author: Mr. Presiding Justice O’Connor

text:
    The People of the State of Illinois ex rel. Michael Sokoll and George Egan, Appellants, v. The Municipal Court of Chicago and Thomas A. Green, Judge Thereof, Appellees.
    Gen. No. 36,956.

      Opinion filed July 2, 1934.
    Rehearing denied July 17, 1934.
    Samuel A. & Leonard B. Ettelson, Milton D. Smith and William W. Smith, for appellants; Samuel A. Ettelson, Carl J. Appell and Edward C. Higgins, of counsel.
    Hiram T. Gilbert, for appellees.
   Mr. Presiding Justice O’Connor

delivered the opinion-, of the court.

July 19, 1933, the People of the State of Illinois, on relation of Michael Sokoll and George Egan, filed their petition in the superior court of Cook county against the municipal court of Chicago and Thomas A. Green, a judge thereof, praying that a rule be entered requiring the respondents to answer the petition within a date to be fixed by the court, to show cause, if any, why a writ o.f prohibition should not issue commanding the municipal court of Chicago and Judge Green to desist and refrain from attempting to exercise any further jurisdiction over an alleged contempt proceeding then pending before Judge Green. On motion of the respondents the court held the petition to be insufficient in law and dismissed it. The petitioners appeal.

The petition alleges in substance that on May 22, 1933, an information, by leave of court, was filed in the municipal court of Chicago against Iver Swedberg, charging that on January 29, 1933, he negligently drove a motor vehicle on a highway in the City of Chicago, and as a result thereof injured a person and damaged his property, and that he left the place of the injury without giving his name, etc., to any police officer, in violation of sec. 41a of the Motor Vehicle Act (Cahill’s 1933 Statutes, page 1896).

On May 29, Swedberg was -arraigned before Judge Green; he pleaded not guilty, waived a jury and there was a trial. He was found guilty as charged and sentenced to the House of Correction for a term of 90 days and fined $25. A mittimus was issued on the same day, and Swedberg was taken and confined to the House of Correction. Afterward, on June 16, Judge Green, sitting in the municipal court, entered an order in the same case which recites that the cause came on to be heard on petition of Swedberg “in support of a motion for a writ of coram nobis or qua coram vobis resident,” and it was' ordered that Swedberg be brought from the House of Correction before the branch of the municipal court over which Judge Green was presiding on the 17th of June, “to appear at a hearing on a petition for new trial under section 89 of the Practice Act.” Swedberg, in'his petition, swears that he was arrested May 29, 1933, charged with violation of the Motor Vehicle Act, and that on a hearing before Judge Green he was without counsel and without means to employ one; that he had no opportunity to communicate with anyone for advice; that he was rushed to trial and summarily tried; that “if he had had the benefit of counsel, his rights would have been protected and preserved, and the facts would have been brought out more clearly and forcibly”; that he was entitled to counsel under the Constitutions of the United States and of the State of Illinois.

On June 17th the court entered an order postponing the matter until June 1st, and on June 20th an order was entered by Judge Green appointing Joseph Eoach amicus curiae. June 23rd" Eoach as amicus curiae filed a petition or information against the petitioners, Michael Sokoll and George Egan, and also against Morris Markin, Paul L’Amoreaux and William Mc-Evoy, praying that they show cause by June 30th why they should not be punished for contempt of court for conspiring to cause Swedberg to give false testimony on the trial against him for the violation of section 41a of the Motor Vehicle Act, in that Swedberg there testified he was the owner of the motor vehicle involved in the information filed against him, when, as a matter of fact, the motor vehicle belonged to the Checker Taxi Cab Company. An order was entered in accordance with the prayer of the petition and the hearing was subsequently postponed to July 21st.

In the information filed by Eoach, which was verified by him, he charges the persons named “with the offense of wilful and malicious obstruction of justice at the time it was being administered in this court.” It then charges that Morris Markin and Paul L’Amoreaux reside in New York and that they and other persons “to the informant .unknown, combined, conspired, confederated and agreed” to secure possession of a great number of companies engaged in transporting persons for hire over the streets of various cities in.the United States and particularly in the City of Chicago, with the purpose and intent “of unlawfully and criminally fixing the sale price and limiting the supply of automobiles to be manufactured and constituting a part of interstate commerce,” which automobiles were to be used for transporting persons throughout the United States; that it was the additional purpose of Markin, L’Amoreaux and other persons by systematic efforts to secure possession and control of said transportation companies and that it was the further purpose “of said conspirators as a part of said conspiracy to: (1) Form a combination to control the sale and delivery of taxicabs in the various cities of the United States; (2) To enhance the price of cars built by the Checker .Cab Manufacturing Company” to cab drivers; (3) To secure a monopoly in interstate trade of automobiles manufactured by the Checker Cab Company; (4) “To form a combination between a manufacturer of a commodity moving in interstate commerce and local users thereof, so as to restrict the use thereof to said conspirators; (5) To restrain and monopolize the commerce among the several states in regard to the sale of said automobiles; (6) To destroy the right of dealers in said automobiles to purchase them from other persons”; (7) To deprive a large number of cab drivers of an equal opportunity óf purchasing such automobiles'through interstate commerce and prevent such drivers from using them upon the same terms “as drivers employed by said conspirators and their various agencies”; (8) To deprive the general public of Chicago and other cities of the advantage which would come from the “channels of interstate commerce being free and competitive in regard to said automobiles; (9) To arbitrarily and unreasonably, through the subserviency of municipal bodies of the cities of the. United States and the legislatures of the States . . . control and fix the rates and fares of taxicabs,” in Chicago and other cities and the price to be paid for such automobiles; (10) To limit and fix the price of such automobiles in advance; (11) To obstruct interstate commerce in such automobiles by limiting their purchase to the “companies controlled by said conspirators”; (12) To prevent vendees of automobiles transported in interstate commerce from reselling them in the State to which they were transported; (13) “To violate the Clayton Act ... by unlawful agreements relative to the sale of such automobiles”; (14) To violate the Sherman Law and the Clayton Act by subjecting dealers in such automobiles to deprivation of their rights under the Constitution and laws of the United States, under color of certain ordinances passed by the city council of Chicago at the special instance and request of said conspirators; (15) To subject drivers of automobiles other than those manufactured by the Checker Cab Manufacturing Corporation to a deprivation of their rights under the Constitution of the United States and particularly under the Sherman Law and Clayton Act; (16) To deprive, under color of ordinances and statutes, the public in Chicago and other cities of the right, “privilege and immunity secured, by the Constitution and laws of the United States,” contrary to the Sherman Law and the Clayton Act; (17) To deprive taxi drivers not members of organizations controlled by “said conspirators” of their liberty and property by preventing them from pursuing their employment in Chicago and other cities; (18) “To administer the laws of the United States, and cause them to be administered, in a manner different from the true intent and purpose thereof, by transferring the property” of the Checker Taxi Company, an Illinois corporation, to a corporation of another state; (19) To violate the laws of Illinois against illegal combinations in restraint of trade; (20) “To commit the crime of perjury in the courts of Chicago . . . and of the United States, by aiding, abetting and otherwise procuring taxi drivers' to commit perjury”; (21) To secure possession and control of the Checker Cab Manufacturing Company, of which Markin was president"; (22) That the conspirators caused the Manufacturing Company to enter into such conspiracy to control the taxicab business; (23) That subsequently “said conspirators” secured possession and control of a large number of other taxicab companies in various cities of the United States; (24) That prior to entering into such contracts with' the Checker Cab Manufacturing Company, other companies purchased their cabs from other manufacturing companies, but as a result of such illegal contracts such other companies were required to purchase their cabs from the Checker Manufacturing Company; (25) That in order to effect and maintain ‘1 said' monopoly thus conspired . . . the said conspirators, pursuant to said conspiracy, had unduly influenced and caused legislative bodies, including the state legislatures and city councils of the several states of the United States to pass legislation preventing absolutely or almost completely restricting the opportunities of persons using any of the said automobiles other than that manufactured by the Checker Cab Company . . . that' said legislation has been secured by cajolery, manipulation and in some instances by bribery; that said conspirators are now actively engaged in endeavoring to secure from said city council (of the City of Chicago) a franchise which would restrict the taxicab business in Chicago to the Checker - Taxi Company and the Yellow Cab Company”; (26) That there are many other companies manufacturing taxicabs; (27) That there are in Chicago a large number of taxicabs shipped in interstate commerce which as a result of said conspiracy cannot be used in interstate commerce; (28)- That the Checker Cab Manufacturing Company conducts a large growing business at Kalamazoo, Michigan, from which it ships automobiles in interstate commerce; (29) That , as a result of the conspiracy many persons who have purchased their own taxicabs will be unable to continue in business and will therefore be deprived of their means of livelihood, “in violation of the Sherman Act and Clayton Act, and the Fourteenth Amendment to the United States Constitution”; (30) That the transportation of persons by taxicabs in Chicago is of vital concern to the people of the city and that the elimination of competition is a' violation of the Sherman and Clayton Acts and of the laws of Illinois; (31) That the conspirators have caused an insurance company to be organized for the purpose of bonding taxicabs, “and caused certain police officers connected with the traffic department to become interested in said insurance company”; that as a result of this, the police officers favor taxicabs operated by the companies controlled by the conspirators; (32) That the purpose of the conspirators is to endeavor to have legislation eh-acted fixing the bonds of taxicabs so high that only drivers of the Checker and Yellow cabs will be able to secure such bonds; (33) That “the said conspiracy is a continuing one and is now and has been in full force, effect and operation”; (34) That pursuant to the conspiracy, Markin, L’Amoreaux, Sokoll, Egan and Mc-Evoy, aided, abetted, encouraged and procured Swed-berg in the proceeding before Judge Green in the municipal court “to obstruct the justice being administered in said court,” in that Swedberg, on May 29, 1933, appeared before Judge Green in that court charged “with the crime of leaving the scene of an accident, in violation of the laws of the State of Illinois, ’ ’ and was duly sworn as a witness in his own behalf on the hearing of the information filed against him, and he there testified that he “was the owner of a Checker taxicab” with which he had run down two persons, seriously injuring them; but that the cab did not belong to him but was the property of the Checker Taxicab Company; that such false testimony was procured by Markin, L’Amoreaux, Sokoll, Egan and McEvoy for the purpose of exempting the Checker Taxicab Company from civil and criminal liability, and that each of the persons just named knew that the cab did not belong to Swedberg but to the Checker Taxicab Company; that such false testimony tended to obstruct justice then being administered by Judge Green as a judge of the municipal court; and the prayer was that each of the parties named be brought before the court and dealt with as for a contempt of that court, or that a rule be entered commanding them to show cause why they should not be punished for contempt of court.

