text:
    Ernest E. Freeman, Appellant, v. Mary Freeman et al., Appellees.
    Gen. No. 41,877.

      Heard in the third division of this court for the first district at the October term, 1941.
    Opinion filed May 27, 1942.
    Leonard & Leonard, of Chicago, for appellant; Gordon McLeish Leonard and Ernest E. Freeman, Jr., both of Chicago, of counsel.
    Ross Langdon and Chas. O. Bundall, both of Chicago, for certain appellees.
   Mr. Justice Hebel

delivered the opinion of the court.

This is an appeal by the plaintiff from an order of the superior court entered February 5, 1941, striking the complaint as amended, and from an order entered February 10, 1941, denying plaintiff leave to amend the complaint and dismissing the complaint for want of equity.

From the record it appears that on April 19, 1938, the plaintiff, Ernest E. Freeman, filed his complaint against defendants praying for relief by way of equitable lien on certain life insurance referred to in a contract attached to the complaint. After motion to strike and argument thereon, Lommen D. Eley, administrator, obtained leave to intervene as a party; that on October 4, 1938, plaintiff and Eley, administrator, as coplaintiffs filed an amended complaint, upon which issue was joined and hearing had before a master. From a decree granting plaintiffs their requested relief, defendants appealed to this court, where the decree was reversed. (Freeman v. Equitable Life Assurance Society of the United States, 304 Ill. App. 517.)

It further appears that on October 26, 1940, the mandate of this court was filed, and on October 30, 1940 defendants filed their written motion to dismiss the proceeding and in support of their motion called the trial court’s attention to the opinion of this court. On November 12, 1940, the cause was redocketed and plaintiffs Freeman and Eley, administrator, were given leave to file an amended complaint. Thereafter, on November 22, 1940, plaintiff Freeman filed an “Amendment of Ernest E. Freeman to Amended Bill of Complaint.” On the same day there was filed “Amendment of Lommen D. Eley to Amended Bill of Complaint Heretofore Filed Herein.”

On November 28,1940, defendants filed their written motion to strike the amended complaint as amended by the two amendments filed on November 22, 1940. On February 5, 1941, defendants’ motion was sustained, and the two amendments filed on November 22, 1940, were stricken.

Thereafter, on February 10, 1941, plaintiff, Ernest E. Freeman, filed his written motion for leave to file instanter an amendment to the amended complaint, attaching the proposed amendment. The court after argument found that the “proposed amendment is substantially insufficient in law,” denied leave to file, and dismissed the cause.

The complaint filed by plaintiff alleges that on or about June 1,1936, the plaintiff entered into an agreement, in writing, with his brother, Walter Freeman (a copy of which agreement was attached to and incorporated in the complaint); that the plaintiff, as recited in the contract, had turned over to Walter Freeman the sum of $30,000 which was used, together with certain funds of Walter Freeman and Louise Rothermel, to purchase special assessment bonds and vouchers in the aggregate approximate face amount of $573,000. The balance of the purchase price, amounting to approximately $212,000, was borrowed from the Continental Illinois National Bank and Trust Company, for which loan a note was executed by Walter Freeman and one Arthur T. G-alt, secured by the pledge of the aforementioned special assessment bonds and vouchers; that by partial liquidation of the collateral, the obligation to the bank had been reduced from time to time and at the time of filing the complaint amounted to approximately $11.0,000.

It is further alleged in the complaint that Walter Freeman at the time of entering into this agreement with Ernest E. Freeman had certain contracts or policies of life insurance upon his life payable to one of the defendants or to the estate of Walter Freeman, with the full right and power in Walter Freeman to change beneficiaries in his own discretion; that certain of said policies providing for the payment of $30,000 on Walter Freeman’s death were issued by the defendant Equitable Life Assurance Society.

It was further alleged that Walter Freeman, in consideration of the plaintiff’s $30,000 investment and in consideration of the discretionary powers given him under the contract, in order to secure the plaintiff against loss of any part of the sum advanced by plaintiff, agreed to assign and deliver certain of the aforesaid policies in the amount of $30,000, and that Ernest E. Freeman, relying upon Walter Freeman’s undertaking, turned over the said sum to Walter Freeman for the purposes indicated in the agreement; that, thereafter, Walter Freeman, contrary - to his agreement with plaintiff, made the policies of life insurance payable to the defendants, Mary, Marilyn and Walter Freeman, Jr.; that Walter Freeman failed to deliver the policies of life insurance, although requested to do so by plaintiff; that on Walter’s death on January 6, 1938, the plaintiff was deprived of the benefit of Walter Freeman’s special ability in the liquidation of the special assessment bonds; that the plaintiff has not been repaid any part of the $30,000 advanced by him and that Walter Freeman’s estate is insolvent; that Walter Freeman, by reason of his peculiar relationship to the plaintiff, was charged with a trust; that in breach of said trust he had deprived the plaintiff of the benefit of the insurance, as aforesaid; that defendants had collected insurance to the extent of $50,000 after being informed of the claim of the plaintiff; that the defendant Equitable Life Assurance Society had been notified of the claim of the plaintiff ; that the plaintiff has suffered a loss of more than one half of the sum of $30,000 advanced by him to Walter Freeman; that no part of said sum had been returned to him; that he has received only $600 from Walter Freeman, which was paid to him as a distribution of profits and not as a return of capital; that since the death of Walter Freeman the plaintiff had been compelled to and had paid large sums of money to protect the $30,000 advanced; that on or about March 8, 1939, the purchase money note was called for payment by the Continental Bank; that the bank refused to extend the time of payment of the note upon the ground that the security for the note was insufficient; that the plaintiff, together with other persons interested, was compelled to advance large sums of money to prevent the sale at a loss of the aforesaid special assessment bonds; that to induce one of the other persons interested to post additional collateral for the payment of the note, plaintiff was compelled to surrender part of his interest in the undertaking and that plaintiff has been compelled to pay large amounts of cash with no possibility of reimbursement to protect his $30,000 advanced; that the value of the special assessment bonds and vouchers does not exceed by more than $25,000 the amount of the indebtedness for which the bonds are pledged, and that the members of the syndicate who have advanced cash, including plaintiff, have suffered a loss of more than one half of the capital so advanced; that there is no ready market for the securities and if they are sold at a forced sale the proceeds would not exceed the amount of the indebtedness for which they are pledged, and that in consequence of such a sale plaintiff’s capital loss would be total. It is alleged that the value of the bonds was not provable with any degree of certainty at the time of the first trial, so it was impossible to ascertain at that time whether or not he had actually sustained the loss, but that with the evidence of payments made upon the bonds in the period of time elapsing between the first trial and the date of the amendment it had become possible to establish that the bonds are of a value exceeding by not more than $25,000 the amount of the indebtedness for which they are pledged.

Plaintiff further alleged that at the time of the execution of the agreement sued upon Walter Freeman was uninsurable by reason of his health; that on or about May 15, 1936, Walter Freeman, pursuant to a contract with one Arthur T. Galt'applied for $50,000 of insurance to be made payable to the Continental Illinois National Bank and Trust Company, which application was rejected; that thereafter until the time of his death, Walter Freeman continued to be uninsurable by reason of the state of his health and the rejection of his insurance application; that Walter Freeman made no other application for insurance, other than the one required by his contract with Galt, between January 1, 1936 and the date of his death.

It appears further from plaintiff’s allegations that at the time of the execution of the contract between himself and Walter Freeman, Walter Freeman had only two policies payable to his estate, the first policy with the Equitable Life Assurance Society of the United States in the amount of $25,000, subject to a loan to Walter Freeman in the approximate amount of $6,700, so that the proceeds of this policy over and above said loan would amount to approximately $18,000. In addition thereto, Walter Freeman had a policy of $15,000 with the Mutual Trust Life Insurance Company free and clear of any loan. All other policies on Walter’s life at the time of the execution of the contract and until November 27, 1937, were made payable to Mary Freeman. On or about November 27, 1937, the unencumbered $15,000 policy was altered by Walter Freeman to change the beneficiary from his estate to his wife, individually; and on December 1, 1937, the beneficiary of the $25,000 Equitable Life policy was changed from his estate to Mary Freeman, Walter Freeman, Jr., and Marilyn Freeman, defendants.

It is further alleged that under the terms of the contract sued upon the aforesaid twd policies are identified as the subject matter of the contract and that relief should be given plaintiff accordingly. Plaintiff requested that the court order the defendants to pay to him the sum of $30,000 out of the proceeds of the two policies referred to with the Equitable Life Assurance Society of the United States and the Mutual Trust Life Insurance Company, respectively, or, in the alternative, that the defendants be required to reimburse plaintiff for capital losses incurred by the plaintiff and that the defendants be required to furnish security against further loss upon such terms as the court may deem just.

The amendment of coplaintiff Lommen D. Eley, as administrator of the estate of Walter Freeman, adopted by Ernest E. Freeman, plaintiff, stated that Walter Freeman was insolvent after January 1, 1936, and that from time to time during the rest of his life Walter Freeman converted to his own use the property of his customers; that prior to November 27, 1937, Walter Freeman had insurance policies made payable to his estate in amounts more than sufficient to make good the contract with Ernest E. Freeman, but that on or about said date Walter Freeman at the instance and request of the defendants or one of them changed the beneficiary upon each of said policies in favor of the defendants; that the changes in beneficiary were made in contemplation of the death of Walter Freeman with the intent to cheat and defraud Ernest E. Freeman, plaintiff; that Walter Freeman took his own life on or about January 6, 1938; that under the statutes of Illinois his administrator had the power to perform contracts entered into by the deceased and that Eley, as administrator, had with the approval of the probate court elected to complete the contract upon which suit was brought and demand the proceeds of the policies previously payable to the estate of Walter Freeman or so much thereof as might be necessary to complete the contract of Walter Freeman with Ernest E. Freeman, and that Eley further alleged that Walter Freeman’s failure to complete his contract with Ernest Freeman was with the purpose and intent of cheating and defrauding said Ernest Freeman; that the administrator had certain rights against Ernest E. Freeman, once the contract was performed, which the court should require Ernest E. Freeman to fulfill.

