text:
    Clarice Alforth Glennon, Appellant, v. Richard J. Glennon, Appellee.
    Gen. No. 40,072.

      Opinion filed February 14, 1939.
    Daniel A. Wolf, of Chicago, for appellant.
    Elmer M. Walsh, of Chicago, for appellee.
   Mr. Presiding Justice Burke

delivered the opinion of the court.

This appeal, by plaintiff, attacks portions of a separate maintenance decree entered in the circuit court of Cook county on January 5, 1938. The complaint was filed on May 21, 1936, and the pertinent allegations thereof are that the parties were married at Chicago on October 29, 1927; that they cohabited as husband and wife until January 31, 1936; that no children were born of the marriage; that on January 31, 1936, defendant left and absented himself from plaintiff, who was without fault; that at the time of the filing of the complaint she was living separate and apart from him; that he was guilty of adultery; that on certain days he punched and struck plaintiff; that defendant was the owner of stocks and bonds of considerable value; that in his employment he earned $279 monthly; that plaintiff gave to defendant $2,000, “which were her separate earnings”; that she helped pay the household expenses; that because of the conduct of defendant she suffered a nervous breakdown; that he threatened to sell his personal property, and she prayed that he be compelled “to make proper and suitable provision for the separate' maintenance and support of the plaintiff according to the- Statute in such case made and provided; that the Court may make suitable allowances to the plaintiff for her necessary expenses of conducting this suit, including solicitor fees and for her support and maintenance during the pendency of this suit; and that this defendant be enjoined by the Order of this Court, without notice or bond, from selling, assigning, ■ encumbering, transferring his stocks and bonds, enjoined from entering his vault, selling and disposing of the defendant’s, Eichard J. G-lennon’s 1935 Oldsmobile or otherwise disposing of the said property until the further hearing of this cause, and that the plaintiff may have such other and further relief in the premises as is just and meet.” Defendant answered, admitting the separation but denying that plaintiff was without fault. He also severally denied the charges of cruelty and adultery; denied that he was the owner of stocks and bonds of great value; stated that he earned $220 per month; denied that plaintiff gave him $2,000; asserted that in 1933 plaintiff requested defendant to sell 50 shares of Montgomery Ward & Company stock valued at approximately $1,050 and to invest the proceeds in the stock market, and that he invested the money in stock agreed upon between them; that by virtue of the market falling the investment was wiped out; that plaintiff was not required to work; that he on divers occasions requested her to leave her employment in order to make a proper home for him, which she refused to do; denied that she suffered a nervous breakdown; stated that she was receiving a salary of $24.75 per week and that she was the owner of stocks and bonds of the value of $1,200, two diamond rings of the value of $750, and household furniture of the value of $650. An order for temporary alimony was entered. The cause was heard on March 18, 1937, when the chancellor entered an order reciting that the court “having heard the evidence for the complainant and the defendant and having made a finding for the complainant giving a Decree for Separate Maintenance on grounds of Desertion and associating with another woman. The question of income and other matters to be referred to Master Rentner to make a recommendation to the Court of his Findings of facts for the purpose of ascertaining the amount if any of alimony, solicitors fees, etc.” The court having decided that plaintiff was entitled to separate maintenance the parties accepted that finding. Théreupon testimony was taken before the master, who found that “there is no evidence in the record to show that the plaintiff is not able to properly support and maintain herself upon her present income of Twenty-four and 80/100 ($24.80) Dollars per week,” and recommended that defendant be required to pay his wife the sum of $140, which was arrears in alimony, an additional sum of $75 for her solicitor’s fees, and the sum of $31.95 advanced by plaintiff for the service of subpoenas. The master further recommended that no alimony be allowed to plaintiff. Plaintiff filed objections, which stood as exceptions. The chancellor overruled the exceptions, and on January 5, 1938, a decree was entered, which found that the defendant wilfully deserted and absented himself from the plaintiff without any reasonable cause, and with no fault on the part of the plaintiff, commencing on January 31, 1936. The decree approved the master’s report, except that plaintiff’s solicitor’s fee was increased from $75 to $100, which, with the $50 previously allowed as temporary solicitor’s fees gave plaintiff $150 for solicitors’ fees. The decree also found that plaintiff was employed and earned $24.80 per week, that the income was ample for her support and maintenance and that she was not entitled to any further sums for permanent support. Further, the decree granted separate maintenance to the plaintiff; directed the payment of additional solicitor’s fees and $140 which defendant was in arrears in temporary alimony; directed that defendant pay to plaintiff $31.95 which plaintiff expended for subpoena fees, and that “Dr. Soldinger’s claim for physician services rendered to plaintiff in the sum of $169.00 be reserved by this Court until the case entitled Joseph L. Soldinger vs. Richard J. Glennon, now pending in the Municipal Court of Chicago, Case #2295142, is disposed of.”

On November 9, 1936, the chancellor gave defendant leave to withdraw his answer for the purpose of filing a motion to strike plaintiff’s complaint. The grounds alleged by defendant for striking the complaint were “1. The Court is without jurisdiction to grant the relief prayed for in said Bill of Complaint and Petition. 2. Plaintiff seeks in said cause of action to have adjudication and finding of property rights, which can only be adjudicated in a Bill for Divorce.” Before the chancellor and here both parties assume that plaintiff prayed for an adjudication of her property rights. The motion to strike the complaint was overruled and thereupon defendant filed an amended answer, which was substantially the same as the answer he had previously filed. The argument urged by defendant on the motion and the chancellor’s reason for his ruling do not appear. However, in his briefs here defendant contends that under a strict construction of sec. 22, ch. 68, Ill. Rev. Stat. 1937 [Jones Ill. Stats. Ann. 109.189], the court, in a separate maintenance suit, does not have jurisdiction to settle property rights. In support of his contention that the Separate Maintenance Act (sec. 22, ch. 68, Ill. Rev. Stat. 1937) does not mention nor grant power to settle property rights defendant cites McAdams v. McAdams, 267 Ill. App. 124. In Decker v. Decker, 279 Ill. 300, plaintiff asked a decree of separate maintenance, and the court said (p. 309):

“If the wife has no claim for separate maintenance or alimony except the existence of the marriage relation and the husband’s fault, an allowance should be paid in money at stated intervals. If either or both have equitable rights in a piece of real estate or a chattel, other than through the marriage relation, by reason of their having purchased or contributed to the purchase or accumulation thereof, the court may decree equities to both in such property or award it to the one who purchased it outright or award other property in lieu thereof. (Champion v. Myers, 207 Ill. 308; Robbins v. Robbins, 101 id. 416; Wilson v. Wilson, 102 id. 297.) The sum and substance of the various holdings is that the wife shall not merely have what necessity demands but what complete justice requires, and that both the husband and the wife are first entitled to have their equities settled in the property held by both, jointly and separately. ’ ’ In Harding v. Harding, 144 Ill. 588, which was a bill for separate maintenance, the court, in speaking of the construction of the Separate Maintenance Act, said (p. 597):

“We are not disposed to give this remedial statute so narrow and restricted a construction. . . . The statute, recognizing the obligation of the husband, and the defect in the common law, gives to the wife a remedy in her own name, in equity, whenever she is living apart from her husband without fault on her part. The remedy is given in equity, and when the aid of that jurisdiction is properly invoked, it necessarily calls into activity all of the ordinary powers of the court necessary to render the remedy efficacious and complete. Upon bills for separate maintenance, as in divorce cases, the court is required to deal with the rights and duties of the parties, growing out of their marital relations, and in the jurisdiction to determine the causes, there -necessarily exists the power to compel the doing of such acts by the parties as are necessary to effectuate the purpose for which the jurisdiction is conferred.” In the McAdams case, supra, the court asserted (p. 133) that in the Decker case the point that the court had no jurisdiction was not raised, and that, hence, the language was merely obiter dictum.

Defendant concedes that in a divorce case the plaintiff could seek a settlement of her property rights, but contends that under the holding in the McAdams case she cannot do so. In fact, it is defendant’s position that “the plaintiff was seeking an adjudication of property rights, which relief was obtainable only by filing a Bill of Divorce.” Manifestly that cannot be the law. Under that theory, if a woman did not wish a divorce, she could not have her property rights adjudicated. Such reasoning does not square with the provisions of sec. 19, art. II, of the State Constitution that “every person ought to find a certain remedy in the laws for all injuries and wrongs which he may receive in his person, property or reputation; he ought to obtain, by law, right and justice freely, and without being obliged to purchase it, completely and without denial, promptly, and without delay. ’ ’ The act entitled “Rights of Married Women” (ch. 68, Ill. Rev. Stat. 1937 [Jones Ill. Stats. Ann. 64.01 et seq.]) provides (sec. 1) that a married woman may sue and be sued without joining her husband with her, to the same extent as if she were unmarried; (sec. 2) that if husband and wife are sued together the wife may defend for her own right; (sec. 6) that the wife may make contracts and incur liabilities to the same extent and in the same manner as if she were unmarried; (sec. 7) that a married woman may receive, use and possess her own earnings, and sue for the same in her own name, free from the interference of her husband or his creditors; (sec. 9) that a married woman may own in her own right, real and personal property obtained by descent, gift or purchase, and manage, sell and convey the same to the same extent and in the same manner that the husband can property belonging to him; and (sec. 10) that “should either the husband or the wife unlawfully obtain or retain possession or control of property belonging to the other, either before or after marriage, the owner of the property may maintain an action therefor, or for any right growing out of the same, in the same manner and to the same extent as if they were unmarried. ” It is apparent that a wife may maintain an appropriate action against her husband, at law or in equity, depending on the factual situation, the same as if she were an unmarried woman, and even while the marriage relation subsists she may maintain an action against her husband. In Larison v. Larison, 9 Ill. App. 27, the wife filed a bill in equity against her husband, setting out that by virtue of certain contracts between them she was the owner of certain property in Bloomington, known as “The Larison Dray Line”; that by arrangement between them she was to employ her husband so long as he abstained from the use of intoxicating liquors, improper intimacy with women, and to pay her all moneys coming into his hands. She asked that he be enjoined from interfering with her in the conduct of the business, and a temporary injunction was granted restraining him from in any way interfering with the management, control and ownership of the property. A demurrer was filed averring as special cause that plaintiff had an adequate remedy at law. The demurrer was overruled, whereupon defendant answered, and upon hearing the chancellor decreed that the temporary injunction be made perpetual. The Supreme Court held that the bill did not show that the injury committed or threatened was irreparable, that it failed to aver the insolvency of the husband, and that (pp. 31, 32):

