text:
    Elsie Russell, Appellant, v. Guy A. Richardson et al., Trading as Chicago Surface Lines, Appellees.
    Gen. No. 40,787.

      Opinion filed December 13, 1939.
    Edward D. Feinberg, of Chicago, for appellant.
    Frank L. Kriete, John W. Costello and Arthur J. Donovan, all of Chicago, for appellees; John E. Guilliams, of Chicago, of counsel.
   Mr. Justice Burke

delivered the opinion of the court.

Plaintiff filed an action to recover damages for injuries sustained by her through the alleged negligence of the defendants, doing business as Chicago Surface Lines. Following a trial before the court and a jury, a verdict was returned in favor of plaintiff in the sum of $7,500. At the close of plaintiff’s case, and again at the close of all the evidence, defendants moved for a directed verdict, which motions were overruled. After the verdict, defendants filed written motions for a judgment notwithstanding the verdict, and in the alternative, for a new trial. The court allowed the motion for a judgment notwithstanding the verdict. It was, therefore, unnecessary for him to rule on the motion for a new trial. From the action of the court allowing the motion for judgment notwithstanding the verdict, this appeal is prosecuted.

The evidence shows that on February 25,1935, plaintiff, a healthy unmarried woman, 35 years of age, became a passenger for hire upon a southbound State street car, operated by the defendants in the city of Chicago. She was on her way to the Post Graduate Hospital, located at 2400 South Dearborn street, Chicago. She took a seat in the body of the car, and when the car approached the intersection of 24th and State streets, she signaled to the motorman to inform him that she desired to leave the car. She did so by pressing a button located conveniently near her seat. She then left her seat and proceeded to the front platform, where she took a position in front of the exit door, which is on the right of the motorman. She testified that the street car then slowed down so as to move very slowly, that “it was moving about as fast as one would ordinarily walk.” She stated that the motorman opened the door at which plaintiff was standing; that with her left hand she took hold of the iron rod located along the side of the door; that she proceeded to place one of her feet on the step of the street car; that the motorman at that time caused the car to suddenly and violently jerk forward; that plaintiff’s hand was torn from the iron rod she was holding; that the car started suddenly just as she got to the step; that it all happened in the wink of an eye; that she was thrown before she hardly hit the first step; that she knew that the car was moving slowly when she stepped on to the step; that she was thrown into the street, causing her to fall on her shoulder; that she was the only passenger boarding or alighting from the street car at that intersection; that she immediately felt a sharp pain along the entire left side of her body; that then “everything went black.” The motorman and conductor picked her up from the street and assisted her to the sidewalk located on the west side of State street. The conductor made a notation as to her name and address and gave her a card. She walked to the Post Graduate Hospital, about a block away. There she went to the bedroom of a friend of hers, who was employed as a laboratory technician. This friend gave plaintiff some aspirin tablets. Plaintiff then rested in her friend’s room for about one hour and one-half. Plaintiff then proceeded by way of street cars to the Cook County Hospital, where she was examined by a senior interne. She complained of a pain in her back and that she had difficulty in walking. The doctor found a marked redness over the lumbar-sacral region of plaintiff’s back, and also found that the muscles of the back had become stiff and rigid. The doctor strapped her back, gave her anodynes to relieve her pain and advised her to go home and go to bed. It was this physician’s opinion that the condition in which he found plaintiff was due to trauma. After being examined, she went to her home at 501 South Ashland avenue, Chicago. She remained in bed for about three days. While in bed, she felt a numbness develop on the left side of her body. She found that she could not use her left hand and foot in the same manner as she could prior to the accident, and she had difficulty in attempting to lift any object with her left hand. She then returned to her work at the University of Illinois, College of Dentistry, where she was a laboratory technician. In her work, it was necessary for her to use her hands. She found that she could not do her work because she could not employ her left hand. She also found that in standing, if she was not careful to place the weight of her body on her right foot, she would fall. A professor of histology at the University of Illinois, under whom the plaintiff worked, noticed that she was unable to do the work which she was able to do prior to February 25, 1935. He testified that after that date, plaintiff could not do her work as a technician in his laboratory because she was not able to use her left hand. Plaintiff consulted another physician. Before the trial, she was examined by Dr. Marguerite Kunde, who found that she was suffering from high blood pressure; that there was a decrease in the mobility of her left arm and leg and a marked impairment in the sensibilities in her left arm and left leg, and that a condition of atrophy had developed in the muscles of plaintiff’s left arm and leg. Dr. Kunde was of the opinion that the condition would continue indefinitely and would become worse, and that such condition was due to trauma. Upon the trial, plaintiff was allowed to show the jury the extent to which she was able to raise her left hand, which was only to the height of her chest. The court and jury also had an opportunity to observe the plaintiff in walking to and from the witness stand. She described the reason for her inability to use her left arm and leg as being due to a numbness. Dr. Eric Oldberg, an expert neurologist, testified that he made a complete neurological examination of the plaintiff two or three weeks before the trial. He examined her head and neck and all of the twelve cranial nerves and the trunk and extremities to determine the motor function of the trunk, legs and arms. He also examined all of the reflexes, of which there are three kinds, and of the sensations, of which there are several kinds. He found that the patient’s reflexes were all within normal limitations, indicating that there was no organic lesion of the nervous system. He testified that there were no pathological reflexes, and that the reflexes in the left leg and left arm were equal with the right leg and right arm, indicating that there was no damage to the central nervous system. He observed the muscles of both legs and both arms and was of the opinion that they were normal in consistency. He found that there was no atrophy of the muscles. He also found that the muscular action was diminished on the left side and that she did not perform muscular action on the left side as well as on the right side. He stated that he could not see any reason why she should limp, or why she could not use her left arm, and attributed such condition to a state of mind on the part of plaintiff.

In addition to plaintiff, there were five occurrence witnesses, three of whom were passengers on the street car, and entire strangers to the parties. Gaylord Bunting testified that he was riding on the front platform behind the motorman, holding on to the rail which goes around the motorman; that the car stopped at 24th street; that after it stopped the motorman opened the door and plaintiff got off; that she walked three or four feet from the car and she sat down on the ice; that it was very slippery; that the door of the street car was not opened before the car came to a stop; that the car was standing when the lady stepped off; that the car did not niove while she was stepping off; that when she went down she was about three or four feet west of the exit door. Walter Carlson testified that he was riding on the front platform to the left of the motorman; that he did not notice anything out of the way in the operation of the car when it came to 24th street; that the car stopped at the usual place; that after it stopped, the motorman opened the door; that plaintiff got off; that he saw her stepping out of the car and that the next thing he knew she was sitting on the street about two and one-half feet from the door in a westerly direction; that from the time the street car stopped until he saw her on the pavement, the street car did not move. William Barnes testified that he was sitting on the west side of the street car close to the window, a couple of seats back from the door; that the car stopped at 24th street; that plaintiff got off; that after she got off, she slipped and fell when she was about three feet from the car; that he was looking at her when she was leaving the car; that she held on to the handle and got off; that when she let go of the handle, she slipped; that the street car was standing when she got off and that the car did not move when she got off. .

Homer Matthews, the motorman, testified that he was a motorman for the Chicago Surface Lines, and that he had 17 years’ experience as such; that he brought the car to a stop at the regular stopping place at the north crosswalk; that after the car came to a stop, he opened the door and plaintiff got out; that she took two or three steps from the car, and that when he looked again, she fell in a sitting position facing west, directly opposite the car door; that from the time he stopped the car until he saw her in the street, there was no movement of the car; that it remained standing all the time, and that the door of the car was not opened at any time before it came to a complete stop.

