text:
    John E. Merrion, Appellee, v. Julia V. O’Donnell et al., Defendants. Julia V. O’Donnell and James P. Kiely, Appellants.
    Gen. No. 38,829.

      Opinion filed December 30, 1936.
    Rehearing denied January 12, 1937.
    ■Sheehan, Rooney & Egan, of Chicago, for appellants ; Roy J. Egan, of counsel.
    Charles J. Trainor, of Chicago, for appellee.
   Mr. Justice Scanlan

delivered the opinion of the court.

Plaintiff filed a petition for leave to file his bill of review, which leave was granted and the complaint, in the nature of a bill of review, was filed on December 12, 1935. Defendants Julia V. O’Donnell and James P. Kiely filed a joint and several motion to dismiss the complaint, which motion was overruled, and said defendants electing to abide by their motion, a decree pro confesso was entered, from which they have appealed.

The complaint named as defendants Julia V. O’Donnell; James W. Garvin; Margaret C. Garvin; State Bank of Chicago, a corporation, Trustee; Chicago Title & Trust Company, a corporation, as Successor in Trust; Blum’s Incorporated, a corporation; Estelle Lawrence Corporation, a corporation; and James P. Kiely, as trustee. James W. Garvin and Margaret C. Garvin filed a joint and several answer admitting the allegations contained in the complaint and that plaintiff was entitled to the relief prayed.

The following facts, upon which plaintiff relies, appear from the complaint: Plaintiff was the owner and holder of a promissory note, made by Simon O’Donnell, Julia V. O’Donnell, James W. Garvin and Margaret C. Garvin, for the sum of $25,000, dated August 21, 1925, payable five years after date with interest at six per cent per annum. The note contained a power of attorney to confess judgment against the makers in case of their default in payment, and payment of the note was secured by a trust deed on certain real estate in Cook county. Simon O’Donnell died February 7, 1927. On August 25, 1930, the surviving makers paid $5,000 on account of the principal of the note, and interest to that date. Plaintiff entered into an agreement in writing with the surviving makers, dated August 21, 1930, by the terms of which the time for payment of the balance due upon the note, $20,000, was extended. The surviving makers failed to make payments as provided in the extension agreement, and on March 17,1933, plaintiff elected to and declared the amount unpaid on the note to be due and payable and on that date caused judgment by confession to be entered, in the municipal court of Chicago, against Julia Y. O ’Donnell, James W. Garvin and Margaret C. Garvin for $20,197.56. Execution issued and the bailiff of the municipal court levied upon certain real estate owned by defendant Julia Y. O’Donnell, and on May 5, 1933, sold the same for the sum of $8,000. On April 4, 1933, plaintiff filed his bill in the superior court of Cook county to foreclose the trust deed executed to secure the payment of the note. The cause was referred to a master in chancery to take proofs as to the amount remaining unpaid on the note and report his findings and recommendations to the court. The master found, inter alia, that the amount due and unpaid on the note was $14,606.03, and he reported that in computing that amount he credited as a payment on the note the net proceeds of the sale by the bailiff of the municipal court in the proceeding in that court. No exceptions were taken to the master’s report and on June 7, 1933, a decree in accordance with the master’s report was entered. It provided that unless defendants or some one of them paid plaintiff, within three days, $14,606.03 the master should sell the real estate and apply the proceeds in payment of the said amount. The master sold the real estate and made his report of sale and distribution, which showed that after applying the net proceeds of the sale in reduction of the debt there remained a deficiency of $4,058.40. As no exceptions had been taken to that report it was approved, and on July 12, 1933, a decree was entered against defendants Julia V. O’Donnell, James W. Garvin and Margaret C. Garvin for the amount of the deficiency. On April 23, 1934, more than nine months after the final decree in the foreclosure proceedings, and more than a year after the entry of the judgment in the municipal court, Julia Y. O’Donnell filed her petition in the municipal court praying that the judgment of March 17, 1933, be vacated on the ground that the court was without jurisdiction to enter it. Her petition was denied and she then prayed an appeal to this court, and we held, on March 29,1935 (Merrion v. O’Donnell, 279 Ill. App. 435), that the warrant of attorney to confess judgment contained in the original note was shorn of its power and authority by the death of Simon O’Donnell, that the extension agreement contained no authority to confess judgment, and that, therefore, the municipal court was without jurisdiction to enter the judgment by confession, and we remanded the cause to that court with directions to vacate the judgment. On June 18, 1935, the Supreme Court of Illinois denied plaintiff’s petition for leave to appeal, the mandate of this court was then filed in the municipal court, and on July 8, 1935, the judgment of that court was vacated. The complaint in the instant proceeding alleges that the validity of the judgment of the municipal court and the proceeding's thereunder were not questioned prior to the entry of the final decree in the foreclosure proceedings; that

“For the reason that the validity of said judgment of the Municipal Court and the proceedings thereunder were in no wise questioned prior to the entry of the final decree in said foreclosure proceeding, the amount credited as a payment on said note by virtue of said Bailiff’s sale was considered by this Court as a payment on said note in its finding of the balance due and unpaid on said note and its finding of the deficiency remaining after the sale of said property by the Master in said foreclosure proceeding, by reason of which this Court found and decreed that after said foreclosure sale there remained a deficiency of $4,058.40 due complainant under said decree, whereas if the amount credited as a payment under said void Bailiff’s sale had not been considered by this Court as a payment this Court would have found and decreed said deficiency to be $11,707.75, which is the true and correct amount of said deficiency.

“By reason of the fact that the term at which said final decree confirming said Master’s report of sale and distribution in said foreclosure proceeding had expired before said judgment of the Municipal Court and the proceedings thereunder had been avoided, this Court thereafter was without jurisdiction to alter said decree in such manner as to show the true amount of said deficiency to be $11,707.75 instead of $4,058.40.

“That said decree showing said deficiency to be $4,058.40 is binding and conclusive on complainant, and he is without- remedy to alter said decree to show the correct amount of said deficiency to be $11,707.75 except by this bill of review. ’ ’

The complaint prays that the decree in the foreclosure suit “be reviewed and the correct amount due and unpaid on said note may be found and decreed and that the true and correct amount of said deficiency may be found and decreed.” The decree found the facts as alleged in the complaint and decreed that the deficiency in the foreclosure proceeding “is fixed at the sum of $11,707.75.” '

Appellants ’ motion to dismiss is as follows:

“The defendants, Julia V. O’Donnell, and James P. Kiely, move the Court to dismiss the complaint herein on the ground that:

“1. That the cause of action did not accrue within the time limited by law for the commencement of an action or suit thereon, in that the plaintiff is guilty of laches.

“2. The defendants, jointly and separately, say that the complaint and matters therein contained in manner and form as the same are therein and thereby set forth and alleged are not sufficient in law for the plaintiff to maintain his aforesaid action, and that these defendants are not bound by law to answer the same.

“Wherefore, for want of a sufficient complaint in this behalf, these defendants pray judgment and that the plaintiff may be barred from maintaining his aforesaid action.”

Par. 173, sec. 45 (1) of the Practice Act, Ill. State Bar Stats. 1935, ch. 110; Jones Ill. Stats. Ann. 104.045, provides that all objections to pleadings heretofore raised by demurrer shall be raised by motion and that “such motion shall point out specifically the defects complained of,” and the contention of plaintiff that the court might properly have overruled the motion to dismiss because of the failure of defendants to comply with the provisions of the act, is not without merit. However, we have seen fit to consider the contentions raised by appellants in support of their motion.

This appeal is so devoid of equity that appellants are forced to rely upon alleged technical errors in support of their argument that the decree should be reversed and the cause remanded with directions to the trial court to sustain their motion to dismiss the complaint.

Based upon the unwarranted assumption that plaintiff by his complaint relies upon error appearing on the face of the record, appellants argue, at some length, that the complaint does not disclose any error of law in the proceeding.

“Bills of review, or bills in the nature of bills of review, are divided into three general classes: Bills for error apparent on the face of the record, bills to impeach a decree for fraud, and bills to review a decree on account of new matter or newly discovered evidence.” (Bushnell v. Cooper, 289 Ill. 260, 265-6.) In the instant case the complaint seeks relief under the last class. The complaint is based upon the theory that in the foreclosure proceeding the master in chancery, in computing the amount due and unpaid on the note, credited as a payment the amount of the proceeds of the sale by the bailiff of the municipal court of Chicago, and that the decree followed the master’s report in that regard; that more than two years after the decree in the foreclosure proceeding had been entered the judgment of the municipal court and all proceedings under it were vacated by the judgment of this court at the instance of defendant Julia V. O’Donnell; that the time within which the decree of the superior court could have been modified by motion had then expired, and a bill of review is the only method by which the decree could be modified to adjust the equities between the parties. The function of a bill of review to review a decree on account of new matter or newly discovered evidence, is to prevent a miscarriage of justice where the court is able to see upon a view of all the circumstances that the remedy can be applied without mischief to the rights of innocent parties. (See Hopkins v. Hebard, 235 U. S. 287, 290, cited with approval in Bushnell v. Cooper, supra.) Belying on his judgment in the municipal court plaintiff gave defendants, in the foreclosure proceedings, a credit of $7,841 on their note, “being the net amount bid by the complainant at an execution of sale upon a judgment in the Municipal Court of Chicago.” Defendants, by their conduct, permitted the master and the chancellor to treat that judgment as a valid one. They accepted the benefit of the credit and abided by the decree, but after the chancellor had lost jurisdiction to change the decree defendant Julia V. O’Donnell took steps to bring about a voiding of the judgment of the municipal court, and having succeeded in her purpose she now seeks to cause plaintiff the loss of $7,649.35 by interposing technical objections to the instant complaint, which is designed solely to adjust the equities between the parties made necessary by the vacating of the judgment. Equity is not so weak that it will permit appellant to retain her unfair advantage. Under the facts a complaint in chancery in the nature of a bill of review is clearly the appropriate remedy.

