author: Mr. Justice Wolfe

text:
    Chicago Wood Piling Company, Appellee, v. H. T. Anderson et al., Appellants.
    Gen. No. 9,735.
    Opinion filed February 13, 1942.
    Charles H. Green, of Freeport, for appellants.
    Ascher & Ellis, of Freeport, for appellee.
   Mr. Justice Wolfe

delivered the opinion of the court.

The Chicago Wood Piling Company brought an action in the circuit court of Stephenson county, against H. T. Anderson, E. M. Bocho and Bocho Construction Company, asking for a lien on funds that was due from the county of Stephenson to Bocho and the Bocho Construction Company, for piling which they had furnished the said defendants in the construction of a road in Stephenson county, Illinois. Attached to the petition was an itemized statement of the material which was alleged to have been furnished by the plaintiff to one H. T. Anderson, a subcontractor of the defendants, Bocho and the Bocho Construction Company. The bill further alleged that all of the material so furnished was used by the defendants, Eocho and Eocho Construction Company, in the erection of a bridge which formed a part of the State highway in said county. They alleged that there was due and unpaid to the plaintiffs the sum of $538.76.

The defendants filed an answer to the complaint, and admitted that E. M. Eocho and the Eocho Construction Company were engaged in a general contracting business ; that they had a contract with Stephenson county to build one bridge; that they were without knowledge as to certain other allegations of the complaint to form the truth of said allegations. The case was tried before the court without a jury, and issues found for the plaintiff. An order was signed on the 2nd day of June, 1941, which found the issues in favor of the plaintiff, and judgment was entered in favor of the plaintiff, and against the defendants in the sum of $538.76 and costs of suit. It is from this judgment that the appeal is prosecuted.

Notice of appeal was filed in the circuit court of Stephenson county on the 20th day of June, 1941. Proof of service of notice of appeal was served upon the plaintiff on the same day. An appeal bond was filed and approved by the circuit court on the 27th day of June, 1941. The precipe for the record, by the defendants, was filed the same day. On the 8th day of August, the trial court extended the time for filing the record in the Appellate Court to the 3rd day of September, 1941. The report of proceedings was filed in the office of the clerk on August 25,1941. These dates are given because the appellee discovered that there had been a mistake made in the entry of the judgment, and on the 20th day of September,-1941, the appellee made a motion in the circuit court of Stephenson county for leave to amend the record, and for leave to file amendments in the Appellate Court. Notice of this motion was given to Charles H. Green, the attorney for the appellants. On the same day the record shows that all parties to the litigation were represented by their attorneys, and the court granted the motion to amend the record, and to file amendments in the Appellate Court. Thereupon, the same day the judgment record was amended and filed nunc pro tunc as of June 2, 1941, and was ordered to be incorporated in the amended record, and filed in the Appellate Court. So far as the record discloses, the (defendants) appellants did not object to this proceeding.

It is now contended by the appellants in this court, that the original judgment was a nullity, and that the trial court was without authority to amend the judgment of June 2,1941. In the case of Knefel v. People, 187 Ill. 212, the law is well stated relative to the court’s authority to amend a judgment, where they use this language: “The power of courts, whether of law or equity, to make entries of judgment or decrees nunc pro tunc in proper cases and in furtherance of the interests of justice, is one which has been recognized and exercised from ancient times and as a part of their common law jurisdiction. This power, therefore, does not depend upon statute — it is inherent. It rests partly upon the right and duty of the courts to do entire justice to every suitor, and partly upon their control over their own records and authority to make them speak the truth. 1 Black on Judgments, sec. 126.

‘ ‘ The law is well settled that a court is powerless to amend its final judgment and thereby correct judicial errors after the term at which it was rendered. It may, however, thereafter, upon notice to parties in interest, by order entered nunc pro tunc, amend or correct such judgment, when, by reason of a clerical misprision, it does not speak the truth. Freeman on Judgments, chap. 4; Church v. English, 81 Ill. 442; Becker v. Sauter, 89 id. 596; Tucker v. Hamilton, 108 id. 464.”

In the case of Quigley v. Quigley, 268 Ill. App. 130, the Appellate Court of the Third District cited with approval, Knefel v. People, supra, and held that under certain circumstances a judgment could be amended after the term of court has expired, upon notice to the parties in interest, by order entered nunc pro tunc, amend or correct such judgment, when, by reason of a clerical misprision, it does not speak the truth. Tucker v. Hamilton, 108 Ill. 464; Ives v. Hulce, 17 Ill. App. 30; Becker v. Sauter, 89 Ill. 596; Church v. English, 81 Ill. 442.

In the present case the usual procedure was followed, by giving notice to the opposing party that they intended to ask the court to correct the judgment order, nunc pro tunc, to comply with the actual facts, as presented by the record in the case. There were abundant facts contained in the record itself, on which to base the amendment, which the court ordered to be filed nunc pro time, as the date of the original judgment. It is our conclusion the court did not err in following this motion to correct the judgment order.

It is next insisted by the appellants that the court did not have jurisdiction of all the parties to the suit, as notice of the application for mechanics’ lien was not served on the proper parties, and therefore the judgment is a nullity. In the present case, the evidence clearly shows that the notice was served on Mr. O. G-. Hively, the county superintendent of roads of Stephenson county. The record further shows that, before any money could be paid out on this contract to Rocho, or the Rocho Construction Company, Mr. O. Gr. Hively must order the same paid and O.K. the checks. Mr. Hively testified that he, as superintendent of the highway, supervised the payments of money for all jobs, such as the present one. On Page 155 of the record, we find this question. “Do you know, Mr. Hively, whether at the present time there is money in excess of $538.76 in the hands of the County of Stephenson, which is due Bocho, subject to the order of court, being compensation for that bridge work and bridge job?” A. “Yes.” By Mr. Green, the attorney for appellants: “That is a question for the records, not the best evidence.” Whether the court treated this as an objection, or just a mere statement of the attorney, the record does not disclose, as there is no ruling of the court upon it. Q. “Have you paid out to Mr. Bocho all of his money on that bridge job?” A. “No, sir.” Therefore, it stands as undisputed testimony that at the time of the hearing there was money in the hands of the treasurer, that was due Bocho in excess of $538.76. The evidence also shows, without contradiction of any kind, that the appellee furnished all the material to H. T. Anderson, the subcontractor of Bocho and the Bocho Construction Company, and that all of this piling was used in the construction of the bridge in question, and that the Chicago Wood Piling Company has not been paid in full for the piling. There is really no dispute, as to any facts in the case. The fact that Bocho and the BochoConstruction Company had paid Anderson in full for the piling, has no bearing on the merits of this controversy.

The appellants contend that the suit was not properly started, because the lien was never perfected. They gave, as their reasons that the notice of claim for lien, filed by plaintiff, is fatally defective. The notice of lien and copy of complaint was served upon O. G. Hively, the county superintendent of highways of Stephenson county, Illinois. It is contended by the appellants that this was not a proper service, and was not in compliance with the statute. It appears from the appellants’ argument, that they think that the proper officer on whom notice should have been served, was the county treasurer of said county, as he is the man who has actual custody of the money, and pays it out. The evidence in this case shows that no money could be paid upon this bridge contract, unless the vouchers therefor, were approved by Mr. Hively, the county superintendent of highways. The purpose of the statutory notice is given the person who has charge of the fund, in mechanics’ lien cases, so that such person can protect himself from having to pay twice for the same work. We think that the notice served on Mr. Hively was sufficient, as he has charge of and control of the fund in question.

It is contended by the appellee that where a notice is served in a mechanics’ lien case, the question whether it was a proper notice, or whether it was properly served on the right officials, can be raised only by the party upon whom the notice is required to be served. In the case of First National Bank of Chicago v. City of Elgin, 136 Ill. App. 453, 468, this court had occasion to discuss the law relative to mechanics’ lien notices, and on page 468, we find the following language:1 ‘ The provision of section 23 of the lien law requiring subcontractors to notify the city officials of their claims before the money due the contractor is paid to him, or the bonds or warrants are delivered to him, is enacted for the benefit of the city, and to prevent any effort to impose a further liability on the city after it has paid its money or delivered up its bonds or warrants therefor. But the city does not complain here of any lack of notice. The contractors owe these subcontractors. The work and materials for which the subcontractors sought liens were upon the foundation of the improvement, and that foundation was laid according to the contract and was not defective. Why should the original contractors be heard to question the notice given by the subcontractors? The provisions of section 23 of the lien law were not inserted for the benefit or protection of the original contractors. We question whether they could be heard to make this defense against the subcontractors. Appellant stands in the shoes of the original contractors and has no greater rights than they. For these various reasons we conclude that the decision of the court below properly directed the payment of the subcontractors out of the fund remaining unexpended in the hands of the city.”

In the case of Backs v. Nelson Const. Co., 271 Ill. App. 137, the Appellate Court of the Third District said: “Equity will not suffer a wrong to he without a remedy, and it is held that the question whether notice served in a mechanics’ lien case is a proper notice or whether it was properly served on the proper officials can only he raised by the party upon whom the notice must be served.” Spalding Lumber Co. v. Brown, 171 Ill. 487. To the same effect is McMillan v. Joseph P. Casey Co., 231 Ill. App. 422. This case was carried to the Supreme Court, and is found in 311 Ill. 584. The Supreme Court did not pass upon the question of whether the notice of lien was proper, hut did affirm the judgment of the Appellate Court.

Our attention has been called by appellants to the case of Pirola v. W. J. Turnes Co., 238 Ill. 210. The Supreme Court there stated that the bill in question averred that the petitioner had given notice of his lien, as required by law, and that the answer of the defendants denied that there was any notice given. There was no proof of any notice having been given, and the lien claimant, having failed to make proof of notice, could not maintain his suit. Our attention has not been called to any case, where it is claimed the notice was defective that any one except the party upon whom the notice should have been served, can raise the question.

