author: Mr. Justice Matchett Mr. Presiding Justice O’Connor Mr. Justice MoSurelt

text:
    Thomas J. Grady, Appellant, v. Eileen Grady, Appellee.
    Gen. No. 35,071.
    0 ’Connor, P. J., specially concurring.
    McSurely, J., dissenting.
    Opinion filed December 28, 1931.
    Rehearing denied January 15, 1932.
    Edwin Hamilton, for appellant.

      Crahen, Sullivan, O’Toole & Sullivan, for appellee; John E. Crahen, of counsel.
   Mr. Justice Matchett

delivered the opinion of the court.

On June 21, 1929, Thomas J. Grady filed his bill of complaint against his wife, Eileen Grady, praying for a divorce on the ground that she had deserted him on September 4, 1924. On July 18 thereafter she answered, admitting the marriage as averred on June 30, 1923; denying that the complainant had treated her kindly as he alleged in his bill; denying that she deserted him without reasonable cause, but asserting, on the contrary, that she was driven from his home by repeated cruelties, and that he had deserted her.

On August 12, 1929, defendant filed a cross-bill alleging that she had always been a dutiful wife; that she lived with complainant until September 4, 1924, when she was forced to leave him because of his repeated cruelties; that on September 3, 1924, he beat, «choked and struck her, and that on the following day. he struck, beat and drove her from their home with a revolver, at the same time threatening to take her life. She alleged that he was worth about $500,000, but that he was turning all his property into cash with the intention of leaving .the jurisdiction of the court. She prayed for a divorce and for support, maintenance, temporary alimony and solicitor’s fees.

On October 1, there was a substitution of solicitors for complainant, and on the same day an amended and supplemental bill was filed in which complainant, among other things, alleged that defendant married complainant only for the purpose of getting alimony and charged 17 specific acts of adultery with four different men between May 11, 1926, and July 31, 1930. The amended and supplemental bill, like the original, prayed for a divorce.

On October 14, defendant answered, denying specifically and in detail each one of the acts of adultery as alleged, and on the following day she filed an amended cross-bill in which she alleged that while living with complainant she had suffered a miscarriage as a result of his cruelties; that he had refused to furnish her with necessary medical attention; that two days after her marriage she had turned over to defendant $2,400 in cash, no part of which had been returned to her; that through false representations complainant had secured her signature to a number of warranty or quitclaim deeds. The amended cross-bill particularly describes the real estate, the title to which, it was alleged, had been thus obtained.

Complainant answered, denying all these charges. The cause was put at issue.and the testimony heard by the chancellor in open court, and a decree was entered January 24, 1931, which finds that the parties were married June 30, 1923,"at Chicago; that they lived together until September 4, 1924, and that no children were born of the marriage. The decree further finds that Eileen Grady “is not guilty of any or either of the acts of adultery set forth in the complainant’s amended and supplemental bill”; that she is not guilty of desertion; that complainant has failed to establish “any or either of the charges alleged” and “is not entitled to any relief prayed for in said.bill.” The decree orders the amended and supplemental bill dismissed for want of equity.

The decree further finds that the parties lived together until September 4, 1924, when “owing to the cruel and inhuman treatment of the said Thomas J. Grady, it was necessary for said cross complainant, Eileen Grady, to cease living with him as his wife.” It specifically finds that on September 25, 1923, complainant struck his wife, leaving bruises and discolorations upon her body; that on October 16 and Octoher 24,1923, he struck her violent blows upon the head and body, leaving black and blue marks thereon; that on February 24, 1924, he struck and beat her, by reason of which she suffered a miscarriage; that on September 3,1924, he attempted to take her life by the use of a butcher knife, and on September 4, 1924, “drove cross complainant, Eileen Grady, from her home with a certain revolver and threatened the life of said Eileen Grady and informed said Eileen Grady that if she returned to said home on said date he would kill her.” There were further findings to the effect that Eileen Grady had established the material allegations of her cross-bill as to both cruelty and desertion.

The decree, however, further finds that on July 9, 1930, Mrs. Grady went to Bluff Lake, Illinois, with one Robert J. Robinson; that Robinson rented a cottage on the lake and that Eileen Grady and Robinson were there introduced to John and Genevieve Lucas as Mr. and Mrs. Robinson; that Eileen Grady wrote three love letters to Robinson on July 16, 17 and 21, 1930; that Eileen Grady was riding around alone in an automobile with Robinson; that on July 31, 1930, she was with Robinson at Bluff Lake; that she was alone with him in the cottage rented by him on July 31, 1930, after dark; that she was a married woman and he a married man, and that her conduct “was not the conduct that was justifiable under any circumstances”; that everything on the night of July 31,1930, was a frameup and that if Eileen Grady is guilty of adultery the whole thing was framed beforehand and that defendant is therefore entitled to no relief, and that Eileen Grady is not guilty of adultery, neither is she guiltless, in that she was carrying on an intrigue and flirtation with a married man and that her conduct was such as to prevent her from obtaining any relief.

The decree further finds that on July 23,1923, Eileen Grady turned over $2,400 in cash, which was her own property, to her husband; that she is entitled to have the same returned to her with interest to date; that Eileen Grady was living in a house which she claimed belonged to complainant, but that the building was claimed to be owned by one Peter Maguire; that if the property is still owned by complainant, she should be entitled to remain there — we presume as her homestead — but that if it belongs to Peter Maguire, he is entitled to his property; that Eileen Grady is not entitled to alimony and solicitor’s fees; that the question of the ownership of said building should be referred to a master in chancery to determine its ownership; that the amended and supplemental bill of complaint should be dismissed for want of equity; that Eileen Grady should have no relief except as to the $2,400 given to complainant, and except as to the building at 6334 Francisco avenue, in which she was living, and as to the ownership of that property the cause was referred to a master in chancery to take the testimony and report.

The decree further directs that Eileen Grady have and recover from complainant the sum of $2,400 with interest at five per cent from July 1, 1923, to the date of entry of the decree, and that in the event of failure of complainant to pay said amount within five days from the entry of the decree, upon filing an affidavit of such failure, execution issue therefor. The decree also finds that complainant is indebted to Eileen Grady in the sum of $235 which accrued prior to the filing of complainant’s amended bill for divorce on October 1, 1930, and orders said sum to be paid within 20 days and reserves jurisdiction to enforce such payment. It orders that complainant should not be required to pay to Eileen Grady any further solicitor’s fees other than the amount formerly allowed on August 13, 1929, viz., the sum of $250 which had been theretofore paid; that complainant should not be required to pay any court costs and expenses incurred by Eileen Grady; that her bill for divorce filed on October 15, 1930, should be dismissed for want of equity.

From this decree complainant has perfected this appeal and defendant has assigned cross errors. Elaborate briefs have been filed and the cause argued orally. The appeal has received unusual attention because of divergent views entertained by the judges of this court with reference to the facts and the law applicable thereto.

Upon some matters, however, we are in substantial agreement. We are agreed that the husband was guilty of the acts of extreme and repeated cruelty and of the desertion as alleged in the cross-bill and found' by the decree, and that the charges of adultery other than with one Robert J. Robinson are not sustained by the evidence produced. We are agreed that defendant’s conduct with Robinson was highly improper, and a majority of the court — the writer not concurring— are of the opinion that the evidence must be held to establish the charge of adultery with him. A majority of the court — the writer concurring — are further of the opinion that the conduct of complainant was such as to preclude him from obtaining a divorce from defendant on that ground.

A review of the stormy marital career of these parties seems necessary. As already stated, the parties were married June 30,1923, at Chicago. She was then about 29 years of age and he perhaps a year older. He had studied law, was a graduate of Northwestern Law School, but was extensively engaged in the real estate business.

For a few days after the marriage Mrs. Grady lived at the home of a sister of her husband, Mrs. Regan, while he continued to reside at his former home. He owned a ranch at Colorado Springs, .Colorado, and within a week after their marriage they went there by automobile. About the first of September they returned to Chicago. At first they rented a furnished apartment but after about a week returned, as Mrs. Grady testified, to the home of the Regans. On October 25, they went to live at 714 Barry avenue and they continued to reside there until February, 1924. In January of that year Mr. Grady took a trip to Hot Springs. He says he had a nervous breakdown; he was away for about four weeks; his wife did not go with him; she says she was not invited. They returned to Colorado Springs about March 1 and remained there until the end of April, when they returned to Chicago and took an apartment at 6224 Mozart street. It was a three-apartment building owned by Mr. Grady’s friend, Michael Kelly, whose family lived in another apartment in the building. It was while living there and, as both agree, on September 4, 1924, that the separation took place.

After the separation Mrs. Grady at first went to the home of Mrs. Regan and remained there about six weeks and later Mrs. Regan assisted her in moving to the second flat in the three-apartment building owned by Mr. Grady at 6334 Francisco avenue. The record does not indicate that the parties met again until June, 1925. At that time Grady was at Battle Creek, Michigan, ill and preparing for two operations. Without his request she visited him there. He says that when he first saw her there she was waiting in his room and that he was surprised to see her; that she remained in the room only about 15 minutes; that she tried to get him to execute a will, which he refused to do; that he called up and found out that the train for Chicago would leave between one and two o’clock that night and that he then arranged for a room for her; she says that they stayed together in that room that night and until four o’clock the following afternoon when she returned to Chicago. She says that when he returned to Chicago he made an appointment to meet her and that she met him at the corner of Devon and Francisco avenues; that they talked about the past and about planning a trip to Europe; that he told her they would not at that time live together but would do so after his return. While at first denying this meeting, on cross-examination he admitted that he met her at Francisco and Devon. He says that he asked her to come back, that he “still had a lot of regard for her then,” and that this was the last time he talked to her until he returned from Europe, when he again asked her to return and live with him, which she refused to do. While apparently not talking with or again meeting her, he sent to her $100 each month and continued to do so up to the time of the filing of the bill. The true state of his mind at this time is disclosed by a letter he apparently wrote July 3, 1925, but which was mailed to her at Battle Creek, Michigan, on August 20, 1925. It read:

“Eileen: I am keeping my promise to write to you at this time; I am not able to write much. I have had two operations and only just up four days ago, but am still sick and will be for some time. I went through a good deal as I was so sleepless. I was thirteen days in bed and had to take opiates to sleep, but then that suffering was nothing to other suffering of the mind.