Appellants contend that “the plaintiff is guilty of laches in that he did not bring his action within the time allowed for the bringing of a writ of error or appeal.” The rule invoked applied only-to bills of review brought for error apparent on the face of the record, and has no application to a complaint in the nature of a bill of review, like the instant one, based on new matter or newly discovered evidence. Here the question of laches is to be determined by the trial court in the exercise of his judicial discretion from the facts and circumstances as they appear from the allegations of fact in the “petition for leave to file the bill” and in the complaint itself. It is clear from the allegations of the complaint that the claim of appellants that the complaint is barred by laches is without the slightest merit. In Luttrell v. Wyatt, 305 Ill. 274, wherein one of the defenses interposed was laches, the court said (p. 283):

“A court of equity applies the doctrine of laches in the denial of relief only where, from all the circumstances, the delay would render the relief to which the complainant would otherwise be entitled, inequitable and unjust. (Coryell v. Klehm, 157 Ill. 462.) Mere delay, alone, for a period less than that covered by the Statute of Limitations is not laches that constitutes a defense. It is only when the delay is accompanied by some other element rendering it inequitable for the complainant to assert his right that the laches will bar his right within the statutory period. (Compton v. Johnson, 240 Ill. 621.) ”

It would be idle to argue that it is inequitable for plaintiff to assert his right against appellants.

Appellants contend that the “bill of review” is fatally defective because “all the parties to the original decree, and whose interests are affected by the original decree are not made parties to the complaint.” The defendants to the original bill for foreclosure who were not included in the summons issued in the instant proceeding’ are James Wagner, State Bank of Chicago, trustee, and Blackstone Shop, a judgment creditor of defendant Julia V. O’Donnell. The original bill named Wagner as a defendant on the ground that he ivas an occupant of the premises sought to be foreclosed, and the instant complaint alleges that he was made a defendant in the foreclosure proceeding because he occupied the premises as a tenant but that he had vacated the premises and had no longer any interest in the litigation. The complaint alleges and the decree found as a fact that State Bank of Chicago had been named as a defendant in the original bill to foreclose on the ground that it was trustee in the trust deed sought to be foreclosed, and that prior to the filing of the bill it had resigned as such trustee and had been succeeded by the Chicago Title and Trust Company, the successor in trust named in the trust deed. The Blackstone Shop was named as defendant in the foreclosure proceeding because it had a judgment for $5,361.72 against defendant Julia V. O’Donnell, and the foreclosure decree found the lien of that judgment to be subject to the lien of the trust deed. The premises were sold under the foreclosure decree on July 5, 1933, and on July 12, 1933, the master’s report of sale and distribution was approved and a deficiency decree of $4,058.40 was entered against defendants Julia Y. O’Donnell, James W. Garvin and Margaret C. Garvin. None of the aforesaid defendants could possibly be adversely affected by any action taken on the complaint and there is no merit in appellants ’ contention that they were necessary parties to the complaint.

The decree of the superior court of Cook county should be and it is affirmed.

Decree affirmed.

John J. Sullivan, P. J., and Friend,- J., concur.


source: Caselaw Access Project

author: Mr. Justice Scanlan

license: Public Domain

text:
    Continental Illinois National Bank and Trust Company, Appellee, v. Windsor Amusement Company and Harry Balaban, Appellants.
    Gen. No. 38,871.

      Opinion filed December 30, 1936.
    Rehearing denied January 12, 1937.
    Randolph Bohrer, of Chicago, for appellants; Milton J. Fink, of Chicago, of counsel.
    Charles 0. Rundall, of Chicago, for appellee.
   Mr. Justice Scanlan

delivered the opinion of the court.

Plaintiff filed a forcible detainer suit against defendants for the possession of certain premises, commonly known and described as the Dearborn Theatre, 40 West Division street, Chicago. The case was tried without a jury. At the close of the testimony plaintiff, also defendants, moved for judgment. The court found that defendants were unlawfully withholding from plaintiff the possession of the premises and ordered that a writ of restitution issue therefor. Defendants appeal.

A very insufficient, unfair abstract was filed by defendants in this court. In November, 1934, the trustees of the Estate of Marshall Field purchased from the trustees of the John G-. Garibaldi Trust the premises in question, which were incumbered by a mortgage; payments were in default; foreclosure proceedings involving the property were pending in the superior court of Cook county; and a receiver, Aaron Col-non, had been appointed. In August, 1933, the receiver made a lease of the premises to the Windsor Amusement' Company, one of the defendants in the instant suit. The lease covered a term from May 1, 1933, until April 30, 1938, but contained the following provision:

“It is expressly understood and agreed that the term of this demise shall in no event exceed the receivership hereinabove referred to in the event said receivership shall terminate prior to April 30, 1938 . . . The rights of the Lessee under this lease are expressly subject to the foregoing provision.”

Upon payment of the purchase price by the trustees of the Estate of Marshall Field to the trustees of the John G. Garibaldi Trust, the latter trustees conveyed, subject to the Colnon-Windsor lease, their equity in the property to William J. Nealon, nominee of the trustees of the Estate of Marshall Field. On December 4, 1934, Nealon caused a notice to be served on Windsor Amusement Company that under an order of the superior court of Cook county, a purported copy of which was attached to the notice, the said receivership was terminated, and demanding possession of the premises. In January, 1935, a lease for a term commencing December 1, 1934, and ending- on November 30, 1935, was entered into between Nealon, as lessor, and Windsor Amusement Company and Harry Balaban, defendants herein, as lessees. It provided for a substantially higher rental than that provided in the Colnon lease and under it certain rents were paid by the lessees to Nealon. On January 4, 1935, Nealon conveyed the premises, by a quitclaim deed, to plaintiff, which took title for the benefit of the trustees of the Estate of Marshall Field and still retains it. On July 3, 1935, plaintiff leased the premises to Aaron J. Jones for a term of five years, to commence at the expiration of the lease between Neal-on and defendants. On July 10, 1935, Jones wrote to defendants’ representative a letter in which he stated, “We are going to operate the Dearborn Theatre for the Estate of Marshall Field beginning December 1,” and inquired as to whether or not any equipment was for sale. On November 30, 1935, Randolph Bohrer, attorney for defendants, wrote the following letter to Jones:

“Your letter of November 27, 1935 addressed to Harry Balaban, with reference to the Dearborn Theatre property, has been turned over to me for reply. “It is regrettable that you have been led to believe that the lessors of the Dearborn Theatre property would be in a position to deliver possession of that property to you on December 1, 1935, in view of the fact that my client’s tenancy and right to possession does not terminate for quite some time to come. I am, therefore, extending the courtesy of advising you in advance that it would be useless to send your representative to the theatre tonight for the purpose of taking possession.”

Early in December, 1935, the lease between plaintiff and Jones was canceled by the parties thereto. On December 16, 1935, plaintiff served on defendants the following written demand for possession of the premises :

“To: Windsor Amusement Company, a corporation, and Harry Balaban.
“The undersigned hereby demands immediate possession of the following described premises:
“The portion of the building now being used as a theatre and commonly known and described by street numbers as 40 West Division Street, Chicago, Illinois, and legally described as follows, to-wit: (Here follows a legal description of the property.)
“Dated: December 16, 1935.
“Continental Illinois National Bank and Trust Company of Chicago, as Trustee under Agreement dated January 9, 1935, and known as Trust 29428.
By Wilson & Mcllvaine Its attorneys
“Received a copy of the foregoing notice this 16th day of December 1935
“Windsor Amusement Company By Harry Balaban President Harry Balaban (Seal) ”

As possession was not forthcoming plaintiff, on December 19, 1935, commenced the instant suit.

Defendants contend that “a lease from the plaintiff to Aaron Jones, for a five year term commencing December 1, 1935, deprives the plaintiff of the right to immediate possession, which is essential to maintain this action of forcible detainer, during the term of said lease”; that “even if the defendants are wrongfully holding over, as between the plaintiff and Jones, Jones has the right of immediate possession and he alone has the right to bring that action for the possession of the premises.” Defendants occupied the premises from December 1, 1934, to November 30, 1935, under the one-year lease from Nealon, nominee of the trustees of the Estate of Marshall Field, and paid certain rents thereunder. They failed to deliver possession of the premises at the expiration of the lease and continue to occupy them. The correctness of the principle of law urged by defendants in support of the instant contention is not questioned, but it has no application to the facts of this case. There is oral testimony that the lease between plaintiff and Jones was canceled by the parties thereto sometime between December 2, 1935, and December 5, 1935. Defendants offered in evidence that lease, which bears upon its face the following:

“December 2, 1935.
“The foregoing lease is hereby cancelled.
“Continental Illinois National Bank and Trust Company of Chicago, as Trustee under Agreement dated January 9, 1935 and known as Trust No. 29428.
By Charles H. Binney
Aaron Jones (Seal) ”

Jones testified that after December 5, 1935, he claimed no right to the Dearborn Theatre under the lease between plaintiff and himself. There is not the slightest merit in the instant contention of the defendants.

