author: Mr. Justice Scanlan

text:
    The People of the State of Illinois ex rel. Michael J. Mulvey et al., Appellants, v. City of Chicago et al., Appellees.
    Gen. No. 39,464.

      Opinion filed December 14, 1937.
    William Daniel Johnson, Damon, Walk & Murray, Rittenhouse & Marovitz and Poppenhusen, Johnston, Thompson & Raymond, all of Chicago, for certain appellants; Maurice Walk, William Daniel Johnson and Albert E. Jenner, Jr., of Chicago, of counsel.
    James W. Breen, of Chicago, for certain other appellants ; Roy D. Keehn, Charles E. McGuire, Samuel Kart, Theodore Levin, Julius H. Selinger and Keener, Jaros & Tittle, all of Chicago, of counsel.
    Barnet Hodes, Corporation Counsel, for appellees ; Joseph F. Grossman, First Assistant Corporation Counsel, and J. Herzl Segal, Assistant Corporation Counsel, of counsel.
   Mr. Justice Scanlan

delivered the opinion of the court.

After 23 separate suits for mandamus had been filed in the superior court of Cook county, they were consolidated for trial, — The People of the State of Illinois, ex rel. Michael J. Mulvey et al. v. City of Chi cago, a Municipal Corporation, et al., Consolidated canses No. 35-S-14553. There were many plaintiffs in each suit. In 20 of the suits the plaintiffs, who were employees of the City of Chicago (hereinafter called the City) in its corporate capacity, alleged that the city council, in the annual appropriation bills for the years 1932, 1933, 1934 and 1935, fixed their salaries at certain amounts and then failed to appropriate sufficient moneys to pay the salaries fixed. In three of the suits the plaintiffs were employees of the Board of Election Commissioners of the City of Chicago, the Municipal Tuberculosis Sanitarium, or the House of Correction. We shall refer later to the claims in these three suits and the defenses interposed to the same. As to the 20 suits, the defenses, briefly stated, were, first, a denial that the city council failed to appropriate sufficient moneys to pay the salaries fixed, and an allegation that the respective amounts appropriated in the annual appropriation bills for the salaries of said plaintiffs constituted their salaries and that the City’s liability is limited to the amounts appropriated; second, that plaintiffs had been guilty of laches and that the City had been seriously prejudiced thereby; third, that the issuance of the writ would cause confusion, disorder, and grave public inconvenience, and would result in disarranging the public service. The 23 consolidated suits came on for trial by the trial court upon the pleadings and a stipulation of facts. During the progress of the hearing it was agreed that the suit People of the State of Illinois, ex rel. Philip McGuire et al. v. City of Chicago, a Municipal Corporation, et al., superior court No. 36-S-9846, be tried separately, and it was determined adversely to the plaintiffs therein upon the pleadings. We shall refer to this suit later. On January 29, 1937, a judgment was entered in the remaining consolidated suits denying the writs asked and dismissing the petitions. The plaintiffs therein filed one appeal in this court, People of the State of Illinois, ex rel. Michael J. Mulvey et al. v. City of Chicago, a Municipal Corporation, et al., Gen. No. 39,464. The plaintiffs in People, ex rel. Philip McGuire et al. v. City of Chicago, a Municipal Corporcbtion, et al. filed a separate appeal in this court, Gen. No. 39,458, hut we entered an order consolidating the two appeals for hearing.

We shall first consider defendants’ contention that all of the plaintiffs in both appeals have been guilty of such laches as bars their claims, even if they were valid, for the reason that if this contention is sustained the appeals must be determined adversely to all of the plaintiffs. In support of defendants’ contention they call attention to the following undisputed facts: That plaintiffs knew immediately after the passage of the 1932 annual appropriation bill that sufficient moneys had not been appropriated to pay them the salaries they now claim they were entitled to under the ordinance; that instead of then asserting their alleged rights, by demand, and suit, if necessary, they acquiesced in the appropriations that were made in that bill and in the annual appropriation bills of 1933, 1934 and 1935, that were drawn in the same form and manner as the bill of 1932; that “each of the petitioners received a warrant . . . for each semi-monthly period of his employment in an amount equal to such semimonthly portion of the amount appropriated for the salary or wages of the office or position of each of said petitioners; that each of said petitioners presented, or caused to be presented to the City Treasurer each of said warrants and received and accepted the amount thereof for the labor or service stated for said period” of four years; that no demand was ever made on the City to appropriate the amount of money they now claim is due them, or any part of it, until immediately prior to the filing of the instant suits. Defondants argue that if plaintiffs had raised, in any way, the question involved in their present claims after the passage of the 1932 appropriation bill, the city council would have been warned of their position, and if the claims were deemed valid, could have met them by drastic economy, and the appropriation bills subsequently passed would have been so worded as to obviate any possible dispute as to their meaning; that the claims of plaintiffs relate to the period of the great depression, when the City, because of grave financial difficulties, was obliged, inter alia, to reduce the salaries of its employees in its enforced plan of stringent economy; that when, “immediately prior to the filing of their suits as a basis for instituting mandamus proceedings,” demand was made by plaintiffs upon the city council to appropriate the amount they now claim is due them, the council, in the annual appropriation bill for 1936, made the language that applies to plaintiffs ’ salaries so clear that there can be no dispute as to its meaning. Defendants further argue that the gravity of the situation brought about by the delay of the plaintiffs in making their claims appears from the allegation in the amendment to the answer that the total liability sought to be established by the instant proceedings is in excess of $22,500,000; that other allegations in the said amendment show “that’ granting the writ in this case will result in hopeless insolvency of the City, that its credit would become seriously impaired and it would be unable to meet its ordinary and necessary expenses unless the salaries of all officers and employes serving the City in the future were reduced so radically that no one would be willing to serve the City,” and that under the undisputed facts and circumstances the court, in the exercise of its judicial discretion, was justified in denying the writ.

People of the State of Illinois, ex rel. Michael J. Mulvey et al. v. City of Chicago, a Municipal Corpora tion, et al., the first of the instant suits commenced, was filed on October 11, 1935. It was stipulated that certain plaintiffs filed a suit in January, 1934, to recover back pay for the year 1931; that a mandamus writ issued therein and the city council appropriated sufficient moneys to pay said plaintiffs their 1931 “back salaries.” That suit, however, has no bearing on the instant appeals, which have to do with the pay of the said plaintiffs for the years 1932, 1933, 1934 and 1935. So far as the claims of plaintiffs in the instant suits are concerned it was stipulated that all of the plaintiffs in all of the suits “made a formal demand on the City Council to appropriate the amount of money claimed by them immediately prior to the filing of their suits as a basis for instituting mandamus proceedings.”

In People v. Ketchum, 72 Ill. 212, it was held that the writ of mandamus is not a writ of right; that its issuance is discretionary with the court, acting upon existing facts, and viewing the whole case with due regard to the consequences of its action. That ruling has never been overruled nor modified, and has been followed in numerous cases.

The general rule that where a party has slept upon his rights and acquiesced in what has been done, equity -will not afford its aid in enforcing his demand, is familiar to all. Equally familiar is another rule, that laches is properly invoked when by delay or negligence to assert a right the adverse party is lulled into doing that which he would not have done, or into omitting to do that which he would have done with reference to the subject matter of the litigation had the right been promptly and properly asserted.

“Laches consists of such neglect or omission to assert a right as, taken in conjunction with lapse of time more or less great and other circumstances causing prejudice to the other party, operates as a bar. (Ring v. Lawless, 190 Ill. 520; Morse v. Seibold, 147 id. 318.) ” (Carroll v. Houston, 341 Ill. 531, 538, a certiorari case.)

But plaintiffs assert that the doctrine of laches is a defense which may be interposed in a court of equity only. In Schultheis v. City of Chicago, 240 Ill. 167, a mandamus proceeding, the court said (p. 170):

“It is asserted with great vigor that laches cannot be relied upon as a defense in any suit at law, and it is said, to quote the language of counsel, ‘laches is a defense which may be interposed in a court of equity only. ’

‘ ‘ This is a mistake. Cases are common in this court in which laches has been regarded as affording a defense in proceedings in quo warranto and in proceedings in certiorari, both of which are at law. Clark v. City of Chicago, 233 Ill. 113; City of Chicago v. Condell, 224 id. 595; People v. Hanker, 197 id. 409; Trustees of Schools v. School Directors, 88 id. 100; People v. Schnepp, 179 id. 305.

“In the case cited from the 233d we held that a member of the Chicago police force claiming to have been wrongfully removed would be barred by laches from his right to have the record of the civil service commissioners reviewed by certiorari if he delayed more than six months in beginning his suit unless the delay was satisfactorily explained by the petition for the writ. We are satisfied that we should adhere to the Kenneally case. ’ ’

It was held in the Kenneally case (Kenneally v. City of Chicago, 220 Ill. 485) that the writ of mandamus may be denied upon the ground of laches. If it were necessary, numerous mandamus cases might be cited wherein the courts of this State have applied the doctrine of laches.

But plaintiffs, assuming that the City is indebted to them for the amounts claimed, further contend that the doctrine of laches cannot apply to the instant suits in any event, because “the legal effect of delay in demanding the payment of a debt depends solely upon the running of the ordinary statute of limitations.” The present proceedings are not suits against the municipality, by employees, for wages, but mandamus suits, and the mere fact that the statute of limitations has not tolled as to the alleged debts, would not prevent the application of the equitable doctrine of laches. In People v. Lueders, 287 Ill. 107, a mandamus proceeding, the court said (pp. 112-113): “Generally the time limited for bringing actions at law is governed by statutes of limitation, but the equitable doctrine of laches is applied in some kinds of actions at law where the court may exercise judicial discretion and there has been such delay in asserting a right as to justify the exercise of such discretion m denial of relief.” The issuance of the ivrit of mandamus, as heretofore shown, is discretionary with the court, acting upon existing facts, and viewing the whole case with regard to the consequences of its action. If plaintiffs ’ present argument were sound, by years of inaction plaintiffs could lull the City into a sense of security and just before the expiration of the statute of limitations that applies to a debt file a petition for mandamus to compel the City and its officials to appropriate the balance of salaries alleged to have been unlawfully withheld from the plaintiffs for the entire period. If such an unconscionable course of action could prevail in a mandamus proceeding, it would necessarily cause great confusion and disorder in a municipality and might financially wreck it. A writ issued under such circumstances would operate as an instrument of injustice, and it is the settled law that the writ will not be granted where it will work injustice to a municipality. Here, the writs, if granted, would place an additional and heavy burden upon taxpayers, already overladen. It is a matter of common knowledge that during the years in question many departments of the City could not have functioned properly without the aid furnished the City by the national government. Indeed, the efficiency of several departments that are essential to the safety of life and property would have been seriously impaired. Plaintiffs concede, as they must, “the right of the City Council . . . to fix the number of employees that the City may employ and also the right of the said City Council to fix the salaries of its employees at whatever salary rate the City Council, in its discretion, may determine. ’ ’ To demonstrate the great wrong that would be done to the municipality if the writ were allowed in the instant proceeding: If plaintiffs had made the claim, now urged, when the 1932 annual appropriation bill was passed, the city council could have exercised its power to so reduce the salaries of its employees, including plaintiffs, in 1933, 1934 and 1935 as to fully protect the municipality against any loss it might sustain should the plaintiffs’ claims under the 1932 appropriation bill be held valid. Due to the failure of plaintiffs to promptly assert their claims the municipality is now confronted with an enormous claim for salaries covering a period of four years. Before the trial court it was conceded, apparently, that if plaintiffs were successful in the instant suits the City would be liable for salaries for the four years in some amount between $20,000,000 and $30,000,000. It is difficult to imagine a case where a defendant would be more prejudiced by the failure of a plaintiff to assert a right than the instant one. Plaintiffs contend that they are not estopped from demanding payment of the balance of the salaries they claim is due thém by the fact that they signed pay rolls acknowledging that they received their salaries for the stated salary period and cashed the City vouchers for a lesser sum than the amount of salary they claim was fixed in the annual appropriation bills. It may be conceded that a public officer whose compensation has been lawfully fixed is not estopped from claiming full compensation by the fact, alone, that he accepted an amount less than that lawfully fixed for his services. We are of the opinion, however, that the signing of the receipts and the cashing of the vouchers are circumstances bearing upon the question of laches. We hold that all of the plaintiffs in the two appeals were guilty of such laches as bars their claims, even if they were valid. Upon that ruling, alone, the two judgments appealed from must be sustained.