Irwin E. Knapp testified that he was a conductor, and that he had been employed as such for 14 years; that the car stopped at the usual stopping place; that the car did not make more than one stop at 24th street that day; that the street car was standing six or seven seconds before he opened the doors; that he saw plaintiff sitting in the street about four feet from the car opposite thé exit door.

The first point argued by plaintiff is that she proved a case which was properly submitted for the determination of the jury. She states that the testimony as to the sudden and violent jerking forward of the street car after the motorman had opened the door at which the plaintiff, with his knowledge, was standing for the purpose of alighting from the street car, and which directly resulted in the plaintiff being thrown from the street car, was sufficient evidence of negligence to be submitted to the jury. We agree that the testimony of plaintiff, taken as true, was sufficient for the submission of the case to the jury on the matter of defendants’ negligence and of whether such negligence was the proximate cause of the injuries she suffered. Plaintiff also maintains that she was in the exercise of due care and caution before and at the time of the occurrence, and that, therefore, she was not guilty of contributory negligence. The burden was on plaintiff to prove, by a preponderance of the evidence, that defendants were guilty of the negligence charged, and that she was in the exercise of due care and caution for her own safety at and about the time of the occurrence. The trial court entered judgment against the plaintiff on the ground that she, as a matter of law, did not prove that she was in the exercise of due care and caution.

In passing upon a motion for a judgment notwithstanding the verdict, made by defendants, the court should not determine whether the verdict is against the manifest weight of the evidence. Defendant maintains that there is no competent evidence to support the allegations of the complaint that plaintiff was in the exercise of due care and caution for her own safety. The rule is that negligence and contributory negligence are questions of fact for the jury. If the matter is open to a difference of opinion, the jury must pass upon it. It becomes a question of law only when the evidence is so clearly insufficient to establish due care that all reasonable minds would reach the conclusion that there was contributory negligence. The motion for a judgment notwithstanding the verdict, presented to the trial court a question of law whether from the evidence in favor of the plaintiff, standing alone, and when considered to be true, together with the inferences which may legitimately be drawn therefrom, the jury might reasonably have found for the plaintiff. The trial court decided, as a matter of law, that the evidence in favor of plaintiff, considered to be true, together with the inferences which might legitimately be drawn therefrom, did not prove that she was in the exercise of due care and caution. For that reason, he entered judgment against her.

At the time of the occurrence, there were in force two sections of the Uniform Traffic Code of Chicago, of which the trial court took judicial notice, and which read as follows:

“Sec. 81. It shall be unlawful for any person to board or alight from a street car or vehicle while said street car or vehicle is in motion.

1 ‘ Sec. 82. It shall be unlawful for any person to ride upon the fender, running' board or outside step of a moving vehicle. This provision shall not apply to any employee engaged in the necessary discharge of his duties.” Defendants say that section 81 of the Uniform Traffic Code is a general safety ordinance, which applies to everyone; that it is not confined to street cars; that it concerns the conduct of citizens in boarding or alighting from any vehicle, including a street car; that it is a recognition by the legislative authority of the city that boarding or alighting from a street car while it is in motion, is dangerous. It is undisputed that an ordinance passed in pursuance of a power conferred by the legislature, has the force and effect of a statute. Defendants also state that the violation of the ordinance is at least prima facie evidence of negligence, and that when plaintiff testified that she was injured while in the voluntary performance of an act which is held by the courts to be prima facie evidence of negligence, there is no legal basis for a finding that she has proved that she was in the exercise of due care in the absence of additional evidence to overcome such prima facie evidence, and that where there is no such additional evidence, the court has no alternative than to hold that the plaintiff has failed, as a matter of law, to prove due care. Without the ordinance, the rule is that it is not negligence per se for a person to get on or off of a slowly moving car, whether propelled by horse power, cable or electricity, and that the question of contributory negligence in such case is one of fact for the jury. (Kelly v. Chicago City Ry. Co., 283 Ill. 640; Springfield Consol. Ry. Co. v. Hoeffner, 175 Ill. 634; Chicago Union Traction Co. v. Lundahl, 215 Ill. 289.) The question that faces us is whether the existence of the ordinance changes the rule. The trial judge undoubtedly reasoned that the plaintiff violated the ordinance and that such violation established, as a matter of law, that she did not exercise due care. The ruling, in our opinion, is contrary to the doctrine laid down by our Supreme Court in Lerette v. Director General of Railroads, 306 Ill. 348. In that case the evidence showed that Lerette attempted to climb over the bumper of two cars after a string of cars which were blocking Ms way failed to move for a period of about twenty minutes. Just as he was getting onto the bumper, the string of cars, without warning, was suddenly jerked and he fell backwards and the wheel of one of the cars ran over his right leg. The jury returned a verdict for the plaintiff in the sum of $18,000. On appeal, the defendant contended that plaintiff, in attempting to climb over the bumper between the cars, violated a section of an act pertaining to the operation of railroads, and that, therefore, he was guilty of contributory negligence, which contributory negligence was the proximate cause of the injury. The court said: ‘ ‘ The mere fact that plaintiff was violating the law at the time he was injured will not bar his right to recover unless the unlawful act in some way proximately contributed to the accident in which he was injured. (Star Brewery Co. v. Hauck, 222 Ill. 348; Graham v. Hagmann, 270 id. 252; Ensley Mercantile Co. v. Otwell, 142 Ala. 575, 4 Ann. Cas. 512; Munroe v. Hartford Street Railway Co., 76 Conn. 201, 56 Atl. 498.) In determining whether the unlawful conduct of plaintiff will bar his right to recover there must be kept in mind the distinction between that which directly and proximately produces or helps to produce the result as an efficient cause and that which is a necessary condition or attendant circumstance of it. If the illegal act is a mere condition which made it possible for the accident to occur but is in itself no part of the accident it will not bar recovery. It is, of course, an essential condition of most accidents that the injured party be where he was at the time he was in order for the injury to occur, and the fact that he would not have been there if he had not been violating the law is not, in itself, a defense. (Newcomb v. Boston Protective Department, 146 Mass. 596, 16 N. E. 555; Berry v. Sugar Notch Borough, 191 Pa. St. 345, 43 Atl. 240; Tackett v. Taylor County, 123 Ia. 149, 98 N. W. 730.) Granting, but not deciding, that appellee’s act in climbing through the string of cars, under the circumstances, was an illegal act, it is still a question of fact whether this illegal act was the proximate cause of the injury. (Lake Erie and Western Railroad Co. v. Mackey, 53 Ohio St. 370, 41 N. E. 980; Illinois Central Railroad Co. v. Panebiango, 227 Ill. 170; Rosenthal v. Chicago and Alton Railroad Co., 255 id. 552.) It is clear that appellee would not have been injured as he was injured if the cars had not been moved at the time and in the manner they were moved. It is therefore a controverted question of fact whether the act of appellee in climbing through the cars was the proximate cause of the injury received, and that question has been settled in appellee’s favor by the judgment of the Appellate Court. ’ ’ The rule has been followed in Jeneary v. Chicago & Interurban Traction Co., 306 Ill. 392; Plumb v. Gets, 366 Ill. 273; and Gourley v. Chicago & Eastern I. R. Co., 295 Ill. App. 160. We are of the opinion that the trial court erred in deciding, as a matter of law, that plaintiff had not established that she was in the exercise of due care for her own safety. Furthermore, we are of the opinion that the cited ordinance is not applicable to the factual situation presented.