Defendants contend that “the Court erred in excluding the defendants’ cross examination and evidence contradicting the purported legal cancellation of the Jones lease.” We have considered the argument of defendants in support of this contention and find it without merit.

Defendants contend that “the plaintiff, not having the written authorization of the beneficiaries as required by the trust agreement whereunder it holds title, was without power to institute this suit.” We find no merit in this contention. The trust agreement under which plaintiff holds title provides:

“It is understood and agreed by and between the Trustee and any person . . . that the interests of any beneficiary herein shall consist solely of a power of direction to deal with the title to said property and the right to receive or direct the disposition of the proceeds from the rentals and sale or other disposition of said premises .... The Trustee is the sole owner of the real estate held by it hereunder and so far as the public is concerned has full power to deal with it.'” (Italics ours.)

If the instant proceeding involved a dispute between plaintiff, as trustee, and the beneficiaries of the trust, the authorities cited by defendants might be applicable. The term “public,” used in that portion of the trust agreement which we have quoted and italicized, applies to defendants’ status and plaintiff had full power to deal with the property so far as defendants are concerned. There were three trustees of the Marshall Field Estate, the plaintiff bank, George Bichardson, and Marshall Field. Bichardson testified that he authorized the institution of the suit. The manager of the property of the Estate of Marshall Field also testified for plaintiff.

Defendants contend that “defendants are entitled to possession until April 30, 1938 under the five year Colnon-Windsor lease, there being no showing that said lease was terminated by its terms or by the termination of the Colnon receivership.” It is somewhat difficult to understand the argument of defendants in support of the instant contention. The following quotation from defendants’ brief will, perhaps, present their position: “The one year Nealon-Windsor lease was a substitution of but one year of the Colnon-Windsor term and obviously not a cancellation or substitution of the entire three and one-half year balance of that Colnon-Windsor lease.” This contention is an afterthought. Defendants offered the evidence of one of the attorneys for defendants to the effect that he, as a representative of the Windsor Amusement Company, sought to obtain from the trustees of the Garibaldi Trust an agreement in writing by the terms of which the trustees would consent to and approve the Colnon-Windsor Amusement Company lease so long as the Amusement Company kept all of the covenants contained in the said lease “to be performed and kept by the Lessee thereof,” and that if the said trustees acquired or became invested with Colnon’s interest in the said lease the said trustees agreed to be bound as lessors by the covenants and agreements thereof to the same extent as if they were the original lessor thereunder. It is conceded that the written agreement presented to the trustees of the Garibaldi Trust by the said representative of the Windsor Amusement Company was never signed or executed by them. From the foregoing it is clear that the Windsor Amusement Company’s attorney and representative recognized the fact that the Colnon lease expired when the court ended the receivership. The Colnon lease, as we have heretofore stated, provided that the term of the lease should in no event exceed the receivership, and that the rights of the lessee under the lease were expressly subject to that provision. The Windsor Amusement Company was the sole lessee under the Colnon lease, while it and Harry Balaban are joint lessees under the Nealon lease. Balaban had no rights under the Col-non lease. The lease to defendants called for a higher rental than was specified in the Colnon lease. We are unable to see any merit in defendants’ contention that they are entitled to possession and final judgment under the Colnon-Windsor lease. Defendants, in effect, are attempting to attack the title of their landlord. To defeat the instant proceeding they attempt to revitalize the Colnon lease and the Jones léase, and to devitalize the one under which they held possession of the premises. In connection with the instant contention defendants argue that plaintiff failed to prove by proper evidence the termination of the Colnon receivership. On December 5, 1934, Nealon served on Windsor Amusement Company a written notice that the receivership of Colnon in the foreclosure proceeding had been terminated by order of court and that by reason of said termination the term of the ColnonWindsor Amusement Company lease was ended, and he demanded possession of the premises on or before December 5, 1934. Attached to this notice were what purport to be copies of two orders of court, signed by Judge McGfoorty, entered in November, 1934, showing that the Colnon receivership had been terminated; that the report and account of Colnon as receiver was confirmed and approved and his bond as receiver released. The Windsor Amusement Company never made answer to this notice nor questioned it in any way until the trial. As one of the lessees under the Nealon lease it recognized, in effect, the termination of the receivership. As heretofore stated, Balaban had no rights under the Colnon lease. If defendants really questioned the termination of the receivership they had ample opportunity during the trial to prove that the receivership had not been terminated, but they failed to offer any proof on this subject.

The defense to the instant proceeding is devoid of merit. By the summer of 1935 the great depression was passing, there had been a steady improvement in general conditions, and it was becoming desirable, apparently, to retain possession of the premises. The theory of claiming a right of possession of the premises under the Colnon lease was evolved when defendants learned that plaintiff had made a lease of the premises to Jones, who was also engaged in the theater business.

The judgment of the municipal court of Chicago is a just one and it should be and it is affirmed.

Judgment affirmed.

’ John J. Sullivan, P. J., and Friend, J., concur.


text:
    Chicago Securities Corporation, Appellant, v. William McBride, Defendant. Thomas H. Willis, Appellee.
    Gen. No. 38,936.
    Opinion filed December 30, 1936.

      Verne B. Selle, of Chicago, for appellant; A. J. Hennings and Vernon R. Louoks, both of Chicago, of counsel.
    Edward R. Newmann and Irving R. Sideman, both of Chicago, for appellee.
   Mr. Justice Scanlan

delivered the opinion of the court.

Plaintiff, hereinafter called appellant, appeals from a judgment order vacating and setting aside a final judgment in an ejectment suit. William McBride, the sole defendant in the suit, was duly served with summons, defaulted, and final judgment was entered against him on October 24, 1935. On March 7, 1936, Thomas H. Willis, appellee, was granted leave to intervene as a party defendant; the order of October 24, 1935, was vacated and set aside, and leave was granted petitioner to file his petition instanter, the same to stand as an answer to the complaint. 'The verified intervening petition reads as follows:

“Now comes Thomas H. Willis and, leave of Court having been first obtained, presents herewith his petition to vacate the order entered herein-on October 24, 1935, and as grounds therefor, represents as follows:

“1. That on to-wit, August 9, 1935 (being the date of the filing of the complaint herein) and from thence hitherto, your petitioner was the title holder of record and owner in fee simple of those several parcels of land with improvements thereon situated in Chicago, Cook County, Illinois, generally known as No. 16-18-20-22-24 and 28 west 37th Street and 3649-3653 and 3655 South Dearborn Street, and legally described as follows: (Here follows a legal description of the premises.) being the same premises described in the complaint filed herein;

“2. That the improvements on said premises comprise four distinct units as follows:

“ (a) 16 to 28 W. 37th Street consisting of a brick structure containing seven stories and eight apartments ;

“ (b) 3649 S. Dearborn Street consisting of a brick and stone two flat building;

(c) 3653 S. Dearborn Street consisting of a brick cottage;

(d) 3655 S. Dearborn Street consisting of a brick and stone two flat building, segregated from the foregoing units by a driveway ;

“3. That one William McBride occupied a store at number 24 West 37th Street, over which store are two of the eight apartments described under the foregoing sub-paragraph (a); that said store was the only portion of the entire premises of which said McBride had possession at the time of the filing of said complaint ;

“4. That it appears from the records of this Court that summons was served on said William McBride on to-wit, August 14, 1935, but that said McBride filed no appearance nor answer, made no defense and on to-wit, October 24, 1935 said defendant was adjudged in default, the complaint taken as confessed against said defendant and, in an ex parte hearing, the Court adjudged the defendant guilty and entered an order finding that the defendant unlawfully withheld from the plaintiff the premises described in said complaint and that the right to the possession of said property was in the plaintiff, all of which is more particularly set forth in the order entered on said day, copy of which is hereto attached as Exhibit A and by express reference made a part hereof;

“5. That said defendant William McBride was a tenant of your petitioner and that your petitioner had received rental from said McBride for the occupancy of said store for a period of approximately one year; that said McBride did not at any time give notice of the pendency of this action to your petitioner or to his agent or attorney in accordance with the Statute in such case made and provided (Cahill’s Illinois Revised Statutes, Chapter 45, Section 17); that your petitioner had no knowledge of this action nor the entry of the order (Exhibit A) until to-wit, about the first of the present year when your petitioner learned that certain other tenants occupying various portions of said premises had refused to pay rent to your petitioner stating that the plaintiff in the above entitled cause had directed them to refrain from paying rent to your petitioner and had demanded that said tenants pay rental to said plaintiff; that your petitioner did thereupon institute forcible detainer proceedings against one of said tenants and procured judgment for possession in the Municipal Court of Chicago, case #2670414.