“. . .no reason is perceived why adequate damages may not be recovered at law. Mere allegations of danger or of great and irreparable injury are not sufficient. Facts must be stated to satisfy the court of such danger. . . . There must be something particular or special in the case for which a court of law cannot afford adéquate redress. . . . The 10th section of the act of 1874, Rev. Stat. 1880, page 592, provides that should either the husband or wife unlawfully obtain or retain the possession or control of property belonging to the other, either before or after marriage, the owner of the property may maintain an action therefor, or for any right growing out of the same, in the same manner and to the same extent as if they were unmarried. ’

“It is a well settled rule of law that where a new remedy is given by statute it,does not take away the existing remedy unless the statute expressly so provides ; and it is insisted by defendant in error that as the remedy for an injury to the property of a married woman by her husband was in equity . . ., this section is to be treated as cumulative, and as giving a new remedy without taking away the old.

“Had the rights of the parties remained the same as they were at common law, such would have been the correct construction of this section; but this statute does more than give a new remedy — it changes the entire rights of the parties, it removes the disability of marriage and creates the wife a feme sole for the purpose of acquiring, managing and disposing of property; of contracting and being contracted with; confers upon her the legal title to her property, recognizes her separate existence, and gives her a legal standing in the courts of law, which she did not before possess, and these new rights must be enforced in a court of law, the same as if she were a feme sole.

‘' This controversy is between the parties to this suit. The rights of creditors are not involved, and in the transfer of property from Larison to his wife there is no pretense of cover for fraud.

“Her right to the property is a naked, legal right, and a court of law is fully adequate to its protection. Under such circumstances, the use and enjoyment of the property between husband and wife, while residing together as such, is not the proper subject for the interference-of a court of chancery, unless to prevent irreparable injury.” Hence, even before the Civil Practice Act went into effect a wife could sue her husband in chancery and sustain her bill if she was able to aver and prove ground for equitable relief; and, likewise, in an appropriate case she could maintain an action against him at law. She may maintain an action at law or in chancery to adjudicate her property rights, and therefore the question arises whether under the Civil Practice Act she may join an action the purpose of which is to adjudicate her property rights with an action for separate maintenance. Section 4 of the Civil Practice Act (sec. 128, ch. 110, Ill. Rev. Stat. 1937 [Jones Ill. Stats. Ann. 104.004]) provides: “This Act shall be liberally construed, to the end that controversies may be speedily and finally determined according to the substantive rights of the parties, and the rule that statutes in derogation of the common law must be strictly construed shall not apply to this Act or to the rules made pursuant thereto. ’ ’ Sections 21 to 30, inclusive (secs. 145 to 154, inclusive, ch. 110, Ill. Rev. Stat. 1937 [Jones Ill. Stats. Ann. 104.021-104.030]), contain liberal provisions with respect to joining parties plaintiff and parties defendant. No discussion of these sections is necessary as in this case there is only one person on each side. Section 31, (1) (sec. 155, ch. 110, Ill. Rev. Stat. 1937 [Jones Ill. Stats. Ann. 104.031]), provides that there, shall be no distinctions respecting the manner of pleading between such actions at law and suits in equity, other than those specified in the act and the rules adopted pursuant thereto; section 33, .(3) (sec, 157, ch. 110,-Ill. Rev. Stat. 1937 [Jones Ill. Stats. Ann. 104.033]), that pleadings shall be liberally construed with a view to doing substantial justice between the parties; section 43, (1) (sec. 167, ch. 110, Ill. Rev. Stat. 1937 [Jones Ill. Stats. Ann. 104.043]), that parties may plead as many causes of action, counterclaims, defenses, and matters in reply or rejoinder as they may have, and each shall be separately designated and numbered, and (2), that when a party is in doubt as to which of two or more statements of fact is true he may state them in the alternative. Section 44 (sec. 168, ch. 110, Ill. Rev. Stat. 1937 [Jones Ill. Stats. Ann. 104.044]) provides: “ (1) Subject to rules any plaintiff or plaintiffs may join any causes of action, whether legal or equitable or both, against any defendant or defendants. . . . But the court may, in its discretion, order separate trials of any such causes of action ... if they cannot be conveniently disposed of with the other issues in the case. Legal and equitable issues may be tried together where no jury is employed. (2) Any cause of action or counterclaim may be transferred at any time, by order of the court, from the law docket to the equity docket, or vice versa, as convenience and the nature of such action or counterclaim may require, and when so transferred shall proceed as though commenced on the proper side of the court; and any issue may at any time, by order of the court, be transferred for trial to the proper side of the court.” Rules 10 and 11 of the Rules of Practice and Procedure adopted by the Supreme Court (secs. 259.10 and 259.11, ch. 110, Ill. Rev. Stat. 1937 [Jones Ill. Stats. Ann. 105.10, 105.11]) read: 1110. Issues Cognizable By Court of Equity. All matters which, prior to January 1, 1934 were within the jurisdiction of a court of equity, whether directly or as an incident to other matters before it or which the equity court could have heard so as to do complete justice between the parties, may hereafter be regarded as a single equitable cause of action, and when so treated as a single cause of action shall be pleaded without being set forth in separate counts and without the use of the term ‘count’ in such pleading; and shall be heard and decided in the manner heretofore practiced in courts of equity. 11. Pleading of Equitable Matters. When actions in law and in chancery which may be prosecuted separately are joined, the party joining such actions may, if he desires to treat them as separate causes of action, plead such causes of action in distinct counts, marked respectively ‘separate action at law’ and ‘separate action in chancery. ’ When so pleaded the court shall first determine whether the actions joined by the separate counts are properly severable, and, if so, whether the actions shall be tried separately and in what order, or whether the actions shall be tried together. If the court determines that the actions are severable, the issues formed on the legal counts shall be tried before a jury when a jury has been properly demanded, or by the court when a jury has not been properly demanded, and the equitable issues shall be heard and decided in the manner heretofore practiced in courts of equity. ...”

Under the liberal provisions of the Civil Practice Act and the rules adopted by the Supreme Court, a wife or husband who seeks separate maintenance may have her or his property rights adjudicated in the same action. When necessary the complaint may have separate counts in equity and in law, and may state the facts in the alternative. Section 43, (2) (sec. 167, ch. 110, Ill. Rev. Stat. 1937 [Jones Ill. Stats. Ann. 104.043]), provides that a bad alternative shall not affect a good one. The court may, in its discretion, order separate trials of any causes of action if they cannot be conveniently disposed of with the other issues in the case, and may transfer any cause of action from the law to the chancery docket, or vice versa.

Before the master plaintiff testified that she was employed as a supervisor for Montgomery Ward & Company prior to her marriage and continued in such employment during the marriage, receiving $24.80 per week; that she was so employed for 18 or 19 years; that she was employed at the time of the hearing; that she put the cash from her salary in a steel box at their home; that a joint account was opened in the First Union Trust and Savings Bank; that her husband drew out $400 from the joint account on October 18, 1933, and an additional $400 on October 23, 1933, which he placed in a stock account that he carried with Hornblower & Weeks; that she did not draw anything out of the joint account; that she possessed 50 shares of stock of Montgomery Ward & Company which she acquired through her separate earnings under a company savings plan; that on October 28, 1931, she drew $160 from her Montgomery Ward & Company account and gave it to her husband; that all through their married life she loaned money to her husband; that he applied the money loaned on stocks; that she did not keep a record of the money loaned; that in July, 1933, she turned over to her husband the 50 shares of Montgomery Ward & Company stock which she owned, which, together with her share of the money that he had withdrawn from the bank account, was valued at $2,000; that the separation occurred January 31, 1936; that she continued to reside in the apartment where both had been living until April 30,1936; that she then moved in with her mother; that she gave some of their furniture to her niece and that some of it she still possessed; that the furniture was badly worn, having been in use in their apartment for eight and one-half years; that her husband spent about $300 in the purchase of furniture; that some of the furniture came in the way of gifts; that she did not then possess a bank account nor a safety deposit box; that there was a stock account in her name with Babcock, Rushton & Co. which on May 4,1936, prior to the filing of the complaint, was transferred to her sister, Florence Alforth; that at the time of the filing of the bill there was a credit in that stock account of $976.22; that the stock was not originally hers and was not purchased with her money, but in reality belonged to her sister; that witness was buying and selling for her sister, who was employed in the State auditor’s office at Springfield; that witness had no interest in the account; that when the account was transferred (May 4, 1936) witness received $275; that in 1933 defendant asked her if she would place her 50 shares of Montgomery Ward & Company stock as collateral in his account with Hornblower & Weeks; that he informed her that if she did not do so he would lose everything he had; that she told him that he could not sell the stock; that it was only placed as collateral and that he would return the stock to her; that he “never informed me that the stock was sold”; that when she inquired about the stock he would tell her that the stock was still there and that she had nothing to worry about; that at the time of the “crash” he told her there was $5,000 left; that she knew he borrowed money on his life insurance policy and that the money obtained from the loan, approximately $275, was applied on his brokerage account; that she later learned that her stock was sold by the brokers and $1,006.25 was credited to his account; that she owns two diamond rings which her husband gave to her when they were engaged. Defendant testified that in addition to paying the rent, insurance premium, telephone and electric light and milk bills he gave his wife an average of $50 a month; that “I gave my wife money to run the house by the hundreds, and food”; that in the early part of their married life they pooled their earnings; that “after we got so much money we put it in the bank”; that he kept her “very well clothed”; that “in the early part of our married life we worked together because we practically started out with nothing and wanted to build up a savings account. After that we got into the stock market”; that he spent approximately $600 for the purchase of furniture, none of which he retained; that in the summer of 1933 the stock market was sliding down and he was “putting everything I had into it. ... I couldn’t borrow any more money. I borrowed on my life insurance policy $275. I put that in. And when there was no other place to borrow she told me she was going to put her fifty shares of Montgomery Ward stock in there”; that at that time he had a conversation with her in which he said that he wished to cancel out the account and salvage what he could; that she resisted him in that wish. He denied that he received $800 in cash from his wife. He stated that his stock account was at one time worth $11,000 but at the time when the account was sold out there was $600 left to his credit; that he owes $400 on his life insurance policy; that he pays $50 a month toward the support of his mother; that he owes his attorneys; that he has a brokerage account with Hornblower & Weeks worth $1,200; that his salary is $231.26 per month, out of which $11.44 is paid for an employees ’ annuity fund; that he receives $75 a month additional for maintenance of his automobile. Plaintiff, in rebuttal, stated that while the parties lived together they visited defendant’s mother about once a month and on each occasion defendant gave his mother 5 dollars. Various exhibits, consisting of ledger sheets from the brokers, and the deposit book, were introduced in evidence. It was stipulated that if Dr. Joseph L. Soldinger appeared as a witness he would testify that he performed certain medical services for plaintiff and that his charge therefor was $169, which remains unpaid, and that a suit is pending in the municipal court of Chicago against plaintiff and defendant to recover therefor; that defendant has denied the services were rendered or that they are reasonably worth such sum, and a jury trial has been demanded therein. Florence Alforth, a sister of plaintiff, testified that she is employed in the office of the State auditor at Springfield and that the account in the name of plaintiff on the books of Babcock, Rushton & Company was in reality witness’s account; that she forwarded, through the mail, in cash, sums of money to her sister, which her sister deposited, and that the account was changed on the books so as to show in her name, on May 4, 1936, which was shortly before the complaint was filed.