We shall consider, however, the main point raised by plaintiffs employed by the City in its corporate capacity: Their petitions allege, in substance, that the city council in its annual appropriation bill for the year 1932 fixed their annual salaries at certain amounts and then appropriated approximately 80 per cent of the said amounts; that the council followed the same procedure in the annual appropriation bills for the years 1933, 1934 and 1935; that as the council failed to make a sufficient appropriation to pay plaintiffs the salaries fixed, mandamus is the proper remedy to compel the council to appropriate sufficient moneys to pay plaintiffs, in full, the salaries so fixed. Defendants contend that the respective amounts appropriated in the annual appropriation bills for the salaries of the said plaintiffs constituted their salaries, and the City’s' liability is limited to the amounts appropriated.

The material facts are not in dispute. The annual appropriation bill for 1932 contains the following:

“Department of Police.

Amounts Appropriated

Salaries and Wages—

Captain, 54 at $4,000.00 per annum $ 169,967.16

Lieutenant, 144 at $3,200.00 per annum........................ 362,596.32

Sergeant, 540 at $2,900.00 per annum........................ 1,232,263.80

Patrolman — first year of service at $2,140.00; second year of service at $2,260.00; third year of service and thereafter at $2,500.00 per annum........................ 10,390,000.00 ’ ’

The foregoing shows the manner in which appropriations were made for the salaries of certain groups of employees in the Department of Police. The following, taken from the same ordinance, shows the manner of appropriating for salaries where a single individual occupied an office:

‘ ‘ Board of Health.

Amounts

Appropriated

President’s Office.

Salaries and Wages—

President Board of Health at $10,000.00 per annum........................ $ 7,868.85

Director of Medical Service at $7,500.00 per annum........................ 5,901.64

Director of Technical Service and Research at $6,500.00 per annum....... 5,114.75

Deputy Registrar of Vital Statistics at $4,600.00 per- annum............... 3,619.67

Assistant Bureau Chief of Vital Statistics at $3,180.00 per annum......-... 2,502.29

60 A......’........................... $25,007.20”

Sec. 8 of the 1932 ordinance provides:

“Section 8. The amount appropriated in this ordinance for each separate salary and wage item is the amount appearing at the end of the item under the heading ‘Amounts Appropriated.’

“In the case of officers and employes working on a monthly or weekly basis, snch item has been determined by taking the annual rate of compensation authorized for each such position by the annual appropriation bill for the year 1931 and deducting therefrom an amount equal to the proportionate salary or wages at snch rate for twenty-four days for the period from January 1, 1932 to April 30, 1932 and for fifty-four days for the period from May 1, 1932 to December 31, 1932, the amounts thus deducted being on account of Sundays, Saturday afternoons and such holidays as are fixed by ordinance or by action of the City Council, such deductions being in accordance with the ordinance passed by the City Council on May 4, 1932 and appearing on page 2145 of the Journal of ■the Proceedings of the City Council of that date.

“In the case of employes working six days per week, of which one may be Sunday, such item has been determined by taking the annual rate of compensation authorized for each snch position by the annual appropriation bill for the year 1931 and deducting therefrom an amount equal to the proportionate salary or wages at such rate for' one and one-half days per week for fifty-two weeks in the year 1932.

i C

“Where appropriations for an activity or service under which any of the employes authorized to be paid or compensated at an annual, monthly or weekly rate appear in this ordinance in a bulk sum or are chargeable against a particular fund or funds under general authorization, without extension of the several salary or wage items under the heading ‘Amounts Appropriated, ’ the amount authorized by this ordinance for each such position, as the appropriation therefor, shall be the rate named less an amount equal to the proportionate compensation at such rate for one and one-half days of each week in the year 1932.” (Italics ours.)

To refer to a certain group: In the case of the 144 police lieutenants, it would require $460,800 to pay them at $3,200 per annum, whereas $362,596.32 was the total amount appropriated to pay them, and $2,518.03 was the amount actually appropriated to pay each lieutenant. A like method was followed in the cases of captains, sergeants and patrolmen. Plaintiffs concede, as they must, that the council has absolute discretion in the fixing of the amounts of their salaries but they contend that the duty of fixing some amount is mandatory ; that, to use the said group as an example, the council having fixed the salary of a lieutenant at $3,200 per annum, it was under “a peremptory duty” to appropriate a sum sufficient to pay that salary; that the appropriation and payment of a lesser sum did not discharge the obligation of the City, and mandamus was the proper remedy to compel the city council to appropriate a sufficient amount to pay, in full, the salary fixed. Defendants contend that the city council fixed the salary of each lieutenant at $2,518.03 per year; that the figure $3,200 per annum was the amount appropriated for the office in the prior year, and it functions merely as a base to compute the salary of each employee where there is an appropriation for a group. The method employed in fixing the salaries in 1932 was followed in the years 1933, 1934 and 1935, each appropriation bill containing a section substantially like sec. 8 in the 1932 ordinance.

Able lawyers have taken part in the preparation of each of the three exhaustive briefs filed in support of the plaintiffs’ position. Defendants filed only one brief, but if it were entirely disregarded in the consideration of these appeals, the strained, labored arguments in support of plaintiffs’ position would force us to the conclusion that, aside from the question of laches, plaintiffs have not only entirely failed to show a clear right to the writ but have made it apparent that the alleged right is a doubtful one, to say the least. Counsel for Mulvey et al. state: “We say that if the City Council did not intend to definitely make up the additional appropriations for 1932 to 1935, as conditions improved, then the Council, by leaving everyone in the dark until 1936, was guilty of a piece of straddling and double-dealing such as is seldom witnessed in legislative halls. ... No other city administration, in any of our 48 states, has ever attempted a similar course of straddling. . . . That the Council never intended to make even temporary reductions from the salaries of police officers, but temporary under-appropriations only, during those lean years, to be made up ‘soon as the financial condition of the City should permit.’ ” (Italics ours.) Counsel for Mulvey et al. contend that the city council “fixed the salary of the plaintiffs at definite and specific sums for each year, and then proceeded to appropriate less money than was required to pay the total salaries so fixed by the said City Council.” Counsel for McGuire et al. contend that the amounts appropriated and paid to plaintiffs were intended merely as payments on account.

In Kenneally v. City of Chicago, supra, it was held (p. 503): “It has also been held that the writ of mandamus, being a discretionary writ, will only issue in a case where it appears by law that it ought to issue, and the court will not order it in doubtful cases. (Commissioners of Highways v. People, 4 Ill. App. 391.) In People ex rel. v. Davis, 93 Ill. 133, we said: ‘The court exercises a discretion in granting or refusing the writ, and, if the right be doubtful, it will be refused. ’ ” The writ will not issue unless a clear, legal right is shown. It will never issue in a doubtful case. (Quernheim v. Asselmeier, 296 Ill. 494, 499.) The petitioner must show a clear right to have performed the act sought to be coerced, and a duty on the part of the persons sought to be coerced to perforin it. (People v. Dixon, 346 Ill. 454, 461.)

“The writ is never awarded unless the right of the relator is clear and undeniable, and the party sought to be coerced bound to act. See also, The People v. Dubois, 33 Ill. 9; The People v. Chicago and Alton Railroad Co., 55 id. 95; Menard v. Hood, 68 id. 121; The People v. Illinois Central Railroad Co., 62 id. 510; Universal Church v. Columbia Township, 6 Ohio 446.” (People ex rel. Phillips v. Lieb, 85 Ill. 484, 490; Osborne v. Bradford, 346 Ill. 464, 467-8.)

“The legal right of plaintiff or relator to the performance of the particular act of which performance is sought to be compelled must be clear and complete.” (38 C. J. 582. See the many Illinois cases cited by the writer of the article in support of the text.)

Sec. 3, Part Two, Art. XII, of the Cities and Villages Act (par. 285, ch. 24, Ill. State Bar Stats. 1935; Jones Ill. Stats. Ann. 21.261) provides that the compensation of all officers shall be by salary as fixed in the annual appropriation bill. Sec. 649 of the Revised Chicago Code of 1931 provides that the compensation of all officers, clerks and employees of the City shall be determined and fixed by the city council in the annual appropriation bill. It is conceded that there is no statute or general ordinance that fixes the compensation of any of the plaintiffs who are employed by the City in its corporate capacity, and that the city council has absolute discretion in the fixing of their salaries.

Sec. 2a, Art. VII, of the Cities and Villages Act (par. 93, ch. 24, Ill. State Bar Stats. 1935; Jones Ill. Stats. Ann. 21.193) provides:

“In cities and villages having a population of one hundred and fifty thousand or more, the city council . . . shall, . . . within the first quarter of each fiscal year thereafter, pass an ordinance, to be termed the annual appropriation bill, in which such corporate authorities, subject to the limitations hereinafter contained, may appropriate such sum or sums of money as may be deemed necessary to defray all necessary expenses and liabilities of such corporation to be paid or incurred during such fiscal year. . . . Such appropriation ordinance shall specify the objects and purposes for which appropriations are made and the amount appropriated for each object or purpose. ...”