As stated, the hearing of this information was set by the court for July 21st, and two days prior to that time, July 19th, the petition in the instant case was filed. The petition alleges the matters hereinbefore set forth, much of which we have quoted from the petition or information filed by Eoach, which is attached as an exhibit to the petition filed in this case. It is further alleged in the petition that the municipal court of Chicago was organized under an act passed by the general assembly of this • State in 1905, commonly known as the Municipal Court Act; that the municipal court has jurisdiction only in the City of Chicago; that it is inferior to the circuit and superior courts of Cook county, which are constitutional courts and have jurisdiction throughout Cook county; that the municipal court has no jurisdiction in equity cases, criminal cases above the degree of misdemeanor, tort cases where the damages exceed $1,000, and matters relating to mandamus and other extraordinary writs, while the superior and circuit courts of Cook county are courts of unlimited jurisdiction; that at the time in question Judge Green was presiding over a branch of the municipal court of Chicago known as the “Traffic Court.”

The petitioners further allege that Judge Green had no jurisdiction to hear the petition or motion of Swed-berg, under section 89 of the Practice Act, because Swedberg had already begun to serve the sentence imposed upon him by being incarcerated in the House of Correction. Petitioners averred that neither they nor the other persons named in the information filed by Roach advised or procured Swedberg to testify before Judge Green that he was the owner of the taxicáb in question, and aver that the ownership of the cab at that time was wholly immaterial because the statute under which Swedberg was prosecuted (sec. 41a, ch. 95a) provided that the “person operating” the car at the time a person is injured by the cab and who drove away without leaving his name, etc., with the police officer, etc., was the one amenable to the law, and not the owner of the vehicle.

It is further alleged in the petition that Judge Green as .judge of the municipal court had ‘ ‘ announced and publicly stated to the public newspapers” that he would, in the Swedberg case, conduct a thorough investigation of all matters “relating to the taxicab business in the City of Chicago, to alleged monopolies relating thereto, to alleged actions in restraint of trade, and to alleged difficulties concerning the wages and remuneration of drivers ’ ’ of the Checker Taxicab Company; that this would necessitate long and protracted hearings and involve great expense to the petitioners ; that he intended to issue and have served subpoenas duces tecum on the officials of the Yellow and Checker Taxicab Companies, requiring the production in the alleged contempt proceeding of their books and records; that such books and records do not bear on the issues involved; that Judge Green “is instigated by and conspiring with certain outside parties, who from ulterior motives are seeking to stir up trouble” between taxi drivers and the companies and the manufacturing companies; that he had indiscriminately issued warrants for the arrest of officials of the Checker and Yellow Cab Companies without any legal basis, on pretended criminal charges, for the purpose of creating public opinion against taxicab companies and the companies’ officials, and thereby causing the defendants and the taxicab companiejs great trouble, expense and humiliation; that Judge Green, sitting as a judge in the municipal court, stated he would continue to issue warrants against the officials until they made a contract with the taxi drivers satisfactory to him; that he stated publicly he would strike any answer petitioners might-file to the information filed by Roach, and that he has indicated in divers ways his intention of finding the petitioners guilty of contempt under the information regardless of the evidence that might be adduced, and that petitioners believe he will carry out such intentions; that by reason of the aforesaid, Judge Green was prejudiced and wholly disqualified to hear the matter before him, and that the municipal court had no jurisdiction of the matter, and the prayer was that a rule be entered requiring Judge Green to answer the petition showing cause why a writ of prohibition should not issue prohibiting him from proceeding with the alleged contempt proceeding.

No brief has been filed on behalf of Judge Green or the municipal court.

The petitioners contend that the court had no jurisdiction to hear Swedberg’s motion and petition in support of it under sec. 89 of the Practice Act, because Swedberg had begun to serve the sentence imposed on him by Judge Green, by being incarcerated in the House of Correction. Without discussing the distinction between the Swedberg case pending before Judge Green and the recent case of People v. Green, 355 Ill. 468, where it was held that under certain circumstances the municipal court had jurisdiction under sec. 89 of the Practice Act to hear a motion under that section after the defendant had been found guilty and had commenced to serve his sentence in the House of Correction, in Chicago, we hold that under the authority just cited Judge Green had jurisdiction, even though it might be later held, on a writ of error or appeal under the present Practice Act to this court, that his judgment was erroneous.

We agree with counsel for the petitioners in the instant case that whether Swedberg owned the car, was wholly immaterial because sec. 41a, ch. 95a, under which Swedberg was prosecuted, imposed a penalty' not on the owner of the automobile, but on the “person' operating or driving” it.

The controlling question in the instant case is whether the superior court of Cook county had authority to issue a writ of prohibition as prayed for. Counsel for the petitioners, in their brief, say that-the trial judge dismissed their petition on the theory that the superior court of Cook county had no jurisdiction to issue a writ of prohibition against the municipal court of Chicago because the municipal court of Chicago was not an inferior court, and that any error committed by Judge Green might be reversed on review by this court or by the Supreme Court. The question is one of first impression in this court. We are not, however, without authority in this State as to the nature of the ancient common law writ of prohibition and when it might properly issue. People ex rel. Earle v. Circuit Court of Cook County, 169 Ill. 201; People ex rel. Modern Woodmen of America v. Circuit Court of Washington County, 347 Ill. 34.

