text:
    Robert J. Anderson (Now Deceased), Plaintiff, v. Annie Anderson, Appellee. Appeal of Martin J. O’Brien, Administrator, and Mabel Rothus, Appellants.
    Gen. No. 39,504.

      Opinion filed November 16, 1937.
    Bernard W. Mages, Otto W. Ulrich, Benjamin H. Black, David Fisher, all of Chicago, for appellants. Benjamin H. Black, of counsel.
    P. J. Cahill, of Chicago, for appellee.
   Mr. Justice John J. Sullivan

delivered the opinion of the court.

On January 30, 1925, a default decree of divorce was entered in this cause on service by publication in favor of Robert J. Anderson and against Annie Anderson, the defendant named in the bill of complaint. Robert J. Anderson died in Chicago on November 19, 1935. On April 15, 1936, after leave granted, Annie Anderison filed a motion in this proceeding supported by her verified petition to vacate the decree of divorce theretofore entered and expunge same from the records of the court on the ground that the service by publication was fatally defective and that the court therefore never had jurisdiction of her person. Mabel Rothus, who is the sole beneficiary under the will of Robert J. Anderson, and Martin J. O’Brien, administrator with the will annexed of the estate of said Robert J. Anderson, appeared specially and filed answers to Annie Anderson’s petition. After a hearing on the petition to vacate and the answers thereto an order was entered by the court December 8, 1936, vacating and expunging* from the records of said court the default decree of divorce theretofore granted to Robert J. Anderson on January 30, 1925, and dismissing* the bill of complaint filed by him. By this appeal the aforesaid Mabel Rothus and Martin J. O’Brien, administrator, seek to reverse that order.

Since counsel for Annie Anderson (hereinafter referred to as the petitioner) narrowed the issues in the trial court by stating there that he was “hinging” his “whole case” on the ground that the affidavit of nonresidence filed by Robert J. Anderson was fatally defective and takes the same position here, the only allegations of the petition to vacate that are pertinent and material are that petitioner was not served with process and had not entered her appearance in the divorce proceeding; that the affidavit of nonresidence filed in the cause as a basis for publication was fatally defective; that she did not receive from the clerk of the court any notice of the pendency of the proceeding for divorce; and that as soon as she learned of the existence of the decree she employed counsel to take the necessary and proper steps to vacate same.

The record discloses that Robert J. Anderson filed his bill for divorce against petitioner, who was the defendant named therein, charging her with desertion; that there was no service of summons on Annie Anderson and that she filed no appearance; that the notice published gave as petitioner’s last known place of residence an address at which she had never resided; that she never received any notice of the pend-ency of the divorce action against her; and that the affidavit of nonresidence filed as a basis for the service by publication, omitting its formal heading and conclusion, is as follows: “Robert J. Anderson, being duly sworn, deposes and says that Annie Anderson, defendant, upon due and diligent inquiry her present place of residence cannot be ascertained; and affiant further states that the last known place of residence of such defendant is 160 W. 47th Street, New York, N. Y.”

Appellants ’ theory and contentions as stated in their joint brief are as follows: “The respondents’ theory of the case is that the said Annie Anderson never having filed her appearance, either by herself or through her attorney, was not properly in court to give said court jurisdiction to hear said Petition; that the mere filing of said Petition was not in.the nature of an appearance; that the said Petition being filed eleven . . . years after the entry of the decree for divorce, and after the death of the plaintiff, did not give the Court, in which said divorce was obtained and in the same proceeding, jurisdiction to review the case and to set aside the decree; that there is nothing of record t.o show that the said Annie Anderson, the defendant in the divorce decree, is the same Annie Anderson who', filed the Petition to set aside said decree”; that “the affidavit of nonresidence filed in said divorce decree is valid and conferred jurisdiction upon the court over the parties; that the decree of court finding jurisdiction over the parties, as well as the subject matter, cannot be questioned eleven years thereafter”; that “the evidence of desertion as brought out by the introduction of a letter in the handwriting of the defendant mailed to the plaintiff, entitled the plaintiff to a divorce, and that the Petitioner failed to prove the allegations in her petition.”

The first question presented for our determination is whether the affidavit of nonresidence filed in the divorce proceeding was fatally defective and insufficient to confer on the court jurisdiction of Annie Anderson. Sec. 12 of the Chancery Act (ch. 22, Tf 12, Cahill’s 1925 Ill. Rev. Stats.) in force when the affidavit of nonresidence and publication in this case was made, provided: “Whenever any complainant or his attorney shall file in the office of the clerk of the court in which his suit is pending, an affidavit showing that any defendant resides or hath gone out of this State, or on due inquiry cannot be found, or is concealed within this State, so that process cannot be served upon him, and stating the place of residence of such defendant if known, or that upon diligent inquiry his place of residence cannot be ascertained, the clerk shall cause publication to be made in some newspaper printed in his county, and if there be no newspaper published in his county, then in the nearest newspaper published in this State, containing notice of the pend-ency of such suit, the names of the parties thereto, the title of the court, and the time and place of the return of summons in the case; and he shall also, within ten days of the first publication of such notice, send a copy thereof by mail, addressed to such defendant whose place of residence is stated in such affidavit. The certificate of the clerk that he has sent such notice in pursuance of this section, shall be evidence.” (Italics ours.)

It will be noted that this statute required that the affidavit filed pursuant to the provisions thereof show, first, one of the reasons specified therein why the particular defendant was not available for the service of process upon such defendant, and, second, matters relating to such defendant’s residence. It will be further noted that the only requirement of the statute that the affidavit of nonresidence filed in this cause complied with was the statement contained therein “that upon diligent inquiry her place of residence cannot be ascertained.” It is true that the affidavit went on to state “that the last known place of residence of such defendant is 160 W. 47th Street, New York, N. Y.,” but the latter statement cannot be held to supply the deficiency in the affidavit caused by its failure to assert that the defendant either (1) “resides” out of this State, or (2) “hath gone out of this State,” or (3) “on due inquiry cannot be found,” or (4) “is concealed within this State, so that process cannot be served upon him.” The law contemplates and requires that every defendant be given the best possible notice of the pendency of a suit and it is only where personal service cannot be had that substituted service is permitted. The affidavit required under the statute was no doubt intended to exclude every possibility of personal service. The statement in the affidavit that “upon due and diligent inquiry her place of residence cannot be ascertained” and “that the last known place of residence of such defendant is 160 W. 47th Street, New York, N. Y.” does not exclude the possibility of personal service. It might well be that the defendant’s place of residence could not be ascertained and that her last known place of residence was the address stated in New York and it still might have been possible to have served defendant personally with a summons. Even though Annie Anderson’s “present place of residence” was unknown and ‘ could not be ascertained, ’ ’ when the affidavit was filed “due inquiry” might have disclosed where she could be found. Every authority bearing upon the question under consideration that has been called to our attention holds that a strict compliance with every requirement of the statute is necessary to invest the court with jurisdiction where the service is by publication.

Discussing this subject in Spalding v. Fahrney, 108 Ill. App. 602, the court said at p. 604: “Jurisdiction must be founded upon the language used in the affidavit. . . . Before publication can be legally had, an affidavit must be filed, stating not only that the defendant on due inquiry can not be found, but also "stating the place of residence of such defendant, if known, or that upon diligent inquiry his place of residence can not be ascertained. Reedy v. Camfield, 159 Ill. 254; Malaer v. Damron, 31 Ill. App. 572.”

In passing upon this question in Correll v. Greider, 245 Ill. 378, the court said at p. 380: “The rule is too well established to require the citation of authorities, that a party claiming the benefits of a decree upon constructive service must show a strict compliance with every requirement of the statute. Nothing less will invest the court with jurisdiction or give validity to the decree when the same is called into question in a direct proceeding. (Boyland v. Boyland, 18 Ill. 551.) The affidavit upon which service by publication is had under section 12 of the Chancery act is jurisdictional and the statute must be strictly complied with. (Anderson v. Anderson, 229 Ill. 538.) ”

In Illinois Valley Bank v. Newman, 351 Ill. 380, it was held at p. 383: “A party claiming the benefit of a decree upon constructive service must show a strict compliance with every requirement of the statute, and nothing else will invest the court with jurisdiction or give validity to a decree when the same is called in question in a direct proceeding. (People v. Abraham, 295 Ill. 582; Boyland v. Boyland, 18 id. 551.) The affidavit upon which service by publication is had under the provisions of the Chancery act is jurisdictional and there must be a strict compliance with the statute. (Anderson v. Anderson, 229 Ill. 538.)”

The appellants’ contention that petitioner waived the defect in the affidavit of nonresidence by the testimony presented by her in the depositions of herself and daughter that she resided in New York at the time Robert J. Anderson filed the affidavit of non-residence is wholly without merit. We find nothing in such depositions or in the entire record that shows that Annie Anderson waived or relinquished her right to have the decree of divorce vacated because of the court’s lack of jurisdiction to enter it.

As- to appellants’ contention that the only proper method of attacking the validity of the decree of divorce was by bill of review, it is sufficient to say that where a decree or judgment is void for want of jurisdiction of the person of the defendant, it is a nullity and may be expunged from the records of the court at any time. It is universally conceded that a judgment void for want of jurisdiction over the person of a defendant may be vacated on motion, irrespective of lapse of time. (Freeman on Judgments, 2d ed. sec. 98.) A court has power to vacate a judgment or decree at any time after expiration of the term at which it was rendered, where the court was without jurisdiction to enter such judgment or decree. (City of Chicago v. Nodeck, 202 Ill. 257; Sherman & Ellis, Inc. v. Journal of Commerce, 259 Ill. App. 453; Feikert v. Wilson, 38 Minn. 341.)