“I do not worry about the operations any more, for these are minor things in life now. In about a week I will undergo another which is the most serious, and if I am well after that it won’t be so bad.

“I can’t add anything to what I said when you were here as I am too sick to think of things. The past has been too much for even me. No ship could weather all storms and as the sun is set, what matter if the moon loses its light as well? I want to be alone. I have neither friends nor enemies.

“It is as I wish it, and I don’t want to see anyone. I knew before that I have to forget as far as possible all the past. If I am to be able to stand it — I weigh 137 pounds now; I weighed 183 pounds once, so there isn’t much left, but I will be all right.

“Take care of yourself.

(Signed) Tom.”

Another letter from him to her written about this time, is as follows:

“Eileen: Before I was operated on I promised I would write you after I was over my operation and would have immediately in accordance with my promise, but before I could do so you had resorted to the indiscreet route by telegraphing to the sanitarium.

“That was typical of you, and although it hurts me somewhat, the effect was not as serious as it once was. Thank the Gods for that.

“I am not able to write much more or say much yet, hut one thing is certain, that I have suffered the worst and still I am — although I realize that is all over for I never can be myself physically or mentally.

“I will not go into the details or bother you with them, knowing that you are better off without details and it will not take up much of your time reading it, but the physical suffering has not been anything like one night of mental suffering. However, this too, shall pass away, and everything shall some day be forgotten.

“I am a little better although not much. I have passed — I shall see you when I get back. Hope you are well, and shall always wish you health.”

In March, 1926, Mrs. Grady became acquainted with Marie Van Ornum, who more or less of the time thereafter up to June 6, 1930, lived with her in the Francisco avenue apartment. On this last named date Miss Van Ornum went to Crystal Falls, Michigan, for a visit. While living with Mrs. Grady, Miss Van Ornum made the acquaintance of Robinson in April, 1930, and three days later she introduced him to Mrs. Grady. From that time until she left for Michigan, Miss, Van Ornum met Robinson two or three times a week, and she says they “were keeping company with each other.” The record is quite barren of facts which we would wish to know with reference to Robinson. It appears, however, that he was married at this time and had two grown daughters, one of whom was ill. He testified in this case, and it appears that about a week prior to the giving of his testimony his wife had obtained a divorce from him upon grounds not disclosed. He had a position with the telephone company. The telephone at Mrs. Grady’s home had become out of repair and it was while repairing this telephone that he first met Marie Van Ornum. During the time he was paying attention to Miss Van Ornum he, by Mrs. Grady’s invitation, twice took meals at her home, Miss Van Ornum being present.

Miss Van Ornum, testifying for complainant, states that she had never seen anything improper in Mrs. Grady’s conduct, and a number of Mrs. Grady’s neighbors testified to her previous good reputation. Upon her return from Crystal Falls Miss Van Ornum talked over the telephone with Mrs. Grady, from whom she had received messages while away. She asked Mrs. Grady about staying at her home again, but Mrs. Grady replied that she would be leaving the city soon to go to Syracuse, New York. Miss Van Ornum says, “She did not even invite me to her home,” and after she returned to the city she (Van Ornum) did not again hear from Robinson. In the meantime another lady, Miss Molly Verdón, had taken the place of Marie Van Ornum in Mrs. Grady’s home.

The exact date upon which Robinson became interested in Mrs. Grady is not disclosed, but it is not disputed that on July 9, 1930, Mrs. Grady went with Robinson to Bluff Lake, Illinois. The testimony of the owner of the cottage and of his wife is to the effect that Mrs. Grady and Robinson looked a cottage over together there; that it was stated that the cottage was wanted for a daughter who was sick and the doctor had advised country air, and that later in the afternoon they came back together and Robinson said he would take the cottage. The owner and his wife testify that at that time Robinson introduced Mrs. Grady as his wife, and that in going up the hill from their place, Robinson put his arm around Mrs. Grady; that they were leaning their heads on each other’s shoulders and kissing each other. This testimony is denied by Mrs. Grady and by Robinson.

On July 12, 1930, Mrs. Grady left Chicago. for Koontz Lake, Indiana, where she remained until July 24. While there she wrote Robinson on July 15 as follows:

“Chicago, Tuesday

“Dear Bob:

“Received your letter this morning; very glad to hear from you; it was too bad you had to wait back a day in taking the folks to Bluff Lake, but it was wiser to wait as it was quite' cold Sunday and Monday. So far I have enjoyed every minute here. Saturday we left Chicago at one; we had a lovely chicken dinner on the road; the ride was fine, only it was very hot.

“We got here about six; then we shopped for Sunday and we managed to have a swim before dark.

“Sunday was very cold; in order to keep warm we played horse-shoe, jumped rope, climbed trees, played cards, and Ethel and myself were brave enough to go in swimming, but the water was lovely. I only wish you were here, you would say, as you always say,1 This is fine.’ .

“I guess I have told you all. I miss you very much, I won’t tell you how much, I will save that part till I get back. Be sure to save those D. F. K. for me until we meet again.

Corkie. ’ ’

July 16, she wrote:

“Kuntz Lake, Wednesday.

“Dear Bob:

“The letter which I wrote you yesterday must be funny, as the whole bunch was talking around here as I wrote it. Today I decided I would write you a few lines on this Irish paper, just to prove to you that I think of you all the time. We just got home from swimming. The water was swell. I have learned quite a few stunts, as swimming under the water and turning over under the water. I shall be a good swimmer when I return. Have you taken the folks to the lake yet? Bob, it is perfectly lovely here. I am enjoying every minute. I only wish you were here; we would have some grand times. Ethel and I are well mated; she likes everything that I like; even the cold days we went swimming, and the others sat around here like your friend Miller. It is hard for me to write or even think, as there is someone around all the time. Be a good boy until I see you, and don’t do anything I wouldn’t do. With Eileen.”

July 19, she wrote him:

“Saturday, July 19.

“To begin with, I must thank you for the package which I received yesterday. Bob that certainly was beyond my expectations. No words could ever express how thrilled I was when I got that package. Ethel and Mr. Oberg were with me at the time. They kidded me, but I did not make them any the wiser. Bob, many the times I have wished you were here. We are having one grand time, but I am counting the days until I see you. Yesterday we were surprised with company from Chicago. They are staying over Sunday. They are friends of Ethel’s. The swimming here is great. I have learned to be brave. Bob, I only wish you will enjoy Bluff Lake as well as I enjoy Kuntz Lake. I have not heard from Mollie. I wonder if everything is all right at my house. Bob, I am wondering if you get my letters. It is hard to write here as everyone is talking. I suppose you are at Lake Bluff by now, but I am taking a chance on sending this. Again thanking you for my pleasant surprise.

Eileen.

“P. S. Be a good boy until I see you, and enjoy yourself, and don’t do anything that I wouldn’t do. I feel like sending you a few crosses on paper, but will save them ’til we meet again. ’ ’

Mrs. Grady reluctantly admitted on cross-examination that the letters “D. F. K.” meant “damn fine kisses.” However, her reference in two of the letters to his taking his folks to Bluff Lake indicates that she did not understand the cottage was being rented for the use of herself and Bobinson.

Mrs. Grady says that Bobinson told her he had been divorced, and she explains that “Corkie” was a pet name she used because she was born in County Cork. She says that upon her return she did not see Bobinson, between July 24 and July 31. The events of that particular date will be discussed later.

A review of this record is rendered exceedingly difficult not alone by the size of it and the numerous incidents concerning which conflicting evidence is given, but also by reason of the fact that each of the parties seems to have been willing to accept untrue testimony. Grady at his real estate office and at other places seems to have been usually attended by Bernard Shanley, who received compensation to the amount of $500 a month and whose principal services during this time seems to have been directed to obtaining evidence against Mrs. Grady. There is in the record a long letter from Shanley to Bobinson under date of August 12, which clearly indicates his desire to obtain evidence against Mrs. Grady and (we have already pointed out) his willingness to fabricate it if necessary. In the background of this entire legal struggle appears the admitted wealth of Grady, and a perusal of the record leaves little doubt that this stimulated the interest and activity of the friends of the parties. Marie Van Ornum denied on cross-examination that she told Mrs. Grady’s attorneys that Michael Kelly would make it worth her while to go on Grady’s side and had left a $20 bill with her which she afterwards returned. Mrs. Grady testifies that Marie so stated. Kelly did not testify.

We have already indicated in this case our approval of the findings of the decree with reference to matters other than that of the relations of Mrs. Grady with Robinson. In view of the nature of the testimony given by complainant Shanley and other witnesses, in sustaining that finding we must assume their willingness to give false testimony and their alacrity to fabricate it. These facts render it quite impossible for this court to hold that certain things which. Shanley and Grady say occurred at Highland Park, in the forest preserve, and on two occasions prior to July 31 at night in the cottage at Bluff Lake are true. Not only is the testimony as narrated inherently improbable and contradicted by the testimony of Mrs. Grady and Robinson, but as to improper conduct said to have taken place in the cottage on June 26, the testimony of these two is corroborated by that of the street car conductor upon whose train on that day Mrs. Grady received a slight injury for which a few days thereafter she was paid compensation by the street railway company.