In the Circuit Court of Cook County case it was said that a writ of prohibition was an extraordinary common law writ issued by a superior court to an inferior court to prevent the latter from exceeding its jurisdiction either by prohibiting it from assuming jurisdiction in a matter over which it had no control, or from going beyond its limited powers in a matter over which it had jurisdiction;' that the writ operated upon an inferior court and not upon the parties to the suit and would only be issued in cases of extreme necessity where there was no other adequate remedy; that the object of the writ is (p. 205): “not to remove the matter prohibited from the lower to the higher court for the purpose of procuring the decision of the latter court upon such matter, but to restrain the lower court from further prosecution of the original proceeding, when it has no jurisdiction over the subject matter in dispute.” It was also held in that case that neither the Supreme nor the Appellate Courts of this State had original jurisdiction to issue the writ, that the writ could only be issued by these courts in aid of their appellate jurisdiction. In that case an original petition was filed in the Supreme Court against Judge Horton, a judge of the circuit court of Cook county, and the circuit court of Cook county to show cause why a writ of prohibition should not issue against the respondents, and it was there said (p. 205) that “The constitution is a limitation upon the powers of the legislature, but it is regarded as a grant of power to the executive and judicial departments of the government. Hence, the executive and judiciary can only exercise such powers as are granted by the constitution,” and that since section 2 of article 6 of our Constitution of 1870 provides that the Supreme Court “shall have original jurisdiction in cases relating to the revenue, in mandamus and habeas corpus, and appellate jurisdiction in all other cases,” the Supreme Court had no power to issue the writ. The court there further said (p. 205): “A prohibition is an original remedial writ, as old as the common law itself.”

In the Circuit Court of Washington County case, supra (347 Ill. 34), the court said (p. 39): “The writ of prohibition is of ancient origin. In Beame’s Translation of Grlanville, pages 56, 96, 97 and 98, a number of forms of such writs as then in use are set out. Grlanville’s treatise was written about 1181 and is the earliest known work on the English law. Originally, in England, jurisdiction to issue writs of prohibition was exercised by the Court of King’s Bench, though it was later exercised by courts of chancery and common pleas or exchequer. (3 Blackstone’s Com. 111.) ... It has always been defined as an extraordinary judicial writ issued out of the court of superior jurisdiction and directed to an inferior court for the purpose of preventing the inferior court from usurping a jurisdiction with which it is not legally vested and to keep such court within the limits and bounds prescribed for it by law. .

“A writ of prohibition is a common law remedy, and, like other common law remedies, it is generally recognized as existing in this country unless abolished by positive statutory enactment. The writ is here exercised by an appellate or superior court to restrain an inferior court from acting without authority of law when damage and injustice are likely to follow from such action. It is a prerogative writ, and, like all other writs of that character, it is to be used with caution, and only to secure order and regularity in judicial proceedings when none of the ordinary remedies provided by law are applicable or adequate”; that it was issued only t.o prohibit an inferior tribunal from assuming jurisdiction in .a matter over which it had no control and also in going beyond its legitimate powers in a matter oyer- which it had jurisdiction; that its object was not to remove the subject matter from the lower court to the higher court for the purpose of obtaining a decision on the merits of the case, but to restrain the lower court from further action; that it was never resorted to when there was another adequate remedy or to correct mere irregularity, and that the Supreme Court had no original jurisdiction to issue a writ of prohibition, but that it can issue such writ only in aid of appellate jurisdiction.

The circuit court of this State and the superior court of Cook county are provided for in the Constitution of 1870, and have original jurisdiction “in all causes in law and equity.” Sections 12, 23 and 24, article 6, Constitution of 1870. Section 12 provides:• “The circuit courts shall have original jurisdiction of all causes in law and equity.” Section 23, which has to do with the courts of Cook county, provides: “The superior court of Chicago shall be continued, and called the superior court of Cook county,” and by section 24: “Any judge of either of said courts shall have all the powers of a circuit judge. ’ ’ And it has been repeatedly held by our Supreme Court that the circuit courts and the superior court of Cook county exercise the same jurisdiction and that there is no distinction between them except in name. Berkowitz v. Lester, 121 Ill. 99. In that case the court said (p. 102): “Section 23 [Article 6, Constitution of 1870] provides that the superior court of Chicago shall be continued, and called the superior court of Cook county; . . . judges of the superior court and judges of the circuit court exercise the same powers,- and, under the constitution, are placed upon the same footing. (Jones v. Albee, 70 Ill. 34; Samuel v. Agnew, 80 id. 553.) Indeed, under the constitution, there is no distinction, except in name, between the superior court of Cook county and the circuit court of Cook county. Both courts have the same jurisdiction and exercise- the- same powers.”

Since the writ of prohibition is a common law remedy, and since it is said in the Circuit Court of Washington County case, supra, that such writ is generally recognized as existing in this Country unless.abolished by positive statutory enactment, and since we know of no statutory enactment abolishing such writ in this State, we hold that the circuit courts of this State and the superior court of Cook county have original jurisdiction under the constitution of this State to issue writs of prohibition- in proper cases.

In the instant case we think it is obvious that from the averments of the information filed by Joseph Roach, as a friend of the court, which we have analyzed and quoted from, Judge Creen had no jurisdiction to inquire into the matters set forth in that petition. Whether Swedberg owned the automobile at the time he injured the persons (as alleged in the information filed against him wherein he was charged with leaving the scene of the accident without leaving his name with the police officer, as the statute provides) was wholly immaterial. As stated, the- statute makes. the driver and not the owner of the automobile, who leaves the scene of the accident without -leaving his name, subject to the penalties provided for in the statute. We think it is equally obvious that Judge Creen, sitting as a judge of the municipal court, had no jurisdiction to determine whether the Checker Cab Company, the Yellow Cab Company, or the officials of these companies, were violating the Clayton or Sherman Acts, or whether they were engaged in a conspiracy in restraint of trade, nor any of the other allegations contained in the information. These questions were wholly foreign to the question whether the petitioners and the other persons named in the information filed by Roach, conspired to obstruct the administration of justice by inducing Swedberg to swear that he owned the taxicab in question when, as a matter of fact, it was alleged that it belonged to the Checker Cab Company;

Holding, as we do, that Judge Green while sitting in a branch of the municipal court was wholly without jurisdiction to inquire into any of the matters set forth in the information filed by Roach, the question then arises as to whether the municipal court of Chicago is inferior to the superior court of Cook county, in the sense that the latter court might issue its writ of prohibition.- It has been held that the word “inferior” as used in this connection, does not relate to the intrinsic quality of the court, but merely to its relative rank as compared with the other courts. Swift v. Wayne Circuit Judges, 64 Mich. 479; Croasdale v. Court of Quarter Sessions, 88 N. J. L. 506; Kirkwood v. Washington County, 32 Ore. 568. An inferior court (using the term in the sense above indicated) is one that is limited in its jurisdiction as to subject matter and as to territory. The jurisdiction of the municipal court of Chicago does not extend beyond the limits of the city, while the superior court of Cook county has jurisdiction throughout the entire county. The municipal court has no jurisdiction in felony cases nor in certain tort cases where the damages exceed $1,000; it has no chancery jurisdiction nor can it issue other extraordinary writs such as mandamus. (Lott v. Davis, 264 Ill. 272.) Such matters are within the jurisdiction of the superior court of Cook county.

In Reid v. Morton, 119 Ill. 118, it' was held that the city court of Alton was inferior in dignity and jurisdiction to the circuit court, although in most matters it had concurrent jurisdiction with that court within the City of Alton. The court there said (p. 127): “It is further urged, . . . that it is only inferior local courts which, under the constitution of 1848, might be established in cities, and that this Alton City Court is not an inferior court, inasmuch as it has concurrent jurisdiction, within the City of Alton, with the circuit court of Madison county, in all civil cases. It has not equal jurisdiction with the circuit court of Madison county in criminal cases, and its jurisdiction, in territorial extent, is less than that of the circuit court. Making it a court of record does not, in our opinion, make it, as contended, a superior and not an inferior court, within the meaning of the constitution. . The Alton City Court was, in dignity and in jurisdiction, an inferior court to the Supreme Court, and to the circuit court, and we cannot say that it was not an inferior local court, within the intendment of the constitution. ’ ’

To the same effect is the holding in the case of Wolf v. Hope, 210 Ill. 50, and in Miller v. People, 230 Ill. 65, where it was said (p. 74) that the municipal courts of Chicago “are limited, territorially, to the municipality in and for which they are created, and their jurisdiction is usually limited in amount to petty ■offenses. (Black’s Law Dict.; 21 Am. & Eng. Ency. of Law, 2nd ed., 1.) Under the rule that the words ‘municipal courts’ were used in the amendment in their ordinary and natural meaning, the municipal court of Chicago is to be regarded as a local court of the city, established for the purpose of administering the law within the city, and not as a part of the judicial department of the government of the State at large. . . .”