Plaintiff complains of the clause in the decree finding that the $24.80 per week which plaintiff earns is ample for her support and maintenance and that she is not entitled to an order for any permanent support. On its face the clause is inconsistent with the provision “that a decree for Separate Maintenance be and is granted the plaintiff, Clarice Alforth Glennon, from the defendant, Richard J. Glennon, on the ground of desertion, the defendant having wilfully deserted and absented himself without cause and no fault on the part of the plaintiff.” The decree purports to give separate maintenance to plaintiff and yet in the succeeding paragraph contradicts the- provision by stating that plaintiff is not entitled to any permanent support. At the time the complaint was filed the parties were living separate and apart and if plaintiff was not entitled to any support money there was no need of a decree granting “separate maintenance.” The Separate Maintenance Act (sec. 22, ch. 68, Ill. Rev. Stat. 1937 [Jones Ill. Stats. Ann. 109.189]) provides that a woman who without fault on her part lives separate and apart from her husband may have her remedy in equity for a reasonable support and maintenance while they so live separate and apart, A favorable decree in a separate maintenance case merely finds the fact that the plaintiff is living separate and apart from her husband without fault on her part, and because of such finding awards reasonable support to her “while they live separate and apart.” The chief object, therefore, is to give reasonable support and maintenance where the court finds that the plaintiff is living separate and apart without any fault on her part. It was defendant’s contention that he paid all the expenses incurred and gave his wife “money to run the house by the hundreds, and food.” While no hard and fast rule can be laid down for the determination of alimony, it has been held that where both parties have an income the method of computation of a proper allowance for the wife’s support and maintenance is to add the wife’s annual income to her husband’s, consider what, under all the circumstances, should be allowed her out of the aggregate, and then from the sum so determined deduct her separate income, and the remainder will be her proper annual allowance. (Harding v. Harding, supra; Decker v. Decker, supra.) We are of the opinion that the court should find what reasonable sum is required for the support and maintenance of plaintiff, and if such sum is not adequate defendant should be required to pay such reasonable support money, if any, as the circumstances disclosed by the evidence may warrant.

Plaintiff complains that the allowance to her for solicitor’s fees was too low. She was given a total of $150 for temporary and permanent solicitor’s fees. While the actual time that plaintiff’s solicitor spent on this case does not appear, an examination of the record discloses that he appeared in court and before the master on numerous occasions. In view of the income of the defendant and the great amount of time which plaintiff’s solicitor necessarily spent, the sum of $150 is manifestly inadequate. The court refused to allow plaintiff the sum of $250 that she expended for the services of investigators. We cannot say that the failure to allow this sum was an abuse of discretion. The chancellor found for defendant on plaintiff’s claim that she gave him $800 out of their joint bank account, and we find that the ruling is supported by the evidence.

The court reserved for future consideration the payment of a physician’s bill in the sum of $169. It appears that the cause wherein the physician is suing both parties is pending on the jury calendar in the municipal court of Chicago. If the services were rendered and the charge is reasonable, we do not see any good reason why defendant should not pay the same. However, plaintiff is not harmed by the provision reserving the question until the case in the municipal court is disposed of. If the physician does not prevail in his action she is not harmed. If he does prevail the decree should require the husband to pay the judgment.

Plaintiff contended that she delivered to defendant the 50 shares of Montgomery Ward & Company stock in order that he could use the same as additional collateral in his brokerage account. She stated that when she inquired as to the status of the same he told her that the stock was still on deposit with the brokers. Defendant testified that the stocks were going down; that he “couldn’t borrow any more money. I borrowed on my life insurance policy $275. I put that in. And when there was no other place to borrow she told me she was going to put her fifty shares of Montgomery Ward stock in there.” Defendant contends that by plaintiff’s action in depositing the 50 shares of stock with his broker she invested with him and took her chances on the market. However, the brokerage account remained in the husband’s name. His testimony before the master was at variance with the statement in his answer. In the latter he said his wife told him to sell the 50 shares and invest the proceeds in the stock market, and that he did invest the proceeds in stock agreed upon between them. It appears that when all the stocks in his brokerage account were sold there was $600 left, which defendant retained. The master did not report any finding as to the 50 shares of stock. The objections filed by plaintiff, which stood as exceptions, pointed out the omission of any finding on this issue. The decree overruled all the exceptions (other than giving plaintiff additional solicitor’s fees) and did not otherwise pass on plaintiff’s contention that she had a right to have the 50 shares of stock restored to her, or, in the alternative, a judgment against defendant for the sum of $1,006.25, being the amount derived from the sale of the stock. We are of the opinion that on appropriate pleadings the property rights of the parties may be determined in the instant cause. Therefore the issues may be determined by the court, without a jury, regardless of whether they present legal or equitable problems for solution. The court should rule on plaintiff’s contention as to her property rights. When further proceedings are taken in this case either party will have the right to introduce any additional competent testimony which he or she may regard as material to his or her contention.

For the reasons stated the decree of the circuit court of Cook county is reversed, and the cause remanded, with directions that such further proceedings be had as are not inconsistent with this opinion.

Decree reversed, and cause remanded, with directions.

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


source: Caselaw Access Project

author: Mr. Presiding Justice Burke

license: Public Domain

text:
    George Keller, Plaintiff, v. Annie Tomaska et al., Defendants. Annie Tomaska, Appellee, v. George Keller, Cross Defendant, City of Chicago, Appellant, Guy A. Richardson et al., Cross Defendants.
    Gen. No. 40,110.
    Opinion filed February 14, 1939.
    Barnet Hodes, Corporation Counsel, for appellant; Alexander J. Besa and L. Louis Karton, Assistant Corporation Counsel, of counsel.
    Irving N. Stenn & Egbert E. Burke, both of Chicago, for appellee; Clarence M. Dunagan, of Chicago, of counsel.
   Mr. Presiding Justice Burke

delivered the opinion of the court.

On June 30, 1936, George Keller filed his complaint in the superior court of Cook county against Annie Tomaska, city of Chicago, a municipal corporation, and the receivers of the corporations doing business as the Chicago Surface Lines, averring that on February 26, 1936, while he was operating an automobile in a westerly direction on Chicago avenue, Chicago, at or about street number 4610 West Chicago avenue, defendant Annie Tomaska carelessly drove her automobile in an easterly direction on Chicago avenue and collided with the automobile plaintiff was driving, and that by virtue of her negligence he suffered personal injuries and property damage. A second count charged that the city negligently permitted the street to be and remain in a dangerous and unsafe condition, and, especially, allowed certain holes or ruts to remain in the portion of the street in front of 4615 West Chicago avenue, and charged the receivers operating the corporations under the style of Chicago Surface Lines with negligently allowing holes and ruts in that portion of the street under the control of such receivers, all of which negligence plaintiff alleged was the proximate cause of the property damage and personal injuries that he suffered. Plaintiff on May 23, 1936, served on the corporation counsel, city attorney and city clerk of the city of Chicago a notice which, inter alia, stated that he was about to bring an action against the city on account of personal injuries and property damage sustained by him by reason of a defective street, that the cause of action accrued to him; that the date and approximate hour of the accident was February 26,1936, at or about 3:20 p. m., and that the place or location where such accident occurred was:

‘ ‘ On the day and date aforesaid, a large hole, rut or depression existed or was present on the south side of Chicago Avenue at about or in front of Street Number 4611 to 4615 West Chicago Avenue. Said hole, rut or depression began at or about the south street car rail on said street, was approximately three feet to five feet in width and five feet in length, extending towards and within approximately four feet of the south curb line of Chicago Avenue. Chrysler Sedan automobile owned by Annie Tomaska of 5018 West Chicago Avenue, Chicago, Illinois, was being operated by the owner thereof in an easterly direction on Chicago Avenue, and struck said hole, rut, or depression in said Street. As a result thereof, the driver of said Chrysler Sedan lost control thereof and said vehicle was thrown at an angle across Chicago Avenue and into Dodge Sedan being driven by George Keller on said street in a westerly direction at or about a point in front of Street Number 4610 West Chicago Avenue, Chicago, Illinois. The said George Keller suffered severe personal injuries and his Dodge Sedan, 1935 Model was demolished.” Defendants filed answers, and in addition defendant Annie Tomaska filed a counterclaim against George Keller, city of Chicago and Chicago Surface Lines in which she asserted that on February 26, 1936, she was driving an automobile in an easterly direction on Chicago avenue in the vicinity of 4610 West Chicago avenue, Chicago, and that by reason of the negligence of the city in failing to maintain said public highway in a reasonably safe condition she suffered personal injuries. She also charged negligence against the other defendants and alleged that on July 24,1936, she served the following notice on the city attorney, city clerk and corporation counsel of the city of Chicago:

“Please Take Notice that Mrs. Annie Tomaska, residing at 5018 W. Chicago Avenue, Chicago, Illinois, is about to bring a suit at law for personal injuries sustained on February 26th, 1936; that she is the person to whom the cause of action has accrued; that the date of said accident is February 26th, 1936; that the time of the said accident was approximately 2:30 P. M.; that the place where said accident occurred was at or near the intersection of Chicago and Cicero Avenues; that said injured person while operating and driving her motor vehicle in an easterly direction along the said Chicago Avenue, the right front wheel of said motor vehicle was caused to come in contact with a large hole in the street along the south rail of the east bound car tracks, and by reason of said large hole in the street, said injured person was "caused to lose control of the motor vehicle which she was driving, resulting in injuries complained of, and that the attending physician is Dr. A. C. Peska, 4010 W. Division Street.

“If further information is desired, it may be had at the office of the undersigned attorney and agent for the said Mrs. Annie Tomaska.” Issue was joined. Prior to the trial the receivers of the Chicago Surface Lines were dismissed from the cause. The cause was tried before a jury and a verdict was returned finding defendant city of Chicago, a municipal corporation, guilty and assessing the damages of plaintiff, George Keller, at the sum of $700, and the damages of counter-claimant, Annie Tomaska, at the sum of $500. Judgments were entered on the verdict. From the judgment entered in favor of counterclaimant, Annie Tomaska, the city prosecutes this appeal.

There is only one question presented for our consideration, and that is whether the notice given by the counterclaimant is adequate. The accident occurred at a hole in the street located in front of 4615 West Chicago avenue. The hole was 130 feet west of Kenton avenue. The notice served by counterclaimant recited that the place where the accident occurred was at or near the intersection of Chicago and Cicero avenues. Chicago avenue is an east and west street, and Kenton and Cicero avenues are north and south streets intersecting Chicago avenue. The north and south street intersecting Chicago avenue west of Kenton avenue is Kilpatrick avenue, and the north and south street intersecting Chicago avenue west of Kilpatrick avenue is Cicero avenue. Cicero avenue intersects Chicago avenue at number 4800 west. Under the Chicago house-numbering system 800 numbers constitute a mile. From where the accident actually occurred to Cicero avenue is a quarter of a mile, less 130 feet. Sec. 7, ch. 70, Ill. Rev. Stat. 1937 [Jones Ill. Stats. Ann. 107.148], provides that

“Any person who is about to bring any action or suit at law in any court against any incorporated city, village or town for damages on account of any personal injury shall, within six months from the date of injury, or when the cause of action accrued, either by himself, agent or attorney, file in the office of the city attorney (if there is a city attorney, and also in the office of the city clerk) a statement in writing, signed by such person, his agent or attorney, giving the name of the person to whom such cause of action has accrued, the name and residence of person injured, the date and about the hour of the accident the place or location where such accident occurred and the name and address of the attending physician (if any).” In construing the above statute the Supreme Court in McComb v. City of Chicago, 263 Ill. 510, 512, said: “If, considering the whole notice together, it gives sufficient information to the city authorities to enable them, by the exercise of reasonable intelligence and diligence, to locate the place of the injury and ascertain the conditions alleged to have existed which caused it, it is sufficient, according to. the weight of the authorities, to serve the purpose for which it was required by the statute to be given. . . . [p. 514] We think the case comes within the rule announced in Carr v. Ashland, 62 N. H. 665. In that case the court said: ‘If the statement so designates the place that the officers of the town, being men of common understanding and intelligence, can by the exercise of reasonable diligence, and without other information from the plaintiff, find the exact place where it is claimed the damage was received, it is in this respect sufficient, because it fully answers the purpose of the statute.’ ” (Italics ours.)

Where the notice designated the place of the accident as “at or near the corner of” a certain intersection, it was held sufficient in McComb v. City of Chicago, supra, and in Reule v. City of Chicago, 268 Ill. App. 266. In Youngvert v. City of Chicago, 174 Ill. App. 299, wherein the notice recited, “Said accident occurred in the City of Chicago on, to-wit, the west side of Center avenue, between, to-wit, Sixteenth and Seventeenth streets,” and the evidence disclosed that Seventeenth street terminated on the east side of Center avenue, the court held the notice sufficient. An examination of the reported cases that have been called to our attention convinces us that the notice which was served on the city by counterclaimant was fatally defective in that it gave the place of the accident at a point almost a quarter of a mile from where the accident actually occurred. The service of that notice did not constitute a substantial compliance with the statute.

Counterclaimant, however, filed an additional abstract, which brings to our attention the notice served by plaintiff, George Keller. We have pointed out that the notice served by counterclaimant does not comply with the statute. The question remains as to whether that notice, considered in connection with the notice that was served by Keller, constitutes sufficient compliance with the statute. Counterclaimant does not cite any case that supports her contention. We do not find any case in Illinois that is decided on a factual situation similar to that presented here. The principle involved, however, has been passed upon. In Ouimette v. City of Chicago, 148 Ill. App. 505, 508, the court said:

“We think that the notice given by the plaintiff in this case was fatally defective and gave to the plaintiff no right to maintain an action for the injury which he sustained on October 10, 1905. His right to maintain his action for that injury depends on the sufficiency of his notice, and it is immaterial what notice the defendant may have had of the time of the injury from other sources.” (Italics ours.) In Reichert v. City of Chicago, 169 Ill. App. 493, which is cited by counterclaim-ant, the court said (p. 495):

“Both upon authority and upon principle, we think it clear that the sufficiency of the notice required by the city is a question of law for the court, and that its sufficiency must be determined from the notice itself. . . . [p. 496] It is not sufficient that the plaintiff allege and prove the service of some kind of a notice, but it must be of such a notice as the statute requires. . . . [p. 498] ‘ To be legally sufficient, a notice must contain a sufficiently definite description of the place of the accident to enable the interested parties to identify it from the notice itself. . . .’” (Italics ours.) From a consideration of the statute and the cases construing it, we are impelled to the view that the notice served by counterclaimant was fatally defective, and that it cannot be aided by the notice served by plaintiff, George Keller. The counterclaimant’s notice must stand or fall by its own strength.

We are convinced that the trial court was in error in not sustaining the motion of the city of Chicago for a directed verdict. As it is too late to serve another notice, no good purpose will be served by remanding the cause. Therefore, the judgment of the superior court of Cook county is reversed and judgment for costs is entered here for the city of Chicago, a municipal corporation, and against counterclaimant, Annie Tomaska.

Judgment reversed, and judgment here for costs for city of Chicago and against Annie Tomasha.

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


author: Mr. Justice Friend

text:
    Charles H. Albers, Receiver of Chicago Lawn State Bank, Appellee, v. Carl Westberg et al., Appellants.
    Gen. No. 40,175.

      Opinion filed February 14, 1939.
    Rehearing denied February 27, 1939.
    Kinne, Scovel, Robson & Murphy, of Chicago, for certain appellants; Harry C. Kinne, of counsel.
    Albert A. Gomberg and Lowénhaupt & Wolff, all of Chicago, for appellee; Albert A. Gomberg and Oscar M. Wolff, of counsel.
   Mr. Justice Friend

delivered the opinion of the court.

William L. O’Connell, predecessor of Charles H. Albers, the present receiver, filed his complaint in the superior court to foreclose a trust deed made by Carl Westberg and Tilda Westberg, his wife, conveying real estate in Chicago known as the Spaulding avenue property, securing 159 bonds aggregating $60,000, upon which there remained due a balance of $53,000 and interest. Carl, Tilda and Esther Westberg, who during’the pendency of the suit married Ottar Aamodt, defendants, filed their answer to the complaint, admitting the execution of the trust deed and bonds, denying the existence of the indebtedness, and averring that the bonds, together with interest thereon, had been fully paid by Carl Westberg January 5, 1931. Dorothy Heaton, another defendant, disclaimed any interest, in the property. West Englewood Trust & Savings Bank, trustee, and others, were defaulted for failure to appear. The Westbergs also filed their cross complaint, alleging payment of all the bonds secured by the trust deed together with interest thereon, and praying for a decree canceling the bonds in question and the removal of the trust deed as a cloud upon their title. The cause was referred, generally, to a master in chancery, who found that the trust deed was a valid and subsisting first incumbrance on the premises, that bonds, aggregating $53,000 and interest thereon from January 5, 1931, were unpaid, that Carl Westberg did not pay the bonds but purchased them from the Chicago Lawn State Bank, intending to keep them alive, and he recommended that a decree be entered pursuant to the prayer of plaintiff’s complaint and that the Westberg cross complaint be dismissed for want of equity. Upon hearing, the chancellor overruled the exceptions to the master’s report, filed by the Westbergs, and entered a decree in accordance with the master’s recommendations, from which Carl West-berg, Tilda Westberg and Esther Westberg Aamodt have prosecuted this appeal.