By that section, the city council is required to specify in an appropriation ordinance only the object and purpose for which an appropriation is made, and “the amount appropriated for each object or purpose.” It will be noted that the above section provides that in the annual appropriation bill the city council “may appropriate such sum or sums of money as may be deemed necessary to defray all necessary expenses and liabilities of such corporation to be paid or incurred during such fiscal year.” Defendants argue that the city council used the words “salaries and wages” in that part of the 1932 ordinance that relates to the Department of Police to comply with the provision of sec. 2a that the object and purpose for which the money is appropriated must be specified; that the reason the city council pursued the method in question in arriving at the salaries of plaintiffs appears in the answer of defendants, wherein it is stated: “The method adopted by the city council, in fixing and determining the current annual rate of compensation of the plaintiffs and all other officers and employes of the city, as hereinbefore described, was for the purpose of preserving a fixed standard of compensation which the city council hoped to restore as a current rate of compensation when the financial condition of the city should permit.” It seems to us that one of the reasons that might well have motivated the council in the use of the method in question was a desire to preserve, if possible, the status of each of the plaintiffs in respect to pensions. In any event, the controlling question is, Were the salaries of the plaintiffs fixed at the base figures or were they fixed at the amounts actually appropriated? In our judgment, the intention of the city council is plainly disclosed by the amounts appropriated and by that portion of sec. 8 of the annual appropriation bill of 1932 which provides: ‘ ‘ The amount appropriated in this ordinance for each separate salary and wage item is the amount appearing at the end of the item under the heading ‘Amounts Appropriated. ’ ” That provision seems to have been incorporated to negative the possibility that the base figure or standard of salary might be considered as the salary fixed. As defendants argue: “If the city council chooses to arrive at the amount of the salary by first establishing a standard salary and for reasons of economy immediately and contemporaneously with the establishment of such standard, ordering deductions in payment of compensation, there is no legal reason why this cannot be done.” If the city council intended that the amount appropriated for each officer was merely a payment on account, such a provision in an annual appropriation bill would be a most unusual one, and it would be expected that such intention would be expressed in apt words; but the annual appropriation bills for the years in question contain no words stating, or plainly indicating, that the amounts appropriated for the salaries of plaintiffs were merely payments on account.

Sec. 4, Art. VII (par. 95, ch. 24, Ill. State Bar Stats. 1935; Jones Ill. Stats. Ann. 21.196) provides:

“No contract shall be hereafter made by the city council or board of trustees, or any committee or member thereof; and no expense shall be incurred by any of the officers or departments of the corporation, whether the object of the expenditure shall have been ordered by the city council or board of trustees or not, unless an appropriation shall have been previously made concerning such expense, except as herein otherwise expressly provided. Pending the passage of the annual appropriation bill for any fiscal year, the city council or board of trustees may authorize heads of departments or other separate agencies of the municipal government to make necessary expenditures for the support thereof upon the basis of the appropriations of the preceding fiscal year. Any contract made, or any expense otherwise incurred, in violation of the provisions of this section shall be null and void as to said corporation and no moneys belonging thereto shall be paid on account thereof.”

Defendants contend that that section applies to the instant appeals; that the fixing of the salaries comes within the provision that “no expense shall be incurred by any of the officers or departments of the corporation, . . . unless an appropriation shall have been previously made concerning such expense . . .;” that said section applies to the incurring of liability for salaries of employees because it authorizes the heads of departments or other separate agencies of the municipal government to make expenditures upon the basis of the appropriation of the preceding fiscal year; that it authorizes expenditures pending the passage of the annual appropriation bill; that such expenditures embrace salaries of employees because the number of employees and their salaries are not fixed by the city council until the appropriation bill is passed, and in each of the years 1932, 1933, 1934 and 1935 an ordinance was passed, under the title, “Authority to pay salaries and current expenses pending the passage of the annual appropriation bill for the year.” Plaintiffs argue that “the Cities and Villages act and the general ordinances of the City Council expressly provide that the salaries of all municipal officers and employees shall be fixed in the annual appropriation bill, and that such action has never been construed as the making of a contract in violation of the terms of Section 4,” and they argne that said section has no application to the instant appeals. While we do not deem it necessary, in the determination of these appeals, to pass upon the defendants’ contention, we may say, however, that sec. 4 is instructive, because it prescribes the manner in which obligations may be incurred by municipalities (with exceptions not here material) and provides that before a liability can be incurred it must be preceded by an appropriation. The plaintiffs are forced to contend that the council fixed their salaries in the annual appropriation bills at certain amounts and therefore the City is obligated to pay them the full amounts so fixed even though the amounts actually appropriated for their salaries were insufficient to pay them the salaries so fixed. The provision in question, in sec. 4, has always been enforced. (Keith v. City of DuQuoin, 89 Ill. App. 36; DeKam v. City of Streator, 316 Ill. 123, 132, 134; Stripe v. City of Waukegan, 254 Ill. App. 74; Turner v. City of Chicago, 76 Ill. App. 649; Koons v. Richardson, 227 Ill. App. 477, 483; Higler v. City of Cairo, 245 Ill. App. 383; City of Harvard v. McCauley, 253 Ill. App. 218, 225; May v. City of Chicago, 222 Ill. 595, 599; Gathemann v. City of Chicago, 263 Ill. 292, 298; People v. Coffin, 282 Ill. 599, 613.)

Plaintiffs’ position as to their main point is based, necessarily, upon the theory that the salaries of plaintiffs were fixed in the annual appropriation bills of 1932, 1933, 1934 and 1935 not at the amounts actually appropriated but at the base figures, which, it appears, were the amounts of salaries appropriated for the offices prior to 1932. Plaintiffs fail to cite any authority that sustains their position. Neither law, reason, nor custom, in our judgment, supports it. In Gathemann v. City of Chicago, supra, it was said (p. 297): “If a statute or ordinance which authorizes the appropria-

tion of money for the payment of a salary to a public officer or employee is indefinite or uncertain 'the doubt should be resolved by adopting the smaller amount.’ (Tyrrell v. Mayor, 159 N. Y. 239.) ” We are convinced that we should be announcing a new and dangerous rule to apply in the interpretation of annual appropriation bills if we were to sustain plaintiffs’ position. We conclude that the annual appropriation bills fixed the salaries of the plaintiffs employed by the City in its corporate capacity at the amounts actually appropriated. Such cases as People ex rel. Lyle v. City of Chicago, 360 Ill. 25, cited by plaintiffs, have no application to the instant question, as they all involve situations where the salaries of the petitioners had been fixed by statute or general ordinance and the city council, in the annual appropriation bill, was required to appropriate the amounts fixed by the statute or general ordinance. In the Lyle case, the Supreme Court, after holding that Lyle was entitled to the writ because under sec. 11 of art. 9 of the constitution his salary, as a municipal court judge, could not be reduced by the city council during the term for which he was elected, saw fit to reannounce (p. 30) the following well-established principles to which we have heretofore referred:

“Mandamus is not a writ of right, and it is to be awarded or refused in the exercise of judicial discretion. Courts may, in the exercise of such discretion, in view of the consequences attendant upon its issue, refuse the writ, although the petitioner has a clear legal right for which mandamus is an appropriate remedy. (People v. Board of Supervisors, 185 Ill. 288; People v. Olsen, 215 id. 620.) In People v. Western Storage Co., 287 Ill. 612, we said: ‘There may be circumstances under which the writ will not operate fairly, will occasion confusion or disorder or will not promote substantial justice, and under which the court may therefore deny the writ though the petitioner has a clear legal right. . . . ’ ”

Defendants contend that there is another principle that applies to the instant appeals, viz., that the writ of mandamus will not be granted where it will work injustice or introduce into municipal administration great confusion or disorder, and they cite, in support of their contention, People ex rel. Krajci v. Kelly, 279 Ill. App. 22, 28; Kenneally v. City of Chicago, supra, 220 Ill. 485, 505, 508; People v. Olsen, 215 Ill. 620, 622; Michigan-Grand Bldg. Corp. v. Barrett, 350 Ill. 291, 306-7. We may add that our Supreme Court has repeatedly held that the trial court, in the exercise of its discretion, must pay due regard to the consequences which may result. The instant contention of defendants, in view of the facts in the present proceedings, is not without force.

Counsel representing the plaintiffs in People of the State of Illinois, ex rel. Philip McGuire et al. v. City of Chicago, a Municipal Corporation, et al. have filed a brief in which they argue two points only in support of their contention that the trial court erred in entering the judgment from which they have appealed: (1) “The defendants’ answer is insufficient in law, in that it expressly admits most of the essential facts alleged in the petition and does not properly traverse or deny the others,” and, therefore, the trial court erred in denying said plaintiffs’ motion to strike defendants’ answer for insufficiency in law. (2) “The fact that the court must construe the meaning of the ordinances in issue is not any valid ground for refusing the writ of mandamus. ’ ’ Defendants concede point 2, and we find no substantial merit in point 1. When the trial court denied said plaintiffs’ motion to strike defendants’ answer they “elected to stand by their said motion to strike,” and it was thereupon, on January 29, 1937, ordered that the said answer be taken as true, that the writ of mandamus be denied to said plaintiffs, and that their petition be dismissed. They were allowed, by order, to prosecute a separate appeal to this court upon the common law record.

As to the three suits brought by the plaintiffs who were employees of the Board of Election Commissioners of the City of Chicago, the Municipal Tuberculosis Sanitarium of the City, or the House of Correction of the City, defendants concede that as to their salaries “the authority to fix the salary is vested in bodies or persons other than the City Council of the City of Chicago,” and that if those salaries had been fixed by the said bodies or persons, as said plaintiffs contend, it would have become the duty of the council to appropriate therefor; but defendants contend that “the fallacy in petitioners ’ argument lies in the complete failure of the record to prove that the salaries were fixed at sums higher than the amounts appropriated; that, on the contrary, the stipulation of facts shows that the salaries were fixed at the amounts appropriated, by the proper authorities or were ratified thereafter.” The said plaintiffs deny that the record shows that the facts are as stated by defendants. We deem it unnecessary to pass upon this disputed question. We have heretofore held that all of the plaintiffs, including those employed by the said boards, were guilty of such laches as bars their claims, even if they were valid, and we are of the opinion that the defense of laches is even stronger, if possible, as to the plaintiffs employed by the said boards than it is as to the plaintiffs employed by the City in its corporate capacity, for the reason that the claims of the plaintiffs in the three suits are based upon the theory that each of the said boards fixed the number of its employees and the salaries to be paid them, and that it was mandatory on the council, when requested by said boards to do so, to appropriate sufficient moneys to pay the salaries of the employees of said boards “at the amounts fixed by the said corporate authorities of each of these departments.” We hold, however, that the unreasonable delay and neglect of the said plaintiffs in asserting what they call their unquestionable right, taken in connection with the fact that the municipality would be seriously prejudiced by such delay and neglect if their claim were sustained, make them guilty of laches of the grossest ldnd.

