text:
    Mary A. Metcalf, Appellee, v. Hal Metcalf and State Bank of Girard, Appellants.
    Gen. No. 8,981.
    Opinion filed June 3, 1936.

      James H. Murphy and Jesse Peebles, both of Carlinville, for appellants.
    George E. Stoddard and Gillespie, Burke & Gillespie, of Springfield, for appellee.
   Mr. Justice Fulton

delivered the opinion of the court.

Mary A. Metcalf, appellee, resident of Girard, Illinois, filed her complaint asking for an accounting in the circuit court of Macoupin county on January 9, 1934, against Hal Metcalf individually and the State Bank of Girard, a corporation, appellants. Upon the trial of the cause, judgment was entered, both jointly and severally, against the appellants in the sum of $5,267.50 and the rendering of said judgment is the basis of this appeal.

The complaint alleged appellee to be of advanced years, inexperienced in management of business affairs, the securing of aid and advice from appellants in the conduct of same, the reposing of full faith and confidence in them, the establishment of a confidential relation and the mismanagement of various business transactions by the appellants causing loss to the ap-pellee.

The evidence discloses the appellee to be a widow of 73 years of age with absolutely no knowledge whatever regarding business affairs. Her husband, who died in the year 1921, had formerly conducted a great amount of his business through the appellant bank. After his death, his will was probated and his estate settled by his executors, who by the terms of his will turned the residue over to his widow, Mary A. Metcalf. The property consisted of notes, bonds and other investments, a number of parcels of real estate, consisting of both city property and farm lands, the gross value of which was about the sum of $100,000;

At the time Mr. Charles H. Metcalf died, Mr. Henry C. Hamilton was president of the bank and the officer through whom the deceased transacted his business. After the estate was settled Mrs. Metcalf was solicited by Mr. Hamilton to transact all of her business at the appellant bank and was promised the aid and assistance of the officers of said bank. The appellee counseled and advised with Mr. Hamilton concerning her lands and investments and the. management of same until 1924 at which time Mr. Hamilton died. Subsequently Hal Metcalf, one of the appellants and cashier in the said bank, looked after and transacted the business for appellee. He rented her farms and her city property, collected and turned over rents to her, advised her concerning the investment of her uninvested capital, made purchases of bonds, for her and had access to her safety deposit box in the bank where her securities and valuables were kept.

During the year of 1923, appellant Metcalf made a report to appellee showing the status of her personal accounts as well as the status of the accounts of the estate of her deceased husband. It is admitted by appellant Metcalf that this report was prepared by him, acting in his official capacity as cashier of the State Bank of Girard, although he denies having had anything whatever to do with the estate of O. H. Met-calf as an officer of the bank. Sometime during the year 1926, appellant Metcalf felt that he should be paid for the services he was rendering* to the appellee and upon his request to her for compensation an arrangement was entered into whereby he was to receive $100 annually. After this agreement was entered into he continued to advise appellee, to transact her business in relation to her real property and investments and to supervise her business affairs.

It is quite plain from the testimony that the appellant Metcalf had complete control over all of the seen-rities belonging to the appellee; that he collected all the interest as it accrued upon her investments and placed the same to the credit of the appellee in the State Bank of Girard; that all of her funds were invested by him during the period that he was handling her business affairs and that she relied upon him implicitly in making such investments; that the appellant bank in which the appellant Metcalf was at all times an officer and large stockholder constituted the agency through which the purchase of securities was handled; and that he individually handled all of her personal financial transactions. It is quite apparent from the testimony of both the appellee and the appellant Met-calf that a fiduciary relationship existed between the appellee and the appellants.

The testimony shows that during the years 1930 and 1931 the appellant Metcalf purchased five bonds for the appellee and admits that upon one of such bonds the sum of $2.50 was paid to the appellant bank for commission for the sale of such bonds. Appellee testifies that all of said bonds were purchased without any consultation with appellee whatsoever although appellant Metcalf insists that appellee was fully informed concerning the purchase of the same. In September of 1930, the appellant Metcalf represented to the ap-pellee that certain of her United States Government Liberty bonds were about to be called and advised that the same be sold immediately and the proceeds used in making other investments that would yield a greater income. The appellee had on hand'about $41,000 worth of United States Liberty bonds and objected to the sale of the same and the exchange for other securities. She was induced, however, by the appellant Metcalf, to accompany him to St. Louis to the offices of the Mississippi Valley Trust Company of that city. Appellant Metcalf secured the bonds from her safety deposit box and they were taken along on the trip to St. Louis and $17,000 worth of said United States bonds were exchanged for other securities. All of the transaction ivas carried on by the appellant Metcalf and the officer of the Mississippi Valley Trust Company without any partieipation on the part of appellee. The testimony of the vice president of the Mississippi Valley Company shows that a commission of $42.50 was paid to the appellant bank by way of commission for this transaction. There is some testimony in the record which indicates that the bank received some commission on the purchase of all bonds made by them but the only definite certain testimony is the item of $2.50 on the purchase of a Republic of Cuba Bond and the $42.50 on the securities purchased in exchange for the United States Liberty Bonds. While there is considerable evidence tending to show when the appellant Metcalf was acting in his individual capacity and when he served as an officer of the bank it seems clear that a joint agency on the part of the appellants is well established.

It is not claimed that appellee had knowledge of any commissions being paid to appellant bank in connection with any of the investments made upon her behalf and that she did not learn of such facts until in July, 1933, through investigation made by her grandson. After this information was conveyed to her, a formal notice of rescission of the action of the bank and of appellant Metcalf was served upon them on January 4, 1934, at which time all of the bonds involved were tendered back to the appellants and a request made for the return of the money which was paid by them for the purchase of same. The appellants refused to make any adjustment and all of the bonds with the exception of one Mayo Hotel bond, which she still retains were sold by the appellee in the open market at a substantial loss. The judgment entered by the trial court was for the difference between the amount paid by appellee for these bonds and the amount which she received upon the sale of the same.

The appellants have not given careful attention to Rule 9 of this court and to Rule 39 of the Supreme Court of Illinois, which requires that in preparing briefs the concluding subdivision of the statement of the case shall be a brief statement of the errors relied upon for reversal but they do assert that the action of the appellants in looking after the affairs of Mrs. Met-calf was bona fide in every particular and that if the prices of bonds and securities had not declined during the years from 1930 to 1934 there would have been no complaint of the conduct of said appellants and no suit instituted by the appellee; also that the commissions paid to the appellant bank were so slight as to make little or no difference to the appellee. They further insist that the honesty and fairness of the appellants in dealing with the appellee was beyond question. The basis of appellee’s complaint is that there was a fiduciary relationship existing between herself and the appellants and that she depended entirely upon their representations in the handling of her property. We believe that the evidence conclusively shows that such relation did exist during the time of the transactions in question; that the appellant Metcalf and the officers of the bank were all acting as the agents of appellee and each and all of them owed her the several duties arising out of such relationship.

The relation of principal and agent is one of trust and confidence and where such confidence is reposed and such relation exists it must be faithfully acted upon and preserved from any intermixture of imposition. The rule is the same no matter how large or how small the commission paid may be or whether the agent is a mere volunteer at a nominal consideration. Perry v. Engel, 296 Ill. 549. An agent cannot deal for his own advantage with the things purchased for his principal, or become a seller or buyer of them, because of his confidential relation and his duty to disclose to his principal every fact, circumstance or advantage in relation to the purchase which may come to his knowledge. Strong v. Lord, 107 Ill. 25. If, without the knowledge and consent of his principal, the agent becomes the agent of the opposite party as well and undertakes by contract to bind his original principal, the law deems the original principal in that transaction to be practically unrepresented, and any bargain in his name or any act done on his account is usually voidable at his option. Lerk v. McCabe, 349 Ill. 348. The principal need not show himself injured, and his right to repudiate the transaction is not affected even by the good faith of the opposite party. Chicago Title & Trust Co. v. Schwartz, 339 Ill. 184.

In this case it is clear to us that the appellants were acting as the trustees of the property of the appellee and the law demands of such trustees the utmost fidelity. It is shown, without contradiction, that the exchange of the United States Bonds, belonging to appel-lee, for other and different securities was beneficial to the appellant State Bank of Girard and that it was not beneficial to her but on the contrary very detrimental. A full disclosure of the facts was not made to appellee and she was not informed of the interest of the bank in the transaction.

While there is some conflict in the testimony as to whether or not the appellee was fully informed on some of the other matters in controversy the trial judge had the opportunity of seeing and hearing the witnesses testify. By reason of that fact better opportunity was afforded him to determine the credibility of the witnesses than is given a court of review by a mere reading of the record. When the witnesses testified before the chancellor the reviewing court should not disturb his finding of the facts unless clearly erroneous. Page v. Keeves, 362 Ill. 64. When the rules of law above stated are applied to the facts in this case, it is our judgment the trial court was fully justified in entering its decree and it is affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Fulton

license: Public Domain

text:
    Fay Purdy, as Administratrix of the Estate of Frank Elmer Purdy, Deceased, Appellee, v. L. C. Sprague and John Junell, Appellants.
    Gen. No. 8,986.
    Opinion filed June 3, 1936.

      Shelton F. McGrath and Arthur B. Copeland, both of Peoria, for appellants.
    Burnett M. Chiperfield, Claude E. Chiperfield and Robert B. Chiperfield, all of Canton, for appellee.
   Mr. Justice Fulton

delivered the opinion of the court.