It is our conclusion that the notice was served upon the proper party, and even if it had not been, the appellants are not in a position to urge that question as a ground for reversal. The judgment of the trial court is hereby affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Sullivan

license: Public Domain

text:
    Nat Malnick and Mauray G. Malnick, Appellees, v. William Rosenthal et al., Defendants. William Rosenthal, Appellant.
    Gen. No. 42,111.
    Opinion filed February 20, 1942.
    Sabath, Perlman, Goodman & Rein, of Chicago, for appellant; Isidore Goodman, Theodore E. Rein and Raymond L. Perlman, all of Chicago, of counsel.
    Daniel A. Covelli, of Chicago, for appellees; Harry A. Goldsmith, of Chicago, of counsel.
   Mr. Justice Sullivan

delivered the opinion of the court.

This is an interlocutory appeal from an order granting a temporary injunction and from an order denying a motion to dissolve same.

On November 10, 1941, plaintiffs, Nat Malniek and Mauray Gf. Malniek, filed a complaint entitled “Complaint in Chancery for Rescission and Cancellation of Contract,” and on the same day procured the issuance of a temporary injunction without notice and without bond directed against the defendant William Rosenthal, restraining him from selling or assigning certain notes or making any effort to collect same, and from selling, assigning or in any other manner dealing with certain land until the further order of the court. On November 14, 1941, upon notice, defendant filed his motion to dissolve said injunction and the court having considered said motion entered an order directing plaintiffs to post an injunction bond of $5,000 by November 17, 1941, and denying defendant’s motion to dissolve the injunction upon the filing of such a bond. Plaintiffs filed their bond within the time allowed and defendant then renewed his motion to dissolve the temporary injunction, which motion was again denied.

The complaint alleges substantially that plaintiffs, who had long been engaged in the building construction business, and defendant, who had long been engaged in the business of buying and selling unimproved real estate, entered into a contract, a copy of which is attached to the complaint and made a part thereof, whereby plaintiffs in consideration of $22,000, payable by them $10,000 in cash and the balance in notes due over a period of 20 months from May 5, 1941, purchased from defendant an undivided one-half interest in three parcels of subdivision property located in the States of Illinois and Wisconsin and entered into a partnership agreement with the defendant for the purpose of selling said property. The complaint further alleges and the agreement between the parties sets forth that in connection with plaintiff’s purchase of • the one-half interest in said properties defendant represented to them as to one parcel of said property, title to which is held in trust by the Chicago Title & Trust Co., as trustee under its Trust No. 32435, that he was the sole beneficiary under said trust and the sole owner of all of said real estate, free and clear of any incumbrance and subject only to back taxes and special assessments, building restrictions and zoning ordinances; that as to the second parcel of said real estate, title to which is held in trust by the Elmhurst State Bank as trustee under trust agreement dated March 31, 1924, and known as Trust No. 101, defendant had a disputed interest in said property and that the Elmhurst State Bank had refused to accept the assignment of his beneficial interest; and that as to the third parcel, known as Lake Shangri-La Woodlands, a subdivision in the county of Kenosha, State of Wisconsin, defendant represented that he was the sole owner thereof subject to a first mortgage of $1,400 with interest at 6 per cent from July 29, 1940, with a provision for the release of lots in said subdivision upon the payment to the mortgagee of $50 a lot and that said property was also subject to a debt of $880 to the Leesley Nurseries and to unpaid taxes to date. These are the only representations contained in the written contract between the parties and the complaint makes no charge that any of said representations were untrue.

The complaint then charges that defendant also represented to plaintiffs “that all public improvements on said lhnd had been installed and paid for; that water, sewerage mains, electricity conduits and street paving had been installed on all said land and paid for and that the said land was then in readiness for the construction of homes upon said land; that the sewerage mains, water mains, electricity conduits and street paving had been installed and paid for and that all electrical conduits and sewerage mains were available for instant use and that all water mains were available for instant nse”; that defendant further represented that “there were liens on said lots for back taxes and that he . . . had made arrangements with the proper local authorities for the release of each lot from said lien, upon the payment of . . . $60.00 . . . upon each lot in full payment of said arrears in taxes”; and that “upon payment of said sum of . . . $60.00 ... on each lot, the said lot would be released from all further tax liens and a clear title granted to the prospective purchaser”; that “defendant represented to the plaintiffs that the building restrictions on a portion of the land herein described required that structures to be erected on said land should have a mim'rrmm value of . . . $5,000.00 . . . and that he, the said defendant, had arranged with the authorities in whose jurisdiction said land was situated to reduce the minimum restriction from . . . $5,000.00 to . . . $3,500.00 . . . ”; that “defendant represented to the plaintiffs that the building restrictions on a portion of the land herein described required that structures to be erected on said land should have a minimum value of . . . $7,500.00 . . . and that he, the said defendant, had arranged with the authorities in whose jurisdiction said land was situated to reduce the minimum restriction from . . . $7,500.00 . . . to . . . $3,500.00 . . . ”; and that plaintiffs relying upon said representations as being true, entered into the agreement with defendant, paid him $10,000 as provided in the contract, executed and delivered the notes called for by the contract and paid said notes as they became due up to and including October 5,1941.

The complaint then alleges that plaintiffs signed a lease for offices to be used by the copartnership; that “plaintiffs have become liable as partners on many obligations created by the defendant and as partners might become charged with equal responsibility with the defendant as copartners”; that the defendant’s representations with reference to the installation of and payment for improvements such as electric conduits, sewers, water mains and streets, with reference to existing agreements with the authorities for the payment of $60 on each lot for the release of the tax lien on such lot and with reference to the minimum value of structures to be erected on the land, were false and fraudulent and made with intent to deceive plaintiffs and to induce them to enter into the contract with the defendant and that the defendant knew that said representations were fraudulent; that defendant is in possession of the notes payable on and after October 5,1941, which were delivered to him by plaintiffs, and has threatened to sell or assign said notes to bona fide purchasers for value; that plaintiffs “are informed and believe” that unless defendant is restrained from selling and assigning said notes, they will be sold to bona fide purchasers for value; that plaintiffs have notified defendant of their election to cancel and rescind their contract, have demanded the return of all moneys paid thereunder and that defendant has refused to repay said money; that said contract having-been procured by fraud, is illegal and void and should be canceled; and that the court should enter an order restraining»defendant “from selling or assigning any of the notes executed by the plaintiffs in pursuance of the contract herein mentioned and restraining- the said defendant from obtaining- judgment on said notes until the final disposition of the issue herein created” and also “restraining him from selling any of the lots set forth in the said contract and from engaging in the sale or transfer of any such lots until the hearing on the merits of this cause.”

The complaint prayed that the contract between defendant and plaintiffs be declared to be illegal and fraudulent in law and that it be rescinded and declared null and void; that defendant pay plaintiffs the sum of $25,000 and any other sum found to be due and owing from the defendant, together with interest, and for other relief; that “this court issue an injunction restraining the said defendant from selling, assigning or hypothecating any of said notes”; and that “said injunction further restrain the defendant William Rosenthal, from selling, assigning or in any other manner dealing with any of the land embodied in the terms of said agreement.”

While many points are argued by defendant in his brief, we deem it necessary to consider only the question whether the facts alleged in plaintiffs’ complaint, if proved and not controverted, entitle them to the final relief prayed for.

It is fundamental that to entitle a plaintiff to relief by way of temporary injunction, his complaint must allege facts which prima facie give him the right to the relief prayed for on a final hearing’., “It is essential that the bill should make a prima facie case for final relief by alleging facts which, if proved and not controverted, will entitle the complainant to the relief prayed for.” Baird v. Community High School District, 304 Ill. 526.

In the recent case of Bundesen v. Lewis, 368 Ill. 623, the law applicable to a factual situation such as is presented here was clearly enunciated. In that case Dr. Bundesen entered into a written contract in April 1925, for the purchase of an interest in a block of property in Niles Center bounded on the south by Main street and he later acquired additional interests in said block. He continued to make payments on the purchase price of this property until the Fall of 1928, when such payments amounted to $52,681.25, including principal and interest. He made no further payments but filed a complaint for the cancellation of his contract of purchase, for an accounting and for the return of so much of the price of the real estate as he had paid. His asserted right to the relief sought was predicated primarily upon the alleged fraudulent misrepresentations made to him by the vendor’s agent, to the effect that Main street extended west beyond this property and that State bond issue route 58 from Elgin to Evanston, would be on Main street along the south side of the block of property in question. He claimed that in reliance upon the truth of these statements he was induced to sign the purchase contract. There the court said at pages 636 and 637:

“Dr. Bundensen was a resident of Chicago during all this period. He knew or should have known that by the use of the telephone or the mails he could learn from the department at any time whether the location of route 58 had been determined, and, if so, its course west out of Evanston. Dr. Bundesen was not an illiterate man, nor ignorant of public affairs. At the time of his purchase he occupied the important and responsible position of commissioner of health of the city of Chicago, was subsequently elected coroner of Cook county and at the time of the hearing before the master, was president of the board of health of Chicago. He had read a great deal in the newspapers about these bond issue roads prior to his purchase and he said the thing that attracted him particularly was that Governor Small was said to be utilizing these roads to further his political fortunes. Under these circumstances it can not be said that Dr. Bundesen had a right to rely upon the alleged declaration of Karambelas as early as April 9,1925, that Main street would be the route to connect Elgin and Evanston.
“As this court said in Dickinson v. Dickinson, 305 Ill. 521: ‘A party in possession of his mental faculties is not justified in relying on representations made when he has ample opportunity to ascertain the truth of the representations before he acts. When he is afforded the opportunity of knowing the truth of the representations he is chargeable with knowledge. If one does not avail himself of the means of knowledge open to him he cannot be heard to say he was deceived by misrepresentations. ’ Where no deceit has been practiced nor fraudulent misrepresentation made which ordinary prudence could not detect, the law will not aid one capable of protecting his own interests because he makes a bad or losing bargain. (Hustad v. Cerny, 321 Ill. 354; Johnson v. Miller, 299 id. 276.) There was no distinction here in the means of knowledge of any of these parties respecting the location of route 58. The information pertaining to it was readily available to any inquirer. Appellee’s claim that the representation that Main street extends west beyond this property, which the master found to be the representation of a material fact, influenced him, can scarcely avail him here, since he, in the summer of 1927, viewed the premises and thereafter not only continued his payments, but took over Kaplan’s interest. He must be held now to have waived any claim to a rescission of the contract on that ground.
“The conclusion is inescapable that no actionable fraud on the part of any of the appellants here was established by the evidence. ’ ’ .