Chronologically, the circumstances involved in this litigation may be summarized briefly, as follows: On December 15, 1925, Carl and Tilda Westberg borrowed $60,000 from the Chicago Lawn State Bank, and to evidence this loan they executed a bond issue and trust deed to West Englewood Trust & Savings Bank, as trustee, on an apartment building at 6215-19 South Spaulding avenue, Chicago, maturing December 15, 1930. August 31, 1927, the Westbergs conveyed the Spaulding avenue property to Henry J. Labotz and wife, subject to the bond issue in question. Thereafter, February 1,1930, Labotz and wife gave Carl Westberg a note for $25,700, secured by trust deed to Edwin Bobson, on the same property, which was recorded February 25, 1930. This trust deed was junior to the Westberg indebtedness and was stamped upon its face as a junior mortgage. Prior to December 15, 1930, when the Westberg bond issue matured, the indebtedness was reduced by payment of certain bonds, to $53,000, and December 15, 1930, interest was paid on the bonds, but no additional payment was made on account of principal.

It appears from the evidence that Carl Westberg was a depositor at the Chicago Lawn State Bank, and a member of the board of directors. About December 15,1930, Westberg had several conversations with John H. Bain, cashier and assistant to the president of the bank, with reference to the bond issue. Most of the unpaid bonds were then in possession of the bank, which owned bonds in the principal amount of $48,200. The balance of the indebtedness, amounting to $4,800, was owned by other persons. Bain then advised West-berg that the bank would not renew the loan.

January 2, 1931, Westberg filed his complaint in the superior court against Labotz and wife, to foreclose the second mortgage, which was dated February 1, 1930, alleging that the Spaulding avenue property was subject both to the second mortgage and also to the Westberg bond issue; that the value of the property was not sufficient to pay the Westberg bond issue and the second mortgage; and the appointment of a receiver was accordingly sought.

Some 3 days later, January 5, 1931, Westberg told Bain that he was prepared to take up the bond issue. Westberg then had on deposit at the Chicago Lawn State Bank $45,932.34. On the same day he borrowed $20,000 from the bank on his unsecured note, giving bim a total deposit credit at the bank of substantially $66,000. Also, on the same day, Westberg gave the bank his check for $53,776.65, to cover the principal amount of the bonds, interest from December 15, 1930 to January 5, 1931, and $600 due the bank for insurance premiums. The bank thereupon delivered to Edwin Eobson, one of the attorneys for the Westbergs, the trust deed securing the bond issue, bonds 9, 10 and 11, which had been previously paid and canceled, and also the uncanceled Westberg bonds which the bank then had in its possession, aggregating $49,150. The trust deed was not stamped, indorsed or marked in any manner to indicate that it was canceled or discharged, and no release deed was issued. Neither were the bonds stamped or marked in any manner to indicate that they were paid or discharged. The receipt signed by Westberg’s attorney for the $49,150 principal amount of bonds specified that the bonds were delivered uncanceled.

In February, 1931, some weeks after Westberg had paid the bank $53,776.65, he filed a verified petition for a receiver in the Labotz foreclosure proceeding, wherein he alleged that the Spaulding avenue property was subject to a trust deed made by the Westbergs to secure their 159 bonds aggregating $60,000, due December 15, 1930. Afterward, in April, 1931, the bank delivered to Westberg’s representative all the bonds which had not been turned over to Eobson on January 5. These bonds were not marked canceled or paid, and the receipt taken by the bank for these remaining bonds specified that they were delivered uncanceled. It thus appears that neither the trust deed nor any of the bonds, aggregating $53,000, were ever marked in any manner indicating payment, cancellation or discharge.

Still later, in April, 1931, some three months after Westberg paid the bank $53,776.65, a foreclosure decree was entered in the superior court on the Labotz mortgage, which contained a finding that the Spaulding avenue property was “subject to a prior trust deed, dated December 15, 1925,” made by the West-bergs to secure 159 bonds aggregating $60,000, due December 15, 1930.

The Chicago Lawn State Bank was closed by the auditor of public accounts in June, 1931. Westberg then owed the bank $61,000 on five unsecured notes, and the Chicago Lawn State Bank was at the time indebted to the Continental Illinois National Bank & Trust Company to the extent of $207,300, for which it held as collateral security for the indebtedness, all of the five Westberg notes.

In August, 1931, Westberg secured an extension of his unsecured notes and deposited with the Continental Bank the Westberg trust deed and bonds and other collateral not involved in this controversy. An extension agreement was then entered into which recited that in consideration of the deposit of the collateral, “the bank agrees that it will take no action against Carl Westberg for the collection of said notes for a period of ninety days.” In February, 1932, the receiver of the Chicago Lawn State Bank paid the Continental Bank the balance of $29,716.95, which then remained due from the receiver, and at the same time Westberg gave the Continental Bank written instructions to deliver the bonds and trust deed to the receiver.

The controverted question is whether the transaction of January 5, 1931, by which Westberg paid the Chicago Lawn State Bank $53,776.65, constituted a purchase by the Westbergs of their mortgage bonds and trust deed, or an extinguishment of these instruments. Under the well settled law in this State that question must be resolved from the intention of the parties, as shown by statements made and circumstances existing before the controversy arose. 19 Ruling Case Law, Mortgages, sec. 228, p. 444, gives the rule as follows: “Parties to a mortgage, as between themselves, notwithstanding payment in full has been made by the debtor, may continue the lien of the mortgage for the security of another debt, provided the rights of other mortgage and judgment creditors have not intervened. . . . And where, upon the payment of the debt secured by a mortgage, it is the intention of the mortgagor to keep the obligation alive, it has been held that it may be assigned to, and enforced by, a third person as security for another indebtedness.” In Kazunas v. Wright, 286 Ill. App. 554, the question arose as to whether the mortgage notes had been paid by a series of transactions at the Cottage Grove State Bank, and in discussing that question, it was held (p. 559): “ . . . that the defense of payment is not sustained by the evidence. The transaction in which Myrtle Rooms, Catherine Sullivan, Cramer, and the Cottage Grove State Bank and its cashier, Johnson, participated did not amount to payment of the notes for the reason that such manifestly was not the intention of the parties to the transaction. This is indicated by the written evidence, by the fact that the notes were delivered uncanceled, and by all the circumstances which distinguish that arrangement. ’ ’

41 Corpus Juris, Mortgages, sec. 904, p. 790, also states the general rule that where the mortgage debt is paid the mortgage may be kept alive for other purposes, where such is the intent of the parties and the rights of third persons and creditors have not intervened, and says that “whether as between the parties a transaction constitutes a payment and discharge of a mortgage is dependent upon their intention, and it will not have such effect where they mean to keep the security alive and not to extinguish it.”

The evidence and findings which prompted the master to conclude that Westberg did not pay the bonds but purchased them for the purpose of keeping them alive, is fully set forth in his report. He found that “Westberg dealt with and treated said trust deed and the unpaid bonds secured thereby, as if they were a valid and existing lien upon the property,” and that-“it was the intention of Carl Westberg to preserve the lien of said trust deed ... in full force and effect.” The numerous circumstances indicating this intention on the part of Westberg, as enumerated by the master and amplified in plaintiff’s brief, may be summarized as follows: Obviously, if the Westbergs had intended to pay the bonds and discharge their obligation, they would in all likelihood have had these instruments canceled so that they would no longer constitute a valid obligation against them. Nevertheless, when Westberg’s attorney gave a receipt to the bank January 5, 1931, it showed upon its face that bonds Nos. 9, 10 and 11, which had been previously paid, were all delivered canceled, and that the other bonds, aggregating some $49,000, were delivered uncanceled. Likewise, if the Spaulding avenue property was to be "relieved from the lien of the trust deed, it is difficult to understand why Westberg’s attorney did not insist on a cancellation of the trust deed and the issuance of a release deed from the trustee to indicate that West-berg’s obligation had been fulfilled. There is also the circumstance that some six weeks after January 5, 1931, when Westberg paid the bank $53,776.65 for these bonds, he filed a verified petition in the Labotz foreclosure asking for the appointment of a receiver, containing the allegation that the real estate was subject to a prior trust deed, dated December 15, 1925, securing 159 bonds aggregating $60,000. This was an unqualified statement made by Westberg under oath in a judicial proceeding that the property was subject to the trust deed in question, and if it had been paid and released, as Westberg now contends, that representation to the court was manifestly not in accordance with his understanding of the transaction at the time he applied for a receiver.