This leaves for consideration the most serious accusation which concerns the admitted' presence of Mrs. Grady and Robinson at the Bluff Lake cottage on July 31. The finding of the decree is to the effect that Mrs. Grady was there alone with Robinson at this time after dark; that her conduct was not justifiable under any circumstances; “that everything on the night of July 31, 1930, was a frameup and that if defendant and cross complainant, Eileen Grady, was guilty of adultery, the whole thing was framed beforehand and that therefore the complainant, Thomas J. Grady, is entitled to no relief.” We would wish that the findings of the chancellor had been more specific as to the facts constituting this “frameup.”

The evidence in the record shows that Mrs. Grady and Robinson were in the cottage on that evening; that about 12 o’clock that day Robinson called her up and said that he had seen an article in “The American” about lotus lilies that grew in Grass Lake; that he asked her if she would drive out and see these lilies and also inviting Mollie Verdón to go with them. She says she told him that Mollie was downtown and would not be home. He then asked her if she wanted to go and she said “All right.” They left Chicago about three o’clock in the afternoon, Robinson meeting her at her home; they then drove to Bluff Lake, arriving there about a quarter after five. She says that Robinson said he would like to turn oyer to the owner the keys of the cottage; that Grass Lake was only a short distance from Bluff Lake, and they drove to Bluff Lake, parked the car on the top of the hill and walked down the hill to the cottage; that Robinson came back to the car and said the owner was not at home; that she asked him if there was any place they could get a drink of water and he replied there was a pump at the edge of the lake and they both had a drink of water there; that they then went to Grass Lake, left there about 7:30 and stopped on The way back for something to eat and then returned to the cottage, she says, at about eight o’clock, when it was still daylight. They parked the car and Robinson again went to Loflf’s cottage to return the key. He returned and said there was nobody at home. She says she got out of the car to get a drink of water; that Robinson went into the cottage to get a pail and some glasses; that she stood on the porch and he put the pail of water on the porch table and drank; that after five minutes they went into the living room; that she sat on the chair and Robinson on the settee; that in about five minutes she heard someone say, “Police, let us in”; that the next thing she saw was Robinson with his hands up and surrounded by Grady and a band of men he had brought with him. Robinson corroborates her testimony in this respect.

One. of the most significant things in the record with reference to this incident is that it appears that Grady and Shanley knew on the day prior to this time that Mrs. Grady and Robinson were to be at the cottage the next evening. Those present at the time of the raid on the cottage were Grady, Shanley, Byron Cheney, W. H. Kennedy, James Burke and Tony Russell. All except Russell lived in Chicago. Cheney was telephoned to by Grady with reference to going out to this cottage on the day before (July 30) about two o’clock in the afternoon. According to his testimony he met Grady at Grady’s room in the Sovereign hotel, Chicago, and on that day he, Grady and Shanley went to Bluff Lake where this cottage and the general situation were pointed out to him. They returned that day to Chicago. Cheney then made arrangements to meet Grady and Shanley at the cottage on the following evening, and he returned to Bluff Lake the next day, as he says, about 5:15 p. m., for the purpose of watching the movements of Robinson and Mrs. Grady.

At about four o’clock in the afternoon of July 31, Shanley called up James Val Burke, a cousin of Grady, for whom he worked, and Burke says that about ten minutes to five Shanley, Grady and Kennedy came for him in an automobile and they drove together to Wauconda, where they met a Mr. Flanagan, who was requested by Grady to go with them but who declined, and that Tony Russell, who worked on Flanagan’s farm, was substituted.

Kennedy says that he was called np by Grady on either the 29th or 30th and was given to understand that he was to be ready for a call on the 31st; that Grady did not tell him what he wanted him for and he did not ask but kept the appointment and went with him on the afternoon of the 31st.

These parties all testify that they were unarmed; that Grady led them when they broke into the cottage, and they give testimony, denied by Mrs. Grady and Robinson, to the effect that she and Robinson were only partly clothed at the time of the entrance and evidence tending to show that they committed adultery at that time, which is also denied. The evidence shows that for an hour and a half these raiders compelled Mrs. Grady and Robinson to sit together on the settee; that in the meantime Shanley and Cheney went to Antioch and returned with a police officer; that Mrs. Grady and Robinson got in Robinson’s car and with Grady and the officer sitting in the back seat drove to Antioch, where after some delay Shanley and Grady found a justice of the peace, whom they call “a judge” and who held a trial about midnight, at the conclusion of which he found Mrs. Grady and Robinson guilty of disorderly conduct and fined them $50 each. As a matter of fact, it appears that Mrs. Grady and Robinson were taken to Antioch without a warrant; that (although the evidence is contradictory on that point) Robinson made little, if any, resistance nor did he make any serious attempt to protect her, while she in the presence of this so-called judge passionately protested her innocence, which she asserted she would be able to prove beyond a doubt if she was allowed to produce medical testimony. At the time of the raid on the cottage Robinson’s coat and her hat were in the automobile, and although it was dark Grady was able to extract the three letters of Mrs. Grady to Robinson from the pocket of the coat.

The testimony in the record with reference to Robinson, as already stated, is much more meager than we would wish. A full explanation of how it came about that this repairman for the telephone company was riding about in an automobile, renting a cottage at a summer resort, neglecting his' obligations to his wife and children, one of whom was ill, would prove exceedingly helpful. If we assume (which seems possible) that he introduced Mrs. Grady as his wife at the time he rented the cottage, that he walked away with his arm about her (which would have been sufficient evidence to most people that they were not in fact married), that he kissed her publicly in.the park — one of two alternatives would seem to be true; either Robinson’s intention was to compromise Mrs. Grady and furnish evidence against her (which the easy manner in which her letters to him were obtained would indicate) or he was dull of understanding beyond all human comprehension. However this may be, the letters which Mrs. Grady wrote to him are not denied. Without them the evidence in this record would not be sufficient to convict her. Their contents cannot be explained away. They indicate that Robinson was making love to her and that whatever her attitude theretofore may have been, she was then ready to surrender. Such is the view of a majority of this court. The writer thinks the finding of the chancellor, who saw and heard the witnesses, should stand.

Assuming, then, that Mrs. Grady was guilty of adultery and Mr. Grady of extreme and repeated cruelty, desertion, attempting her life, and the fabrication of evidence against her, it remains to determine the rules of law applicable to this state of facts. It is urged by the husband that it is the law in Illinois that no other offense against the marital relation is recriminatory to a charge of adultery; that such is the rule without exception; that this court should follow it and according to the precedents of Stiles v. Stiles, 167 Ill. 576; Lindsay v. Lindsay, 226 Ill. 309; and Mitchell v. Mitchell, 241 Ill. App. 7, should reverse the decree and remand the cause with directions to grant the husband an absolute divorce as prayed. The Supreme and Appellate Courts of Illinois have often said in particular cases cited and relied on, that neither desertion nor extreme and repeated cruelty are recriminatory to a charge of adultery, and these cases have been construed by some legal writers as approving the doctrine for which complainant contends (see note to Young v. Young, 94 N. J. Eq. 155, 119 Atl. 92, 25 A. L. R. 1049, and note to Ellett v. Ellett, 157 N. C. 116, 72 S. E. 861, 39 L. R. A. [N. S.] 1135) but a careful examination of the cases will disclose that it has never been held to be the rule without exception nor declared to be the rule applicable in any case where the facts are such as appear in this record.

The law applicable to the granting of divorces in this State will be found in Cahill’s St. ch. 40; chapter 40, Smith-Hurd’s Ill. Rev. Stats. 1929, as amended.

In England, whence our system of jurisprudence is derived, divorces from the bond of matrimony were formerly granted only by act of parliament. The ecclesiastical courts granted divorces a mensa et thoro only for cruelty and adultery, and it was the law as announced by those courts that proof of adultery of one spouse would bar a suit by the other upon the same ground. Cruelty, however, furnished no bar to a suit for adultery. (Proctor v. Proctor, 2 Hagg. 292; Dillon v. Dillon, 3 Curt. 86.) The reason for the rule was that under that system the offenses were not of the same kind. The parties were not in eodem delicto.. The soundness of the distinction was doubted, however, in Dillon v. Dillon, supra. While this was the practice of the ecclesiastical courts it was the established doctrine in parliament that in determining the rights of the parties under a petition for divorce a vinculo matrimonii, both adultery and cruelty might be pleaded in recrimination as an absolute bar. In the matter of Simmons’ Divorce Bill, 12 C. and F. 339, Simmons accused his wife of adultery and introduced evidence which proved a clear case of prostitution against her. She undertook to prove he had been living in adultery with another woman, but this evidence was held insufficient. Lord Brougham said that complainant might or might not be guilty as charged by the wife, but nevertheless his bill should be rejected because he for more than 16 years had separated himself from his wife without looking after her and without making any provision for her maintenance; that wholly independent of the charge against her husband and as if there was no ground whatsoever for it “on the evidence that this person neglected his wife, and threw her on the world without caring what became of her, or how she was supported, or allowing her anything towards her support,” his bill should be rejected. Lord Campbell concurred in these views.