Although there is force in defendant’s contention that many of the allegations of plaintiff’s complaint are uncertain, contradictory and mere conclusions unsupported by facts and although said complaint is characterized by evasiveness rather than by frankness and by the facts concealed rather than by those revealed, it will be assumed hereinafter in our discussion of the facts that same were properly alleged. In our consideration of the facts alleged in the complaint in the light of the Bundesen case, it must be borne in mind that plaintiffs were and are engaged in the building construction business, especially the building of homes, and that they had many years of experience in that line of work before they entered into the contract with defendant. It is readily apparent that their line of work necessarily made plaintiffs much more familiar with the matters involved in the alleged misrepresentations herein than was Dr. Bnndesen with those involved in his ease.

It should also be borne in mind that the contract between the parties involved three separate and distinct parcels of property. The record does not disclose where the first parcel is located, but it will be assumed from statements made in the briefs of the parties that it was in Elmhurst, Du Page county, Illinois. The second parcel is in Du Page county, Illinois. The third parcel is described as being in “Lake ShangriLa Woodlands, a Subdivision ... in the County of Kenosha, State of Wisconsin.” In stating the facts upon which they rely in their complaint to show their right to the final relief sought, plaintiffs made no attempt as to some of the charges contained therein to distinguish the particular parcel or parcels of land to which the facts alleged were applicable.

A brief analysis of the complaint will show its insufficiency. It is first charged that defendant fraudulently misrepresented to plaintiffs that “all public improvements on said land had been installed and paid for; that water, sewerage, mains, electricity conduits and street paving had been installed on all said land and paid for and that the said land was then in readiness for the construction of homes upon said land”; and that “all electrical conduits and sewerage mains were available for instant use.” The mere reading of these allegations demonstrates the absurdity of defendant making any such statements if they were not true or of plaintiffs relying upon them. The facts as to whether “all public improvements on these properties were “installed and paid for” were equally available to the parties and a single visit to said properties, which were readily accessible, would have disclosed immediately to the practiced eye of plaintiffs, who were experienced “home builders,” whether or not sewerage mains, water mains, electricity conduits and street paving had been installed, were available for instant use and were in readiness for connection with homes that might be constructed and, of course, it would not even take the practiced eye of an experienced' constructor of homes to discover whether or not the streets were paved.

It is next charged in the complaint that defendant represented to plaintiffs that “there were liens on said lots for back taxes ’ ’ and that he fraudulently misrepresented to them that he “had made arrangements with the proper local authorities for the release of each lot from said lien, upon the payment of . . . $60.00 . . . upon each lot in full payment of said arrears and taxes.”

Again, the fact as to whether defendant made any such arrangement with the “proper local authorities” concerning the release of the tax lien as to individual lots was equally available to the parties. A mere inquiry would have disclosed to plaintiffs whether or not any such arrangement had been made and plaintiffs knew or should have known that by the use of the telephone or the mails they could learn from the “proper local authorities” at any time whether defendant had made the alleged arrangement for the release of the tax lien.

It is then charged that defendant fraudulently misrépresented to plaintiffs that he had arranged “with the authorities” for a change in the building restrictions as to certain parcels of the land (without indicating which) to the end that structures of a lesser minimum value might be erected thereon. The fact as to whether or not any arrangements were made by defendant with “the authorities in whose jurisdiction said land was situated” for said change in building-restrictions was also equally available to plaintiffs and they could have readily ascertained by personal inquiry or by the úse of the telephone or mails whether or not such arrangements had been made.

It is on the foregoing allegations of the complaint that plaintiffs primarily predicate their right to final relief in this cause and we are impelled to conclude that no case has been made by said complaint to entitle plaintiffs to any of the relief prayed for therein. No other conclusion is possible if we adhere to the rule enunciated by the Supreme Court in the Bundesen case that “if one does not avail himself of the means of knowledge open to him he cannot be heard to say he was deceived by misrepresentations.” In the instant case, as in that case, there was no distinction in the means of knowledge of the parties concerning the matters alleged to have been misrepresented and the information pertaining to same “was readily available to any inquirer.”

Since plaintiffs’ complaint did not make out a prima facie case for the final relief they sought, they were not entitled to a temporary injunction with or without notice. In this view of the record it becomes unnecessary to consider other points raised on this appeal.

The orders of the circuit court granting plaintiffs the temporary injunction and denying defendant’s motion to dissolve same are reversed.

Orders reversed. ■

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


author: Presiding Justice Huffman.

text:
    People of the State of Illinois, Defendant in Error, v. Hugo Mattei, Plaintiff in Error.
    Gen. No. 9,662.

      opinion filed January 14, 1942;
    rehearing denied February 27, 1942.
    Pence B. Orr, for plaintiff in error; James J. Barbour, of counsel; James E. Burke, State’s Attorney, for defendant in error.
   Opinion by

Presiding Justice Huffman.

“Not to be published in full.”


text:
    People of the State of Illinois, Defendant in Error, v. Dennis Kelly, Plaintiff in Error.
    Gen. No. 9,682.
    opinion filed January 14, 1942;
    rehearing denied February 27, 1942;
    Harold Levy, for plaintiff in error; Wm. Scott Stewart, of counsel; „ James E. Burke, State’s Attorney, for defendant in error.
   Opinion by

Presiding Justice Huffman.

“Not to be published in full.”


author: Justice Dove.

text:
    Walter Johnson, Administrator of Estate of Doris Johnson, Deceased, Appellee, v. Francis S. McKnight and Morton Salt Company. Francis S. McKnight, Appellant.
    Gen. No. 9,733.

      opinion filed January 14, 1942;
    rehearing denied February 27, 1942;
    modified opinion filed March 26, 1942.
    Carl A. Swenson, for appellant; Frank E. Maynard, for appellee.
   Opinion by

Justice Dove.

“Not to be published in full.”


author: Presiding Justice Scanlan.

text:
    Nathan Gordon, Appellant, v. Henry M. Peters and Edward Gregory, Defendants. Henry M. Peters, Appellee.
    Gen. No. 41,474.
    opinion filed February 10, 1942.
    Helm an & Silverman and Benjamin A. Sapoznik, for appellant; Benjamin A. Sapoznik, of counsel; John A. Bloomingston, for appellee.
   Opinion by

Presiding Justice Scanlan.

“Not to be published in full.”


text:
    Herbert H. Nabers, Appellee, v. Beryl Jacobson, Appellant.
    Gen. No. 41,933.

      opinion filed February 10, 1942.
    Myer H. Gladstone and Ward Swalwell, for appellant; Bobert M. Woodward and Robert J. Spahr, for appellee.
   Opinion by

“Not to be published in full.’’


author: Justice Friend.

text:
    Wimp Packing Company et al., Appellees, v. Elgy Wimp, Appellant.
    Gen. No. 41,546.
    opinion filed February 10, 1942.
    William L. Kelley and M. Mayhall Smith, for appellant; Joseph P. Hector, for appellees.
   Opinion by

Justice Friend.

“Not to be published in full.’’


text:
    Liberty National Bank of Chicago, Trustee, Appellee, v. Montgomery J. Atkinson, Appellant.
    Gen. No. 41,653.
    opinion filed February 10, 1942.
    Montgomery J. Atkinson, pro se, Jesmer & Jesmer, for appellee; Julius Jesmer and Harold Perry Cohen, of counsel.
   Opinion by

Justice Friend.

“Not to be published in fuU.’ ’


text:
    August Gross et al., Appellees, v. Village of Niles et al., Appellants.
    'Gen. No. 41,664.
    opinion filed February 10, 1942;
    rehearing denied February 25, 1942.
    Henry L. Wells, for certain appellant; Maloney & Wooster, for certain other appellant; Herman & Pollak, for certain other appellant; Henry L. Wells, Charles C. Wooster, Harold L. Summerfield, Edward M. Herman and B. L. Pollak, of counsel; David H. Kraft, Clarence W. Shaeffer and George F. Rutledge, for appellees; David H. Kraft, of counsel.
   Opinion by

Justice Friend.

“Not to be published in full.”


text:
    Goldie Buehler, Appellee, v. Albert C. Buehler, Appellant.
    Gen. No. 41,682.
    opinion filed February 10, 1942.
    Vernon R. Loucks and Adelor J. Petit, Jr., for appellant; Jacob G. Grossberg and Harry May, for appellee.
   Opinion by

Justice Friend.

“Not to be published in full.’’


text:
    Carl Roehri and Marie Roehri, Copartners, Trading as Federal Die Casting Company, Appellees, v. William Schwalge, Trading as Reclaimo Manufacturing Company, Appellant.
    Gen. No. 41,699.

      opinion filed February 10, 1942;
    rehearing denied February 25, 1942.
    Blake C. Smith, for appellant; Winston, Strawn & Shaw, for appellees; Douglas C. Moir, of counsel.
   Opinion by

Justice Friend.

“Not to be published in full.’’


text:
    Goldie Buehler, Appellee, v. Albert C. Buehler, Appellant.
    Gen. No. 41,708.
    opinion filed February 10, 1942.
    Vernon R. Loucks and Adelor.J. Petit, Jr., for appellant; Jacob G. Grossberg and Harry May, for appellee.
   Opinion by

Justice Friend.

“Not to be published in full.’’


text:
    Goldie Buehler, Appellee, v. Albert C. Buehler, Appellant.
    Gen. No. 41,709.

      opinion filed February 10, 1942.
    Vernon E. Loueks and Adelor J. Petit, Jr., for appellant; Jacob G. Gross-berg and Harry May, for appellee.
   Opinion by

Justice Friend.