There were two amendments touching upon the question of identification of the res. The first was that of the plaintiff, Eley, as administrator of the estate of Walter Freeman, which we have set forth in substance. The second was that of plaintiff Ernest E. Freeman, alleging that from and after the date of the execution of the contract sued upon Walter Freeman was, by reason of the condition of his health, uninsurable; that pursuant to a contract with Arthur T. Gralt he had applied for $50,000 of insurance to be made payable to the Continental Illinois National Bank "& Trust Company, which application was rejected because of the condition of his health and that thereafter Walter Freeman continued to be uninsurable by reason of the condition of his health and said rejection; that at the time of the execution of the contract Walter Freeman had two and only two policies made payable to his estate; that the amounts payable on said policies over and above the amount of a loan made upon one of them amounted to approximately $33,300; that all other policies were made payable to the defendant Mary Freeman; that on or about November 27, 1937, the said policies were so changed as to make the beneficiaries the defendants in this case instead of the estate of Walter Freeman. The plaintiff, Ernest E. Freeman, requested an order on the defendants to pay to him the sum of $30,000 out of the proceeds of the policies or, in the alternative, that the defendants be required to reimburse him for losses already incurred and to furnish security against further loss upon such terms as the court might provide. It is suggested that these amendments introduce a further means of identification of the subject-matter of the contract; that the trial court at the first hearing had concluded from the evidence that the policies referred to in the contract were policies then in existence and that inasmuch as Walter Freeman had failed to further identify the policies the defendants who were claiming through him as volunteers were estopped from requiring any further identification; and that upon remandment the plaintiffs showed that by the very terms of the contract itself a further identification of the policies was possible.

Considering the questions involved in this litigation, the entire case depends upon whether there was sufficient identification of the policies upon which an equitable lien might be imposed. It is to be noted that the relief prayed for was that defendants be ordered to pay plaintiff the sum of $30,000, out of the proceeds of the policies, or, in the alternative, that the defendants be required to reimburse him for losses already incurred and to furnish security against further loss upon such terms as the court might provide. That does not tend to establish that there would be evidence which identified the policies in question as those called for by the contract. It certainly is not provided in the contract that the court was to enter a decree to reimburse the plaintiff and furnish security against further loss. As indicated in this opinion, it is necessary that the identity of the subject matter be established and that the evidence establish the right of the plaintiff to have a lien upon the policies that were agreed upon. The plaintiff, however, earnestly seeks to' establish that an equitable lien attached to the policies of life insurance upon the execution of the contract and that that lien could not be defeated by the change in beneficiary on the policies from Walter Freeman’s estate to the defendants in this case, particularly when, as alleged, the changes were made at the request of the defendants or one of them with the purpose and intent of cheating and defrauding Ernest E. Freeman.

The defendants urge, first, that plaintiff had no right to amend after remandment in the earlier appeal, wherein the decree was reversed and the cause remanded “for such other and further proceedings as to law and justice shall appertain.” This required an examination by the chancellor of the opinion in the earlier appeal. (Freeman v. Equitable Life Assurance Society of the United States, 304 Ill. App. 517.) This court, after considering the question involved in this former appeal said:

“After consideration of the questions involved, the contract which was executed by the plaintiff and the defendant creates no equitable lien on any of the policies for the reason that it is essential that the property be identified whereby the party promised to convey, assign or transfer the property as provided for in the contract, and there being that uncertainty about it, it is our opinion that the court erred in entering the decree in question, and it is reversed, and the cause is remanded.”

Upon remandment, defendants filed their written motion “to dismiss the within proceeding for want of equity, and in support thereof call the attention of the Chancellor to the opinion of the Appellate Court rendered in this proceeding.” Defendants contend that it is apparent from the opinion that the grounds of reversal were not of a character to be obviated by subsequent amendments of the pleadings or by the introduction of additional evidence, and that it became the duty of the chancellor to dismiss the suit. This the chancellor ultimately did, but only after considering two proposed amendments to the amended complaint.

The question of real importance is whether the plaintiff’s amended complaint aided by his proposed amendment failed to state a good cause of action. In the opening paragraph of plaintiff’s proposed amendment, plaintiff undertakes to adopt and reallege all the allegations of the amended complaint theretofore filed and the amendments theretofore filed by his coplaintiff Bley as administrator. It is to be observed that plaintiff in his brief states that he is appealing from the order of February 5, 1941, striking the amendment theretofore filed by him on November 22, 1940. Defendants point out that his notice of appeal did not bring before this court the correctness of that order. However, we are inclined to consider the real question as to whether plaintiff’s amended complaint aided by his proposed amendment stated a good cause of action. This court found in an earlier opinion in a former appeal in this case (304 Ill. App. 517) that plaintiff had failed to identify sufficiently the subject matter upon which to impose an equitable lien to protect him against loss or threatened loss. In his proposed amendment plaintiff amplifies his allegation concerning his supposed loss, but makes no effort to cure his omission to identify the subject matter of the lien to make good such loss. In plaintiff’s brief, an excerpt of the earlier opinion is .quoted, which is incomplete and misleading. This court, in the former appeal, after finding that Walter W. Freeman never assumed any obligation toward plaintiff “other than to furnish him with security,” said:

“This was an independent covenant, wholly distinct and separate from any relationship of debtor and creditor, which is one of the essential requisites of an equitable lien, and the defendants further suggest that no allegation will be found in the amended complaint and no proof will be found in the record that the joint venture even threatens to be unsuccessful or fail to return to Ernest E. Freeman his entire contribution thereto.” As we have already indicated, we are of the opinion that the existence or nonexistence of a loss is unimportant in the light of the fact that there was no debtor and creditor relationship between plaintiff and Walter W. Freeman, which is one of the essential requisites of an equitable lien, and in view of plaintiff’s failure to identify sufficiently the subject matter of his requested equitable lien. The amplification of plaintiff’s allegation concerning his supposed loss fails to supply the deficiencies, which, in the earlier opinion, were held to be fatal to plaintiff’s right to recover.

It is recited in the proposed amendment that Walter Freeman was not insurable and made no application for insurance between January 1, 1936 and the date of his death, but here again is a total absence of any allegation covering identification of the res. This fact was considered by this court on the former appeal. In defendants’ answer it is recited that Walter Freeman had made application for insurance, which was refused. On the former appeal it was contended by plaintiff that it was reasonable to suppose that Walter Freeman would have taken other insurance had plaintiff insisted upon it. Upon the question, this court said:

“In answer the defendants state that Walter W. Freeman after the execution of the contract had applied for insurance and had been rejected, so that being called to our attention, it is only an item of evidence tending- to show the intention of Walter W. Freeman in regard to furnishing further insurance.” The question of Walter Freeman’s inability to obtain insurance was, therefore, before this court and considered in the earlier appeal, and was not regarded as important. While it might evidence an intention on the part of Walter Freeman to obtain insurance which might have resulted in benefiting plaintiff, still it was only an application for insurance, which was refused.

Another matter that might be considered of importance on this appeal is that certain allegations of questionable propriety were made by coplaintiff Bley, as administrator, in his amendment filed on November 22,1940, which amendment was stricken on motion of defendants. Bley thereafter abandoned all further efforts, and plaintiff now weaves into his statement of facts and argument allegations made in Bley’s stricken amendment which are no longer in this case.

Defendants submit that this cause has been decided on its merits on the first appeal; that the chancellor should have examined the court’s opinion, entered an order of dismissal, and denied plaintiff any right to amend. However, we are of the opinion that the trial court was not in error in granting plaintiff the chance to amend. Having filed his amendment and offered his proposed amendment, which merely restated more elaborately facts which were before this court on the earlier appeal and made no effort to show a debtor and creditor relationship and sufficiently identify the res upon which plaintiff seeks to impose an equitable lien, we are of the opinion that the trial court was not in error in striking plaintiff’s amended complaint and in denying leave to file his proposed amendment. For the reasons stated, the order of the superior court, denying leave to file plaintiff’s proposed amendment and dismissing the cause is affirmed.

Affirmed.

Burke, P. J., and Kiley, J., concur.


source: Caselaw Access Project

author: Mr. Justice Hebel

license: Public Domain

text:
    Eddy Stoker Corporation, Appellant, v. Rose Jaffe, Appellee.
    Gen. No. 42,087.
    Heard in the third division of this court for the first district at the December term, 1941.
    Opinion filed May 27, 1942.

      G. Donald Whitehouse, of Chicago, for appellant.
    Morris C. Shaps, of Chicago, for appellee.
   Mr. Justice Hebel

delivered the opinion of the court.

This is an appeal from a mandatory preliminary injunction issued without bond in favor of the defendant in a replevin action, requiring plaintiff to return to defendant the property replevied by the bailiff, without requiring defendant to post any forthcoming bond. The injunction was issued notwithstanding the pendency of a petition for a change of venue previously filed by the plaintiff, praying that the cause be tried by some judge other than the one who entered the injunctional order.

Plaintiff’s theory is that (1) the lower court improperly granted the defendant a mandatory preliminary injunction without bond, (2) that the injunctional order appealed from is so uncertain and indefinite in its terms as to be'void, (3) that said order is also void for the reason that it does not set forth any facts justifying the issuance of an injunction without bond, (4) that the court was1 without jurisdiction, under the Replevin Act, to order a return of the property replevied without the posting of any forthcoming bond and (5) that the trial judge had no jurisdiction, after presentation of a petition for change of venue, to enter any order other than one transferring the cause.