This is a suit brought by Fay Purdy, the appellee, as administratrix of the estate of Frank Elmer Purdy, deceased, her former husband, against the appellants to recover damages for the death of her husband. The declaration consisted of four counts. The first count charged general negligence in the operation of appellants’ train; the second count charged failure to give the statutory signals for the crossing; the third count charged that the train was traveling at an excessive rate of speed; and the fourth count charged negligence on account of the existence of an embankment of earth to the east of the crossing where the accident happened, upon which were growing weeds and vegetation. Upon the trial and at the close of the appellee’s evidence the appellants tendered motions for a directed verdict, together with instructions to find the appellants not guilty, which motions were denied, and again at the close of all the evidence similar motions and instructions were tendered but were also denied. The jury returned a verdict in favor of appellee for $3,800. Appellants’ motions for judgment non obstante vere-dicto and for new trial were overruled and judgment was entered against appellants on the verdict.

The decedent was a farmer, 58 years old, and at 1:40 o ’clock in the afternoon of October 30, 1933, was driving his Chevrolet car in a northwesterly direction over a country highway and upon a railway crossing known as “Courson Crossing,” located about two miles west of Abingdon, in Knox- county, At the-same time a freight train was approaching from the east on appellants ’ railway and a collision occurred which caused the death of Purdy. He had been at the home of Otto Murk, a neighbor, who resided about a quarter of a mile southeast of the Courson Crossing. After leaving the Murk home Purdy had to travel north in the public highway for a distance of about 80 rods where that highway joined another highway running east and west parallel with the railroad of appellants. At this point the railroad was hidden by an embankment 12 feet high and covered with dense vegetation or weeds from two to six feet in height. Purdy would then have to go west about 100 feet to the place where the road intersects with the other road that goes over Courson Crossing. He would then turn north and travel a distance of about 40 feet to the south rail of appellants’ track. The roadway was about 10 feet in width and crossed the railroad track at an angle of approximately 70 degrees. There was an embankment on the south side of appellants’ railroad that was at least 12 feet high about 400 feet east from the crossing. It had a very gradual slope toward the crossing and had been cut back by excavation and removal of dirt for a distance of 30 feet east of the crossing. The train involved in the accident consisted of 52 cars of which 35 were loaded and the balance were empties, and was drawn by two locomotives. The train was traveling-west and the track descends slightly through the cut as it approaches the crossing. It was a clear, bright, sunshiny day. The road sloped up toward the Courson Crossing. Four witnesses for appellee who observed the speed of the train at some distance from the crossing testified it was traveling at the rate of from 40 to 45 miles per hour. The appellants ’ witnesses who were riding in the two engines placed the speed at 25 to 30 miles per hour. Four witnesses for appellee testified the bell did not ring nor the whistle blow as the train approached the crossing. They were all located a considerable distance away from the track and the crossing. All members of the train crew testified that the lead engine was equipped with an automatic bell ringer and that the bell rang constantly from the time the train started; also that the engineer blew the whistle at the whistling post east of the crossing. One witness for the appellee, Cerda Murk, testified that she saw decedent make the turn and start toward and across the railroad track; that he was driving slowly but did not stop at any time; that he drove right up on the track, and at the time he got on the track the train hit him; that when he went up on the crossing his car went slower than it had been going when it made the turn; that he kept right on going right on to that track in front of the engine without stopping; that he was going-slow, at the rate of six or eight miles per hour. H. C. Wells, a bralceman, testified that he was riding on the left-hand side of the lead engine, and when .about 150 to 200 feet east of the crossing he observed the decedent 30 or 40 feet from the crossing; that as he approached the crossing decedent looked directly ahead and drove directly on the track in front of the engine without looking in any other direction. J. M. Shiplett, a witness for appellee, testified that when one was within 16 feet of the crossing it would be possible to see up the track from 180 to 300 feet. Orville Courson, also a witness for the appellee, testified that when within 15 feet of the south rail, one could see up the track to the curve which was almost 80 rods east of the crossing. On the date of the accident Purdy was in good health, with eyesight and hearing unimpaired: He had lived for more than 15 years in the vicinity of this crossing, had crossed it frequently and was entirely familiar with the surroundings. The photographs offered in evidence on the part of the appellants show conclusively that when the decedent was within 20 feet of the crossing he could have seen down the track for nearly a quarter of a mile.

Appellants argue two main questions for reversal of the judgment: First, it is contended that the appellee wholly failed to prove any negligence on the part of appellants as charged in the declaration or any count thereof. The testimony of the witnesses that they heard no whistle or bell and that none was sounded was evidence for the jury to consider in making up its verdict as to the negligence of appellants but because of the remote situation of the witnesses from the scene of the accident it is doubtful in this case as to whether it amounted to more than negative testimony. Provenzano v. Illinois Cent. R. Co., 357 Ill. 192; Morgan v. New York Cent. R. Co., 327 Ill. 339. Appellee’s witnesses testified to the speed of appellants’ train but even though it be admitted that the train was traveling at' 45 miles per hour we know of no statute or rule of law of which this speed would be a violation. The same might be said of the charge in the fourth count as to the dangerous embankment. There was no statute or rule of law which constituted the existing condition a violation.

The second question raised by appellants is that of contributory negligence on the part of appellee’s intestate as would bar recovery. In recent years our Supreme Court has been called upon frequently to pass upon the degree of care necessary to be exercised by a person about to cross a railroad crossing. In Greenwald v. Baltimore O. R. Co., 332 Ill. 627, it was said:

"The rule has long been settled in this State that it is the duty of persons about to cross a railroad track to look about them and see if there is danger, and not to go recklessly upon the track but to take proper precaution to avoid accident. It is generally recognized that railroad crossings are dangerous places, and one crossing the same must approach the track with the amount of care commensurate with the known danger, and when a traveler on a public highway fails to use ordinary precaution while driving over a railroad crossing, the general knowledge and experience of mankind condemns such conduct as negligence. ’ ’

In Sheehan v. Chicago, N. S. & M. R. Co., 269 Ill. App. 477, the court held:

“A railroad crossing is a place of known danger and ordinary care requires one approaching it to make diligent use of his senses of sight and hearing, retain proper control of his vehicle and exercise care and caution commensurate with the danger to be anticipated. ’ ’

■Purdy had been driving six to eight miles per hour from about 40 feet from the crossing. It was daylight and he was familiar with the crossing. He could have stopped his automobile almost immediately. When a person goes upon a railroad track he knows that he will be killed if struck by a train. He knows it is his duty to stop for the train and not for the train to stop for him. Similar language was used in the case of Baltimore & O. R. Co. v. Goodman, 275 U. S. 66, 72 L. Ed. 167. In that case the court held that one attempting- to drive an automobile over a railroad crossing with which he is familiar is negligent so as to prevent recovery for his death by being struck by a train where when his view of the track is obstructed, he does not stop and look, and if necessary, leave the vehicle, to make sure that the crossing is safe. In the later case of Pokora v. Wabash Ry. Co., 292 U. S. 98, 78 L. Ed. 1149, relied upon by appellee, we do not understand the ruling of the court to be in direct conflict with the Goodman case except to limit the unnecessary remark which they said had been a fertile source of controversy, viz.: “In such circumstances it seems to us -that if a driver cannot be sure otherwise whether a train is dangerously near he must stop and get out of his vehicle, although obviously he will not often be required to do more than to stop and look. ’ ’ In that case the facts were entirely different from the instant case. The court there said the record did not show in any conclusive way that the train was visible to Pokora while there was time to stop. In this case Purdy had ample time to stop within at least 20 feet of the crossing if he had looked. While ordinarily the question of due care on the part of the injured party is one for the jury, when there is any evidence given on the trial which, with any legitimate inference that may be legally and justifiably drawn therefrom, tends to show the use of due care, but where the evidence with all legitimate inferences that may be legally and justifiably drawn therefrom, does not tend to show due care on the part of plaintiff the trial court is justified in instructing the jury to return a verdict for the defendant. Greenwald v. Baltimore & O. R. Co., supra.

It seems clear to us in this case that if the decedent had exercised due care in looking in the direction from which the train was coming the collision would have been avoided. It is our judgment that the manifest weight of the evidence shows that appellee’s intestate was guilty of contributory negligence sufficient to bar recovery and that the judgment of the circuit court be reversed and the cause remanded for a new trial.

Reversed and remanded.


text:
    Laura Cornelia Isabet v. Nancy Ellen Scott et al. Arthur F. Heath, Administrator of the Will Annexed of the Estate of Laura C. Isabet, Deceased, and Carroll & Son, Appellees, v. Nancy Ellen Scott, as Surviving Trustee of the Estate of Louis Dixon Isabet, Deceased, Appellant. Robert Martin, a Minor, by his Guardian Ad Litem, and Mary Martin, Appellants.
    Gen. No. 8,990.

      Opinion filed June 3, 1936.
    Paul McWilliams, for appellants.
    Stuttle & Godfrey and Dryer, Brown & Poos, of Hillsboro, for appellees.
   Mr. Justice Fulton

, delivered the opinion of the court.

On January 3, 1925, Laura Cornelia Isabet filed a bill in equity in the circuit court of Montgomery county for a construction of the last will and testament of her deceased brother, Louis Dixon Isabet, and for the appointment of trustees. She named as defendants to this bill Nancy Ellen Scott, Edgar Martin, Mary J. McReynolds, Robert Martin, Mary Martin, trustees of Asbury Cemetery Association, Raymond, Illinois, and Union Sunday School at Honey Bend, Illinois. In her bill, she alleged that her brother died testate on January 20, 1924; that his will was admitted to probate in the county court of Montgomery county on March 3, 1924; that letters testamentary were issued to Nancy Ellen Scott and Edgar Martin, as executors; that her brother was a bachelor and left no parents, widow or descendants and that she and her sister Mary J. Mc-Reynolds were his sisters and his sole next of kin. Attached to the bill was a copy of the last will and testament of the said Louis Dixon Isabet, the pertinent provisions of which so far as this controversy is concerned were as follows:

‘ ‘ Second. I will that my executors sell my property and invest the proceeds in U. S. Bonds, and use the interest from same in the maintenance and support of my sister, Laura Cornelia Isabet, hereby directing that if such income shall be insufficient for such purpose, said executors shall use the principal of my estate therefor, it being my will that my said sister shall have a comfortable living apd support for the remainder of her life.

