author: Mr. Presiding Justice Haul

text:
    Marie Augenstein, Defendant in Error, v. William C. Augenstein, Plaintiff in Error.
    Gen. No. 36,714.
    Opinion filed May 2, 1934.
    Otto Schustbbman, for plaintiff in error.
    Juul & Both, for defendant in error.
   Mr. Presiding Justice Haul

delivered the opinion of the court.

By this writ of error, defendant seeks the reversal of a decree of the circuit court of Cook county granting complainant separate maintenance. The decree also dismisses defendant’s cross-bill, in which he charges complainant with desertion.

The principal grounds for reversal raised by defendant are that there is no charge in the bill for separate maintenance that complainant is living separate and apart from defendant without her fault, and that there is no allegation that he is a resident of the county in which the action is brought. The charge in the bill is that complainant “lived with him as his wife until the 4th day of January, 1930, when he abandoned and deserted her without any reasonable cause, and that he has persisted in such desertion and abandonment.” The finding in the decree is that “defendant abandoned and deserted complainant without any reasonable cause.”

Cahill’s St. ch. 68, f 22 (Smith-Hurd’s Illinois Revised Statutes, 1931, chapter 68, section 22) is as follows :

‘ ‘ That married women, who, without their fault, now live or hereafter may live separate and apart from their husbands, may have their remedy in equity, in their own names respectively, against their said husbands in the Circuit Court of the county where the husband resides, for a reasonable support and maintenance while they so live or have so lived separate and apart; and in determining the amount to be allowed the court shall have reference to the condition in life of the parties at the-place of residence of the husband, and the circumstances of the respective cases; and the court at any time, after service of summons and proper notice to the husband, may make such allowance of temporary alimony, attorney’s fees, and suit money as may appear just and equitable, as in cases of divorce; the court may, however, in its discretion, reserve the question of the allowance of attorney’s fees and suit money until the final hearing of the case, and may then make such order with reference thereto as may seem just and equitable, regardless of the disposition of the case. (As amended by L. 1929, page 507, June 10, July 1.)” (Italics ours.)

“Reasonable” is defined in the Standard Dictionary as “within reason; properly.” “Cause” is defined as any “occasion or condition upon the occurrence of which an event takes place.” “Fault” is defined as “in the wrong; worthy of blame. ’ ’ The statute is very definite. Only “married women, who, without their fault, now live or hereafter may live separate and apart from their husbands,” may have separate maintenance.

The charge in a bill and the finding in a decree that one without reasonable cause does something, is not a charge nor a finding that he is “in the wrong.” The charge that there was no reasonable cause which would justify defendant in leaving his wife, does not at all negative the idea that complainant was at fault, “in the wrong” or “worthy of blame.” Complainant’s actions, whatever they may have been, are not taken into consideration by the charge in her bill, nor by the finding in the decree.

In Helm v. Cantrell, 59 Ill. 524, page 529, the Supreme Court said that in equity “no facts are properly in issue unless charged in the bill, and of course no proof can be generally offered of facts not in the bill, nor can relief be granted for matters not charged, although they may be apparent from other parts of the pleadings and evidence, for the court pronounces its decree secundum allegata et probata. The reason of this is, that the defendant may be apprised by the bill what the suggestions and allegations are against which he is to prepare his defense. Story Eq. Pl. sec. 257; 1 Dan. Ch. Pr. 377, Fitzpatrick v. Beatty, 1 Gilm. 455; Primmer v. Patten, 32 Ill. 528; Brainard v. Arnold, 27 Conn. 617; Bailey v. Ryder, 10 N. Y. 363; Crockett v. Lee, 7 Wheat. 522; Jackson v. Ashton, 11 Peters; James v. McKernon, 6 Johns. 564.”