Defendant’s theory, on the other hand, is that (1) the court properly granted the injunction, (2) that the injunctional order was in all respects proper and valid, (3) that the court had jurisdiction to order a return of the property replevied without posting of any forthcoming bond and (4) that the petition for a change of venue embraced only the trial of the cause and did not extend to ancillary proceedings such as the one appealed from.

In June 1941, the defendant being in default with respect to a contract for the purchase of a coal stoker from plaintiff and having failed to pay for the stoker, the plaintiff, pursuant to its written terms, elected to determine and terminate the contract for purpose of further performance by defendant and to repossess the stoker. Accordingly, on June 23, 1941, plaintiff filed in the municipal court a replevin action for the recovery of the stoker, posting a statutory bond in the amount of $200. Thereafter, several alias and pluries writs were issued and returned by the bailiff, “no service and no property found.” The bailiff reported that the defendant was evading service and concealing the property sought to be replevied.

The defendant was apparently aware of the pend-ency of the suit, because on August 1, 1941, the return day named in one of the writs, she appeared in court by counsel and tendered the plaintiff the sum of $150 in full settlement of its claim. The plaintiff refused to accept the tender, whereupon the defendant deposited the money with the clerk of the court in order to keep the tender good. Thereafter, the court entered the following order: “Defendant to deposit $150.00 with Clerk of Court. Trial as to Balance.”

Sometime thereafter the plaintiff procured the issuance of an alias writ, pursuant to which the bailiff replevied the property in question.

It appears from the record that the only order entered on August 1, 1941 was the one above quoted. Thereafter, on August 25, 1941 the defendant filed a petition alleging that on August 1, 1941, Judge Schiller had entered an order “directing the attorney for the plaintiff to allow the property in question to remain in its place.” The petition further alleged that seizure of the property by the bailiff was “a direct violation of the court order of August 1, 1941” and concluded with a prayer for a mandatory injunction directing plaintiff “to restore the property to its former place and position immediately,” and a further prayer that “the plaintiff and their attorney be held in contempt of court for violating Judge Schiller’s order.”

Thereafter, on September 10, 1941 an order was entered by the Honorable Frank M. Padden, one of the judges of the municipal court, assigning the cause to the Honorable Jay A. Schiller for trial and specially setting the same for hearing. Thereupon the plaintiff filed its petition for change of venue, alleging the prejudice of the trial judge and praying for an order that “said cause and all proceedings ancillary thereto” be tried before some judge other than the said Jay A. Schiller. On September 29, 1941, the matter having come on to be heard before said judge, the defendant presented her petition for injunction and other relief and the plaintiff presented its petition for change of venue. The Court denied the petition for change of venue with respect to the.interlocutory proceeding initiated by defendant and thereupon, without the introduction of any evidence by either party, summarily granted the defendant a mandatory preliminary injunction without bond, ordering and directing the plaintiff to restore the property replevied to its status quo as of August 1, 1941, within 15 days from date.

Plaintiff contends that the court’s order granting a mandatory injunction was clearly erroneous, urging that a mandatory injunction is an extraordinary legal remedy and should be exercised with great caution and only in cases of grave necessity. (Citing Lyle v. City of Chicago, 357 Ill. 41.) It is further urged that a preliminary injunction should not ordinarily be mandatory, and that it is not usually permissible to issue a mandatory injunction until a final hearing can be had.

The application for change of venue was granted as to the trial of the cause, but denied with respect to the hearing on defendant’s petition for a preliminary injunction. This was error. In the case of Agar Packing & Provision Corp v. United Packinghouse Workers of America, 311 Ill. App. 502,, this court said; “The very filing of the petition for change of venue challenged the fairness of the chancellor to pass upon the motion for a temporary injunction. The courts hold that a change of venue is not a matter of practice, but a substantial right of a litigant. (Witherstine v. Snyder, 231 Ill. App. 251; Mockler v. David F. Thomas & Co., 273 Ill. App. 121.) To allow the chancellor to pass upon the motion for a temporary injunction after the petition for a change of venue had been presented, would nullify the intent and purpose of the venue act.”

As we have indicated, this appeal is by plaintiff from an order dire'cting it to restore the replevined chattel to the defendant within 1(5 days. Clearly, this is an interlocutory order. Plaintiff appeals on the theory that the order is tantamount to a temporary mandatory injunction, and that it has a right to appeal under the provisions of section 78 of the Civil Practice Act (sec. 202, ch. 110, Ill. Rev. Stat. 1941 [Jones Ill. Stats.- Aim. 104.078].) We agree with plaintiff that the order appealed from constitutes a temporary mandatory injunction. Without discussing the proposition as to the jurisdiction of the municipal court to grant an injunction in any case, it is clear that the granting of this injunction was erroneous. The defendant, on whose behalf the injunction was granted, was not required to give bond as required by law. The order complained of was entered after the court had granted a petition for a change of venue. Obviously, the court could not enter any order after a change of venue had been granted.

For the reasons stated, that part of the order of the municipal court of Chicago of September 29, 1941, reading; “Order of court rule on plaintiff to restore property replevined to status quo as of August 1, 1941 within 15 days from today” is reversed.

Reversed.

Burke, P. J., and Kiley, J., concur.


author: Mr. Justice Kiley

text:
    Harry Luner, by Berenice Luner, His Next Friend, Appellant, v. Sam Gelles, Appellee.
    Gen. No. 41,764.

      Heard in the third division of this court for the first district at the June term, 1941.
    Opinion filed May 27, 1942.
    Rehearing denied June 12, 1942.
    Henry Mitgang, of Chicago, for appellant; Arthur A. Wolfinsohn, of Chicago, of counsel.
    Miller, Gorham, Wescott & Adams, of Chicago, for appellee; Edward R. Adams and Herbert C. DeYoung, both of Chicago, of counsel.
   Mr. Justice Kiley

delivered the opinion of the court.

This is an action brought by plaintiff’s next friend to recover for injuries to plaintiff’s person and for damage to his motor scooter. The jury found the defendant guilty and assessed plaintiff’s damages at $375. Judgment was entered on the verdict and plaintiff’s motion for a new trial was denied. Plaintiff appeals from the “final order” denying his motion and asks that the order be reversed and a new trial granted.

During the day of September 22, 1939, plaintiff, a minor, telegraph messenger, was operating his motor scooter eastward in West 64th street, Chicago, Illinois. Defendant’s car was parked on the south side of 64th street, facing east, and when plaintiff, traveling 10 or 15 miles an hour reached the rear end of defendant’s car, it commenced to move in first gear northeast from the curb. Plaintiff attempted to avoid the car, but was unsuccessful and the front bumper on defendant’s automobile hooked on to a box at the rear of the scooter, bringing it to a sudden stop which threw plaintiff 15 or 20 feet over the handle bars into the street. As a result of the fall plaintiff suffered a longitudinal fracture of the right knee cap with displacement of 10 or 15 per cent of the inside thereof.

The defendant made a motion in this court to dismiss plaintiff’s appeal because the notice of appeal specified that plaintiff appealed from the order denying his motion for a new trial. Defendant says the order was not appealable and that plaintiff should have appealed from the judgment. Plaintiff made his motion for a new trial within 10 days after entry of the judgment in his favor and when his motion was denied the effect of the denial was to make the judgment theretofore entered final and, when plaintiff appealed from the order of denial, in effect he appealed from the final judgment. The notice of appeal should have specified the judgment instead of the order of denial. We are not disposed, however, in this case to dismiss the appeal for “error of form,” (National Bank of Republic v. Raspar American State Bank, 369 Ill. 34) since there was a final judgment.

The circumstances of the accident are not in serious dispute. Plaintiff says that defendant’s car moved rather fast away from the curb, while defendant says he moved about one mile an hour. The plaintiff says that he was traveling about one foot south of the center line of 64th street, which is a 30 foot street. If that is so, it would appear from the position of defendant’s car, the right front wheel of which was about 2 feet from the curb when it stopped, that plaintiff should have had no difficulty avoiding the accident. The evidence would indicate that defendant gave no signal of his movement from the curb. If his testimony that the nearest parked car behind him was 50 or 60 feet from his car is true, and if he looked in his rear view mirror as he claims and saw a distance of one block behind him, then he should have seen plaintiff. In any event, the jury saw the witnesses, heard the evidence and resolved the issues of fact in favor of the plaintiff. From our view of this record we cannot agree that the court should have directed a verdict for defendant at the close of plaintiff’s case, because there is evidence which tends to prove that case. Neither can we say that the verdict of guilty is against the manifest weight of the evidence.

The principal question presented on this appeal is whether plaintiff should have a new trial because of inadequacy of damages assessed. The jury was instructed that it should not assess damages unless it had first found that the defendant was liable therefor. It found the defendant guilty. The jury was likewise' instructed that, should it determine that the defendant was liable, plaintiff was entitled to whatever damages, under the circumstances, the law provided. As a result of the injury, the boy’s injured leg was placed in a cast which extended from his ankle to his thigh. The east remained on his leg for about 5 weeks, after which for 2 or 3 weeks he used crutches and a cane. He was out of work for two months; his right knee cap is % inch larger than his left. Doctors in his behalf testified that the displaced portion of the knee cap had united to the main portion by a fibrous union instead of a bony union and that, consequently, there is a limitation of about 10 per cent in the flexion of the right leg. Plaintiff says that he cannot engage in athletics as he used to because the injury prevents him from moving as he once did, and his knee buckles on occasion. As a result of his injury he suffers pain and swelling of his leg following the day’s work. Doctors testified that plaintiff’s condition is permanent, that the condition would become progressively worse, and that an operation to correct the condition was inadvisable. The effect of the verdict of $375 was to give plaintiff $2.10 more than the sum of his actual expenses of $183.90 and lost wages amounting to $189.