“6. That it does not appear from the record of this case that plaintiff made any proof whatsoever of compliance with the requirements of the Statute pertaining to the purchase of tax titles and more particularly that section of the Statutes described as Chapter 120, paragraph 232 (Cahill’s Illinois Revised Statutes, 1935); that said plaintiff did not serve or cause to be served any notice whatsoever of its alleged purchase of said premises ‘on every person in actual possession or occupancy of said land’ nor ‘upon the person in whose name the same was taxed’ nor upon your petitioner, the owner of the land; that your petitioner maintains an office at 10 South La Salle Street; that his name and address appear in the telephone book; that the name and address of your petitioner’s agent is prominently posted on said premises ;

“7. That plaintiff herein has failed to comply with . said Section 232 above referred to and likewise your petitioner is informed and believes the fact to be that said plaintiff failed to comply with the succeeding Sections 233 and 234;

“8. That the entry of the order of October 24,1935 was and is in violation of the rights of your petitioner and your petitioner represents that, in justice and equity, the same ought and should be vacated, set aside and held for naught.

“Wherefore by reason of the matters and things hereinabove set forth your petitioner prays,

“ (a) That leave be granted to file this, his petition;

“ (b) That your petitioner be joined as a party defendant herein;

“(c) That the order of October 24, 1935, (Exhibit A), be vacated and set aside;

“ (d) That this petition may stand as an answer to the complaint filed herein;

“(e) That the matter be set for hearing at an early date convenient to the Court;

“And that such other and further order may be entered as the Court may deem proper and requisite in the premises.”

The verified answer of appellant set up, inter alia, that more than 30 days had elapsed since the entry of the final order or judgment on October 24, 1935, and prayed that the relief requested by the intervening petitioner be denied.

Appellant contends that “under the practice act the trial court loses jurisdiction over its final orders after thirty days after the entry of such order”; that “the order of March 7th, 1936, was entered more than thirty days after the judgment of October 24th, 1935, and the intervening petition of Thomas H. Willis is insufficient as a motion in the nature of a writ of coram nobis,” and the court was without jurisdiction to vacate the judgment entered October 24, 1935.

Par. 178, ch. 110, Ill. State Bar Stats, 1935; Jones Ill. Stats, Ann. 104.050, provides;

“(7) The court may in its discretion before final judgment, set aside any default, and may within thirty days after entry thereof set aside any judgment or decree upon good cause shown by affidavit, upon such terms and conditions as shall be reasonable.”

It is clear that the intervening petition was insufficient as a motion in the nature of a writ of error coram nobis. Indeed, appellee states it was not intended as a motion in the nature of a writ of error coram nobis, and the law applying to such a writ has no bearing upon the instant petition. He argues: “Hnder the Civil Practice Act the court may exercise its equitable powers in motions to vacate judgments,” and that ‘1 equitable matters shown on motion to vacate a judgment may now be noticed by the court and applied to give relief. The trial court considered that there were equitable grounds for setting aside the judgment and allowing a meritorious defense to be interposed”; that “where legal and equitable powers are consolidated, the court has broader powers than under the ancient writ of error coram nobis.” No authority is cited by counsel that supports the action of the trial court in vacating the judgment. Even if appellee’s intervening petition could be considered as in the nature of a bill in equity to vacate the judgment, there are no facts set up in the petition that would warrant the vacating of the judgment. Appellee contends that “a landlord without notice of the pendency of an ejectment proceeding, will be permitted, upon proper affidavit, to be made party to the suit and to defend,” even though thirty days have elapsed since the entry of the judgment, and “the landlord whose tenant is sued in ejectment may, upon his own motion or that of the plaintiff, be made defendant in such action upon such terms as may be ordered by the court.” The petition is based upon that theory of law. It is true that a landlord may enter and defend at any time prior to judgment, and he would, undoubtedly, be given the same right during the 30-day period provided by clause (7). But after the expiration of the 30 days provided in clause (7) the only way in which the trial court could set aside the final judgment would be through a written motion in the nature of a writ of error coram nolis. (See par. 200, sec. 72, Practice Act, Ill. State Bar Stats. 1935, ch. 110; Jones Ill. Stats. Ann. 104.072.) By a recent enactment of the legislature the provisions of the Civil Practice Act now apply to all proceedings in ejectment. (See ch. 45, par. 50, Ill. State Bar Stats. 1935; Jones Ill. Stats. Ann. 109.235.) The Ejectment Act also provides that the court may grant a new trial before or after final judgment in ejectment cases as in other civil cases. (See par. 36, ch. 45.)

Appellee contends that “in order to sustain an action in ejectment, the bill of complaint must allege exact compliance with the requirements of chapter 120, par. 232 (Cahill’s Illinois Revised Statutes 1935) and the proof must support such allegations.” Such a contention has no place in the instant appeal.

Appellee contends that the order of March 7, 1936, vacating the judgment of October 24, 1935, was equivalent to the granting of a new trial; that Rule 20 of this court provides that an appeal from an order granting a new trial may not be taken except upon leave granted upon application by petition; that no such petition was filed by appellant, and the instant appeal was filed without leave of this court, and should, therefore, be dismissed. It is difficult to believe that this contention is seriously made. Appellee has filed a motion to dismiss the appeal. It will be denied.

Appellee was not made a defendant in the ejectment suit, and if he received no notice from his alleged tenant, McBride, of the pendency of the suit and had no opportunity to appear and defend in the name of the tenant or in his own behalf-, he is not concluded or bound by the judgment entered on October 24, 1935.

The judgment order of the circuit court of Cook county entered March 7, 1936, is reversed.

Judgment order of March 7,1936, reversed.

John J. Sullivan, P. J., and Friend, J., concur.


author: Mr. Presiding Justice Matchett

text:
    Joseph Weisberg, Appellee, v. United States Casualty Company, Appellant.
    Gen. No. 38,963.

      Opinion filed January 4, 1937.
    Robertson, Crowe & Spence, of Chicago, for appellant ; Carl E. Abrahamson, of Chicago, of counsel.
    Alex M. Colman, of Chicago, for appellee; David F. Silverzweig, of Chicago, of counsel.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.

In an action of contract, upon trial by the court there was a finding for plaintiff in the sum of $419 with judgment, from which defendant appeals. The contract was issued July 24, 1934, was a “Robbery (Hold-up) Policy, (Paymaster, Messenger, Office or Store), Number BRH 55819.” By paragraph B of the policy defendant agreed to indemnify for losses of Outside Messenger-General Funds (“Section (c)) on money, securities and/or merchandise in the care and custody of a custodian, accompanied or unaccompanied by a guard outside the premises” to the amount of $500. The amount of the premium was $15. Paragraph B described “Loss Outside Premises General Funds” to be “Money, securities and/or merchandise, including the wallet, bag, satchel, safe or chest in which such property is contained, occasioned by Robbery or Attempt Thereat committed between 7 o’clock a. m. and 7 o ’clock p. m. (within the Policy Period specified in Item II of the Declarations), from a custodian outside the Assured’s premises but within the United States of America or the Dominion of Canada.”

The evidence shows that plaintiff was a peddler who was in the business of selling linoleum on the road from store to store, office to office, and other places. He had been in this business since 1921, and at the time of the robbery for which he claims indemnity used a Chevrolet truck, driven by a helper. The robbery occurred on United States Highway 12, near Crystal Lake, Illinois. Plaintiff obtained his linoleum from Charles Pinsky Carpet Company, 1826-1828 Roosevelt Road, Chicago, and on March 17, 1935, received from the carpet company 12 rolls of linoleum of the value of $294. He took this load of linoleum into various towns in Wisconsin, where he sold it, and in company with the driver was returning to Chicago when the robbery took place. He testified (was corroborated by his helper, and there is no evidence to the contrary) that $419 in currency (the amount for which judgment was obtained) was taken from him at that time.

Two defenses were interposed by the pleadings: First, there was a provision in the policy to the effect that the company should not be liable for any loss or damage, “ (i) Unless books and accounts are regularly kept by the Assured and are kept in such manner that the exact amount of loss can be accurately determined therefrom by the Company.” Plaintiff, strictly speaking, did not keep any books and accounts in the sense in which those words are generally used. There is evidence, however, tending to show that at the time he took out the linoleum from the carpet company he received a bill of sale from that company, upon the stationery of the seller, which indicated that 12 rolls of linoleum of the value of $294 were sold to plaintiff on March 17,1935. The testimony of the plaintiff and his helper is to the effect that upon each occasion upon which pieces of linoleum were sold to any of his customers, he made an entry upon this paper indicating the sale and the amount for which the same was sold. The several items indicate sales amounting- to $459. The testimony shows that plaintiff gave $20 to his helper; that hotel bills and expenses for gas, etc., were paid by him, and that including the currency in his pocket at the time he began the trip, there was a balance of $419, the amount which was taken. The bill of sale showing in a rough way the account of plaintiff’s sales of linoleum is in evidence. Defendant insists that this paper fails to meet the requirements of the policy; that the provision was material to the risk and a compliance with it was absolutely necessary to enable defendant to ascertain the loss, if any, and protect itself against excessive and fraudulent claims. Defendant cites Cooley’s Briefs on the Law of Insurance, 2nd edition, vol. 3, p. 2818; Niagara Fire Insurance Co. v. Forehand, 169 Ill. 626; Farmers Fire Ins. Co. v. Bates & Co., 65 Ill. App. 37; German Ins. Co. v. Bates & Co., 67 Ill. App. 370, and Harris v. General Accident, Fire & Life Assur. Corp., 187 N. Y. S. 291; Weinstein v. Globe Indemnity Co., 277 Pa. 388, 121 Atl. 316, 318.