Defendants argue that plaintiff was alighting from the car when, according to her testimony, the speed of the car was accelerated. She testified that as the car slowed down, the motorman opened the door and that while the car was still moving slowly, she advanced one foot toward the step. The ordinance must be given a reasonable construction. We believe that what it intends to prohibit is, “any person to board or alight from a street car” while said car or vehicle is in motion. We do not believe that the testimony of plaintiff shows that she was alighting from the street car while it was in motion. It shows that she was preparing to alight. Apparently, from the actions of the conductor in opening the door before the car stopped, he recognized that she was preparing to alight. We are of the opinion that the ordinance is not applicable to the facts of the case.

Defendants state that should we be of the opinion that the court erred in entering a judgment notwithstanding the verdict, that we then consider whether there was any error in the case which would entitle them to a new trial. They make such suggestion under the provisions of section 68 (3)c of the Civil Practice Act [Ill. Rev. Stat. 1939, ch. 110, §192; Jones Ill. Stats. Ann. 104.068]. We will now consider whether errors were committed which entitle defendants to a new trial. In that section of their brief, defendants say that the verdict is against the manifest weight of the evidence. There is a sharp conflict in the testimony. Her testimony is contradicted by the occurrence witnesses. Defendants cite the cases of Peaslee v. Glass, 61 Ill. 94; Smith v. Slocum, 62 Ill. 354; Reinowski v. Richardson (Abst.), 279 Ill. App. 633; Dick v. Swenson, 137 Ill. App. 68, and other cases in support of their argument that we should allow a new trial. In the Smith case, at page 360, the Supreme Court said:

“As a general rule, it is the province of the jury to judge the credibility of the witnesses and to say what weight shall be given to the evidence; but then they must do so intelligently and not arbitrarily. ... So we say in this case that it was an unwarranted assumption of power in the jury to reject the evidence of so great a number of disinterested and unimpeached witnesses and found their verdict alone on that of an interested witness, and herself a party to the record. This would be a perversion of the plainest principles of justice.” In the Peaslee case, at page 95, the Supreme Court said: “Without saying that this court would set aside a verdict for the plaintiff, rendered in such cases, on the ground alone that it was not sustained by the evidence, we must set aside one resting only upon the evidence of the plaintiff when that is contradicted not only by the defendant but also by another witness, and there are no elements of probability to turn the scale. Such is the present case.”

Plaintiff, in opposing the motion for a new trial, cites several cases, among them being the case of People v. Hardsell, 361 Ill. 465, where the court said, page 468:

“Whatever may be the rule in certain other jurisdictions, we firmly adhere to our often-asserted belief that it is the province of the jury, alone, to determine the weight of the evidence and the credibility of witnesses. If it were not so there would be little use for the jury system. The jury, as a fact-finding body, is of such importance that an abridgment of its functions in this regard and an appropriation of them by the judges would mean the forsaking of a valued tradition in our system of jurisprudence. The utmost caution should be exercised not only by the trial courts but by the reviewing courts to uphold the sanctity of the trial by jury.” and Joseph Taylor Coal Co. v. Dawes, 122 Ill. App. 389, where the court, at page 391, said:

“It is only where the verdict is so manifestly against the weight of the evidence as to make it apparent to the court that the verdict was not the result of the impartial and honest judgment of the jury, but that it must have resulted from mistake, partiality, prejudice, or some improper motive or condition, that a trial court is warranted in setting aside the verdict and awarding a new trial on the ground that the verdict is against the weight of the evidence. ’ ’ The rules announced in the cited cases are applicable to the facts in those cases. After a careful perusal of the record in the instant case, we conclude that we would not be justified in finding that the verdict is contrary to the manifest weight of the evidence.

Defendants criticize the action of the court in giving and refusing various instructions. The court gave 20 instructions on behalf of defendants. These instructions, in our opinion, clearly presented defendants’ position to the jury. Some of the instructions that were given by the court, when considered apart from the other instructions, might tend to confuse or mislead the jury. However, when the instructions are considered as a whole, we arrive at the conclusion that the jury was fairly instructed as to the law of the case. In determining whether the court erred in giving and refusing instructions, it is well to bear in mind the view expressed in the case of Reivitz v. Chicago Rapid Transit Co., 327 Ill. 207, at page 213:

“The test, then, is not what meaning the ingenuity of counsel can at leisure attribute to the instructions, but how and in what sense, under the evidence before them and the circumstances of the trial, ordinary men acting as jurors will understand the instructions. (Chicago Union Traction Co. v. Lowenrosen, 222 Ill. 506; Funk v. Babbitt, 156 id. 408.) ” We have also considered the objections by defendants to the rulings of the trial court on the admission of evidence, and are of the opinion that on the whole, such rulings were proper.

Finally, defendants urge that the damages awarded of $7,500, are excessive. Plaintiff testified that she walked from the place where she was picked up, to the Post Graduate Hospital, and from there to the street car. She then proceeded to the County Hospital and from there to her home. There were no bone fractures, sprains or dislocations. A careful consideration of the testimony concerning the injuries which plaintiff claims, convinces us that the verdict is excessive, and we are of the opinion that the damages should not exceed $4,000. The judgment entered notwithstanding the verdict is reversed, and judgment is entered here for plaintiff and against defendants in the sum of $4,000 if the plaintiff shall within 10 days file in this court a remittitur in the sum of $3,500; otherwise, the judgment is reversed and the cause remanded to the superior court of Cook county for a new trial.

Judgment reversed and judgment here for $4,000 upon remittitur; otherwise judgment reversed mid cause remanded.

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


source: Caselaw Access Project

author: Mr. Justice Burke

license: Public Domain

text:
    Katherine N. Kellogg, Appellee, v. Wilbur F. Kellogg, Appellant.
    Gen. No. 40,797.

      Opinion filed December 13, 1939.
    William E. Cloyes, Harvey L. Cavender and Herbert J. Choice, all of Chicago, for appellant.
    J. Colburn Hamilton, of Chicago, for appellee; David A. Canel and Daniel F. Kemp, both of Chicago, of counsel.
   Mr. Justice Burke

delivered the opinion of the court.

On September 16, 1930, plaintiff filed a petition against the defendant in the Supreme Court of the District of Columbia. Therein she averred that she was a citizen of the United States and a resident of the District; that defendant was also a citizen of the United States and a resident of the District; that the parties were married in the city of Washington on September 29, 1915; that two children were born of the marriage, both of whom were then in the custody of the plaintiff; that the couple lived together and cohabited as husband and wife until March 31, 1928, when they separated on account of the conduct of defendant; that during their married life she conducted herself as a faithful and obedient wife; that defendant committed acts, which gave her the right to a divorce, in which she asked for custody of the children, for alimony and support money and for such other further relief as the nature of the ease required. On September 9, 1931, defendant filed an answer, wherein he denied that the separation was caused by any wrongful conduct on his part. The answer also set out that he was then a resident of the city of Chicago. The defendant is a patent attorney. On November 24,1933, an interlocutory decree of absolute divorce was entered, and on March 12, 1934, a final decree was entered. The decree, in addition to awarding a divorce to plaintiff, gave custody of the children to plaintiff and directed that the defendant pay to her as permanent alimony for the support and maintenance of herself and the children, the sum of $100 per month, payable on the first day of each month. At the time the decree of divorce was entered, defendant was a resident of Chicago. In the divorce action, Alvin L. Newmyer appeared as attorney for the defendant. The name of the Supreme Court of the District of Columbia has been changed to the District Court of the United States for the District of Columbia. On February 23, 1937, E. E. "Wellford, attorney for plaintiff in the divorce case, filed a motion in the district court and therein moved the court to enter a judgment in behalf of plaintiff for arrears in alimony under the decree entered on March 12, 1934. The motion was supported by an affidavit of plaintiff, wherein she itemized by month and year the amount's of temporary and permanent alimony which she asserted defendant had not paid her, amounting to $2,740. On the same day, Mr. Wellford, attorney for plaintiff, filed a notice, addressed to Alvin L. Newmyer, attorney for defendant. The notice reads:

“Please take notice that the points to be submitted in support of this motion, and the authorities intended to be used are attached hereto. The rules of the above entitled Court require, that if you oppose the granting of the above motion, you or your attorney in this cause shall, within five days from the date of service of a copy of this motion upon you, or such further time as the Court may grant, or as the parties to the suit may agree upon, file in reply with the clerk of said Court, a statement of the points and authorities upon which you rely, and serve a copy thereof upon counsel for the plaintiff.