It is next claimed that the finding of the court in the order appealed from is against the manifest weight of the evidence. The evidence amply supports the allegations of the petition that Annie Anderson was not served with process and had not entered her appearance, that the affidavit of nonresidence filed as a basis for service by publication was fatally defective, that she had never received any notice of the pendency of the suit from the clerk of the court, and that as soon as she learned of the existence of the decree she employed counsel to present her defense to the action and to take necessary steps to vacate the decree. The court’s lack of jurisdiction appearing on the face of the record, the decree was also void on its face.

It is also urged that petitioner, Annie Anderson, failed to show that she is the same Annie Anderson who was the defendant named in the divorce proceeding and the decree. In the absence of evidence to the contrary, and there was none here, the general rule is that identity of name raises the presumption of identity of person. (Sharp v. Sharp, 333 Ill. 267; Clifford v. Pioneer Fire-Proofing Co., 232 Ill. 150.)

Appellants’ final contention is that the filing of the motion to vacate the decree by Annie Anderson supported by her petition did not give the court jurisdiction to pass upon same since neither she nor her attorney in her behalf had filed an appearance in this cause. She was before the court after having been granted leave to present her motion and petition and if the court erred in failing to require her to file a formal appearance and pay the established fee for so doing, that was a mere irregularity that did not affect its jurisdiction to pass upon her motion and petition to vacate the void decree.

We are impelled to hold that the affidavit of non-residence filed in this cause as a foundation for the service by publication was fatally defective and conferred no jurisdiction on the court of the person of Annie Anderson.

For the reasons stated herein the order of the superior court vacating and expunging the decree of divorce granted to Robert J. Anderson is affirmed.

Order affirmed.

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


source: Caselaw Access Project

author: Mr. Presiding Justice O’Connor

license: Public Domain

text:
    People of the State of Illinois, Appellant v. Wesley Miles, Appellee.
    Gen. No. 39,663.
    Opinion filed December 6, 1937.
    Thomas J. Courtney, State’s Attorney, for appellant ; Edward E. Wilson and Amos P. Scruggs, Assistant State’s Attorneys, of counsel.
    No appearance for appellee.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.

December 12, 1936, an information was filed against defendant, Wesley Miles, in which he was charged with., unlawfully having in his possession a certain habit- forming drug known as heroin, without having a written prescription, in violation of sec. 158, ch. 91, Ill. State Bar Stats. 1935; Jones Ill. Stats. Ann. 88.23(2). On the same day, leave to file the petition was allowed and the case was heard by the court, a jury having been waived. Defendant was arraigned and plead guilty.

The record recites that the court then heard witnesses “as to aggravation and mitigation” of the offense, and a judgment was entered that defendant be sentenced to serve six months in the County Jail. Three months thereafter, March 12, 1937, notice was served on the State’s Attorney, together with a copy of a petition verified by defendant which set up the proceedings theretofore had in the municipal court against him, and the sentencing of him to the County Jail for a term of six months. The petition continued that on the day he was found guilty “a mittimus was issued and he commenced serving this sentence on that day.” The petition further set up that defendant was not represented by counsel; that he inadvertently entered a plea of guilty to the charge, without knowledge of the full consequences of his plea; that the testimony of the witnesses heard on the trial “discloses that he did not have possession of any narcotic when arrested as alleged in the information”; that he was “picked up at his mother’s request and that at the time of arrest he did not have any habit forming drug in his possession”; that if all the evidence had been produced he would have been released and that the petition was brought under the provisions of sec. 72, of the Civil Practice Act, Ill. Rev. Stat. 1937, ch. 110, § 196, Jones Ill. Stats. Ann. 104.072, and the prayer was that the court enter an order “correcting the record of guilty as erroneously entered” and that he be released instanter. On the same day the court entered an order that defendant be brought from the House of Correction before the court and that the case be set for hearing three days thereafter. Following this there appears in the record a written motion of the State’s Attorney setting up eight grounds which alleged the insufficiency of the petition; and it is stated in the record, “the motion to dismiss which the court refused to allow State’s Attorney to file is in the following words to-wit: ’ ’ Then follows the written motion. March 15, a judgment was entered which recites The People were represented by the State’s Attorney and the defendant in his own proper person as well as by counsel; that the State’s Attorney moved' the court to dismiss the petition; that the motion was overruled and a new trial allowed. The order further recites that a jury was waived and the case then heard by the court; defendant was again found guilty and it was ordered that he be placed upon probation. It is to reverse this order or judgment that The People prosecute this appeal.

The State’s Attorney, in his brief says that he presented a motion to dismiss the petition filed by defendant but that the court refused to allow the motion to be filed. Obviously this was error. No leave of court is necessary or proper but it is the duty of the State’s Attorney to file some plea or motion before an issue can be presented. “The sufficiency of the motion [or petition] which is regarded as a declaration in a writ of error coram nobis, or a motion under the statute, must be raised by demurrer, plea of nullo est erratum, by motion to dismiss, by pleading special matter in confession and avoidance, or by making an issue of fact by traversing the declaration.” People v. Crooks, 326 Ill. 266. However this may be, the judgment order recites that the court overruled the State’s Attorney’s motion to dismiss the petition, and for the purpose of this opinion we shall assume that the judgment speaks the truth and that the proper procedure was followed.

The petition was wholly insufficient to warrant the court in awarding a new trial. People v. Gardner, 279 Ill. App. 451; People v. McArthur, 283 Ill. App. 467; People v. Nakielny, 279 Ill. App. 387; People v. Crooks, 326 Ill. 266; Jacobson v. Ashkinaze, 337 Ill. 141.

In People v. McArthur (283 Ill. App. 467) which was a proceeding under sec. 72 of the Civil Practice Act, Ill. Rev. Stat. 1937, ch. 110, § 196; Jones Ill. Stats. Ann. 104.072, which section was identical with sec. 89 of the old Practice Act, we quoted from People v. Crooks, 326 Ill. 266, where the court there said (p. 280): “Errors of fact which may be availed of on writ of error coram nobis, or under a motion made in pursuance of section 89 of our Practice act include duress, fraud and excusable mistake”; that it is an appropriate remedy in criminal cases as well as in civil cases, and, continuing, “Such a writ lies to set aside a conviction obtained by duress or fraud, or where by some excusable mistake or ignorance of the accused, and without negligence on his part, he has been deprived of a defense which he could have used at his trial and which if known to the court would have prevented a conviction, or to set aside a conviction based on a plea forced by fear of mob law or by other fear of the defendant induced by misconduct of the officers of the court or by other officers of the law in whose custody a confession was obtained by such unlawful means. ’ ’

In the instant case, the petition or motion was wholly insufficient. No facts are there set up that the conviction was obtained by fraud or duress or by excusable mistake or ignorance of the accused, without negligence on his part. The motion of the State’s Attorney to dismiss the petition should have been sustained.

The judgment of the municipal court of Chicago is reversed, and the matter is remanded for further proceedings consistent with this opinion.

Reversed and remanded.

McSurely and Hatchett, JJ., concur.


author: Mr. Presiding Justice O’Cohítor

text:
    William H. Tegtmeyer et al., Appellees, v. Daisy C. Tegtmeyer, Appellant.
    Gen. No. 39,672.
    Opinion filed December 6, 1937.
    Rehearing denied December 20, 1937.

      Charles S. Harvey, of Chicago, for appellant.
    Gr. L. Wire, of Chicago, for appellees.
   Mr. Presiding Justice O’Cohítor

delivered the opinion of the court.

By this appeal Daisy C. Tegtmeyer seeks to reverse an order entered by the circuit court of Cook county June 17, 1937, sustaining plaintiffs’ motion to dismiss her petition whereby she sought to be released from the custody of the sheriff of Cook county, who was holding her by virtue of a writ of ne exeat and a mittimus issued pursuant to a contempt order.

, The record discloses that in 1925 plaintiffs filed their bill in equity in the circuit court of Cook county whereby they sought to compel defendant, Daisy C. Tegtmeyer, to account for $4,000 trust funds and any profits derived from the investment thereof. The case was heard on March 18,1930, and a decree was entered in plaintiffs’ favor, from which an appeal was prosecuted to this court, where the decree was affirmed. Tegtmeyer v. Tegtmeyer, 259 Ill. App. 661 (Abst.). A further appeal was prosecuted to the Supreme Court where on April 23, 1932, the judgment was affirmed. Tegtmeyer v. Tegtmeyer, 348 Ill. 434. After the affirmance the cause was referred to a master in chancery to take the account and on June 12, 1933, plaintiffs filed their petition praying, among other things, that a writ of ne exeat república issue.that defendant might be stayed from departing out of the jurisdiction of the court. Bail was fixed at $30,000. The writ was issued on the 'day the petition was filed and commanded the sheriff to summon the defendant to appear before the circuit court of Cook county on the first day of the July term of court, which began the third Monday of July (July 17). The sheriff was further commanded that unless defendant gave bail he should commit her to the common jail of Cook county; having failed to give bail she was taken into custody July 27, 1933, and was confined until July 21, 1937.

In the meantime defendant refused to turn over certain property of the value of more than $30,000 to the receiver theretofore appointed by the court. She also refused to answer proper questions put to her on the hearing before the master, as a result of which the court on January 5, 1934, entered an order by which she was adjudged to be in contempt of court, and it was ordered that she stand committed to the county jail of Cook county, there to remain and be held until she delivered the property to the receiver and answered the questions. July 21, 1937, this court ordered that the appeal operate as a supersedeas in the ne exeat proceeding upon defendant giving bond for $5,000, and also that the appeal operate as a supersedeas in the contempt proceeding upon defendant entering into a bond for $2,000, and such bonds having been approved by the court July 21, 1937, defendant was released from the custody of the sheriff.

The chancery case which was instituted in 1925 is still pending and from that date to the present, .plaintiffs have been seeking to compel defendant to render an account. Throughout the pendency of the suit divers and sundry proceedings have been had, defendant having filed petitions for writs of hateas corpus and other petitions and motions, seeking to be released from jail. A counter motion was filed by plaintiffs by which defendant was enjoined from filing such petitions. Neither party has rested on its oars but the battle has been continuous throughout the years.