We feel impelled to say that we find no warrant in the record for the severe attacks that have been made upon the honesty and good faith of the city council and the city administration by counsel for certain plaintiffs. Had our attention been called, in apt time, to certain highly improper statements made by these counsel in their “Amendment to Reply Brief for Certain Appellants,” we should have stricken that brief from the files. While it is regrettable that the extremely bad financial condition of the City, due to the great depression, necessitated reductions in the salaries of the plaintiffs, it is a matter of common knowledge that during the same period practically all employees in the United States sustained reductions in their salaries or wages. Millions of employees lost their positions, and a very great number of these were forced to go upon relief to obtain support for their families and themselves. Millions are still unemployed and on relief. Despite the adverse conditions that confronted the City it retained in its employ all of the plaintiffs and those engaged in like employment, and it asserts its willingness and hope to restore the former salaries as soon as its financial condition will permit it to do so. We are constrained to believe that the instant claims were the result of an afterthought. The demands upon the municipal corporation are so unconscionable in their nature that the issuance of the writ of mandamus in the present suits would work a grave injustice to the municipal corporation.

The judgment order of the superior court of Cook county entered January 29,1937, in People of the State of Illinois, ex rel. Michael J. Mulvey et al. v. City of Chicago, a Municpial Corporation, et al., Consolidated causes No. 35-S-14553, is affirmed.

Jttdgment order entered January 29,1937, affirmed.

Friend, P. J., and John J. Sullivan, J., concur.


source: Caselaw Access Project

author: Mr. Justice John J. Sullivan

license: Public Domain

text:
    Notroma Corporation, Appellant, v. Ben Miller, Appellee.
    Gen. No. 39,268.

      Opinion filed December 14, 1937.
    Stearns & Jones, of Chicago, for appellant; Lloyd M. McBride, of Chicago, of counsel.
    Myron E. Wisch, of Chicago, for appellee; Benjamin B. Crane and James E. Brown, both of Chicago, of counsel.
   Mr. Justice John J. Sullivan

delivered the opinion of the court.

This is an attachment proceeding brought by the Notroma Corporation, plaintiff, against Ben Miller, defendant, and the Chicago Title & Trust Company, trustee under the terms of a trust agreement dated August 12, 1931, and known as trust No. 27,814, as garnishee. Miller was the beneficiary of the trust. In a trial without a jury the court found the issues in favor of defendant, rendered judgment for defendant and against plaintiff, quashed the attachment and discharged the garnishee. This appeal by plaintiff followed.

Plaintiff’s statement of claim alleged substantially that Ben Miller, defendant, and his wife, executed their promissory note dated July 5, 1928, for the prin-" cipal sum of $19,500, payable to bearer July 5, 1933, with interest thereon from its date at 6 per cent per annum and after maturity at 7 per cent per annum; that plaintiff is the owner and holder of said note; that $17,600.52 of the principal of said note has been paid, leaving a balance of principal remaining unpaid of $1,899.48; that no part of the interest due on said unpaid principal which has accrued since September 25,1934, has been paid; that said interest now amounts to the further sum of $188.36; that there is due plaintiff from defendant the total sum of $2,087.84; that defendant is not a resident of the State of Illinois; and that “plaintiff claims $2,087.84 and a writ of attachment against the property of the defendant and against the garnishee whom the plaintiff believes to be indebted to the defendant or to have in its possession, custody or charge assets or estate of defendant.”

■ Defendant alleged in substance in his verified statement of defense that he is not liable for the amount sought to be recovered from him or any part thereof and that plaintiff is estopped from bringing this action; that the court has no jurisdiction of the subject matter inasmuch as the cause of action herein was merged in the decree of foreclosure, and sale entered in the superior court of Cook county in a cause commenced April 18, 1934, by plaintiff’s assignor, entitled “Chicago Title & Trust Company, as trustee under the terms of a trust agreement dated December 31, 1928, and known as trust No. 22146, and Chicago Title & Trust Company, as trustee under a trust deed dated July 5, 1928, and recorded August 8, 1928, as Document No. 10112357 vs. Ben Miller, et ail.,” to foreclose a trust deed given to secure payment of the principal sum of $22,000, evidenced by four principal notes executed by Ben Miller and Sadie Miller, defendants in said proceeding, one of which is the note upon which the instant action was brought; that “predicated upon the default made in the payment of said notes” a decree of foreclosure and sale was entered in the foreclosure proceeding on August 29, 1934, wherein it was adjudged and decreed that Ben Miller and Sadie Miller were personally liable for said indebtedness; that September 24,1934, a deficiency decree was entered against Ben Miller finding him personally liable for $2,722.23 ; that after the entry of those decrees the Chicago Title & Trust Company transferred the note involved in this action to the plaintiff: herein; that the plaintiff is not a bona fide holder in due course; that the cause of action and all rights and liabilities of Ben Miller were merged in said decrees; and that, therefore, this court has no jurisdiction of the subject matter involved herein.

Plaintiff contends that being a purchaser for value of the note, it acquired all the rights of the former holder to sue on the note, subject only to such defenses as defendant may have had against plaintiff’s transferor and that plaintiff does not have to be a holder in due course in order to bring this action; that the owner of a mortgage indebtedness has any one of a number of remedies which may be enforced concurrently or successively until the indebtedness is fully satisfied; and that, it not being denied by the defendant in this case that the note sued on was executed and delivered by him and that the amount claimed to be due on said note is in fact still due and owing, the partial satisfaction of the indebtedness by reason of the foreclosure is no defense to this action at law on the note for the balance remaining unsatisfied.

The evidence is undisputed that plaintiff is a holder for value of the note involved in this controversy, upon which there is a principal balance due and unpaid of $1,899.48, and that there was also interest due on such principal balance amounting at the time of the commencement of this action to $188.36. Unless the defendant has a defense that would be good against the Chicago Title & Trust Company, which assigned the note to plaintiff, the latter is entitled to bring this action and obtain judgment against him.

It must be conceded by defendant, and we think it is, that the owner of a note secured by a trust deed may sue the maker of the note in assumpsit for a judgment upon his personal obligation, that he may sue in equity for the foreclosure of the trust deed, or that he may recover possession of the property conveyed by the trust deed by an action of ejectment. “These remedies are concurrent or successive as the owner of the note or trust deed might deem proper, and he may pursue any two or all three of the remedies simultaneously.” Lindheimer v. Supreme Liberty Life Ins. Co., 263 Ill. App. 524. But the defendant urges that the established rule as to the pursuit of these various remedies does not comprehend a situation such as is here presented, and that “where a foreclosure decree is entered and a deficiency judgment ‘in personam’ rendered, the subsequent vacating of such deficiency judgment will not allow the plaintiff to recover at law in a subsequent suit.” Defendant’s position is, to say the least, novel, since it is rather difficult to appreciate the difference between a situation where no deficiency judgment was entered at all and one where a void deficiency judgment in personam was entered and subsequently vacated.

Since the only defense urged in the trial court was that the instant action was barred by reason of what occurred in the foreclosure proceeding, the pertinent and important facts in connection with that proceeding necessary to be considered are (1) that the premises involved were sold and the amount received from the sale credited on the note; (2) that a deficiency judgment was entered in personam against Ben Miller; (3) that Ben Miller, who was a nonresident, was not personally served with summons in the foreclosure proceeding and therefore the deficiency judgment rendered therein against him was a nullity; (4) that at Ben Miller’s instance the deficiency judgment in personam was subsequently vacated and a deficiency judgment in rem was entered nunc pro tunc as of the date of the judgment in personam; and (5) that certain rent was collected from the premises during the period of redemption and credited on the note. The net result of the foreclosure was a partial satisfaction of the indebtedness due on the note from the sale of the property and a deficiency judgment for the balance in rem against the foreclosed property, which deficiency has never been fully satisfied. Defendant does not deny that the amount of the mortgage indebtedness remaining unsatisfied after the foreclosure is due and owing, but he insists that he should not be required to pay same because the right to foreclose on the security for payment of the debt was first exercised and that both plaintiff’s cause of action and defendant’s liability were merged in the foreclosure decree.

Thus the sole question before us for determination on the record presented is whether the entry of the deficiency judgment in the foreclosure proceeding precludes plaintiff from prosecuting this action at law to recover that portion of defendant’s mortgage indebtedness on his note which is admittedly unpaid and unsatisfied. The instant action would, of course, be barred if a valid deficiency judgment had been included in the decree entered in the foreclosure proceeding. However, the personal judgment for the deficiency that was entered therein was void ab initio since the court was without jurisdiction to enter such judgment in the absence of personal service of process on Miller. It was defendant himself who had the deficiency judgment in personam, which had been entered in the foreclosure proceeding vacated, because of its invalidity and a deficiency judgment in rem entered therein nunc pro tunc as of the date of the void personal judgment. When said void personal judgment against the defendant for the deficiency in the foreclosure proceeding was vacated, the record in that case was as clear of that judgment as if it had never been entered. That invalid personal judgment is not nor could it be effective for any. purpose. Whether or not the trial court ordered such judgment vacated it was void, the formal order vacating it merely clarifying the record. It is idle to urge that a judgment, which to all legal intents and purposes never existed, precludes recovery in this action. Neither is the unsatisfied judgment in rem a bar to the instant proceeding. Defendant is in no different position than if the personal judgment for the deficiency had not been rendered against him in the foreclosure proceeding. He was apparently not available for service of process upon him personally in that cause and without such personal service a valid judgment in personam could not have been entered against him. His mortgage indebtedness, evidenced by the note, was credited with all moneys realized from the sale of the foreclosed property, as well as with certain net rents collected from the tenants of same during the period of redemption.

An examination of the authorities cited by defendant, in support, of his contention that plaintiff as assignee of the Chicago Title & Trust Company “is es-topped and precluded from maintaining this action, predicated upon the same cause of action which was fully adjudicated in the foreclosure proceedings,” discloses that what every one of them holds in effect is that a valid personal judgment for a deficiency included in a decree in a foreclosure proceeding constitutes a bar to an action at law for the same deficiency. It is quite obvious that if the personal judgment rendered against defendant in the foreclosure proceeding was valid it would not have been necessary for plaintiff to resort to this action at law.

As to Miller’s contention that the Chicago Title & Trust Company in assigning and transferring the note in question to plaintiff committed a breach of its duty as a trustee to the defendant and that such breach constitutes a defense to this action on his note, it is sufficient to say that the entire argument in support of this contention is based on an assumed state of facts not appearing in the record. In any event this defense was neither alleged in defendant’s answer to plaintiff’s complaint nor offered or even suggested upon the trial, and not having been presented in the trial court cannot be urged or relied upon for the first time in a court of review.

Defendant’s final contention is that this appeal should be dismissed on the ground that the report of proceedings at the trial was not certified or filed within the time allowed by the rules of the Supreme Court and this court. The time within which to file the report of proceedings was extended within the statutory period by the trial court to September 15, 1936. The report was presented to the trial court on September 14,1936, and its presentation to the trial judge indorsed thereon on that date. It was signed and certified by the trial judge September 25, 1936, and pursuant to the court’s order of the same date filed by the clerk of the court nunc pro tunc as of September 14, 1936, the date on which it was originally presented. There is no merit in the instant contention. (Sullivan v. William Ohlhaver Co., 291 Ill. 359; La Salle Opera House Co. v. La Salle Amusement Co., 289 Ill. 194; Madden v. City of Chicago, 283 Ill. 165; City of East St. Louis v. Vogel, 276 Ill. 490; City of Lake Forest v. Buckley, 276 Ill. 38; People v. Windes, 275 Ill. 108; T. E. Hill Co. v. United States Fidelity & Guaranty Co., 250 Ill. 242.)