(p. 75): “There is no substantial or material difference between the terms ‘city court’ and ‘municipal court,’ both of which are courts of the municipality in which they are established, and. the constitution of 1848, as well as the present1 constitution, provided for the establishment of such courts.” See also Lott v. Davis, 264 Ill. 272.

In view of the foregoing authority we are of opinion that the municipal court of Chicago is inferior (as that word is understood as above stated) to the superior court of Cook county, ■ and that if the allegations of the petition in- the instant case are true, as we must assume on the record before us, then the superior court should, have issued its writ to prohibit Judge Green'from proceeding further with the contempt proceeding unde! the petition filed by amicus curiae. And it was no reason to refuse the writ because the party aggrieved might, on appeal or writ of error, have reversed any judgment that might be entered in the contempt proceeding- by Judge Green. Monette Road Imp. Dist. v. Dudley, 144 Ark. 169; Evans v. District Court, 47 Idaho 267, 275 Pac. 99, 100.

In the Dudley case the- Supreme Court of Arkansas said that the court in a proper case would issue a writ of prohibition although there might be a remedy by appeal. The court further said (p. 176): “If the absence of the right .of appeal- was essential to the issuance, of a writ- of prohibition, then that remedy would be entirely unavailable in any case, for under our Constitution the right of appeal-is granted in all judicial proceedings. The true test is . . whether or not the court is proceeding beyond its jurisdiction, and when that state of facts is shown to exist, the remedy--by prohibition is the appropriate one. A litigant is not bound- to submit to the exercise of jurisdiction not authorized by law, even though he'has the right of appeal after the exercise of the jurisdiction has been consummated and has resulted in a judgment from which he can appeal. ” '

And in the Evans case, supra, the court, said (p. 2):

“A writ of prohibition will issue to arrest the proceedings of an inferior tribunal when it is acting in excess of its jurisdiction and there is no other plain, speedy, and adequate remedy in the ordinary course of the law. . . .

“The citation for contempt or rule to show cause is not such a final order that an appeal will lie therefrom. . . . We do not believe that plaintiffs should be compelled to submit to a judgment for contempt and then avail themselves of any right to a writ of review which may exist in such a situation. ’ ’

In the instant case the petitioners and .the other defendants mentioned in the contempt proceeding have no adequate remedy by appeal dr writ of error after the contempt proceeding is disposed of by Judge Creen. The proceeding would undoubtedly be long, expensive and useless, and if they should be discharged by Judge Creen after such hearing, they would be wholly without remedy.

We think that in these. circumstances the, superior court-of Cook county should have, issued its writ of prohibition.

The judgment of the superior court of Cook county is reversed and the causé remanded with directions to order the defendants to answer the petition.

Reversed and remanded with directions.

McSurely and Hatchett, JJ.-, concur.


source: Caselaw Access Project

license: Public Domain

text:
    National Theater Supply Company, Appellant, v. David Blum et al., Appellees.
    Gen. No. 37,075.
    Opinion filed July 2, 1934.
    L. H. Hellert, for appellant.
    Wilhartz, Hirsch & Schanfarber, for appellees; Arthur Wolf, of counsel.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.

Complainant filed its hill seeking to foreclose a claimed lien for painting and decorating a building, the fee of which was in David Blum and Bessie Blum, his wife, who were made parties defendant. They filed their demurrer, which was sustained, the bill dismissed and complainant appeals.

The allegations of the bill, so far as it is necessary to state them here, are that complainant is engaged in the business of construction, improvement and repair of theaters, etc.; that on August 1, 1916, defendant, Blum, as owner of the fee of the premises on which the work was done by complainant, entered into a 99-year lease with George Lomax, now deceased; that under the terms of the lease the lessee was expressly authorized by Blum, the lessor, to make improvements and repairs of the building on the premises covered by the lease, and that such improvements or repairs were to be considered a part of the premises; that the lease was recorded and that through the death of the lessee, George Lomax, “the lease descended to and became the property of Helen B. Lomax,” the wife and widow of George Lomax; that afterward, through the death of Helen B. Lomax, the 99-year leasehold interest descended to and became a part of the assets of her estate; “that George Lomax, John Alfred Lo-max, William L. Lomax, Frank B. Lomax, Helen Kehoe Dwyer Meine, were and are the heirs and beneficiaries of the said Estate of Helen B. Lomax”; that George Lomax and John Alfred Lomax were designated and are trustees of the estate of Helen Lomax, deceased; that her estate was the owner of the 99-year leasehold on December 24, 1930; that on December 13, 1930, George Lomax (one of the trustees above mentioned) doing business as American Theater, entered into a written agreement with the complainant to paint and decorate the interior and exterior of part of the premises used as a theater, representing that he was the owner of the premises. For such work plaintiff was to be paid $1,025.78 by George Lomax, doing business as American Theater; that shortly after the making of the contract the materials were furnished and the work completed January 9, 1931; that the work was accepted and approved by George Lomax, doing business as American Theater, and that he paid complainant on account of the work and material $575.26, leaving a balance due of $450.52; that although complainant requested payment of the balance, George Lomax failed and refused to make such payment; that after the work was done complainant learned that George Lomax did not own the property but was advised that it was owned by the estate of Helen B'. Lomax, of which George Lomax and John Alfred Lo-max as above stated, were trustees, and that George, in making the contract, was the agent of an undisclosed principal — the estate of Helen B. Lomax, deceased; that the trustees authorized and knowingly permitted the execution of'the contract for the decorating and painting, as above mentioned, and that complainant was “authorized by David Blum, the owner of the fee ... in, through and by reason of the terms, clauses and provisions of the hereinabove mentioned ninety-nine year lease,” to make the repairs.

The bill further alleged that on April 16,1932, claimant filed with the clerk of the circuit court of Cook county a claim for lien against the owner of the fee and the estate "of Helen B. Lomax, deceased. The Lomaxes and the estate of Helen B. Lomax, deceased, were made parties defendant. Attached to and made a part of the bill was the contract for the work, together with the specifications and a number of promissory notes signed by American Theater and George Lomax, as well as a copy of the claim for lien filed in the office of the clerk of the circuit court. The lease is not attached to or made a part of the bill.

Counsel for the complainant says in his brief that the demurrer to the bill was sustained “upon the theory that the defendants David Blum and Bessie Blum, owners of the fee, are, in law creditors, encumbrancers and purchasers as set forth and provided in Section 7 of the Mechanic’s Lien Act, and inasmuch as the complainant had failed to file its claim for lien, or bring suit, within the four month period of limitation, it had lost its right of action to foreclose.” This statement seems to be conceded by counsel for defendants because they say that “Under Section 7 of the Mechanic’s Lien Act, David Blum, the owner of the fee, is a creditor, encumbrancer or purchaser, and as to him the complainant was required to bring suit to enforce his lien or file with the clerk of the court a claim for lien within four months after the completion of the contract.” And it is argued that since the work was completed January 9,1931, and the claim for lien was not filed until April 16, 1932, more than 15 months after the work was done, the demurrer was properly sustained.

We think it clear that this contention cannot be sustained. Section 1 of the Mechanics’ Liens Act (ch. 82, Cahill’s 1933 Stats.) provides: “That any person who shall by any contract or contracts, express or implied, or partly expressed or implied, with the owner of a lot or tract of land, or with one whom such owner has authorized or knowingly permitted to contract for the improvement of, or to improve the same . . . shall have a lien upon the whole of such lot or tract of land”; and by section 7 of the same Act it is provided: “No contractor shall be allowed to enforce such lien against or to the prejudice of any other creditor or incumbrancer or purchaser, unless within four months after completion ... he shall either bring suit to enforce Ms lien therefor or shall file with the clerk of the circuit court in the county in which the building, erection or other improvement to be charged with the lien is situated. . . . Such claim for lien may be filed at any time after the contract is made, and as to the owner may be filed at any time after the contract is made and within two years after the completion of said contract.”