In Raab v. Raab, 150 Ill. App. 554, cited by appellant, this court held that “the right to separate maintenance does not arise from the mere fact of the husband failing to support his wife, because, notwithstanding such dereliction, he may otherwise be a very acceptable husband of exemplary habits and conduct, and the wife may have ample means to support herself and family. She must be living separate and apart without her fault, and needing the support which her husband is able, although unwilling, to supply. The difficulty with the decree is that it makes no finding that complainant is living separate and apart from defendant without her fault. Without such fact being found, the chancellor had no jurisdiction to decree a separate maintenance or make any allowance. It is the policy of the law that the husband and wife shall live together, and living apart will not be tolerated without lawful excuse. The statute, being in derogation of the common law, must be strictly construed and nothing by way of intendment will be presumed. The wife seeking separate maintenance must by proof, supplemented with a finding, demonstrate that her case is within the statute and that she is living separate and apart from her husband without her fault, before the court has jurisdiction to decree a separate maintenance. (Jenkins v. Jenkins, 104 Ill. 134; Johnson v. Johnson, 125 ibid. 510.) ” In the Raab case, however, there was no certificate of evidence filed, and the Appellate Court had nothing before it, other than the finding of the trial court. The finding of the court there was: “The court doth find . . . the said Henry Raab to be guilty of wilfully neglecting to provide for the necessary and proper support and maintenance of the said Mary Raab, his wife, and Irving and Gilbert Raab, their children, ... as charged in the bill of complaint. ’ ’ In the instant case, a certificate of evidence was filed, which contains the following as shown by the abstract: Mary Augenstein, complainant, testified that “my husband left me January 5th, 1930. I lived there a year after he left me. Before Christmas he said he was going to leave, and I begged him not to leave before the holidays. He said he didn’t care for me any more. "While I lived with my husband, I treated him kindly. I did all the housework, and he treated me kindly before the year 1929, when I found out about the other woman. He asked me for a divorce, and I told him there would never he a divorce. During those years for the maintenance of the home, he gave me $100 in two weeks and $40 in two weeks. I got $140 in four weeks. I gave him $2,500 and $500. I had the money in a bank downtown in my maiden name. I had this money before I was married. I lost my job the day before yesterday. I was making $5.00 a week and board. I was married to the defendant for 16 years. The only work I can do is housework. I have no mqney of any kind now. The $3,000 was all I had.”

Richard Wagner testified that he had a conversation with the defendant in May, 1932; that he, meaning defendant, “said that inasmuch as he could not continue to live with Marie, he wanted to have a divorce, that it was impossible to live with her, that he had nothing against her whatever, and that he had planned to break up their home by giving her evidence.”

Defendant, William C. Augenstein, testified that “I lived with her until 1929. Every time I came home, there was an argument of some kind started, and finally I couldn’t stand it any longer and I picked up and left. I couldn’t happily live with her. She told me to get out and I finally did.”

The finding in the decree in the instant case that “Defendant abandoned and deserted complainant without reasonable cause,” alone is insufficient to sustain the decree herein. However, as held in Crow v. Harrison, 248 Ill. 462, “the certificate of evidence in a chancery .case is a part of the record and of the decree. ' Railway Conductors’ Benefit Ass’n v. Leonard, 166 Ill. 154; Bennett v. Bradford, 132 id. 269.”

From the testimony of the parties, as shown by the certificate of evidence, we can draw no other conclusion than that defendant deserted complainant without her fault.

It is further urged as a ground for reversal that there is no charge in the bill that defendant was a resident of Cook county at the time the bill for separate maintenance was filed. The statute quoted provides that action for separate maintenance must be brought “in the Circuit Court of the county where the husband resides.” The bill in the instant case alleges that complainant is a resident of Cook county, and that on the 30th day of May, 1914, at Indianapolis she was married to the defendant and lived with him as his wife until the 4th day of January, 1930, when he abandoned her, but says nothing as to defendant’s residence.

On the question as to whether or not the bill should contain an allegation that the defendant is a resident of the county in which the suit is brought, complainant cites the case of MacKenzie v. MacKenzie, 238 Ill. 616, as decisive of this question. There, in a suit brought for separate maintenance, defendant was found guilty of contempt for failing to observe the order for the payment of alimony. It was from this order that the appeal was taken. There was no allegation in the bill that defendant resided in the county where the suit was brought. There the defendant was a nonresident of the State, and had alleged in his answer that he had come into the State “for the purpose (as stated by the Supreme Court) of attending the trial of criminal suits instituted against him for abandonment of his wife and child, and that while he was in the State of Illinois for that purpose, he was exempt from the service of summons,” with which he was personally served. A plea of abatement had been filed to the bill, which was overruled. After the answer was filed, various proceedings were had. Among other things, the Supreme Court discussed the question raised here, and there is some language used by the court which indicates that such a suit is governed by the Chancery Act, and that a nonresident might be served by publication. Ultimately, however, the Supreme Court held that “in regard to the question of jurisdiction of the person of appellant, we think that was waived by a defense made to the rule to show cause why he should not be required to pay temporary allowances, so far, at least, as the application for such allowances was concerned.” A reading of this opinion indicates that in the judgment of the Supreme Court defendant’s appearance acted as a waiver of the question of want of jurisdiction, but only in so far as it affected the order for the payment of temporary allowances.