This insurance policy is a somewhat formidable document covering several printed pages and evidently intended to be used in many and diverse situations, including insurance against robbery of large mercantile establishments conducted at a fixed place or office. The provision of the policy with reference to the keeping of books and accounts as applied to such establishments has been held entirely reasonable and necessary. Cox Jewelry Co. v. Aetna Casualty & Surety Co. of Hartford, Conn., 286 Ill. App. 515. Such provision in a policy should be given a reasonable construction in view of the character of the business and all the circumstances connected with it. However, such a provision in a policy would seem to be a representation rather than a warranty. Kaplan v. United States Fidelity & Guaranty Co., 255 Ill. App. 437, affirmed in 343 Ill. 44. Plaintiff contends in the first place, that the account kept complied with the provision in the policy, and in the second place, that since there was no conflict in the evidence as to the amount of the loss, no books or accounts were necessary. In view of the small amount of the insurance, the fact that the policy was limited to losses which might occur outside of the premises in which the business was situated, while the general form of the policy was evidently intended to be used also in the insurance of larger businesses conducted upon premises, we think it might not unreasonably be held that this provision of the policy as to books, etc., was not intended to be applicable to the business of a mere peddler of goods. This policy, by its- terms, covers losses (outside the premises) of money and securities, and particularly says it shall cover “the wallet, bag, satchel, safe or chest in which the property is contained. ’ ’ The amount of such losses is not usually ascertainable by any books of account. In Beaird v. New Jersey Plate Glass Co., 157 Ill. App. 1, it appeared that the insured and his partner kept a little book showing' the amount of money received from a gambling room which they conducted, placed in boxes at the close of each day; that they also kept a sheet of paper upon which was marked down the amount of the saloon receipts for each day, which were placed in an envelope. These papers were in the safe in which the money was when the robbery took place, and were lost. The court said that while the matter of keeping the accounts was crude and informal, that if the statements contained therein were accurate they would show the amounts actually in the safe and from them the loss might be correctly determined, and refused to hold that there was such á failure to comply with the requirement of the policy as to justify the setting aside of the judgment. That case was not unlike this one.

In Kaplan v. United States Fidelity & Guaranty Co., 255 Ill. App. 437, we pointed out that such a provision in a contract was a representation and not a warranty, and quoted with approval from Olson v. Great Eastern Casualty Co., 149 Minn. 353, to the effect that it was sufficient compliance with a provision of this sort, “if the books were kept in such manner that, with the assistance of those who kept them or understood the system on which they were kept, the amount of purchases and sales could be ascertained and cash transactions distinguished from those on credits, although it might be slow and difficult to do this.” We hold plaintiff is not precluded from recovery by this provision of the contract.

In the second place, the defendant contends that it is not liable for the reason that at the time the policy was obtained plaintiff represented to defendant that he had not sustained nor received any indemnity for any loss or damage by robbery within five years then last past. It is not denied that plaintiff sustained such loss and received such indemnity in October, 1933, prior to the execution of the policy. This statement appears in that part of the policy described as “Declarations,” and is item No. 10 of 13 such declarations. Plaintiff’s name is not signed thereto, and plaintiff denies that he ever made any such representation. His evidence on this point is uncontradicted, and he is corroborated by the testimony of the broker who obtained the policy from the general agent of the defendant company. The broker says that he at that time told the agent of the burglary which had occurred in 1933. He says the plaintiff did not make any written application for the insurance but called him on the ’phone and asked him to get the policy, and that was all that he said to him. This evidence is not denied. The defense cannot avail. Atkinson v. National Council Knights & Ladies of Security, 193 Ill. App. 215; Niemann v. Security Benefit Ass’n, 350 Ill. 308. The burden of proof was on the defendant to establish both defenses. The finding of the court is entitled to the same weight as the verdict of a jury.

Since we felt obliged to quote from the policy where the confusing* symbol “and/or” appears, we again condemn its use lest by passing* it over we seem to approve. (See City National Bank & Trust Co. v. Davis Hotel Corp., 280 Ill. App. 247; Albers v. Indemnity Ins. Co., 283 Ill. App. 260.)

The policy in question, like most policies that come before us, is long, involved, and tends to confuse. In Wiss v. Metropolitan Life Ins. Co., 277 Ill. App. 343, we said (p. 345):

“The policy in question, like all insurance policies, whether fire, life or indemnity, that it has been our duty to pass upon over a period of years, is long, involved and confusing*. We have heretofore condemned the use of long policies in the case of Kiefer Tanning Co. v. Alliance Ins. Co., 266 Ill. App. 362, which in-, volved the construction of a fire insurance policy. We there said (p. 374): ‘Why an insurance policy should not all be written on one page we are unable to understand. Certainly a policy of that length could be so drawn as to contain all the essential elements required to make a clear and concise contract:’ ”

The judgment is affirmed.

Affirmed.

O’Connor and MoSurely, JJ., concur.


text:
    Old Dearborn Distributing Company, Appellant, v. Seagram Distillers Corporation, Appellee.
    Gen. No. 39,058.
    Opinion filed January 4, 1937.
    Irving Breakstone and Irving G-reenspahn, both of Chicago, for appellant.
    Mayer, Meyer, Austrian & Platt, of Chicago, for appellee; Frederic Burnham and Richard Mayer, of counsel.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.

The Old Dearborn Distributing Company brought an action on the case against the Seagram Distillers Corporation for an alleged libel; filed an amended complaint on May 15, 1936, to which defendant interposed a motion to dismiss in the nature of a demurrer, asserting that the amended complaint failed to state any cause of action and was substantially insufficient in law because the alleged libelous matter was not defamatory or actionable; because the complaint attempted unjustifiably by innuendo to enlarge the meaning of the words in such manner as to impute to them libelous import; because the alleged libel did not purport to be published of and concerning the plaintiff, but plaintiff by innuendo attempted unjustifiably to enlarge the meaning of the words in such manner as to cause them to appear to have been said concerning the plaintiff; because the subject matter was not libelous and there were no allegations of fact in the amended complaint which would render them actionable ; and because the pleading was replete with conclusions not predicated upon any alleged facts and, in its allegations of alleged falsity, failed to give any specifications thereof. Upon the hearing the court sustained the motion, and plaintiff electing to stand on its amended complaint, the cause was dismissed. Plaintiff has appealed to this court.

This is not the first litigation in the courts of this State between plaintiff and defendant. (See Seagram-Distillers Corp. v. Old Dearborn Distributing Co., 363 Ill. 610, 2 F. E. (2d) 940.) The question for determination in this record is whether the complaint states a cause of action.

The amended complaint in the indictment alleges that plaintiff is a corporation licensed and authorized by the State and engaged in buying, selling and manufacturing wine and spirituous liquors at wholesale and retail in the city of Chicago, and is of good name, credit and reputation; that defendant is a corporation organized under the laws of the State of Delaware and licensed to do business in the State of Illinois, where it is engaged in the business of selling alcoholic beverages of standard quality under the trade marks, brands and names of the producers; that on November 19, 1935, defendant brought an action in chancery in the circuit court of Cook county against the plaintiff here, said case in the circuit court being number 35 C 16726, wherein the defendant there sought to obtain an injunction against the plaintiff here to restrain plaintiff from advertising, offering for sale or selling certain of the products originally owned by the defendant (but property of the plaintiff by purchase from distributors and vendees of the defendant) at less than certain prices stipulated by the defendant in accordance with the terms and provisions of certain “Fair Trade Contracts ’ ’ of the defendant with Distributors and Retailers. Plaintiff here, defendant there, appeared in the cause by its attorneys and filed its answer, and the cause was thereafter tried before Judge Rush of the circuit court; testimony and evidence heard, testimony closed, and the cause argued by both parties by their counsel, and a decision announced by the court. No decree or judgment had as yet been entered in said cause. The court had taken the cause under advisement. The judge, however, announced on November 26,1935, in open court that the defendant herein and plaintiff in the circuit court would be denied any injunctional relief in said proceedings, and the cause was continued until November 29, 1935, and thereafter until Saturday, November 30, 1935; that defendant, knowing these things and intending to injure plaintiff and its business, on the 26th and 27th of November maliciously composed and published “of and concerning the plaintiff and of and concerning the business of the plaintiff” in certain telegrams of the Western Union Telegraph Company, a libel of and concerning* the plaintiff and its business, in words as follows:

‘ ‘ Chicago, Illinois, Nov. 26, 1935.
“Old Dearborn Distributing Co.,
H. Blum, Pres.
209 South Wabash Ave.,
Chicago, Ill.
“Warning Stop Seagram price policy upheld (meaning in case No. 35 G 16726, Circuit Court of CooJt County) Stop Judge Gr. Fred Bush of the Cook County Circuit Court in finding* a retailer guilty (meaning guilty of a criminal offense against the law of the State of Illinois) of cutting* prices on Seagrams products today held Seagrams Fair Trade Contracts to be valid and that the Illinois Fair Trade Act is constitutional. Judge Bush also held that Seagrams required no injunction to restrain price cutting because Seagrams was sufficiently protected by its clear right to recover damages from the price cutter (meaning the plaintiff.)
“Seagram Distillers Corporation.”