These two sections above quoted clearly provide that a contractor who is seeking to enforce a lien must do so within four months after the work is done if he would prejudice the rights of any other creditor, incumbrancer or purchaser. So far as the record before us discloses, there is no other creditor, incumbrancer, or purchaser, and that provision of section 7, so far as a creditor, incumbrancer or purchaser is concerned, is in no way involved. But the section further expressly provides that a lien claimant may file Ms claim against the owner at any time after the contract is made and within two years after the completion of the work. His right to enforce such lien within such period of time is not limited to the owner of the property who has signed the contract for the improvement, as defendant contends, but it applies to the owner of such property without qualification. Loeff v. Meyer, 284 Ill. 114. In that case the court said (p. 116): “The statute authorizes a lien upon any lot of land for material or labor furnished in altering or repairing any building thereon under a contract with the owner, or with one whom the owner has authorized or knowingly permitted to contract for the improvement of or to improve the same, and where a lessee is authorized by his lease to make improvements, the contract for such improvements with the lessee is within the terms of the statute.”

Section 1, above quoted, expressly provides that one who improves property belonging to another and enters into such contract with the owner of the property or with one whom such owner has authorized or knowingly permitted to contract, shall have a lien.

Some cases are cited by counsel for defendants that tend to sustain complainant’s contention that under section 7 the owner of the fee “is a creditor, incumbrancer or purchaser,” but upon examination those cases will be found to construe the Mechanics’ Liens Act of 1895 and not the Act now in force, which was enacted by the legislature in 1903.'

The defendants further contend that there is no allegation in the bill that defendants, David Blum or Bessie Blum, his wife, authorized or knowingly permitted the work in question to be done. The bill alleges the making of the lease by defendant David Blum as owner of the fee, wdth George Lomax, since deceased, as tenant; that the lease expressly authorized the tenant to make any improvements or repairs to the building on the premises covered by the lease and that all repairs and improvements made by him were, under the terms of the lease, made a part of the premises.

The bill further alleges that the tenant, George Lomax, died and that the “ninety-nine year lease descended to and became the property of Helen B. Lomax,” widow of the tenant; that afterward she died and the lease ‘ ‘ descended to and became a part of the assets” of her estate; that certain parties then named ‘ are the heirs and beneficiaries of the said Estate of Helen B. Lomax,” and that her estate owns the 99-year lease and that George and John Alfred Lomax are the trustees of her estate. It will be noticed that there is no allegation that the lease contained any provision authorizing anyone to make such repairs except the tenant named in the lease — George Lomax. It might well be that the landlord, Blum, was willing to authorize the tenant, George Lomax, to make any repairs required but that he would be unwilling to authorize anyone else to do so, and since there is no allegation that there was any such authorization in the lease, the bill was vulnerable to demurrer, and therefore the demurrer was properly sustained and the bill dismissed.

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

Decree affirmed.

McSurely and Hatchett, JJ., concur.


author: Mr. Justice Matchett O’Connor, P. J.,

text:
    Sarah Minton, Appellant, v. Irene Thompson Smith and Margaret Hamann, Trading as Minton Hat Company and Novelties, Appellees.
    Gen. No. 37,417.
    O’Connor, J., dissenting.
    Opinion filed July 2, 1934.
    Edwy Logan Beeves and Charles Francis Baker, •for appellant.

      Peabody, Westbrook, Watson & Stephenson and Joseph McCormack, for appellees.
   Mr. Justice Matchett

delivered the opinion of the court.

This appeal is by complainant, Sarah Minton, from an order which sustained a demurrer of defendants to her bill as amended, and dismissed same for want of equity, on the ground that the bill did not entitle her to any relief from the defendants. The bill was filed April 12, 1933, and alleged that complainant had spent her business life in the millinery trade; that many years ago she established a millinery business in Grand Eapids, Michigan, under the name of “Min-ton,” and successfully carried on said business until 1904, when she moved to Chicago; that having acquainted herself with the situation at Chicago, she rented a store in the Drake Hotel building, which she fitted up and stocked with merchandise, employed help and placed her name of “Minton” on the store door and used that name on all business papers, as well as labels sewed on the goods manufactured by her, and informed the trade that she was in the millinery business under the name of “Minton.”

The bill further alleges that as a result the name “Minton” obtained a reputation for high class goods; that the business grew and became very successful and she continued to conduct it at the same address for 10 years; that in the course of her business activities she employed among other persons defendants Irene Thompson Smith and Margaret Hamann and trained them in her business of manufacturing and selling goods; that on or about November, 1930, complainant was in poor health and decided for the time being that she 'would quit business until some future time; that she informed defendant employees of the situation, and that they, knowing the condition of her health, decided to establish a place of business of the same kind and character at number 634 North Michigan avenue, and purchased fixtures from complainant and opened a place of business at that address; that complainant gave to them the right to use her name of “Minton” at said new address for one year; that she also moved her undisposed of merchandise to the new address and sold to defendants such portions of the merchandise as they might require to fill orders during the year 1931; that free of charge she assisted them from time to time in selling goods to customers; that on or about January, 1931, defendants purchased the remaining unsold merchandise from complainant, and that complainant at that time gave to them an extension of the right to use her name of “Minton” during the year 1932; that complainant also agreed that she would not re-engage in the millinery business in Chicago for one year from January, 1932; that she kept this promise but that on or about November 26, 1932, she notified defendants not to use her name of “Minton” after January 1, 1933; that defendants in December, 1932, offered to purchase the name from her but she informed them that the name was not for sale, she reserving the name in case she decided to go into business again; that defendants did not stop using the name, but pretended to change the name by changing the sign on the door to read in large letters, “The Minton” followed by smaller letters, “Hat Company and Novelties”; that on the stationery they used the name, “The Minton Co.”; that complainant demanded that defendants stop using the name “Min-ton” in connection with the business carried on by them; that defendants ignored the demand and continued so to use the name without permission and contrary to the expressed demand of complainant.

Complainant further says that if she re-establishes her business under the name of “Minton,” which she may do, “the unauthorized use of her name by the defendants will cause confusion and loss of business to the complainant; that the change in the sign made by the defendants is a pretext as to change, and a device to use the name of ‘Minton’ so as to get the benefit of the good reputation which the complainant established for her name in business”; that unless defendants are enjoined from using her name of “Min-ton” in connection with their business, complainant will suffer irreparable damages and be interfered with in re-engaging in the millinery business under her trade name of “Minton.” The bill prays for an injunction and for other and further relief.

On June 19, 1933, complainant filed an affidavit in support of her motion that an injunction issue. The order sustaining the demurrer and dismissing the bill was entered, while said motion was pending on January 2, 1934.

Complainant contends, citing Kallista v. Ahalt, 151 Ill. App. 60, and Schlitz Brewing Co. v. Travi, 179 Ill. App. 269, that under these circumstances it was error to sustain the demurrer; that it should have been overruled and defendants ruled to plead or answer. The cases cited refer only to a situation where the bill alleges facts, which, if true, would entitle complainant to the relief prayed, and are not controlling here. The actual question for decision, therefore, is whether the facts alleged in the bill state a cause of action cognizable by a court of equity.

The facts disclosed by the bill are not complex. Complainant avers in substance that she devoted many years to a business in which she made use of her surname, “Minton,” as a trademark. She says in substance that without selling the business she granted to defendants the right and license to use that name for a limited period only; that the time for which it was granted has expired and that she now desires to resume her right with reference to the use of that name in that business. ■ It would seem upon this simple statement of facts that she ought to have that right. If the facts averred by the bill are true, defendants have received from complainant all and more than they bargained for. She is in court with clean hands. She seeks to protect the right to use her surname, defendants denying this right for a number of technical reasons. They say, in the first place, citing authorities such as Olin v. Bate, 98 Ill. 53; Pfaudler v. Pfaudler Co., 186 N. Y. S. 725; Carney Hospital v. McDonald, 227 Mass. 231; and In re A. G. Spalding & Bros., 27 App. D. C. 314; Brown Chemical. Co. v. Meyer, 139 U. S. 540, and similar cases, that she has no legal right to appropriate her surname' as a trade-mark; that there is- no such thing as a trade-mark in- gross. They ' say that there is no averment in the bill that defendants are using plaintiff’s real name, “Sarah Minton.” The contention is (apparently.) that if she used her Christian name and surname she would be entitled to- protection, but since she used the surname alone she is not entitled to such protection. The cases cited do hot, we think, sustain this view. Olin v. Bate, 98 Ill. 53, is a case where the question arose between parties having the same surname; ' That is not the case here. It is true that in the Spalding case- it was held that a ■ surname might not be appropriated as a trade-mark under the Tradé-mark Act, but we understand the purpose of this statute-was to protect persons who might have the same surname, and not to grant to other persons indiscriminately a license to use and appropriate. Pfaudler v. Pfaudler Co., 186 N. Y. S. 725; was an action at law for damages based upon-a statute of the State of New York. Moreover, plaintiff there had acquiesóéd in the use by defendant, corporation of his surname for 25 years and no equitable injury was stated. Carney Hospital v. McDonald, 227 Mass. 231, was also in part based upon the construction of a Massachusetts statute and was not brought by any person whose surname was alleged to have been improperly used. In Brown Chemical Co. v. Meyer, supra, the court said an ordinary surname could not be appropriated “as against others of the same name.”