Babbitt v. Babbitt, 69 Ill. 277, was decided by the Supreme Court at the September Term, 1873. At that time, the statute provided that suit for separate maintenance might be instituted in the county where either the husband or wife resided. In that case, both of the parties had removed from Livingston county, where they had both resided and where suit was instituted. In that case, the Supreme Court held that “It is an indispensable requirement of the statute, that one of the parties shall reside in the county in which the proceedings are had. Without this the Circuit Court could not have jurisdiction.” Since then the statute has been amended, and, as stated, provides that the suit shall be brought in the county where the defendant resides, and the bill filed should contain an allegation that such is the fact.

The question then arises here whether or not in the absence of an allegation, that defendant was a resident of Cook county when the suit was started, there is anything in the record in either defendant’s conduct, pleading, the service of process, or the filing of his appearance which waives this necessary allegation. The bill here was filed March 4, 1930. The summons was served in Cook county on March 7, 1930. At the March term of the circuit court of Cook county, defendant filed an answer in which he admitted that he was a resident of Cook county. On April 9, 1930, the defendant entered a general appearance in this cause.

In Raab v. Raab, supra, this court stated that “the jurisdiction of the court is challenged, but we think that the court had jurisdiction of the parties, because there is nothing in the separate maintenance provisions of the statute which requires any time residence as a condition precedent to confer jurisdiction. In this respect it differs from the one year residence required by the divorce statute. The statute confers the right to seek the remedy ‘in the county where the husband resides. ’ The return of the sheriff upon the summons of service upon defendant, lacking contradiction, sufficiently establishes the residence of defendant in Cook County to fulfill the statutory requirements in that regard.” Here the defendant waived any question of jurisdiction that might have been raised.

We are of the opinion that a case is made here which demonstrates that defendant deserted the complainant without her fault, and the decree of the circuit court is therefore affirmed.

Affirmed.

Wilson and Hebel, JJ., concur.


source: Caselaw Access Project

author: Mr. Presiding Justice Hall

license: Public Domain

text:
    Lawrence Weiss, Appellee, v. Morris Schachter, Trading as Ticker Tape Cigar Store, Appellant.
    Gen. No. 36,748.
    Opinion filed May 2, 1934.
    Leopold B. Melnick, for appellant.
    J. Clyde Stewart, for appellee.
   Mr. Presiding Justice Hall

delivered the opinion of the court.

On January 10, 1933, a judgment by confession on a judgment note was entered in favor of plaintiff and against defendant in the sum of $936.50, which included interest and $112.50 as attorney’s fees, to1-gether with the costs of suit. The note as originally executed was made payable to Sylvia B. Hoffman, and by her indorsed and transferred to the plaintiff. On January 24, 1933, a motion was made by defendant to vacate the judgment and for leave to plead and defend. This motion was supported by a petition verified by the defendant in which it is alleged that the note upon which the judgment was entered is wholly void by reason of the fact that it was given for a gambling transaction; that Sylvia R. Hoffman wagered and bet with petitioner upon the outcome of horse races the sum of $2,500 on or about January 16, 1932; that petitioner lost on said wagers and bets to Sylvia R. Hoffman the sum of $5,800; that petitioner on or about January 16, 1932, because he lost the said wagers and bets to Sylvia R. Hoffman, delivered to her the sum of $5,000 in currency; that petitioner later on July 8, 1932, delivered to Sylvia R. Hoffman a note in the sum of $800 for the balance of said wagers and bets which he lost to Sylvia R. Hoffman, which is the note upon which judgment is entered in this case, and by reason that the said note was given for a gambling debt, it is, therefore, without legal consideration and void.

Plaintiff cites Cahill's Illinois Revised Statutes, 1931, chapter 38, ft 316(1), entitled, “An Act to provide for, regulate and license horse" racing in the State of Illinois; to legalize and permit the pari-mutuel or certificate method of wagering on the result of horse races at licensed racing meetings in said-State; to render inapplicable certain Acts in conflict therewith, and to provide penalties for the violation thereof,” as authority for the proposition that inasmuch as the note in question was given in payment of money lost on a horse race, that the transaction is within the statute, and, therefore, legal and binding.