The record further discloses that on April 10, 1931, the bank delivered to Westberg all the bonds which had not been turned over to him on January 5, aggregating $3,850. Westberg’s attorney then gave the bank a receipt which was introduced in evidence, clearly indicating that these bonds were delivered uncanceled, and with the consummation of this transaction the West-bergs had in their possession, uncanceled, the entire $53,000 of bonds which had matured December 15,1930. The decree of foreclosure on the Labotz mortgage, which was entered April 22, 1931, specifically found that the Spaulding avenue property was subject to a prior trust deed dated December 15, 1925, securing 159 bonds aggregating $60,000, with interest. This decree, entered some 3 months after January 5, 1931, specifically found the Westberg bonds and trust deed an existing lien on the property, and since the decree was entered in Westberg’s favor and was procured by him, it is inconceivable that he would have asked or permitted such a finding had there been an intention on his part to treat the obligation as a payment and extinguishment of the indebtedness. Later, in June, 1931, when the bank was closed by the auditor of public accounts, Westberg was indebted to it on 5 unsecured notes, and the bank was in turn indebted to the Continental Illinois National Bank for some $200,000, for which it held Westberg’s 5 unsecured notes along with other collateral as security for the debt; and in procuring an extension of Westberg’s debt to his own bank the agreement with the Continental Bank by which that extension was effected recited that Westberg was indebted to the Chicago Lawn State Bank upon Ms five unsecured notes, and that the Continental Bank held these notes as collateral security for the indebtedness of the Chicago Lawn State Bank which had been reduced to $53,973.25. Westberg’s attorney then deposited with the Continental Bank the identical bonds and trust deed which had been delivered to Westberg January 5, 1931. It thus appears that these bonds were assigned to the bank as. a valid obligation, and had they been paid and extinguished, as Westberg contends, Westberg would not have tendered them as an existing indebtedness nor would the Continental Bank have received them as such. As a matter of fact, these bonds and trust deed had not been in Westberg’s possession since August, 1931, but were delivered by the Continental Bank on Westberg’s order to the receiver of the Chicago Lawn State Bank, who had them in his possession when this foreclosure was filed. In addition to these circumstances there is correspondence in evidence clearly indicating that the Westbergs intended to keep the title to the bonds and trust deed definitely separate and distinct from the title to the real estate, which was conveyed to Westberg’s daughter in April, 1931, pursuant to the master’s sale in the Labotz foreclosure. In February, 1932, the receiver of the Chicago Lawn State Bank paid the Continental Bank the balance then due it and in return received the collateral held by the latter, including the West-berg unsecured notes and the bonds and trust deed in question. This transfer was carried out in pursuance of a letter written by Westberg’s attorney to the receiver of the bank. Up to this time there were at least four instances in which Westberg had for his own purpose and advantage treated the bonds and trust deed as valid and existing obligations; in February, 1931, when in order to secure the appointment of a receiver on the Spaulding avenue- property his verified complaint stated that the bonds were a prior incumbrance on the real estate; in the decree of foreclosure entered in the Labotz matter in April, 1931, these bonds were listed as a prior incumbrance on the property in order to preserve the lien of the trust deed in case Labotz. should redeem from the second mortgage foreclosure; in August, 1931, the bonds and trust deed were delivered to the Continental .Bank- as collateral to West-berg’s unsecured notes; and in February, 1932, West-berg, in an endeavor to arrange a settlement of his unsecured notes, transferred the bonds and trust deed from the Continental Bank to the receiver, still using these bonds and trust deed as collateral for payment of the unsecured notes.

If Westberg’s transaction with the Chicago Lawn State Bank January 5, 1931, was a purchase, all the subsequent uses of the bonds and trust deed here enumerated were entirely proper; on the other hand, if the transaction constituted payment, Westberg’s present contention is entirely refuted by his subsequent actions and should not be countenanced by a court of equity. All of Westberg’s acts from January 5, 1931, indicate that he intended to keep the lien of the trust deed alive. It is obvious that in so doing the Westbergs were protecting their second mortgage against liens which might have intervened after the Westberg trust deed and prior to the Labotz mortgage. By keeping the first mortgage alive, the Westbergs made it possible to enforce payment out of the property in accordance with the terms of their deed to Labotz. It is difficult to interpret Westberg’s statements and acts as anything except an effort to keep the lien of the trust deed alive in accordance with a perfectly logical plan for his own advantage. On the other hand, we find no convincing facts or circumstances of record indicating that Westberg intended that the lien of the trust deed should be extinguished, and from the evidence adduced before the master, no other conclusion than that this was a purchase could fairly have been reached.

Plaintiff’s counsel argue with considerable .force that the Westbergs should be estopped from denying the validity of their bonds and trust deed, because of their repeated representations that these instruments were valid and subsisting obligations, as shown by the circumstances hereinbefore enumerated. It has been held that where a party gives a reason for his conduct touching upon matters involved in a controversy, he cannot, after suit is started, shift his position and put his conduct upon another and different ground. (Gibson v. Brown, 214 Ill. 330; Miller v. Gordon, 296 Ill. 346.)

One of the reasons urged for reversal is that plaintiff was not entitled to a decree finding that he was the owner of the bonds in question, and for more than the amount of Westberg’s unsecured note indebtedness. Neither of these contentions was raised by the pleadings or by the exceptions filed to the master’s report. In the hearing before the master and chancellor defendants insisted upon the defense of payment, and argued that the possession by a mortgagor of the bonds secured by his trust deed raised a presumption that the bonds had been paid. The courts have consistently held a defendant cannot raise questions on appeal which were not brought to the attention of the trial court. (Notroma Corp. v. Miller, 292 Ill. App. 612, 618, 619; Bryan v. Pilgrim Nat. Life Ins. Co., 294 Ill. App. 356; Taylor v. Baker, 295 Ill. App. 1.)

After careful consideration of the evidence and circumstances surrounding Westberg’s various statements and transactions, we are of the opinion that the chancellor properly entered a decree in accordance with the findings and recommendations of the master, and therefore the decree of the superior court is affirmed.

Decree affirmed.

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


text:
    Katie Stella, Appellee, v. Paolo Mosele et al., Defendants. Appeal of Dominick Varraveto, Appellant.
    Gen. No. 40,566.

      Opinion filed February 14, 1939.
    Depress, Buckingham, Jones & Hoffman, of Chicago, for appellant; Vincent O’Brien and Arthur O. Graves, both of Chicago, of counsel.
    Taylor, Cuttone, Partridge & Parker, of Chicago, for appellee; Ode L. Bankin, of Chicago, of counsel.
   Mr. Justice Friend

delivered the opinion of the court.

Dominick Varraveto, individually and as trustee, appeals from an interlocutory order of the superior court appointing a receiver in a foreclosure proceeding, upon plaintiff’s verified complaint which alleged in substance that the debt is overdue, the insurance unpaid, that there were defaults in the payment of taxes and certain sums required to be paid into a sinking fund under the provisions of the trust deed, and that the equity had been conveyed to third persons after the mortgage was executed. The complaint incorporates the trust deed which pledges the rents as additional security and stipulates for the appointment of a receiver in case of default. There are no allegations that the security is inadequate or scant, and no showing is made as to the fair appraised value of the property. In drawing and presenting the complaint as the basis for the appointment, plaintiff relied solely on the allegations showing substantial defaults under the covenants of the trust deed, the provision pledging the rents and income- as additional' security for the indebtedness and that a receiver be appointed in the event of default. The law is well settled, however, that the provisions of a trust deed for the appointment of a receiver should not be enforced unless equitable considerations so require, and that an application for a receiver in a foreclosure proceeding is an appeal to the discretion of the court and not an absolute right which may be asserted in pursuance of the prior agreement of the parties as shown in the trust deed. In Frank v. Siegel, 263 Ill. App. 316, eight of the nine justices then sitting in the Appellate Court for the first district concurred in the doctrine that “even though the trust deed conveys the rents and profits as security and provides that a receiver of the premises may be appointed upon default in the payment of any of the indebtedness, a receiver should not be appointed solely upon the allegations of a bill to foreclose that there is such a default and a general allegation that the security is scant.” In that case the bill alleged in a general way that the security was inadequate; nevertheless, we held that in order to justify the appointment of a receiver it was incumbent on complainant to present facts from which the court could reasonably determine that the appointment was necessary for some equitable reason which would impel the court to exercise its discretion in favor of the appointment. The complaint in the case at bar does not even allege in general terms that the security was scant or inadequate ; nor is there any allegation whatsoever with reference to the value of the property, the income thereof, or that plaintiff will suffer any loss or damage if a receiver is not appointed immediately.

Plaintiff concedes that she has not met the burden placed upon her of showing sufficient facts to justify the appointment of a receiver under the rule enunciated in the case of Frank v. Siegel, but she attempts to avoid the effect of that decision by relying upon a portion of Rule 21 of the Appellate Court pertaining to interlocutory appeals. It is argued that this was an ex parte application and that the defendant did not as a condition precedent to his right of appeal present a motion to vacate the order in the trial court, and therefore the appeal should not be entertained. The record discloses that September 21, 1938, notice was served upon defendant and a tenant in possession, of an application for a receiver for the property upon the verified complaint. When the motion came np for hearing before the chancellor September 23, 1938, it was continued to September 30, and on the latter date it was again continued to October 20,1938, upon condition that the owner of the equity would pay $350 toward taxes on the property before the matter was again heard. It further appears that on October 21, 1938, Varraveto, the owner, obtained an extension to October 26,1938, in which to answer the complaint, but that on October 21 the court entered its order appointing the receiver from which this appeal is prosecuted. The record further shows that Varraveto and his wife were represented in court by counsel upon the hearing of the motion, and objected to the appointment, and also excepted to the order then entered. The record does not disclose, however, the reasons supporting the objection.

The fallacy of plaintiff’s contention as we see it, is that the application and appointment in this case were not ex parte, but were made pursuant to notice and over the objection of Varraveto. The phrase, ex parte, was defined in City Nat. Bank & Trust Co. v. Davis Hotel Corp., 280 Ill. App. 247, as a judicial proceeding brought for the benefit of one party only, and without notice to or contest by any person adversely interested, and we there held that this definition is applicable to the phrase ex parte as used in Buie 21 of this court, and that “the purpose of the rule was to prevent appeals from orders entered under circumstances indicating only partial and one-sided consideration.” Under this construction of Bule 21 the application for and the appointment of the receiver in the instant case was not an ex parte proceeding. It was unquestionably intended by the enactment of Buie 21 that appeals should not lie from ex parte orders, because courts ought to have an opportunity to rectify mistakes that may have been made through the presentation of a motion in the nature of an injunction or for the appointment of a receiver, where only one side appeared before the court, by a subsequent motion to vacate the order. Nevertheless, it is clear that the rule and the reason underlying it was intended to apply only to ex parte proceedings in fact, and not to causes where notice was served and the opposing party appeared and objected to the appointment.