It is obvious that the jury either found the defendant guilty and disregarded the proper elements of damages to which plaintiff was entitled, or made a compromise between questionable guilt on the part of the defendant and actual expenditures on the part of the plaintiff. This is not such a case as was described by Judge Gary in O’Malley v. Chicago City Ry. Co., 33 Ill. App. 354, wherein he said that a plaintiff not entitled to recover at all, has no right for any reason to have a verdict in his own favor set aside because the damages awarded were less than the pecuniary injury. Under the circumstances, in the case before us, the motion for a new trial should have been sustained. Montgomery v. Simon, 309 Ill. App. 516. This principle obtains regardless of the extent of the injury or the amount of money involved in a particular case.

For the reasons herein given, the judgment of the superior court is reversed and the cause is remanded.

Judgment reversed and cause remanded.

Burke, P. J., and Hebel, J., concur.


text:
    Maxwell R. Herman, Successor Trustee, Appellee, v. R. G. Mueller et al., Defendants. Appeal of Celia Daniels and Margaret Fischer, Appellants.
    Gen. No. 41,782.

      Heard in the third division of this court for the first district at the February term, 1941.
    Opinion filed May 27, 1942.
    McCabe, Abrahams & Daly and William Vihon, all of Chicago, for appellants; Harry Abrahams, William Vihon and Nunzio Giambalvo, all of Chicago, of counsel.
    Hirsch E. Soble, of Chicago, for appellee.
   Mr. Justice Kiley

delivered the opinion of the court.

Plaintiff, successor trustee, filed a proceeding in equity in the circuit court of Cook county, wherein he asked for directions as to whether proposals made to him by certain guarantors for covenants not to sue on their obligation should be accepted. The trial court entered a decree authorizing the acceptance of the proposals and directing the plaintiff to execute the covenants. Celia Daniels, defendant, and Margaret Fischer, intervenor, for convenience called appellants, owners of bonds covered by the guaranty, have appealed.

On November 15, 1927, Michigan-Chestnut Building Corporation, borrowed $575,000 from Greenebaum Sons Investment Company and delivered to the latter bonds of the Corporation and a trust deed, securing them, conveying a leasehold estate to the Bank of America, as trustee. As further consideration for the loan Holabird, Boot, Bowes, Bendix, Hackett, Hageman, Harris, Frankenstein, and Balph A. Bard & Company made a guaranty with Greenebaum for the benefit of, and to protect, the owners and holders of the bonds. The bonds were sold to the public and those numbered 1 to 194 were paid in 1932, but thereafter default was made in payment of the balance of the bonds.

The questions presented on this appeal are whether all the bondholders' were properly before the court and whether the decree is sustained by the record and is fair, just and equitable.

The plaintiff selected as representative defendants a Bondholders’ Committee, representing approximately $225,000 in bonds owned by 251 of the total 560 bondholders ; the Beconstruction Finance Corporation, holder of certain bonds; Chicago Title and Trust Company, trustee under a prior deed and found to have no interest here; and Celia Daniels and B. J. Hammel, individual bondholders. The bondholders not actually represented appear to be located widely between Chicago, Illinois and Burujird, Persia and plaintiff’s attempts to contact a majority of them by mail have been unsuccessful. The bondholders, so far as this proceeding is concerned, are all in the same situation and it is apparent that to bring them all before the court was impossible. We believe, under these circumstances, that all the bondholders were represented in court and were within its jurisdiction and bound by its valid decree. Hale v. Hale, 146 Ill. 227.

Appellants have charged that the proposals were not in the best interests of the trust estate; that the guarantors were able to pay their full obligations, and that the trustee had no right or power under the trust deed or guaranty to compromise the obligations. Holabird, Root and Bowes, called guarantors herein, have offered plaintiff as successor trustee $40,000 for covenants not to sue them upon their obligation to pay the defaulted bonds. Following defaults, in payment of bonds, a joint action was filed in the circuit court, case No. 34-C 4253, seeking foreclosure of the trust deed and enforcement of the guaranty. That proceeding has been pending while negotiations between the guarantors and plaintiff have been crystalizing into the instant proceeding. The plaintiff, in doubt, because of conflicting opinions as to the guarantors’ liability and because of the improbability of realizing more through action on the guaranty than is offered in compromise, turned to the trial court for direction. The court assumed the responsibility of deciding whether the proposals to compromise should be accepted and directed their acceptance. The several contentions raised by appellants regarding the limitations of powers of the plaintiff under the trust deed and guaranty, are not applicable because plaintiff did not assume any power, he sought the advice and protection of the court. Neither instrument prohibited a compromise and the guaranty empowered plaintiff to enforce its terms. The situation is different, therefore, from those in the cases cited by the appellants where the court altered the terms of instruments, or, in effect, wrote in new terms. The court in the case at bar had the power to direct the compromise because the terms of the instrument did not prohibit the exercise of power upon which the plaintiff sought the court’s direction. Pomeroy’s Eq. Jur. (5th) Vol. 4, p. 179.

The decisive point is whether the decree is in the best interests of the trust estate. An action in New York by a bondholder protected by the identical guaranty, subject of the instant proceeding, was successful against a coguarantor. Seixas v. Hegeman, 158 Misc. 560, 285 N. Y. S. 838. That fact weighs heavily in favor of prosecuting the action against the guarantors here, because the defense raised by them in plaintiff’s proceeding to enforce their guaranty obligation, is the same as that offered in the New York case. Would judgments against the guarantors, if recovered, produce more than they have offered in compromise I It appears from the evidence that the guarantors were insolvent at the time of the hearing and that, in so far as their financial condition was concerned, the advisability of compromising could not be seriously questioned. The alternative to compromising their obligations, appeared to be bankruptcy. Their co-guarantors, John W. Harris, Horatio Hackett and Vincent Bendix, were in bankruptcy at the time of the trial and plaintiff had received dividends from the estate of Hackett in the sum of $14,383 .33 and from that of Harris $26,015.25. Appellants’ most serious objection is that gifts made by the guarantors to their wives, after default in payment of bonds, subject of the guaranty, amounted to approximately $171,000 and were made under circumstances such as render them vulnerable to be set aside in an appropriate action. It is claimed by appellants that under the rule restated in Reisch v. Bowie, 367 Ill. 126, the gifts must be construed as personal assets of the guarantors available for recovery by the trust estate following prosecution of the action to enforce the obligation of the guarantors. Plaintiff says that there was no evidence that the gifts were still held by the donees or that they had not been dissipated or that they were of the same value as when made. Appellants’ answer that plaintiff, as trustee, under the decision in Chicago Title & Trust Co. v. Robin, 361 Ill. 261, had the burden of producing that evidence. That decision, imposing the burden upon the trustee, is not applicable here because the plaintiff has not made a compromise which he must sustain. He has asked directions of the court because of his doubt and in order to be relieved of responsibility for the compromise. His action was appropriate. Pomeroy’s Eq. Jnr. (5th) Vol. 4, p. 180. The guarantors and their attorney testified to the circumstances surrounding the gifts, but not as to their present condition; plaintiff was indifferent; and, the objecting bondholders, appellants here, offered no evidence as to the present condition or value of the gifts, they complain it was plaintiff’s duty to do so. The court had to decide, from the testimony given, not whether actions to set aside the gifts would probably be successful, but whether if successful the fruits of success would justify the expense and delay of the litigation; and whether from the facts before him the net benefits to the trust estate would, in his judgment, be greater through compromise or through the various actions. It was within his discretion to make the decision and we cannot say that he abused his discretion.

The decree of the circuit court is, therefore, affirmed.

Decree affirmed.

Burke, P. J., and Hebel, J., concur.


text:
    Emil Oettinger, Executor, Appellant, v. Helge Bernhard Karlsson et al., Appellees.
    Gen. No. 41,838.

      Heard in the third division of this court for the first district at the February term, 1941.
    Opinion filed May 27, 1942.
    Thomas C. Kennedy and William Gillespie, both of Chicago, for appellant; William Gillespie, of Chicago, of counsel.
    Ernest A. Eklund and Anderson & Anderson, all of Chicago, for appellee; John N. Thornburn, of Chicago, of counsel.
   Mr. Justice Kiley

delivered the opinion of the court.

Plaintiff has appealed from a decree, striking his complaint and dismissing his action to contest a will; and from orders denying his subsequent motions.

On December 30, 1938, a will of Charles Anderson, deceased, dated January 30,1935, was admitted to probate in the probate court of Cook county. Neither plaintiff nor his wife were named as beneficiaries in that will. An alleged will of Charles Anderson, same decedent, dated September 23, 1936, in which plaintiff’s wife was named sole beneficiary, was denied probate in the probate court on June 14, 1939. An appeal was taken to the circuit court of Cook county from the order of denial by plaintiff who was named executor in the latter document. That appeal was pending when plaintiff filed the instant proceeding in the superior court on December 28, 1939, to contest the will which had been admitted to probate.

One of the reasons alleged in defendant’s motion to dismiss in the trial court was that plaintiff was not entitled to bring the suit. If defendant’s contention is correct we need consider no other point.

Section 7, chapter 148, Ill. Rev. Stat., in force when the proceeding was filed, limits the right to contest a will to persons interested therein. A “person interested” means one who is affected detrimentally by being deprived in the will of a right he would otherwise have had in the absence of a will. Selden v. Illinois Trust & Savings Bank, 239 Ill. 67. At the time the will was admitted to probate, plaintiff was not an heir of the testator nor was he in anywise deprived by that will, therefore, he is not qualified to maintain this proceeding.

The decree of the superior court was properly entered and is, therefore, affirmed.

Decree affirmed.