“Third. I will that at the death of my said sister, my executors shall pay the following bequests: To the Union Sunday School at Honey Bend, Illinois, $500.00. To Robert Martin and Mary Martin, children of Edgar Martin, $500.00 each, and if one be dead, then $1,000.00 to the survivor. To the Trustees of Asbury Cemetery, Raymond, Illinois, $1,000.00 (to be used, etc). At the death of my sister, and also after the payment of the above bequests, and also, after the payment of the funeral expenses and debts of my said sister, I will that my executors pay the balance of my estate which may remain in their hands to such person as my said sister may by will appoint, and if no will, then to the heirs of law of my said sister. ’ ’

It was further alleged in the bill of complaint that the executors named in said will had not complied with the terms thereof and had refused to furnish the complainant with the proper and necessary means of support from the estate of her brother and that she had been compelled to rely upon relatives for help and support since his death. In the prayer of the bill she asks that the will be construed to give her an absolute right to the estate, or in the event that the court should not so hold, that a trustee be appointed to hold said estate in trust for her benefit so that she might be insured a comfortable living and support during the remainder of her life and at her death the trustee named be directed to pay from the balance of any of said trust estate remaining in his hands, the funeral expenses of Laura Cornelia Isabet and the specific legacies named in the will and the balance to her sister Mary J. Mc-Reynolds. On January 26, 1925, the executors named in the will filed an answer to the bill of complaint demurring to the part which asks for a construction of the will giving to Laura Cornelia Isabet an absolute interest and denying the allegation that she was not receiving adequate support. At the same time the executors filed a cross-bill asking for the appointment of themselves as trustees and that the assets of the estate be preserved in their hands as such trustees. All defendants to the original bill were served with summons and a guardian ad litem was appointed for minor defendants. On May 16, 1925, the court entered a decree on the cross-bill sustaining the demurrer of the executors on the grounds that the complainant was not entitled to an absolute estate, appointing the said executors as trustees, requiring them to file a bond as such trustees, providing that they shall keep the funds invested and pay to Laura Cornelia Isabet such portion of the income and if necessary of the principal as would provide her a comfortable living and support during the remainder of her life, and providing further for the payment of the funeral expenses and debts of Laura Cornelia Isabet first then the specific bequests provided for in the will and the balance to Mary J. McReynolds or to her heirs at law.

On June 1, 1925, the trustees filed a petition in the cause asking for directions as to the amount Laura Cornelia Isabet should be paid for her comfortable support and maintenance. After the taking of proofs the court on the 1st day of July, 1925, entered a decree finding that the amount necessary for the care, maintenance and support of Laura Cornelia Isabet was the sum of $75 per month. The court further ordered that the trustees pay out of the funds in their hands to Laura Cornelia Isabet the sum of $200 for back instal-ments due to her for support. This decree was O.K.’d by counsel for all parties. Payments were made in accordance with this decree of the court until January 2, 1934, when the court entered a subsequent order reducing the monthly payments to $37.50. Payments under this order were continued until the death of Laura Cornelia Isabet on February 23, 1934. On April 16, 1935, Arthur Heath, as administrator with the will annexed of the estate of Laura Cornelia Isabet, filed an amended intervening petition in the cause in which Carroll & Son, with leave obtained, joined and in which it was alleged that Carroll & Son were the undertakers who buried the body of Laura Cornelia Isabet and praying that her funeral expenses, amounting to $572, be paid from the trust estate in the hands of said trustees. On August 9, 1935, the trustees filed a report showing a balance on hand in the trust estate of $113.93 but further showing that on March 22, 1934, a distribution amounting to $500 was made to the legatees under the Louis Dixon Isabet will. Appellees filed objections to the items in this report which showed payments to such legatees on the grounds that such disbursements were contrary to the decree of the court rendered May 16, 1925, and that such decree provided that the funeral expenses of Laura Cornelia Isabet be paid first and before any payment should be made on the legacies. The objections further asked that the trustees be required to restate their report and pay the funeral expenses of Laura Cornelia Isabet.

On the same date the trustees answered the said objections setting forth that at the time Miss Isabet became deceased she had on hand the sum of $1,700 which arose out of her savings from the monies paid her by the trustees and that it was therefore unjust to require the funeral expenses to be paid out of trust funds.

A new guardian ad litem was appointed for Robert Martin, a minor in this proceeding, and he answered the objections of Heath, administrator, urging similar grounds to those filed by the trustees, and in addition thereto asked the court to review its former decree of May 16, 1925, and to refuse the relief asked for by the objectors. The trustees filed an answer to the amended petition of Heath, administrator, and Carroll & Son and in paragraphs 6, 7, 8, 9 & 10, it was set forth that because the estate of Laura Cornelia Isabet inventoried $1,700 in cash and because her will provided for the full and complete payment of all of her just debts and funeral expenses, that the payment of her debts could not be properly determined on May 16, 1925; that the estate owned by Miss Isabet at the time of her death consisted of savings from the payments made her by the trustees, and represented a surplus in excess of the amount which she required “for a comfortable living and support ’ ’ and therefore belonged to the trust estate held by the trustees; that it would be contrary to the express intent of the testator, Louis Dixon Isabet, for the court to now order the trustees to pay the funeral expenses, and prayed that the court reconsider said decree and refuse to enforce the same,- that an accounting be had and if Heath, administrator, had any balance on hand after paying the debts and funeral expenses that the same be ordered paid to the trustees. Appellees moved to strike said paragraphs 6, 7, 8, 9 & 10 and the prayer of the trustees on the grounds that the decree entered May 16, 1925, is res adjudicata; also because no claim was filed by the trustees within one year from the date letters Avere issued in said estate and because the matters set forth in the answer were not a sufficient defense.

All the matters in controversy were tried together on the pleadings, the report of the trustees, objections thereto, answer to said objections, and motion to strike. The court entered a decree on January 4, 1936, ordering that the objections to the items shown in the report of the trustees showing disbursements of $500 to apply on legacies was sustained; that the motion to strike paragraphs 6, 7, 8, 9 & 10 of the answer of the trustees was granted; that the trustees restate their report and show on hand a balance of $613.93; that the trustees pay Heath, administrator of the estate of Laura Cornelia Isabet, deceased, a total of $572 to cover funeral expenses; that the counterclaim of the trustees asking for an accounting from Heath, administrator, be disallowed; that the trustees pay the costs and that the prayer of the guardian ad litem for a review of the decree of May 16, 1925, be denied.

The pleadings leading up to the decree of January 4, 1936, are informal but are not questioned by any of the parties and raise two main issues. First, was the decree of the court dated May 16, 1925, res adjudicata as to the construction of the will of Louis Dixon Isabet, deceased, and upon which the claim of the intervening petitioners, appellees here, was based? It is urged by the appellants that the circumstances which existed on May 16, 1925, and also on July 1, 1925, when Laura Cornelia Isabet appeared before the court, without money or property for her support did not exist at the time of her death; that when she died she had $1,700 in the bank, and left a will providing that her funeral expenses be paid by her executor; that therefore it would be inequitable and unjust for the court to enforce its earlier decree, and that the same should be reviewed in order to do equity; that if said original decree is enforced strictly, even though it was right and just at the time, it would result in completely thwarting the will of the testator. We cannot find any warrant in law to support appellants’ theory. The record shows conclusively that Laura Cornelia Isabet filed her bill to construe the will of her deceased brother, Louis Dixon Isabet. All parties in interest were made defendants and served with process of summons. Mary Martin and Bobert Martin were then minor defendants and a guardian ad litem was appointed to protect their interests, and he filed an answer to the original bill. The executors demurred to and answered the original bill and then filed a cross-bill. In their cross-bill they asked to be named trustees and for other relief. Laura Cornelia Isabet and all other defendants to the original bill were made parties to the cross-bill. The same guardian ad litem represented the minor defendants to the cross-bill and answered for them. The decree was entered in behalf of the cross complainants and prepared by their attorney or solicitor. It recited all the jurisdictional facts and construed the will of the deceased brother. Laura Cornelia Isabet was the only party complainant to the original bill so that all the defendants were adversary parties. Under these circumstances the issues determined by such decree were res adjudicata.

“When some specific fact or claim has been adjudicated and determined in a former suit, and the same fact or question is again put in issue in a subsequent suit, between the same parties, the determination in the former suit, if properly presented and relied upon, will be held conclusive upon the parties in the latter suit as to that question without regard to whether the cause of action in each case is the same.” Dempster v. Lansingh, 244 Ill. 402.

Our conclusion is that the appellants are bound by the terms of the decree construing the will in question in which it was provided that at the death of Laura Cornelia Isabet, the trustees shall first pay the funeral expenses and debts of said Laura Cornelia Isabet before the payment of the specific legacies. Even though by reason of circumstances the provisions of said decree may now seem inequitable, a court of equity is powerless to review or change its terms. .

By the failure to appeal or prosecute a writ of error therefrom, the decree becomes final and no one can thereafter change the same. Wakefield v. Wakefield, 256 Ill. 296. Minor defendants who are personally served with process of summons, properly represented by guardian ad litem, are bound by the terms of a final decree. Hanberg v. Morgan, 263 Ill. 616.

We believe the ruling of the trial court in granting the'appellee’s motion to strike paragraphs 6, 7, 8, 9 and 10 of the answer of appellants ivas correct.