“Not to be published in full.”


author: Justice Sullivan.

text:
    Bessie Simon, Appellant, v. Paula Balasic and Alfred Balasic, Appellees.
    Gen. No. 41,847.
    opinion filed February 10, 1942.
    Jacob Levy, for appellant; Edward MeTiernan, of counsel; Max M. & Samuel Grossman, for appellee; Sid Mogul, of counsel.
   Opinion by

Justice Sullivan.

“Not to be published in full.”


text:
    Louise M. Ziebell, Appellee, v. Town of Bremen, Appellant.
    Gen. No. 41,958.
    opinion filed February 10, 1942.
    Arthur H. Grosskopf, for appellant; Francis A. Harper, for appellee.
   Opinion by

Justice Sullivan.

“Not to be published in full.”


author: Justice Matchett.

text:
    Bertha Hess et al., Appellees, v. Aquitania Apartments Company et al., Appellants.
    Gen. No. 42,148.
    opinion filed February 13, 1942;
    rehearing denied March 2, 1942.
    Jones, Mulroy & Staub and Howard D. Moses, for appellants; Don Kenneth Jones, Ernest F. Staub and Howard D. Moses, of counsel; Ringer, Reinwald & Sostrin, for appellees; Philip E. Ringer and Morris Sostrin, of counsel.
   Opinion by

Justice Matchett.

“Not to be published in full.”


text:
    Jean H. Waxenberg, Appellant, v. Ethel G. Brown et al. (Mighell, Allen, Matthews and Jordan, and David J. Peffers, Appellees).
    Gen. No. 9,698.
    opinion filed February 13, 1942.
    George D. Carbary and New-hall & Givler, for appellant; Matthews, Jordan & Dean and David J. Peffers, for appellees; Everett Jordan, David J. Peffers and Robert J. Janda, of counsel.
   Opinion by

Presiding Justice Huffman.

“Not

to be published in full.”


text:
    Maria W. Borman, Appellant, v. Walter P. Oetzell et al., Appellees.
    Gen. No. 9,716.
    opinion filed February 13, 1942.
    Robert W. Seherman and Hubert Lee Steed, for appellant; Werner H. Sommers, of counsel; Robert M. Woodward, Robert J. Spahr, Joseph Sam Perry and Hadley & Leren, for appellees.
   Opinion by

Presiding Justice Huffman.

“Not to be published in full.”


text:
    Town of the City of Galesburg, Knox County, Illinois, Appellee, v. Town of Kewanee, Henry County, Illinois, Appellant.
    Gen. No. 9,740.
    opinion filed February 13, 1942.
    James N. Cummings, for appellant; Jerry A. Harn and William Richardson, for appellee.
   Opinion by

Presiding Justice Huffman.

“Not to be published in fuU. ’ ’


author: Justice Wolfe.

text:
    Joseph Kuhajda, Jr., Appellee, v. Chicago, Rock Island and Pacific Railway Company, Appellant.
    Gen. No. 9,692.
    opinion filed February 13, 1942.
    Snapp, Heise & Snapp, for appellant; Dorr anee D. Snapp, William M. Garvey and Milton V. Thompson, of counsel; Faulkner & Nicholson, for appellee; James W. Faulkner and Dale G. Nicholson, of counsel.
   Opinion by

Justice Wolfe.

“Not to be published in full.”


text:
    Ida Schwaan, Appellee, v. Eugene F. Schwaan, Jr. et al., Defendants. Eugene F. Schwaan, Jr., Appellant.
    Gen. No. 42,174.
    opinion filed February 20, 1942.
    Bell, Boyd & Marshall, for appellant; Victor M. Harding, Jr., of counsel; Hershenson & Hershenson, for appellee.
   Opinion by

Presiding Justice Scanlan.

“Not to be published in full.”


author: Mr. Justice Dove

text:
    Henry Logemeyer et al., Appellants, v. Fulton State Bank, Appellee.
    Gen. No. 9,704.
    Opinion filed January 27, 1942.
    Rehearing denied March 25, 1942.
    Ramsay, Bull & Tost, of Morrison, and McMahon & Poole, of Fulton, for appellant.
    Franklin J. Stransky, of Chicago, for appellee.
   Mr. Justice Dove

delivered the opinion of the court.

Appellee bank was closed by the auditor of public accounts on September 24, 1932 and reopened on November 19,1932. In order for it to reopen, the capital stock was reduced from $75,000 to $50,000, other adjustments were made in the capital structure, and 1186 depositors signed instruments identical except as to the amount of the deposits, the date and names and delivered the same to a committee known as “Citizens Committee for Reorganization of Fulton State Bank,” who in turn delivered them to the representative of the State Auditor then in charge of the affairs of the bank, who, upon permission being granted to reopen the bank, delivered them over to appellee. The instrument so executed by appellant, Henry Logemeyer, is as follows, vis:

“Know all men by these presents, That I, Henry Logemeyer of the City of Fulton, County of White-side, State of Illinois, do hereby nominate and appoint the Fulton State Bank of the City of Fulton, State of Illinois, (representing the Depositors of the Fulton State Bank of Fulton, Illinois, and known as the Reorganization Executive), to be my true and lawful Attorney, and to represent me in any and all proceedings concerning the affairs of said Bank; whether in law, equity, or in any other manner, and more particularly in the reorganization of the said Bank, and do hereby authorize and empower my said Attorney to arrange for and adopt any plan it may deem best for the conserving of the interests of the Depositors of the said Bank and the assets of the said bank; and
“I hereby further authorize and empower my said Attorney herein to use and expend any part of 40% of any deposit or deposits standing to my credit for such purpose; the said sum to be devoted to and be used in the participation of a proportionate share in certain assets of said Bank set aside for the purpose of effecting a guaranty of the remaining deposits and other liabilities of said Bank, hereby giving and granting unto my said Attorney full power and authority to sign, seal, execute; receipt for and deliver any and all instruments that may be deemed necessary to carry out the power herein conferred and. granted.
“In witness whereof, I have hereunto set my hand and affixed my seal at Fulton, Illinois, this 17 day of October, 1932.
Amount Amount of-Deposit Waived
Checking Account Savings $ 80.39 $ 32.16 Account 1516 Certificates of Deposit 100.00 40.00 Total 180.39 72.16 Henry Ten Boer 39.69
Witness Henry Logemeyer”

Under pressure from the auditor to settle with the depositors who had signed the power of attorney, the bank, late in 1937, paid a large number of them 55 per cent of the 40 per cent, exacting from each a complete and final release of the bank. 137 of the depositors refused to make such a settlement and release, and instituted a suit at law in the circuit court of Whiteside county against the bank to recover the full 40 per cent. The bank filed an answer denying liability and filed a counterclaim setting up the power of attorney as a defense, but admitted liability for 55 per cent of the 40 per cent. The cause on the counterclaim was transferred to the equity side. Upon the hearing, it appeared that 55 of the plaintiffs had accepted the 55 per cent of the 40 per cent of their deposits, whereupon the court said they were deemed to be in the same position as having been dismissed as plaintiffs in the case. At the conclusion of the hearing, the chancellor entered a decree dismissing the respective complaints of each of these 55 plaintiffs, found for the bank as to the remaining plaintiffs, except as to the 55 per cent of the 40 per cent of their several deposits, enjoined all the plaintiffs and their attorneys from further prosecuting their respective complaints at law, and adjudged all the costs against all the plaintiffs. This appeal is to reverse that decree.

Appellee filed a motion to dismiss the appeal for alleged insufficiencies in the abstract and the notice of appeal. The motion was taken with the case. The abstract (page 58) shows: “175-180 (referring to the pages of the record as indicated on page 1 of the Abstract) Notice of Appeal and Proof of Service thereof filed April 4, 1941.” The notice of appeal is entitled: “Henry Logemeyer, et al., Plaintiffs — Appellant, vs. Fulton State Bank, Defendant — Appellee. General No. 10349 at Law.” It is signed: “Ramsey, Bull & Tost, McMahon and Poole, Attorneys on behalf of Henry Logemeyer, et al., Plaintiffs.” It is claimed by counsel for appellee that the quoted words in the abstract are merely an index referring to pages of the record,- and that it is insufficient because it does not name and designate the parties in the same manner as in the trial court, as required by rule 33 of the Supreme Court; that the abstract shows the decree is predicated solely on the counterclaim in equity, yet the notice of appeal is entitled in the suit at law; that the causes of action were separate and that appeals could only be at the instance of each individual plaintiff, and that the name of each plaintiff must appear in the notice of appeal; that inasmuch as several of the plaintiffs accepted payment, they were eliminated and could not be injured or aggrieved by the decree, and that only such persons as are injured or aggrieved by the decree have any right to appeal; that “et al” in the notice of appeal does not refer to all plaintiffs remaining in the suit, because it cannot be assumed that some of them did not settle before the notice of appeal was filed and that the abstract does not show when the notice of appeal was filed.

We are not compelled to resort to the record to ascertain the contents of the notice of appeal, for appellee has set ont and quoted the parts of it objected to in its motion. It purports to be on behalf of all the plaintiffs, which of course includes those dismissed from the case by the trial court. The fact that the court dismissed a number of the plaintiffs from the case did not preclude them from joining in this appeal. It is to be observed they were not dismissed on their own motion. If they considered they were aggrieved by the decree and the action of the court in this respect, whether they were so aggrieved or not, makes no difference in their right to 'appeal. They had the right to test that question by joining in the appeal. The notice of appeal indicates they exercised that right. The abstract plainly refers to the notice of appeal. Under that reference and the notice of appeal, we have no room to interpret either of them otherwise than as showing the appeal is'by all the plaintiffs. The abstract discloses on the first two pages that there were 137 plaintiffs, all of whose claims were identical except as to the amount. This sameness is nowhere controverted. To require each of them to take a separate appeal or to file a separate notice of appeal or to name each individual in the notice of appeal, would only impose a useless burden on appellants and on this court, with benefit to nobody.