From what we have said it is obvious that a detailing of the facts and numerous proceedings is unnecessary. Many of the facts will be found in the opinions of this court and of the Supreme Court. We mention but a few of them. Defendant and her husband invested $18,000, which included the $4,000 in question, in Chicago real estate; the husband afterward died and she sold the property for more than $46,000. She invested the money in various stocks, including the Commonwealth Edison Company, Middle West Utilities and the American Telephone and Telegraph Company; $10,000 was also placed in escro,w with the Chicago Title & Trust Co., in connection with the guaranteeing of the title to the real estate by that company when the property was sold. After the affirmance by the Supreme Court ordering the defendant to account, the cause was remanded, and on October 25, 1932, referred to a master in chancery. Five days thereafter defendant sold 200 shares of the American Telephone and Telegraph Company stock for $20,801.77 and 137 shares of Commonwealth Edison Company stock for $9,728.56, or a total of $30,530.33. This was found by the contempt order to constitute a part of the trust fund. August 25, 1933, the court entered an order requiring her to turn over the $30,530.33 and other property to a receiver theretofore appointed. Afterward the receiver made a demand upon her which was unavailing. The contempt order finds that defendant has failed to show cause why she should not deliver the moneys and property to the receiver, and that she “was and is able to bring into court and deliver and surrender to the National Builders Bank of Chicago, as receiver, . . . the said moneys and property, and her failure and refusal to surrender and deliver said moneys and property is a wilful and contumacious refusal ... to comply with the order” of the court. No appeal has been taken from the order of contempt although it was appeal-able. Hill v. Jeffery Co., 292 Ill. 490.

In the verified petition filed by defendant June 10, 1937, by which she sought to be released from jail, it is alleged that she is now and has been continuously confined in jail since July 27, 1933, and that she is held by the sheriff by virtue of the writ of ne exeat (by reason of her failure to give bond for $30,000) that the writ was made returnable to the July, 1933 term of the circuit court of Cook county which commenced July 17, 1933; that it was not served on defendant until July 27, 1933, 10 days after the commencement of the July term; that at the time of such service the “Writ had expired, and become void by its own terms and was ‘functus officio’ ” and therefore she is wrongfully held by virtue of such writ. It is further alleged in the petition that the sheriff was also detaining defendant by virtue of the contempt order of January 5, 1934; that the order was “vicious and void, and in violation of the 8th and 14th Amendments to the United States Constitution, and to the Bill of Eights contained in the Illinois State Constitution, in that it contains no definite term for the detention and imprisonment of” defendant; that the contempt order was entered at the request of plaintiffs in an.attempt to enforce the terms of the decree of 1930 (above mentioned) “for their own exclusive gain and benefit”; that defendant’s health has been greatly undermined by her continuous confinement in jail for almost four years; “that she has lost 50 pounds in weight, has developed chronic myocarditis, bronchitis and arrested tuberculosis and anemia and any further confinement will seriously endanger her very existence”; that even if the order and mittimus issued in pursuance thereof were valid at the time the order was entered, they have since become “void for the reason that” defendant “has been severely punished for any alleged contempt,” and to prolong her imprisonment pursuant to the contempt order will be a violation of the 8th and 14th amendments of the United States Constitution.

Defendant contends (1) that the writ of ne exeat in this State is “in the nature of a summons and is so regarded by the Statute, and is for the purpose of obtaining equitable bail and insuring the presence of the defendant within the jurisdiction of the- Court”; that. the writ was issued on June 12, 1933, returnable July 17, 1933, but was not served on defendant until July 27, 1933, and therefore the writ was void at the time of its service on defendant. In support of this Draper v. Draper, 59 Ill. 119, and O’Brien v. Haynes, 61 Ill. 494, are cited.

The Draper case was a suit for divorce. Upon the bill being filed, the summons was issued returnable after the first Monday of the October following. It was returned by the sheriff October 3, “not found.” Prior to that time, on September 5th, a second summons was issued, also returnable to the first Monday of October. The sheriff served this last summons October 13th. The court there said (p. 120): “The service of the second summons . . . was insufficient to confer jurisdiction. It was not served until ten days after the return day. The writ then had no vitality; it had spent its force, and the service was a nullity. . . .

“There being no service, and no appearance by the defendant . . . that court did not have jurisdiction to pronounce the decree that it did,” and the decree was reversed. In the instant case it is not necessary for us to pass upon the validity of the service because, unlike the Draper case, defendant here entered her appearance and filed her verified answer to the petition.

In O’Brien v. Haynes, 61 Ill. 494, which was an action of replevin, it was also held that where a summons is served after the return date the service will be a nullity and will not give the court jurisdiction of the person of the defendant. But in that case the defendant employed counsel who filed a plea and it was held that “All defects and irregularities in the service, if any existed, were cured by the plea.” We think it obvious that neither of these cases is in point. We might add, however, that although it was charged in the petition filed by plaintiffs for the writ of ne exeat, that defendant was about to remove from the State and take therefrom the property which the court had theretofore decreed belonged to plaintiffs; and although defendant denied this allegation in her verified answer, yet so far as we are advised, there was no hearing of the issue raised by the petition and answer. Obviously if the charge in the petition was not sustained by proof, the writ would necessarily be quashed.

(2) Defendant contends that the court erred in not quashing the “contempt mittimus” because the punishment inflicted upon her is cruel and unusual, contrary to the 8th amendment of the United States Constitution, and to secs. 11 and 12 of art. 2 of the Constitution of this State, and that she has been deprived of her liberty without due process of law, contrary to the 5th and 14th Amendments to the United States Constitution. It has been repeatedly held that the first 10 amendments to the Federal Constitution apply only to the" National Government and do not apply to the State Government. Spics v. Illinois, 123 U. S. 131; Collins v. Johnston, 237 U. S. 502. Punishment for contempt of court is not a violation of the due process clause of the 14th Amendment to the United States Constitution. Rothschild & Co. v. Steger Piano Co., 256 Ill. 196. In City of Chicago v. Peterson, 360 Ill. 177, the court said (p. 179) : “Due process of law has repeatedly been held to be an orderly proceeding wherein a person is served with notice and has an opportunity to be heard and to enforce and protect his rights before a tribunal having power to hear and determine the cause. The fact that the judgment is distasteful to one party or that the court may have erred in entering it, is not a denial of due process of law if the requirements above stated have been met.”

In the instant case no contention is made by defendant that the court did not have jurisdiction of the ne exeat proceeding and was authorized to hear and determine the issues raised by the petition and answer thereto. Nor is any suggestion made that the court did not have jurisdiction of the person of defendant and of the subject matter involved when it issued its order finding her to be in contempt of court.

(3) A further contention is made that defendant should be discharged because sec. 11 of our constitution provides: “All penalties shall be proportioned to the nature of the offense”; and sec. 12: “No person shall be imprisoned for debt, unless upon refusal to deliver up his estate for the benefit of his creditors, in such manner as shall be prescribed by law, or in cases where there is strong presumption of fraud.” And counsel for defendant further say that “where it appears that the act done is due to a mistaken view of the rights of the offender, the punishment, where imprisonment is deemed necessary, should be for a definite period and should not be severe. ... It would not be right for a judge sitting in a criminal court, and compelled to sentence a prisoner, to direct that his imprisonment should continue until some condition, however reasonable the condition might be, had been complied with. A prisoner is entitled, when he has undergone his punishment, to an unconditional release.” In support of this counsel cites En Re Maria Annie Davies, 21 Q. B. Div. 236, Nisbet v. Tindall, 115 Ga. 374; People v. La Mothe, 331 Ill. 351 and Tudor v. Firebaugh, 364 Ill. 283. In the Tudor and the LaMothe cases, trustees were held in contempt of court because of the wrongful use of trust funds. On review by the Supreme Court it appeared that the moneys were only in the constructive possession of the trustees — that they did not have actual possession of the trust funds, and although they were decreed to repay the money, yet when they answered in the contempt proceedings that they did not have the funds and had no means with which to pay the judgment, it was held that they should not be imprisoned as for contempt. In the Tudor case the court said (p. 287): “The power of a court of equity to punish for contempt by imprisonment upon the refusal of a trustee to pay over money actually received and wrongfully withheld is well established. . . . It is no defense in such case that the fund has been devoted to other purposes. (People v. Zimmer, 238 Ill. 607. . . .)” The court then quoted see. 12 of art. 2 of our constitution and continuing said (pp. 288-89) : “In the enforcement of this constitutional provision every doubt should be resolved in favor of the liberty of the citizen. No one should be imprisoned for a failure to pay money unless the evidence clearly shows that the party charged has the money within his power to pay, or that he had the money and wrongfully disposed of it. Courts may imprison for wilful defiance, but they will not imprison for failure to comply with a decree where the disobedience is not willful.

“No decision of this court upholding commitment for contempt is based upon a constructive possession of the money because of the defendant’s association with the person who had actually and properly received the money. No man can be legally imprisoned for a failure to pay over money he does not have and never had. . . . In O’Callaghan v. O’Callaghan, supra, it was said: ‘The court is empowered to punish willful obstinacy in such cases by imprisonment, but we think the spirit of our constitution forbids that the pecuniary inability of the party, not resulting from his fraudulent conduct to produce that condition, cannot be punished as a contempt by imprisonment.’

“Where the neglect or refusal to perform the decree is not from mere contumacy but from the want of means — the result of misfortune not induced by any fraudulent conduct on the part of the defendant — the party will be compelled to adopt some mode consistent with the practice in the courts, other than imprisonment, to enforce the decree. . . . Imprisonment for non-compliance with a decree to pay money, unless willful, or unless upon a refusal of defendant, upon proper demand made, to deliver up his estate in satisfaction of the decree, is within the inhibition of the constitution against imprisonment for debt.” And it was held that since the party found guilty of contempt had never actually had possession of the money, the order finding him guilty of contempt was unwarranted.