The second question raised by appellants was whether Heath, as administrator of the Laura Cornelia Isabet estate,- should be required to pay back to the appellant trustees money paid to her for her comfortable support and maintenance under a court order entered on the petition of the trustees asking for aid and directions as set forth in the counterclaim of appellant trustees. On June 1,1925, the said trustees filed a petition in the cause asking for the aid and direction of the court as to the amount that should properly be paid to Laura Cornelia Isabet for her comfortable support and maintenance. On July 1, 1925, the court entered an order fixing* the monthly payment to her at the sum of $75 per month and also paying* her $200 for back in-stalments due to her. Payment was made in compliance with this order until January 2, 1934, when the payment was reduced to $37.50 per month. It is the contention of appellants that such monthly payments were made for a definite purpose; that the money did not cease to become trust funds when she received it and because of the fact that she was overpaid and had accumulated the sum of $1,700 at her death, the said amount should now be paid back to the trustees and become a part of the trust assets of the Louis Dixon Isabet estate and be devoted not only to the payment of the funeral expenses of Miss Isabet but to the payment of the specific legacies as well. Laura Cornelia Isabet died on February 23, 1934, and her administrator was appointed on May 7, 1934. The intervening petition of appellees was filed herein on April 16,1935, and the answer and counterclaim of appellant trustees on November 29, 1935. Thus it is seen that no claim was filed against the estate of Laura Cornelia Isabet in this behalf until more than one year had expired from the date letters of administration Avere issued and the claim is barred. People v. Superior Court, 359 Ill. 612.

Even though the counterclaim Avere not barred by the limitation contained in the Administration Act, Ill. State Bar Stats. 1935, ch. 3, we doubt their right to reach the money inventoried in the Laura Cornelia Isabet estate. After the appointment of the trustees by the decree of May 16,1925, they immediately sought the aid of the circuit court in making monthly payments to Laura Cornelia Isabet. At their own solicitation a definite amount was fixed by an order of court approved by counsel for both sides. They Avere fully protected by the decree sought and bound by the same. There are no such facts set forth in their answer as entitles them to recover back the assets of the Laura Cornelia Isabet estate as trust funds. The decree of the trial court was, in our judgment., entirely correct and is affirmed.

Affirmed.


author: Mr. Presiding Justice

text:
    Frank Koranda, Appellant, v. The Equitable Life Assurance Society of the United States, Appellee.
    Gen. No. 38,377.
    Opinion filed June 22, 1936.
    Rehearing denied July 6, 1936.
    Arthur F. Gruenwald, of Chicago, for appellant.
    Mayer, Meyer, Austrian & Platt, of Chicago, for appellee; Frederic Burnham and Miles G. Seeley, both of Chicago, of counsel.
   Mr. Presiding Justice

Hall delivered the opinion of the court.

This is an appeal from a judgment against plaintiff for costs of suit, entered in the municipal court of Chicago. The cause was submitted to a jury, which returned a verdict for plaintiff and against the defendant for the sum of $2,203.61. After the verdict was returned into open court, upon motion of the defendant, the court set it aside, and under Buie 175 of the municipal court of Chicago, entered judgment against the plaintiff, notwithstanding the verdict of the jury.

The charge in the statement of claim filed in the cause is that the defendant entered into a contract with Lyon & Healy, Inc., by the terms of which the defendant agreed to pay certain sums to certain employees of Lyon & Healy, Inc., under the terms of a contract of insurance entered into between Lyon & Healy, Inc., and the defendant, upon a showing that such employee, while under the age of 60 years, should become wholly and permanently disabled as a result of bodily injury or disease; that the plaintiff, while under the age of 60 years, and while in the employ of Lyon & Healy, Inc., on December 11,1930, did become wholly and permanently disabled as a result of bodily injuries received at the hands of unknown persons, and that as a result of such injuries, plaintiff became and was unable to engage in any occupation, or perform any work for profit.

In its affidavit of merits, defendant does not deny that plaintiff was insured, as claimed, nor that he suffered severe injuries and that if he is entitled to recover at all, that the verdict was excessive, but alleges that by the terms of the policy in question, it is provided that “If proof shall be furnished the society that any employee insured under this policy has . . . become wholly disabled by bodily injuries or disease, and will be wholly and presumably permanently prevented thereby for life from pursuing any and all gainful occupation, the society will pay six months after receipt of such proof, in full settlement of all obligation under this contract pertaining to such employee, the full amount of the insurance on such life .... The insurance under this policy upon the life of any employee covered by this contract shall automatically cease and determine . . . upon the termination of such person’s employment with the employer in the specified classes of employees without regard to the cause of such termination .... New employees shall be eligible for insurance upon the above basis upon the completion of three (3) months of service; and for purposes of insurance, reemployment will be classed as new employment and will be subject to all the requirements thereof. This policy, together with the employer’s application therefor, copy of which is hereto attached . . . shall constitute the entire contract between the parties.” Defendant denies, however, that, as a result of any injuries sustained by the plaintiff, he became wholly and permanently disabled within the terms of the policy, nor at a time while insured under said policy, and denies that defendant furnished proof of any claim entitling him to any disability benefits under the terms of the policy, but alleges that plaintiff instead, furnished proof to it which purported to be proof of permanent disability, but which proof affirmatively shows that plaintiff did not become totally and permanently disabled within the terms of the contract of insurance.

It is further alleged in the affidavit of merits that about February 4, 1931, while plaintiff was not totally and permanently disabled within the terms of the policy, plaintiff’s employment by his employer was terminated, and that therefore, plaintiff did not become eligible for insurance under the terms of the policy.

The record shows that on and prior to December 11, 1930, plaintiff was employed by Lyon & Healy, Inc., and was insured by defendant against total and permanent disability under a group policy issued to Lyon & Healy, Inc., his employer, and that on that date, he suffered a severe injury. The record also shows that on February 6, 1931, Lyon & Healy, Inc., entered upon its employment records a notation as to plaintiff to the effect that “Services not required after January 15th, 1931, . . . Salary — time due to and including January 15th, 1931.” A similar notation was made on plaintiff’s payroll card by his employer. It is further shown that on February 28, 1931, Lyon & Healy, Inc., notified defendant of the termination of Koranda’s employment as of January 15, 1931. In so far as we can determine from the record, defendant, at this time, had not been notified that plaintiff had suffered severe injuries, and it is asserted that it was then without knowledge of any reason why his employer had terminated plaintiff’s employment. It is defendant’s contention that the above acts being a termination of plaintiff’s employment by his employer, therefore, his insurance under the terms of the policy was terminated. The record further shows that subsequent to all of the above, and on March 16, 1931, Koranda went back to work for Lyon & Healy, Inc., and continued in his employment until June 6, 1931. Koranda testified that prior to June 6, 1931, he had never been notified that he had been discharged, and that he continued to work as best he could, upon the advice of a Dr. Kelly. There is nothing in the record to suggest that this is not the fact.

It is plaintiff’s contention, however, that he was unable to perform his duties after he went back to work. It is defendant’s contention that, under the terms of the policy, plaintiff’s being taken back to work did not reinsure him, because it was necessary, after reinstater ment, that he should work for three months before being entitled to compensation, and that as a matter of fact, he did not do so, but was again discharged on June 6, 1931. The record indicates that it was on May 25, 1932, that defendant received its first notice of plaintiff’s injury on December 11, 1930, and that Lyon & Healy, Inc., plaintiff’s employer, had previously informed defendant, as stated, that plaintiff had been discharged January 15, 1931, for refusing to return to work after being pronounced sufficiently recovered from his injury which he suffered on December 11, 1930. The proofs furnished by Koranda and by a physician, are to the effect that Koranda had been wholly disabled on June 7, 1931, and that he had last worked on June 6, 1931.

The injury to plaintiff on December 11, 1930, which he claims to be the cause of his permanent disability, was the result of an assault committed upon him while in the employ of Lyon & Healy, Inc., as a piano tuner, and which at the time, rendered him unconscious. He testified that he was taken to the Presbyterian Hospital, and was there treated by Dr. Frank B. Kelly, who testified that he treated the plaintiff every day until plaintiff left that hospital on January 15, 1931, and that the witness saw the plaintiff several times after that date. This physician further testified that on January 15, 1931, plaintiff had a slight paralysis of his right hand and spasticity of the right leg and a slight peculiarity of speech, but that on inquiry, he ascertained that these conditions existed prior to plaintiff’s injury; that he examined plaintiff’s eyes and found the pupils unequal to light and accommodation; that the blow on pláintiff’s head necessitated the taking of 54 stitches, and that the blow plaintiff received could induce a situation like he found in plaintiff; that plaintiff’s tongue deviated to the right, which would indicate a disturbance, a nervous lesion, and a possible injury to the brain; that upon making tests, the witness found that plaintiff could not make his fingers meet, and that this would indicate a brain lesion, which would affect the nerves, and that the lesion in the brain caused the condition which he found. The witness also testified that after the plaintiff was at home for a while, that he tested plaintiff’s writing, and that at first plaintiff could write very poorly, and that he last saw the plaintiff about May, 1931; that early in March, 1931, he, the witness, suggested to plaintiff that the best thing for him to do was to try to work and get his mind off of his condition and that the witness’ relationship with Lyon & Healy, Inc., was such that it was up to' the witness to determine when the plaintiff was ready to go to work. This witness stated that on January 15,11931, the day plaintiff was discharged from the hospital, in addition to the spasticity of the right leg, he showed a weakness in the right arm and hand; that on submitting the plaintiff to the Eomberg test, with plaintiff’s eyes closed, that plaintiff could not maintain his balance, and that this indicated a brain lesion in the location which has to do with the balancing center. It is in evidence that the plaintiff admitted to this witness that he had previously had syphilis.

Dr. Abel Anthony, another physician produced by plaintiff, testified that on the evening of December 11, 1930, he had charge of the emergency room of the Provident Hospital, where the plaintiff was first taken on that evening immediately after his suffering the injury, and before he was taken to the Presbyterian Hospital ; that at about 5:30 of that evening, the police brought plaintiff to the Provident Hospital, and that at that time, he was in a semi-stupor; that at times, plaintiff was unconscious, but at certain times when stimulated, the witness could get a reaction from plaintiff ; that on examination, he found multiple lacerations on plaintiff’s head, particularly on the left side, and that there was a depression in his skull; that the witness applied 45 stitches in sewing up these wounds, that there was a hemorrhage in his left eye, which was bloody, and that he had symptoms of a brain injury. This witness also testified that a man’s brain may be injured even worse when there is a severe concussion than when the skull is broken; that there was projectile vomiting, the witness said, which indicated a concussion or depression of the brain, and the possible rupture of blood vessels of the brain. Asked for his opinion, the witness testified that he concluded that plaintiff had received an injury to the brain.