In Bishop on Marriage, Divorce and Separation, vol. 2, chap. 11, secs. 337-406, pp. 164AL92, that author (after stating the rule which obtained in the ecclesiastical courts and the later English law as set forth in the Divorce Act of 1858, 36 and 37 Victoria, chap. 66, amended by 38 and 39 Victoria, see 77 and subsequent statutes) asserts the proposition that whether the divorce was from bed and board or from the bonds of matrimony, a judicial tribunal cannot distinguish between offenses to which the law attaches the same consequences, and that whether the divorce sought is from bed and board or from the bonds of matrimony, no form of the plaintiff’s dereliction will afford a complete bar in recrimination unless it is such as the law has made ground for divorce of the one or the other sort, and that in a dissolution suit for whatever cause, any conduct for which the law provides the same consequence will be adequate in bar, whether otherwise of the same sort or not. He says (section 396, p. 188): “. . . if the law is not so, we have this perplexing state of things, that cross-suits may be brought, resulting in both parties being entitled to prevail; then, if dissolution decrees are rendered in favor of both, each is the guilty and each the innocent party under statutory and unwritten laws which leave to the innocent and to the guilty, after the divorce, different rights, duties and pecuniary interests. The law, in most of our States, has no provision for the decree in favor of one of the parties to give way to that in favor of the other. There is a deadlock. And when this occurs, the movements of the court in the cause cannot do otherwise than stop. The cause cannot proceed to a decree. And this result shows, as distinctly as-though the legislature had used the exact words, that the bar must be good; since, if it is not, the statutory and common-law provisions concerning collateral things can have no effect.”

This doctrine seems to have been approved by distinguished judges, as in Conant v. Conani, 10 Cal. 249, opinion by Mr. Justice Field, and in Handy v. Handy, 124 Mass. 394, opinion by Chief Justice Gray.

The case of Bast v. Bast, 82 Ill. 584, is the one most relied on by complainant. The facts are meagerly reported, but it appears therefrom that the husband sued for divorce on the ground of adultery and obtained a decree apparently based upon the verdict of a jury. Upon appeal to the Supreme Court it was urged that the decree was against the evidence and further that the husband had deserted the wife under circumstances giving her the right to claim a divorce from him. Whether his desertion was before or after the adultery of which she was found guilty, does not appear. Without discussion and without the citation of any authority, the court said: “We do not think his desertion can exonerate the wife from the more serious charge of adultery. Neither that, nor drunkenness, nor cruelty, will, under our statute, constitute a sufficient recriminatory defense, to a charge of adultery. Had appellee been guilty of a like offense, he could not claim a divorce.”

In Stiles v. Stiles, 167 Ill. 576, the husband filed his bill charging adultery, and the wife filed a cross-bill charging adultery and extreme and repeated cruelty. No evidence of the husband’s adultery was produced, and the court stated in its opinion that all evidence tending to show extreme and repeated cruelty was a result of the failure on the part of the wife to observe the proprieties; that the evidence fell short of establishing extreme and repeated cruelty, and added: “Besides, the law is well settled in this State that extreme and repeated cruelty is not sufficient as a recriminatory defense to the charge of adultery. Bast v. Bast, 82 Ill. 584.”

In Decker v. Decker, 193 Ill. 285, the wife filed a bill for divorce charging impotency and incapacity to perform the sexual act and also extreme and repeated cruelty. The cause was tried by a jury and there was a verdict for defendant. A retrial was granted by the court, and the husband then filed an amended answer in which he alleged that the wife had deserted him and had given birth to a child by another man since the prior trial. The wife excepted to the answer on the ground that the husband could not avail himself of the charge of adultery in recriminatory defense to the charge of extreme and repeated cruelty. The exceptions were overruled. She elected to abide by her pleadings and her bill was dismissed. She appealed upon the theory that by reason of section 10 of the Divorce Act, Cahill’s St. ch. 40, Till, adultery might not be pleaded in recrimination to a charge of cruelty, and the Supreme Court held that such was not the effect of that statute and affirmed the decree. Bast v. Bast and Stiles v. Stiles are both cited, but evidently the question here involved was not an issue.

In Zimmerman v. Zimmerman, 242 Ill. 552, the wife filed her bill against the husband charging him with drunkenness and cruelty. He answered, denying the charges and filed a cross-bill charging her with adultery and praying for a divorce. She answered denying the charges and after hearing the chancellor entered a decree dismissing her bill and granting a divorce upon the cross-bill. She appealed. The court held in effect that the evidence was insufficient to sustain the charges against the husband and added: ‘ ‘ The fact that a husband has been guilty of habitual drunkenness or extreme and repeated cruelty is not a sufficient recriminatory defense to a bill by him for divorce on the ground of adultery. Bast v. Bast, 82 Ill. 584; Stiles v. Stiles, 167 id. 576.”

In Hughes v. Hughes, 133 Ill. App. 654, each party charged the other with adultery, the wife also charging the husband with cruelty. The cause was tried by a jury which exonerated both parties from the charge of adultery but found the husband guilty of cruelty. The Appellate Court examining the evidence concurred in the verdict as to the husband but found the wife guilty of adultery and directed that a divorce should be granted the husband on that ground. Independently of the question at issue the court said that the charge of extreme and repeated cruelty is not “a sufficient recriminatory defense to a charge of adultery. ’ ’

Whitlock v. Whitlock, 187 Ill. App. 165, is cited. It is an abstracted decision, but it appears from the abstract that the husband sued for divorce on the ground of adultery, and the wife filed a cross-bill charging extreme and repeated cruelty; that the chancellor found the wife guilty of adultery, and that this court held upon review that the charge was sustained by the evidence.

In Mitchell v. Mitchell, 241 Ill. App. 7, the wife sued for divorce on the ground of extreme and repeated cruelty and the husband filed a cross-bill charging adultery. The decree granted the divorce to the wife finding her not guilty of adultery and the husband guilty of cruelty. Upon review by the second division of this court, it was held that the evidence showed the wife to be guilty of adultery and that the husband was also guilty of extreme and repeated cruelty, but that this cruelty was not recriminatory to adultery. The court also held that the husband was entitled to a divorce and reversed and remanded the cause with directions in order that the property rights might be settled. The only authority cited by the court was Zimmerman v. Zimmerman, 242 Ill. 552.

It is true that the opinions in these cases state that neither desertion nor extreme and repeated cruelty are recriminatory to the charge of adultery, but they do not state that the rule is without exceptions, or that it would be followed under the facts which appear on such a record as this. Indeed, these cases are all distinguishable upon the facts in that the proof here shows affirmatively that the husband was entirely willing that the wife should commit adultery and persisted in a course of conduct well designed to bring» it about. In other words, complainant is not in court with clean hands. There can be no doubt under all the circumstances that the husband’s cruel and inhuman treatment and other wrongs against his wife had much to do with bringing about her indiscreet conduct. That he utterly failed to give her the protection to which she as a wife was entitled; that he committed brutal and unpardonable assaults upon her; that he has aggravated these actions by utterly unfounded and false charges; that he absolutely neglected her and, according to his own testimony, knew of her flirtations with Robinson without warning or protest, would make the granting of a divorce to .him for her conduct an injustice of the gravest kind. We do not undertake to minimize the solemnity of marriage vows, nor the necessity that a wife, as well as a husband, should keep them. Some of the opinions point out the grave character of the offense of adultery, in that such conduct on the part of the wife might introduce into the family a spurious heir. A husband who beats his wife then carrying his own child with such severity as to cause a miscarriage, has little reason in a court of equity to complain about the kind of heir which may be introduced into his family. The law of this State gives several reasons, each one of which it declares should be sufficient to sunder the marriage bond. A husband who breaks most of these and continues to break them through the years, cannot be said to come into court with clean hands. A court of equity is a court of conscience. Its arm is not shortened in such a case. A decree of divorce to this husband on these facts would offend the conscience and the sense of justice. In England at present under the construction of the statutes (20 and 21 Victoria, ch. 65, sec. 31) a question such as this case presents is determined by the judicial discretion of the chancellor. Wickins v. Wickins, Law Journal 1918, p. 169. Under the general rules and principles of equity, without a statute, we think a chancellor in the State of Illinois has the like power to settle the rights of parties before the court. We hold that the husband in this case is in court with hands so unclean as to preclude him from obtaining a divorce for the fault of the wife, and that the chancellor did not err in dismissing his bill.

Complainant also contends that the decree should be reversed because the allegations and the proofs do not agree, and he cites a large number of cases stating the general rule that a decree will be reversed under such circumstances. Such cases are Field v. Field, 319 Ill. 268, and Giesler v. Giesler, 336 Ill. 410. It is argued that the allegations in the cross-bill are not sufficient to justify that part of the decree which directed that defendant should recover judgment for $2,400 with interest from July 1, 1923. The cross-bill alleged that Mrs. Grady turned over that sum of money in cash to her husband two days after their marriage and that no part of it had been returned to her, and prayed for general relief. The authorities are sufficient to the proposition that such a general prayer will support any decree warranted by the facts. (Atchison T. & S. F. Ry. Co. v. Stamp, 290 Ill. 428; Kelly v. Kelly, 293 Ill. 169.)

Complaint is also made of that part of the decree which refers to the question of the ownership of the building in which complainant is living to a master in order to determine the ownership thereof. It was said that the cause was not at issue on that part of it and that as a matter of fact Maguire and Grady were not ruled to answer. An interlocutory injunction had been issued against Gradv and Maguire at a hearing of which they had notice and updn which they appeared. A.t any rate the decree is in this respect merely interlocutory.