Plaintiff is the holder for value of the note upon which this action was brought and it is admitted that the indebtedness on said note,; remaining unsatisfied after the foreclosure, is due and owing by defendant. No sound reason has been advanced why Miller should not be compelled to pay the balance due.

For the reason stated herein the judgment of the municipal court is reversed and judgment entered here in favor of plaintiff and against defendant for $2,087.84 and the cause is remanded for trial of the issues raised by the answer of garnishee.

Judgment reversed; judgment here in favor of plaintiff and against defendant for $2,087.84; and cause remanded for trial of issue raised by garnishee’s answer.

Friend, P. J., and Scanlan, J., concur.


text:
    Benjamin B. Morris, Appellee, v. Vera Carroso et al., Defendants. Mercantile Trust and Savings Bank of Chicago (garnishee below). Clara Siegel (intervening petitioner below), Appellant.
    Gen. No. 39,284.

      Opinion filed December 14, 1937.
    Rehearing denied December 28, 1937.
    Charles J. Traihor, of Chicago, for appellant.
    Behjamih B. Morris, pro se.

   Mr. Justice John J. Sullivan

delivered the opinion of the court.

On February 20, 1935, a judgment by confession for $4,283 was entered on certain gold bonds in favor of plaintiff, Benjamin B. Morris, and against Vera and G-eorge Carroso. Upon plaintiff’s affidavit garnishee summons was issued and served upon Mercantile Trust and Savings Bank of Chicago, garnishee. In answer to interrogatories filed in the cause the garnishee filed an amended answer April 27, 1936, stating that it had in its possession in a savings account in the name of Vera Carroso $3,999, deposited by her December 6, 1934, that it held $519.98 in a checking account in the name of Vera Carroso, and that it also had in its possession accrued interest amounting to $13.33 on the savings account. Clara Siegel was granted leave to appear and file an intervening petition in which she claimed ownership of the funds held by the garnishee in the name of Vera Carroso. Plaintiff filed ah answer denying the material allegations of the intervening petition. After a hearing judgment for $4,532.31 was entered by the court against the garnishee on its answer for the use of plaintiff. This appeal by the intervening petitioner seeks to reverse that judgment.

The intervening petition filed by Clara Siegel, April 9, 1936, alleged substantially that on November 30, 1934, she delivered to George Carroso a draft for $1,-400 on the Shawmut National Bank of Boston, Mass., and a check for $4,000 drawn by her on the same bank, which- draft and check were indorsed by the said George Carroso and deposited with the Mercantile Trust1 and Savings Bank of Chicago to the account of Vera,'Carroso; .and that at the time said draft and check were delivered by Clara Siegel, it was expressly agreed between her and Vera Carroso “that the moneys so deposited with the Mercantile Trust and Savings Bank, both in connection with the savings account and the checking account ... be held by said Vera Carroso in trust for your petitioner and for no other purpose whatsoever, ’ ’ that said Vera Carroso would “pay your petitioner from the funds so deposited with the Mercantile Trust and Savings Bank, the sum of $125 per month, or such other sums as your petitioner would be in need of from time to time, it being expressly understood that such withdrawals by your petitioner from said deposits with the Mercantile Trust and Savings Bank were to be made exclusively from the checking account, and that the sum of $4,000 deposited in the savings account be kept intact for a period of three years,” and that “the moneys so deposited with the Mercantile Trust and Savings Bank, both in the savings account and the checking account” in the name of Vera Carroso were deposited and held by her in trust for petitioner.

Plaintiff’s answer to the intervening petition averred that “all moneys deposited in the Mercantile Trust and Savings Bank in the name of Vera Carroso is the money of Vera Carroso”; that “any checks or drafts delivered by Clara Siegel to George Carroso was money due to George Carroso”; and that the money deposited by Vera Carroso in said savings and checking accounts was her money and was not held by her in trust for Clara Siegel.

The salient, undisputed facts disclosed by the evidence in the record are that Clara Siegel, the intervening petitioner, lived in Boston, Massachusetts, with her husband and family; that upon the death of her husband in August, 1934, she collected $10,000 life insurance ; that a large part of same was used by her to pay debts; that because many friends who knew she had received the insurance money were importuning her for loans, she decided to conserve most of what she had left by intrusting it to the care of her sister and brother-in-law in Chicago; that during the month of November, 1934, she came to Chicago and brought with her a draft for $1,400 on the Shawmut National Bank of Boston payable to George Carroso, and while here drew a check for $4,000 on the same bank, also payable to George Carroso; that she requested George Carroso “to hold the money for my children and myself,” to be returned to her from time to time as requested; that George Carroso refused to accept the money, stating that it would be better if his wife Vera Carroso, who was Clara Siegel’s older sister, would take charge of the funds for her; and that the draft and check were indorsed by George Carroso and the saving’s account and checking account were opened in the Mercantile Trust and Savings Bank in the name of Vera Carroso, the former by the deposit of the $4,000 check and the latter by the deposit of the $1,400 draft.

The foregoing facts were established by the testimony of Clara Siegel, Vera Carroso and George Carroso, and by the draft for $1,400 and the check for $4,-000 with the indorsements thereon, which were introduced in evidence. The checks drawn on the checking account by Vera Carroso were also presented in evidence. These checks were all drawn in favor of Clara Siegel except one and that was paid at her request to a Chicago merchant for a fur coat shipped to the intervening petitioner in Boston. The checks representing the withdrawals from the checking account for the benefit of Clara Siegel reduced the amount remaining on deposit therein to $519.98, while the savings account remained intact, the balance in same of $4,012.33 representing the original deposit and a small amount of accrued interest. It was these funds that the garnishee answered that it had in its possession.

No evidence was offered by plaintiff.

It is difficult to understand in the face of the uncontroverted facts upon what theory the trial court entered the judgment against the garnishee which appropriated money shown to belong to the intervening petitioner to the payment of a judgment against George and Vera Carroso.

It was conclusively established not only by the testimony of the witnesses but by the draft and check in evidence that the money deposited in the garnishee bank for which it accounted in its answer was the money of the intervening petitioner, brought by her from Boston for the purpose of intrusting it to the care of her sister or brother-in-law or both, and it was just as conclusively established by the testimony of the witnesses and the checks in evidence, which were drawn against the checking account in the garnishee bank by Vera Carroso for the sole benefit of Clara Siegel, that the former was merely the trustee of the funds deposited in said garnishee bank and that such funds constituted a trust fund of which the intervening petitioner was the sole beneficiary.

A judgment creditor has no greater right to the property in the hands of the garnishee than has the judgment debtor and it is only the judgment debtor’s property and credits which can be reached by process of garnishment, not the property and credits which he has in trust for others. (Hair v. North Western Nat. Bank, 50 Ill. App. 211; Dandridge v. Northern Trust Co., 218 Ill. App. 138.) The money in the accounts in the garnishee bank in the name of Vera Carroso, one of the original judgment debtors, was not subject to garnishment for the payment of the obligations of the said Vera Carroso since it was clearly shown to be the money of the intervening petitioner and held in trust for her by her sister.

To reach the conclusion it did, the trial court must have rejected the evidence offered by the intervening petitioner in its entirety. Was there any justification for its action in so doing % While the rule is that there may be such an inherent improbability in the statements of witnesses as to induce the court to disregard their evidence even in the absence of any direct conflicting testimony (Brown v. Chicago City Ry. Co., 155 Ill. App. 434, and cases cited therein), it is also the rule that where the testimony of witnesses is uncontradicted by positive testimony or circumstances and is not inherently improbable, it cannot be rejected. (Larson v. Glos, 235 Ill. 584; Kelly v. Jones, 290 Ill. 375.)

The reason given for the deposit of Clara Siegel’s money in the name of Vera Carroso in the garnishee bank was convincing as to its truth, and not only was there nothing inherently improbable about the testimony offered in intervening petitioner’s behalf,.but it was substantially corroborated by the checks offered and received in evidence. In our opinion the evidence proved conclusively that the funds in question belonged to the intervening petitioner and that Vera Carroso was the trustee of same for the sole use and benefit of Clara Siegel.

The garnishee joined with the intervening petitioner in filing the notice of appeal herein, but because it did not see fit to also join with her in filing- the abstract and brief in this court in the further prosecution of the appeal, it is urged that same should be dismissed. There is no merit in this contention. Plaintiff sought in the garnishment proceeding to have the funds in the hands of the garnishee, which the intervening petitioner claimed belonged to her, applied in payment of bis judgment against the Carrosos. The judgment entered against the garnishee found in effect that the funds in its hands belonged to the Carrosos and not to the intervening petitioner, and there can be no question that the latter had the right to appeal from that judgment. (Commercial Nat. Bank v. Payne, 60 Ill. App. 346; American Nat. Bank v. Western Hay & Grain Co., 69 Ill. App. 268; Doretti v. Geo. E. Rice Po tato Co., Inc., 210 Ill. 300.) Sec. 76 of the Civil Practice Act, Ill. Rev. Stat. 1937, ch. 110, § 200; Jones Ill. Stats. Ann. 104.076, provides as follows: “An appeal shall be deemed perfected when the notice of appeal shall be filed in the lower court. After being duly perfected no appeal shall be dismissed without notice, and no step other than that by which the appeal is perfected shall be deemed jurisdictional. ’ ’

As already stated the garnishee joined in the notice of appeal and the appeal was perfected when the same was filed in the municipal court. Neither the fact that the garnishee declined to join in the execution of the appeal bond nor the additional fact that it refused to participate in the further prosecution of the appeal could possibly affect the intervening petitioner’s right to have the judgment against the garnishee reviewed. The garnishee had no interest in the funds in its hands except as a mere stakeholder and was not concerned with their disposition except to be protected by a judicial determination as to their ownership. The intervening petitioner had the right to use the name of the garnishee in filing the notice of appeal from the judgment, but manifestly she could not require it to join in the execution of the appeal bond or the further prosecution of the appeal if it refused to do so. After the appeal was perfected this court could not be deprived of jurisdiction to determine the issues presented, which involved vital rights of the intervening petitioner, by the failure or refusal, for whatever reason, of the garnishee to persist in its prosecution of said appeal.

It is also urged by plaintiff that since the intervening petition of Clara Siegel was not disposed of in the trial court before the appeal was perfected there was no final judgment from which she could appeal. This precise question was decided in Commercial Nat. Bank v. Payne, 60 Ill. App. 346, where the court said at p. 347: “It is well to note that there should not be a judgment, in form, for or against an interpleader in a case of garnishment, except for costs. We have followed in that particular. Carpenter v. McClure, 37 Vt. 127. See Walton v. Detroit, etc., Mills, 37 Ill. App. 204; Grover v. Wells, 40 Ill. App. 350.