The courts have been at all times vigilant to protect the rights of individuals to the exclusive use of their own names as against persons holding • other names or corporations which undertake to appropriate their names. These cases naturally arise out of actual competition, usually, but the cases do not indicate that relief is limited exclusively to cases where there is competition, nor that the surnames of individuals are excluded from the protection of the courts. As illustrative may be cited Ranft v. Reimers, 200 Ill. 386; Hazelton Boiler Co. v. Hazelton Tripod Boiler Co., 142 Ill. 494; Allegretti v. Allegretti Chocolate Cream Co., 177 Ill. 129; Johnson Mfg. Co. v. Johnson Skate Co., 313 Ill. 106. That the courts of other States— those of the United .States and of England — apply similar rules will appear from the citations in our opinion in the recent case in .this court of Lomax Co. v. Lomax Bros Beverages, Inc., 274 Ill. App. 661 (Abst.).

In Ohlbaum v. Correa, 166 N. Y. S. 89, it appeared two brothers were.in business under-the.name Ohlbaum Bros.; .the partnership was dissolved and -the business continued by one of them who, by agreement, took the right to use the firm. name; this continuing partner died and no other person had acquired the right to use the name; the defendants (none of whom bore this name) began to use it in their business. It was held that the plaintiff, a brother, was entitled to injunctive relief. The court said: “Even- after a man has surrendered to another the right to use his name in business, he still preserves sufficient interest in it to prevent its use by any casual stranger. Of course, there may be circumstances under which, the defendants can justify the use of the firm name in question. If these are alleged, they will constitute a possible defense to the action. But no such circumstances are pleaded, and we may not call upon our imagination to supply them.” In Christy v. Murphy, 12 Howard’s Pr. Rep. (N. Y.) 77, it was held that Christy, who had organized a group of negro minstrels to which he gave the name “Christy’s Minstrels,” would be protected by injunction in the use of the name as against strangers who attempted to appropriate it to their own use although complainant was not at that time actually giving performances. In Scheer v. American Ice Co., 66 N. Y. S. 3, the plaintiff sold his ice business to defendant corporation ; the contract did not convey the right to use plaintiff’s name but plaintiff agreed not to engage, in the ice business for 10 years; the defendant printed plaintiff’s name on its wagons, etc. An injunction was granted, the court saying that in the absence of express agreement defendant was not entitled to use plaintiff’s name in its business, citing Howe v. Searing, 6 Bosw. 354; Reeves v. Denicke, 12 Abb. Prac. (N. S.) 92; Morgan v. Schuyler, 79 N. Y. 490, and note 35 Am. Rep. 546. The court said: “It would seem to be a proposition hardly requiring' argument that every man is the custodian of his own reputation and is entitled to say who shall do business, and what business shall be done, under his name. If it were necessary, however, to point out specific and substantial injuries to which the plaintiff is exposed by reason of the unauthorized acts complained of, it would not be difficult to do so. He is, for example, subject to the cost and vexation of suits that might be brought against him by reason of things that may happen in the business carried on in his name.” That a right to use the names under which a corporation did business could not be again assigned by the assignee without the consent of the assignors, and that an injunction would lie to prevent the use of the name by a corporation, see Bagby & Rivers Co. v. Rivers, 87 Md. 400. And that such a right is personal and does not pass to an assignee in bankruptcy, see Mattingly v. Stone (Ky.), 12 S. W. 467.

It is quite impossible in this opinion to discuss at length all the cases bearing upon this subject. To summarize, it may be said that the defendants contend that complainant cannot maintain her suit because she cannot get a property right in her surname. As we understand, the cases all hold the contrary. Secondly, it is contended that she may not maintain her bill unless she operates a competitive business. In addition to the cases we have cited holding the contrary may be mentioned the leading case of Edison v. Edison Polyform & Mfg. Co., 73 N. J. Eq. 136, 67 Atl. 392. Third, a similar contention is made that the bill cannot be maintained in the absence of an actual use of the name by plaintiff. The obvious answer is that complainant is using the name every day and that the cases holding an actual use indispensable are not applicable to cases of this character. In the fourth place, it is contended that complainant cannot maintain her bill in the absence of an averment of fraud. The answer, we think, is that one to whom has been granted a license to use the name of another in business transactions for a limited time who undertakes to appropriate and convert to his own use permanently the name so granted, and thus deprive the licensor of her rights is guilty of fraud. In other words, the facts averred in the bill are sufficient to constitute fraud upon complainant.

We hold that the court erred in sustaining the demurrer to the bill and dismissing the same for want of equity, and for that reason'the decree will be reversed and the cause remanded for proceedings in accordance with.the views herein expressed.

jReversed and remanded.

McSurely, J., concurs.

O’Connor, P. J.,

dissenting: In my opinion the decree sustaining the demurrer and dismissing the bill should be. affirmed. Complainant in her bill alleges that “if she re-establishes her business under her trade name of ‘Minton’ which ..she may do,, that the unauthorized ,use of her name by the defendants will cause confusion and loss of business to, the complainant.” This allegation is substantially stated in the majority opinion but about a page further on in the opinion, after stating that the time for which complainant granted defendants the right to use the name “Minton” has expired, it.is said: “and that she now desires to resume her right in reference to thé use of her name in that business.” There is no such allegation in the bill. If there were, a different question would be presented for our decision. Nowhere is there any allegation that complainant intends to again go into the millinery business. The most that can be said is that she may some time in the future desire to-do so. Nor is there any allegation that defendants are conducting their business dishonestly or that they are- doing anything that would in any way injure complainant’s reputation or character, or injure or damage her financially or otherwise.

A case almost in point is Goldman v. Bootman, 167 N. Y. S. 196, where it was said that a temporary injunction restraining the violation of an agreement by the seller of a business not to engage in the same business would be denied where the buyer had abandoned the business purchased from the defendant. In that case a temporary injunction was issued restraining the defendant from engaging in the refrigerator or warehouse business within a radius of 25 miles of the city hall in New York City. The defendant was formerly engaged in that business and sold out to the plaintiff, stipulating not to engage in that business within 25 miles of the city hall. . Thereafter, the • defendant accepted a position as managing clerk for the Standard Cold Storage Company within the prohibited area. The court said: “We are of opinion that this injunction should not have been granted, for the reason that the plaintiff has abandoned this business. Not only has he abandoned it, but his only claim to possible injury lies in his allegation that he ‘intends to resume the business as soon as he conveniently can.’ If he were now engaged in the business thus purchased, or even if he should resume the business, notwithstanding a temporary abandonment, he would apparently have the right to enjoin the defendant from acting contrary to his covenant. In view of his abandonment of the business, however, no harm can come to him by the act of the defendant in engaging therein.”

In this ease complainant has abandoned the millinery business, and her one allegation of damages is “that if she re-establishes her business under her trade name of ‘Minton’ which she may. do, that'the unauthorized use of her name by the defendants will cause confusion and loss of business to the complainant.” It will be noted she does not allege she is going to enter again into business but may do so if she so desires at some indefinite time in the future. When that- time arrives, as was said in the Goldman case, supra (167 N. Y. S. 196), it will be time to consider her contention that the defendants be enjoined.

Moreover, complainant alleges in her bill that she gave the ..defendants the right to use her name to January ,1, 1933, but there is no allegation that the defendants agreed not to use the name after -that time. (See Pfaudler case, 186 N. Y. S. 725.)