It is also urged that when the bill and cross-bill were dismissed there was no pleading that would warrant relief, and that the court was without jurisdiction in these other matters. Nathan C. Dow Co. v. Deist, 123 Ill. App. 364, and Tarr v. Stearman, 264 Ill. 110, are cited as applicable. The decree, however, reserves jurisdiction for these purposes. The settlement of these matters was germane to the subject matter of the litigation between the parties, and it is elementary that when a court of equity has once acquired jurisdiction it will settle all controversies germane to the subject matter of the litigation. (Elzas v. Elzas, 183 Ill. 160; Rybakowicz v. Rybakowicz, 290 Ill. 550.)

Since a majority of the court are agreed that complainant is not entitled to the relief prayed for in his amended and supplemental bill, and since a majority of the court are also of the opinion that defendant and cross complainant may not obtain the relief prayed for by her, it follows that the decree of the court which dismissed both bills will be affirmed.

O’Connor, P. J., concurs specially.

McStjrely, J., dissents.

Mr. Presiding Justice O’Connor

specially concurring : I agree with the conclusion reached but not with all that is said in the opinion. In my opinion the evidence shows that Mrs. Grady was guilty of adultery with Robinson. And although it has been held in this State that cruelty, under our statutes, does not constitute a sufficient recriminatory defense to a charge of adultery in the cases of Bast v. Bast, 82 Ill. 584, and Stiles v. Stiles, 167 Ill. 576, and other cases cited in the opinion, yet in none of these cases was the question decided or considered whether the cruelty of one spouse which long antedated the adultery of the other spouse, would bar a divorce from the spouse who committed adultery. A case similar in principle to the case before us is Rapp v. Rapp, 67 N. J. Eq. 236, 58 Atl. 167. In that case the complainant’s petition for a divorce showed desertion of his wife for a period fixed by the statute as ground for an absolute divorce, and it was held that such desertion would bar a divorce against the wife for her subsequent adultery. The court there said (p. 168): “That a desertion which has existed during the period fixed by the statute as ground for an absolute divorce should be a bar against the deserter asking for a divorce against the deserted party for a subsequent adulterous act seems manifest. A man who leaves his wife without his protection, subjected to the temptations which assail a deserted wife, has little cause for complaint if she unfortunately yields to the solicitations which her situation invites. The meagerness of the claim which such a man has upon the divorcing branch of the government is depicted by Lord Brougham in the matter of Simmons’ Divorce Bill, 12 C. & F. 339.”

We think the quotation from the New Jersey court is sound and comports with our sense of justice and is applicable to the facts in the instant case. The evidence before us clearly shows an extreme case as found by the learned chancellor — that Grady was guilty of extreme cruelty towards his wife, driving her out of his home at the point of a pistol; and if about six years afterwards she yielded to the solicitations which her situation invited, he cannot now take advantage of his own wrongdoing and claim a divorce on the ground that his wife was at fault.

The rule we have above stated is sustained by the highest authority. In His Sermon on the Mount Christ said, “But I say unto you, That whosoever shall put away his wife, saving for the cause of fornication, causeth her to commit adultery.” Matthew, chapter 5, verse 32.

And the defendant and cross complainant having been guilty of adultery is not entitled to a divorce. 14 Cyc. 650; 2 Bishop on Marriage, Divorce and Separation, sec. 350; Nelson on Divorce and Separation, sec. 429.

Mr. Justice MoSurelt

dissenting: I concur in the holding that the adultery of defendant was proven, and in my opinion complainant should have been granted a divorce.

With due respect to the opinions of authorities in other jurisdictions, I am not convinced that we should depart from the rule frequently stated by the Supreme Court of this State, namely, that cruelty does not constitute a sufficient recriminatory defense to a charge of adultery.' Decker v. Decker, 193 Ill. 285; Stiles v. Stiles, 167 Ill. 576; Bast v. Bast, 82 Ill. 584; Zimmerman v. Zimmerman, 242 Ill. 552. This has been followed by the Appellate Court. Mitchell v. Mitchell, 241 Ill. App. 7; Whitlock v. Whitlock, 187 Ill. App. 165; Hughes v. Hughes, 133 Ill. App. 654.

Aside from our duty to follow our own court, this rule should be observed as founded in reason. To determine whether the wife, guilty of adultery, may successfully defend by showing that the husband treated her with extreme cruelty would raise the confusing and illogical question as to what degree of cruelty would excuse the act of adultery.

So with desertion. By what criterion can the period of desertion be determined which would justify adultery by the deserted one?

It seems to me that both views expressed in the majority opinions rest upon the fallacious and dangerous assumption that the wronged wife has the right to commit a graver wrong, or at least cannot be held to an account.

I call attention to the inconsistency of the decree entered by the chancellor, which found complainant guilty of extreme and repeated cruelty, as charged in defendant’s cross-bill, and yet, her cross-bill was dismissed for want of equity. I respectfully suggest that this inconsistency is repeated and emphasized in the majority opinions by affirming the dismissal of defendant’s cross-bill which charged cruelty, and at the same time denying a divorce to complainant because of his cruelty.


source: Caselaw Access Project

author:
Mr. Presiding Justice O’Connor
      Mr. Justice Matchett

license: Public Domain

text:
    The People of the State of Illinois ex rel. Robert A. Bain, Petitioner, v. Michael Feinberg, Judge of the Circuit Court of Cook County, Respondent.
    Gen. No. 35,712.
    Matchett, J., dissenting.
    Opinion filed May 2, 1932.
    Deneen, Healy & Lee, for appellant.
    Argus Roy Shannon, E. G-. G-odman and Edward R. Johnston, for appellee.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.

By leave of court Robert A. Bain filed his petition in this court, praying that a writ of mandamus issue commanding the respondent to sign a bill of exceptions to show what was said and done in a matter or proceeding pending before the respondent as a judge of the circuit court of Cook county, wherein the respondent was sitting as an examining magistrate in an endeavor to discover assets of a certain corporation and in which Robert A. Bain was held to be in contempt of court and for such contempt was committed to the county-jail of Cook county for a period of 10 days or until otherwise discharged by due process of law. Robert A. Bain sued out a writ of error from this court seeking to reverse the judgment of contempt entered against him, and it is in aid of the prosecution of the writ of error that leave was given to file the petition for a writ of mandamus.

The respondent filed his answer to the petition. A replication was filed to the answer, to which the respondent has demurred, and the parties have submitted briefs and arguments on the demurrer.

The sentence imposed on Robert A. Bain is alleged to be for a direct contempt, criminal in nature, committed in the presence of the court, and the question for decision therefore is whether in such case a bill of exceptions is necessary or proper or whether the only record to be considered is the order adjudging Bain to be in contempt of court. The question is an important one and has received careful consideration at our hands.

We have been unable to find any authority where the precise question was specifically stated to be involved. There are a number of cases in this court and in the Supreme Court of this State where bills of exceptions were in the record in a direct contempt proceeding, and there are other cases where there was no bill of exceptions. Upon a careful consideration of the authorities we are constrained to hold that a bill of exceptions has no proper place in a record brought to review a sentence imposed in a direct contempt matter, criminal in its nature, as is the one at bar. We must enforce the law as we find it and if it is thought to be defective the question is for the legislature and not the courts. The only matter that can properly he considered on such a review is the order of the court adjudging the party to be in contempt. People v. Hogan, 256 Ill. 496; People v. Gard, 259 Ill. 238; Kneisel v. Ursus Motor Co., 316 Ill. 336; People v. Rockola, 346 Ill. 27; People v. Andalman, 346 Ill. 149; People v. Saylor, 238 Ill. App. 142; Tunnell v. People ex rel. Miller, 253 Ill. App. 422; Whittem v. State, 36 Ind. 196 ; Ex parte Terry, 128 U. S. 289. Of course the order may properly set up what actually took place at the time of the alleged contempt — what was said and done. People v. Rockola, supra.

In the Hogan case (256 Ill. 496) the court said (p. 499): “The commitment having been for an alleged contempt committed in open court, without charge, plea, issue or trial, the only record required to be made is the order of commitment. That order should set out the facts constituting the offense so fully and certainly as to show that the court was authorized to make the order, and the facts stated must be taken to be true. Whittem v. State, 36 Ind. 196; Ex parte Terry, 128 U. S. 289.” And in the Gard case, 259 Ill. 238, the court said (p. 242): “The acts constituting the contempt having been committed in the presence of the court were a direct contempt, and the order of commitment could have been lawfully made without the preliminary proceedings that were had. Tolman v. Jones, 114 Ill. 147; State v. Frew, 24 W. Va. 416; People v. Greely, 12 How. Pr. 14; Neel v. State, 9 Ark. 529, 50 Am. Dec. 209; 9 Cyc. 19.”

And the same rule was again announced by the Supreme Court in the Rockola case (346 Ill. 27) where it is said (p. 40): “In cases where a witness is adjudged guilty of contempt committed in open court, the only record required to be made for review is the order of commitment, but the order should set out the facts constituting the offense so fully and certainly as to show that the court was authorized to make the order. (People v. Hogan, 256 Ill. 496.) ” And this rule was again announced in the Andalman case (346 Ill. 149) where it was said (p. 153): “The right to punish an offender for a contempt of court is a right inherent in the superior court of Cook county independent of any statute, and when the act constituting such contempt is committed in the presence of the court, the court has a right to deal summarily with the offender and without hearing any evidence punish the offender. In such case the court acts upon view and upon its own knowledge. (People v. McDonald, 314 Ill. 548.)”

In the Whittem case (36 Ind. 196) the Supreme Court of Indiana held that a contempt is direct when committed in the presence of the court, or so near to the court as to interrupt the proceedings; and that such contempt was usually punished in a summary way Avithout evidence but upon view and the personal knoAvledge of the presiding judge. The court there said (pp. 211-212): “Where the contempt is committed in the presence of the court, and the court acts upon vieAAr and without trial, and inflicts the punishment, there will be no charge, no plea, no issue, and no trial; and the record that shows the punishment will also show the offense, and the fact that the court had found the party guilty of the contempt; on appeal to this court, any fact found by the court below would be taken as true. ...