A fellow workman of plaintiff, also a piano tuner, testified that before the injury to plaintiff on December 11, 1930, he never noticed any limp or peculiarity in plaintiff’s walk, nor any weakness or paralysis of his right hand, nor any peculiarity of his eyesight; that he had seen plaintiff tune pianos many times, and that he did his work properly; that when plaintiff came back to work on March 16, 1931, the plaintiff was entirely different from what he was before; that he limped and was unable to use his arm for tuning, and that the witness noticed a peculiarity in plaintiff’s speech; that prior to that time, plaintiff had been congenial, but that after the accident, he became very abusive; that between March 16 and June 6, 1931, the only work plaintiff did around the place was small jobs like glueing ivories on keys, and that he was unable to engage in his former work of tuning pianos; that when he attempted to use a tool, or pick up objects, they would drop from his fingers, and that he had no control of tools with his right hand, and that plaintiff was right-handed.

The testimony of this witness was corroborated by other employees of Lyon & Ilealy, Inc.

Another physician testified^ that he examined the plaintiff on January 21, 1935. He described certain scars on plaintiff’s head, and stated that the pupils of his eyes did not react properly; that there is a disturbance in plaintiff’s speech; that the right arm is not paralyzed, but that there is lameness, and that the arm does not function, and that plaintiff walks lame on his right leg. This witness testified that, in his opinion, plaintiff had suffered a brain lesion on the left side, affecting his speech, and affecting the motor area for the right side of his body, and that in his opinion, plaintiff is totally and permanently disabled for gainful work, inasmuch as the length of time since the injury is sufficient for him to make the maximum degree of recovery, if that were possible.

Ho testimony was offered on the part of the defendant to refute the testimony of the physicians as to plaintiff’s injuries and the .condition resulting therefrom. Defendant stresses the point that plaintiff, in his notice to defendant company dated July 30, 1932, stated that he became wholly disabled on June 7, 1931, by being struck on the head on December 11, 1930, and for that reason, he cannot recover. The jury found for plaintiff, and from all the evidence in the case, it seems obvious that if plaintiff was totally disabled on June 7, 1931, such disability was clearly the result of the injury which he received when he was assaulted. It is very clear that his effort to work was made at the suggestion and upon the advice of the company’s physician, Dr. Kelly, and that plaintiff was unable to perform his work.

We are of the opinion that plaintiff’s right of action against the defendant accrued prior to the time of his discharge, and that the trial court was in error in entering a judgment for defendant, notwithstanding the verdict of the jury. It is, therefore, ordered that judgment be entered here against defendant for the amount of the verdict, to wit: the sum of $2,203.61. e

Reversed and judgment entered here.

Hebel, J., and Denis E. Sullivan, J., concur.


text:
    A. V. Barney et al., Appellants, v. E. W. Froehlich et al., Appellees.
    Gen. No. 38,384.

      Opinion filed June 22, 1936.
    Charles B. Smith, of Chicago, for appellants; John A. Ulrich, of Chicago, of counsel.
    A. S. & E. W. Froehlich, of Chicago, for appellees.
   Mr. Presiding Justice

Hall delivered the opinion of the court.

By this appeal plaintiffs seek the reversal of an order of the circuit court of Cook county entered on May 16,1935, wherein and whereby it is ordered that a complaint in the nature of a bill for review filed by plaintiffs be stricken, and that the cause be dismissed for want of equity. By the complaint filed in the cause, plaintiffs seek to have a decree of foreclosure of the circuit court of Cook county entered on February 1, 1932, reviewed, reversed and set aside, and that a deed issued under such decree to one E. W. Froehlich, one of the defendants in said complaint, be canceled. The decree which plaintiffs seek to have vacated, was entered in a proceeding brought to “secure a decree of foreclosure against real estate . . . for the purpose of satisfying . . . various mechanics liens.”

The bill in the foreclosure proceeding, in which the decree sought to be set aside was entered,, was filed on December 29, 1929, by the Dry Fast Company, and among the parties made defendant in the bill were the “unknown owners” of certain bonds secured by a trust deed on the premises involved in the foreclosure suit. Service in that proceeding was had on the petitioners herein, as “unknown owners” by publication. Thereafter, 23 other mechanics’ lien claimants appeared in the foreclosure suit and filed their intervening petitions, or answers. It may here be noted that it is the claim of the petitioners in the instant case that the contract with the complainant in that suit with 10 of the intervening petitioners, was executed after the recording of the trust deed given to secure the bonds. It is alleged in the complaint in the instant case that after a hearing, the foreclosure proceeding went to decree on behalf of all of the claimants, 24 in number, on February 1,1932, and by order of the court, a sale was made of the premises to Edmund W. Froehlich, as trustee for all of these claimants; that Froehlich was the attorney for several of the lien claimants in the foreclosure proceeding, and that after the sale, a deed issued to Froehlich, as such trustee; that Froehlich holds the title to the property foreclosed for and on behalf and for the benefit of all of the lien claimants, and that Froehlich is now in possession of the premises involved, as such trustee.

The plaintiffs, 30 in number, filed the bill for review in the instant case in the circuit court on June 22,1934.

In addition to the matters already mentioned, there is alleged inter alia that the petitioners are all owners of bonds secured by trust deed on the property in question, and that they were all made parties in the foreclosure proceeding as “unknown owners”; that shortly after the filing of the bill in the foreclosure proceeding, one John E. Olson, the largest lien claimant, approached the plaintiffs in the instant case, and informed each of them that because of defaults in payment of interest on the bonds, it would be necessary for them to file a suit for their protection, and it is alleged that Olson recommended that they deposit their bonds for this purpose with the firm of Cummings & Wyman, attorneys at law, who then represented one of the intervening petitioners in the foreclosure proceeding sought to be reviewed; that all of the plaintiffs did deposit their bonds with Cummings & Wyman, but that none of them was informed of the foreclosure proceeding until sometime later. It is alleged that the affidavit filed for publication in the foreclosure proceeding, in which it is stated that the owners of the bonds secured by mortgage on the real estate, were unknown, was false; that the statement in the affidavit that the owners of the bonds could not be found upon diligent inquiry was false, because it was well known to the person who made the affidavit, who and where the owners of the bonds were; that after the petitioners in the bill for review had deposited their bonds with Cummings & Wyman, this firm appeared in court on February 7, 1931, and had a default order entered against these defendants in the foreclosure proceeding, and that at that time, this firm of Cummings & Wyman was fully aware of the fact that plaintiffs in this bill for review had no knowledge of the foreclosure proceedings, and that at that time, Cummings & Wyman had in their possession the names and addresses of all of these plaintiffs, the owners of such bonds. On December 20, 1932, Cummings & Wy-man, as solicitors for defendants in the foreclosure proceeding, the owners and holders of the bonds mentioned, — petitioners here — filed in the circuit court of Cook county the following sworn petition:

“These petitioners, Philip Dientlial, Anna Boeson Johnson, Magdalena Meyers, Mary Kelley, Kichard Kelley, Frank J. LeGere, George F. Benjamin, Adelia K. Boyar, Lillian J. Clark, William Lynch, August Bretsch, Joseph Mazikoski, Ella Mazikoski, John. McDonald, Sarah McDonald, Amia E. Moran, George II. Bendall, Joseph Arnsdorf, Thomas Knill, B. W. Cohn, A. V. Barney, Albert Deu, Mrs. James L. Moore, Louise Deu, John J. Schnell, Catherine Schnell, Thomas Geggen, Lulu Boelter, Mrs. George Paxton, George Paxton, Helen McGivern, it. J. White, R. Z. Tracy, Mida Mabel Kirby, and E. Jurgensen, by Cummings and Wyman, their solicitors, respectfully represent :

“1. They were impleaded and made parties defendant hereto as Unknown Owners.

“2. Petitioners further state that neither they, nor' any of them were served with a copy of the bill herein, or received the notice required to be sent to them, or any of them, by mail, or otherwise brought into court.

“3. Petitioners further state that final decree herein was entered on December 22, 1931. Petition further states that they, and each of them, are the holder of the bonds aggregating in total the sum of, to-wit, Forty Thousand Dollars ($40,000.00), secured by a first mortgage trust deed on the premises in question in this proceeding ; that as to some, and possibly all of the claims of the complainants and intervening petitioners herein, the lien of said trust deed and of the bonds held by these petitioners was and is prior and superior in so far as the value of the land upon which said improvements were erected is concerned; that is to say, that said trust deed is in any event a first lien upon the land, prior and superior to the liens of the complaints intervening petitioners herein.

“4. Petitioners further state that no provision was made for the priority of said trust deed against the land, and that no apportionment was made by said decree, or otherwise, in this proceeding, so as to give said trust deed or these petitioners, or any of them, any priority in any particular over any of said mechanics ’ lien claimants, and that in this respect, said decree was in error.

“5. Further answering, these petitioners state that said trust deed was given to secure a so-called construction loan; that most, if not all the proceeds of the sale of the bonds held by petitioners herein, went into the construction of said building, and were paid over to the complainants and intervening petitioners on account of their contracts; that by reason of such fact petitioners are entitled to share in the proceeds of any sale of said premises on a parity with said complainants and intervening petitioners, and that no such provision was made in said decree.

“6. Petitioners further state that neither they, nor any of them, have received any notice as by statute provided, subsequent to the entry of said decree, of the fact of such entry.