In the instant case the court expressly found that the defendant had more than $30,000 belonging to the trust estate; that at the time the contempt order was entered she was able to turn this money over to the receiver but contumaciously refused to do so. From this it is clear that under the holding of the two Illinois eases just referred to, and in fact all of the cases to which our attention has been called, defendant cannot say that the court was not warranted in finding her to be guilty of contempt of court. If, in such a case as the one at bar, a court decrees that a person has funds in his possession which should be turned over to the receiver of the court and is able to do so, but refuses to obey the decree of the court, then obviously the court would be rendered impotent and we would have neither law nor order but everyone could do as he or she pleased. Of course, such a situation cannot be countenanced by the courts for a moment. The same reasoning is also true as to the defendant’s refusal to answer questions put to her touching the trust funds, which she refused to answer. As heretofore stated, the order adjudging her to be in contempt of court is still in full force and effect and we find no complaint in the brief of counsel for defendant that the action of the court was not in accordance with law. Defendant’s counsel admits the law is as above stated; he says: “At the outset, attorney for defendant would like to make this point clear to this Court, that he is entirely in accord with the well accepted and well founded doctrine that all Courts have, and should have, the power to punish for contempt, and that such power is a necessary and integral part of the independence, of the judiciary and is essential to the performance of their duties and to the enforcement of their decrees, . . . it is quite apparent that the Courts could not function properly without such power. It is also, however, necessary that such power should not be absolute and uncontrolled, especially in a government of, by and for the people as we find it in the United States, so that we find the makers of the Constitution of the United States placing certain safeguards for the protection of the people in this respect.” Counsel then refers to the provisions of the United States and the State Constitutions above mentioned.

In the Davies case, 21 Q. B. Div. 236, cited, Mrs. Davies was imprisoned for contempt of court for violating an injunction. The term for which she was imprisoned was indefinite. At the expiration of 18 months the court, on its own motion, discharged her from custody, Mathew, J., saying: “My Lord agrees with me that Mrs. Davies should now be discharged; but for the observations which follow I alone am responsible. ... It should be borne in mind that contempt of court is a criminal offense, punishable as a misdemeanor by fine and imprisonment or both; . . . The punishment should be commensurate with the offense. ... A commitment until the offender consented to give evidence, would not, in my judgment, be the proper order to make. On the other hand, where it appears that the act done is due to a mistaken view of the rights of the offender, the punishment, where imprisonment is deemed necessary, should be for a definite period and should not be severe. ’ ’ Lord Coleridge, C. J., in a separate opinion said: “I assent to the proposed order, but I do so distinctly on the ground that it is assented to on behalf of the plaintiff in the action as affording him adequate protection. Where the Court has given its decision, and the person against whom the Court has decided defies the Court, ignores its decision, and persists in persecuting the person in whose favour the Court has decided with groundless claims and vexatious actions, however reluctant the Court may be to do so, it has, in my opinion, no choice but to enforce its judgment by the imprisonment of the contumacious person.” In that case it also appeared that before releasing Mrs. Davies the court required her written assurance that there would be no further violation of the injunction. In Illinois it has long been the firmly established law that for a penal contempt the imprisonment should be for a fixed period of time. Rothschild & Co. v. Steger Piano Co., 256 Ill. 196. But the contempt of which defendant is found guilty is remedial where the period is and should be indefinite — until compliance with the order of court.

Counsel for defendant also cites McClung v. McClung, 33 N. J. Eq. 462, where a defendant was discharged from imprisonment for contempt for disobeying an order of court, although he had not purged himself of his contempt. That was an opinion by the trial court. In that case a respondent in a divorce case was adjudged to be in contempt for failing to pay alimony although he apparently was able to do so. The court said he would discharge defendant although he had not cleared himself of contempt, but required him to transfer to a receiver the right to collect rent from property owned by defendant.

In Nisbet v. Tindall, (115 Ga. 374) it appeared that Tindall as receiver had misappropriated a large sum of money which came into his possession as receiver, which he failed to account for when ordered to do so by the court. He was committed to jail until he had purged himself by repaying the money and until he had been sufficiently punished or he showed that he had been sufficiently punished and was unable to pay by reason of Ms poverty. He made several attempts to obtain Ms release which were ineffectual until he had served 138 days, when he was released. The court said (p. 375): “ A hearing was then had and Judge Roberts passed an order reciting that the applicant had purged Mmself of the contempt for which he was committed to jail, by showing that he was unable by reason of poverty to restore the money he had been ordered to restore, and adjudging that he be discharged from further custody.” And continuing (pp. 377-78): “It should now be regarded as defimtely and finally settled that, in all cases of this character, the question of discharging from custody an officer of the court, who has been imprisoned for not paying over money or delivering property, must be left to the sound discretion of the trial judge, and that he shall have exclusive control of the matter. The evidence heard by Judge Roberts was amply sufficient to establish the fact that Tindall was unable from poverty to pay over the money he had misappropriated; and this being so, we can not say that the judge erred in ordering the prisoner discharged. From a metaphysical standpoint, it seems that his Honor must have necessarily been satisfied that the imprisonment, covering a period of 138 days, had been sufficiently long to vindicate the dignity of the court; and certainly he must have concluded that further imprisonment would not have the effect of compelling obedience to the order requiring Tindall to pay over the money.” The facts in that case are not similar to the facts in the case before us. In that case the receiver, who was adjudged to be in contempt of court, established the fact that he was unable to repay the money he had misappropriated. And the court held that confinement in jail of 138 days was sufficient to vindicate the dignity of the court; while in the instant case the contempt order shows that defendant has the money in her possession, is able to turn.it over and that she deliberately refuses to answer pertinent questions, all of which have been adjudicated by the order of contempt entered January 5, 1934, and from which no appeal is taken. Nor is any argument made by counsel for defendant that defendant is unable to comply with the contempt order, and we think it obvious that if she did so she would be released in the contempt and ne exeat phases of the matter. It is true that defendant made a motion in this court for leave to file a typewritten brief in lieu of a printed one, in which she swore that she was unable to pay for the printing of the brief and was unable to obtain the necessary money from her friends or relatives owing to the fact that she was already greatly indebted to them, but no argument is made by counsel in his brief on this question. If a showing were made that defendant was now unable to turn over the money to the receiver as ordered and if she would truthfully answer the question a different question would be presented and the ruling of the Georgia court in the Nisbet case would be applicable. But no such showing has been attempted. If defendant has been long confined in jail it is because she has defied the court. As has often been quaintly expressed, defendant carries the key to her prison in her own pocket.

On the contempt hearing defendant testified that “I have been a professional woman,” and her testimony shows she is an intelligent woman, but sets herself up in defiance of the law even after the issues had been adjudicated against her by the Supreme Court of this State.

Upon a consideration of the entire case, we see no way under the law that we can order her release from custody. The judgment of the circuit court of Cook county is affirmed.

Judgment affirmed.

McSurely and Hatchett, JJ., concur.


author: Mr. Justice McSurely

text:
    Mary Flanagan et al., Appellees, v. Madison Square State Bank et al., Defendants. R. C. Wieboldt Co. et al., Appellants.
    Gen. No. 39,503.

      Opinion filed December 6, 1937.
    Rehearing denied December 20, 1937.
    Rosenthal, Hamill, Eldridge & King, of Chicago, for certain appellants; Willard L. King and George W. Gale, of Chicago, of counsel.
    Shulman, Shulman & Abrams, of Chicago, for certain other appellants; Meyer Abrams, of counsel.
    Aaron Soble, John G. DeWolfe and Robert E. Dowling, all of Chicago, for appellees; Max Chill, of Chicago, of counsel.
   Mr. Justice McSurely

delivered the opinion of the court.

This is a bank stockholders’ liability case brought by creditors in which, after reference to a master and hearing by the court it was decreed that defendants should pay the receiver of the Madison Square State Bank, in satisfaction of their respective constitutional superadded liabilities as stockholders of the bank, various amounts running from $500 assessed against' Frederick C. Croft to $20,000 assessed against R. C. Wieboldt Company. Nine of the defendants have appealed.

June 14, 1932, the bank closed and a receiver was appointed by the auditor of public accounts. From 1923 to 1928 defendants, who appeal, owned stock in the bank but all of this was sold prior to May, 1928, except four shares held by R. C. Wieboldt individually; during the period when the defendants were stockholders the bank had capital stock of $300,000. In September, 1930, after the sale of all of the defendants ’ stock, except the four shares referred to, the capital stock of the bank was reduced from $300,000 to $200,000; the certificate of reduction of the capital stock of the auditor of public accounts stated that the capital of the bank had not been diminished to the prejudice of creditors.

Defendants say that when they sold their stock they left a fund of $300,000 in excess of deposits available to meet the demands of creditors; that the new stockholders reduced that fund by $100,000, of which every creditor had notice, and defendants assert that there can be no liability against the old stockholders who sold their stock before the capital stock was reduced; that their position is analogous to that of a retired partner where the remaining partner assumes to pay the firm debts, and that under such circumstances as to creditors knowing of this agreement the retiring partner is a surety only, and if the creditors extend the time of payment to the partner continuing the business the retiring partner will be discharged from liability, citing Wiley v. Temple, 85 Ill. App. 69, and other cases.

Sec.. 6, art. 11 of the State constitution provides that every stockholder in a banking corporation shall be liable to its creditors, over and above the amount of stock by him held, to an amount equal to his shares, for all its liabilities accruing while he remains a stockholder. This has been held to create a primary liability to the creditors. Golden v. Cervenka, 278 Ill. 409; Sanders v. Merchants State Bank of Centralia, 349 Ill. 547; Heine v. Degen, 362 Ill. 357. In Fuller v. Ledden, 87 Ill. 310, it was held that a bank stockholder’s liability was fixed and he could not be released without the consent of the creditors. “He had the right, it is true, to sell his stock and cease to be a member of the corporation, but his withdrawal from the corporation would not release him from liabilities incurred while a member. A contract or liability of this character can not be rescinded by one party without the consent of the other contracting party. ’ ’ Sanders v. Merchants State Bank of Centralia, 349 Ill. 547, and the opinion of our Supreme Court in Comstock v. Morgan Park Trust & Sav. Bank, 367 Ill. 276, are decisive against defendants’ theory of liability as a surety.