Burke, P. J., and Hebel, J., concur.


author: Presiding Justice Burke.

text:
    John T. Clegg, Appellee, v. George R. Gould and G. M. Fuller, Defendants. Appeal of George R. Gould, Appellant.
    Gen. No. 41,907.
    Heard in third division, first district, this court at October term, 1941;
    opinion filed May 27, 1942.
    George B. Gould, pro se; George Panea, of counsel; Thompson, Chambers & Thompson, for appellee; Pereival E. Thompson, of counsel.
   Opinion by

Presiding Justice Burke.

“Not to be published in full.’’


text:
    Fay Weiner, Appellant, v. Richard M. Kjelstad, Appellee.
    Gen. No. 42,106.
    Heard in third division, first district, this court at April term, 1942;
    opinion filed May 27, 1942;
    rehearing denied June 12, 1942.
    Boot & Miller, for appellant; Saul J. Moss, of counsel; Braun & Brodie, for appellee; William E. Corrigan and H. J. Blake, of counsel.
   Opinion by

Presiding Justice Burke.

“Not to be published in full.”


author: Justice Hebel.

text:
    Wallace J. Goodrich, Administrator of Estate of Frances Goodrich, Deceased, Appellant, v. A. A. Sprague, Receiver, Appellee.
    Gen. No. 41,917.

      Heard in third division, first district, this court;
    opinion filed May 27, 1942.
    Topliff, Horween & Merrick, for appellant; Samuel Topliff, Ralph Horween, Hubert C. Merrick and Neal J. Huff, of counsel; Gardner, Morrow, Fowler & Merrick, for appellee; Walter M. Fowler, of counsel.
   Opinion by

Justice Hebel.

“Not to be published in full.’’


author: Justice Kiley.

text:
    Gertrude Hall, Appellee, v. Arthur O. McNair, Trading as McNair Liquor Store, and Neibro Building Corporation, Appellants.
    Gen. No. 41,722.
    Heard in third division, first district, this court at June term, 1941;
    opinion filed May 27, 1942.
    Lord, Bis-sell & Kadyk, for appellants; Bruce S. Parkhill and Gaynor K. Rutherford, of counsel; Harris B. Gaines and Elijah B. Kelley, for appellee.
   Opinion by

Justice Kiley.

“Not to be published in full.’’


text:
    Peter M. Ofsars, Appellee, v. Interstate Motor Freight System Company, Inc., Appellant.
    Gen. No. 41,822.
    Heard in third division, first district, this court at October term, 1941;
    opinion filed May 27, 1942.
    David C. Ruttenberg, for appellant; Marvin H. Ruttenberg, of counsel; Louis A. Smith and Harold Tucker, for appellee.
   Opinion by

Justice Kiley.

“Hot to be published in full.”


author: Mr. Justice Friend

text:
    Leroy F. Pape et al., Trustees, Appellants, v. Benedicto Pareti et al., Appellees.
    Gen. No. 41,973.

      Heard in the second division of this court for the first district at the October term, 1941.
    Opinion filed May 14, 1942.
    Supplemental opinion filed and rehearing denied June 9, 1942.
    Blum & Jacobson, of Chicago, for appellants; George M. Shkoler, of Chicago, of counsel.
    William G. Wise, of Chicago, for appellees; John J. Dever, of Chicago, of counsel.
   Mr. Justice Friend

delivered the opinion of the court.

In November 1934 Albert E. Burton filed a complaint against defendants Benedicto Pareti and Flora, his wife, to foreclose a mortgage on real estate at 3215 Eastwood avenue, Chicago. A deficiency decree for $1,641.10, with interest, was entered against defendants, and thereafter a writ of execution issued and was returned by the sheriff “no part satisfied.” In July 1935 Burton executed a written assignment of the deficiency judgment, which the master subsequently found had been reduced by a credit thereon of $247.50, to plaintiffs herein, as trustees, under a liquidation trust, and in July 1937 they filed a creditors’ bill against defendants based on the deficiency. Their complaint, which was several times amended, alleged in substance that while defendants were indebted to the assignor of plaintiffs, they were the legal owners and holders of four parcels of real estate which are specifically described in the complaint, as amended, and that while so indebted, made conveyances of these four parcels of land to their son Lawrence A. Pareti, without consideration, and for the sole purpose of concealing the true ownership thereof so that plaintiffs could not reach any of the property with the writ of execution which had previously been issued; that defendants did not retain sufficient property to satisfy existing debts and at the time of the conveyances were insolvent; and that the conveyances were made for the sole purpose of defrauding their creditors. Defendants’ answer admitted all the conveyances as alleged, denied that they were fraudulent, and averred that they were based on a good and valuable consideration. Issue being joined, the cause was referred to a master in chancery, who, pursuant to hearing, found that the conveyances were an outright gift to Lawrence Pareti, that the principal judgment debtors became insolvent and were unable to satisfy the deficiency judgment rendered against them, and he recommended that the transfers of property be set aside as fraudulent and that a decree be entered in favor of plaintiffs. A partial hearing was had before the chancellor on defendants’ exceptions to the master’s report and pending the disposition thereof plaintiffs filed a motion to further amend the complaint by including therein a prayer that the conveyances be set aside as fraudulent. This motion was reserved by the court until the final hearing on the exceptions, when it was denied, the defendants’ exceptions to the master’s report were sustained, and plaintiffs’ suit was dismissed for want of equity. Plaintiffs have taken an appeal from the order entered.

It is urged at the outset that the appeal should be dismissed or the decree affirmed because no statement of errors is attached to the brief of plaintiffs, as required by rule 39 of the Supreme Court of Illinois. This point has been argued before the several divisions of this court on other occasions. In Trust Company of Chicago v. Iroquois Auto Ins. Underwriters, Inc., 285 Ill. App. 317, the court, with all the judges of the three divisions concurring, held that “The former practice of formal assignment of error attached to the record accomplished nothing in aid of the court, and this was the reason for its abolition; such an assignment placed in a brief accomplishes nothing, and should not be employed. The new practice seeks to limit the errors presented to the court of review to those raised spid argued in the briefs.” Defendants rely on Bender v. Alton R. Co., 284 Ill. App. 419, and Farmers State Bank of Belvidere v. Meyers, 282 Ill. App. 549, decided by the Appellate Courts in other districts of this State, whose decisions are at variance with ours. The two cases cited were both fully considered by us in the Trust Company of Chicago decision and require no further comment. Aside from the reasons set forth in our conclusion in Trust Company of Chicago v. Iroquois Auto Ins. Underwriters, Inc., it appears that the Appellate Courts of the districts in which adverse rulings have been had on this point require by their rules that a statement of errors be filed. Rule 7 of this division contains no such requirement. We therefore adhere to the conclusion reached in the Trust Company of Chicago decision, and the motion to dismiss the appeal or affirm the decree for lack of a statement of errors in plaintiffs’ brief is therefore denied.

In support of the decree sustaining the exceptions to the master’s report and dismissing the complaint for want of equity, defendants take the twofold position (1) that a general prayer for relief is not sufficient to support a decree granting specific relief not prayed for in the complaint and not germane to the complaint; and (2) that the court properly refused plaintiffs leave to amend the prayer of the complaint after the case had been concluded before the master and was on hearing before the court on defendants’ exceptions to the master’s report. The gravamen of defendants’ argument is that the complaint is predicated on the theory of a creditors’ bill under ch. 22, sec. 49 of the Ill. Rev. Stat. 1937 [Jones Ill. Stats. Ann. 106.12], that the defense was prepared and the cause was tried under that section of the statute; but that the decree which the master recommended and which the court refused to enter is based on the Fraudulent Conveyance Act, ch. 59, sec. 4 of the Ill. Rev. Stat. 1937 [Jones Ill. Stats. Ann. 55.04], which defendants’ counsel say is a different proceeding; that since the complaint proceeded on one theory under the statute and the defense was presented on that theory, it would have been improper for the court to have allowed plaintiffs to change their theory after the master’s hearing had been concluded, and amend their complaint accordingly; and defendants’ counsel argue that plaintiffs are not entitled to the relief recommended because a general prayer for relief is not sufficient to support a decree granting specific relief not prayed for in the complaint and not germane thereto.

It may be conceded that if the specific relief granted is not germane to the complaint, a general prayer would not be sufficient to support the specific relief sought. The immediate inquiry, therefore, is whether the relief recommended by the master is germane to the complaint, as amended. Defendants argue that a creditors’ bill and a bill to set aside a fraudulent conveyance are totally different actions. The principal distinction is clearly set forth in Dawson v. First Nat. Bank of Paris, 228 Ill. 577, wherein the court said: “Under the first mentioned bill [a creditors’ bill] the complainant must show he has exhausted his remedy at law by obtaining a judgment, execution thereon, and the return of the execution ‘no property found.’ Under the last mentioned hill [one to set aside a fraudulent conveyance] the creditor may proceed as soon as he obtains judgment and without issuing an execution thereon.” The same distinction is pointed out in James H. Rice Co. v. McJohn, 244 Ill. 264. It is generally recognized that the relief afforded by a bill in aid of execution is to set aside the encumbrances or conveyances therein specified as fraudulent, while under a creditors’ bill any equitable estate of the defendant may be reached. A creditors’ bill gives the plaintiff a greater scope of relief than a bill to set aside a fraudulent conveyance because in such a proceeding plaintiff has the right of discovery and may inquire into facts merely generally alleged in the complaint; whereas in a bill to set aside a fraudulent conveyance, specific allegations as to fraud must be alleged, and no general discovery is authorized. As applicable to the amended complaint in the case at bar plaintiffs, in addition to the specific allegations of fraudulent conveyances, set forth generally a claim for discovery and for inquiry into other transactions in addition to those specifically alleged. The evidence adduced before the master was directed principally to the question whether the conveyances of these four parcels of. land were fraudulent as to plaintiffs because they were made while defendants were indebted and without consideration, as the master found, leaving defendants insolvent and unable to satisfy the deficiency judgment theretofore rendered against them. This evidence was germane to the proceeding either under a creditors’ bill or a bill to set aside a conveyance on grounds of fraud, and we perceive no valid reason why the court should have denied plaintiffs’ motion to amend their complaint by inserting a specific prayer for relief in conformance with the proof. Substantially all the material allegations of the complaint, as amended, were established by plaintiffs and are uncontradicted, and no substantial defense, other than the technical questions heretofore discussed, is interposed. The law in this State is well settled, and defendants do not argue otherwise, that a voluntary gift, made when there is an existing or contemplated indebtedness against the donor who retains insufficient property to pay the indebtedness, constitutes presumptive fraud. State Bank of Clinton v. Barnett, 250 Ill. 312; sec 4, ch. 59, Ill. Rev. Stat. 1937, Frauds and Perjuries [Jones Ill. Stats. Ann. 55.04]; Morrill v. Kilner, 113 Ill. 318. In the case at bar all these circumstances were specifically alleged and proven by the testimony of the defendants themselves, who made no attempt whatever to contradict the evidence that it was a voluntary gift made in the face of an existing or contemplated indebtedness against the donors. Plaintiffs went even further by eliciting from the defendant Benedicto Pareti the undisputed fact that by reason of the conveyances he and his wife became insolvent.