Plaintiff takes the position that because the record does not show specific objections and exceptions by defendant, the application and appointment were ex parte within the meaning of the rule, and it is argued that defendant should have filed an answer in which he assumed the burden of showing that a receiver should not be appointed. The law is otherwise, however. The burden of making a proper showing for the appointment of a receiver is cast upon the plaintiff, and Rule 21 does not change or modify this requirement, nor does it nullify the holding in Frank v. Siegel, supra, that the burden is upon the applicant for a receiver to present facts by his verified bill, petition, or evidence showing the necessity for such an appointment.

Where an application is made for the appointment of a receiver, it is incumbent upon the court to examine the bill to ascertain whether a proper showing is made. Any answer that might have been filed by defendant would not remedy the defect of the complaint in failing to set forth adequate ground for appointing a receiver.

We are of the opinion that the appointment was improvidently made upon the record here presented, and therefore the order of the superior court is reversed.

Order reversed.

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


author: Mr. Justice John J. Sullivan

text:
    Letitia K. McKinley, Appellee, v. City of Chicago, Appellant.
    Gen. No. 39,655.
    Opinion filed February 14, 1939.

      Barnet Hodes, Corporation Counsel, for appellant; Alexander J. Besa, Arthur Chittick and Lionel J. Berc, Assistant Corporation Counsel, of counsel.
    Gustav E. Beerly, of Chicago, for appellee.
   Mr. Justice John J. Sullivan

delivered the opinion of the court.

'This appeal seeks to reverse a judgment for $750 rendered against defendant, city of Chicago, in an action brought by plaintiff, Letitia K. McKinley, for damages for personal injuries alleged to have been suffered by her as the result of the city’s negligence.

Plaintiff’s complaint alleged substantially that there was a concrete sidewalk on the east side of Winthrop avenue, extending northward from Lawrence avenue, and “a space commonly called a parkway between said sidewalk and the paved roadway of said street”; that it was the duty of defendant “to keep and maintain said street, including said parkway, in a reasonably safe and proper condition for the use of the public travelling thereon and using same”; that disregarding its duty defendant wrongfully and negligently permitted “said street, particularly said parkway, to become and remain in an unsafe and dangerous condition and negligently permitted and suffered a trap, pitfall, snare or hole to exist and to remain in the said parkway immediately next to said sidewalk, which said trap, pitfall, snare or hole was, to-wit: eight inches deep, and was a menace to the public rightfully using said street”; that “said dangerous condition and said trap, pitfall, snare or hole had existed for a long period of time prior to and on December 18, 1933; that the defendant knew or by the exercise of reasonable care, should have known of said dangerous and unsafe condition”; that “on December 18, 1933, plaintiff, while in the exercise of reasonable care and caution for her own safety, and without any knowledge of the said unsafe and dangerous condition as above described, was walking on the said sidewalk, and at a point about sixty feet north of the north curb line of said Lawrence avenue, stepped from said sidewalk onto the said parkway for the purpose of entering an automobile parked at the curb at said point, and by reason of the said dangerous and unsafe condition and said trap, pitfall, snare or hole in the parkway,” fell and sustained serious injuries.

The evidence disclosed that Lawrence avenue and Winthrop avenue are public streets in the city of Chicago ; that Lawrence avenue extends east and west and is intersected by Winthrop avenue, which extends north and south; that on the night of December 18, 1933, plaintiff and her husband on their way to attend a show at the Uptown Theatre, which is on Broadway near Lawrence avenue, parked their automobile facing north on the east side of Winthrop avenue at a distance variously estimated at from 60 to 80 feet north of Lawrence avenue; that plaintiff’s husband stepped out of the car on the left side and she alighted from it on the right side, which was closest to the curb; that plaintiff walked around the car and joining her husband proceeded west with him across Winthrop avenue and thence to the theatre; and that after the show, about 10 o’clock, plaintiff and her husband walked east on Lawrence avenue to the east sidewalk of Winthrop avenue and then north on said sidewalk to reach the place where their car was parked.

The pertinent testimony of plaintiff’s husband as to what happened thereafter is as follows: “I was on Mrs. McKinley’s right, had her arm with my left hand. We walked north on the sidewalk about 60 or 70 feet, if I recall it, and then Mrs. McKinley started to step off the sidewalk, kind of diagonally, direct to come to the car, almost abreast of the car, as she stepped off the sidewalk she fell forward, and then came down in a heap with her left foot under her body. ... It was dark at that point.” He further testified that at the place of the occurrence the level of the parkway was about 6 inches lower than the sidewalk level “and then as it went toward the curb it sloped off until it was about 8 inches ’ ’; and that at the place Mrs. McKinley sank” the level of the parkway was about 8 inches lower than the sidewalk level, “as you would step out about eighteen inches, it was about eight inches deep.”

Plaintiff testified that she walked north from Lawrence avenue on the sidewalk on the east side of Winthrop avenue, with her husband at her right holding her arm; that after proceeding about 60 feet ‘ just as we saw the car, I went to step down, and I stepped into a hole — my husband had my arm — I fell over on my leg, and just sort of fell in a heap”; that prior to that evening “we never parked our car ... in this location here on Winthrop avenue”; that it was quite dark over there; that before she stepped “over this side-walk” she did not know “there was a depression or decline there”; that “it looked as though it was even ... it was dark, you could not see ... I just sort of stepped into a hole”; and that she “never had occasion to use that parkway, or that sidewalk, before.”

The pertinent portions of plaintiff’s testimony on cross-examination are as follows:

“Q. Now, as you were walking immediately prior to your fall, where were your eyes directed?

“A. We were just walking along talking.

“Q. Did you look at the sidewalk?

“A. We were walking on the sidewalk. I looked up and saw the car. We were walking towards the car, when I stepped off.

“Q. You looked up and saw the car?

“A. I looked up and saw the car.

“Q. Did you look to see where you were walking?

“A. Of course; we wére walking. I naturally looked to walk towards the car.

" Mr. Berc: At any time during the period you were walking from Lawrence avenue until the time you fell, did you look where you were walking?

“A. You don’t watch every step.

“Q. Did you look?

“A. It was quite dark.

“Q. Could you see the cars parked along the curb?

“A. You can see the cars parked along the curb.

“Q. Did you look around?

“A. As we stepped, we looked.

“Q. Was it light enough to see the edge of the sidewalk?

“A. It was light enough to see the edge of the sidewalk, but you could not see this hole.

“Q. Could you see the curbstone?

“A. How do you mean, the edge of the sidewalk?

“Mr. Berc: The edge of the parkway, the street, do you know what the curb is ?

“The witness: Yes.

“Q. Could you see the curbstone?

“A. I did not pay any attention to that. I did not get that far.

“Q. At any time during the course of your walk from Lawrence avenue, did you see the curbstone ?

“A. I did not get that far. I just stepped off the sidewalk, and I fell.

“Q. In the course of that sixty-foot walk, did you at any time see the curbstone?

“A. I did not get that far.

“Q. What is that?

“A. I fell before I noticed it.

“Q. Before you fell, did you notice the curbstone?

“A. I did not look for the curbstone. I just fell off the sidewalk.

“Q. Was it dark at the corner of Lawrence and Winthrop as it was at the place you fell?

“A. It was bright.

“Q. Now the difference in level between the parkway and the sidewalk, that extended all the way from where you fell up to Lawrence avenue, didn’t it?

1 ‘A. I did not notice that. It was dark as I stepped off.

“Q. I am talking about the corner of Lawrence avenue and Winthrop; it was light?

“A. It was bright there.

“Q. Did you look at the sidewalk any time in the course of your sixty-foot walk?

“A. I don’t think so.

“Q. You don’t think so?

“A. You notice it as a sidewalk, but you don’t look down.

“Q. You could see the edge of the sidewalk? It was light enough for that?

“A. Yes.

“Q. You could see the cross-markers in the slabs?

“A. It was bright enough, walking.

“Q. Could you see the steps — could you make out the outline of the entrance to this apartment building at the place where you fell?

“A. You could if you looked that way.

“Q. Could you make out it was a step at these entrances here?

“A. It was probably light enough to see that.

“Q. What is the color of the sidewalk?

“A. Like any sidewalk.

“Q. What is your idea of what the color is?

“A. I imagine gray.

“Q. What was the color of the parkway, did that make any impression on your memory, the parkway ?

“A. It was dark.”

Charles Eason, testifying in plaintiff’s behalf, stated that he was the janitor of a building near the scene of the accident; that he was familiar with the sidewalk and parkway in question; and that the sidewalk at the point where plaintiff stepped off same was and had been for 17 years about 7 inches higher than the parkway.

Plaintiff introduced in evidence as Exhibits 1 and 2 two photographs which she, her husband and Eason testified truly reflected the condition of the sidewalk, parkway and surroundings from Lawrence avenue to a point some distance north of the place of the accident as they were on the evening it occurred.

Defendant’s theory as stated in its brief is that “there was no hole at the place in question; that even if it could be said that the evidence shows the existence of a hole, there is a total absence of proof to establish actual or constructive notice to the city of its existence; that a difference of six inches between the levels of the sidewalk and the adjoining parkway affords no basis for a recovery; and that the plaintiff was not in the exercise of due care and caution for her own safety at the time of her injury and without her negligence the injury could not have occurred. The city also contends that the notice required by the statute was not given.”

The statement appears in plaintiff’s brief that “by observing Exhibit No. 1 it can be seen that at the intersection of the sidewalk on Winthrop Avenue with the sidewalk on the north side of Lawrence Avenue, the parkway was almost even with the sidewalk, and continued so for approximately 50 feet” and that from that point for a distance of about ten feet north “there is a decided drop in the parkway testified to as 6 inches . . . and 7 inches deep,” but even a casual examination of the photograph referred to reveals that, while the difference in the levels of the sidewalk and parkway at the point where the accident occurred of 6 or 7 inches was somewhat greater than the difference in such levels south to the north sidewalk of Lawrence avenue, there was a marked difference in the parkway and sidewalk levels continuously north from said north sidewalk of Lawrence avenue.