Moreover, the Banking Act, ch. 16a, Tf 12, Cahill’s Ill. Rev. St. 1929, provides among other things for increasing or decreasing the capital stock, with a proviso, “that in no case shall the capital stock be diminished to the prejudice of the creditors of such corporation, ’ ’ and that ‘ ‘ Such . . . increase or decrease . . . of capital stock . . . shall not affect suits pending in which such corporations or corporation shall be parties ; nor shall such changes affect causes of action nor the rights of persons in any particular.”

It is not necessary in this suit that creditors should prove their claims. These come properly in the liquidation suit where the claims may be presented to the receiver. This suit is for the purpose only of determining the constitutional liability of the stockholders. In Heine v. Degen, 362 Ill. 357, 373, a motion was made that all creditors be ruled to prove their claims in the proceeding. The court said this motion was properly denied; that, “It is not a prerequisite that all claims be proved by the creditors in order to determine the amounts owing by the individual stockholders who are primarily liable. This proof can be made otherwise.” In the same connection defendants also argue that the accountants who testified had mistakenly assumed that a depositor is a creditor regardless of the fact that he may be a borrower from the bank. In Cohen v. North Ave. State Bank, 291 Ill. App. 558, 568, this same point was raised. We held that this contention could not be sustained; that the proper place for the allowance of offsets was in the liquidation suit, as the auditor making the examination of the bank records would not be in a position to pass upon the validity of offsets, citing cases.

Able counsel for defendants question at some length the accountants’ evidence as being merely hearsay. This point was also made in the Comstock case, supra, and the court said: “Appellants contend that no sufficient foundation was laid before appellee’s audit of the books of the bank was admitted in evidence. They rely on LeRoy State Bank v. Keenan’s Bank, 337 Ill. 173, but in that case the plaintiff was a bank and it attempted to prove its claim against stockholders of the defendant bank by an "audit of plaintiff’s own books. In the case before us, the bank’s books were admissible against its stockholders as admissions against interest. (Loewenthal v. McCormick, 101 Ill. 143; Dows v. Naper, 91 id. 44.) The fact is not questioned that these were the books of the bank. Nor is it questioned that they were voluminous. It was proper to admit the audit in evidence.” This is applicable to the instant case.

There are no errors in the computation in the amount of liability against the defendants. Such a liability is several and a decree is entered against each of the defendants in an amount over and above the amount of stock held by him to an amount equal to his respective shares. American Nat. Bank of Mt. Carmel v. Holsen, 331 Ill. 622, 627. If any contemporaneous stockholders pay the receiver an amount equal to all the unpaid liabilities incurred during the contemporaneous ownership such liabilities are satisfied. No stockholder can be compelled to pay a sum greater than the aggregate of liabilities incurred by the bank while he was a stockholder. Burket v. Reliance Bank & Trust Co., 366 Ill. 98, and cases there cited. Such payments, if any, may be considered in the liquidation suit or in this suit, for the instant decree contains a provision reserving jurisdiction “for considering and passing upon all questions which may arise with respect to the enforcement of this decree and the compromise and settlement of all liabilities. ”

It is argued on behalf of R. C. Wieboldt Company that its acquisition of bank stock was ultra vires and that under the decision in Golden v. Cervenka, 278 Ill. 409, this fact constitutes a valid defense against an alleged liability on account of supposed ownership. When R. C. Wieboldt Company was incorporated its object was, “to carry on and engage generally in the general contracting and construction business.” The certificate of incorporation further provided that subject to the conditions prescribed by “The General Corporation Act” of 1919 it should have the right “to own, purchase, or otherwise acquire, . . . the stocks, bonds, and other evidences of indebtedness of any corporation, domestic or foreign.”

Plaintiffs argue that when the decision in the Cervenka case was rendered the law did not permit a domestic corporation to hold stock in any other corporation but that since that time, by sec. 7 of the Act of 1919, domestic corporations are given the right to hold stock in other corporations; hence it is said the decision in the Cervenka case does not apply to the instant facts because the Wieboldt company acquired its stock subsequent to the enactment in 1919 of this provision. To this defendant Wieboldt company replies that other provisions of the corporation act indicate that the permission granted by sec. 7 of the Act of 1919 is to hold stock in another corporation but not bank stock.

Sec. 2 of the Corporation Act, Ill. Rev. Stats. 1919, provides that corporations may be organized as provided in the act for any lawful purpose, “except for the purpose of banking. . -. .” Defendants’ counsel say if a corporation organized under this act could own part of the stock of a bank it could own all of it and thus effectually thwart this restriction; that sec. 13 of the Corporation Act of 1919 prohibited any corporation created under its provisions from exercising any banking powers, and that stockholders in a bank are engaged, through their directors, in banking. Sec. 8 of the Corporation Act of 1919 provided that stock of any building corporation may be taken as collateral security by “any corporation, bank or trust company.” Thus, it is argued, the legislature distinguished between “any corporation” and a “bank.” Sec. 6 of art. 11 of the constitution, which provides for stockholders ’ liability, designates such stockholders as “individually responsible” and describes them by personal pronouns. Defendant also argues that since? Wieboldt company’s sole object was the general contracting and construction business, there is no relation whatever between this business and owning stock in a bank.

The points made are plausible and carry some weight, but further consideration compels a disagreement. To construe the Corporation Act of 1919 as prohibiting the holding of bank stock by a domestic corporation would result in a number of inequities. It would be inequitable to free from liability a corporation which might hold the largest amount of bank stock, leaving the liability to fall on individuals, holders of small amounts. This would be unjust to small stockholders and also to creditors of the bank. It would prohibit a corporation from taking any bank stock as collateral to secure an obligation due the corporation. It would prohibit incorporated brokers from acquiring customers’ bank stock as pledges to protect transactions on the market. It would invite the pretended holding of stock in a corporate name, under a corporate veil, which in fact was owned by individuals-, thus thwarting the purpose of the constitutional liability provision. These and other considerations lead us to the conclusion that the more reasonable construction of the General Corporation Act of 1919 permits the holding of bank stock by a domestic corporation. This being true, the decision in the Gervenka case, made prior to 1919, does not apply.

A brief has been filed on behalf of certain other co-defendants who are appealing. Most of the points made by them have been already noticed. It, is reasserted that plaintiffs, not being creditors of the bank prior to 1928, have no right to maintain an action against stockholders who parted with their stock prior to that date. Heine v. Degen, 362 Ill. 357 (365-372) and Comstock v. Morgan Park Tr. & Sav. Bank, 363 Ill. 341, hold that any creditors of a bank may maintain a class suit for the benefit of all creditors against all stockholders irrespective of the time when they became creditors of the bank.

Payments already made by stockholders on their liabilities should be taken into account in determining the amount each defendant stockholder should pay, and, as was said in Burket v. Reliance Bank & Trust Co., 366 Ill. 98, “If a group of contemporaneous stockholders pay to the receiver in the creditor’s suit a sum equal to all the liabilities incurred during the contemporaneous ownership, their liabilities are satisfied, and there is no warrant of law to compel that group to pay to the receiver, for the benefit of creditors, a sum greater than the aggregate of liabilities incurred by the bank while that group were the stockholders.” Also Cohen v. North Ave. State Bank, supra.

The decree orders the costs of the reference to a master and other costs to be taxed against the defendants in the amount of $40 a defendant. This is manifestly inequitable, as taxing the same amotint against the defendant with a small stockholder’s liability as against one held liable in a large amount, and also regardless of whether he opposed the liability. Plaintiffs seek to justify this under the decision in Rosenfeld v. Horwich, 221 Ill. App. 304, but that case was decided before the amendment of the Banking Act in 1929, ch. 16a, Cahill’s Ill. Rev. St. 1929. The present act, ch. 16%, § 11, Ill. Rev. Stat. 1937; Jones Ill. Stats. Ann. 10.11, provides that the costs of proceedings to recover the liabilities of the stockholders, including plaintiffs’ solicitors’ fees and all expenses, may on order of court be paid out of the funds collected by the receiver and “the funds so collected after the payment of costs and expenses of collection, including solicitors’ fees shall be distributed” among the creditors of the bank. In Comstock v. Morgan Park Tr. & Sav. Bank, 363 Ill. 341, the court indicated that the costs should be paid out of the fund collected as provided by the statute. The instant decree is erroneous in taxing the costs against the stockholders. The expenses should have been ordered paid out of the funds in the hands of the receiver.

In considering the points made upon this appeal we are mindful of what was said by the court in the Comstock case last cited in noting that many such cases have been before the courts of this State, ‘ ‘ Thousands of creditors and stockholders have accepted our interpretations. Millions of dollars have been paid on the strength of them, and it would be destructive of the stability of the decisions of this court to further permit reiterations of the claim that the meaning of section 6 of article 11 of the constitution is in doubt or is undetermined. ’ ’

For the reasons indicated the decree is affirmed except as to that part taxing the costs and expenses against the stockholders, which is reversed, and the cause will be remanded to correct the decree in this respect.

Affirmed in part, reversed in part and remanded.

O’Connor, P. J., and Matchett, J., concur.


text:
    Edwin A. Taylor, Appellee, v. The Atchison, Topeka and Santa Fe Railway Company, Appellant.
    Gen. No. 39,525.