Aside from plaintiffs’ contention that the amendment should have been allowed, they argue, with considerable force, that even in the absence of its allowance plaintiffs were entitled to a decree under the general prayer for relief. In Seely v. Board of Education, Green Valley Community High School Dist. No. 306, 315 Ill. 186, the court held that the general prayer for relief is sufficient to support any decree warranted by the allegations of the bill and the evidence, and Wrlla v. Wrlla, 342 Ill. 31, Davidson v. Burke, 143 Ill. 139, and Kelly v. Kelly, 293 Ill. 169, are to the same effect. In 21 Ruling Case Law, par. 53, of the section on pleadings, p. 489, the author says: “The rule is well established that the relief prayed for, or to which the plaintiff may be entitled, is no part of his cause of action; and if the complaint states facts entitling the plaintiff to relief it will repel a demurrer, although it may not entitle him to all the relief prayed. . . . Ordinarily, it is the duty of the court to render such judgment as on the whole record the law requires, without regard to any request or want of request therefor; and hence it is that the facts alleged, the issues and proof, and not the form of prayer for judgment, determine the nature of the relief to be granted.”

We are of opinion that the decree of the superior court was erroneous and it is, therefore, reversed and the cause is remanded with directions to enter a decree in favor of plaintiffs, finding that the transfers of property made by Benedicto Pareti and Flora Pareti to their son Lawrence are void and should be set aside as fraudulent as to the plaintiffs, and that plaintiffs are entitled to proceed to satisfy the judgment out of the real estate so fraudulently transferred, in accordance with the master’s recommendations.

Decree reversed and cause remanded with directions.

Scanlan, P. J., and Sullivan, J., concur.

Supplemental Opinion.

Since the filing of our opinion in this cause, counsel for defendants have presented a petition for rehearing, wherein they say that we have overlooked or ignored the binding effect of Gyure v. Sloan Valve Co., 367 Ill. 489, which is said to be decisive of the question whether failure of the appealing party to attach statement of errors to its brief affords ground for dismissal of the appeal.

The conclusion reached in our opinion was predicated on Buie 7 of the Buies of Practice of the Appellate Court adopted April 15, 1937, with subsequent amendments thereto, and our prior interpretation thereof in Trust Co. of Chicago v. Iroquois Auto Ins. Underwriters, Inc., 285 Ill. App. 317, in which the nine judges of the three divisions of this court concurred. We direct attention to the very recent case of Stein v. Midway Chevrolet Co., 315 Ill. App. 105 (opinion filed June 1, 1942). One of the questions there presented related to the sufficiency of the assignments of errors, plaintiff having argued that the assignments were insufficient, whereas the other side contended otherwise. Mr. Justice O’Cohhor, speaking for the court, brushed aside the argument as wholly immaterial and said: “If counsel would read Rule 7 of this court, no assignments of error in the technical sense are required. Assignments of error were only required by rule of court, Ditch v. Sennott, 116 Ill. 288. They never served any purpose but only to throw one out of court without passing on the merits. The assignments of errors required are those argued in the brief. Those are the points to be decided and the mere adding of meaningless sentences such as, ‘The court erred in the admissioin of evidence, ’ ‘ The court erred in excluding evidence, ’ ‘ The court erred in instructing the jury, ’ ‘ The verdict and judgment are contrary to the law,’ ‘The verdict and judgment are contrary to the evidence, ’ etc., etc., are of no assistance to the court and any procedure that requires or gives any consideration to such technical nonsense ought to be disregarded. A great lawyer and statesman, the late Elihu Root, said: ‘Justice is entangled in a net of form.’ Obviously this ought not to be. The purpose of a law suit is to ascertain the facts of the matter in controversy so that the merits may be passed upon by the court— ‘the realities considered rather than that the matter be decided on mere technicalities. ’ People ex rel. Wilmette State Bank v. Village of Wilmette, 294 Ill. App. 362. Courts have the right, power, and it is their duty to eliminate such frivolous suggested rules which have no purpose except to confuse, to defeat justice, and justly tend to bring the courts into disrepute.” The court cited and relied upon the recent case of Taylor v. City of Berwyn, 372 Ill. 124 (opinion filed October 10, 1939), which was decided almost two years later than Gyure v. Sloan Valve Co. Plaintiff there questioned asserted inadequacies in the statement of errors relied upon for reversal in the city’s brief. Commenting on this point, Mr. Justice Wilson, speaking for the Supreme Court, said: ‘‘Section 76 of the Civil Practice act (Ill. Rev. Stat. 1937, ch. 110, par. 200, p. 2410 [Jones Ill. Stats. Ann. 104.076]), so far as relevant, provides: £An appeal shall be deemed perfected when the notice of appeal shall be filed in the lower court. After being duly perfected no appeal shall be dismissed without notice, and no step other than that by which the appeal is perfected shall be deemed jurisdictional. ’ "Notice of appeal was filed by Bartunek and the city in the office of the clerk of the Circuit court within the prescribed period of time. Since the statute ordains that no step other than notice of appeal is jiirisdictional the determination of whether the method of stating and arguing the issues sufficiently presents them for decision rests in the discretion of the reviewing court.” (Italics ours.)

Our rule 7 provides that the respective parties shall present an outline of plaintiff’s theory of the case, followed by a paragraph giving in like manner the theory of the defense. This, together with the requirement that the parties make a statement of points and authorities upon which they rely, furnishes an ample presentation of the questions involved. The enumeration of a long list of assignment of errors, many of which are never discussed by either counsel or read by any of the judges because they are too general and meaningless, adds nothing to the points and authorities upon which the respective parties actually base their case.

In Weigend v. Hulsh, 315 Ill. App. 116 (opinion filed June 1, 1942), the court pointed out that the purpose and spirit of our Civil Practice Act was to liberalize the procedure and practice in this State, to the end that controversies may be speedily and finally determined according to the substantive rights of the parties, and cited various sections of the act clearly indicating such intention. In keeping with this spirit, rule 7 wisely provides that the parties state the points and authorities upon which they rely, thus obviating the necessity of requiring the reviewing court to consider the many generalities set forth in the so-called assignments of errors. To dismiss an appeal because a party has failed to follow this practice, which is not required by our rules, would defeat rather than promote justice, and under rule 7 the three divisions of this court have consistently refused to grant such motions.

We approve of what was said in Stein v. Midway Chevrolet Co., supra, and by the Supreme Court in Taylor v. City of Berwyn, supra, and adhere to the conclusions reached in our original opinion.

Decree reversed and cause remanded with directions.

Scanlan, P. J., and Sullivan, J., concur.


author: Mr. Justice Dove

text:
    People of the State of Illinois ex rel. Oscar Nelson, v. Joliet Trust and Savings Bank. Otto C. Woerter, Successor Receiver, et al., Appellants, v. James C. Bell, County Treasurer of Will County, Appellee.
    Gen. No. 9,722.

      Heard in this court at the February term, 1942.
    Opinion filed May 14, 1942.
    Frank Reid, Jr., of Aurora, and Frank J. Jones, of Joliet, for appellants.
    James E. Burke, State’s Attorney, for appellee; Charles H. Blim and Walter O. Herschbach, both of Joliet, of counsel.
   Mr. Justice Dove

delivered the opinion of the court.

The successor receiver and a depositor’s committee of the Joliet Trust and Savings Bank have appealed from a decree of the circuit court of Will county denying the prayer of their separate petitions to have declared null and void a written agreement made by the bank to segregate certain of its assets to secure the deposit of the county treasurer. The agreement was incorporated in and was the basis of a former order of the court in the receivership proceedings. The chancellor held the former order was res adjudicata.