“When the contempt is not committed in the presence of the court, the proceeding must be commenced either by a rule to show cause or by attachment, and the party accused will have the right to be heard in his defense; and the evidence offered on the trial, and all the other steps, can be put upon the record by a bill of exceptions, . . .

“. . . The refusal of a witness to testify, the insolence and insubordination of an attorney or other officer of court, fighting, making a noise or confusion in or so near the court as to interrupt the business of court, may be mentioned as some of the acts that amount to a direct contempt of the court; and such contempts are usually punished in a summary manner, without evidence, but upon the view and personal knowledge of the presiding judge. ’ ’

. In Ex parte Terry (128 U. S. 289) the Supreme Court of the United States, in discussing the question of a direct contempt, speaking by Mr. Justice Harlan, said (p. 307): “It is undoubtedly a general rule in all actions, whether prosecuted by private parties, or by government, that is, in civil and criminal cases, that ‘A sentence of a court pronounced against a party without hearing him, or giving him an opportunity to be heard, is not a judicial determination of his rights, and is not entitled to respect in any other tribunal. ’ Windsor v. McVeigh, 93 U. S. 274, 277. But there is another rule, of almost immemorial antiquity, and universally acknowledged, which is equally vital to personal liberty and to the preservation of organized society, because upon its recognition and enforcement depend the existence and authority of the tribunals established to protect the rights of the citizen. . . . It has relation to the class of contempts which, being committed in the face of the court, imply a purpose to destroy or impair its authority, . . . Blackstone thus states the rule: ‘If the contempt be committed in the face of the court, the offender may be instantly apprehended and imprisoned, at the discretion of the judges, without any further proof or examination. ’ The court then quotes with approval from Whittem v. State, supra, and other authorities, and continuing said (p. 309): “It is true, as counsel suggest, that the power which the court has of instantly punishing, without further proof or examination, contempts committed in its presence, is one that may be abused and may sometimes be exercised hastily or arbitrarily. . . . What was said in Ex parte Kearney, 7 Wheat. 39, 45, may be here repeated: ‘Wherever power is lodged it may be abused. But this forms no solid objection against its exercise. Confidence must be reposed somewhere; and if there should be an abuse, it will be a public grievance, for which a remedy may be applied by the legislature, and is not to be devised by courts of justice. ’ ” And continuing, the court said (p. 313): “We have seen that it is a settled doctrine in the jurisprudence both of England and of this country, never supposed to be in conflict with the liberty of the citizen, that for direct contempts committed in the face of the court, at least one of superior jurisdiction, the offender may, in its discretion, be instantly apprehended and immediately imprisoned, without trial or issue, and without other proof than its actual knowledge of what occurred.”

From the authorities above mentioned, and especially the later decisions of our own Supreme Court, we are of the opinion that a judgment entered in a direct contempt, criminal in its nature, on review must be considered on the order adjudging the party to be in .contempt and that a bill of exceptions has no proper place in the record. The power thus lodged in the trial judge may be arbitrarily and unjustly used, but to protect an individual against this arbitrary power in some degree at least, the law requires that the contempt order set out the facts fully which it is claimed constituted the contempt so that the reviewing court may see whether such facts do constitute a contempt of court.

From what we have said it follows that the demurrer to the replication must be and it is sustained.

Demurrer sustained.

MoSurbly, J., concurs.

Hatchett, J., dissents.

(See next page.)

Mr. Justice Matchett

dissenting: The opinion of the court announces for the first time as a rule of universal application in this class of cases that where a trial court has adjudged a defendant guilty of a direct contempt criminal in its nature and the cause has been removed to this court by writ of error, this court is without power to require a bill of exceptions disclosing what actually occurred in the trial court. The opinion concedes that such rule may lead to grave injustice but suggests that the remedy is with the legislature and not with the courts. The cases cited show that as a general rule where a commitment has been made for an alleged criminal contempt committed in open court without charge, plea, issue or trial, the only record required to be made in order that the judgment may be reviewed by this court is the order of commitment. That rule, as Judge Moran well pointed out in Rawson v. Rawson, 35 Ill. App. 505, is for the benefit of the person accused who ordinarily in such cases is without counsel to advise him as to the proper steps to be taken to protect his rights. A bill of exceptions in such case is therefore usually impracticable, and the courts of review, in order that the accused might not be denied his right to have the judgment against him reviewed, held that it might be reviewed upon the order of commitment alone. As a corollary to that rule it was held that the order of commitment should state the facts or conduct constituting the alleged contempt, and that where no such statement was made in the order it should be reversed.

A case of this kind is a criminal case, and by the common law of England, appellate tribunals were without authority to review a judgment of this character. In the early case of Stuart v. People, 3 Scam. (Ill.) 395, such rules were said to be unsuited to the genius of a free people, and a general statute granting the right of review of final judgments to the Supreme Court was held applicable to contempt cases. Guided by the same principle in Whittem v. State, 36 Ind. 196, cited in the opinion of the court, the courts of that State reversing a long line of decisions held that by virtue of the statute judgments in this class of cases were subject to review. The authorities are all to the effect that a case of this kind is a criminal case, and section 17 of the Criminal Code, Cahill’s St. ch. 38, H 770 (Smith-Hurd’s Ill. Rev. Stats. 1931, ch. 38, sec. 17, p. 1096) provides:

‘ ‘ Exceptions may be taken in criminal cases, and bills of exceptions shall be signed and sealed by the judge, and entered of record, and error may be assigned thereon by the defendant, the same as in civil cases: Provided, that in no criminal case shall the People be allowed an appeal, writ of error or new trial. ’ ’

Through the enactment of this section and by virtue of the provisions of sections 8 and 11 of the Appellate Court Act, Cahill’s St. ch. 37, Hlf 40, 43 (SmithHurd’s Ill. Rev. Stats. 1931, ch. 37, secs. 8 -and 11, pp. 909-910) I think the legislature has already granted the remedy to which the opinion of the court refers. As already stated, historically the rule which permits a review upon the order of commitment alone was for the benefit of the accused. I think a defendant also has the right, if he so desires, to the benefit of a bill of exceptions.

The question here arises on the respondent’s general demurrer to the replication of the petitioner to respondent’s answer. It stands admitted on the record, as I understand the pleadings, that while the order finding the petitioner guilty appears to have been entered on the 18th of November, the order was in fact made, signed and entered by Judge Feinberg on the 19th of November, Judge Feinberg directing that it be entered as of the 18th. It stands admitted further that within the term and after the entry of this order the petitioner presented a transcript of the proceeding as prepared by a competent court reporter disclosing these facts, and that a motion was duly made by the petitioner in open court on the 20th of November to correct the records by showing the true and actual state upon which the order was made and entered. It stands admitted that this motion was denied, although Judge Feinberg admitted in open court that the order of commitment was not in fact signed by him until the 19th, at which time he directed the order should be entered as of the date of November 18th. The demurrer also admits that the petitioner was not in fact present in court when the order of commitment was made, and this, if true, is a material matter. People v. Saylor, 238 Ill. App. 142.

Under the rule as now announced, it would be possible for any judge of a court of record in Cook county to enter an order finding a person guilty of the offense of contempt, although never brought before the judge or made aware in any way that any proceeding whatsoever was pending against him, and if the rule as announced were followed this court would be entirely unable to compel a record showing the actual facts. I do not think that such arbitrary power exists under our law. As the opinion points out, there have been numerous cases of this kind in this and in the Supreme Court where the real facts have heretofore been presented by a bill of exceptions. Illustrative of this class of cases are People v. Andalman, 259 Ill. App. 649, affirmed in 346 Ill. 149; and People v. Hadesman, 223 Ill. App. 219, heard by the third division of this court when our presiding justice was one of the judges of that court. In some of the cases it has been a close question as to whether the alleged contempt was direct or constructive. To the proper decision of that question when it arises a bill of exceptions would appear quite indispensable.

It is conceded, as I understand it, that the sections of the Criminal Code and the Appellate Court Act, to which I have referred, authorize bills of exceptions in cases of constructive contempt. If it had been the intention of the legislature to limit the right in cases of this particular character, I think it would have said so. The question is probably not of much importance in this case, but the rule announced seems to me to disregard the historical development of the law on this subject, to make a rule which was intended as a shield for the accused a sword to be used against him and to wholly disregard the statutes which are applicable. Practically, the opinion of the court rests on People v. Hogan, 256 Ill. 496. That case as I read it decides nothing more than that the county court was without jurisdiction; otherwise it is obiter dictum, not judicial dictum.


author: Mr. Presiding Justice Hebel Friend and Wilson, JJ.,

text:
    Matie L. Moran, Appellee, v. Union Bank of Chicago, Appellant.
    Gen. No. 34,871.

      Opinion filed May 4, 1932.
    Kirkland, Fleming, Green & Martin, for appellant; Robert N. Golding, of counsel.
    Maximilian J. St. George, for appellee.
   Mr. Presiding Justice Hebel

delivered the opinion of the court.

The defendant appeals from a judgment entered in the sum of $1,245, upon the finding of the court for that amount in favor of the plaintiff. The case was submitted to the court for trial without a jury. Matie L. Moran, the plaintiff, brought suit in the municipal court of Chicago against the Union Bank of Chicago, the defendant, for money had and received by the defendant.

The pleadings consist of an amended statement of claim, an amended affidavit, and a reply or rejoinder. No question is raised by either of the parties as to the sufficiency of the pleadings.