The complaint avers that by this telegram defendant intended to impute to plaintiff the commission of a criminal offense; that the words and statements in the telegram were used by defendant in that sense and were so understood by the recipients; that the words and statements in the telegram were further intended to be understood as imputing* wrongdoing to and against the plaintiff, and that they were in fact so understood by the persons receiving and reading them; that the defendant published and circulated large numbers of these telegrams to a large number of firms, persons, etc. engaged in the sale of products similar to those sold by plaintiff and defendant; that the statements in said publication were wholly false and by reason thereof plaintiff has been injured, and demands judgment to the amount of $100,000. The plaintiff contends that the words of the telegram are libelous per se when considered in connection with the matters of inducement stated in the complaint. It is admitted that words not in themselves actionable cannot be rendered so by innuendo, but it is contended that the words here used, taken in connection with the prefatory averments of extrinsic facts as set forth in the inducement, are libelous in that it appears the words charged that plaintiff was a “price cutter,” was “cutting prices” and “guilty of cutting prices,” which conduct, it is averred, constitutes a crime under the Illinois Fair Trade Act (see Illinois State Bar Stats. 1935, ch. 140, ¶¶ 8 to 11; Jones Ill. Stats. Ann. 134.08-134.11), which was held by the Supreme Court of this State to be valid and constitutional in Triner Corp. v. McNeil, 363 Ill. 559; Seagram-Distillers Corp. v. Old Dearborn Distributing Co., 363 Ill. 610, 2 N. E. (2d) 940. The telegram states that Judge Rush found “a retailer guilty” of cutting prices on Seagram’s products, and the innuendo says, thereby “meaning guilty of a criminal offense against the law of the State of Illinois”; but an examination of the statute to which plaintiff refers discloses that it does not denounce the acts described in the alleged libelous matter as criminal nor prescribe a penalty for the violation thereof. The mere use of the word “guilty” in the telegram does not amount to the imputation of a crime. Newell on Slander and Libel, 4th ed., sec. 549, p. 600; Kuder v. Waukesha County, 172 Wis. 141, 178 N. W. 249-251; Zurawski v. Dziennik, etc., Corp., 286 Ill. App. 106, 2 N. E. (2d) 956. The words used in the alleged libel can therefore not be held to be libelous per se upon the theory that a criminal offense is charged. Neither does the extraneous matter referred to in the inducement and the innuendoes render the alleged libel in fact defamatory. As defendant points out, the pleading does not charge that plaintiff was falsely accused of being a “price cutter”; does not charge that Judge Bush never found that it had been “cutting prices.” The charge is that defendant falsely published that Judge Bush had found that it was a “price cutter” on a certain date, and had made certain other findings On that date, when, as a matter of fact the judge did not make such findings at that particular time. The pleading carefully avoids charging that the things said to have been found by the judge were in fact untrue. The pleading charges that the statements in the telegram were wholly false, but the statements, and all of them, were only to the effect that the trial judge found certain things were done upon a certain date. This does not amount to an allegation that the statements were untrue, nor that the findings of the judge, if made, would have been incorrect. As defendant says, “Plaintiff does not deny the truth of the things which the defendant published that Judge Bush had found but merely denies that it was true that Judge Bush had made such findings on that particular day.” In other words, the statements; were said to be false, therefore, only as to the alleged fact of Judge Bush making certain findings on November 26, 1935, but there is no averment that if such findings had been made by the judge they would not have been true. This omission in the alleged libel could not be cured by the extraneous matter stated in the inducement and in the innuendoes. We hold the complaint failed to state a cause of action and for that reason a motion to dismiss was properly allowed.

It is difficult to understand why the docket of the courts should, under all the circumstances, be incumbered by this case. It appears that in the very proceeding concerning which the telegram complained of was sent, Judge Bush finally not only found plaintiff to be a “price cutter” but issued an injunction against plaintiff, which was upon appeal affirmed by the Supreme Court of Illinois — Seagrams-Distillers Corp. v. Old Dearborn Distributing Co., 363 Ill. 610, 2 N. E. (2d) 940. The Supreme Court of the United States has in turn affirmed the Supreme Court of this State. Old Dearborn Distributing Co., Appellant, v, Seagram-Distillers Corp., Appellee, No. 226, opinion filed December 7, 1936, 57 Sup. Ct. 139.

Plaintiff having been thus adjudged guilty by local, State and Federal courts of the charge concerning which he now complains, this suit appears to be purposeless.

The judgment is affirmed.

Affirmed.

O’Connor and McSurely, JJ., concur.


text:
    First National Bank of Dolton, Appellant, v. Village of Dolton, Appellee.
    Gen. No. 39,074.

      Opinion filed January 4, 1937.
    Otto F. Reich and George P. Novak, both of Chicago, for appellant; Daniel S. Wentworth, of counsel.
    Maloney & Wooster and H. L. Summerfield, all of Chicago, for appellee.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.

This appeal is by the plaintiff from the judgment of the superior court entered March 16, 1936. The original declaration was filed in the cause November 25, 1932. By leave of court, an amended declaration was filed December 23, 1935. Both declarations were in assumpsit, and both were duly verified. The affidavit to the original declaration averred there was due $7,643.46, with interest at the rate of six per cent per annum, from March 26, 1928. The affidavit to the amended declaration averred that $7,643.46 was due, but made no claim for interest. The original declaration was based upon the theory that plaintiff was the owner of four special assessment vouchers for which defendant had negligently failed to collect the funds necessary to pay. The amended declaration is based upon the theory -that the amount claimed is due on a quantum meruit for legal services. In both declarations plaintiff claimed as assignee of attorney Joseph P. Savage who rendered the services.

October 25, 1935, plaintiff moved for leave to withdraw the affidavit attached to the original declaration and to substitute new affidavits in lieu thereof. The motion was denied December 6, 1935. December 23, 1935, plaintiff, by leave, filed an amended declaration-consisting of 11 paragraphs. The cause came on for hearing March 6,1936, upon the demurrer of defendant to the replication of plaintiff, and upon the motion of the defendant for an order dismissing the cause for want of sufficient replications to certain pleas. The court sustained defendant’s demurrer to plaintiff’s replication to the first plea, and plaintiff electing to stand by its pleadings, it was ordered that the suit be dismissed for failure of plaintiff to file sufficient replications to defendant’s pleas No. 1 and No. 2. This appeal followed, by which plaintiff prays that the judgment of the trial court may he reversed, and judgment entered here in favor of plaintiff against defendant for $7,643.46.

The facts admitted by the pleadings are as follows: Plaintiff is a hanking corporation, defendant a municipal corporation. Defendant was under the Local Improvement Act authorized to levy special assessments. Joseph P. Savage on and prior to July 11, 1927, was the attorney for defendant. Upon that date the board of trustees of the village passed an ordinance which provided as follows:

“That the Village Attorney, Joseph P. Savage, be and he is hereby authorized, instructed and directed to prepare all of the necessary papers, resolutions, ordinances, estimates, petitions, notices, orders, appear in Court, attend Board of Local Improvement meetings, write up the minutes of the Board of Local Improvements meetings, and to do all other work necessary or which may be necessary, including the spreading of the assessment and writing up the assessment roll for the purpose of originating and pursuing to completion, including confirmation of all Special Assessments that may be levied in the Village of Dolton, Cook County, Illinois.

“Section 2. That said .Joseph P. Savage, shall receive as his compensation for the services aforesaid five per cent of the cost of said improvement, which shall be paid in first instalment special assessment vouchers. ...”

November 17, 1927, defendant (by Savage as its attorney) filed in the county court of Cook county its petition in a special assessment proceeding known as number 41. February 23, 1928, the county court entered an order confirming1 this special assessment and entering a final judgment. Thereupon, defendant village, by its proper officials, awarded a contract for the construction of the improvement, and the work was immediately begun by the contractor. March 26, 1928, the village issued four special assessment vouchers drawn upon the first instalment of the special assessment to be collected. The vouchers were numbered 172 to 175, and were for the total amount of $7,643.46. The form of these vouchers is set up verbatim in the declaration. In substance each voucher was to the effect that defendant for value received promised to pay to the bearer the sum named in the voucher out of the first instalment of the special assessment number 41. Each voucher also recited that it was issued to anticipate “the collection of a part of the first instalment of said assessment which has been duly confirmed in the County Court of Cook County,” and that it was payable solely out of said instalment when collected. These are the vouchers upon which this suit is based. The same were issued by defendant and delivered to Joseph P. Savage, then acting as attorney for defendant in this special assessment proceeding. These were delivered to him in consideration of his services as attorney for defendant in that matter. On the day after these were issued and delivered, these vouchers were, for a valuable consideration, transferred by attorney Savage to the plaintiff bank.