“7. Petitioners further show that E. W. Froehlieh, as trustee, was the purchaser at the sale had in pursuance of said decree.

“8. Petitioners therefore pray that this petition may be set down for hearing and that the parties to this suit and said E. W. Froehlieh as such trustee, may answer this petition if they so desire; that this petition, and the answers thereto, may be set down for hearing, and that upon such hearing, the said decree may be modified, changed varied, or vacated as the facts and circumstances may require, and as to equity may seem meet,"etc.

“Philip Dienthal, Anna Boeson Johnson, Magdalena Meyers, Mary Kelley, Richard Kelley, Frank J. LeG-ere, George F. Benjamin, Adelia K. Boyer, Lillian" J. Clark, William Lynch, August Bretsch, Joseph Mazi-koski, Ella Mazikoski, John McDonald, Sarah McDonald, Anna E.-.Moran, George H'.' Rendall, Joseph Arns-dorf, Thomas Knill, B. W. Cohn, A. V, Barney, Albert Deu, Mrs. James Moore, Louise Deu, John Schnell, Catherine Schnell, Thomas Heggen, Lulu Voelter, Mrs. George Paxton, George Paxton, Helen McGivern, R. J. White, R. Z. Tracy, Mida Mabel Kirby, and E. Jurgensen, Petitioners, By Cummings & Wyman, Their Solicitors.

Austin L. Wyman, Of Counsel. ’ ’

No action was taken on this petition until January 4, 1934, when Cummings & Wyman withdrew as solicitors for the petitioners, defendants in the foreclosure suit, and Charles B. Smith was substituted as their solicitor. On April 13, 1934, these petitioners, defendants in the foreclosure proceeding, through their solicitor, Charles B. Smith, asked leave of the court to file an amended petition. No hearing was had on this motion until June 21,1934, when on that date, an order was entered denying the prayer of the petitioners for leave to amend. This order is as follows:

“On motion of Charles B. Smith, solicitor for petitioners Philip Dienthal, et al., for leave to file an amended petition, said motion being opposed by counsel for the respondents, and it appearing to the court that said amended petition sets forth grounds of alleged defense and alleged errors in the decree not set forth or asserted in the original petition of said petitioners, and the said amended petition was not presented or offered to be filéd within one year from the date of the entry of said decree, it is hereby “Ordered that the motion for leave to file said amended petition be and it is hereby denied.

Enter Joseph Burke Judge

Chicago, Apr. 23, 1934.”

It is to be noted that the record contains nothing to indicate in what particular it was proposed to amend this petition. After the entry of this order the petition was dismissed on motion of petitioners.

The petition filed by Cummings & Wyman on behalf of these petitioners was filed under section 19 of the Chancery Act, Cahill’s St. 1933, ch. 22, ft 19, which is as follows:

“When any final decree shall be entered against any defendant who shall have been served by publication with notice of the commencement of the suit and who shall not have been served with a copy of the bill, or received the notice required to be sent him by mail, or otherwise brought into court, and such person, his heirs, devisees, or personal representatives, as the case may require, shall, within ninety days after notice in writing given him of such decree, or within one year after such decree, if no such notice shall have been given as aforesaid, appear in open court and petition to be heard touching the matter of such decree, the court shall, upon notice being given to the parties to said suit who appeared therein and the purchaser at a sale made pursuant to such decree, or their solicitors, set such petition down for hearing and may allow the parties and such purchaser to answer such petition. If upon the hearing upon said petition it shall appear that such decree ought not to have been made against such defendant, the same may be set aside, altered or amended as shall appear just; otherwise such petition shall be dismissed at petitioner’s costs; provided, however, that if a sale shall have been had under and pursuant to such final decree, the court, in altering or amending such decree, may, upon terms just and equitable to such defendant, permit such sale to stand. If upon the hearing of such petition it shall appear that such defendant was entitled under the law7 to redeem from any sale had under such final decree, and that he "wishes to redeem in equity from such sale, the court shall enter its decree permitting such redemption to be made at any time within, ninety days thereafter, upon such terms as shall be equitable and just. ’ ’

In Schuster v. Elsner, 250 Ill. App. 192, in a proceeding brought to foreclose a real estate mortgage, service was had on certain defendants by publication. In a petition filed under section 19 of the Chancery Act, it was represented, among other things, by one of these defendants so served, that the affidavit of nonresidence filed in the cause contained false statements.. This petition was filed after the period provided for in the statute. The court held that under the circumstances, the decree filed in the cause was conclusive of all questions involved, for the reason that the petition was filed too late, and said:

“We are of the opinion that Etna Wilkey was bound by the provisions of section 19 of the Chancery Act, Cahill’s St. ch. 22, ¶ 19, heretofore set out in this opinion. The purpose of section 19 is to afford relief to defendants who, (1) shall not have been served with summons, (2) all those who have not been served with a copy of the bill, (3) or received a notice of the pendency of the suit as provided for in section 12 of the Chancery Act, Cahill’s St. ch. 22,¶ 12. In other words the provisions of section 19 are available only to those who have been constructively served by some means known to the law, and do not apply to anyone upon whom no service of any kind has been made. Where no service has been had upon a defendant he is not bound by a decree and need take no notice of it. Where, however, he has been served by some of the known methods, he is bound by it and must take notice of it. If the service so made was constructive only then he may avoid the binding force of the decree by appearing in open court and asking leave to defend as provided in section 19 aforesaid.” See also Arnoldsville Building & Loan Ass’n v. Dempsey, 339 Ill. 304.

Whatever may have been the conduct of Cummings & Wyman in the premises, the fact remains, that within the period allowed under section 19 of the Chancery Act, by the petition filed on behalf of petitioners here, they set up sufficient facts to enable the petitioners in this bill for review to have had the decree opened up, and to present any defenses which they might have chosen to make, or any rights which they cared to urge. Even after they had secured other counsel, they remained inactive for a considerable period, and finally upon motion made by their substituted counsel, the petition was dismissed. The question before us is whether or not these petitioners, after having abandoned the remedy provided by the statute, can now have the decree in the foreclosure proceeding reviewed, as they seek to do by the petition filed here.

Our first observation is that if the court, in denying their motion to amend the petition, was in error, its action could have been reviewed in a direct proceeding on appeal, or writ of error. (This whole proceeding took place before the new Practice Act became effective.)

In Plank v. Plank, 303 Ill. 254, it was sought to review a decree entered in an injunction proceeding by a bill for review upon the ground that the defendant was of unsound mind, and unable to transact business, and that fraud was practiced in obtaining the signature of this defendant to a certain stipulation, and on the court by certain witnesses who testified in the cause. The petitioner in the bill for review named Bert R. Plank, was the complainant in the original proceeding, and in affirming a decree of the circuit court of DeKalb county in dismissing the bill for review for want of equity, the Supreme Court said:

“Had Bert R. Plank desired a review of such decree it should have been had by a direct proceeding on appeal or writ of error. ’ ’

In 21 Corpus Juris, page 753, we find the following:

“A bill of review will not lie for errors which have been waived, as by failure to raise the point at a time when the error might have been rectified, or by failure to take proper exceptions, or by failure to demur, or where the error has been released.”

In Regner v. Hoover, 318 Ill. 169, the Supreme Court said with reference to the right to have a decree reviewed on a bill filed for that purpose:

“It is evident that the proof does not sustain the charge that the appellant was prevented from presenting her case by reason of representations on the part of the appellee. The clear weight of the testimony is that she knew that the suit was pending. In order to grant relief under a bill of this character on account of fraud, it must show that the complainant was prevented from interposing a defense by fraud and without negligence or fault upon her part. (Crane Co. v. Parker, 304 Ill. 331; Kretschmar v. Ruprecht, 230 id. 492; Telford v. Brinkerhoff, 163 id. 439.) ”

We are of the opinion that the court was not in error in sustaining the motion to dismiss the bill for review herein. The judgment is, therefore, affirmed.

Affirmed.

Hebel, J., and Denis E. Sullivan, J., concur.


text:
    H. E. Wackerle, Appellee, v. Louis Nies et al., Defendants. Louis Nies, Appellant.
    Gen. No. 38,421.
    Opinion filed June 22, 1936.

      Charles A. Phelps, George E. Fitzgerald and Robert C. Springsguth, all of Chicago, for appellant.
    Edward D. Feinberg, of Chicago, for appellee.
   Mr. Presiding Justice

Hall delivered the opinion of the court.

This is an appeal from an order of the municipal court of Chicago dismissing the petition of Louis Nies, filed under section 21 of the Municipal Court Act, Ill. State Bar Stats. 1935, ch. 37, ¶ 409, by which he seeks to have a judgment of the municipal court of Chicago, entered against him on December 30, 1931, in the case of Wackerle v. Nies et al., vacated and set aside. The suit in which the judgment was entered, was upon a claim that Nies, together with Walter J. May and W. E. Swink, were indebted to Waekerle on account of a contract to purchase certain oil leases. After the entry of the judgment of December 30, 1931, an appeal was taken to this court therefrom by Nies, and on December 31, 1933, the judgment was affirmed by this court. The judgments of this court and of the municipal court were reviewed by the Supreme Court, and the judgments of both courts were affirmed. This petition filed under section 21 of the Municipal Court Act is in the nature of a bill for review, and most of the matters set up as a reason for the vacation of the judgment entered in the cause have already been passed upon by this court, and by the Supreme Court, as a. reference to the opinions in both cases will show.