Prior to October 19, 1925, the plaintiff was solicited to join a syndicate known as “G. Frank Croissant’s Boca Baton Development,” and invested $1,000, which was paid by the plaintiff to the defendant, and she received an interim receipt signed by F. H. Hayes, who was the assistant secretary of the defendant company, and whose name was apparently signed by a clerk of the company by the name of Pace. The interim receipt received by the plaintiff is in words and figures as follows:

“Union Bank of Chicago 25 North Dearborn Street, near Washington Chicago,

Oct. 21, 1925.

In re: Trust No. 949

“Received of Matie L. Moran, 1421 El. 55th St.

One Thousand and No/100ths Dollars ($1,000.00) in full payment of a pre-organization subscription to a syndicate to be known as (1. Frank Croissant’s Boca Raton Development, to be organized for the purpose of purchasing acreage in the State of Florida. This receipt is an interim receipt and a permanent receipt will be substituted therefor when prepared and executed.

“It is understood that if the proposed syndicate is not completed and the land is not purchased by January 2nd, 1926, the holder hereof is entitled to the return of the amount subscribed.

Union Bank of Chicago, as Agent,

By F. H. Hayes P

Asst. Secretary)”

It will be noted that the “Trust No. 949” in this receipt refers to the account wherein the funds of the subscribers to the Boca Raton Syndicate were deposited.

On or about December 15, 1925, Croissant and members of the syndicate known “as G. Frank Croissant’s Boca Raton Development” entered into a certain trust agreement, which contained provisions for the operation of its subdivision enterprise. The plaintiff signed this syndicate agreement and received the participating certificate signed by Gr. Frank Croissant, Trustee, which evidenced her interest as a beneficiary of this trust. The certificate is as follows:

“No. 382 2 Units

Gr. Frank Croissant’s

Croissantania Boca Baton Syndicate

4200 Units $500 Bach.

“This Certifies, that Mrs. Matie L. Moran is the owner of Two (2) Units in the Croissantania Boca Baton Syndicate, transferable on the books of the Syndicate in person or by attorney duly endorsed.

“This Certificate is issued under the terms of the Syndicate Agreement, dated December 15th, 1925, and entitles the holder hereof to the rights, benefits and privileges accorded a participant under said agreement, but subject to and upon terms and conditions therein stated. By the acceptance hereof the holder agrees to be bound by all of the terms of the said agreement.

Dated January 2nd, 1926.

Gr. Frank Croissant,

Trustee.”

The syndicate was described in the agreement as the “Croissantania Boca Baton Syndicate,” being Trust No. 100, and the certificates which were issued to the beneficiaries have the same heading as appears on the certificate hereinbefore set out.

The syndicate agreement provides that the beneficiaries having subscribed a total sum of $2,100,000, being the capital of this syndicate, have an undivided interest in the syndicate; that the trustee is given “full power and authority to manage, improve, protect and maintain the trust estate, and each and every part thereof,” and the trustee is given “power to deal with the trust estate and hold, collect, sue for and dispose of the same, and every part thereof.” This agreement further provides that the real estate “is to be conveyed to the trustee” subject to existing incumbrances, and the beneficiaries jointly and severally agree to pay off the existing incumbrances. The trustee had power to borrow money for the purpose of paying for improvements, and to pay oft the mortgages. It is also provided in the agreement that the trustee shall keep books, and each week make a full report to the beneficiaries committee. In the event of failure by the trustee to make accountings to the beneficiary committee, said committee shall have the right to remove the trustee and to appoint a new one. The beneficiary committee consisted of George Preschern, G. Frank Croissant, Samuel K. Markman, Henry K. Wells and Michael J. Flynn.

The evidence shows that there was deposited in the Union Bank of Chicago, in its accounts Nos. 949 and 1073, a total amount of $1,383,769.32, for the benefit of the syndicate. On October 15 and 16, 1925, prior to the time when plaintiff paid her money, Morphett, Phelps and Hartenstein assigned four option agreements for certain lands in Florida to Frank K. Reilly, an associate of Croissant. On October 15, Preschern O.K.’d a charge slip of the defendant bank for a New York draft to Reilly for $500,000. The charge slip bears the notation, “At the request of G. Frank Croissant, apply on purchase of Boca Raton.” On October 19, 1925, an additional $60,000 was charged to the Boca Raton account, upon the authority of a charge slip signed by Hayes. The charge slip bears the notation, “Account 949 Boca Raton.” On October 20, 1925, Reilly exercised the four options as provided for in the contract, and entered into four separate contracts with Boyland for the purchase of Boca Baton land, paying Boyland at the time $663,562.50, which was the amount required by the four contracts. The contracts were recorded in the office of the recorder of deeds of Palm Beach county, Florida, on October 22, 1925.

At the time these contracts were executed,' Boyland executed four statutory warranty deeds, which were deposited, by counsel for Boyland and Reilly, in escrow with the Palm Beach Bank & Trust Company, to be delivered to Reilly upon the payment of the balance of $2,290,687.50.

The record shows that on or about December 15, 1925, the amount of money collected for and on behalf of the syndicate and deposited in Accounts Nos. 949 and 1073 was a total sum of $1,383,769.32; that of this amount there was a credit balance in the two accounts on that date of $219,547.94, and until April 9, 1926, when the accounts were closed and this balance was withdrawn by Croissant.

From the evidence, it appears that in April, 1926, the plaintiff attended a meeting of the syndicate members in Croissant’s office, when she first learned from Croissant’s statement that there was not any selling of lots in the subdivision, that there was no use pretending that there was; that the Union Bank was behind their properties, and that there would be no losses to anyone; that everybody would get his money back; and that later in October, 1926, the plaintiff called on Preschern, an officer of the defendant bank, who told her she should keep quiet and not become excited, and worry about it. No further steps were taken by the plaintiff until August 30, 1928, when this suit was filed by her to recover $1,000, the amount deposited with the defendant.

The record does not disclose that the plaintiff made any effort to ascertain from the defendant whether the terms of the .interim receipt had been complied with before she signed the trust agreement.

The defendant contends that the plaintiff, by signing the trust agreement and accepting the participating certificate, assumed a status as a member of the syndicate and was barred from thereafter changing her position, on the ground:

(1) That while the plaintiff had certain rights under the interim certificate when called upon to sign the trust agreement, she was obliged to decide whether she would insist upon the return of her money because of failure of performance; and

(2) By signing the trust agreement and accepting the participating certificate and the benefit to be derived under the terms of the trust agreement, she was bound by her election.

There is no serious dispute regarding the facts. The plaintiff received from the bank the interim certificate hereinbefore set forth. Sometime after its date the plaintiff was called upon to sign the trust agreement, dated December 15, 1925, which she did, and a short time thereafter received the participating certificate dated January 2, 1926, issued and signed by Croissant, the trustee named in the trust agreement. She is chargeable with knowledge of the contents of both the interim receipt and the participating certificate.

If the plaintiff desired to rely upon the conditions of the interim receipt and, upon failure to perform the right to the return of the $1,000 deposited, she had the right to do so, but by accepting the participating certificate, issued as it was according to the terms of the trust agreement signed by her, and expecting to be benefited by this agreement, the plaintiff became a member of the syndicate, and was credited with the money deposited with the bank, as payment of the participating certificate. The plaintiff signed the agreement which authorized the trustee to. collect the assets and all money on deposit with the defendant bank. This act of the plaintiff justified the action of the bank in paying to Croissant, trustee, the money deposited in the bank and credited to the syndicate accounts.

The plaintiff did not appear to be concerned, after signing the agreement, about false representation, and made no investigation until April, 1926, when she was present at a meeting addressed by Croissant, and learned of the condition of the syndicate, and again when she called on Preschern at the bank and talked with him. Nothing was done by her, however, until August 30, 1928, when this suit was instituted against the defendant to recover the amount which was deposited with the bank, and for which she received her interim receipt.

It was a rather inconsistent position for the plaintiff to claim that she still had rights under the interim certificate after she had signed the trust agreement, from which she expected to derive benefits that might accrue because of possible success in the sale of the subdivision property. The plaintiff is not permitted to speculate upon the success of the syndicate and to stand inactive until the events of the future may determine it to be to her interest to rescind.

The statement of law by the Supreme Court in the case of Richter v. Schuett, 314 Ill. 127, applies to the facts in the instant case, where the court said: “It is a settled principle in equity that a person who has been defrauded will not be permitted, after he learns of the fraud, to stand inactive and fail and refuse to execute his option to rescind the fraudulent transaction until the events of the future may determine it to be to his interest, or otherwise, to rescind. (Follett v. Brown, 188 Ill. 244; Stackpole v. Schmucker, 225 id. 502.) The rule is stated in Pomeroy’s Equity Jurisprudence (section 897) in this language: ‘The person who has been misled is required, as soon as he learns the truth, with all reasonable diligence to disaffirm the contract or abandon the transaction and give the other party an opportunity of rescinding it and of restoring both of them to their original position. He is not allowed to go on and derive all possible benefits from the transaction and then claim to be relieved from his own obligations by a rescission for a refusal to perform on his own part. ’ ’ ’

The rule above cited is an equitable defense and applies to this action for money had and received. Board of Supervisors of Stephenson County v. Manny, 56 Ill. 160.