Special assessment No. 41 against which the vouchers were issued, was a proceeding to levy an assessment to pay for a combined sanitary and storm water sewer, at an estimated cost of $191,438.77. Property owners, represented by eight different firms of attorneys, filed objections. When the case came on for trial attorney Savage, representing the village, reached a settlement with the attorneys representing certain objecting owners, and by agreement with them their objections were overruled. Orders were entered reducing their assessments in accordance with the terms of the settlement. Objectors represented by attorney George P, Foster, Jr., however, did not obtain a reduction, and the assignment was confirmed February 23, 1928, without passing upon the validity of the objections filed by Foster’s clients. Meantime, the term of Joseph P. Savage, as attorney for the village defendant, expired April 30, 1928, when an ordinance was passed by defendant village appointing one William Propper as his successor. Thereafter, by order of the village, it became the duty of Propper to furnish legal services in connection with the proposed assessment. The proceeding was one for the construction of a sewer including the laying of an outlet sewer along 154th street from Stony Island avenue to Ellis avenue. 154th street was partially the private property of the Pittsburgh, Cincinnati, Chicago & St. Louis Railroad Company and was partially within the corporate limits of the village of South Holland. The special assessment proceeding did not provide for any means of obtaining easements over the streets of South Holland or across the property of the railroad company, and the contract for the sewer was let by the village under the direction of Savage, and the vouchers issued to him without providing for obtaining easements for an outlet for the sewer. The village endeavored to obtain these easements from the village of South Holland but was unable to do so, and by reason thereof it was impossible to construct any outlet for the proposed sewer improvement. June 20, 1928, attorneys Latchford & McKenna, in behalf of certain property owners, filed a petition asking that the judgment of confirmation be vacated. September 21, 1928, Foster, Jr., served notice of a motion to set the objections of his clients for hearing. The motion was continued until October 8, 1928. On that date, the contractor and all parties being present in court, the court, on its own motion, vacated all the orders and dismissed the proceedings. No appeal from this order was ever taken, and it remains in full force and effect.

Two ultimate and controlling questions are disclosed by the record: First, whether the issuance of the special assessment vouchers, the delivery of the same to Savage, and his acceptance thereof, as provided in the ordinance, discharged defendant from any further claim on his part for legal services. Secondly, whether the amended declaration states a new and different cause of action from that set out in the original declaration, whereby the cause of action alleged in the declaration is barred by the statute of limitations. A decision for defendant on either of these propositions will make unnecessary the consideration of the other question.

The trial court was of the opinion that plaintiff was precluded from recovery on both theories. Plaintiff contends, citing cases such as Archibald v. Argall, 53 Ill. 307, and Mann v. Downers Grove Sanitary Dist., 281 Ill. App. 412, that acceptance of the vouchers by the attorney did not amount to payment of the obligation of the village to the attorney for his services, upon a well settled principle that the mere giving of a note for a precedent obligation does not extinguish the debt. Obviously, however, that general rule is subject to the limitations that the parties themselves may, by agreement, have imposed. The rule is clearly not applicable when the parties have agreed that the issuing of the security shall extinguish the debt. Such an agreement in the case of a municipality is also limited by restrictions, if any, imposed by law upon the municipality authorized to issue the securities.

These vouchers were issued under the provisions of the Local Improvements Act (see Ill. State Bar Stats. 1935, ch. 24, sec. 88, par. 218; Jones Ill. Stats. Ann. 76.109). Sec. 88 of that statute specifically provides that the vouchers may be used in making payment for the improvement, or that the property owners may use them in making payment of their special assessment levy in order to pay for the improvement. Plaintiff’s original declaration was based on the theory that defendant was liable on the grounds that it was derelict in failing to collect the assessment. The amended declaration is based upon the theory that defendant is liable as upon an implied promise for a quantum meruit. As a general rule, we think parties, as here, taking such securities from a municipality pursuant to a prior agreement in consideration of services to be rendered intend that the same, when delivered, shall discharge the obligation of the debt. This seems to have been the ruling of the courts in the absence of facts or circumstances showing a contrary intention or disclosing liability upon some other ground. Of the cases so holding, it will be sufficient to cite Conway v. City of Chi cago, 237 Ill. 128; Harrold v. East St. Louis, 197 Ill. App. 121; Berman v. Board of Education, 360 Ill. 535. Plaintiff concedes that these cases were decided correctly upon the facts appearing in each, but undertakes to distinguish upon several grounds. Plaintiff contends in the first place that defendant here, by reason of its conduct, is estopped to contend with respect to the abandonment of the improvement that it was involuntary upon the part of the village. Plaintiff points out that the assessment was confirmed February 23, 1928; that the order was not vacated and the petition dismissed until October 28, 1928; that defendant made no objection to such dismissal, although the court, as it is said, in fact had lost jurisdiction. Plaintiff says that defendant, by its silence, is estopped to say that the dismissal was made without its consent, and cites Morgan v. Railroad Co., 96 U. S. 716, 720, to the point that silence where there is a duty to speak may estop one who is silent. Plaintiff also cites sec. 88 of the Local Improvements Act to the effect that without the consent of defendant the court was wholly without jurisdiction to set aside the judgment of the confirmation under the circumstances here appearing, and that in the absence of objection by the village, the judgment of confirmation was final. Plaintiff cites Washington v. Des Plaines, 344 Ill. 613. Hence, defendant says the village must be held to have voluntarily abandoned the special assessment proceeding, and, therefore, defendant is liable on an implied contract upon the theory that without fault of plaintiff the improvement was abandoned by defendant. Plaintiff further contends that, assuming the abandonment was voluntary, defendant nevertheless was liable, citing Maher v. Chicago, 38 Ill. 266; Hall v. Cook County, 359 Ill. 528; Bunge v, Downers Grove Sanitary Dist., 356 Ill. 531.

The record does not disclose the reasons which moved the county court to vacate the confirmation order and dismiss the petition. The record, however, does recite that all the parties were present, including the contractor, and in so far as the record discloses no objection was made to the dismissal, the presumption in the absence of a showing of facts to the contrary is that the judgment of the county court was justified. It may have been by reason of the fact that there was some jurisdictional defect in the proceedings, and the court was properly moved to this action by the fact that a sewer without an outlet could hardly be said to be an improvement but would be in the nature of a nuisance. At any rate, every presumption is in favor of the action of the court, and every party interested, including the contractor, being present, seems to have acquiesced in the judgment. We think the record would not justify the conclusion as plaintiff contends that the city exercised a legal right under the statute to dismiss the proceeding. Moreover, the cases cited to the point that defendant is liable assuming the abandonment to have been voluntary are all distinguishable for the reason (as to some of these cases) that the statute, from which the municipality derived its authority to levy the assessment, was different from our Local Improvements Act but also by the fact (that in each case) the contract made between the plaintiff and defendant provided for an absolute rather than a contingent liability. Plaintiff, relying upon Bunge v. Downers Grove Sanitary District, 356 Ill. 531, and Gray v. Joliet, 287 Ill. 280, contends for the general proposition that whenever a special assessment proceeding is not carried to completion, the municipality cannot avoid payment of a just claim for services rendered in the proceeding by setting up the contingent nature of the contract under which the services were performed. Plaintiff says that in such a case the defendant municipality is always liable out of the general fund. In addition to cases already cited, plaintiff cites Murrie v. Harper, 249 Ill. App. 586; Woods v. Village of LaGrange Park, 281 Ill. App. 609 (Abst.); Anderson Co. v. Highland Park, 276 Ill. App. 327, and Ashdown v. Village of Matteson, 264 Ill. App. 615 (Abst.). The distinction between these cases and the instant one is well illustrated by Bunge v. Downers Grove Sanitary Dist., 356 Ill. 531. That was a case where the Downers Grove Sanitary District made a contract with plaintiffs whereby they were employed to take charge of its legal work, including all special assessment proceedings. By agreement, it was provided that defendant would pay for special assessment proceedings abandoned or discontinued without plaintiffs’ fault or negligence. Thereafter defendant, without cause, repudiated the contract and discharged the plaintiffs. The board then voluntarily abandoned several of the special assessment proceedings, repudiated their contract with the plaintiffs, and upon being sued, pleaded ultra vires, illegality, want of consideration, payment. Defendant also questioned the value of the services and pleaded the general issue. The court held the contract was not ultra vires; that vouchers issued under one of the special assessments for an improvement which had been abandoned after the vouchers were received by plaintiffs did not amount to payment. In that case, unlike this one, there was nothing to indicate the intention of the parties that the vouchers should be received as payment. The case has no application to facts such as are disclosed here.

Plaintiff also contends that under sec. 94 (par. 226) of the Local Improvements Act (Ill. State Bar Stats. 1935, ch. 24; Jones Ill. Stats. Ann. 76.117) the costs and expenses of special assessment proceedings are required to be paid by the municipality out of its g*eneral fund regardless of whether a petition is dismissed or not. Generally speaking that is true hut not under the circumstances here disclosed. Plaintiff cites Gray v. Joliet, 287 Ill. 280. The case does not sustain plaintiff’s contention. That case holds that where the city employs persons to spread an assessment and thereafter abandons the proceedings, it is liable on the quantum, meruit, not under the statute. The contract there made, it will be noticed, was not as here contingent in its nature.

Because the uncontradicted facts, which under the pleadings we must assume to be true, compel the inference that these vouchers were by agreement of the parties to be received as payment of the obligation about to be incurred, we think the court properly held that plaintiff was not entitled to recover.