In her testimony in the trial court plaintiff repeatedly stated that she stepped from the sidewalk into a “hole” in the parkway, while her husband apparently saw no “hole” because he made no mention of any “hole” in the parkway in his testimony. He merely stated that the surface of the parkway was 6 inches lower than the level of the sidewalk immediately adjacent to same; that it sloped downward so that it was 8 inches lower than the sidewalk at the curb; and that it was 8 inches lower at a point about 18 inches from the sidewalk where plaintiff stepped on said parkway.

By stating that she stepped into a “hole in the parkway” the impression must have been conveyed to the court and jury by plaintiff that she stepped into a cavity or opening in the parkway that extended below its surface. However, it is now stated in effect in plaintiff’s brief that when she testified that she stepped into a “hole” in the parkway she did not intend to use the word “hole” in the meaning ordinarily attributed to that word but merely that she stepped from the sidewalk to the parkway, which was from 6 to 8 inches below the sidewalk level, and that the parkway itself constituted the “hole.” Plaintiff was compelled to take this position here because her husband testified that she did not step into a hole and the photographs which she placed in evidence show conclusively that there was no hole or even a break in the surface of the parkway where she testified she stepped and fell. An even stronger reason which forced her to change her position as to stepping into a “hole” was that not a particle of evidence was offered in the trial court that the city had either direct or constructive notice of the existence of a hole in the parkway at the place in question.

With the “hole” in the parkway eliminated from consideration and with the parkway itself at a lower level constituting the hole, according to plaintiff, we have this situation presented. Plaintiff and her husband, leaving the theatre to go to their automobile which was parked alongside of the east curb of Winthrop avenue, about 70 feet north of Lawrence avenue, walked east on the north sidewalk of Lawrence avenue until they reached the east sidewalk of Winthrop avenue. It was brightly lighted at that point and the photographs show the south end of the parkway in question considerably below the level of both the Lawrence and Winthrop avenue sidewalks. Plaintiff and her husband walked north about 60 feet on the east sidewalk of Winthrop avenue to a point almost opposite their car, where she stepped off said sidewalk onto the parkway and fell. According to her it was dark where she stepped off, but she could see the color of the sidewalk and the edge of same and she observed a darker color to the west of the sidewalk. The photographs in evidence portray the surface of the parkway as practically flat and smooth from a point several feet north of the place of the accident to the north sidewalk of Lawrence avenue and there were no obstructions on or dangerous defects in the parkway at or near where plaintiff stepped onto same.

It is insisted that under its recognized duty to use reasonable care to keep its streets and sidewalks in a reasonably safe condition for the accommodation of the public using same, the city should not be subjected to a charge of negligence under the undisputed evidence presented by the record in this case, which in its final analysis neither established nor tended to establish any more than that there was the difference heretofore indicated in the levels of the sidewalk and adjacent parkway, the surface of the latter being practically smooth and flat.

Defendant’s principal contention is that plaintiff’s fall and injury were due to her total failure to exercise any degree of care whatsoever for her own safety and that the difference in the levels of the sidewalk and parkway merely constituted a condition which made it possible for her negligence to produce the result it did.

We have carefully examined the authorities to which our attention has been called and many others and have found no reported case wherein the facts were at all comparable with the facts here. All such cases were concerned with dangerous obstructions or defects of one land or another in the parkway or with what were characterized in some of them as dangerous pitfalls, traps or snares. It is in the latter category that plaintiff séeks to have her case considered. Was the condition of the parkway where she fell, as disclosed by her own evidence, such as to constitute it a pitfall, trap or snare? It must be conceded that the parkway in question consisted of earth that was solidly packed and that its surface was free from dangerous defects. Although, as heretofore shown, plaintiff testified that she stepped into a hole in the parkway, no such claim is advanced in this court. All that she contends here is that her fall and resultant injury were caused by her stepping down 6 or 8 inches from the sidewalk to the surface of the parkway and that the maintenance by the city of the sidewalk and parkway at the levels indicated was a violation of defendant’s duty to exercise reasonable care to keep its streets and sidewalks in a reasonably safe condition for the use and accommodation of the public. Was the city negligent — and no other negligence is now asserted — merely because it maintained the sidewalk and parkway at the aforesaid levels ?

In discussing what constituted negligence on the part of a municipality in connection with the maintenance of its streets and sidewalks in Boender v. City of Harvey, 251 Ill. 228, the court said at pp. 230, 231:

“No arbitrary rule can be laid down as to defects in highways or streets for which municipalities will be liable or as to the degree of care required of the person injured. Municipal corporations are not insurers against accidents. The object to be secured is reasonable safety for travel, considering the amount and kind of travel which may fairly be expected upon the particular road or street. A highway in the country need not be of the same character as a street in a large city. (Molway v. City of Chicago, 239 Ill. 486.) All portions of a public street, from side to side and end to end, are for public use in the appropriate and proper method, but the only duty cast upon the city is that it shall maintain the respective portions of the street in reasonably safe condition for the purposes to which such portions of the street are devoted. (Kohlhof v. City of Chicago, 192 Ill. 249; 2 Dillon on Mun. Corp. —2d ed. — sec. 1019.) The city is not bound, under the law, to keep its streets absolutely safe. It is only bound to use reasonable care to keep its streets reasonably safe for ordinary travel thereon by persons using due care and caution for their safety. (City of Salem v. Webster, 192 Ill. 369; Village of Lockport v. Licht, 221 id. 35.)' ‘The obstructions or defects in the streets or sidewalks of a city, to make the corporation liable, must be of such a nature that they are in themselves dangerous, or such that a person exercising ordinary prudence cannot avoid danger or injury in passing them — in general, such defects as cannot be readily detected.’ City of Aurora v. Pulfer, 56 Ill. 270.

“Municipal corporations cannot be held liable for every accident that occurs within their limits, but the defect must be such as could have been foreseen and avoided by ordinary care and prudence of the city authorities.”

In the instant case there was no defect of such a nature that it was in itself dangerous. There was no such defect in or on the parkway that a person exercising ordinary diligence could not have avoided danger or injury in passing over said parkway. Even though we assume that the difference in the levels of the sidewalk and parkway was a defect, it was such a defect as could have been detected by the exercise of even the slightest degree of care.

We are impelled to hold that under the undisputed evidence the city was not guilty of actionable negligence in this case. There was neither obstruction, defect nor pitfall in the parkway that caused plaintiff’s fall and injury. The difference in levels between the sidewalk and parkway at the point in question was no greater than the step-down from many of the heavily travelled sidewalks throughout Chicago to adjacent street or alley pavements. It has never been held, in so far as we have been able to ascertain and in our opinion it could not be held, that liability attaches to a city for negligent maintenance of its streets and sidewalks where a person falls in stepping down 6, 7 or 8 inches from a sidewalk to a smooth, level street or alley pavement.

As stated in Boender v. City of Harvey, supra, “all portions of a public street, from side to side and from end to end, are for public use in the appropriate and proper method, but the only duty cast upon the city is that it shall maintain the respective portions of the street in reasonably safe condition for the purposes to which such portions of the street are devoted. ” Granting that plaintiff in crossing the parkway from the sidewalk to enter an automobile standing at the curb was unquestionably making an appropriate use of same, we repeat that there is no evidence in the record that the parkway was not maintained in a reasonably safe condition “for public use in the appropriate and proper method” by a person crossing same. The mere fact that the city may have contemplated raising the level of the parkway and sodding or planting it with grass seed can have no bearing on the reasonably safe condition in which the parkway was maintained at the time of plaintiff’s injury. The city was not required by law to maintain such parkway at a level even with the sidewalk or at any certain level.

It is uncontroverted that the northeast corner of Winthrop and Lawrence avenues, just about 60 feet south of the place of the accident, was brilliantly illuminated. There was a street lamp within a few feet of where plaintiff fell, but there was a conflict in the evidence as to whether or not this lamp was lighted at the time. According to plaintiff this street lamp was not lighted and “it was dark” hut she could see the edge of the sidewalk and noted that, while the sidewalk was gray in color, “it was dark” beyond the edge of same. Plaintiff was unfamiliar with this parkway and had never crossed it before. She stated that from the time she left Lawrence avenue, which was brightly lighted, to walk north on Winthrop avenue with her husband, she was on the portion of the east sidewalk nearest the parkway, but that she did not notice that the parkway was lower than the sidewalk or that the difference in the levels of the sidewalk and parkway increased as she proceeded north. In other words, she stepped off blindly into space without any knowledge of the distance downward she was stepping. The parkway was only 6 inches lower than the sidewalk immediately adjacent thereto and it was her duty, in the exercise of ordinary care for her own safety under the circumstances described by her, to at least have felt her way with her forward foot before venturing precipitately into a dark, unfamiliar place. The fact that she thought that the parkway was even with the sidewalk does not excuse her lack of diligence. If there was sufficient light in the vicinity to render visible to plaintiff the difference in the levels of the sidewalk and parkway, it was her duty, in the exercise of ordinary prudence, to have seen and noted such difference before stepping down from the sidewalk to the parkway. In our opinion under the evidence submitted by plaintiff herself, she was guilty of contributory negligence as a matter of law.

Such other points as have been urged have been considered, but in the view we take of this case we deem it unnecessary to discuss them.

Plaintiff’s motion heretofore made and reserved to hearing to strike the report of proceedings at the trial from the record on appeal and to affirm the judgment of the trial court is at this time denied.

For the reasons stated herein the judgment of the circuit court is reversed, and, inasmuch as it would serve no useful purpose to remand the cause for a new trial, judgment is entered here in favor of defendant and against plaintiff.

Judgment reversed and judgment here.

Burke, P. J., and Friese, J., concur.