      Opinion filed December 6, 1937.
    Rehearing denied December 20, 1937.
    Emmet Trainor, of Chicago, Joseph S. Lafperty and Joyce Cox, for appellant; Charles H. Woods, of Chicago, of counsel.
    Robt. J. McDonald and William H. De Parcq, both of Minneapolis, for appellee; Samuel Cohen and John E. Burke, both of Chicago, and Leo W. Hodel, of Joliet, of counsel.
   Mr. Justice McSurely

delivered the opinion of the court.

September 7, 1934, plaintiff, while employed as a fireman on one of defendant’s locomotives, was injured in a. collision with another locomotive heading a train in the State of Kansas; he brought suit under the Federal Employers ’ Liability Act in the superior court of Cook county, Illinois, and upon trial had a verdict for $75,000; remittitur of $16,200 was made and judgment was entered against defendant for $58,800, from which it appeals.

A preliminary question relates to the venue and the effect of an in junctional order restraining plaintiff from prosecuting this suit in this county.

The suit was commenced here October 4, 1935, and October 30 on defendant’s application to the district court of Neosho county, Kansas, an ex parte order was entered enjoining plaintiff from prosecuting this action in Cook county, Illinois, until the further order of the Kansas court. This injunctional order was set forth by a plea in abatement filed in the instant suit, but upon motion of plaintiff was stricken by the trial court. Defendant argues that this action was reversible error, relying principally upon Allen v. Chicago Great Western R. Co., 239 Ill. App. 38. Most of the other cases cited by defendant involve the question of the equity power of a court and the propriety of its exercise under certain circumstances.

The Allen case was not an action under the Employers ’ Liability Act and Allen relied upon the principle of comity between the States to justify her action in suing in Illinois. Adeline Allen resided in Waterloo, Iowa, and on December 23, 1921, brought suit in the district court of the county where she resided for $2,900 as damages for personal injuries received at Waterloo, caused by the defendant’s train striking her; while this was pending, and over a year later, another lawyer filed suit in Cook county, Illinois, on the same cause of action to recover $40,000; the Iowa court issued a writ of injunction restraining the prosecution of the Illinois suit; our Appellate Court held that the filing of the Illinois suit on the identical cause of action while the first one was pending in Iowa constituted unwarranted and vexatious litigation, and as there was no sufficient reason in comity to ignore the judicial command of the sister State the plaintiff was relegated to her remedy in the Iowa court; and our opinion noted that the injunction was issued by the .court of the State in which plaintiff resided, where she already had a suit pending, where the accident happened and where the witnesses lived. In the instant case defendant operates a line of railroad in Cook county, Illinois, owns property, maintains offices and keeps regular employees and a staff of lawyers here; the suit was brought under the Federal Act and prior to the Kansas injunction.

As a general proposition the court first obtaining jurisdiction of a case may hold jurisdiction .to the exclusion of other courts having concurrent jurisdiction. Juhlin v. Hutchings, 90 Kan. 618; Wise v. Pacific States Life Ins. Co., 11 F. Supp. 895; The Salvore, 36 F. (2d) 712. Defendant cites Illinois Life Ins. Co. v. Prentiss, 277 Ill. 383, and Royal League v. Kavanagh, 233 Ill. 175, but these merely hold that an injunction restraining the prosecution of a suit in another jurisdiction should not issue unless it clearly appears that bringing the suit in a foreign State would result in fraud, gross wrong or oppression.

The' Federal Employers’ Liability Act (USCA— title 45, sec. 56) clearly makes it the duty of the Illinois court to try the case on its merits. It provides, among' other things, that a suit thereunder may be brought in a district court of the United States where the defendant resides, or in which' the cause of action arose, or in which the defendant is doing business when suit is commenced. The jurisdiction of the United States courts is concurrent with that of the State courts. In Taylor v. Southern Ry. Co., 350 Ill. 139, it was said that' a plaintiff to whom a right of action is given by the act has a right to bring his suit in either the Federal or State court, and that if he elects to bring suit in a State court it is the duty of that court, when its ordinary jurisdiction as prescribed by local laws is appropriate to the occasion, to take cognizance of an action to enforce a-right of recovery, arising under the act, citing Minneapolis & St. Louis R. Co. v. Bombolis, 241 U. S. 211, and Louisville & N. R. Co. v. Stewart, 241 id. 261.

The opinion in Mondou v. New York, N. H. & H. R. Co., 223 U. S. 1, upheld the constitutionality of the Employers’ Liability Act, and said: “We conclude that rights arising under the act in question may be enforced, as of right, in the courts of the States when their jurisdiction, as prescribed by local laws, is adequate to the occasion.” In Schendel v. McGee, 300 Fed. 273, the act was construed to give the employee the right to maintain an action for damages in the courts of the district where the defendant is doing business at the time suit is_commenced, and said: “It being the law, it is a court’s duty, where there is jurisdiction, to take and retain that jurisdiction and try the case. ’ ’ In Hoffman v. Missouri ex rel. Foraker, 274 U. S. 21, the suit was brought in Missouri under the Federal act to recover for the death of an employee of the Missouri Pacific Railroad through an accident occurring on its line in Kansas; the railroad is a Missouri corporation and the suit was brought in that State in a county traversed by the railroad and in which it had an office and an agent; the trial court supported defendant’s contention that it should have been sued in Kansas where the accident occurred and the plaintiff resided; the Missouri Supreme Court held against the trial court and the railroad company appealed to the United States Supreme Court. It was there held that as defendant was sued in a county in which it had an agent and operated its railroad, plaintiff could maintain his action in Missouri. In Roberts’ Federal Liabilities of Carriers (2nd ed.) vol. 2, p. 1842, the author says in substance that the provision of the act relating to the venue “is one for the benefit of the plaintiff, and it permits him to institute the action in whichever of the . . . designated places best serves his convenience.” One of these places is where the railroad operates. Plaintiff in the instant case alleges that defendant was operating a railway line extending into Cook county, Illinois.

The facts in Alford v. Wabash Ry. Co. (Mo.), 73 S. W. (2d) 277, are somewhat like those at bar. There the plaintiff, a resident of Illinois, where the accident happened, sued under the act in a circuit court in Missouri ; the defendant railroad company was an Indiana corporation doing business in Missouri; it secured an injunction from the circuit court of Morgan county, Illinois, against the further prosecution of the Missouri action and sought to have it abated. It was held that the right of the Missouri court to proceed attached before the injunction and that there was no rule that would require that court to discontinue the proceedings. Other cases to the same effect are Kepner v. Cleveland C., C. & St. L. Ry. Co. (Mo.), 15 S. W. (2d) 825; Frye v. Chicago, R. I. & P. Ry. Co., 157 Minn. 52; and Peterson v. Chicago, B. & Q. R. Co., 187 Minn. 228.

We hold in the instant suit brought under the Federal Employers’ Liability Act, under proper allegations giving the local court jurisdiction, and commenced prior to the injunctional order from the Kansas court, that such order is of no avail as restraining the local court from proceeding to try the cause upon its merits.

In the early morning of the day of the accident plaintiff as fireman, with engineer Hanson, was backing engine No. 1814 eastward from Burden, Kansas, over defendant’s single track, when it collided on a curve with No. 13, a westbound passenger train; the engineer and fireman of No. 13 and Hanson were killed; plaintiff was the sole survivor of the engine crews.

Plaintiff alleged that the servants in charge of both engines so negligently operated them as to cause the collision, and that engineer Hanson on the eastbound engine negligently failed to take a sidetrack five minutes in advance of the superior (having the right of way) passenger train No. 13.

Moline, Kansas, is about 28 miles east of Burden and at this place Hanson and plaintiff received orders to connect their engine No. 1814 onto the head end of a freight train going west. There is an elevation between these points, and plaintiff’s engine was to act as a helper for the westbound freight train over the grade. While on the way plaintiff was busy firing and paid no attention to the time or speed. He says he was too busy with his general line of work. Their orders were that when they arrived at Burden they were to uncouple the engine and return to Moline.

When the freight train stopped at Burden engine 1814 was cut off, switched over to a passing track and the train proceeded onward to the west; the rear light of the engine was lighted, it backed out and plaintiff boarded it and commenced firing. The engine was going eastward returning to Moline. Hanson, the engineer, inquired of plaintiff as to where they should meet westbound 13; this inquiry was apparently caused by the fact that, in violation of the rules, Hanson did not have his official time card with him; plaintiff got out his own and attempted to look at it but was “fire blind” and could not see the figures clearly. It is in evidence that after firing the light from the fire causes a fireman to become temporarily blinded. Plaintiff handed his time card to Hanson who noted that 13 was due at Grand Summit at 4:05 a. m., and after looldng at his watch remarked that it was 3 o’clock, giving them one hour to reach Grand Summit, a distance of 13 miles to the east; Hanson decided that they should take the siding at Grand Summit.

The only station between Burden and Grand Summit was Cambridge where there was a siding; when passing Cambridge plaintiff inquired of Hanson as to the time and after looking at his watch Hanson said it was 3:32; plaintiff then took ont his own watch, which showed that the time was 4:06; plaintiff says he had not looked at his watch before this as he was busy with his duties and had put on a lumber jacket, buttoning the collar into his shirt so that it was hard for him to get at his watch. There is no rule of the defendant road requiring the fireman personally to look at his watch at regular intervals, although the engineer and fireman are required to compare time with each other.

Plaintiff on discovering this discrepancy between the watches suggested that they stop at Cambridge to ascertain which watch was right, to which Hanson said that his own watch was right and plaintiff’s watch was wrong, as it had been hit by a shovel during the night. Plaintiff testified he had jerked out his watch as they were going westward and had hit the shovel handle pretty hard; that based on this, Hanson persuaded plaintiff that his watch was wrong; as plaintiff expressed it, “He (Hanson) talked me out of my own watch.” The engine proceeded on toward Grand Summit, Hanson sitting on the seat box and plaintiff firing ; going east it is upgrade from Cambridge to Grand Summit; plaintiff was down on the deck shoveling coal, Hanson was watching plaintiff work, and they were talking about the difference in time of their watches at the very moment of the collision with westbound 13; this happened about three miles east of Cambridge.