“Richard E. Wellford, Attorney for Plaintiff

“Service acknowledged this 23rd day of February, 1937.

“Alvin Newmyer, Attorney for Defendant By: R. E. Wellford.”

On February 25, 1937, Mr. Newmyer, attorney for defendant, wrote a letter to Mr. Wellford, which reads:

‘ ‘I have your letter of February 23rd enclosing modified motion for judgment and execution in the case of Kellogg v. Kellogg, Equity No. 51878, and note that you signed my name as acknowledging service on the original when you did not find me in motion court yesterday. I do not know whether or not I still represent the defendant and the question whether I have the authority to accept service on such motion for him inasmuch as the final decree was entered some time ago in the case and I have had no communication from him since that time. Therefore, do not use the acceptance of service which was signed on my behalf as against my client, hut I would prefer that my own status be first determined, and in order to ascertain this I have forwarded to the last known address of Mr. Kellogg the papers which you mailed me. As soon as I hear from Mm, I will communicate with you.

“In the meantime, kindly see that no judgment is entered on the papers as filed by you.

“ThanMng- you, and with kind regards, I remain,

Tours very truly,

A. L. Newmyer.”

The letter explains why Mr. Wellford acknowledged the notice of February 23,1937. Apparently, Mr. Newmyer did not consider that the action of the opposing attorney was irregular. On March 1, 1937, the attorney for defendant (in the divorce case) wrote the attorney for plaintiff (in the divorce case) that he had received a communication from his client, which stated that his client would communicate with him further within the next three weeks. In the letter the attorney for the defendant requested the attorney for plaintiff to hold the matter in status quo until he heard further from him. On April 8, 1937, the attorney for defendant again wrote the attorney for plaintiff, stating:

“In the Kellogg* case, I have received a telegram from Mr. Kellogg, stating* that by reason of his illness he has been delayed in responding to my letters and requesting an extension of time for one week more, which will be until April 19th. Will you kindly see that the motion is postponed until that time, and in the meantime I hope to have some word for you.

“With kind regards, I remain,”

On April 23, 1937, the District Court of the District of Columbia decreed that the defendant pay plaintiff the sum of $2,740, “said sum being amount of arrears of alimony due plaintiff under order of court up to and including the 28th day of February, 1937, and unpaid, and that plaintiff shall have judgment for said amount with execution as at law.”

The following rules of the District Court of the United States for the District of Columbia are pertinent in deciding the issues:

1‘ The law rules shall apply in equity and equity rules shall apply at law unless inconsistent with the rules prescribed.

“Every requirement in these rules or in any order of the Court or Judge for the giving of notice to any party or his counsel may be complied with unless otherwise specifically provided by giving prescribed notice to his counsel of record having an office in this district.

“If any attorney be permitted by Court to withdraw his appearance for any party to any cause, said attorney, notwithstanding his withdrawal, shall be deemed to be the attorney of record for such party for the purpose of service of papers only until such time as another attorney shall enter his appearance of record for such party and give notice thereof to adverse counsel.”

On May 20,1937, plaintiff filed a statement of claim in the municipal court of Chicago and asked judgment against defendant for the sum of $2,740 because of the judgment recovered in the district court on April 23, 1937. Defendant answered. On July 1, 1938, plaintiff moved for a summary judgment. Defendant also filed an affidavit in opposition to the motion for summary judgment. On July 28,1938, the court entered a summary judgment against defendant in the sum of $2,898.40, and defendant prosecuted an appeal to the Supreme Court. That court in the case reported in 371 Ill. 241, decided that the record did not show that a constitutional point on which appellant relied had been raised or ruled on in the trial court, and that therefore the point could not serve as a basis for a direct appeal. Hence, the Supreme Court transferred the case to this court.

The first criticism leveled at the judgment is that section 57 of the Civil Practice Act [Ill. Rev. Stat. 1939, ch. 110, § 181; Jones Ill. Stats. Ann. 104.057] is unconstitutional. The Supreme Court disposed of the objection by saying that it had not been raised or ruled on by the trial court. Furthermore, the provisions of the Civil Practice Act are inapplicable to the municipal court of Chicago unless expressly declared to be applicable by the rules adopted by the judges of that court. The procedure on appeals, however, is governed by the Civil Practice Act and the rules adopted thereunder.

The second objection interposed is that an issue of fact was raised by the pleadings and affidavits, and that it was error for the court to enter a judgment without granting to the defendant a trial of the issues raised. In Diversey Liquidating Corp. v. Neunkirchen, 370 Ill. 523, the court declared that paragraph 3 of Rule Ill of the municipal court of Chicago was invalid in that it denied a litigant the right of a trial of the issues made by the pleadings and affidavits. Here, however, there is no dispute as to the facts. The record herein contains all of the proceedings in the District Court of the District of Columbia, and there is no dispute as to what occurred. In our opinion, only questions of law were raised by the pleadings and affidavits. Therefore, there was no triable issue of fact for the court. We are called upon then to determine whether the court ruled correctly on the points of law raised.

The case was filed and prosecuted under the provisions of section 2 of the Municipal Court Act (sec. 357, ch. 37, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 108.028]) which gives the court “jurisdiction of all actions on contracts, express or implied, whether implied in law or implied in fact, when the amount claimed by the plaintiff, exclusive of costs, exceeds $1,000.00.” Defendant insists that plaintiff could not sue in the municipal court on the judgment recovered in the district court. He contends that the action is not on a contract, “express or implied, whether implied in law or implied in fact.” In all of the reported decisions the courts of this State have held that an action on a judgment or decree is an action in debt and not in assumpsit. In Dow v. Blake, 148 Ill. 76, the Supreme Court decided that an action of debt lay in this State upon a final decree for alimony rendered in another State, and that the constitution of the United States requires that full faith and credit be given to such decree in every other State. In the case of Brown v. Gerson, 182 Ill. App. 177, this court held that under section 2 of the Municipal Court Act that court did not have jurisdiction of an action for more than $1,000 based on a judgment. At that time section 2 read that the court had jurisdiction of “all actions on contracts, express or implied, when the amount claimed by the plaintiff, exclusive of costs, exceeds $1,000.00.” In 1931 the language was amended to read, “whether implied in law or implied in fact.” The amendment was adopted at the election held on November 8,1932. This court in an opinion by Mr. Justice O’Connor, in the case of Fidelity d Deposit Co. v. Stanford, 296 Ill. App. 1, held that the 1931 amendment gave the municipal court of Chicago jurisdiction in an action of debt on a judgment where the judgment was for more than $1,000. That opinion holds that the judgment constitutes a contract implied in law. We adhere to the views there expressed. Hence, the municipal court of Chicago had jurisdiction to entertain the instant cause.