“It follows that even if the judgment for costs be omitted, the interpleader has the right to appeal from a judgment charging the garnishee for the use of creditor of the defendant.”

Plaintiff next contends that a judgment in a garnishment proceeding is binding on third parties claiming an interest in the funds in the hands of the garnishee. This is, of course, true- unless such third parties appeal from such judgment within the time prescribed by statute and then it is equally true that the judgment abides the result of the appeal. Plaintiff states in his brief that “there is no rule of law which permits a garnishee to retain funds in his hands after final judgment, in the expectation that the defeated party may appeal .- . . ” ; and that ‘ ‘ the judgment has been fully paid and satisfied of record as more fully appears by a duly certified copy of said satisfaction of payment heretofore filed in connection with appellee’s motion to dismiss the appeal herein.” As has been heretofore stated the garnishee joined with the intervening petitioner in perfecting an appeal from the judgment rendered against it as such garnishee, and if thereafter it saw fit to take no further part in the proceedings on appeal that fact did not preclude Clara Siegel from filing a transcript of record on appeal, an abstract thereof and her brief in support of her contention that the judgment against the garnishee was erroneously entered. Whether the garnishee has paid the judgment to plaintiff or satisfied it of record is no concern of this court in determining the issues presented by this appeal. Certainly the payment to plaintiff by the garnishee of the amount of the judgment rendered against it with full knowledge that this appeal was pending and undisposed of and without the consent of Clara Siegel could not militate against her rights.

The motion of plaintiff to dismiss this appeal, heretofore made and reserved to hearing, was based on the proposition that no final order was entered in the trial court disposing of the intervening petition and the further proposition that there was nothing before this court except a moot question since the judgment against the garnishee had been paid and satisfied. Since we have heretofore considered the ground urged in support of plaintiff’s motion and held adversely to him as to same, it necessarily follows that his motion to dismiss the appeal is denied.

Such other points as have been urged have been considered, but in the view we take of this cause we deem further discussion unnecessary.

For the reasons stated herein the judgment of the municipal court is reversed and the cause remanded with directions to enter a judgment discharging the garnishee.

Judgment reversed and cause remanded with directions.

Friend, P. J., and Scanlan, J., concur.


author: Mr. Presiding Justice Hebei

text:
    First District.
    Chicago Landscape Company, appellee, v. Village of Oak Lawn et al., appellants.
    Gen. No. 39,228.
    Opinion filed October 20, 1937.
    W. Otto Wielgorecki, for appellants; Walter F. Briody, of H. Irving Ripstra, for appellee.
   Mr. Presiding Justice Hebei

delivered the opinion of the court.


text:
    Joseph Magoc, appellee, v. Albert J. Horan et al., defendants. Appeal of Hugo B. Felde, appellant.
    Gen. No. 39,276.
    Opinion filed October 20, 1937.
    Fred Rohde, for appellant; Abraham Miller, of counsel. Sinden & Hassell, for appellee; Clyde C. Fisher, of counsel.
   Mr. Presiding Justice Hebei

delivered the opinion of the court.


text:
    People of the State of Illinois ex rel. John S. Rusch, appellee, v. Anna Twohig et al., appellants.
    Gen. No. 39,350.
    Opinion filed October 20, 1937.
    John F. Tyrrell, for appellants; Maxfield Weisbrod, of counsel. Thomas J. Courtney, State’s Attorney, for appellee; John F. Cashen, of counsel.
   Mr. Presiding Justice Hebei

delivered the opinion of the court.


text:
    Gilbert Nelson, appellant, v. J. Weiner et al., appellees.
    Gen. No. 39,367.
    Opinion filed October 20, 1937.
    Gilbert Nelson, pro se. Abrams, Sherman & Lewis, for appellees J. Weiner and Harry Reisin; Irving S. Abrams, of counsel.
   Mr. Presiding Justice Hebei

delivered the opinion of the court.


text:
    Samuel Shapiro, appellant, v. Checker Taxi Company et al., appellees.
    Gen. No. 39,396.
    Opinion filed October 20, 1937.
    H. Kay George, for appellant. Julius Jesmer, for appellees.
   Mr. Presiding Justice Hebei

delivered the opinion of the court.


text:
    People of the State of Illinois, appellant, v. Louis Hunt, appellee.
    Gen. No. 39,435.
    Opinion filed October 20, 1937.
    Thomas J. Courtney, State’s Attorney, for appellant; Edward E. Wilson and Amos P. Scruggs, Assistant State’s Attorneys, of counsel. William B. Steinberg, for appellee.
   Mr. Presiding Justice Hebei

delivered the opinion of the court.


text:
    People of the State of Illinois, defendant in error, v. John Peltz, plaintiff in error.
    Gen. No. 39,476.
    Opinion filed October 20, 1937.
    H. Meyer Simborg, for plaintiff in error; Harry L. Yale, of counsel. Thomas J. Courtney, State’s Attorney, for defendant in error; Edward E. Wilson, John T. Gallagher, Melvin S. Rembe and Blair L. Varnes, Assistant State’s Attorneys, of counsel.
   Mr. Presiding Justice Hebei

delivered the opinion of the court.


author: Mr. Justice Hall

text:
    Sophie Labanowski, appellee, v. Metropolitan Life Insurance Company, appellant.
    Gen. No. 39,179.

      Opinion filed October 20, 1937.
    Hoyne, O’Connor & Rubinkam, for appellant; Nathaniel Rubinkam and William S. Allen, of counsel. Benjamin R. Williams, for appellee.
   Mr. Justice Hall

delivered the opinion of the court.


text:
    P. E. B. Fray, appellant, v. E. J. Hale, appellee.
    Gen. No. 39,222.
    Opinion filed October 20, 1937.
    Rehearing denied November 2, 1937.
    Black & Beermann, for appellant; Benjamin H. Black, of counsel. Howard & Greene, for appellee; H. L. Howard, of counsel.
   Mr. Justice Hall

delivered the opinion of the court.


text:
    Edwin W. Sims et al., trading as Sims, Stransky and Brewer, appellees, v. Otto C. Lightner and Lightner Publishing Corporation, appellants.
    Gen. No. 39,300.
    Opinion filed October 20, 1937.
    Arthur E. Mayo, for appellants; Walter H. Shurtleff, of counsel. Brelin, Britton & Landon, for appellees; Floyd E. Britton, of counsel.
   Mr. Justice Hall

delivered the opinion of the court.


text:
    J. D. Mikel, appellant, v. Illinois Racing Commission et al., appellees.
    Gen. No. 39,372.
    Opinion filed October 20, 1937.
    Charles J. Nuchal and John T. Murray, for appellant.
    Otto Kerner, Attorney General, for appellees; Earl B. Dickerson, Assistant Attorney General, of counsel.
   Mr. Justice Hall

delivered the opinion of the court.


author: Mr. Justice MeSurely

text:
    Francis E. Townsend, appellant, v. J. W. Brinton, appellee.
    Gen. No. 39,793.

      Opinion filed October 20, 1937.
    J. R. Christianson and Vetter & Jacobs, for appellant. Seyfarth & Atwood, for appellee; Karl Edwin Seyfarth and Doval Benjamin Williams, of counsel.
   Mr. Justice MeSurely

delivered the opinion of the court.


author: Mr. Justice Denis E. Sullivan

text:
    Wesley M. Cleveland, appellee, v. Reconstruction Finance Corporation, appellant.
    Gen. No. 39,215.
    Opinion filed October 20, 1937.
    Lee Walker, R. A. Bullinger, Harold S. Walters and A. A. Armstrong, for appellant. Charles A. Phelps and George E. Fitzgerald, for appellee.
   Mr. Justice Denis E. Sullivan

delivered the opinion of the court.


text:
    Louis P. O’Connell, appellant, v. Roy O. West and Percy B. Eckhart, trading as West and Eckhart, appellees.
    Gen. No. 39,285.
    Opinion filed October 20, 1937.
    Rehearing denied November 2, 1937.
    Louis P. O’Connell, pro se; John A. Brown, of counsel. Deneen & Massena, for appellees; Charles S. Deneen and Marshall A. Pipin, of counsel.
   Mr. Justice Denis E. Sullivan

delivered the opinion of the court.


text:
    People of the State of Illinois, defendant in error, v. Harry Gahagan, plaintiff in error.
    Gen. No. 39,325.
    Opinion filed October 20, 1937.
    Rehearing denied November 2, 1937.
    Thomas J. O ’Malley, Jr. and McCarthy & Toomey, for plaintiff in error; John E. Toomey and James C. O’Brien, Jr., of counsel. Thomas J. Courtney, State’s Attorney, for defendant in error; Edward E. Wilson, John T. Gallagher, Melvin Starkle Rembe and Blair L. Varnés, Assistant State’s Attorneys, of counsel.
   Mr. Justice Denis E. Sullivan

delivered the opinion of the court.


text:
    Eugenia Pikora, appellee, v. Pilgrim National Life Insurance Company, appellant.
    Gen. No. 39,356.

      Opinion filed October 20, 1937.
    Hermann P. Haase, for appellant. Frederick W. Janson, for appellee.
   Mr. Justice Denis E. Sullivan

delivered the opinion of the court.


text:
    Pontiac Press, Inc., appellant, v. Jacob D. Allen, appellee.
    Gen. No. 39,373.
    Opinion filed October 20, 1937.
    Louis I. Lewis, for appellant. No appearance for appellee.
   Mr. Justice Denis E. Sullivan

delivered the opinion of the court.


author: Mr. Presiding Justice O’Connor

text:
    Joseph Castle, appellee, v. Riverview Park Company, appellant.
    Gen. No. 39,528.
    Opinion filed November 8, 1937.
    Robertson, Crowe & Spence, for appellant; Eugene P. Kealy, Henry L. McIntyre and Richard P. Garrett, of counsel. John E. Timm, for appellee.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.


text:
    Wiktorya Burzak, appellant, v. City of Chicago, appellee.
    Gen. No. 39,556.
    Opinion filed November 8, 1937.
    Rehearing denied November 22, 1937.
    Leopold Salt:el, for appellant; Irvin J. Moskal, of counsel. Barnet Hodes, Corporation Counsel, for appellee; Fred O’Connor, Alexander J. Besa and Adam E. Patterson, Assistant Corporation Counsel, of counsel.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.


text:
    In re Estate of Solomon Mazie, deceased. Agnes Steinhauser et al., appellees, v. Anne Mazie, administratrix, appellant.
    Gen. No. 39,495.