The facts set forth in defendant’s petition are not disputed. There is nothing in this transaction, however, which indicates at all that the note in question was given in payment of a bet made under the mode provided by this statute. So far as the petition shows, it was a transaction between the two parties. The act in question provides in terms for the creation of a horse racing commission, that every person, association or corporation desiring to conduct horse racing shall be licensed, post a bond, and that the wagering shall be done under the pari-mutuel system.

In People v. Monroe, 349 Ill. 270, James O. Monroe was charged with the violation of the act in question. He was found guilty, and on appeal, the constitutionality of the act was raised in the Supreme Court. The statement of the case indicates that Monroe conducted a horse race track in Madison county, where the pari-mutuel system of betting was adopted, but that he made no effort to in any way comply with the other features of the statute. The act was held to be constitutional, and inasmuch as the defendant had not complied with all the terms thereof, the judgment was affirmed. In that case, pari-mutuel is defined as “A form of betting on horses in which those who bet on the winning horse share the total stakes, less a small percentage to the management,” and in commenting upon the act, the court says: “While the amount of money to be divided is indefinite as to dollars and cents, it is definite in that the amount of money to be divided is the total stakes on the winning horse, less a given percentage to the management. The persons among whom the money is to be divided are not uncertain, as they are ‘those who bet on the winning-horse. ’ The winning horse is not determined by chance, alone, but the condition, speed and endurance of the horse, aided by the skill and management of the rider or driver, enter into the result. ... In our opinion, the pari-mutuel system does not come within the constitutional inhibition as to lotteries.”

The Standard Dictionary defines pari-mutuel, or Paris Mutuals, as “a pool in betting as in a horse race, in which each bettor lays a fixed sum on the contestant that he selects, and those who choose the winner, divide the entire stake, less the percentage of the person who furnishes the pool tickets; literally, mutual bets.”

As stated, in the case at bar, as shown by the motion to vacate the judgment, the betting was between two persons on the outcome of a horse race, and the note sued on was given to pay a loss on such bet.

In Hawthorne Kennel Club v. Swanson, 257 Ill. App. 499, this court said:

“"While counsel cites cases from other jurisdictions in support of the contention that money placed on the results of horse racing is not gaming, such rulings are not in harmony with the construction given the Graining Act by the courts of this State. We need only to refer to Tatman v. Strader, 23 Ill. 493, and Swigart v. People, 154 Ill. 284, and authorities there cited as decisive of that question.”

In Shaffner v. Pinchback, 133 Ill. 410, the Supreme Court said:

“That betting money on a horse race is gaming, and in violation of law, was decided in Tatman v. Strader, 23 Ill. 493, and that a contract in aid of the offense of gaming, which is prohibited by statute, is void, and can not be recovered upon, was held in Mosher v. Griffin, 51 Ill. 184.” No question is raised here but that the plaintiff is in the same position as would be the original payee if the action were by her.

From the record here, it is apparent that if the facts set forth in the petition are true, the note in question was given in a transaction which is in violation of the law, and that the trial court should have allowed the defendant to present his defense. The judgment of the municipal court is, therefore, reversed and remanded.

Reversed and remanded.

Wilson and Hebel, JJ., concur.


author: Mr. Justice Hebel

text:
    Charles G. Frank, Defendant in Error, v. Orvice La Bounty et al., Plaintiffs in Error.
    Gen. No. 36,761.
    Opinion filed May 2, 1934.
    Wisner, Davis & Walsh, for plaintiffs in error.
    Harry A. Biossat, for defendant in error.
   Mr. Justice Hebel

delivered the opinion of the court.

The defendants filed a writ of error to review the record in a foreclosure proceeding wherein a decree was entered by the court after overruling the exceptions of the defendants to the master’s report. From the record it appears that 'Charles G. Frank, as trustee, filed a bill of complaint to foreclose 9, trust deed securing the payment of a bond issue of $52,500. A balance of $37,000 of said bonds has matured and remains unpaid, and is secured by the trust deed on an 18-apartment building located on the northwest corner of Woodlawn avenue and 46th street in Chicago. Orviee and Helen E. La Bounty signed, as makers, the bonds and trust deed. The defendants, Samuel T. Busey and Elsie T. Busey, the owners of the equity, did not sign the bonds and trust deed, nor the extension agreement of August 29, 1927, extending the maturity of the bonds aggregating $37,000, to September 1, 1932.