Complainant’s bill does not involve the question of unfair competition as said in the case of N. L. Pierce Nat. Detective Agency v. Pierce Detective Agency, 217 Ala. 594, 117 So. 191-193, where the question involved was somewhat similar to the question in the case before us. The court said: “To grant an injunction under these conditions would merely injure respondent and the public without any compensating advantage to complainant. No monopoly of the name can be claimed where there is no competing business to be protected. ’ ’


author: Mr. Justice Matchett

text:
    Henry M. Posner et al., Plaintiffs in Error, v. Nandor Wechter et al., Defendants in Error.
    Gen. No. 37,421.
    Opinion filed July 2, 1934.
    Rehearing denied July 12, 1934.
    WlLHARTZ, HlRSCH & ScHANFARBER, for plaintiffs in error; Samuel E. Kirsch and J. S. Greenberg, of counsel.

      Slottow & Levitón, for defendant in error Joseph Lichtenstein; Charles Levitón and David Paley, of counsel.
   Mr. Justice Matchett

delivered the opinion of the court.

Plaintiffs in the trial court have sued out this writ of error to reverse a judgment in their favor rendered upon default of certain defendants upon the motion of plaintiffs. The cause is here upon the common law record. Defendants heretofore filed a motion to dismiss the suit upon the ground that plaintiffs induced the court below to commit the error complained of and have ratified and confirmed the judgment causing an execution and afterward a citation to issue thereon. This motion was denied. A former writ of error sued out in this court was dismissed because of the failure of plaintiffs to secure services upon all defendants in error within the time provided by the rules of this court. Prosecution of that writ was, of course, no bar to the prosecution of this one.

The suit was based, as the statement of claim shows, upon a written agreement under seal, whereby nine defendants, in consideration of an extension granted, agreed to pay certain notes and coupons. The statement of claim averred that there was due under this agreement $10,780.

Surumons issued September 24, 1932, against nine of the defendants and eight of them were served. One of these defendants, Lichtenstein, filed an appearance and affidavit of merits. The other defendants who were served failed to file an appearance, and on March 22,1933, on motion of plaintiffs, judgment was entered against them by default for the full amount of the demand. It is conceded that it was error to render judgment against only a part of the defendants served, and that defendants under the practice then existing in this State could sue out a writ of error and reverse the judgment. It is the.law that a plaintiff in-whose favor a judgment is entered may sue out a writ and assign error upon the entry of the judgment, and if the error is well assigned the judgment will be reversed. Johnson v. Jebb, 3 Burr. 1772. Tidd’s Practice, with American notes (1856), vol. 2, ch. 44, sec. 1134. That the rule is applicable in a case like this, where a plaintiff suing on a joint contract or obligation has inadvertently taken a judgment against only a part of the defendants served which might be reversed by them or any one of them and which would also bar another suit, was held in Davidson v. Bond, 12 Ill. 84. It seems to be precisely in point. The court there said:

“Here there was an error, for which the defendants might, at any time within five years from the rendition of the judgment, bring the case to this court, and have the judgment reversed. And while this is the case, it is not an open question in this court, since the decisions in the cases of Teal v. Russell et al., 2 Scam. 319, and Jones v. Wright et al., 4 Scam. 388, that the plaintiffs may bring the record here, and rid themselves of a judgment, which while it presents a bar to their obtaining a regular one, still affords them no sufficient security.”

In Illinois Appellate Procedure Forms, Dodd and Edmunds, sec. 64, p. 84, the authors state:

‘ ‘ The common instances where review may be sought even though the judgment or decree be in the party’s favor are (1) where the judgment is for less than it ought to be; (2) where joint obligations are involved and judgment is in favor of plaintiff against some of the defendants, and in favor of other defendants -against plaintiff; (3) where there is some jurisdictional or other irregularity in the judgment which would make it ineffective in the future as a security to the party in whose favor it was rendered.” As sustaining the statement of the text Fuller v. Robb, 26 Ill. 246; Thayer, Aldrich & Co. v. Finley, 36 Ill. 262; Hartman v. Belleville & O. R. Co., 64 Ill. 24; Frost v. Howard, 81 Ill. 602; Kingsland v. Koeppe, 137 Ill. 344; Wellington v. Wellington, 137 Ill. App. 394, are cited. The cases in which a plaintiff in whose favor a judgment has been entered may appeal or prosecute a writ of error are discussed in Williams v. Breitung, 216 Ill. 299, and one of the classes of cases mentioned is that in which in an action brought on a joint contract the judgment was erroneously rendered against only a part of the defendants. See also notes to that case in American and English Annotated Cases, vol. 3, p. 510. Defendants cite Borden v. Croak, 131 Ill. 68; Chicago & N. W. Ry. Co. v. West Chicago Park Com’rs, 151 Ill. 204; Essroger v. City of Chicago, 185 Ill. 420; People v. Buconich, 211 Ill. 290; McDonald v. Shimeall, 282 Ill. 42; Kellner v. Schmidt, 328 Ill. 426; National Malleable Castings Co. v. Iroquois Steel & Iron Co., 333 Ill. 588; Western Springs Park Dist. v. Lawrence, 343 Ill. 302; which lay down the undoubted general rule that a party who has induced the court to make an error or acquiesced in it when made, or requested that it be made, cannot be heard to assign error. There is no doubt these cases state the general rule in this respect. The cases upon which plaintiff relies lay down an exception to that rule. The theory upon which the exception is based does not seem to be discussed in the cases. We may, however, suggest that since the writ of error was originally a writ “issuing out of chancery” (see Tidd’s Practice, vol. 2, sec. 1134, p. 1133) the doctrine may be based upon equitable principles.

In conformity with the authorities, the judgment of March 22, 1933, will be reversed and the cause remanded.

Reversed and remanded.

O’Couuor, P. J., and McSurely, J., concur.


text:
    Nathan R. Feldman et al., Defendants in Error, v. City of Chicago, Plaintiff in Error.
    Gen. No. 37,325.
    Opinion filed July 9, 1934.
    Rehearing denied July 20, 1934.
    William H. Sexton, Corporation Counsel, and Arthur A. Sullivan, Attorney for the Board of Local Improvements, for plaintiff in error; Joseph F. Gross-man, Assistant Corporation Counsel, and Tolman, Chandler & Dickinson, of counsel.
    William Feldman, for defendants in error; Howard F. Bishop, William H. Dillon, Eugene H. Dupes, . George A. Mason, Angus R. Shannon and Aaron Soble, of counsel.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.

October 21,1930, plaintiffs brought an action against the defendant, City of Chicago, to recover $2,762. There was a trial before the court without a jury, a finding and judgment in favor of plaintiffs for the amount of their claim, and the defendant prosecutes this writ of error.

The record discloses that in a condemnation proceeding brought by the City of Chicago for the purpose of widening Clinton street a judgment was entered February 23,1925, awarding plaintiffs $39,000 as compensation for their property taken and $6,000 was assessed against them as benefits, leaving a net amount due them of $33,000. The $33,000 was not paid to plaintiffs until July 22, 1926, and plaintiffs’ claim is that they were entitled to interest at five per cent per annum on the amount of the judgment from February 23, 1925, until July 22, 1926, when they were paid the $33,000.

Plaintiffs’ position is that they were entitled to interest on the judgment by virtue of section 3 of our Interest Act (ch. 74, Cahill’s 1933 Statutes). Reliance is chiefly placed on the cases of University of Chicago v. City of Chicago, 258 Ill. App. 189, and Turk v. City of Chicago, 352 Ill. 171.

On the other side the defendant contends that interest does not run on condemnation judgments under the Local Improvement Act, and that although the two cases just cited hold to the contrary, the question ought to be reconsidered because the decisions are wrong; that they “rest upon a misapprehension of the history and intent of the Local Improvement and Interest Acts ’ ’; that the rule of stare decisis is not so inflexible that it should not be changed where it has been established by a single decision of the Supreme Court of this State by a divided court; and numerous authorities are cited and discussed that sustain the defendant’s contention as to this rule. However, we are clearly of the opinion that we are wholly unwarranted in saying at any time that our Supreme Court is wrong. We have no such authority. The Supreme Court is always right so far as this court is concerned.