The facts are not in dispute. On January 19, 1932, before the bank closed, appellee’s predecessor, as county treasurer, had $32,902.77 on deposit in the bank. On that day the bank executed and delivered to him a written agreement to segregate securities to, the amount of $35,000 to secure the deposit. The bank closed four days later, a receiver was appointed and on May 13th a decree was entered placing the bank in receivership. On December 5, 1932, the then receiver of the bank filed a petition, reciting the filing of a claim by the county treasurer as a preferred claim on the ground that the deposit was undistributed tax money. The petition also set out the segregation of the securities under the deposit agreement, a copy of which was attached, and prayed for directions by the court as to the allowance of the claim. On March 10, 1933, the court entered an order finding the filing of the claim as a preference on the ground that the fund was undistributed tax money, and that by stipulation the claim for preference was waived, and that it was further stipulated that the claim should be allowed as a common claim payable in due course of administration. The order then finds the facts as to the execution of the deposit agreement and the segregation of the securities in pursuance thereotf. It allows the claim as a common claim, orders the securities be held by the receiver as collateral for its payment as intended by the agreement, and that all amounts received from such collateral be applied in reduction and payment of the claim as allowed. It was further ordered that the receiver pay such dividends applicable to the payment of the claim as might thereafter be declared in the receivership, together with the proceeds of the collateral, until the claim was fully paid; that thereafter, all remaining collateral should be general assets, not subject to the order; and that no part of the collateral should be sold for less than face value and accrued interest without the consent of the claimant. The order was entered prior to the holdings in People v. Wiersema State Bank, 361 Ill. 75, and City of Marion v. Sneeden, 291 U. S. 262, 78 L. Ed. 787, to the effect that.banks have no power to pledge assets to secure deposits, and that”such agreements, being ultra vires, are void. The invalidity of the deposit agreement is not questioned by appellee. The receiver’s petition to declare the deposit agreement void was filed November 8, 1935. The petition of the depositors’ committee was filed March 4, 1941, the matter not having been acted upon meanwhile.

The parties agree that the order was a consent order. Appellant urges that such orders are not res adjudicata. We think he is correct in that contention. (Wadhams v. Gay, 73 Ill. 415; People v. Chicago, B. & Q. R. Co., 247 Ill. 340; Green v. Hutsonville Township High School Dist. No. 201, 356 Ill. 216.) The reason for such holdings is that in such cases the court does not exercise the judicial function of deciding the issues, hut the entry of the judgment is merely an administrative act in recording the agreement of the parties.

While the relief sought in this case is in form by way of petition, it is manifest that the object of the receiver’s petition is to procure the setting aside of the former order between the same parties (in their representative capacities) involving the same subject matter, and that the petition is intended to be and is in effect a bill in the nature of a bill of review. (Knaues v. Chicago Title & Trust Co., 365 Ill. 588; Schoknecht v. Prassas, 320 Ill. 423.) The petition of the depositors’ committee has the same object and expressly asks that the former order be set aside. In People v. Wiersema State Bank, supra, and City of Marion v. Sneeden, supra, the validity of the pledge agreement was assailed in an original proceeding in each case. There had been no prior consent order or any order of court concerning the agreement. It is apparent that for the court to grant the relief asked in the case at bar, it would be necessary to set aside the former order. Hence, the question presented here was not at issue in either of those cases, and they have nothing to do with the question of setting aside a former consent order.

In Bergman v. Rhodes, 334 Ill. 137 at page 143 the court said: “A consent decree is not a judicial determination of the rights of the parties. It does not purport to represent the judgment of the court but merely records the agreement of the parties. A decree so entered by consent cannot be reviewed by appeal or writ of error. (Paine v. Doughty, 251 Ill. 396; Galway v. Galway, 231 id. 217.) It can only be set aside by an original bill in the nature of a bill of review. (Hohenadel v. Steele, 237 Ill. 229.) ” (Like holdings are found in Krieger v. Krieger, 221 Ill. 479, and Cohen v. Cohen, 291 Ill. App. 39.) In Knobloch v. Mueller, 123 Ill. 554, 565, 566; Cox v. Lynn, 138 Ill. 195, 204, and Flagler v. Crow, 40 Ill. 414, it is held that a consent decree cannot be reversed, set aside or impeached by a bill of review or bill in the nature of a bill of review, except for fraud, unless it is shown that the consent was not in fact, given, or something was inserted as by consent that was not consented to. The opinions cite numerous authorities. The reason for the rule is that a party cannot complain of an error which he has himself induced the court to make. (Smith v. Kimball 128 Ill. 583; Kellner v. Schmidt, 328 Ill. 426.) No fraud or mistake is claimed in the case at bar. These holdings, we think, are sufficient to justify the denial of the petitions.

There is another reason why we think they were properly denied. The instant proceeding was not started until November 8, 1935, more than two and one-half years after the former order was entered. The relief sought is for an error of law apparent on the face of the record. In Knaus v. Chicago Title & Trust Co., supra, which is the most recent pronouncement of our Supreme Court upon the question, it is said at page 591: “The law is that a bill of review, or a bill in the nature of a bill of review, can be brought only within the time allowed for perfecting an appeal or suing out a writ of error. (Schoknecht v. Prassas, supra; Genz v. Genz, 254 Ill. 161.) Section 117 of the Practice act of 1907, in force at the time the foreclosure decree was entered, limited the time within which a writ of error could be sued out to two years from the rendition of the decree. Section 76 of the Civil Practice act limits the time within which an appeal may be perfected, as a matter of right, to ninety days, and upon leave granted to one year after the rendition of the decree. . . . Irrespective of whether the old or the new Practice act applies, the motion to dismiss was properly sustained, because the complaint was not filed in the time required for bills of review. ’ ’ To the same effect is Schoknecht v. Prassas, supra, and cases therein cited.

Remembering that a bill in the nature of a bill of review is the only way in which the consent decree can be attacked, and treating the petitions here as such bills, if the chancellor arrived at the correct result, whether he adopted the right theory is immaterial. While the consent order was not res adjudicata, the time limited for questioning its validity had expired before the petitions were filed. In O’Connell v. Chicago Park District, 376 Ill. 550, where a void pledge of securities by a bank was involved, and there was an action to recover against the pledgee and others for conversion, and against the pledgee for money had and received, the court held that as the action was not commenced within five years after the date of the-pledge, it was barred under the five-year statute of limitations. The situation here is analogous in that there was no proceeding to set aside the consent order within the time allowed by law.

Although we are not basing our decision upon the fact, it may be noticed in passing, that the consent order in this case may have been the inducement for waiving the claim for preference which, so far as the record shows, may have been enforcible on account of the deposit being undistributed tax money. The decree denying the prayer of the several petitions is affirmed.

Decree affirmed.


author: Mr. Presiding Justice Hayes

text:
    Leo George et al., Appellants, v. City of Danville, Appellee.
    Gen. No. 9,336.
    Heard in this court at the February term, 1942.
    Opinion filed May 20, 1942.

      Londrigan & Londrigan, of Springfield, and Pen-well, Burk, Twomey & Johnson, of Danville, for appellants.
    Ralph Rouse, Corporation Counsel, and Acton, Acton, Baldwin & Bookwalter, of Danville, for appellee.
   Mr. Presiding Justice Hayes

delivered the opinion of the court.

Plaintiffs forty-two members of the Fire Department of the City of Danville, brought an action against that city in the circuit court of Vermilion county to recover the difference between the salary paid them from July 13, 1937 to January 1, 1941, and the amount due them had they been paid one hundred and seventy-five dollars per month during that period as provided by ch. 24, art. 12, secs. 12-1, 12-2, Ill. Rev. Stat. 1941 [Jones Ill. Stats. Ann. 21.1360, 21.1361]. This statute, originally enacted in 1937 and effective on July 13 of that year, provides in part that, “. . . The salary to be paid to a fireman in any municipality with 25,000 or more inhabitants but with less than 150,000 inhabitants shall be not less than one hundred and seventy five ($175.00) dollars per month . . . .” It is conceded by all parties to this cause that the City of Dan-ville has the requisite population and comes within the terms of the statute.

On July 14, 1937, a meeting of the city firemen was called at the request of the corporation counsel of the City of Danville. At this meeting the corporation counsel explained the terms of the statute quoted above and requested the firemen to sign an agreement wherein they consented to accept for the ensuing fiscal year, salaries less than the statutory minimum. Plaintiffs were told at this meeting that unless they executed the proposed agreement it would be necessary to discharge twenty-five members of the department in order to meet the requirements of the statute from city funds available ° for that purpose. Plaintiffs signed the agreement and signed similar ones in 1938 and 1939. No agreement was executed in 1940.

The circuit court of Vermilion county, who heard the case without a jury dismissed those portions of the complaint which sought recovery for amounts claimed by plaintiffs prior to May 1940, but entered judgment for each of the plaintiffs in the respective amounts claimed subsequent to that date.

The paramount issue in this case is whether plaintiffs, by contract, could waive the provisions of the statute quoted above. While it is true that the language of the statute is unequivocal and permits no departure from its requirements on the part of municipalities coming within its terms, it has long heen recognized in this State that ordinarily the benefits of legislation may be voluntarily surrendered by those upon whom they have heen conferred. Steen v. Modern Woodmen of America, 296 Ill. 104; Zeigler v. Illinois Trust & Savings Bank, 245 Ill. 180. It is only where such surrender would thwart the public policy of the State and endanger the welfare of its citizens that this freedom of contract is proscribed.

The statute before us contains no express declaration of policy by the general assembly, but we believe that by its very enactment the legislature determined that the general welfare of the public demanded that minimum wages for firemen be established and that it should be the public policy of this State that their compensation should not be reduced below the standards therein set up. It cannot be controverted that it is the public policy of this State that adequate fire protection should be provided by every municipality and it must be assumed that the general assembly determined that such protection could be provided only if firemen were assured of compensation commensurate with the hazards inherent in their work so that capable men would be attracted to the job. That this determination was reasonable has already been decided. •

In People v. City of Springfield, 370 Ill. 541, the Supreme Court stated: “. . . fire protection is a thing not only of local concern but in which the general public has a vital interest. The owners of property and the general public are not the only ones affected by legislation for fire protection. There is a vast army of men employed in that occupation, which is obviously fraught with hazards uncommon to many other calling's. ... In the interest of the public, as well as themselves, firemen are entitled to receive adequate compensation for their services, commensurate with such hazards. Otherwise, few men would seek that avenue for a livelihood. The protection of life and property from fire conserves the resources of the country, and is, therefore, a matter of public welfare. . . . It is to the interest of the State that its citizenry be adequately housed and fed. Such a policy tends to prevent indigency, with its corresponding burdens on the public, and to maintain the strength and health of the citizens.’"’