It appears from the evidence that about the time of maturity of the bonds there were negotiations for an extension of payment of the bonds by Samuel T. Busey and Charles G. Frank, the trustee named in the trust deed. These negotiations did not result in a signed agreement extending the maturity of the bonds. A foreclosure proceeding was filed on November 23,1932, about three months after maturity of the bonds. The maturity of the bonds and default in payment are not in dispute.

The contention of the defendants is that the demand upon the trustee to institute foreclosure proceedings and the bondholders’ agreement are void, as being opposed to public policy;- that the trustee was not entitled to the compensation and expenses allowed by the decree, because of inequitable conduct.

The question is also raised that two of the defendants were not properly served by publication; that at the time of said publication they were residents of Cook county, Illinois.

Whether proper demand was made upon the trustee to foreclose is one of the questions in this case. Most of the $37,000 matured bonds are represented by a bondholders ’ committee and were deposited with C. G. Frank & Co. as depository. That fact of itself does not destroy the several rights to demand foreclosure.

The complaint seems to be that the trustee is in control of the bondholders ’ list, which places him in a position where his actions are governed by the amount of fees he may receive from the equity owners or the bondholders in case of foreclosure, and because of his interest he is not in a position to foreclose simply because the equity owners refused to pay $1,500 broker’s commission for an extension of the loan.

The important question is: Did the bondholders do anything to embarrass an extension? Their several interests are involved. The bonds are due and unpaid. The equity owners did not offer to do equity, nor can the trustee by agreement, unless the bondholders consent, waive any of their respective rights. Their several rights are to have the amount due paid, and upon failure to satisfy the bondholders, they have the undoubted right to demand that the trustee proceed to institute foreclosure proceedings. The rule is that a trustee under a trust deed in the nature of a mortgage is a trustee for the equity owners as well as for the mortgagee and the bondholders, and in his attitude the trustee should be fair and impartial in his dealings with the parties in interest.

The question that seems to be uppermost in the minds of the defendants is the manner in which the trustee is alleged to have selected the bondholders’ committee, the personnel of which it is claimed is in the control of the trustee. This court is still impressed with the fact that the bonds matured. Of this the defendants had knowledge, and no steps were taken by the defendants to do equity between the parties. What should the bondholders have done which in equity and good conscience they did not do ? The agreement of the bondholders does not violate or require action which would violate public policy. There is no provision in the agreement that a depositing bond-' holder may not withdraw. The fact is that from the record the bondholders seemed to be satisfied. The outstanding fact is that the defendants were unable to work out a plan for. an extension of the maturity of the bonds satisfactory to the defendants. In a letter addressed to Samuel T. Busey, the trustee attempted to explain to the defendants that the maturity of the bonds could be extended for a period of three years from September 1, 1932, at the rate of four per cent per annum, with prepayments of $500 in 12 months and $500 in 18 months, $700 in 24 months, and $800 in 30 months, leaving a balance of $34,500 due in 36 months, and further, that a matured interest coupon in the sum of $1,110 be paid, and that $2,000 be paid on account of 1930 taxes and deposited with C. GK Frank & Co. to be used for the purposes indicated, and also to pay the costs necessary to extend the loan, including the attorney’s fee of approximately $200, and it was also suggested by Mr. Frank that the charge for the services of C. G-. Frank & Co. for the procuring of an extension would be $1,500. This offer was refused by an attorney for the defendant Busey. It was suggested at the time of the refusal that the defendants were willing to make payments on the mortgage, but that the amounts paid would have to be paid to a reputable bank; that the commission suggested was too high, and that they, the defendants would not pay it. It was further suggested by the attorney that Mr. Frank consider putting the property under corporation control, the bondholders to have preferred stock equal to the amount of their bonds and interest, and defendant Busey to hold the common stock. This counter offer was refused by Mr. Frank, and he advised the defendants’ attorney that the only thing to do was to institute foreclosure proceedings.

It would seem that the defendants were disappointed in not being able to get what they wanted in the way of conditions under which the loan could be extended. It is unfortunate that the defendants were not able to pay the amount due the bondholders under the terms of the trust deed. The bondholders however as a result of the default in payment are entitled to avail themselves of foreclosure proceedings.