We have but the common law record before us, and plaintiffs allege in their statement of claim that when they were paid the $33,000 by defendant they gave a deed to defendant, and accepted the money “under protest” and at the same time demanded payment of the interest which is the basis of this suit. In view of this allegation, defendant contends that “The acceptance by the plaintiffs of the principal of the judgment and the conveyance to defendant of the property condemned constituted an accord and satisfaction which barred any further claim on account of the judgment.” Whether the acceptance of the $33,000, under the circumstances, constituted a technical accord and satisfaction, we think it unnecessary to decide because we are of the opinion that interest is awarded on a judgment rendered in a condemnation proceeding as damages for delay in payment of the award; that it is merely an incident to the debt; that where the principal is paid without interest the right to interest is gone. 22 Cyc. pp. 1516-17; County of Madison v. Bartlett, 1 Scam. 67; Davis v. Harrington, 160 Mass. 278 ; Bassick Gold Mine Co. v. Beardsley, 49 Colo. 275; Stewart v. Barnes, 153 U. S. 456; Graves v. Saline County, Ill., 104 Fed. 61; Southern Cent. Ry. Co. v. Town of Moravia, 61 Barb. (N. Y.) 180; Jamison v. Burlington & W. Ry. Co., 87 Iowa 265; Cutter v. Mayor of New York, 92 N. Y. 166.

In 22 Cyc. pp. 1516-17, it is said that under the common law a judgment did not bear interest but “in actions of debt upon judgments, interest is generally allowed as damages, as in other cases of detention of money; and at the present time interest on judgments as a matter of right is almost universally allowed under statutory provisions.”

In the Bartlett case, supra (1 Scam. 67), it was said that of course where there is an express contract to pay interest, the sum due therefor is an integral part of the debt, but where interest is allowed by statute, on judgments such as allowed under section 3 of our Interest Act, it is in the nature of damages or a penalty for not paying the judgment when entered. The court there stated (pp. 69-71): “Hence statute interest may properly be defined to lie the legal damages or penalty for the unjust detention of money. . . . Interest is not given by the common law, for a failure to pay money when it is due, unless the parties have so agreed, and is only allowed by statute when the party neglects to pay at the time stipulated, and is then given in the nature of a penalty for the violation of a contract. (3 Atkins 636.) ”

In the Davis case, supra (160 Mass. 278), it was held that a lessor who had been paid the full amount of his rent could not have judgment for interest by way of damages for failure to pay the rent when it became due; that it was immaterial that the payment was made after the suit was brought. The court there said (p. 279): “We must therefore treat the case as one in which, after suit brought, the plaintiff accepted payment of his debt, not including a sum to which he was entitled as interest by way of damages for delay in payment. If there had been a contract to pay interest, the interest would have been a part of the debt, which would have stood no differently from the principal. Sparhawk v. Wills, 6 Gray, 163; Andover Savings Bank v. Adams, 1 Allen, 28. But interest which is allowed by way of damages and for the neglect to pay promptly is a mere incident of the debt, which fails when the debt itself is extinguished. It is well settled that in such a case, if the debt is paid, there can be no recovery afterwards for the interest which might have been collected.”

In the Beardsley case, supra (49 Colo. 275), the court said (p. 276): “The second assignment pertains to the interest allowed upon the monthly payments from the dates they were due until paid. These payments had all been made long prior to the bringing of this action, some of them nearly four years prior thereto. As we understand, the law governing such cases, and which the appellant seeks to invoke, is that where interest is due because the debtor has expressly agreed to pay it, the interest is considered as an integral part of the debt, and the right to recover it may remain even after the principal has been paid. But where interest is claimed as damages by virtue of the nonpayment of a debt when due, and for that reason is allowed by law, it is then considered not an integral part of the debt, but merely as an incident to the debt, and in such cases when the principal is paid and accepted without interest, the right to interest is extinguished.”

In the Stewart case, supra (153 U. S. 456), it was held that where a person from whom a tax had been illegally extracted accepted from the government the payment of the sum illegally extracted, he thereby waives his right to sue for interest as damages. The court there said (p. 462): “Interest in such cases is considered as damages, and does not form the basis of the action, but is an incident to the recovery of the principal debt. . . . When he who has this right commences an action for its enforcement, he at the same time acquires a subordinate right, incident to the relief he may obtain, to demand and receive interest. If, however, the principal sum has been paid, so that, as to it, an action brought cannot be maintained, the opportunity to acquire a right to damages is lost.”

And in the Graves case, supra (104 Fed. 61), the same rule was announced and it was further held that “Protest at the time of the acceptance of the principal is of no consequence, and the rule that partial payment of a debt furnishes no consideration for the discharge of the whole is not applicable. ’ ’

' In the Southern Cent. Ry. Co. case, supra (61 Barb., N. Y. 180), in passing on the question whether a defendant who subscribed to the capital stock of the railway company was liable for interest, in discussing the question now before us the court said (p. 188): “There is no agreement to pay interest, by the terms of the subscription, at any time. . . . And if any interest accrued, it was only upon the amount called for, and after default in making payment at the day specified therefor. In all such cases interest, when allowable, is allowed, not as part of the contract, but as an incident, and by way of damages for the default, to make the creditor good for the loss he has sustained by reason of the breach, or default. In that class of cases it has always been held, that after the principal of the debt had been paid, and received in full, no action could be maintained to recover interest. The reason is, that interest, in such cases being a mere incident, cannot exist without the debt, and the debt being extinguished the interest must necessarily be extinguished also. This rule has been too long and too well settled to be now overthrown, or disturbed. . . . A distinction has been made between such cases and those where interest was made payable by the terms of the contract. In the latter case the interest is as much a part of the contract as the principal. It is not a mere incident which may be awarded by way of damages, but a substantive part of the contract, which may be enforced after the debt has been otherwise paid.”

And the same rule has been applied in condemnation cases. In the Jamison case, supra (87 Iowa 265), it was held that where the principal of an award for land condemnation was paid, the owner of the land waived his right to interest and could not afterward maintain an action for it.

To the same effect is the Cutter case, supra (92 N. Y. 166), where it was held that although a statute of New York expressly provided that if an award in a condemnation was not paid within four months after confirmation, ■ the land owner might sue for and recover the award with interest, she could not recover and maintain an action for interest where she had received the principal. The court there said (p. 170) that interest “is given as damages for nonpayment or detention of the money awarded, and does not constitute a debt capable of a distinct claim.. (Dixon v. Parkes, 1 Esp. 110; Churcher v. Stinger, 2 B. & Ad. 777.) It could only be recovered with the principal by action. Acceptance, therefore, of the sum awarded in full payment of the principal prevents an action for those damages. If the plaintiff meant to have demanded the interest, she ought not to have received the principal. In the face of that fact, protest against the refusal of the defendant to pay interest is of no importance.”

Counsel for plaintiffs, in their brief, do not admit or deny the existence of the above rule of law, but they say that whether the rule is ‘1 sound or not as an abstract proposition of law, the rulé contended for has no application to our Interest Act” because section 2 of the Interest Act provides that a creditor shall bé allowed to receive interest at five per cent per annum on all moneys after they become due, etc., ahd that section 3 provides that “Judgments recovered before any court or magistrate shall draw interest at the rate of five (5) per centum per annum from the date of the entry of the same until satisfaction”; and that section 3 further provides, “When judgment is entered upon any award, report or verdict, interest' shall be computed at the rate aforesaid, from the time when made or rendered, to the time of rendering judgment upon the same, and made a part of the judgment.” And they argue that section 2 is applicable where the obligation to pay interest is “imposed by law,” while section 3 “deals only with judgments on awards, reports and verdicts.” They then quote the second part of section 3, above quoted, and continue: 1 ‘ This provision is an example of an obligation to pay interest imposed by statute. It-is in no sense a penalty.” And “That provision destroys its character as a mere incident to the debt. The statute makes it a part of the debt.” We think this argument is clearly unsound. The provision of section 3 quoted provides that when there is an award, report or verdict, interest shall be computed on such award, report or verdict from the time made to the time the judgment is entered, and included in “and made part of the judgment.” But that is not the period for which plaintiffs claim interest in the instant case; They are claiming interest on the amount of the judgment after it was entered and not after the award was made and up to the time the judgment was entered. In the instant case the judgment was entered .February 23,1925, and interest is claimed on a judgment from that time until the principal of the judgment was paid, July 22, 1926. It is obvious that the provision of section 3 has no application to the matter before us.

Plaintiffs having accepted payment of the judgment in full, the fact that they did so under protest avails them nothing, the interest being a mere incident to the judgment; and the judgment having been paid, the instant case cannot be maintained for the interest.

The judgment of the municipal court of Chicago is reversed.

Judgment reversed.

McSurely and Hatchett, JJ., concur.