It is not contended the notice of appeal was not served or filed in apt time. It is obvious that proof of service could not be made until after service was had. The abstract shows the decree was entered, on January 7, 1941. Service of the notice of appeal must necessarily have been on or before April 4th, the date of proof thereof, which is within the required time. "To dismiss the appeal for the alleged insufficiencies would be highly technical, and would defeat the announced purpose of section 4 of the Civil Practice Act [Jones Ill. Stats. Ann, 104.004], which provides the act shall be liberally construed, to the end that controversies may be speedily and finally determined, according to the substantive rights of the parties. Under rule 38 of the Supreme Court the abstract will be taken as sufficient unless the opposite party shall file a further abstract making necessary additions or corrections. The opposite party cannot obtain the dismissal of an appeal except for flagrant disregard of the rule. There is no such flagrant violation here. (People ex rel. Sandberg v. Grabs, 373 Ill. 423; Noe v. Moseley, 377 Ill. 152.) Dahm v. Estate of Giroux, 294 Ill. App. 550, and Department of Finance v. Bode, 376 Ill. 374, where the abstract did not present the issues or the nature' of the judgment, and other material facts, have no application here. The suit was at law. Transferring it to the equity side of the court in the course of the proceedings, was merely a procedural step. We know of no authority which holds that such a step must appear in the title of the case as abstracted, and such a requirement would have no basis in logic or precedent. The abstract sufficiently and substantially complies with rule 33 and the motion to dismiss the appeal is denied.

On January 21, 1936, the chief bank examiner wrote appellee as follows, viz:

“We desire at this time to bring up for discussion, the matter involved in the settlement with your creditors to enable your bank to re-open subsequent to suspension of business in November of 1932. We have before us a copy of the Waiver Agreement executed by depositors under the terms of which your Corporation was given Power of Attorney to represent said depositors in making such adjustments as would enable the Bank to resume business.
“In accepting and exercising this Power of Attorney your Bank unquestionably assumed a position of trust, which has resulted in a substantial accumulation of funds that clearly belong to said depositors. We believe that your Corporation should determine and declare the extent of this trust and formulate plans for the discharge of same. We shall, therefore, request that this matter be taken up by your Board, with a view toward determining accurately the extent of your obligation, and file with this Department, a declaration as to the extent of same, advising us as to the course of action you intend to pursue.”

A prior communication from the auditor to the same effect had been received by the bank, and subsequent reports of examination of the bank continued to mention the matter. On January 8, 1937, the chief bank examiner sent appellee his report of the examination of appellee bank made at the close of business on November 9, 1936 and in the course of his letter, accompanying a copy of that report, said:

“From figures obtained at this examination, we have recapitulated the adjustment effected at the time of your reopening on November 19th, 1932, as well as the earnings, profits and recoveries accumulated by your bank since that date. We have done this with a view toward arriving at a figure that would represent a fair settlement with certain creditors who waived 40% of their claims against your bank at the time of its closing, September 23, 1932.
“We are mindful of the fact that your management is desirous of reaching a determination in this respect and discharging the trust involved in the power of attorney under the terms of which the depositors’ waivers were applied.
“Inasmuch as a five-year period will have elapsed since this compromise was effected on November 19, 1937, we believe that by that time recoveries can, in all probability, be completed and that discussion can be undertaken leading to an agreement between your institution and this department as to the final settlement that should be made with creditors who waived 40% of their claims. Before undertaking such discussions, however, we should like to have you check our figures hereinbelow set forth as follows:
Original Adjustment
Asset Elimination $334,189.64 $
Provided by:
Depositors’ 40% Waiver 263,955.15
Capital Reduction 25,000.00
Surplus Reduction 22,500.00
Undivided Profits Reduction 22,734.49
$334,189.64 $334,189.64 Stockholders Capital Accounts provided 21% of correction
Operations prom 11-19-1932 to 11-9-1936 Net from operations $ 28,641.00
Bond Profits 10,032.00
Recoveries 85,756.00
124,429.00
Charge Offs 17,723.00
Net after Charge Offs $106,706.00
Market & Recoverable Value of Assets written down $ 82,586.90 Book Value of Assets written down 50,445.67
Anticipated Recoveries from Assets written down 32,141.23
Total Earnings, Profits,
Recoveries & Potential
Recoveries to 11-9-36 $138,847.23”

In May 1937, the directors called a meeting of the stockholders to consider and take action in the matter, and on August 5th, following, the bank sent the following letter to each of the depositors who had signed the power of attorney, vis:

“On or about November 15, 1932, you and other depositors of this Bank signed a Power of Attorney (hereinafter referred to as a waiver) authorizing the Bank to represent you in its reorganization and for that purpose to use and expend 40% of any deposit then standing to your credit on the books of the Bank.
“Through such cooperation of the depositors the' Bank was reopened for business on November 19, 1932, and the remaining 60% of your deposit became immediately available for your use. The Bank has ever since successfully operated and served the community.
‘ ‘ To facilitate the reopening the value of certain assets of the Bank were either wholly or in part charged off on its books. To offset such charge-off your waiver was used. Since then these assets have been carefully administered by the Bank to the end of realizing from them the greatest amount recoverable in the judgment of the officers and directors of the Bank. The amount of such recoveries can now be determined, but not withstanding the diligence used in liquidation they are less than the total amount of deposits waived by the waiver signers.
“After careful consideration of the equities involved, the directors and stockholders of the Bank with the approval of the Auditor of Public Accounts of the State of Illinois, have authorized disbursement, in final settlement to each waiver signer, of a sum equal to 55% of the amount waived by such waiver signer. Such payment will include not only the pro rata share of each waiver signer iii the recoveries realized from the assets, which were charged off, but also includes a pro rata distribution to the waiver signers of the net profits realized by the Bank in the period from its reopening to June 30, 1937. Such payment, plus the 60% of your deposit made available to you upon the reopening of the Bank, amounts to 82% of the entire' amount on deposit to your credit, immediately prior •to the reopening. In consideration of such payment each waiver signer will be required to sign a complete
and final release of the Bank from any further liability in respect of the amount of the deposit so waived by such signer.”

Appellants claim they were induced to sign the power of attorney by statements of certain of the officers of the bank made at meetings of the depositors to the effect that 40 per cent so waived would be repaid by the bank, and by a statement in a letter from the depositors’ committee, selected at one of such meetings, to this same effect. The trial court excluded this testimony. Error is assigned on this ruling, but as we view the situation, it is not necessary to consider that matter. The full and complete answer to the contentions of appellee is that it in no way disputed the assertion of the auditor, repeatedly made, that the bank assumed a position of trust in accepting and executing the power of attorney and that the funds accumulated thereby clearly belonged to the depositors.

Appellee recognized that by the action of its depositors, it had been able to resume business on November 19,1932. It was hopelessly insolvent. The record shows that appellants and the other depositors furnished 79 per cent of the total amount required to resume business. The $70,234.49 representing the remaining 21 per cent, was obtained by reducing the capital, surplus and undivided profits accounts of the bank. The examination of the auditor disclosed that the action of the depositors in making it possible for appellee to resume business resulted in net earnings and recoveries from November 19, 1932 to November 9, 1936 of $138,847.23, which is more than 52 per cent of $263,955.15, which sum represented the total amount of money belonging to the depositors, which was used in November 1932 to entirely eliminate certain assets which the bank held and to depreciate the book value of certain bonds which were then being carried by the bank. The record shows these bonds were depreciated $282,126.31. In its letter of August 5, 1937, following the stockholders meeting, appellee stated that its offer to pay 55 per cent of the 40 per cent of each deposit not only includes the pro rata share of each such depositor in the recoveries realized from charged off assets, but a pro rata distribution of the net profits realized by the bank from its reopening on November 19,1932 to June 30,1937. Appellee’s conduct discloses that it never considered the $263,955.15 which it actually received from its depositors as an absolute and unconditional gift. If it concedes that 55 per cent of the 40 per cent belongs to the depositors, the whole 40 per cent belongs to them and there is no reason advanced by appellee why this is not true.

If the bank is not financially in a position to pay the amounts now, it should not be released from liability to pay the amounts over and above the 55 per cent of the 40 per cent, as and when its financial condition will permit payment of the balance. In our opinion, appellee is a trustee and is obligated to return to those appellants who have not settled their claims, the full amount of their deposits when and as soon as it can be done, without hazard to the safety of the bank. If this can be done, now, the decree should so provide. If not, the decree should make proper provision for payment thereof in the future.

Appellee claims that under People v. Wiersema State Bank, 361 Ill. 75, and City of Marion v. Sneeden, 291 U. S. 262, future earnings of a bank cannot be pledged to pay certain depositors. Those holdings relate to general initial deposits in the usual course of business, and have no application to situations like the instant case where the effect of the transaction was a loan of funds already on deposit, and not an initial deposit to be secured in preference to other creditors. In the case here, the loan was for the bénefit of all the depositors and ■ creditors of the bank. Brown v. Bradford, 103 Iowa 378, holding that future earnings of a bank cannot be subjected to claims of certain obligations without action by the stockholders, cannot be invoked here, because the reorganization plan, including the powers of attorney filed with the board of directors, as well as the offer to pay 55 per cent of the 40 per cent of the deposits, was all passed upon and adopted by the stockholders.

The 55 appellants who settled their claims with appellee during the pendency of the proceedings in the lower court, have not shown or urged any reason why they were not properly dismissed from the suit and we consider the appeal as abandoned by them and the portion of the decree which dismissed the respective complaints of these 55 plaintiffs, is affirmed. In all other respects, it is reversed and the cause is remanded to the circuit court with directions to determine whether appellee can return to the other appellants the full amount of their deposits without hazard to appellee at this time, and then to enter a decree in conformity with the views herein expressed.

Reversed and remanded with directions.


author: Mr. Presiding Justice Huffman

text:
    In re Alleged Insanity of Helen Calhoun Cash.
    Gen. No. 9,734.

      Opinion filed February 13, 1942.
    Rehearing denied March 25, 1942.
    Henry W. Dieringer, of Chicago, for appellant.
    Charles Gr. Seidel, State’s Attorney, and Irving B. Campbell, of Chicago, for appellee; W. Ben Morgan, Special Assistant State’s Attorney, of counsel.
   Mr. Presiding Justice Huffman

delivered the opinion of the court.