      Opinion filed November 8, 1937.
    L. Louis Kart on, for appellant. David A. Oanel, for appellees; Leonard A. Oanel and Daniel F. Kemp, of counsel.
   Mr. Justice MeSurely

delivered the opinion of the court.


text:
    Adin W. Finley, appellant, v. James W. Paige, appellee.
    Gen. No. 39,534.
    Opinion filed November 8, 1937.
    Raymond M. Carlson, for appellant. No appearance for appellee.
   Mr. Justice MeSurely

delivered the opinion of the court.


author: Mr. Justice Matehett

text:
    First National Bank of Chicago, appellee, v. Daniel A. Quinn et al. Appeal of Robert G. McKay et al., appellants.
    Gen. No. 39,076.
    Opinion filed November 8, 1937.
    Rehearing denied November 26, 1937.
    Cattell & Waldron, for appellants; Marshall & Marshall and Joseph J. Sullivan, Jr., of counsel. Kirkland, Fleming, Green, Martin & Ellis, for appellee; Emil F. Meier, of counsel.
   Mr. Justice Matehett

delivered the opinion of the court.


text:
    Eugene L. Garey, trading as Garey and Garey, appellant, v. Daniel J. Schuyler, Jr. et al., appellees.
    Gen. No. 39,512.
    Opinion filed November 8, 1937.
    A. J. Deutschman, for appellant; Milton I, Hauser, of counsel. Jay Stough, for appellees.
   Mr. Justice Matehett

delivered the opinion of the court.


author: Mr. Justice Matchett

text:
    Frank Birgel, assignee of Joseph LeDoux and Herman Mannel, appellee, v. William P. Roe, appellant.
    Gen. No. 39,521.

      Opinion filed November 8, 1937.
    Howard P. Roe, for appellant. Stobbs, Yates & Wiseman, for appellee.
   Mr. Justice Matchett

delivered the opinion of the court.


text:
    Prudential Insurance Company of America, appellee, v. Bessie Richman et al., defendants. Appeal of Bessie Richman et al., appellants.
    Gen. No. 39,255.
    Opinion filed November 10, 1937.
    Sims & Stransky, for appellants; Franklin J. Stransky and Paul M. Mitchell, of counsel. Hoyne, O’Connor & Rubinkam and George Gillette, for appellee; Nathaniel Rubinkam, Norbert B. Tyrrell and William C. MacLean, of counsel.
   Mr. Presiding Justice Hebei

delivered the opinion of the court.


text:
    Katherine Hoeffling, appellant, v. Stephen Reynolds, appellee.
    Gen. No. 39,389.
    Opinion filed November 10, 1937.
    Erwin W. Roemer, for appellant; Charles S. Deneen and Charles T. Shanner, of counsel. Delmar J. Hill and Hinshaw & Culbertson, for appellee; Oswell G. Treadway, of counsel.
   Mr. Justice Hall

delivered the opinion of the court.


text:
    John J. Johnson, appellant, v. William S. Hefferan et al., appellees.
    Gen. No. 39,469.
    Opinion filed November 10, 1937.
    Joseph E. Snowden and Heber T. Dotson, for appellant. William Annan Taylor, George Gillette and Elmer M. Leesman, for appellees.
   Mr. Justice Hall

delivered the opinion of the court.


text:
    Albert B. Steindler, appellee, v. Henry J. Knies et al., defendant below. Appeal of Henry J. Knies, appellant.
    Gen. No. 39,392.

      Opinion filed November 10, 1937.
    Lawrence M. Fine and Robert D. Meliek, for appellant. Fisehel, Kahn & Heart, for appellee; Walter M. Baker and Martin Solomon, of counsel.
   Mr. Justice Denis E. Sullivan

delivered the opinion of the court.


author: Mr. Presiding Justice Friend

text:
    Vincent G. Callaghan, appellant, v. City of Chicago, appellee.
    Gen. No. 39,438.
    Opinion filed November 16, 1937.
    Crow & Loeff, for appellant. Barnet Hodes, Corporation Counsel, for appellee; Carl Hjalmar Lundquist, Alexander J. Resa and J. Herzl Segal, Assistant Corporation Counsel, of counsel.
   Mr. Presiding Justice Friend

delivered the opinion of the court.


text:
    John M. Murphy, appellant, v. City of Chicago, appellee.
    Gen. No. 39,439.
    Opinion filed November 16, 1937.
    Crow & Loeff, for appellant. Barnet Hodes, Corporation Counsel, for appellee; Carl Hjalmar Lundquist, Alexander J. Resa and J. Herzl Segal, Assistant Corporation Counsel, of counsel.
   Mr. Presiding Justice Friend

delivered the opinion of the court.


text:
    Elsie L. Roberts, administratrix of estate of Harold M. Roberts, deceased, appellant, v. Mrs. James (Annette) Calloway, appellee.
    Gen. No. 39,490.
    Opinion filed November 16, 1937.
    Benjamin R. Williams, for appellant. Hinshaw & Culbertson, for appellee; Oswell G. Treadway, of counsel.
   Mr. Presiding Justice Friend

delivered the opinion of the court.


text:
    Mae Gregar (formerly Mae Vohralik), appellee, v. Albert J. Horan et al., appellants.
    Gen. No. 39,542.
    Opinion filed November 16, 1937.
    Julius L. Kabaker, for appellants. Thomas M. Zasadil, for appellee.
   Mr. Presiding Justice Friend

delivered the opinion of the court.


text:
    C. P. Balt, appellant, v. Frank R. Hartman, appellee.
    Gen. No. 39,374.
    Judgment entered September 14, 1936, reversed, leaving judgment entered July 11, 1936, in full force and effect.
    Opinion filed November 16, 1937.
    Rehearing denied December 12, 1937.
    Miles J. Fitzpatrick, for appellant. Edward C. Higgins, for appellee.
   Mr. Justice Scanlan

delivered the opinion of the court.


text:
    Mike Callos and George Boznos, appellants, v. Public Taxi Service, Inc. and William Sumberg, appellees.
    Gen. No. 39,427.
    Judgment order of November 7, 1936, reversed in part, and the two eases consolidated for trial in superior court of Cook county, remanded for a new trial.
    Opinion filed November 16, 1937.
    Charles R. Aiken, for appellants. DeWitt Cleland and Vetter & Jacobs, for appellees.
   Mr. Justice Scanlan

delivered the opinion of the court.


text:
    Melrose Park Wrecking Company, appellee, v. Patrick Warren Construction Company, appellant.
    Gen. No. 39,471.
    Opinion filed November 16, 1937.
    Stanton & Stanton, for appellant; Bailey Stanton, S. J. Stanton and Wm. McKinley Gleeson, of counsel. Rosenbaum & Rosenbaum, for appellee; Mandel Mendelson, of counsel.
   Mr. Justice Scanlan

delivered the opinion of the court.


text:
    Catherine Bilhorn, appellant, v. Guy A. Richardson et al., appellees.
    Gen. No. 39,509.
    Opinion filed November 16, 1937.
    Rehearing denied December 12, 1937.
    Irving G. Zazove, for appellant. Frank L. Kriete, C. C. Cunningham and Arthur J. Donovan, for appellees; John R. Guilliams, of counsel.
   Mr. Justice Scanlan

delivered the opinion of the court.


author: Mr. Justice Seanlan

text:
    George W. Mason, appellant, v. Casey B. Shelton, appellee.
    Gen. No. 39,580.
    Opinion filed November 16, 1937.
    Edward L. S. Arkema, for appellant. Jareeki & Brautigam, for appellee; James J. Mejda, of counsel.
   Mr. Justice Seanlan

delivered the opinion of the court.


text:
    George W. Faulkner, trading as Faulkner and Company, appellee, v. Victory Mutual Life Insurance Company, appellant.
    Gen. No. 39,431.
    Opinion filed November 16, 1937.
    Rehearing denied December 12, 1937.
    William H. Hayes, for appellant. James B. Cashin, for appellee; Thomas P. Harris and Edward B. Toles, of counsel.
   Mr. Justice John J. Sullivan

delivered the opinion of the court.


text:
    Betty Marech and Joseph Lacina, appellees, v. Steve Zuncich et al., defendants. Appeal of Steve Zuncich et al., appellants.
    Gen. No. 39,529.
    Opinion filed November 16, 1937.
    B. M. Steiner, for appellants. Wright & Kamin, for appellees; Alfred Kamin, of counsel.
   Mr. Justice John J. Sullivan

delivered the opinion of the court.


text:
    Louis Heineman, appellee, v. A. J. Mouzakiotis, appellant.
    Gen. No. 39,569.
    Opinion filed November 16, 1937.
    James J. Fairweather, for appellant. No appearance for appellee.
   Mr. Justice John J. Sullivan

delivered the opinion of the court.


text:
    Alfred K. Foreman, receiver Chicago Bank of Commerce, appellee, v. A. L. Martin, appellant.
    Gen. No. 39,640.

      Opinion filed December 6, 1937.
    Rehearing denied December 20, 1937.
    S. E. Quindry and John Tone Kelly, for appellant. Schuyler & Hennessy, for appellee; Henry E. Jacobs and Thomas J. Downs, of counsel.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.


text:
    Frank A. Grooss and Louis D. Glanz, appellants, v. Frieda Wretzky et al., appellees.
    Gen. No. 39,684.
    Opinion filed December 6, 1937.
    Jacob Levy, for appellants. Marshall & Marshall, for appellee R. Heyen.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.


text:
    Josephine Stevens et al., appellants, v. West Town State Bank et al., defendants. Cameron Barber and Thomas B. Roberts, appellees.
    Gen. No. 39,488.
    Opinion filed December 6, 1937.
    John C. DeWolfe and Robert E. Dowling, for appellants; Fred Albert, of counsel. Edmund D. Adcock and John W. Day, for appellee Cameron Barber. Francis L. Boutell, for appellee Thomas B. Roberts; William E. Beckman, of counsel.
   Mr. Justice Matchett

delivered the opinion of the court.


author: Mr. Justice Mateliett

text:
    Margaret Delyda, administratrix of estate of Anton Delyda, appellee, v. Metropolitan Life Insurance Company, appellant.
    Gen. No. 39,531.
    Opinion filed December 6, 1937.
    Hoyne, O’Connor & Rubinkam, for appellant; Nathaniel Rubinkam and William S. Allen, of counsel. Earl J. Walker, for appelllee.
   Mr. Justice Mateliett

delivered the opinion of the court.


text:
    Henry Clausen, minor, by his father and next best friend, Harry Clausen, appellant, v. Albert Varrin and Augusta Varrin, appellees.
    Gen. No. 39,706.