The opinion filed here on appeal from the judgment involved, Gen. No. 35,876 (273 Ill. App. 609), was not published, and in order that a clear understanding be had of the matters then before this court, we quote the opinion in full, as follows:

“This is an appeal by Louis Nies from a judgment of the municipal court of Chicago against Louis Nies, Walter J. May and William E. Swink, defendants in a proceeding brought to recover a balance claimed to be due under an oral agreement alleged to have been entered into between plaintiff and defendants for the sale by plaintiff to defendants of certain gas and oil leases in the state of Kansas. The third amended statement of claim upon which the cause was tried charges that on the 14th day of August, 1930, plaintiff sold to the defendants 17 oil gas leases for the sum of $11,000, on account of which defendants paid plaintiff $1,500 in cash and orally agreed to pay the balance in instalments of $2,500 on September 20, 1930, $2,500 on October 20, 1930, and $4,500 on November 20, 1930, together with interest at the rate of 8 per cent per annum from the time such deferred payments became due, until paid; that the assignments of such leases were to be made to the defendant, Walter J. May, and delivery of such assignments made by forwarding same to the Sheridan Trust & Savings Bank, Chicago, Illinois, on or before August 20, 1930. The statement of claim alleges that plaintiff did deliver copies of these leases, together with the assignments thereof, as agreed; that defendants entered into possession of the lands covered by the leases, and were in possession at the time the suit was instituted, and that the balances agreed upon had not been paid.

“By his separate affidavit of merits, the defendant, Louis Nies, denies that he entered into any oral or written contract with plaintiff, together with the other defendants or otherwise, for the purchase of these leases, or that he agreed to pay the sum mentioned in the statement of claim, or any other sum, or that he was ever a party to any contract, oral or written, by the terms of which defendant purchased, or agreed to purchase, any leases of any such lands, or that he entered into possession of the lands mentioned. This affidavit of merits further recites that the defendant, Louis Nies, is not liable because the alleged oral promises, if made, constituted an agreement not to be performed within a year, were promises to answer for the debt of another, to wit: — Walter J. May, and were for the sale of goods and choses in action of the value of $500 and upwards, and, therefore, because of each of such defenses, the action of plaintiff is barred by the Statute of Frauds.

“H. E. Wackerle, plaintiff, testified that on August 13, 1930, the three defendants called upon him at his oEce in Edna, Kansas, and requested to be shown certain gas properties; that plaintiff, together with the defendants and a man named Brannon looked at the properties; that they returned to the oEce of the plaintiff and the defendant Nies made an offer of $11;000 for these leases and that the plaintiff agreed to accept that amount; that defendant Nies expressed a desire that defendant May act as trustee in the transaction, and that plaintiff was instructed to assign the leases to Mr. May, and that after the assignment was made the leases were to be sent to the Sheridan Trust & Savings Bank of Chicago, Illinois ; that on August 14, 1930, he received a check on account from Mr. Nies for $1,500. The record shows that thereafter on the same date plaintiff and defendant May entered into what is called a sales agreement, which was signed by plaintiff and defendant May, in which it is recited that the party of the first part, meaning* plaintiff, will sell, and the party of the second part, meaning the defendant May, will buy the- oil and gas leases referred to for the price of $11,000,'$1,500 in cash, the receipt of which is acknowledged by the agreement, the balance to be evidenced by three notes, one for $2,500 due September 20, 1930, one for $2,500 due October 20, 1930, and one for $4,500 due November 20,1930, all of the notes to draw interest at the rate of 8 per cent after maturity, and that the assignment of the gas leases was to "be delivered to the Sheridan Trust & Savings Bank of Chicago, Illinois. These notes were executed by May, delivered to plaintiff, and the agreement and the notes are a part of the record herein.

“Thereafter on August 27, 1930, the three defendants, Louis Nies, Walter J. May and William E. Swink, entered into a written agreement between themselves, signed by each defendant, in which it is recited that on or about the 14th day of August, 1930, the three defendants had made a verbal agreement between themselves to purchase for their joint benefit certain oil and gas leases of lands located in Labette County in the state of Kansas from H. E. Wackerle of Edna, Kansas, upon certain terms and conditions; that defendant Nies had advanced the sum of $2,000 on behalf of himself and the other two defendants, $1,500 of which was to cover the first payment on such leases, the balance to be used in drilling a well, and that the purchase contract for these leases had been taken in the name of May, who held the leases for the .benefit of himself, Nies and Swink. This agreement entered into between these three defendants contains the details of mutual arrangements and agreements between the three defendants concerning these gas land leases.

“Defendant Nies testified that on the 14th day of August, 1930, he and defendants, May and Swink and a man named Brannon, called upon the plaintiff, and at that time there was no partnership arrangement between Nies and defendants, Swink and May; that there was some conversation about the gas properties, and that Nies told plaintiff that he was not interested if it meant an investment of cash. Defendant further testified that he left the conference and that defendant May came out to him and told him that he, May, had bought the .property, and that the defendant then told May he was not interested and would not sign any papers; that he then went to the plaintiff, asked to see the contract entered into between plaintiff and defendant May, and there told plaintiff he would have nothing to do with the matter and that he was not interested. Defendant Nies further testified that at that time he was indebted to May in approximately the sum of $2,100, and that at May’s request he drew a check for $1,500 to enable May to make the first payment due to plaintiff under the contract entered into between the plaintiff and May. Nies further testified that when he signed the agreement entered into between the three defendants on August 27, 1932, he was not aware of the fact that it contained recitations to the effect that these three defendants had entered into an oral contract concerning these leases, and that May held the title to the leases for the benefit of all three.

“The point is made by this defendant that plaintiff cannot recover until the notes given to plaintiff by May are surrendered. The record on these notes is that they were produced in'court by plaintiff’s attorney upon request of defendant Nies. The trial court permitted the notes to remain in the possession of plaintiff’s attorney, with the following assurance given by him, to wit:

“ ‘Well, as far as our assurance is concerned, I give the Court the assurance that nothing will be done on these notes until the upper court has made a ruling on this case if the case should go up to the upper court, and as far as any other liability of Mr. May is concerned, the defense of res adjudicata would be a perfect defense. ’

“Appellant’s proposition is that where there is an action upon an account for which a note is given, the plaintiff cannot recover unless he produces the note upon the trial and offers to deliver it up, or shows that it has been lost or destroyed, and the reason is, that the law will presume the note has been paid or put in circulation if it is not produced. (Roland v. Fletcher, 30 Ill. 224.) In the instant case none of these presumptions are present. The notes in question were produced in court on the part of defendant Nies, and by the trial judge permitted to remain in the custody of plaintiff’s attorney, pending this case. Further, we can see no possible situation arise where there can be any liability on these notes on the part of Nies.

“As to the defense of the Statute of Frauds, we have only this to say: The contract was fully performed on the part of the plaintiff, the down payment had been paid by the check of defendant Nies, and if he is liable at all, nothing remains to be done but pay the money. This defense has no merit. In McDonald v. Crosby, 192 Ill. 283, the Supreme Court said:

“ 'As to the first, the demurrer was properly sustained on the ground that the contract declared upon was fully and completely performed upon the part of the plaintiff, and nothing remained to be done by the defendants but to pay the money. (Curtis v. Sage, 35 Ill. 22.) We do not understand under the rule in this state that the Statute of Frauds can be interposed as a defense where the contract is fully performed on the part of the plaintiff, — in other words, the Statute of Frauds cannot be availed of for the purpose of perpetrating a fraud. ’

“The contract signed and executed by Nies and the other two defendants on August 27, 1932, contains an admission of the facts upon which plaintiff’s case is based, and Nies cannot escape liability by the claim that he did not know what he was signing. There is not a suggestion in the record that his signature was obtained by fraud or duress.

“The judgment of the municipal court of Chicago is affirmed.” See also Wackerle v. Nies, 359 Ill. 548.

The matter alleged in the petition to vacate the judgment, which petitioner states was not presented in the former trial, is to the effect that since the entry of the judgment, petitioner has secured evidence, which is substantially as follows, as stated by defendant in his brief filed here: That Swink, one of the defendants in the original suit, and one of the parties to the contract referred to in the former opinion of this court, made between Louis Nies, Walter J. May and W. E. Swink, on August 27, 1930, and after the entry of the judgment in the municipal court, sought to obtain credit and secure loans on the claim of an ownership or interest of approximately $3,000 in the judgment in question; that on January 26,1933, one P. D. Gates made a sworn statement in which Gates stated that he knew Swink; that he, Gates, had a conversation with Swink with reference to a suit pending in the Appellate Court of Cook county, and had advanced Swink some money; that the suit which was then pending in the Appellate Court had been decided against the party who was to pay the money; that Swink stated that his attorney expected a decision in his favor any day; that Swink mentioned Wackerle and May as parties to the lawsuit; that Gates stated in his sworn statement referred to, that, “He (meaning Swink) gave me a letter dated January 10, 1933. He signed the letter on my desk after having dictated it to me. He- said there were three to share in the judgment, Wackerle, an attorney named Brightman, and himself”; that he (Gates) had a conversation with Swink the day after he received the letter, and that Swink was concerned that the letter would get to Mrs. Nies, and said that his attorney told him that if it did, he would lose the case; that the letter (from Swink to Gates) says: “Dear Mr. Gates: I hereby agree to reimburse you for loans made to me for moneys I have coming- from the following sources . . . from a lawsuit now pending in the Cook County courts, in which judgment has been rendered against Louis Nies and others, in favor of H. E. Wackerle, from which I am to receive approximately $3,000.” Petitioner also alleges that May had agreed to testify that Wackerle’s claim was without merit, and that he has since admitted, that in testifying differently in the original hearing, he had committed perjury.