We have examined the record, and it appears that the defendants McMackin and Manderville were defaulted by an order of court entered on March 13,1933. Service was obtained by publication based upon an affidavit, and it appears from this affidavit that the last known places of residence of these defendants was McMackin, 4619 Woodlawn avenue, Chicago, and Manderville, 4613 Woodlawn avenue, Chicago, Illinois. The property sought to be foreclosed is known by these numbers, and each of the defendants occupied the premises as a tenant. There is some evidence in the record that the whereabouts of these defendants was uncertain. Manderville is not in court, and the question of proper service could only be raised by him. Hinton v. Knott, 134 Ill. App. 294. Ch. 22, sec. 12 of an act entitled “Chancery” (Cahill’s Ill. Rev. Stats. 1933, If 12 [App’x]) provides that whenever any complainant or his attorney shall file an affidavit (as was done in this case upon the grounds therein stated), the clerk shall cause publication to be made in a newspaper of general circulation. A summons was issued returnable to the February term, and section 13 of the same act provides that the notice required in section 12 may be given at any time after commencement of the suit.

The statutory provisions applicable herein were complied with, and the certificate of publication and the notice meet the requirements of sections 12 and 13 of the Chancery Act.

There being no error in the record, the decree entered herein is affirmed.

Decree affirmed.

Hall, P. J., and Wilson, J., concur.


author: Mr. Justice TIebel

text:
    Peter Phillip, Complainant, Appellee, v. Jennie Landman et al., Defendants. U. S. Dahm, Cross Complainant, Appellant, v. Peter Phillip et al., Cross Defendants.
    Gen. No. 36,765.
    Opinion filed May 2, 1934.
    Rehearing denied May 16, 1934.
    Trude & Kahane and Martin Piepenburg, for appellant.
    Ben M. Smith and Oliver O. Heywood, for complainant Peter Phillip.
    Harry H. Levy, for cross defendants Jennie Land-man and Morris J. Landman.
   Mr. Justice TIebel

delivered the opinion of the court.

This cause is in this court upon appeal by U. S. Dahm, defendant and cross complainant, from an order entered on April 5, 1933, modifying the decree of March 30, 1933.

The bill of complaint to foreclose a trust deed was filed by Peter Phillip. This bill charges that on August 6, 1929, Jennie Landman and Morris J. Land-man, her husband, executed and delivered their promissory note of that date for $10,000, payable to bearer, with interest at the rate of 6 per cent per annum;- that this interest is evidenced by ten interest coupons of $300 each, payable semiannually; that to secure said note and interest coupons, Jennie Landman and Morris J. Landman, on August 6, 1929, by their trust deed conveyed to the Phillip' State Bank and Trust Company, a corporation, as trustee, to secure the payment of the note and interest coupons, the real estate therein described.

The bill of complaint further charges that Jennie Landman and Morris J. Landman executed their trust deed, dated January 23,1930, conveying the same real estate to the Chicago Title & Trust Co., as trustee, to secure the payment of 26 principal promissory notes therein described, and the maturities thereof, all payable to the order of U. S. Dahm; that on January 6, 1931, U. S. Dahm filed his bill of complaint in the superior court of Cook county, Illinois, to foreclose said trust deed, which proceeding was still pending in said court, Case No. 529706.

The bill of complaint makes Jennie Landman and Morris J. Landman, U. S. Dahm and others, parties defendant.

Summons was served by the sheriff of Cook county on Jennie Landman and Morris J. Landman, U. S. Dahm and others.

The defendant U. S. Dahm filed an answer and a cross-bill, from which cross-bill appears the pendency of the bill of complaint filed by Peter Phillip to foreclose said first lien trust deed.

Said cross-bill further charges that Jennie Land-man and Morris J. Landman, her husband, executed and delivered their 26 promissory notes, aggregating $5,000, dated January 23, 1930, bearing interest at the rate of 6 per cent per annum; that to secure the payment of said notes and interest coupons, Jennie Land-man and Morris Landman, her husband, by their trust deed, conveyed the same real estate as described in the bill of complaint, and known as 1421 Juneway Terrace ; that notes numbered 1 to 9 have been paid; that the cross complainant is the owner and holder of the balance of the unpaid notes, and that there is due the sum of $3,400; and further charges that a $300 interest coupon, which matured on the principal note of $10,000, secured by the trust deed being foreclosed, had been paid by the cross complainant. The cross-bill makes parties defendant, Peter Phillip, Jennie Landman and Morris J. Landman, and others named in the bill of complaint. The cross-bill of complaint requires all defendants to answer, but not under oath, that the defendants, or some of them, pay to the cross complainant whatever sum shall be found due upon an accounting, together with costs, by short day, and in default of such payment, the premises may be sold as the court shall direct.