It appears that Helen Calhoun Cash on April 28, 1938, was adjudged insane by the county court of Monroe county, Florida, and committed to the asylum. This hearing apparently followed a temporary incarceration in jail in that State. Following this, she sent a rather disconnected and unintelligible telegram to her sister, Dr. Henrietta Calhoun Horner, of Albany, New. York, requesting that she come to Florida at once. The sister and Miss Keeler, a friend of Mrs. Cash, went to Florida, where they succeeded in securing the release of the person of Mrs. Cash and returned with her to Chicago, on or about May 3, 1938. On the night of their arrival in Chicago, they registered at the Stevens Hotel. On the next day, Mrs. Cash was removed to the Parkway Sanitarium in Chicago. On advice of a doctor, she was removed from the Parkway Sanitarium to Resthaven Sanitarium in Elgin, in Kane county. She was accompanied by her sister, Dr. Horner, Mr. McConnell, a friend, and another doctor. Here she remained until May 19, 1938, when a petition was filed in the county court of Kane county alleging her insanity. Subsequently a hearing was conducted before the county court, by way of commission. The commission found the patient to be insane, whereupon, she was committed to the Eesthaven Sanitarium. Thereafter and on September 1, 1938, a petition on her behalf was filed in the county court of Kane county attacking the jurisdiction of that court; alleging that she was a resident of the county of Cook; and that she was not “found” in Kane county within the meaning of the word as used in the statute. Upon hearing, the county court of Kane county dismissed the above petition. An appeal was taken from this order to the circuit court of Kane county. On a hearing before the circuit court, the petition was dismissed. An appeal was taken from that order to this court, where the judgment of the circuit court was reversed pro forma and the cause remanded because of the failure of the appellee to file briefs, pursuant to the rules of this court. Subsequently, the petition in amended form, was again heard by the circuit court of Kane county, where the circuit court found that the county court of Kane county had jurisdiction in the cause; that the proceedings were lawful; that Helen Calhoun Cash was properly “found” in Kane county within the meaning of the statute, and denied the prayer of the amended petition. It is from this judgment that this present appeal is prosecuted.

It appears that Mrs. Cash resided in the State of Texas for some years prior to the time in question, and that subsequent to her residence in Texas, she lived in Florida. Her husband, who was deceased, had been a vice-president of the Standard Oil Company of Indiana. Apparently their actual domicile was subject to change. However, it appears that they owned a home in this state, although during trips to Illinois, she lived at Hotels in Chicago.

It does not appear that any force or trickery was used in taking her from the Parkway Sanitarium to the Resthaven Sanitarium in Elgin. Her mental condition was such as to require constant attendance. She states that she did not like the institution in Chicago in which she was first placed, but found the Resthaven Sanitarium to be a very nice place. Here, she was permitted to go down town in Elgin in company with an attendant. She had been at this institution for approximately two weeks prior to the proceedings had in this case. Her sole contention is that the court lacked jurisdiction to commit her, claiming she was not found in Kane county within the meaning of that word as used in the statute.

Section 3 of the act in question (Lunatics — ch. 85, sec. 3, Ill. Rev. Stat. [Jones Ill. Stats. Ann. 77.003]) provides that, when any person shall be, or supposed to be, insane, any reputable citizen of the county in which such patient resides or is “found” niay file a statement with the clerk of the county court for an inquest as to the sanity of such person.

The words of a statute are to be construed in the sense in which they best harmonize with the subject of the enactment, and the object the legislature had in view. So accordingly, the construction ought to be with reference to the object to be accomplished or attained by the act, and the words used should be construed and interpreted in a manner most agreeable to such object and intention.

It is perhaps in the interpretation of general words and phrases that the principle of adapting the meaning thereof to the subject matter in reference to which the words are used, finds its most frequent application. ■ It is generally found that words or expressions of such character are considered more or less elastic and admit of restriction or expansion to suit the subject matter with regard to which they are used.

Mental infirmity admits of a wide variety of conditions, and of varying degrees of care, restraint and supervision, depending upon the individual case. Here, appellant apparently had no one to look after her other than her sister, Dr. Horner of Albany, New York, and acquaintances of previous years. The proper restraint of an alleged lunatic is of vital concern to the public generally. It has been said that such a proceeding was on behalf of the public, and that no one is wholly a stranger thereto. People v. Janssen, 263 Ill. App. 101. The fact that such proceedings are usually instituted upon the initiative of a member of the family, by no means tends to alter the purpose and design of the statute as to the rights of the general public in such cases. The interest of the petitioner in a case of this character is but negligible and when an inquest touching upon the sanity of a person is once begun, the interest of the petitioner becomes subordinate to that of the public.

Lunacy statutes should be liberally construed to the effect that no insane person may be permitted to re- ■ main at large if the necessity of the case requires they should be restrained.

The court which conducted the proceedings had nothing to do with appellant’s coming to Kane county. She was present in that county, present at the inquest, and determined unfit to be at large. A person may be found elsewhere than in the place where he resides. The statute provides for an inquest wherever the patient may reside or is found.

In view of the foregoing observations as to the purposes and intent of the act in question, as well as its intended operation, the court is of the opinion that Mrs. Cash was found within Kane county within the meaning and intent of the word “found” as used in the statute, and that the county court of said county had jurisdiction of her person. The judgment is therefore affirmed.

Appellee filed motion to dismiss the appeal which was taken with the case. Since the judgment is affirmed, it has not been deemed necessary to consider the motion.

Judgment affirmed.


text:
    Arthur Korngabiel, Appellee, v. Custer L. Fish et al., Defendants, Clarence E. Spicer, Appellant. C. J. Dunham, Appellee.
    Gen. No. 9,723.
    Opinion filed February 13, 1942.
    Beliearing denied March 25, 1942.
    March & Bossiter, of Chicago, for appellant; Benjamin F. March, Lyle H. Bossiter and W. D. Sellers, all of Chicago, of counsel.

      Rathje & Woodward, of Wheaton, and Schwartz & Fried, of Chicago, for appellee; Bernard Allen Fried, of Chicago, of counsel.
   Mr. Justice Wolfe

delivered the opinion of the court. •

Arthur Korngabiel started a suit in the circuit court of Du Page county, against Custer L. Fish and others to foreclose a trust deed on property situated in Downers Grove, Du Page county, Illinois. On motion of the plaintiff, C. J. Dunham was appointed receiver and proceeded to collect the rents from the property described in the complaint, which is a dwelling house estimated to be of the value of $1,500. The original complaint alleged that Clarence E. Spicer claimed some interest in the property by virtue of tax deeds; that the exact interest was unknown to the plaintiff, but that they were subordinate to the rights of the plaintiff under his trust deed. Spicer appeared and filed a motion to dismiss paragraph 14, of the complaint, as being indefinite and not properly stating facts relative to his tax title. The motion was set for hearing on April 18, 1941. On that date the plaintiff, upon his own motion, dismissed the complaint as to Clarence E. Spicer, and all other tax deed holders.

On May 9, 1941, Clarence E. Spicer presented his petition alleging that he is the owner of the fee title to the property described in the complaint; that his title is separate and adverse to that of the mortgagors and their grantees; that he derived title from Henry M. Kenny in May 1938; that through mesne conveyances, this chain of title dated back to the county clerk’s deed to Olive M. Schultz (Kenny’s grantor) in October 1932. The petition further alleges that Schultz Tax and Title Service is Spicer’s agent to manage and operate the real estate, and that this agent leased the property to Edward Bunting in 1938, which tenant was in possession of the property at the time the complaint was filed. The petition also alleges that Spicer and his grantors have been in possession of the property continuously since the year 1932. Further allegation is made that C. J. Dunham was appointed receiver on December 6, 1940; that the tenant was not a party defendant to the complaint; that no notice for the appointment of a receiver was served upon either Spicer, or his agent, Schultz Tax and Title Service, and no summons has ever been served upon either of them; that the original summons issued in the case on November 26, 1940, was returned to the clerk of the court on March 11, 1941, and noted as never delivered to the sheriff; that Spicer was named as a defendant in the complaint, but upon plaintiff’s motion, the complaint was dismissed as to this petitioner; that the receiver is in possession and collecting rents from the tenant, Edward Bunting; that the court has no jurisdiction of the property of this petitioner in an action to foreclose a mortgage and the receiver is therefore wrongfully withholding possession from petitioner.

The petitioner asks leave to file his petition instanter; that a rule be entered upon the plaintiff and the receiver to answer; that the receiver he ordered to file an account of his receipts; that the receiver pay the rents collected to petitioner; that the receiver be ordered to desist from further collection of the rents and to relinquish possession to petitioner. The. petition is under oath.

The plaintiff resisted the application of Spicer to file this petition. On May 9,1941, the case was argued before the court, but no evidence was heard. The defendants did not file any answer to appellant’s petition. The order entered by the court is as follows: “On motion of March & Rossiter solicitors for Clarence E. Spicer for leave to file petition of Clarence E. Spicer and this matter having been duly continued to this day and the court having heard arguments of counsel and now being fully advised in the premises, doth hereby order, That leave be and the same is hereby granted to said Clarence E. Spicer to file his petition instanter and upon hearing of further argument, It is further ordered that the prayer of said petition be and the same is hereby denied.” It is from this order that Clarence E. Spicer has perfected an appeal to this court.

The appellee insists that the order appealed from is not a final order, or judgment and therefore not appealable. They have filed a motion in this court to dismiss the appeal. The motion was taken with the case. We think that the order was final, as to the rights of the appellant to intervene in the suit, and was therefore an appealable order. The motion to dismiss the appeal is denied.