Finally, defendant assails the judgment by saying that the district court was without jurisdiction of the person of the defendant when it entered the order of April 23,1937, on which plaintiff’s instant suit is based. No attack is made on the validity of any rule of the district court, but the claim is that the judgment is void for want of compliance with the rule as to notice. One of the rules of the district court is that notice to any party may be given to his counsel of record having an office in the district. Another rule provides that if any attorney be permitted by the court to withdraw his appearance, such party, notwithstanding his withdrawal, shall be deemed to be the attorney of record for such party for the purpose of serving notice until such time as another attorney shall appear for such party and give notice thereof to-adverse counsel. Ordinarily, an application to enforce a decree for alimony must be made in the court which granted the decree. (Harding v. Harding, 120 Ill. App. 389.) It has frequently been held that a court retains jurisdiction to enforce the executory provisions of a decree. It is common for parties to divorce cases to resort to the jurisdiction of the court after a decree has been entered. Questions frequently arise involving the custody of children, modification as to the payments of alimony and support money, and the enforcement of the various clauses of the decree. Defendant states that the rules of the district court providing that notice may be given by service on the attorney of record, do not apply after the case has been disposed of. There is nothing in the language of the rules to indicate that their application is limited. Defendant, and the attorney representing him, knew at the time of the entry of the decree that in all likelihood it would be necessary to take other steps in that case. The natural and orderly procedure would be for the attorney representing the plaintiff to notify the attorney representing the defendant. That was done. The attorney representing the defendant then notified his client. The defendant requested postponements, which were granted. Clearly, the defendant had full opportunity to present to the district court any defense that he might have. He did not do so. The district court clearly had jurisdiction to enter the judgment against him. He did not appeal and it stands against him as a valid judgment. The defendant does not, in the instant case, challenge the correctness of the amount that was due under the decree.

The municipal court of Chicago had a clear right to decide, as a matter of law, from the pleadings, affidavits and exhibits that the judgment entered in the district court was valid and enforceable. We are satisfied that the district court had jurisdiction of the subject matter and of the parties, and the municipal court was right in entering judgment against defendant.

For the reasons stated, the judgment of the municipal court of Chicago is affirmed.

Judgment affirmed.

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


author: Justice Burke.

text:
    Personal Loan and Savings Bank, Appellant, v. John W. Anderson and W. J. Walls, Appellees.
    Gen. No. 40,973.

      opinion filed December 13, 1939.
    Reginald C. Darley, for appellant; Oscar G. Wahlgren, of counsel; no appearance for appellees.
   Opinion by

Justice Burke.

“Not to be published in full.”


author: Justice Hebel.

text:
    James L. Cooke and Elsie Main Cooke, Appellants, v. Vernon R. Loucks et al., Trading as Loucks, Eckert and Peterson, Appellees.
    Gen. No. 40,519.
    opinion filed December 13, 1939.
    West & Eckhart, for appellants; John Neal Campbell, James B. Wescott and William L. Bourland, of counsel; A. J. Hennings and Willard A. Pease, for certain appellees; Malcolm McKerchar, of counsel; Tom Leeming, for certain other appellees.
   Opinion by

Justice Hebel.

“Not to be published in full.”


text:
    Feldman Brothers Commission, Inc., Appellant, v. Western Tree Company et al., Appellees.
    Gen. No. 40,718.
    opinion filed December 13, 1939.
    Irving G. Zazove, for appellant; Oscar S. Seaver and J. Edward Jones, for appellees C. H. Robinson Company and E. J. Guldan.
   Opinion by

Justice Hebel.

“Not to be published in full.”


author: Mr. Justice Hebel

text:
    St. Boniface Building and Loan Association, Appellee, v. Constantinos Demopoulos, also known as Gust Demos, et al., Defendants. Appeal of Frank J. Ueker, Appellant.
    Gen. No. 40,728.
    Opinion filed December 13, 1939;
    rehearing denied January 4, 1940.
    Maurice Turner and Julius L. Handelman, both of Chicago, for appellant.

      Henry N. Miller, of Chicago, for appellee.
   Mr. Justice Hebel

delivered the opinion of the court.

This is an appeal by the defendant Frank J. Ueker, a contractor. The court decreed that the defendant’s trust deed is a subordinate lien to the lien of the plaintiff for a loan alleged to have been made to the defendant Constantinos Demopoulos, otherwise known as Gust Demos and hereinafter referred to as Gust Demos.

The plaintiff’s trust deeds covered two parcels of land owned by the same mortgagor. The master’s report in this case to whom the cause was referred, recommended that the complaint be dismissed for want of equity. The court, however, sustained exceptions to this report and entered a decree granting the relief prayed for.

The plaintiff alleges that in February 1931, two notes, one for $10,000 and one for $2,000, secured by trust deeds, were executed by the defendant Gust Demos, and were delivered to the plaintiff; that the plaintiff relying upon the promises set forth in these notes, paid out proceeds for the benefit of the maker of the notes to this contractor and certain subcontractors, and materialmen for the construction of the building on the premises owned by the defendant Gust Demos known as 814 North Paulina street, Chicago, Illinois; that the defendant claims to be the owner of a note for $3,000 and a trust deed executed subsequently covering the North Paulina street property, and another parcel known as the vacant corner lot, which trust deed was recorded on May 17, 1934.

The statement of facts contained in the brief of this defendant Frank J. Ueker states that the right of the plaintiff, a building and loan association, to establish its mortgages against the owner of the property and to compel the owner to execute such mortgages to perform his admitted promise is not denied.

Gust Demos was in 1930, the owner of property at 814 North Paulina street, Chicago, Illinois, and purchased a building from the Board of Education. He employed the defendant Frank J. Ueker to wreck the building on the Paulina street lot, and to move the building purchased by the defendant Gust Demos onto this lot, remodel and rebuild it. Demos made application to the plaintiff for a loan sufficient to pay the expenses of remodeling.

On February 14, 1931, Gust Demos executed two notes or agreements to the plaintiff, one for $10,000 and one for $2,000. The agreement in these notes provides that the performance of this agreement is secured by a mortgage upon real estate of even date herewith, that is even date with the execution of these notes. The defendant Ueker knew that Gust Demos signed these notes. Thereafter the plaintiff paid out the proceeds of the loan to the defendant contractor, subcontractors and materialmen all in connection with the wrecking of the old building, removal, remodeling and the rebuilding at 814 North Paulina street, in Chicago, of the building purchased from the Board of Education, such payments having been made from January, 1931, through August, 1931.

Henry Brod was secretary and general manager of the plaintiff in 1930 and until August, 1932, when he disappeared. He also was employed by Henry P. Kransz & Co., who was the disbursing agent for the plaintiff. In August 1933 Brod was indicted for larceny of funds of Kransz & Co., and in September, 1933 was found guilty in the criminal court of Cook county, and a judgment of guilt was entered, and he was incarcerated for a period of three years.

The by-laws of the plaintiff provided that quarterly audits both of physical securities and bookkeeping entries be made and delivered to each director, and for monthly statements of delinquent members’ accounts, and this was done.

The plaintiff introduced 73 exhibits, consisting of the checks of the plaintiff, to the defendant Ueker, contractors’ affidavits, waivers of lien and all original records pertaining to the making of the loan and the disbursement of the funds. The evidence also discloses that the mortgages of the plaintiff were entered on their records and ledger sheets made out for each mortgage; that notes and mortgages together were placed in security envelopes and physically inspected and audited quarterly.