Defendant’s rules introduced in evidence prescribe that when there is no conductor the engineer is in full charge and responsible for the safety of the train; he must direct the fireman in the performance of duty and the latter is under the direction of the engineer. One of defendant’s witnesses testified that a fireman violates this rule if he refuses to follow the engineer’s orders.

The collision occurred on a curve with which Hanson was familiar; the vision was clear either way for from 2,000 to 2,500 feet; the backup headlight on engine 1814 cast a ray of light 1,000 to 1,500 feet; on dark nights headlights such as those on the two engines involved can be seen on a straight track two or three miles away.

The rules require engineers to look ahead and watch the track, and this is required even of an engineer of a superior train with the right of way. The duty to do this would be especially urgent upon rounding a curve, and yet the evidence shows that neither engineer reduced speed before the moment of the crash. Westbound 13 was traveling 33 to 35 miles an hour at the moment of the collision; the brakes were applied only a fraction of a second before the crash; the eastbound engine was traveling 18 miles an hour and the brakes were not applied at all. The rules also require engineers to sound a whistle going around curves. Hanson sounded no whistle and the only whistle from the other engine occurred about but a quarter of a mile east of the point of collision.

Another rule requires that an extra train, like engine 1814, must clear the track of opposing regular trains by not less than five minutes. Defendant’s trainmaster testified that under the rules it was Hanson’s duty to get off the main line five minifies before 13 was due to leave the station where the siding was.

Defendant argues that the trial court should have stricken the count of plaintiff’s declaration alleging that the servants in charge of both engines negligently operated them. The argument seems to be based upon the premise that the engineer of westbound 13 was under no duty to exercise any care to avoid injuring plaintiff; that his status as a fireman is like that of a trespasser who is at fault in failing to get off the track. This is not the law. The fireman is merely an assistant acting under the direction of the engineer, and from the character of his duties in keeping up steam by firing, it cannot be said that it is his paramount duty to be on the lookout all the time. As was said in St. Louis & S. F. R. Co. v. Bishard, 147 Fed. 496, “ Other duties of moment may have demanded his attention elsewhere.” Kierce v. Central Vermont Ry., Inc., 79 F. (2d) 198, held generally that rules for the protection of passengers on a train are also for the protection of the crews of the train. In Chicago, R. I. & P. Ry. Co. v. Wright, 239 U. S. 548, a rule provided that extra trains must protect themselves within the yards; the railroad company argued that this relieved other engineers from taking requisite precautions for avoiding a collision; that the engineer having the right of way could not be guilty of negligence with reference to the inferior engine. The Supreme Court did not agree with this but held that the question of the negligence of either or both of the engineers was one of fact for the jury to decide.

The questions of contributory negligence and assumption of risk were properly submitted to the jury. Defendant cites on the proposition of assumed risk the old case of Baltimore & O. R. Co. v. Baugh, 149 U. S. 368. This was long before the Federal Employers’ Liability Act, and was decided upon the rule that as the negligence of the engineer (the fellow servant of the injured fireman) caused the accident, hence under the fellow servant doctrine the fireman could not recover. This doctrine has since been abolished. 45 U. S. C. A. 51, cases under Note 312; Roberts Federal Liabilities of Carriers (2d Ed.), vol. 2, p. 1538; Devine v. Chicago, R. I. & P. Ry. Co., 266 Ill. 248.

Defendant seems to say that plaintiff should have actually known that Hanson’s watch did not correctly show the time. When plaintiff wished to take the siding at Cambridge, Hanson recalled to plaintiff that his watch had been damaged, and as plaintiff knew this to be a fact he was convinced that Hanson was right. The alternative to accepting Hanson’s statement would have been for plaintiff either to have overpowered Hanson and stopped the engine or to have jumped off. Wilson v. Chicago, B. & Q. R. Co., 317 Mo. 647, involved a situation much like that in the instant case. There an inferior train,- in violation of orders left a siding prematurely, colliding head-on with a passenger train; it was argued, as in the present case, that the same duty was imposed upon the fireman as upon the engineer to prevent the train from leaving the siding. The court at p. 669 said: “Under such circumstances, there were but two courses of action left open to the deceased fireman; either he must have wrested control of the engine from his superior, Engineer Barclay, by main force and violence or he must have deserted his post of duty in firing the engine and jumped from the engine. In our judgment, deceased was not called upon to take either such action in order to absolve himself from the charge of negligence on his part.” Other cases like that at bar are Hawthorne v. International-Great Northern R. Co. (Tex. Civ. App.), 63 S. W. (2d) 243, and St. Louis & S. F. R. Co. v. Bishard, supra. The court properly submitted to the jury the questions of negligence of both engineers, plaintiff’s assumption of risk and contributory negligence.

It was not reversible error to refuse defendant’s requested instruction 8, which in substance was that if plaintiff participated with engineer Hanson in violating the rule requiring the extra engine to be on the sidetrack five minutes before number 13 was due at that point, the verdict must be not guilty. This rule is necessarily directed to those having in charge the management and control of a train or engine and not to a subordinate employee; the instruction was not predicated upon any evidence that plaintiff participated with Hanson in violating the rule; he endeavored to persuade Hanson to take the safe siding. Other instructions given, especially defendant’s instructions 3, 25 and 26 virtually cover the same proposition as in the refused instruction. Moreover, it was inconsistent with defendant’s given instruction 27 and the interrogatory submitted by it which were to the effect that if the plaintiff was guilty of contributory negligence the damages should be diminished by the jury in proportion to the amount of negligence attributable to the employee. This is the provision in the Federal Act itself. It should be borne in mind that defendant’s rule 458 prohibits a fireman from operating an engine except with the consent of the engineer.

Defendant says the size of the verdict indicates that it was produced by passion and prejudice. After the collision plaintiff was found 15 feet from the track, with his head down between his knees; he was unconscious seven days and when he regained consciousness suffered intense pain; he was afflicted with motor paralysis, including his bowels and bladder; blood and water discharged from his ear; he was taken to various hospitals and a large number of X-rays were taken; he received various treatments while in the hospitals, including a puncture of the spine; the following May he was still in the hospital and a belt was prescribed for his back; he later received treatments from doctors at his home and was examined by doctors in Minneapolis in August, where he was advised to wear a neck brace to support his head; he has worn this' ever since except when in bed and when his wife shaves him; without it his head falls over to the left; he1 cannot dress or undress himself and his condition is gradually growing worse. We have only briefly outlined the story of his injuries. Defendant’s witnesses testified tending to corroborate plaintiff’s testimony as to his condition, but almost the entire story of plaintiff’s experience in hospitals and treatment by doctors was given by plaintiff himself. In January, 1936, he came to Chicago at the request of defendant and was examined by two of defendant’s physicians. Altogether between 24 and 36 X-ray pictures were taken of him, but at the trial none of these was introduced in evidence and there was no testimony whatever tending to contradict that of plaintiff as to his sufferings and physical condition. In fact he was not cross-examined on these subjects and no one gave any evidence tending to dispute plaintiff’s story in this regard. The parties stipulated upon the trial that plaintiff “was totally and permanently disabled from performing heavy manual labor such as is involved in the work of a railroad engineer or fireman.”

At the time of the trial plaintiff was 49 years old and held seniority rights as an engineer and fireman; his life expectancy was 21.63 years. Upon the hearing of defendant’s motion for a new trial the court found that plaintiff’s actual salary loss to the time of the trial was approximately $3,800; that based on the present cash value of future damages, if plaintiff worked continuously during the years of expectancy, he would as fireman receive something over $30,000, and as engineer over $40,000; the court held • that it would be fair to estimate this element of damage at $35,000, and added the loss of wages up to the time of the trial, $3,800, making a total of $38,800. In addition to this amount the court said plaintiff was entitled to. recover damages for pain, suffering and disability, and held that an additional amount of $20,000 would be just compensation for this and ordered a remittitur reducing the verdict to $58,800.

In most of the cases cited by defendant on the question of the amount of damages the injuries themselves were sharply disputed. In the instant case this is not true. Defendant introduced no evidence controverting the extent of plaintiff’s injuries, but stipulated that he was totally and permanently disabled from performing heavy manual labor. Under these circumstances we cannot say that the verdict as reduced is clearly excessive.

Upon the motion for new trial defendant’s counsel presented affidavits purporting to show newly discovered evidence. Persons who had observed plaintiff in the spring of 1936 said they had observed him at times when he was not wearing the neck brace, and had also observed him walking; photographs were presented supporting these statements. Plaintiff had testified that at times he could walk alone but not any distance, and certain of defendant’s witnesses testified that they had seen him walk for some distance on certain occasions. The newly discovered evidence did not contradict the evidence in the record as to plaintiff’s physical condition. Moreover, defendant’s doctors had examined him in Chicago only a few months before the trial, and if they had discovered anything tending to show a different state of facts than those claimed for him they would have so testified. The fact that they did not tends to corroborate plaintiff’s evidence.

In People v. Dabney, 315 Ill. 320, the characteristics of newly discovered evidence which will require a reversal are given. Among these are that it must appear to be of such conclusive character that it will probably change the result if a new trial is granted. Also, it must be such as could not have been discovered before the trial by the exercise of due diligence, and must not be merely cumulative to the evidence offered on the trial. The newly discovered evidence in the instant case failed to meet these requirements and the court properly denied the motion for a new trial.

The limitations of time and space do not permit us to comment on all the cases cited by respective counsel. They are many and show great diligence on the part of attorneys for both parties. We have contented ourselves with the affirmative reasons for our conclusion.

We hold that the superior court of Cook county had jurisdiction to try the cause, that the verdict is not against the manifest weight of the evidence, that no reversible errors occurred upon the trial, and that the verdict, as reduced by order of the court, is not excessive. The judgment is therefore affirmed.