The record shows that the appellant was made a defendant in the original foreclosure suit, and entered his motion to dismiss paragraph 14, of the complaint, as it did not state sufficient facts relative to his tax title. Before this motion was passed upon, the plaintiff dismissed the suit, as to appellant, and the other tax holders. It has been frequently held that a complainant retains the absolute control of a suit at discretion, and may dismiss it at any time before the decree is actually rendered, and where the purchaser at a tax sale is made a party defendant to a bill to foreclose a trust deed, the only decree which a court may render in his favor, is to order that the plaintiff pay the amount legally due him within a definite period, and in default of payment, that the hill be dismissed, as to said purchaser, and the plaintiff may dismiss the bill, as to him, either before, or after the decree, without affecting his rights. There is no question but that the plaintiff had the right to dismiss the suit, as to the tax title claimants.

It is insisted by, the appellant that the court erred in not granting them relief under their petition. With this contention we cannot agree. It will be observed that this suit is to foreclose a trust deed. The appellant’s claim is based entirely upon their tax title not obtained through the mortgagee or the mortgagor. In the case of the Prudential Ins. Co. of America v. Hoge, 359 Ill. 36, the Supreme Court has stated definitely who are the proper parties to a bill to foreclose a trust deed or mortgage, and use this language: “The rule in Illinois is, that where a party does not claim title through or under either mortgagee or mortgagor he is neither a proper nor a necessary party to the foreclosure proceeding and should be dismissed from the suit. ’ ’ (Gage v. Perry, 93 Ill. 176.) In Whitaker v. Irons, 300 Ill. 254, we said: “The only proper parties to a bill to foreclose a mortgage are the mortgagor and the mortgagee and those who acquired rights under them subsequent to the mortgage.”

The appellant and other tax title claimants were not proper parties to the suit. The court had no authority to adjudicate any of the rights of the parties, except the mortgagor and the mortgagee, or others claiming some right under one, or the other. Technically, it was an error for the court to permit the petition to be filed, but he found that the petitioner was not entitled to any relief under said petition. The appellant, in his first paragraph of his Brief and Argument states: “This appeal is brought by the true owner of the real property involved, who seeks to have the possession of that property restored to him together with the recovery of the past rents wrongfully collected by the appellee.” The appellant’s statement shows that he was attempting to adjudicate his title in the foreclosure proceedings. This, he could not do.

We think the trial court properly found that the appellant was not entitled to any relief under his petition, and the order appealed from is hereby affirmed.

Affirmed.


author: Mr. Presiding Justice Hayes

text:
    Wilhelmina Boehne and Adolph Boehne, Minor, by Wilhelmina Boehne, His Mother and Next Friend, Appellant, v. Board of Trustees Firemen’s Pension Fund of Springfield, Illinois, Appellee.
    Gen. No. 9,305.
    Opinion filed February 24, 1942.
    C. H. Jenkins and Harold M. Olsen, both of Springfield, for appellant.
    Hugh J. Graham, Jr., of Springfield, for appellee.
   Mr. Presiding Justice Hayes

delivered the opinion of the court.

This is an appeal from an order of the circuit court of Sangamon county denying a writ of mandamus, and dismissing petitioner’s petition. There is an agreed statement of facts. One of the petitioners was Wilhelmina Boehne, the widow of a deceased, retired fireman. The other petitioner was Adolph Boehne a minor, under the age of sixteen, the son of said retired fireman. Herman Boehne, a retired fireman, had served on the Springfield Fire Department for more than 20 years, the last five of which had been continuous. On the 31st day of July, 1929, he voluntarily retired from the Fire Department and thereafter having attained the age of fifty years, he applied for and was awarded his pension from the respondent, the Board of Trustees Firemen’s Pension Fund of Springfield, Illinois. The amount of his pension was seventy dollars ($70) per month computed on the basis of half the amount of salary which he received as fireman at the time of his retirement, pursuant to provisions of sec. 7, ch. 24, p. 564, Firemen’s Pension Fund, Ill. Rev. Stat. 1941 [Jones Ill. Stats. Ann. 100.278]. After his retirement and while he was receiving the said pension, he married the petitioner Wilhelmina Boehne. As issue of said marriage the petitioner Adolph Boehne was born. After the death of Herman Boehne, the petitioner herein made application to the Board of Trustees Firemen’s Pension Fund of Springfield for the pension as provided in said Firemen’s Pension Act. The petitioner was denied the pension by the respondent board and filed their petition for writ of mandamus in the circuit court praying said court to issue a writ of mandamus against the respondent compelling the payment to petitioner of the pension. Thereupon the respondent filed a written motion to dismiss the petition and on January 2,1941 the court entered an order denying the writ of mandamus dismissing the petition. The petitioner elected to stand by their petition, refused to plead and perfected their appeal.

The claim of petitioner was founded on one paragraph of sec. 7, ch. 24, Ill. Rev. Stat. 1941 [Jones Ill. Stats. Ann. 100.278], paragraph 924, which is as follows: “After the decease of such fireman, his widow, minor natural child or children, under sixteen years of age, his dependent natural parent or parents, if any surviving him, shall he entitled to the pension provided for in this Act, but nothing in this or any other section of this Act shall warrant the payment of any annuity to any widow of a deceased fireman after she shall have remarried.”

Petitioners claim that section seven of the act provides a separate and distinct pension for widows and minor children of deceased firemen independent of any other section of the act, and that a reasonable construction of section six and seven, shows an expressed legislative intent that each is a separate and distinct act in itself neither of which is dependent on the other for effective operation. Petitioners further contend that it creates two distinct classes of dependences entitled to a pension.

Under section five of the act, provision is made that a fireman shall be entitled to a pension if he become physically or mentally, permanently disabled while in the performance of his duty. Section seven of the act makes provision for a pension for a fireman who has served 20 years of which the last five years shall be continuous, and has arrived at the age of 50 years. Section six of the act provides for certain benefits for the widow and minor children or dependent parents of fireman (1) who die from any cause while in the service (2) who die from any cause during retirement on account of disability or (3) who die during retirement after 20 years of service and while in good standing, as provided for in this act. In each of these cases, the widow, while unmarried, shall receive $45 a month and each child $8 a month until it reaches the age of 16. In this section, it is expressly provided that no pension shall be allowed to the widow of such deceased fireman or to the children of such widow who has married such fireman subsequent to the date of his retirement with pension, under the provisions of this act. It is further provided in this section that if the deceased fireman shall leave no widow or natural child or children surviving him, but leave a dependent natural father or mother then said Board of Trustees shall direct the payment from said pension fund, to such dependent father or mother, the sum of $25 to each one monthly; provided that it shall be proved that the deceased fireman at the time of his death was the sole and only support of such parent or parents.

The general scheme of the act seems to be that section five makes a provision covering the situation for disabled firemen receiving disability while in service, whereas section seven provides for retirement after 20 years of service, the last five of which are continuous; and for a pension upon attaining the age of 50 years. Section six covers benefits to the dependents of firemen in case of death of (1) any fireman who dies in service; (2) any fireman who dies during retirement on account of disability, and (3) any fireman who dies during retirement after 20 years’ service as provided in this act. Petitioner’s contention that section seven is complete in itself and not dependent in any manner upon the provisions contained in section six is not tenable, for nowhere in section seven is the amount to be given to the widow or child stated but this is covered by the language, “shall be entitled to the Pension provided for in this Act,” and the only place that this provision for dependents is made in the act is in section six, so of necessity section seven has to be read and construed in conjunction with section six. It is to be noted that the language used by the legislature is “this act” rather than “in this section.” The act provides for three classes of cases on the death of a fireman leaving surviving dependents. Section six refers to the widow and children of any fireman dying under all of the three classes.

Petitioners contend there is an additional class namely, where a fireman dies after 20 years of service, which they treat as a separate and distinct case from that created by section seven which is 20 yea'rs of service, the last five of which are continuous and upon attaining the age of 50. They base their position on the language used in section six as follows: “Or during the retirement after twenty years’ service and while in good standing as provided for in this Act. ’ ’

We think the proper construction of this clause is that it refers to retirement as covered in section seven by reason of the language, “as provided for in this Act,” and that reading the act as a whole there is only one retirement after 20 years of service, and that is the retirement provided for in section seven.

The provisions of a Pension Act should be examined in their entirety to determine the legislative intent. In Armour Grain Co. v. Pittsburgh, C., C. & St. L. R. Co., 320 Ill. 156, on page 159, the court said: “In construing a statute, it is the duty of the court to read the entire statute and from the words used therein by the legislature determine the legislative intent in enacting the same.” In doing this it readily appears that the widow and children of pensioner under section five are covered by section six; also that the widow and children of a fireman who is a pensioner under section seven on his death are likewise covered by section six. Section six blankets all cases coming under either five or seven, as far as the widow and children are concerned on the death of the pensioner. There is some confusion in that legislature tacked on the extra paragraph in section seven which refers to the widow, minor natural child or dependent natural parents when it was already covered in section six. It seems legislature just stated it the second time unnecessarily. The express language used in this paragraph is the same as in section six in reference to the widow not marrying; the child being under 16 years of age; the essential difference being that in this paragraph there is no express reference to a marriage subsequent to the date of his retirement, but a reasonable construction of both section six and seven is that on reading them together, section seven refers to six by reason of the language “shall be entitled to the pension provided for in this act,” and that six refers to both five and seven by reason “provided however, that no pension shall be allowed to the widow of such deceased fireman or to the children of such widow who has married such fireman subsequent to the date of his retirement with the pension under the provisions of this Act.”

It is not reasonable that the legislature intended to make any distinction between the widow who marries a fireman after his retirement and retires on a pension at the arrival of 50 years of age after 20 years of service of which the last five years were continuous,— and the widow who marries a fireman after his retirement on account of the disability received while engaged in his line of duty.

To hold the construction contended for by the petitioners would do violence to the entire act, while to treat the extra paragraph in section seven as surplusage does not violate the plain legislative intent.

We are of the opinion that the circuit court of Sangamon county properly denied the writ and dismissed the petition and that the judgment of the said court should be affirmed.

For the reasons herein stated said judgment is hereby affirmed.

Judgment affirmed.


text:
    Libby Lyons et al., Appellants, v. County of Morgan, State of Illinois, Appellee.
    Gen. No. 9,309.