The defendant however contends that the question to be considered is whether a mortgage or mortgages were actually executed, and that the law is fairly well settled that though one has actual notice of the execution of a mortgage which is not recorded, he is subject to such equitable or unrecorded mortgage, and one having knowledge of an agreement to give a mortgage is not thereby barred from subsequently obtaining a lien on the same property, and cites in support of his contention 41 Corpus Juris 552, par. 504, and quotes the following:

“ ‘. . . it is a settled rule that one who takes a mortgage or other lien upon property, or a conveyance of it, with actual knowledge of an earlier, although unrecorded, conveyance of it or lien upon it, takes it subject thereto, and will not be permitted by placing his mortgage first on the record to gain priority over the earlier lien. . . . But it must be knowledge of the actual existence of the prior conveyance or encumbrance, and not merely information of a purpose or agreement on the part of the grantor to make or give it, . . . ’ Cases cited are Koon v. Tramel, 71 Iowa 132; Butter v. Stevens, 26 Me. 484; Cushing v. Surd, 4 Pick. (Mass.) 253.” And defendant Uelcer concludes with this suggestion:

“It is apparent that if no mortgage or mortgages were actually executed, the defendant, Ueker, was not barred from taking a subsequent mortgage on the same property, even though he knew of the agreement to execute mortgages to secure the notes held by the plaintiff.”

The evidence further discloses that the plans for the remodeling of the building, and the contractor’s statement, showing what each subcontractor was to be paid, was submitted to the plaintiff, and that after the appraisers satisfied themselves as to the cost of the building, the plaintiff paid out the proceeds of the loan.

The plaintiff’s reply to this contention is that to improve the lots, the defendant Gust Demos executed and delivered to the plaintiff early in 1931 two mortgages, each covering his two lots, one securing a $10,000 agreement and the other a $2,000 agreement, both signed by him; that the plaintiff paid out $9,306.25 for such improvement on orders of Gust Demos and his contractor, TJeker; that said mortgages were lost and never recorded and cannot be found; that defendant TJeker had constructive notice of the existence of the mortgages and the payment of said money prior to the making and recording of his trust deed from Gust Demos to B. E. Pikiel, dated May 10,1934, covering both lots and recorded May 17, 1934, securing a $3,000 note, signed by Gust Demos, and that his lien thereunder is subject to the plaintiff’s lien under its mortgages securing its $10,000 and $52,000, provided for in the agreements, as established by the decree, and that Gust Demos, having been served with summons and having failed to file any appearance, answer or motion to join in the appeal, is concluded by the decree entered by the chancellor. Plaintiff points to the evidence in the record that on March 23, 1927, Gust Demos, a member of the plaintiff association, borrowed from the plaintiff on the building- and loan plan $7,000 and signed and delivered an agreement and mortgage to the plaintiff securing the loan on two pieces of real estate, one a vacant lot at Elston and Central avenues and the other a lot at 814 North Paulina street, improved with an old building. This $7,000 mortgage was reduced by payments, leaving a balance of $1,000, before September, 1930. Gust Demos ran an ice cream business at 1700 West Chicago avenue; his landlord increased the rent and he thereupon consulted the plaintiff’s secretary about a loan for the purpose of putting a building on the Paulina street lot. The secretary told him to consult a contractor as to plans and costs. He consulted Frank J. Ueker, the defendant, who estimated the cost of wrecking the old building, purchasing an old school board building, placing it on the Paulina street lot and reconstructing and remodeling such building would be about $10,000.

There is evidence that Ueker took Gust Demos to see the secretary at the downtown office of Henry P. Kransz Company and endeavored to negotiate a loan. The secretary told Ueker and Gust Demos that he could not make a new loan until the old loan was paid off. Ueker brought in plans and contractor’s statements to the secretary, and it was agreed that a mortgage for $10,000 and one for $2,000 to cover carrying charges and incidental expenses would be necessary. Ueker called up the secretary by telephone in December, 1930, and the secretary told him the loan was accepted. Ueker and Gust Demos signed a" contract making Ueker the general contractor, and an old three-story building was purchased from the school board and Ueker entered upon the work of remodeling.

It also appears from the evidence that these agreements and mortgages were all signed by Gust Demos, the mortgages acknowledged by him and all four instruments delivered to the secretary in 1931 at the building and loan office but the mortgages were after-wards lost and were not recorded.

It also was suggested by the plaintiff that counsel for the defendant Ueker admitted upon the hearing that the agreement for the $10,000 was executed by Gust Demos. The agreement for this amount, as well as the agreement for the $2,000 note, contained the following statement: ‘ ‘ The performance of the agreement is secured by a mortgage upon real estate of even date herewith.” It appears from the evidence that a search was made by the plaintiff for these two trust deeds, but they were not found; that Ueker, the defendant, who was in charge of the construction work on the building, was paid $2,238.75.

The evidence tends to show that Ueker, the contractor and defendant in this case, had knowledge that a loan was made with the plaintiff and that he also knew that in order to construct and remodel the building it was necessary that a loan be made. He was thereby charged with notice of all the facts, which would indicate that there was an incumbrance upon the land and that the money paid to him as contractor was the money realized from a loan secured from the plaintiff by Gust Demos.

The defendant here on appeal contends that while it is true the report of the master in chancery does not have the same force as the verdict of the jury, yet where the master has seen the witnesses and observed their demeanor while testifying, his findings in fact are entitled to due weight, particularly where no question of the competency of the evidence is made. While this may be true, still it has been held by the Supreme Court that while the report of a master in chancery is prima facie correct it is advisory only and does not have the force of the verdict of the jury where trial by jury is a matter of right but. facts in a chancery case are open for consideration by the chancellor and although there is conflicting evidence, the chancellor may sustain the objections to the master’s report. Thatcher v. Kramer, 347 Ill. 601. In this case the Supreme Court cited in support of the rule above stated: Kelly v. Fahrney, 242 Ill. 240; Chechik v. Koletsky, 311 Ill. 433; Union Bank of Chicago v. Gallup, 317 Ill. 184.

We believe the court in the instant case was supported by the law, and was justified in considering the report of the master and concluding that the master was in error, and we are of the opinion that the decree entered and appealed from was fully justified by the evidence.

Complaint is made that the court erred in the assessment of costs in this case. The costs as ordered by the court were one-fourth of the costs against the defendant Ueker, and the balance against the defendant Constantinos Demopoulos. This is within the rule announced in the case of Mitchell v. Art Institute of Chicago, 269 Ill. 381, where the court held that the rule of costs for the taking of evidence before the master is within the discretion of the trial court, and that discretion will not be reviewed except for abuse, but the question is not preserved for review if no motion is made to retax the costs in the court below. It does not appear that the defendant Ueker moved that the costs be retaxed, and applying the rule as announced by the Supreme Court that no ruling being preserved by the record, this court will not review the costs in this case.

We have examined the facts and are convinced as a result of such examination that the defendant Ueker is properly chargeable with notice, and that he had if not actual, constructive notice of the execution of the mortgages as contended for by the plaintiff. For the reasons stated the decree is affirmed.

Decree affirmed.

Denis E. Sullivan, P. J., and Burke, J., concur.


text:
    Philippine Kurz, Appellee, v. William Kurz, Appellant.
    Gen. No. 40,737.
    opinion filed December 13, 1939;
    rehearing denied December 27, 1939.
    Harold O. Mulks, for appellant; Newell Mecartney, of counsel; Litsinger, Healy, Reid & Bye, for appellee; Lawrence W. Spuller, of counsel.
   Opinion by

Justice Hebel.

“Not to be published in full.”


text:
    Oscar P. Rubardt et al., Appellees, v. Stefan Lewandowski et al., Defendants. Appeal of Stefan Lewandowski and Genevieve Lewandowski, Appellants.
    Gen. No. 40,749.
    opinion filed December 13, 1939.
    Nathan Schwartz, for appellants; Bernard Allen Fried, of counsel; Nelson, Slater & Boodell and Arthur F. McCormick, for certain appellees; William H. Leigh, for certain other appellees; Drennan J. Slater, of counsel.
   Opinion by

Justice Hebel.