Affirmed.

O’Connor, P. J., and Hatchett, J., concur.


text:
    Mid-City Trust and Savings Bank et al., Appellees, v. City of Chicago et al., Defendants. Appeal of George C. McCarthy, Appellant.
    Gen. No. 39,550.

      Opinion filed December 6, 1937.
    Joseph J. Sullivan, Jr., of Chicago, for appellant.
    Gustav E. Beerly, of Chicago, for appellees; George Gillette, John F. Diffenderffer, Jr. and John F. McCarthy, all of Chicago, of counsel.
   Mr. Justice McSurely

delivered the opinion of the court.

George C. McCarthy appeals from a decree (entered upon a master’s report) which denied him, an attorney’s first lien of $2,561.25 on an award in condemnation proceedings commenced by the city of Chicago.

The instant suit was brought by the Mid-City Trust & Saving's Bank, the present owner of the premises, and the Chicag’o Title and Trust Company, trustee under a trust deed conveying them. The complaint made defendants the city and a number of persons who it was thoug'ht might have claims. The city has indicated its willingness to abide by the order of the court with reference to the payment of the award. The amount of the award to be paid by the city is $9,254. Plaintiffs claim all of this and the decree in effect held with them. Defendant McCarthy claims an attorney’s lien on this fund in the amount indicated, and this is the only question involved in this appeal.

Plaintiffs claim all of the award by virtue of (1) a trust deed which, it is argmed, is an equitable assignment of all interest in the award; and (2) by reason of an instrument by which defendant is said to have subordinated his claim to that of plaintiffs.

In May, 1925, Giulio Petito and his wife acquired title to certain lots on Western avenue in Chicago. The Mid-City Trust & Savings Bank, now the owner, acquired title in August, 1932.

June, 1925, the city of Chicago commenced condemnation proceedings to take the east 17 feet of these lots for widening the street; the Petitos employed defendant as their attorney to represent them in the condemnation proceeding, agreeing orally to pay him as a fee for his services 25 per cent of any increase in the award and of any reduction in the assessment procured by him. April, 1928, defendant procured the entry of orders increasing the award and reducing the assessment in very substantial amounts, and in May he filed in the office of the recorder of Cook county a notice addressed “To whom it may concern,” stating that he claimed a lien upon the award for damages to the premises, describing them, for services rendered to the amount of $2,561.25, pursuant to an agreement with the Petitos, owners of the property; the notice purported to be given pursuant to the provisions of the act concerning attorney’s lien.

July 13,1928, final judgment was entered in the condemnation proceeding finding an excess in the award over the assessment of $9,254.

Subsequently the Petitos sought a loan upon the premises not taken by the condemnation proceeding for the purpose of erecting- a garage. The master found that Petito informed the bank from which the loan was sought (not the plaintiff) that he had no money with which to pay the assessment against the premises and would have to wait until the money was received from the award before he could pay it; that it was then agreed that the bank would make a loan of $25,000 and that the assessment would be paid out of the award, the balance of the award to be paid to the trustee to apply on the indebtedness.

• July 18th the trust deed to secure the loan was recorded, conveying to the Chicago Title and Trust Company, as trustee, the entire premises, including the east 17 feet taken by condemnation. The trust deed contained no words conveying any interest in the award. It is this conveyance which plaintiffs say amounts to an assignment of the Petitos’ interest in the condemnation award. The title to this 17 feet was then in the city and the purported conveyance of it was ineffectual and conveyed neither the land nor the award. Feldman v. City of Chicago, 363 Ill. 247.

The only language in the trust deed referring to the award is: “In case any part or parts of the mortgaged property, or any interest therein, shall be taken under any condemnation or eminent domain proceedings, or damages by reason thereof, the net amount of the compensation or damages realized therefrom shall be paid to the Trustee and shall be held and disbursed in the same manner as though realized from a foreclosure sale of such property, under the provisions hereof. ’ ’

Before making the loan, application by the lending bank was made to the Chicago Title and Trust Company for a guaranty policy; that company reported the recording of the claim by defendant of an attorney’s lien, and defendant was requested to execute a subordination agreement, to which we will subsequently refer. The owners and the bank making the loan, and the trustee, were fully informed as to defendant’s claim of a lien which could be enforced at any time by filing notice with the city, as the statute requires. Ch. 13, IT 13, Ill. State Bar Stats. 1935, § 1; Jones Ill. Stats. Ann. 9.13.

In Catherwood v. Morris, 360 Ill. 473, a decree was entered confirming a settlement between litigants; the following day notice was received by Morris of a claim of attorney’s lien; it was contended that the attorney’s lien did not extend to the property acquired in the settlement. The court said, “The statute gave the petitioner a lien to the amount of his claim upon the causes of action entrusted to him for collection (Baker v. Baker, 258 Ill. 418) and when the causes of action were finally realized upon by the acquisition of certain real and personal property, snch property represented the original complainants’ claims, and the attorney’s lien followed the claims into such property and the lien was impressed thereon. (Tracy v. Ringrole, 262 Pac. [Cal. App.] 73.) In equity the attorney’s lien extends to the proceeds into whosesoever hands such proceeds may come in the settlement. ’ ’ In Baker v. Baker, quoted in the opinion, it was held that the statute created an attorney’s lien and also provided for its enforcement, and that the service of the notice upon the judgment debtor1 has the effect of an assignment of an interest in the judgment. In Hawk v. Ament, 28 Ill. App. 390, an attorney sought to collect his fee from the assignee of a judgment of his client, the judgment creditor; his claim was sustained, the court holding that the interest of an assignee is limited by the equities of his assignor. See also Salem Trust Co. v. Manufacturers’ Finance Co., 264 U. S. 182.

We do not see how in justice the instant owners, the lending bank and the trustee could make an agreement of which the defendant knew nothing and which would have the effect of destroying his lien for attorney’s fees. We hold that it was necessary under the circumstances to procure the consent of defendant before the agreement in the trust deed with reference to the award could become effectual. Plaintiffs argue that by the so-called subordination agreement defendant consented to this and agreed that his lien for attorney’s fees should be subordinated to the lien of the trust deed to the Chicago Title and Trust Company.

Defendant is not claiming a lien on the real estate, only upon the award, and he contends that this subordination agreement referred only to the real estate and not to the award. When defendant signed this agreement, so far as the record shows, he did not know of the agreement between the owners and the other parties with reference to the disposition of the condemnation award.

Examination of the so-called subordination agreement discloses that it is predicated upon fictitious documents and is so full of mistakes that it might well be discarded as of no weight. For instance, it commences by describing a contract made by the Petitos touching the premises in question, describing them, and recorded in the recorder’s office on a certain day, giving- the document «number; this contract is said “to secure their contract” for $2,561.65 with interest. The record fails to show the existence of any such contract and on oral argument the attorneys said there was no such contract. The document proceeds to describe the trust deed to the Chicago Title and Trust Company as trustee, conveying “said premises,” evidently referring to the legal description previously given in the document. It says nothing about any award.

The document further proceeds to describe certain notes which it is said are held and owned by McCarthy, who desires to subordinate the lien of his trust deed securing these notes to the lien of the trust deed to the Chicago Title and Trust Company. The record fails to show any such notes or trust deed, and again counsel on oral argument stated there are no such notes or trust deed owned by McCarthy, and that the inclusion or reference to them in the document was a mistake.

The document further recites that in consideration of $1 McCarthy agrees that “the lien of the contract owned by said George C. McCarthy and of the trust deed securing the same shall be and remain at all times a second lien upon the premises thereby conveyed subject to the lien of the trust deed to said Chicago Title & Trust Company.” As we have said, there was no such contract as thus described nor any trust deed purporting to secure it.

There is evidence that defendant executed this document for the purpose of releasing his lien on the real estate and not on the award. It was to remove the objection made by the Chicago Title and Trust Company before issuing its guaranty policy. The guaranty policy itself only guarantees the trust deed as a first lien upon the real estate. Whatever effect may be given to this remarkable document, called a subordination agreement, we are of the opinion that all the circumstances show that it should be construed as releasing whatever the interest of defendant might be in the real estate and not in the award.

The chancellor overruled all exceptions to the master’s report, but prior to the entry of the decree defendant asked leave to file a petition in the nature of a supplemental answer, which was granted; in it, among other things, he asserted that on November 21, 1936, he served by registered mail on the city of Chicago a proper notice of his attorney’s lien, attaching a copy to his petition. Plaintiffs filed a motion to strike this- on the ground that an attorney’s lien is created only by serving of the statutory notice, and when thus created is not retroactive as of the date of the original contract of employment. The court sustained this motion to strike and entered a decree finding defendant to have a valid and subsisting attorney’s lien upon the condemnation award, subject only to the lien of the Chicago Title and Trust Company as trustee.

The provision of the attorney’s lien statute for the service of notice is for the protection of the judgment debtor and not for the benefit of the client. As was said in Baker v. Baker, supra, the statute creates a new and substantial right in favor of the attorney and 1 ‘ divests the client of substantial rights that he theretofore possessed.” The city is not complaining with reference to the notice to it and stands ready to pay the award as directed by the court. The fact that the considerable time which has elapsed since the making of the contract of employment and the service of notice has injured none of the parties, and as the condemnation award still remains unpaid, we do not see how plaintiffs can take advantage of any delay in serving the notice. The attorney’s lien statute does not limit the time within which notice must be served.

Plaintiffs’ complaint sought to determine the interests of all the parties in a common fund, namely, the condemnation award. All parties were already before the court. It was not necessary to make them parties to defendant’s supplemental petition.

For the reasons indicated the decree of the superior court is reversed and the cause is remanded with directions to give defendant George C. McCarthy a first or prior lien upon the condemnation award in the sum of $2,561.25.

Reversed and remanded with directions.

O’Connor, P. J., and Matchett, J., concur.