      Opinion filed February 24, 1942.
    Thomson & Thomson, of Jacksonville, for appellants.
    Oscar C. Zachary, of Jacksonville, for appellee.
   Mr. Presiding Justice Hayes

delivered the opinion of the court.

This is a suit brought by Libby Lyons, and 16 other plaintiffs against Morgan County seeking to recover unpaid amounts under the “Belief for the Blind” Act. These claims accrued during the period from July 1, 1933 to March 1, 1936; during which time Morgan County paid no blind pensions to any one. Also included in the suit as plaintiffs are the administrators of the estates of three deceased pensioners. While the suit was pending, two other pensioners died and their legal representatives were substituted. The defendant, in its answer, pleaded the five-year statute of limitations to that portion of the claims accruing more than five years prior to the bringing of the suit.

A stipulation was entered into covering all the material facts of the case, and the cause was tried on the facts included within the stipulation without any additional proof.

A decree was entered holding that portion of the claims that accrued within five years of the filing of the suit to be valid, — excepting those of the administrators of intestates who had died prior to the bringing of this suit, and entered judgment thereon.

We have a statute entitled, “An Act for the Relief of the Blind,” which provides for the county to pay annually a fixed sum for the benefit of the blind. Chapter 23, sec. 279, Ill. Rev. Stat. 1941 [Jones Ill., Stats. Ann. 18.071].

Appellants state, in their brief, that the only question involved in this case is whether upon this set of facts, appellants’ action is upon a written contract “or other evidences of indebtedness in writing” within the meaning of section 16 of the statute of limitations. Appellants contend that the ten-year statute of limitations applies, and not the five-year statute.

This question was recently before this court in the case of People ex rel. Powles v. County of Alexander, Illinois, 310 Ill. App. 602, which was decided adversely to appellants’ contention. This court therein stated: “The obligation of the county to pay and the right of the plaintiffs to receive the benefits sought to be recovered in the present action arise by virtue, of the statute. It has been held that where liability results from a statute, an action to enforce such liability is a 'civil action not otherwise provided for’ within the meaning of section 15 of the Limitations Act, and is therefore governed by the five year statute of limitations. (Parmelee v. Price, 208 Ill. 544; Blakeslee’s Warehouses, Inc. v. City of Chicago, 369 Ill. 480.) These decisions are decisive of the question and the trial court should have applied the five year statute of limitations and limited the plaintiffs’ recovery to unpaid benefits which had become due within five years next preceding the filing of suit. ’ ’

Causes of actions arising on statutes or ordinances are not written contracts within the meaning of the Limitation Act. Rath v. City of Chicago, 207 Ill. App. 117; N. K. Fairbank Co. v. City of Chicago, 153 Ill. App. 140; Parmelee v. Price, 208 Ill. 544; Blakeslee’s Storage Warehouses, Inc. v. City of Chicago, 369 Ill. 480.

It is our opinion that the five-year statute of limitations controls, and that the decree of the circuit court is correct.

The decree of the circuit court of Morgan county is affirmed.

Decree affirmed.


author: Mr. Justice Fulton

text:
    Rose Holderman et al., Complainants, v. Moore State Bank et al., Defendants. D. M. Moore et al., Appellants, v. Rose Holderman et al., Appellees.
    Gen. No. 9,295.
    Opinion filed February 24, 1942.
    Hawbaker & Sievers, of Mouticello, for appellants.

      N. E. Hutson, of Monticello, Meyer & Franklin, of Champaign, and Howard Reed, of Monticello, for appellees.
   Mr. Justice Fulton

delivered the opinion of the court.

The Moore State Bank of Monticello, Illinois, closed its doors and ceased doing business on the 20th of February, 1933, and shortly thereafter two representative suits were filed by creditors seeking to enforce the stockholders’ constitutional liabilities both of which causes were consolidated in one suit. One F. L. Borton was appointed receiver of the stockholders’ liability suit and on May 15, 1937, judgment was obtained against most of the stockholders except those who had paid their liability prior to the entry of such judgments.

This appeal arises out of a petition for refund of capital stock assessments paid by certain stockholders claiming they had overpaid the liability for the period they held stock. The petition sets forth that all of the persons named therein were contemporaneous stockholders for the same period running from November 25, 1903 to December 15, 1926, and that the total amount of stockholders’ liability paid by them amounted to $17,502; that the claims allowed during such period amounted to $25,428.46. That the liquidating receivers of the Moore State Bank have paid the depositors thereof the sum of 63 cents on each dollar due amounting in all to the sum of $16,019.93; that after the application of said sum upon the total amount of claims presented and allowed there still remained due and unpaid on said claims the sum of $9,408.53; that because of the payment by the stockholders of said period to F. L. Borton, receiver, of the sum of $17,502, they have paid a sum in excess of all claims accruing against said bank for the period from November 25, 1903 to December 13, 1926, amounting to $8,093.47.

The petition further alleges in detail the settlement by way of compromise of all the judgments against the said petitioners, orders of court being secured authorizing such settlements and the amounts paid in satisfaction of the judgments. It further asserts that none of said adjustments were made by the receiver because of the insolvency of the parties but because it was inequitable to collect the judgments in full. Also that the receiver had used some coercion in collecting the judgments. It further alleges that petitioners constitute all the contemporaneous stockholders who owned stock in the Moore State Bank for the period specified, except one estate which had disclaimed any interest in any refund which might be due.

The petition prays for an order directing the receiver to refund pro rata the distributive share by them overpaid, amormting to the sum of $8,093.47.

The receiver filed a motion to dismiss the petition and to strike the same from the files and upon hearing the motion to strike and dismiss petition was allowed. An appeal from that order is now presented to this court.

The appellants first insist that the court should not have entertained the motion to strike because it sought to bring out matters not stated in the petition for refund and in effect was an answer and not verified; that a motion to dismiss being in the nature of a demurrer challenges only the sufficiency of the pleading and should point out specifically where the pleading is insufficient in law; that the motion in this case sets out matters “dehors” the record and should therefore be overruled. Civil Practice Act, sec. 45(1) [Jones Ill. Stats. Ann. 104.045] Flanagan v. Madison Square State Bank, 302 Ill. App. 468. However, the petition itself refers frequently to ex parte petitions filed in the cause and also to certain records therein. The motion to strike also refers to certain records in the stockholders ’ liability case and on the hearing of the motion the receiver introduced in evidence certain other ex parte petitions concerning the settlement of the judgments against appellants, but there was no mention of any matters or things outside the records and files in the said cause.

In line with paragraph 4 of article 1 of the Civil Practice Act [Jones Ill. Stats. Ann. 104.004], stating that the act should be liberally construed to the end that controversies may be speedily and finally determined according to the substantive rights of the parties, and the rule that statutes in derogation of the common law must be strictly construed shall not apply to this act, we do not feel that the court erred in proceeding to a further hearing of the motion.

The primary question of law raised on the motion is whether the appellant stockholders who held their stock in the Moore State Bank contemporaneously for the same period of time paid to the receiver in the stockholders’ liability case sums aggregating more than the amount of unsatisfied liabilities of said bank to its creditors which accrued during such period of time, can at this stage of the liquidation recover back on a petition for a refund, the difference between what they have paid and what they contend they should have paid.

In Golden v. Cervenka, 278 Ill. 409, it was held that the constitutional liability of a stockholder to the bank’s creditors is for all liabilities accruing while he or she remains such stockholder to the extent of his stock. Also Sanders v. Merchants State Bank of Centralia, 349 Ill. 547. Thus where a defendant in a stockholders’ liability suit can show by way of defense that there has been paid an amount in excess of the claims which accrued while he was such stockholder, he is under no liability to the bank’s creditors. Schwartz v. Broadway Trust & Savings Bank of Aurora, 291 Ill. App. 460.

In the case of People ex rel. Barrett v. Farmers State Bank of Irvington, 371 Ill. 222, where there was á surplus left in the hands of the receiver after all the principal of all claims against the bank was paid, and the question arose as to whether the receiver should first pay interest on the claims of the creditors before making distribution to the stockholders, it was recited that those stockholders who overpaid the liability of the period for which they held stock had rebated to them such excess.

In the present case only 70 per cent of the claims of the creditors has been paid as shown by the face of the petition, and a different situation arises from that of the Irvington Bank case. In Burket v. Reliance Bank & Trust Co., 306 Ill. App. 563, one Croft filed a petition asking that the judgment against him for stock liability be satisfied and further collection enjoined on the ground that the total amount of unsatisfied liabilities of the bank had been collected from other stockholders for the period relating to his own liability, which he contended satisfied his entire liability. In denying the petition the court used the following-language : “When the liability of a stockholder has been reduced to judgment the liability is' merged therein and becomes a new obligation of record which differs in kind, nature and essence from the original obligation. . . . The group obligation ceases and becomes a mere personal obligation.”

The court further held that the rule contended for by petitioner is limited in its application to cases in which it is presented as a defense prior to judgment and decree, and that it should not be extended to cases in which application is made for satisfaction of judgments. At the conclusion of the opinion the court said: “If payments of contemporaneous stockholders could, after the rendition of a judgment against an individual stockholder, be used by him as a basis for the satisfaction of the judgment any final adjudication of equities in this class of cases would become impossible, and the collection of judgments most difficult.”

In Heine v. Degen, 362 Ill. 357, it was held that under the constitutional provision of section 6 of article 11, the liability of a stockholder of a bank is for the benefit of the creditors generally, and the liability of a particular stockholder although measured by liabilities accruing- during his ownership of stock, is not to those creditors alone, in whose favor such liabilities were incurred.

The settlement of the judgments obtained by the receiver in the stockholders’ liability suit against the appellants was in each case the result of a settlement. In every case the judgment was in favor of the receiver as the representative of the creditors generally.

Under these circumstances it is our judgment that the appellants have no right to ask for a refund until the general creditors have been paid in full.

We are of the opinion that the ruling of the circuit court was correct in allowing the motion to strike and dismiss the petition of appellants for refund and its order is hereby affirmed.

Affirmed.