“Not to be published in full.”


text:
    Frances M. White, Appellee, v. Frank F. Hynes, Jr. et al., Appellants.
    Gen. No. 40,765.
    opinion filed December 13, 1939.
    Edwin Terwilliger, for appellants; Leslie H. Whipp, for appellee.
   Opinion by

Justice Hebel.

“Not to be published in full.”


text:
    Edward P. Anderson and Michael J. Long, Appellees, v. Pearl Weiss et al., Appellees. Appeal of Frank Herrbach, Appellant.
    Gen. No. 40,774.
    opinion filed December 13, 1939;
    rehearing denied December 27, 1939.
    Joseph & Teitelbaum, for appellant; no appearance for appellees.
   Opinion by

Justice Hebel.

“Hot to be published in full.”


text:
    Frank Geller and Isidore Krachock, Appellees, v. Olive Ruth Petersen et al., Defendants. Appeal of Samuel J. Gould, Appellant.
    Gen. No. 40,784.
    opinion filed December 13, 1939.
    Ode L. Rankin, for appellant; Shulman, Shulman & Abrams and William Jay Robinson, for appellees; Meyer Abrams, of counsel.
   Opinion by

Justice Hebel.

“Hot to be published in full.”


text:
    Sarah Sampson, Appellee, v. Louis D. Glanz, Appellant.
    Gen. No. 40,839.

      Opinion filed December 13, 1939.
    Rehearing denied December 27, 1939.
    Jacob Levy, of Chicago, for appellant; Edward McTiernan, of Chicago, of counsel.
    Abraham Kosdon, of Chicago, for appellee.
   Mr. Justice Hebel

delivered the opinion of the court.

This is an appeal by the defendant from a judgment entered by the court on the verdict of the jury against him in the sum of $1,000. In the case at bar the plaintiff filed a suit against the defendant on January 15, 1935, charging the defendant with having wrongfully released on November 19, 1928, one of two properties secured by a trust deed, and that she became the owner of bond No. 48 secured by said trust deed on February 3, 1930. The issues were presented under the plaintiff’s third amended complaint charging fraud and deceit in the sale to her of said bond.

From the facts as they appear in the record, the plaintiff on February 3, 1930, went to Louis D. Grlanz, the defendant, to purchase some securities, as she had done on previous occasions. She went to the Home Mortgage Investment Company, located in the same building as the Home Bank and Trust Company, where she asked to see Mr. Grlanz, from whom she had on previous occasions purchased first mortgages and other securities. The plaintiff had known the defendant since the year 1925. After she had inspected several bonds, the defendant recommended for purchase a bond known as the Stringer Buildings Bond No. 48 for $1,000. The defendant explained it was known as the Stringer Buildings Bond as it was secured by two parcels of property, one parcel, a three-flat building at 2921 Pine Drove avenue, in Chicago, and the other parcel, a factory building at 1100 West 38th street, Chicago, Illinois. He told the plaintiff that this bond was amply secured, and thereupon the plaintiff paid him the money and received the bond. The bond bore the maturity date of May 1, 1933.

It further appears from the evidence that when the plaintiff failed to receive interest on the bond she went to the defendant about February, 1932, who had sold her the bond, because he was also the trustee named in the trust deed securing the bond; that he told her not to concern herself, that the bond was “O. K.”

On January 26, 1933, the plaintiff received a letter from Louis D. Glanz, advising her that a foreclosure was instituted by him as trustee because of defaults by the makers of the bonds in the payment of interest, and advising her further, for the first time, that the Pine Grove avenue property had been released and that the only security for the bond was the factory building. The Pine Grove avenue property had been released on November 19, 1928. The bond thus sold to the plaintiff bore on its face the following legend: “Stringer Buildings, located at 2921 Pine Grove Avenue and 1100 West 38th Street, Chicago, Illinois.” There also appeared on the bond:

“Trustee’s Certificate. This, is to certify that this bond is one of the series of bonds of Charles C. Stringer, for the aggregate sum of Sixty Thousand ($60,000.00) Dollars, numbered consecutively from one (1) to One hundred seventy (170), both inclusive, mentioned and described in the Trust Deed within referred to.

(Signed) Louis D. Glanz,

Trustee. ’ ’

This action was brought to recover the damages sustained as a result of the loss occasioned by the wrongful release by the trustee of part of the security of the .bond without marking the bond accordingly, or cancelling the same. The plaintiff also charged the defendant with fraud and deceit in the sale of the bond, in that he knew at the time of the sale of the bond that it was not secured by two parcels of property, since one parcel had been released by release deed dated November 19,1928. The plaintiff further makes claim in the complaint for money had and received, based upon the wrongful release of part of the security.

The first contention of the defendant is that the court erred in striking his plea of res judicata, and the defendant, answering the third amended complaint said:

“And for a further defense to said suit, the defendant states that on the 1st day of March, 1933, there was pending a certain foreclosure suit in the Circuit Court of Cook County, No. B-263049, entitled:Louis B. Glanz, as Trustee, v. Charles C. Stringer, et al., involving the bond herein in question, and on said date, the plaintiff herein was granted leave to file an intervening petition in said foreclosure suit, which petition set forth, among other things, that at the solicitation of defendant, the plaintiff purchased said bond No. 48 from the Home Mortgage & Investment Company, that the defendant herein fraudulently and wrongfully released the Pine Grove Avenue property from the lien of the trust deed securing said bonds. . . . ” And in said answer it further appears:

“2. This defendant further states that subsequently Louis D. Glanz (defendant herein) resigned as Trustee and Max Luster was appointed Successor Trustee, and an amended bill was filed, setting forth that the Pine Grove Avenue property described in the said Trust Deed has been released by Louis D. Glanz, Trustee (defendant herein), and that the Court should determine whether or not the unpaid bonds are still a lien upon both premises as described in said trust deed and whether the release of the Pine Grove Avenue parcel was made in good faith and with the consent, knowledge and acquiescence of all of the bondholders. . . . On August 12, 1935, the said Circuit Court entered a decree in said cause No. B-263049, finding among other things that the said Louis D. Glanz, Trustee (defendant herein), in executing and delivering the said release deed, acted in good faith, without intending to defraud or deceive any of the bondholders and that in fact the said Louis D. Glanz, Trustee (defendant herein), did not deceive or defraud any of the bondholders in so executing and delivering the said release deed.

“3. That the said decree entered in said cause No. B-263049, Circuit Court of Cook County, stands in full force and effect and plaintiff is estopped to claim that said defendant fraudulently, wrongfully and deceitfully released the lien of the trust deed on the property known as 2921 Pine Grove Avenue, securing bond No. 48 purchased by said plaintiff, as set forth in plaintiff’s third amended complaint at law.” On December 13, 1938, the court entered an order in the case at bar, sustaining plaintiff’s motion to strike paragraphs 1, 2 and 3 of defendant’s answer to count 3 above set forth.

From an examination of the defendant’s pleadings it appears that Louis D. Glanz, the defendant herein, resigned as trustee and Max Luster was appointed successor trustee, and as successor trustee filed an amended bill in which he set forth the facts, and on August 12, 1935, the circuit court entered a decree in cause No. B-263049, finding, among other things, that Louis D. Glanz, trustee, did not deceive or defraud any of the bondholders in so executing and delivering the release deed in question.