It, therefore, seems clear that plaintiffs could not waive the provisions of the statute in question here because by so doing they would jeopardize the public good.

It is the city’s contention however, that because the several agreements executed by plaintiffs have been fully performed that no harm has been done either to the firemen or the public at large, and that public policy has not been thwarted. This argument overlooks the fact that by giving effect to contracts of this sort the mandate of the general assembly can be evaded. At the time this statute became effective, the finances of the City of Danville were in such shape that it would have been difficult to meet the additional burden imposed. This no doubt was true of many cities affected by the act. The general assembly undoubtedly realized this, but felt the public need for adequate fire protection more compelling. Means existed whereby the defendant city could have raised additional revenue to meet the increase in salaries, and authority to levy some additional taxes was obtained by referendum in 1938. This step was taken however, with full knowledge that the authority obtained would not provide funds sufficient to meet the requirements of the statute. No attempt was made by the city to secure by referendum the benefits of the Fire Protection Tax Act, pursuant to which increased taxes could have been levied to provide the necessary funds to fully meet its obligations, nor is there proof of any serious effort on the part of the city officials to reduce other less essential municipal expenses. Instead they secured the execution of an agreement which voided the effect of the statute and repeated this procedure each year until 1940, when they decided that salaries less than statutory minimum could be paid without the benefit of any agreement. At no time did the city evidence any intent of complying with the statute. Under these circumstances, to give any effect to these agreements, even though executed, would be to stamp with approval the obviously illegal action of the city. In our opinion these agreements were wholly void. Pitsch v. Continental & Commercial Nat. Bank, 305 Ill. 265.

Defendant also contends that plaintiffs’ claims are barred by the doctrine of promissory estoppel. No such estoppel could operate here however, because the promises upon which it must be predicated were contrary to public policy and void. DeKam v. City of Streator, 316 Ill. 123. Nor are plaintiffs guilty of laches. This legislation was subject to attack in the courts and by an attempt to repeal in the general assembly until October 11, 1940, when People ex. rel. Gramlich v. City of Peoria, 374 Ill. 313 was decided by the Supreme Court. The present action was commenced shortly thereafter and we believe that plaintiffs acted with reasonable diligence to protect their rights.

For the reasons stated the judgment of the circuit court of Vermilion county is reversed and the cause remanded to that court with directions to enter judgment for the respective plaintiffs in the amounts proved to be due them.

Reversed and remanded with directions.


author: Mr. Justice Fulton

text:
    M. C. Camp and Lena Z. Bower, Appellees, v. Union Drainage District No. 1, Townships of Raymond and Harvel, Montgomery County, Appellant.
    Gen. No. 9,320.
    Heard in this court at the February term, 1942.
    Opinion filed May 20, 1942.
    Flesher & Taylor, of Taylorville, for appellant.

      Hill & Vandever, of Hillsboro, for appellees.
   Mr. Justice Fulton

delivered the opinion of the court.

M. 0. Camp and Lena Z. Bower, plaintiff appellees, were the owners of certain real estate in Montgomery county, Illinois, a portion of which is within the boundaries of Union Drainage District Ho. 1, of the Towns of Raymond and Harvel, Montgomery county, Illinois, the defendant appellant.

In 1930, the commissioners of said district, according to plans and specifications, duly prepared by their engineer, let a contract to a dredging concern to clean out and deepen surface ditches within the boundaries of said district for the purpose of better draining the lands within the district. One branch of the surface ditch crossed the lands of the appellees for a distance of about 2,200 feet.

The drainage district was organized originally in 1910 and the plans for the improvement then provided for a tile drain through the property of the appellees. Such tile drain was so constructed in 1912. Ho further agreement for right of way across the lands of appel-lees was ever secured or permission from the owners to enter the lands for the purpose of making new improvements. The work done in 1930 consisted in dredging a ditch 11.3 feet wide at the top, three feet wide at the bottom and two and one-half feet deep, according to the testimony of the engineer for the district. About 1,500 cubic yards of earth was excavated on the land of appellees and distributed in spoil banks from 12 to 15 feet wide on either side of the ditch.

The gist of the complaint is that the appellant broke in and entered the farm of appellees and without authority excavated the ditch heretofore described, resulting in damages to the appellees for land taken and for damages to the land not taken. The tenant, who had long worked the farm, testified that prior to the digging of the ditch there was a depression in the land along the line where the tile had been laid but that he had always been able to farm across such depression; that since the improvement had been made he was unable to drive across the ditch and that it took a number of years to level off the spoil banks so that they could be farmed; that on one parcel it left a three cornered tract of about three acres which was hard and inconvenient to farm.

The suit was started in 1932 but never tried until January 1941. On a trial before a jury and at the close of all of the testimony, the court instructed the jury to find the issues for the appellees, leaving the only question for their determination the amount of damages. The jury returned a verdict for appellees for the sum of $1,000. On motion for a new trial the court ordered a remittitur in the sum of $400, then overruled the motion and entered judgment in favor of appellees for $600, and costs of suit.

For reversal of the judgment the appellant relies on two main contentions.

First: That the cause should have been dismissed for want of prosecution.

Second: That where there was any testimony to support appellant’s theory that the work was done within the original drainage ditch, the issue should have been submitted to a jury.

As to the first question the record shows a complete lack of diligence on both sides to have the case called up for disposition. The history of the case shows the following situation: The suit was instituted in the circuit court of Montgomery county in October 1930, and the issues were finally, settled on July 26, 1932. From that date until the April Term, 1940, nothing whatever ivas done by either side toward bringing the suit to trial. During that term the court of its own motion set the cause for hearing for May 6, 1940, and on that same date canceled and vacated the order setting the case for trial. No further orders were taken in the case until the January Term, 1941. On January 20, 1941, the appellant drainage district moved the court to dismiss said cause for want of prosecution. On the same date the appellees appeared and filed a suggestion of the death of Mallory C. Camp, one of the original plaintiffs to the suit, and moved to substitute Frances Camp Bodman, administrator with the will annexed of the estate of Mallory C. Camp, deceased, as a party plaintiff. This motion was properly verified and granted by an order of the court under said date and the substitution made. Again on the same day the appellees were granted leave to amend the complaint by showing the suggestion of death and the substitution as aforesaid, and by the same order the case was set for trial on January 28, 1941. On the 28th day of January, 1941, the day set for trial, the appellant filed another motion to dismiss on the ground that heretofore there had been pending in said court a mandamus suit by the same plaintiffs against appellant, and a writ awarded compelling the construction of a bridge over the ditch in question.

On the same date appellant filed another motion to dismiss for want of prosecution. Both of said motions were overruled and the case proceeded to trial.

Appellant insists that under these circumstances the claim was stale; that the five-year-limitation statute was nullified by the unusual delay and that it was the duty of the court to dismiss the action for want of prosecution. If the appellant had shown the slightest diligence about bringing the case to trial such claim would be fully justified. However, their first motion to dismiss was filed on the very day the appel-lees suggested the death of one of the plaintiffs and moved to substitute the personal representative of his estate as such plaintiff. Eight days after the substitution was allowed and the complaint amended the case was set for trial. On the morning of the day set for trial the appellant made another motion to dismiss. No application by appellant was ever made for a rule on appellees to take any steps toward a final disposition of the case. If appellant ever sought an order of dismissal they should have caused the record to show that they had done that which was required of them toward bringing the cause to a hearing. Leonard v. Garland, 252 Ill. 300; Yott v. Yott, 257 Ill. 419; Epley v. Epley, 328 Ill. 582.

Concerning its contention No. 2, the appellant insists that one of the issues in the case was whether or not the defendant entered the land of appellees by leave and license and that such issue presented a disputed question of fact which should have been submitted to a jury. The evidence shows without contradiction that when the drainage district was formed in 1910, the plans provided for a tile and not an open ditch through the lands of appellees; that the improvement was completed in accordance with such plans; that no further right of way for an open ditch was ever secured by agreement or otherwise.

It is conceded that the drainage law of Illinois permits the commissioners of a drainage district to enter upon the lands included in its boundaries for- the purpose of cleaning out and repairing surface drains to afford better and adequate drainage. We do not believe they have any power however to prepare plans and specifications calling for the installation of a tile drain, and 18 years later return and dig a large, wide, open ditch over the same line without securing further permission or paying damages. In Price v. Union Dist. No. 1 Drain. Com’rs, 253 Ill. 114, it was specifically held that a land owner who had consented to the construction of a tile drain across his land for the mutual benefit of his own land and that of his neighbors did not grant a perpetual easement to the drainage district subsequently formed to make an open ditch.

Under the testimony of both the appellant and the appellees, it is clear that the district committed a trespass on the lands of the appellees and that therefore, they were liable for at least nominal damages. Therefore, it was correct and proper for the trial court to instruct the jury to find a verdict in favor of appellees.

The other points set out in the statement of the case by appellant are argued but slightly and are not supported by any citation of authority and, therefore, not considered in this opinion.

The appellees filed a cross error contending that the court committed manifest error in requiring a re-mittitur in the sum of $400, and entering judgment for only $600, when the preponderance of the evidence was to the effect that appellees were damaged to the extent of at least $1,000, the amount awarded in the verdict of the jury.

The record shows that such remittitur was entered by the appellees before the motion for new trial was passed upon by the trial judge. While a court may not compel the plaintiff to remit any part of the verdict, it may give him his election to do so or take a new trial. Such practice has long been established in this State, and where such action does not disclose any prejudice or passion on the part of the court or the jury it should be affirmed. Knight v. Seney, 290 Ill. 11; North Chicago St. R. Co. v. Wrixon, 150 Ill. 532.

Finding no substantial error in the record the judgment of the circuit court is affirmed.

Affirmed.