We hold, too, as defendant contends, that under the ordinance which fixed the compensation of Mr. Savage as attorney for the village, it was his duty to obtain a valid confirmation of the special assessment in the proceeding and to see that provision was made for the issuance of valid aild collectible vouchers, and that (having failed to comply with his obligations in this respect) neither he nor his assignee can recover on an implied contract for services rendered. The record shows that Savage was appointed village attorney and his compensation therefor fixed by the ordinance' of July 11, 1927. His term as village attorney continued until April 30, 1928. In the meantime a new board of trustees had been elected and another ordinance was passed by them appointing William Propper as the successor of Mr. Savage. It is not accurate to say that Mr. Savage was discharged by defendant. He ceased to be the attorney for the village by operation of law. The new board had a right to elect another attorney if it saw fit so to do. The fact that up to that time Savage had not done the tilings necessary to earn his compensation by obtaining easements, disposing of objections, etc., did not take away from the new board of trustees the power to employ another attorney for the village or compel them to retain their then attorney for an indefinite term. The averments of the pleadings do not indicate that Mr. Savage ever offered to complete his legal work in connection with the assessment or that he was ignorant of the proceedings in the county court to set aside the confirmation order. If he knew, he made no objection. If he had any rights in that respect, he seems not to have insisted on them. He seems to have fully acquiesced, and the suit by his assignee was not begun for several years thereafter. He must have known the situation fully. By the terms of his employment, he undertook to secure and cause to be confirmed a valid assessment. He did not accomplish the things he agreed to do. Everything which he had done to that end was adjudged null and void and without effect, and he seems to have acquiesced in the judgment. The plaintiff now, after a lapse of years, asks that the client of its assignor be held liable for its failure to accomplish the things which its assignor had agreed to do for the defendant, and upon the doing of which payment of the compensation assigned was made contingent. We hold that neither plaintiff nor its assignor can be heard to so contend.

For the reasons indicated the judgment must be affirmed, and it is unnecessary to consider the other question raised as to whether the suit stated in the amended declaration is barred by the statute of limitations. It would unduly extend this opinion to discuss at length that question, although it seems proper to say that the amended declaration, in our opinion, states a new and distinct.cause of action, and since it was filed more than five years after the performance of the services sued for, is barred by the statute. Phelps v. Illinois Cent. R. Co., 94 Ill. 548; Secord-Hopkins Co. v. Lincoln, 173 Ill. 357; Chicago, B. & Q. R. Co. v. Jones, 149 Ill. 361; Fish v. Farwell, 160 Ill. 236; Macgerlein v. Chicago, 141 Ill. App. 414; Lipcovitz v. Warren Printing Co., 249 Ill. App. 368.

For the reasons indicated the judgment of the trial court is affirmed.

Affirmed,

O’Connor and McSurely, JJ., concur.


author: Mr. Justice McSurely

text:
    Oscar Linn, Trading as Austin Window Shade Company, et al., Complainants, v. Laramie State Bank of Chicago et al., Defendants. Oscar Linn, Trading as Austin Window Shade Company et al., Appellants, v. Charles J. Klingel, Appellee.
    Gen. No. 39,111.

      Opinion filed January 4, 1937.
    Rehearing denied January 18, 1937.
    John C. De Wolfe and Dowling & Murphy, all of Chicago, for appellants; Irving Goodman, of Chicago, of counsel.
    Maximilian J. St. George, of Chicago, for appellee.
   Mr. Justice McSurely

delivered the opinion of the court.

Complainants appeal from an order which modified a prior decree by vacating that part of it which found that Charles J. Klingel was liable as a stockholder in the Laramie State Bank of Chicago.

In August, 1930, the Laramie State Bank of Chicago, an Illinois banking corporation, closed its doors and went into liquidation; thereupon complainants filed a representative suit on behalf of themselves and creditors of the bank to enforce the liabilities of the stockholders, and Charles J. Klingel was made a party defendant; the record shows that he was personally served with summons but filed no appearance nor answer; he was defaulted and on March 27, 1935, a decree was entered in accordance with the master’s report against those defendant stockholders found to be liable, including Charles J. Klingel, who was decreed to be liable for the sum of $5,000 and costs.

May 16, 1935, Klingel filed a petition to vacate that part of the decree affecting him, on the ground that he had not been served with summons in the proceeding and was never a stockholder of the bank and had no knowledge of the entry of the decree until May 13, 1935, when he received a letter from the receiver of the bank notifying him that a decree had been entered against him; complainants filed an answer to this petition and the matter was referred to a master who after hearing evidence reported, recommending that the decree of March 27, 1935, be vacated and set aside as to Klingel. Apparently there was a supplemental reference and a second report made, with the same recommendations. April 23, 1936, the chancellor overruled exceptions to the master’s report and entered a decree finding that Klingel had never been served with process, was never a stockholder in the Laramie State Bank, and did not know of the decree against him until on or about May 10, 1935, and it was ordered that so much of the decree of March 27, 1935, as referred to Klingel should be vacated and set aside.

■The first question presented is whether Klingel was personally served with summons. On the hearing* before the master, in answer to a question as to whether he had been served with summons in this cause, Klingel replied in the negative. No evidence tending to corroborate this denial was offered.

As against this unsupported statement we have the sheriff’s return which shows that Charles J. Klingel was personally served with summons in this cause on September 14, 1931. The deputy sheriff who made the return testified he served the summons on the defendant in a grocery store or butcher shop; Klingel had testified that he kept a butcher shop at 5136 W. Chicago avenue. Robert E. Dowling, an attorney and one of the solicitors for complainants, testified that he placed a summons bearing the name of Charles J. Klingel, as one of the defendants, in the hands of the sheriff of Cook county, directing that it be served upon defendant Klingel at 5136 W. Chicago avenue; that in the latter part of September, 1931, Klingel personally called upon him at his office and that Klingel had a copy of the original summons in his hand; that Klingel asked him what he should do with reference to the matter and that the witness advised him to pay his liability or retain an attorney to defend him.

Martin T. O’Brien, receiver of the bank, testified that on February 27, 1935, he sent a letter in a duly stamped and properly addressed envelope directed to Charles J. Klingel at 5136 W. Chicago avenue; that the letter was sent by him as receiver in the stockholders’ liability suit; that Klingel called upon the witness,.O’Brien, at the latter’s office on March 4,1935, with reference to this letter and they had a conversation concerning it. Again in the early part of March, 1935, Klingel called upon Dowling with a copy of the letter received by him from O’Brien, receiver; he told Dowling that he had called at his office two or three times previously to see him concerning O’Brien’s letter; Dowling told Klingel that the decree had been virtually completed and would soon be presented to the court, and that if he desired to save additional expense and court costs it would be better for him to settle his liability rather than wait until after the decree had been entered. It should be noted that Klingel in his sworn petition alleged that he first knew of the pendency of the stockholders’ liability proceeding on May 13, 1935, when he received a letter from O’Brien. This is contrary to his testimony that when he received O’Brien’s letter of February 27th he called upon Mr. O ’Brien and Mr. Dowling on March 4, 1935.

In Marnik v. Cusack, 317 Ill. 362, where the defendant swore he was not served with summons, although the sheriff’s return showed to the contrary, the court said:

“The stability of judicial proceedings, however, requires that the return of an officer made in the due course of his official duty and under the sanction of his official oath should not be set aside merely upon the uncorroborated testimony of the person on whom the process has been served but only upon clear and satisfactory evidence.” This rule has been repeated and emphasized in so many decided cases as to become axiomatic. Among these cases are Moore v. Robbins Machinery & Supply Co., 252 Ill. App. 24; Smith v. Zuta, 247 Ill. App. 203; Sullivan v. Niehoff, 27 Ill. App. 421; Lancaster v. Snow, 184 Ill. 534; Stasel v. American Home Security Corp., 279 Ill. App. 172; Lewis v. West Side Trust & Sav. Bank, 286 Ill. App. 130; Harrison v. Hart, 21 Ill. App. 348; Hunter v. Stoneburner, 92 Ill. 75. And 50 C. J. 579, says:

“In accordance with the rule requiring clear and convincing proof to overcome a return of process, it cannot be impeached by the unsupported testimony of the party upon whom service is stated by the officer to have been made, or of another single witness, even though the officer fails to recall the service.”

In the light of this established rule it hardly needs argument to demonstrate that both the master in his report and the chancellor in his decree committed grave error in accepting the uncorroborated statement of Klingel that he was never served with summons in the face of the testimony of the witnesses showing clearly that this statement was untrue. The evidence is convincing that the defendant, Charles J. Klingel, was served with summons on September 14,1931. This point alone is sufficient to require a reversal of the decree of April 23, 1936.

However, we note the claim that Klingel was never a stockholder in the Laramie State Bank. It is sufficient to say that the stock certificate books and the stock ledger of the Laramie State Bank, which were introduced before the master, show conclusively that Charles J. Klingel of 5136 W. Chicago avenue was the holder of stock certificate No. 54 for 50 shares of capital stock of the Laramie State Bank from October 20, 1925, to November 23, 1927. Also, there was abundance of evidence by public accountants that Klingel was a stockholder at this time, during which period the liabilities which accrued were over $13,000. The only evidence to the contrary is the unsupported statement of Klingel that he had never been a stockholder of the bank. In view of this record it is difficult to understand how the master and the chancellor could ignore the evidence and make the finding which was made.

Counsel for Klingel seems to take refuge in the assertion that the original report of the master with the evidence is not before us on this appeal. We do not see how the questions presented by this appeal could be determined without the entire record. Moreover, it was stipulated by the parties that in making-up the transcript of record for this appeal the original reports of the master in chancery would be used.

For the reasons indicated the order of April 23, 1936, is reversed and the cause is remanded with directions to expunge it from the record and to affirm the decree of March 27, 1935, in so far as it finds Charles J. Klingel liable in the sum of $5,000.

Reversed and remanded with clirections.

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