The defendant contends that the plaintiff ought to be barred from her law action against the defendant personally because she intervened in the foreclosure suit involving the Pine Grove avenue property to determine priority of lien in that proceeding. Certainly it does not follow that the defendant in the instant case was a party to the suit in which relief was sought, and it does not appear that the parties are the same, nor can the subject matter be pleaded as a bar, and we are of the opinion that the court did not err in entering the order of December 13, 1938, sustaining the plaintiff’s motion to strike paragraphs 1, 2 and 3 of the defendant’s answer to count 3. The subject matter and the parties not being the same, the finding of the court is wholly immaterial as to the finding in the foreclosure proceeding.

The plaintiff’s position in this action is that a wrongful release by the trustee of the lien of the trust deed constitutes a breach of duty, and an infringement of the rights of the holder of the outstanding indebtedness secured thereby, and creates a right of action in favor of the latter against him personally, and the court’s attention is called to the case of Wertheimer v. Glanz, 277 Ill. App. 389. The case at bar and that case involved the same defendant who was sued in that case for wrongful and fraudulent release of the trust security. Upon an examination of the case we find this court said:

“In Lennartz v. Estate of Popp, 118 Ill. App. 31, a similar situation was involved where a trustee had unwarrantably released the lien of a trust deed; it was held that the trustee was liable to the owner of the note for the damages which necessarily followed from his wrongful act. This case was remanded to the trial court but again came to the Appellate Court, as reported in Lennartz v. Estate of Popp, 175 Ill. App. 539.” And it was further stated by this court: “that a trustee at his peril was bound to know that the indebtedness to the holder of the note was paid before he executed a release of the security. Moran v. Dennis, 184 Ill. App. 272, was a suit in assumpsit, based upon the wrongful release of a mortgage. Sherwood v. Saxton, 63 Mo. 78, involved a case where a trustee wrongfully released a trust deed. The opinion says that the trustee in a deed of trust to secure an indebtedness is the agent of both parties, debtor and creditor, and his duties must be performed with the strictest impartiality and integrity; that if he is guilty of a breach of trust or an abuse of his discretionary powers he will be personally responsible to the party injured, and that he would not ,be justified in releasing any security unless it would be clearly to the advantage of the cestui que trust. The opinion also says that while proceedings against the trustees have generally been in equity, yet where the trustee is personally liable for the abuse of his powers or a breach of trust and the party injured demands damages, he may proceed in a court at law. .

“We think it is evident that it ivas to the hurt of the plaintiff and other bondholders when the trustee released the more valuable of the two properties, leaving as security only the poorer property which, by the defendant’s own showing, is not worth the amount of the mortgage indebtedness. Clearly this was a breach of trust on the part of the trustee. ’ ’

The plaintiff further cites the case of Welch v. Northern Bank & Trust Co., 100 Wash. 349, wherein the plaintiff brought action to recover damages from the defendant trustee for loss of the value of certain bonds, the security for which was wrongfully released by the latter. The defendant also argues that the plaintiff was not a holder of the bond at the time of the execution of the trust deed. The court in that case quoted from Perry on Trusts, as follows:

“ ‘When trustees have accepted the office, they ought to bear in mind that the law knows no such person as a passive trustee, . . .

“ ‘The trustee should make himself acquainted with the nature and circumstances of the property; for though he is not responsible for anything that happens before his acceptance of the trust, yet if a loss occurs from any want of attention, care, or diligence in him after his acceptance, he may be held responsible for not taking such action as was called for.’ ” Perry, Trusts and Trustees, sec. 266. The court said:

“The sale of corporate securities through the mediumship of trust companies is a .method of reaching the individual investor. Such securities are generally issued in large amounts, and because of the impracticability of disposing of them, or obtaining loans in single payments, the business world has resorted to the method of mortgaging properties and securities to a trustee company to be disposed of piecemeal to investors who are able to make small investments. Such transactions are made for the benefit of these future investors, and it would be against the policy of the law, as it would be against natural equity, to hold that the right of a bondholder attached at the time he pays his money for the bonds and not from the time the trust deed was made and the bonds issued and certified by the trust company.”

The defendant insists that the release in question had been recorded in the office of the recorder of deeds on December 11, 1928, and that the release was a matter of public record and was equally accessible to the plaintiff and to the defendant, and therefore it cannot be contended in the instant case that the plaintiff was excused from making an examination of the records in question. She did not rely upon the statements of Louis D. Glanz, because she testified that after she procured the bond in question she exhibited the same to her son, who was an attorney. However, from the evidence that was a question of fact that was passed upon by the jury. In determining the facts the jury considered the evidence, saw the witnesses and decided whether the plaintiff was negligent or not in the purchase of the bond. It appears from the face of the bond itself that it was secured by two parcels of property, one of which was located at 2921 Pine Grove avenue, Chicago, and the other at 1100 West 38th street, Chicago. From the evidence in the record it appears that she conferred with the defendant, who, in effect, pointed out the security of the bond by referring to the fact that the payment of the bond was secured by two pieces of property, and the jury no doubt had this in mind when they returned a verdict for the plaintiff. There is nothing in the record which would indicate that the plaintiff knew that one of the pieces of property had been released from the lien of the trust deed. The plaintiff purchased the bond on February 3,1930, and at that time, according to the evidence, the Pine Grove avenue property had been released by the execution of a release deed dated November 19, 1928, and signed by the defendant as trustee. In view of the suggestion of the defendant that payment of the bond was secured by the two pieces of property mentioned and this being a representation which at the time the defendant knew was false, and the plaintiff relying upon the representation made, by the defendant, she could not be charged with negligence in not examining the record to determine whether the bond was secured as stated by the defendant.

From the facts as they appear in the record it is evident that the plaintiff was misled by the representation made by the defendant, and while the defendant stresses the fact that the plaintiff exhibited the bond to her son who was an attorney, there is evidence that the exhibit to her son was made after she had purchased the bond, and that question was passed upon by the jury’s verdict after a hearing and at the time the judgment in question was entered by the court. The verdict and judgment is supported by the evidence in the record, and we are of the opinion that the court was justified in entering the judgment here appealed from.

The defendant further contends that the court erred in receiving the special interrogatory tendered to the jury, the same not having been signed by each of the jurors; that this constituted prejudicial error. The plaintiff, on the other hand, calls attention to the fact that this interrogatory was signed by each of the jurors. The trial court, on motion of the plaintiff which suggested to this court the diminution of the record, allowed the filing instanter of the true record containing the special interrogatory now on file in this court with all the jurors’ signatures subscribed thereto.

A further question is to be considered, and that is did the plaintiff’s cause of action accrue on the date that the release was filed for record, namely, November 19,1928. The cause of action came into being when the plaintiff purchased the bond, that is, on February 3, 1930, and the suit was filed on January 15, 1935, well within the five-year period. Ill. Rev. Stat. 1939, ch. 83, par. 16, sec. 15 [Jones Ill. Stats. Ann. 107.275].

It would appear that the original complaint filed by the plaintiff contained the elements necessary to state a cause of action based upon a wrongful release by the trustee personally and for fraud and deceit, and that the subsequent amendments did not alter the cause of action, but enlarged on and clarified the plaintiff’s position.

In the case of White v. City of Belleville, 284 Ill. App. 322, this court said:

“If the original declaration states a cause of action, however defectively stated, provided it is sufficient to sustain a judgment, an amendment is permissible amplifying the statement of the same cause of action, and will relate back to the filing of the original declaration so as not to be subject to the intermediate running of the statute of limitations. Walters v. City of Ottawa, 240 Ill. 259, 264.”

It necessarily follows from what we have said in this opinion that the court was justified in entering the judgment upon the verdict, and no error has been called to our attention which would warrant a reversal. Therefore the order is that the plaintiff’s judgment is affirmed.

Judgment affirmed.

Denis E. Sullivan, P. J., and Burke, J., concur.