It is unfortunate that all syndicates are not successful, and the words of the Supreme Court in the case of Hossack v. Ottawa Development Ass’n, 244 Ill. 274, best illustrate such a situation when it said: “A development association of this nature, or a syndicate organization established for the purposes here shown, must take greater risks than ordinary business ventures. Indeed, a person with any business experience must have known, when signing this agreement, that he might run a risk of losing a very large part, if not all, that he subscribed. ’ ’

Another condition which the plaintiff claimed was not performed as required by the interim receipt was the purchase of land on or before January 2, 1926. The record clearly established that four options to certain described real estate were obtained, and these options were assigned to Reilly; that thereafter Reilly exercised these options and paid the amounts required and that upon the payment of these amounts the owner of the land executed four statutory warranty deeds, which were deposited in the Palm Beach Trust & Savings Bank, to be delivered upon the payment of the balance of the amount due. The equitable interest of Reilly in and to the lands purchased when part payment was made and described in the warranty deeds deposited in escrow was conveyed to Gr. Frank Croissant, trustee.

There are ■ different ways of acquiring title, one of which is for a purchaser to purchase land by an agreement that a warranty deed shall be executed and delivered by the owner when the purchase price, payable in instalments, is fully paid. In the case at bar there was an amount paid, as required by the option agreement, and the owner of the land, Boyland, executed the necessary warranty deeds, which were to be delivered by the Palm Beach Trust & Savings Bank, the escrow agent, upon the payment by the syndicate of the balance of $2,290,687.50. While it is true that there was no actual delivery of the deeds, still in the sense that there was a purchase, the deeds were executed and held in escrow to be delivered when the purchase price was fully paid.

When the plaintiff and others signed the trust agreement it appeared from the agreement that the beneficiaries had subscribed a total sum of $2,100,000 as the capital of the syndicate, and that the interest’ of each of the beneficiaries was the proportion of the whole which the amount of the beneficiary’s paid subscription bore to the whole. When the beneficiaries liad subscribed the amount of the capital, the syndicate was completed by the acts of the parties when they signed the agreement.

From the record and our conclusions it is apparent that the trial court erred in finding the issues for the plaintiff and in entering judgment against the defendant for the amount so found. The judgment is therefore reversed and the cause remanded for a new trial.

Reversed and remanded.

Friend and Wilson, JJ.,

concur.

Since filing our opinion herein appellee has filed a motion to modify the remanding portion of the order and to enter an order in lieu thereof reversing said cause without remanding, and in support of said motion appellee has filed suggestions admitting of record that upon a further proceeding or trial of said cause appellee doe's not desire to submit further evidence upon a retrial, and that appellant has consented in so far as appellant can consent to the entry of such order.

Therefore, our original order of May 4, 1932, is modified in accordance with appellee’s suggestions, and the judgment of the municipal court is herewith reversed without remanding.

Reversed.

Friend and Wilson, JJ., concur.


author: Mr. Presiding Justice Hebel

text:
    Builders Bond and Mortgage Company, Appellee, v. Michael Wrobel (Rollin M. Coleman), Appellant.
    Gen. No. 35,346.
    Opinion filed May 4, 1932.
    Rehearing denied May 20, 1932.
    Cummings & Wyman, for appellantAustin L. Wyman, of counsel.
    Rosenberg, Corlett & Toomin, for appellee; Joseph Rosenberg and Milton M. Hermann, of counsel.
   Mr. Presiding Justice Hebel

delivered the opinion of the court.

This is an appeal by Rollin M. Coleman, appellant, from an order entered in the superior court of Cook county, dismissing his petition for an order that certain rents in • the hands of Neis A. Johnson, the receiver appointed in the cause of Builders Bond and Mortgage Company, a corporation, complainant, v. Wrobel et al, defendants, be paid to this appellant.

From the record it appears that the Builders Bond and Mortgage Company, a corporation, on December 27, 1928, filed its verified bill of complaint in the superior court of Cook county against Michael Wrobel et al, defendants, in cause Ño. 490268 for the foreclosure of a junior trust deed, covering certain premises at 2900 North Avers avenue, Chicago, Illinois, and prayed among other things, for the appointment of a receiver.

On December 31, 1928, on notice and motion of this complainant, a receiver was appointed. Subsequently, Eollin M. Coleman, the appellant, filed a bill of complaint against Wrobel et al., for the foreclosure of a prior trust deed in the superior court of Cook county, in cause No. 504414, and on August 14, 1930, an order was entered in said cause extending the receivership.

On January 24, 1931, a decree of sale was entered in this cause. The premises were sold, pursuant to a decree, for the sum of $2,602.37. The master’s report of sale and distribution was approved, and the court entered a deficiency decree and continued the receiver in possession during the statutory period of redemption for the purpose of collecting" and applying the rents in reduction of the deficiency decree due the complainant, Builders Bond and Mortgage Company.

Thereafter, the complainant in cause No. 490268 filed its verified petition setting forth the amount of the deficiency, the filing of a current report and account by the receiver showing funds on hand as of February 25,1931, in the sum of $2,295.57, and praying that said sum be paid to the complainant by the receiver for the purpose of application on the deficiency decree, and on March 7, 1931, an order was entered by the court to that effect.

The appellant and complainant, Eollin M. Coleman, in cause No. 504414, on March 24, 1931, presented to the court in cause No. 490268 his verified petition praying for leave to become a party defendant thereto, and that the order entered in said cause on March 7, 1931, be vacated or modified so as to provide that only rents from said premises accruing to August 14, 1930, less expenses incurred to said date, on the part of said receiver, be turned over to the complainant. Leave was granted to appellant to file his petition and become a party defendant, and answers were filed, and on May 11, 1931, the court entered the order appealed from finding that the order of August'14, 1930, in cause No. 504414, without the further entry of an order in cause No. 490268 was wholly ineffective to preserve a lien on the rents in the hands of the receiver for the benefit of appellant Bollin M. Coleman.

It has been suggested that the question before this court is: Where a receiver is appointed on a bill filed by a junior mortgagee, and subsequently a senior incumbrancer files a separate proceeding in the same court for the foreclosure of his mortgage, is an order entered in the subsequent proceeding, extending the receivership for the benefit of the complainant therein named, effective to preserve a lien for his benefit on the rents thereafter collected by the receiver, or must such an order extending the receivership be entered in the prior proceeding?

The rule that applies in the case of Builders Bond and Mortgage Company, a corporation, v. Wrobel et al., cause No. 490268, where, upon the application of the complainant, a receiver was originally appointed, is that the complainant is entitled to have the rents collected by the receiver applied in satisfaction of its demands, irrespective of priorities, and until an order extending the receivership is properly entered.

The appellant, Bollin M. Coleman, the complainant in cause No. 504414, filed a bill to foreclose a prior trust deed, and in which case an order was entered after notice to the receiver already appointed extending the receivership, and therefore he contends that the rents collected after the entry of this order were to be applied in satisfaction of this prior mortgage. While two actions to foreclose certain trust deeds securing notes were filed in the superior court, still these actions are separate causes of action, as separate and distinct as if one were filed in the superior court of Cook county, and one in the circuit court of Cook county.

Appellant Coleman is not in a position, because of the filing of his suit, to interfere with the property already in the hands of the receiver until steps are taken by him to subject the funds in the hands of the receiver to the satisfaction of his prior lien. If this court is to recognize and reward the diligence of the complainant, Builders Bond & Mortgage Company, in cause No. 490268, then the orderly procedure of Coleman is to apply for an order extending the receivership in the suit filed first in point of time to the suit of the appellant Coleman, filed subsequently. Such order to be acted upon must be presented to the court and entered in the cause wherein the receiver was appointed. It is in effect a modification of the original order of appointment to the extent that recognition is accorded to Coleman when such order of extension is entered. Otherwise the original order is not modified or in any way extended for his benefit. Until that is done, the rents collected by the receiver arc lost to Coleman. To hold otherwise would tend to create confusion in the orderly administration of justice, and might cause a conflict in different branches of the same court where the jurisdiction embraced the same subject matter and persons. High on Receivers, section 688, 4th Edition. Sullivan v. Rosson, 223 N. Y. 217.

What we said in Goldberg v. Hoffman, 262 Ill. App. 112, applies in the instant case, namely:

“The appointment of the receiver in the instant ease deprived the appellee (petitioner) of the power which it would otherwise have possessed to choose a forum in which to assert its rights and compelled it to resort to the court in the instant case. Here the demand that the receivership be extended to protect its interests could be acted upon only by the court appointing the receiver. The appellee (petitioner), in pursuance of the only course open to it, filed in the instant case its petition setting forth the facts showing its right to the income and containing ample prayers to entitle its claim to recognition. Parties in interest may assert their rights by intervention, notwithstanding that they may be neither necessary nor proper parties complainant or defendant to the main cause in which the receiver has been appointed. (Coleman v. Wrobel, supra; Sage v. Memphis & L. R. R. Co., 125 U. S. 361; Minot v. Mastin, 95 Fed. 734; Odell v. Batterman Co., 223 Fed. 292; Atlantic Trust Co. v. Dana, 128 Fed. 209.)”

Further, Rollin M. Coleman, appellant, filed his petition in the Builders Bond & Mortgage Co. v. Wrobel et al., cause No. 490268, praying that the order entered on March 7, 1931, may be vacated or modified so as to provide that only rents from said premises accruing to August 14, 1930, less expenses incurred to such date, on the part of the receiver, shall be turned over to said Builders Bond & Mortgage Company, which relief prayed for in the petition was denied by the court, for the reason that the entry of an order in cause No. 504414 extending the receivership in said cause is ineffective to preserve a lien on said rents for the benefit of Coleman unless and until the same is entered in cause No. 490268; therefore the court was justified in denying the relief prayed for in the petition.

For the reasons expressed in this opinion the order is affirmed.

Order affirmed.

Friend and Wilson, JJ., concur.