      Opinion filed December 6, 1937.
    Stearns & Jones, for appellant; Lloyd M. McBride, of counsel. Guy M. Blake, for appellees.
   Mr. Justice Matehett

delivered the opinion of the court.


text:
    In re estate of Richard T. Crane, Jr., deceased. Ignatio Blonda, appellee, v. John K. Prentice and Continental Illinois National Bank and Trust Company of Chicago, appellants.
    Gen. No. 39,478.
    Opinion filed December 14, 1937.
    Ashcraft & Ashcraft, for appellants; Russell F. Locke and William H. Alexander, of counsel. Bell, Boyd & Marshall, Romney Spring and Thomas L. Marshall, for appellee.
   Mr. Presiding Justice Friend

delivered the opinion of the court.


text:
    In re estate of Richard T. Crane, Jr., deceased. Albert Blonda, appellee, v. John K. Prentice and Continental Illinois National Bank and Trust Company of Chicago, appellants.
    Gen. No. 39,479.
    Opinion filed December 14, 1937.
    Ashcraft & Ashcraft, for appellants; Russell F. Locke and William H. Alexander, of counsel. Bell, Boyd & Marshall, Romney Spring and Thomas L. Marshall, for appellee.
   Mr. Presiding Justice Friend

delivered the opinion of the court.


text:
    In re estate of Richard T. Crane, Jr., deceased. Ernest Sonier, appellee, v. John K. Prentice and Continental Illinois National Bank and Trust Company of Chicago, appellants.
    Gen. No. 39,480.
    Opinion filed December 14, 1937.
    Ashcraft & Ashcraft, for appellants; Russell F. Locke and William H. Alexander, of counsel. Bell, Boyd & Marshall, Romney Spring and Thomas L. Marshall, for appellee.
   Mr. Presiding Justice Friend

delivered the opinion of the court.


text:
    In re estate of Richard T. Crane, Jr., deceased. Robert K. Low, appellee, v. John K. Prentice and Continental Illinois National Bank and Trust Company of Chicago, appellants.
    Gen. No. 39,481.

      Opinion filed December 14, 1937.
    Ashcraft & Ashcraft, for appellants; Russell F. Locke and William H. Alexander, of counsel. Bell, Boyd & Marshall, Romney Spring and Thomas L. Marshall, for appellee.
   Mr. Presiding Justice Friend

delivered the opinion of the court.


text:
    In re estate of Richard T. Crane, Jr., deceased. G. Loring Woodbury, appellee, v. John K. Prentice and Continental Illinois National Bank and Trust Company of Chicago, appellants.
    Gen. No. 39,482.
    Opinion filed December 14, 1937.
    Ashcraft & Ashcraft, for appellants; Russell F. Locke and William H. Alexander, of counsel. Bell, Boyd & Marshall, Romney Spring and Thomas L. Marshall, for appellee.
   Mr. Presiding Justice Friend

delivered the opinion of the court.


text:
    City of Chicago, appellee, v. Bowman Dairy Company, appellant.
    Gen. No. 39,501.
    Opinion filed December 14, 1937.
    Montgomery, Hart, Pritchard & Harriott, for appellant; Louis E. Hart and L. Edward Hart, Jr., of counsel. Barnet Hodes, Corporation Counsel, for appellee; David Lefkovits, Alexander J. Resa and Adam E. Patterson, Assistant Corporation Counsel, of counsel.
   Mr. Presiding Justice Friend

delivered the opinion of the court.


text:
    Ann Jones Arbuckle, appellant, v. Harry Jones, appellee.
    Gen. No. 39,707.
    Opinion filed December 14, 1937.
    Spitz, McKenna & Elmes, for appellant. John F. Collins and Edward H. ¡3. Martin, for appellee.
   Mr. Presiding Justice Friend

delivered the opinion of the court.


text:
    People of the State of Illinois, defendant in error, v. Mary Miller, plaintiff in error.
    Gen. No. 39,757.

      Opinion filed December 14, 1937.
    W. G. Anderson, for plaintiff in error. Thomas J. Courtney, State’s Attorney, for defendant in error; Edward E. Wilson, John T. Gallagher, Melvin S. Rembe and Blair L. Yarnes, Assistant State’s Attorneys, of counsel.
   Mr. Presiding Justice Friend

delivered the opinion of the court.


text:
    People of the State of Illinois, defendant in error, v. Rose Ristick, plaintiff in error.
    Gen. No. 39,761.
    Opinion filed December 14, 1937.
    W. G. Anderson, for plaintiff in error. Thomas J. Courtney, State’s Attorney, for defendant in error; Edward E. Wilson, John T. Gallagher, Melvin S. Rembe and Blair L. Yarnes, Assistant State’s Attorneys, of counsel.
   Mr. Presiding Justice Friend

delivered the opinion of the court.


text:
    People of the State of Illinois ex rel. Philip McGuire et al., appellants, v. City of Chicago et al., appellees.
    Gen. No. 39,458.
    Judgment order entered January 29, 1937, affirmed.
    Opinion filed December 14, 1937.
    Samuel A. & Leonard B. Ettelson, for appellants; Samuel A. Ettelson, Edward C. Higgins and Carl J. Appell, of counsel. Barnet Hodes, Corporation Counsel, for appellees; Joseph F. Grossman and J. Herzl Segal, Assistant Corporation Counsel, of counsel.
   Mr. Justice Seanlan

delivered the opinion of the court.


text:
    People of the State of Illinois, defendant in error, v. George Downs, plaintiff in error.
    Gen. No. 39,664.
    Opinion filed December 14, 1937.
    James M. Burke and George M. Crane, for plaintiff in error. No appearance for defendant in error.
   Mr. Justice John J. Sullivan

delivered the opinion of the court.


text:
    Marion Leszczynski, appellee, v. Mary Twarowski, appellant.
    Gen. No. 39,740.

      Opinion filed December 14, 1937.
    Charles W. Lamborn, for appellant. Benjamin B. Chodash, for appellee.
   Mr. Justice John J. Sullivan

delivered the opinion of the court.


author: Mr. Presiding Justice Dove

text:
    Second District.
    Illinois National Underwriters Company, appellee, v. David D. Freeman et al., appellants.
    Gen. No. 9,258.
    Opinion filed December 2, 1937.
    J. N. Moore, for appellant. Baker, Niven & Crabtree, for appellee 'Neil Kerr; Stevens R. Baker, of counsel.
   Mr. Presiding Justice Dove

delivered the opinion of the court.


author: Mr. Justice Huffman

text:
    Paul A. Cushman, appellee, v. W. T. Pierce and Charles Norton, appellants.
    Gen. Nos. 9,222-9,223.
    Opinion filed December 2, 1937.
    James H. Andrews, Gregg A. Young and Harper Andrews, for appellants. Hardy, Hardy & WithereU, for appellee.
   Mr. Justice Huffman

delivered the opinion of the court.


text:
    In re Alleged Insanity of Grace Wilbur, appellant.
    Gen. No. 9,234.
    Opinion filed December 2, 1937.
    Morris J. Hinehcliff and Edgar H. Wilson, for appellant. Smith & Menzimer, for appellees.
   Mr. Justice Huffman

delivered the opinion of the court.


author: Mr. Justice Wolfe

text:
    Josephine Shuneman, administratrix of estate of Burdette Claire Cleveland, deceased, appellee, v. Arthur V. Gage, appellant.
    Gen. No. 9,208.

      Opinion filed December 2, 1937.
    Louis H. Burrell and David M. Burrell, for appellant. Sims & Stransky, for appellee; Franklin J. Stransky, of counsel.
   Mr. Justice Wolfe

delivered the opinion of the court.


author: Mr. Presiding Justice Fulton

text:
    Third District.
    Mack Henry, appellee, v. East and West Insurance Company of New Haven, Connecticut, appellant.
    Gen. No. 9,039.
    Opinion filed October 15, 1937.
    Samuel Levin and Wilson & Sehmiedeskamp, for appellant. G. Dirk Green and Lancaster & Nichols, for appellee.
   Mr. Presiding Justice Fulton

delivered the opinion of the court.


text:
    People of the State of Illinois, defendant in error, v. Russell Clayton, plaintiff in error.
    Gen. No. 9,051.
    Opinion filed October 15, 1937.
    Roy D. Johnson, for plaintiff in error. Mark A. Penick, State’s Attorney, and Delbert Loos, Assistant State’s Attorney, for defendant in error; Arthur R. Roy, of counsel.
   Mr. Presiding Justice Fulton

delivered the opinion of the court.


text:
    First National Bank of Pittsfield, Illinois, appellant, v. Henry Sash et al., appellees.
    Gen. No. 9,057.
    Opinion filed October 15, 1937.
    Rehearing denied January 4, 1938.
    William and Barry Mumford and Chas. E. Turner, for appellant. Edwin Johnston, for appellees; Merrill H. Johnston, of counsel.
   Mr. Presiding Justice Fulton

delivered the opinion of the court.


author: Mr. Presiding Justice Pulton

text:
    Melbourne M. Crocker and Floyd Crocker, appellees, v. Hatcher-Joseph, Inc., appellant.
    Gen. No. 9,067.

      Opinion filed October 15, 1937.
    Doyle, Sampson & Griffin, for appellant; O. Terry Lindner and Alfred E. Newkirk, of counsel. Roy M. Seeley and De Witt S. Crow, for appellees.
   Mr. Presiding Justice Pulton

delivered the opinion of the court.


author: Mr. Justice Davis

text:
    C. C. Worthy, appellant, v. William A. Guthrie, appellee.
    Gen. No. 9,014.
    Opinion filed October 15, 1937.
    C. C. Worthy, pro se. William M. Cox and A. W. Sehimmel, for appellee.
   Mr. Justice Davis

delivered the opinion of the court.


text:
    Vermont Marble Company, appellant, v. George G. Bayne et al., appellees.
    Gen. No. 9,061.
    Opinion filed October 15, 1937.
    Elaek & Kerman and Nelson, Slater & Boodell, for appellant; Drennan J. Slater, of counsel. Gumbart & Grigsby and Chiperfield & Ohiperfield, for appellees.
   Mr. Justice Davis

delivered the opinion of the court.


text:
    Erma Templeman et al., appellants, v. People of the State of Illinois for use of U. G. Usher and Nick Kish, appellees.
    Gen. No. 9,064.
    Opinion filed October 15, 1937.
    Rehearing denied January 4, 1938.
    J. W. Templeman, for appellants. Alexander White, for appellees.
   Mr. Justice Davis

delivered the opinion of the court.


author: Mr. Justice Riess

text:
    Chauncey H. Laird, appellant, v. William Alexander Watt, appellee.
    Gen. No. 9,056.
    Opinion filed October 15, 1937.
    A. W. Sehimmel and W. Knowles Laird, for appellant. Weaver & Jenkins, for appellee.
   Mr. Justice Riess

delivered the opinion of the court.


author: Mr. Presiding Justice Stone

text:
    Fourth District.
    Hal Moore, appellee, v. Franklin Mutual Insurance Company, appellant.
    Opinion filed November 8, 1937.
    John Sprigg Gilster and Robert G. Ottesen, for appellant. William G. Juergens, for appellee.
   Mr. Presiding Justice Stone

delivered the opinion of the court.


author: Mr. Justice Murphy

text:
    Archie W. Holemon, appellee, v. Royal Neighbors of America, appellant.
    Opinion filed November 8, 1937.
    Lendon A. Knight and Thos. Williamson, for appellant; Warnock, Williamson & Burroughs, Kramer, Campbell, Costello & Wieehert and N. J. Gundlaeh, of counsel. Frank C. Smith, for appellee.
   Mr. Justice Murphy

delivered the opinion of the court.