative relief. Ruprecht v. Henrici, 113 Ill. App. 398. In this case the court said, speaking through Mr. Justice Adams, that the petition was a mere motion, “and we have been referred to no authority, nor do we know of any, for the appointment of a receiver, on mere petition or motion, in the absence of such bill or cross-bill. The appointment of a receiver is merely auxiliary to the ultimate relief, and if, for want of proper pleading, no ultimate relief can be decreed, the appointment of a receiver is useless.” This was followed in Gauer v. Voltz, 190 Ill. App. 189, where a similar petition was characterized as “a mere motion paper.”

As against the mortgagee in possession holding the premises as security for its bondholders after default, the appointment of a receiver at the instance of a subsequent judgment creditor of the mortgagor is improper. Peterson v. Lindskoog, 93 Ill. App. 276, and cases therein cited. It was there held that as against “a mortgagee in possession, holding the premises as security for his debt, a court of equity will not appoint a receiver of the rents and profits on a creditor’s bill filed by a judgment creditor or the mortgagor. ’■’ To the same effect are Springer v. Lehman, 50 Ill. App. 139 and Dickason v. Dawson, 85 Ill. 53.

In Bagdonas v. Liberty Land & Investment Co., 309 Ill. 103, it was said that the appointment of a receiver should be exercised with caution and only where the court is satisfied that there is imminent danger of loss if the appointment is not made. The general rule is that the applicant must show first that he has a clear right to the property itself or has some lien upon it and that the property itself or the income arising from it is in danger of loss. See also Lemker v. Kalberlah, 105 Ill. App. 445; Sherman Park State Bank v. Loop Office Building Corp., 238 Ill. App. 450. The petition failed to allege any facts showing the right of the petitioner to the appointment of a receiver.

For the reasons indicated we hold that the interlocutory order appointing the receiver was improper and that it must be vacated. ■ The order is reversed.

Reversed.

Hatchett and O’Connor, JJ., concur.


author: Mr. Presiding Justice Barnes

text:
    The People of the State of Illinois, Defendant in Error, v. Ida Dembo Burt, Plaintiff in Error.
    Gen. No. 33,940.

      Opinion filed April 22, 1930.
    Louis H. Dembo, for plaintiff in error.
    John A. Swanson, State’s Attorney, for defendant in error; Edward E. Wilson and John Holman, Assistant State’s Attorneys, of counsel.
   Mr. Presiding Justice Barnes

delivered the opinion of the court.

By this writ of error Ida Dembo Burt seeks reversal of an order entered September 9, 1929, holding her as having committed a direct contempt of court on July 15, 1929.

From recitals of the order it appears that on the latter date she was in court as a party defendant to a civil proceeding, and while in the corridor of the court room after its close fired a loaded revolver at the plaintiff in the case, and following him into the court room while the court was still in session, fired at him again, and in a menacing attitude toward the bench and pointing the loaded revolver in the direction of the judge, and using threatening, profane and abusive language, again discharged it, the bullet striking the ceiling above the judge’s desk.

Immediately after these happenings, and without the institution of any contempt proceedings she was taken to the psychopathic laboratory and thence to the county court which on July 29, nine days later, found her insane with homicidal tendencies and committed her to the Jacksonville State Hospital for the Insane.

It appears from the record that while she was confined in that institution the judge learning that criminal complaints taken out against her based upon such occurrences were dismissed for want of prosecution the day after she was so adjudicated to be insane, and learning in some way not disclosed in the record that she was “about to be discharged from the asylum,” took, as he said, the initiative to have new complaints taken out against her and issued warrants thereon. It further appears that on September 9, she was brought before the court in which said judge was sitting, under arrest upon said warrants, and that the court after transferring the cases to another judge of the court, proceeded to assume jurisdiction of her person without any rule, pleading or process in the matter and summarily entered the order of contempt above referred to.

Before entering said order, apparently to give color to the theory that she had been restored to her rights as a sane person, the court directed that there should appear in the record a certified copy of an order of the county court entered March 20, 1929, which recited that plaintiff in error had been adjudged insane in February, 1914, and on March 20,1929, was restored to her rights as having fully recovered her reason. Thereupon her counsel apprised the court that this was the first notice her attorney or anyone interested in the case had of any contempt proceedings and asked for an opportunity for her to purge herself, and further apprised the court that she had been again adjudicated insane by the county court on July 24, 1929, and committed to said hospital for the insane, a copy of which order was produced, and also a copy of the prior order adjudicating her insane in February, 1914. No order of restoration to the rights and privileges of a sane person since her last commitment was produced, and her counsel said he knew of none and urged that she in the eyes of the law was still an insane person. No one, not even the judge, claimed that any such order had been entered, the judge merely remarking, “it has been officially communicated to this court that this woman has been discharged from the Jacksonville Insane Asylum.” It is manifest that whatever personal communication was made to the judge he could not as a court take judicial notice thereof and treat it as evidence in the case. Thereupon, with full knowledge of her previous history and without having acquired jurisdiction of her person through, any judicial process to proceed against her for contempt claimed to have been committed nearly two months before that time, and without hearing any evidence whatever as to her legal status then or her state of mind at the time of the alleged contempt, the court proceeded at once summarily without any semblance of a judicial proceeding to sentence her to confinement in jail for six months or until otherwise discharged by law.

No one would question the right of the court to have proceeded as in case of direct contempt at the time of the commission of her acts when she was still in the court’s presence, or had such proceedings been then instituted and continued to the time of the court’s action. Neither of these proceedings was taken. But, on the contrary, recognizing her probable disordered state of mind, the court permitted her to be taken to proper agencies for investigation as to her sanity. Surely if she was insane at the time of committing said acts the necessary criminal intent for her conviction either of a direct contempt or the criminal charges was lacking, and in either case evidence would be heard on the claim of insanity.

But even if she had been regularly brought before the court for a hearing on the contempt charge it is hardly compatible with our sense of justice that the court with knowledge of her previous history should without any evidence as to her mental condition at the time of the alleged contempt, assume that she was sane at that time in spite of a judicial finding nine days later that she was insane and of her commitment to an institution for the insane, thus suggesting that she was insane at the time of such abnormal conduct.

But whatever authority the court might have exercised at the time of the commission of said acts to take jurisdiction of her person and proceed as in a case of direct contempt committed in its presence, it had no right to assume jurisdiction of her person.for such purpose on September 9, without any judicial process whereby it could be acquired. The mere fact that she was then brought into the presence of the court on the other criminal cases did not authorize assumption of such jurisdiction. One cannot be deprived of his liberty in this country without due process of law.

Reversed.

Scanlan and Gbidley, JJ., concur.