The petition further alleges that the attorney Bright-man referred to in the statement of Gates is the Brightman who swore to the plaintiff’s statement of claim in the municipal court, and was the attorney for Wackerle in said cause; that May did undertake to organize the Labette Oil and Gas Syndicate to take over 2,000 acres of oil and gas leases, and secured the services of one Walsh as his attorney, to draft for him a syndicate agreement, which said Walsh prepared under date of September 2, 1930; that petitioner submits the affidavit of Walsh with a copy of the syndicate agreement; that Walsh states in his affidavit that he prepared the contract' of August 27, 1930, from information received from Swink, Nies and May; that after the signing of the agreement he had several conferences with the parties; that under date of September 2, 1930, he prepared another agreement; that after the execution of the agreement of August 27, 1930, it appeared that the recitals in said contract as to the transactions had by them with Wackerle were incorrectly stated; that the first “Whereas” paragraph of the agreement of September 2, 1930, was modified to read as follows: “Whereas, said Walter J. May owns or controls certain oil and gas leases covering two thousand acres (2,000) of land located in . . . Labette County in the State of Kansas, and has authorized said Louis Nies to enter into a contract with one H. E. Wackerle of Edna, Kansas, to drill a well thereon, . . . ” correctly stated the transactions as explained to him by them; that they explained to him that May had purchased the oil and gas leases and agreed to pay $11,000 therefor; $1,500 in cash; $2,500 by note September 20, 1930; $2,250 by note of October 20, 1930, and $4,500 by note November 20, 1930; that he had authorized Nies to enter into a well drilling contract with Waekerle for the drilling of a well or wells on 2,000 acres of the 2,240 acres; that $2,000 was paid on the contracts with Waekerle; that May intended to bring about the formation of a syndicate and to sell to' the syndicate 2,000 out of the 2,240 acres; that the syndicate subscribers were to have a half interest in the 2,000 acres with May. Walsh says that it was represented to him that May did not have the $1,500 to pay Waekerle on the leases or the $500 on the drilling contract; that pursuant to prior transactions between May and Nies, Nies was obligated to pay to or for May certain moneys; that May induced Nies to advance $666.65 to him and pay the same to Waekerle; that Swink secured a loan of $666.65 from Nies, which was paid to Waekerle; that May induced Nies to advance $666.65, which May promised Nies would be repaid to him by the syndicate, and that the syndicate would pay him any additional moneys which he might pay out under the drilling contract with Waekerle. It is the claim of Nies that the items above mentioned are the subject matter of the contract entered into between Nies, May and Swink on August 27, 1932.

The petition also alleges that the supposed syndicate agreement of September 20,1930, was accepted by May and used by him in his attempt to organize the Labette County Oil and Gas Syndicate; that May reported to Waekerle the action which had been taken to form the said syndicate and that he was endeavoring to secure the necessary moneys from the Texas Oil and Gas Syndicate to induce the members of the Texas Oil and Gas Syndicate to become members of the Labette County Oil and Gas Syndicate and to contribute the sum of $20,000 with which to pay May’s notes due on the 20th of September, October and November, 1930; that pursuant to said statements, Waekerle extended the time of the payment of said notes for May, and that Wackerle did not at any time expect Mes to pay said notes; that he never had any time prior to the institution of the suit requested the payment of the notes from Mes; also that the oil and gas well drilled under the drilling contract failed to produce either oil or gas in sufficient quantities with the result that the syndicate members refused to contribute or pay any amounts to May so that he could pay his notes to Wackerle, and that May defaulted in the payment of said notes; that thereafter said‘Wackerle, May, Swink and Brightman conspired together to secure the entry of said judgment on said fictitious claim. The petition also alleges that before and during the trial of the original case, Mes exhausted all reasonable efforts to discover and produce at such trial the evidence to disprove the plaintiff’s statement of claim; that the evidence he now has he did not know existed; that the same has come to his knowledge and been secured by him since the rendition of said judgment; that said evidence, if introduced at a new trial, would produce a different result and show that the judgment is manifestly wrong.

Section 21 of the Municipal Court Act, Ill. State Bar Stats. 1935, ch. 37, ¶ 409, provides:

“That there shall be no stated terms of the municipal court, but said court shall always be open for the transaction of business. Every judgment, order or decree of said court final in its nature shall be subject to be vacated, set aside or modified in the same manner and to the same extent as a judgment, order or decree of a circuit court during the term at which the same was rendered in such circuit court: Provided, a motion to vacate, set aside or modify the same be entered in said municipal court within thirty days after the entry of such judgment, order or decree. If no motion to vacate, set aside or modify any such judgment, order or decree shall be entered within thirty days after the entry of such judgment, order or decree, the same shall not be vacated, set aside or modified, excepting upon appeal or writ of error, or by a bill in equity, or by a petition to said municipal court setting forth grounds for vacating, setting aside or modifying the same, which would be sufficient to cause the same to be vacated, set aside or modified by a bill in equity: Provided, however, that all errors in fact in the proceedings in such case, which might have been corrected at common law by the w7rit of error coram nobis may be corrected by motion, or the judgment may be set aside, in the manner provided by law for similar cases in the circuit court.”

Petitioners here cite the case of Sargent Co. v. Baublis, 127 Ill. App. 631, in support of their contention. In that case, the defendant in a personal injury suit filed a bill to restrain the collection of a judgment obtained by the plaintiff. It appears that in that case the plaintiff, an employee of the defendant, had suffered an injury which resulted in the fracture of one of his legs, and that on the trial defendant offered in evidence a release of his claim signed by plaintiff, in which it is recited that he had received a certain amount of money in full settlement of his claim. On the trial, and in rebuttal, plaintiff denied that he had received the money, or signed a- release, and that he was in a hospital and unconscious at the time the release was supposed to have been executed. The bill in the case recited that the complainant had searched to secure evidence that plaintiff had signed the release and was conscious at the time, and that he had made -the settlement as alleged, and that he had been unable to find other evidence than that produced at the trial, that the testimony of the plaintiff in that case to the effect that he did not sign the document and did not receive the money which was supposed to have been given, was untrue and perjury, and that definite and positive evidence of such fact could not be obtained until after the conclusion of the trial and after the entry of the judgment. The bill further alleges that thereafter plaintiff in that case had admitted that his testimony which was given as to the release was false and untrue, and that he had perjured himself when he testified as he did. Upon a hearing in the superior court of Cook county, the bill was dismissed for want of equity. Upon appeal to this court, the decree was reversed and remanded, and in its opinion, this court said: v

“It is clear from the averments of the bill that appellee Baublis perpetrated a fraud upon appellant by means of his own perjured testimony, and that the fraud was practiced in the very matter of obtaining the judgment; and it must be regarded as perpetrated upon the court as well as upon appellant. The fraud shown could not have been litigated in the action in which the judgment was obtained, nor was it a matter of which appellant could avail itself in the court giving-judgment. The case stated in the bill is thus brought squarely within the rule stated in Marine Insurance Co. v. Hodgson, 7 Cranch, 332, and Black on Judgments (2nd Ed.), sections 356 and 370, and Storey’s Equity Jurisprudence (13 Ed.) sections 879, 885, 887, 896; and Harding v. Hawkins, 141 Ill. 572.”

The petition by which Nies seeks to have the judgment vacated shows on its face that if he had been diligent, he could have produced at the trial evidence of the alleged facts, which he sets forth in his petition at the time the cause was originally heard in the municipal court. The language of the contract between Nies, May and Swink referred to in our former opinion, admits the facts on which Waekerle made his claim in the case as tried in the municipal court, and upon which the judgment was entered and affirmed by this court and the Supreme Court.

In Kretschmar v. Ruprecht, 230 Ill. 492, the Supreme Court said:

“It is immaterial to the decision of this case whether they had a valid defense or not. They had ample opportunity to present it if they had one, but without any reasonable excuse they neglected to do so. Equity will not relieve against a judgment at law except in cases of fraud, accident or mistake, and then only where the party applying for relief is free from all negligence. ‘It is not enough that the judgment is unjust; it must have been obtained without negligence on the part of the appellant to entitle to relief.’ (Walker v. Shreve, 87 Ill. 474; Tallman v. Becker, 85 id. 183; Harding v. Hawkins, 141 id. 572; Ward v. Durham, 134 id. 195; Hahn v. Gates, 169 id. 299; Lucas v. Spencer, 27 id. 15.) Even though appellees had no right to judgment . . . and no cause of action against appellants, . . . and had taken judgment for a greater amount than was due, yet appellants could not willingly or negligently permit such judgment to be taken and then be relieved from it in equity. False testimony given at the trial or false assertions as to liability are not grounds for setting aside a judgment (Galena & Southern Wisconsin Railroad Co. v. Ennor, 116 Ill. 55); nor is presenting a claim without disclosing a defense which may exist to it: (Ward v. Durham, 134 Ill. 195).”

In Hollister v. Sobra, 264 Ill. 535, in a situation very similar to that presented here, the Supreme Court held that a court of equity has no jurisdiction to relieve against a judgment, and said:

“The bill for injunction is based upon the alleged fraud of appellee in connection with the execution of a note and the transactions occurring prior thereto. All the facts alleged as constituting fraud were either matters of public record or facts which could have been ascertained by appellant by the exercise of ordinary diligence. There is no allegation of fraud in connection with the assumpsit suit which resulted in the judgment. The rule is well established that the fraud for which a judgment may be enjoined in equity must be in the procurement of the judgment. If there be fraud entering into the cause of action which vitiates it, that is a defense which must be interposed in the action at law unless the party has been prevented from interposing the defense by fraud. (Freeman on Judgments, sec. 489.) While equity will relieve from a judgment obtained through fraud, accident or mistake, still the party invoking the interposition of equity must be free from negligence. Appellant had no standing in a court of equity for relief against this judgment, first, because, if the facts existed as stated in his bill, it was his duty to present them as a defense to the action at law unless he was prevented from doing so by some accident, fraud or mistake for which he was in no way responsible; and second, the allegations of fraud do not seek to impeach the law proceeding which resulted in the judgment. These general principles are sustained by Kretschmar v. Ruprecht, 230 Ill. 492, and cases there cited. There was no error in dismissing appellant’s bill.”

We are of the opinion that the court was not in error in sustaining the motion to dismiss the petition. Therefore, the judgment of the municipal court is affirmed.

Affirmed.

Hebel, J., and Denis E. Sullivan, J., concur.