An order of default and reference to a master in chancery on the bill of complaint filed herein was entered on February 1,1933, defaulting Jennie Landman and Morris J. Landman and others named, and referring the cause to Ninian H. Welch, the master in chancery of said court.

A further order was entered on February 11, 1933, defaulting all cross defendants, except Peter Phillip, and referring the cross-bill to Ninian H. Welch, said master in chancery.

The master filed his report on March 30, 1933, and finds in favor of Peter Phillip, complainant, and that he has a first and prior lien against the described premises, in the sum of $11,395.87; and further finds that the defendant and cross complainant is the holder and owner of notes described in the cross-bill, and that said notes are past due, and that there is due to the defendant and cross complainant, U. ¡3. Dahm, as the holder and owner of interest note No. 5, described in the bill of complaint, in the sum of $322.75, and that the total sum of $4,091.10 is due to the defendant and cross complainant, U. S. Dahm.

The master further reports that there appears in the record a statement by counsel for said defendant and cross complainant to the effect that the validity of the trust deed and the ownership of said trust deed and the notes described in the bill of complaint are being litigated in the superior court of Cook county, Illinois, Case No. 529706; that to this report of the master no objections were filed by any of the parties in in- , terest.

A decree was entered on March 30, 1933, which approves and confirms the master’s report, and finds that there is due to the complainant upon the notes and coupons described in the trust deed, the sum of $10,795.87, with interest on said sum from March 6, 1933; $18.50 stenographer’s fees, and $600 solicitor’s fees.

The decree further finds that the defendant and cross complainant U. S. Dahm is the holder and owner of notes, numbered 10 to 26 inclusive, and that said notes and interest thereon remain unpaid; that there is due to cross complainant as the owner and holder of interest coupon No. 5, secured by the trust deed, and described in the bill of complaint, the sum of $322.75, and that there is due the cross complainant, as the holder and owner of the unpaid notes described in and secured by trust deed described in the bill of complaint, the total sum of $4,091.10.

On April 5, 1933, the decree entered on March. 30, 1933, was modified as follows:

“It further appearing to the Court that the ownership of the trust deed recorded in the office of the Recorder of Deeds of Cook county, Illinois, . . . and the notes secured by said trust deed, and the liability of defendants, Jennie Landman and Morris J. Landman, thereunder are in litigation in case pending in the Superior Court of Cook County, Illinois, entitled U. S. Dahm v. Jennie Landman, et al., Number 529706, the court makes no findings or decision in this cause as to the rights of U. S. Dahm under said trust deed . . . and the notes secured thereby, except that the Court finds that the rights of said U. S. Dahm and the parties who may ultimately be determined to be the owners of the notes secured by said trust deed ... are junior and subject and subordinate and inferior to the lien of the complainant under the trust deed . . . and the Court further finds that the rights of the parties under trust deed recorded as document number 10584605 and the notes therein described shall be determined in said cause in the Superior Court number 529706.”

It appears that a motion was made in the above entitled cause by the solicitor of Jennie Landman and Morris J. Landman, defendants, that the decree that was entered on March 30,1933, be modified so that the decree should provide that the question of the ownership and validity of the trust deed and notes claimed by the defendant and cross complainant U. S. Dahm be held in abeyance until the termination of the case of U. S. Dahm v. Landman et al., now pending in the superior court of Cook county as Case No. 529706.

It appears from the evidence in the record that when said motion came on for hearing on said day, all of the parties were present, and that Harry H. Levy stated to the court that on January 6,1931, the defendant and cross complainant, U. S. Dahm, had filed his original bill of complaint in the superior court of Cook county as Case No. 529706 against Jennie Landman and Morris J. Landman and others, and that said Jennie Land-man and Morris J. Landman were the same parties named in said cross-bill, in and by which said original bill of complaint prayed for precisely the same relief as was requested in said cross-bill, the original bill being a bill to foreclose the junior lien, trust deed and notes secured thereby described in the answer of U. S. Dahm, and in his cross-bill in this cause; that said Jennie Landman and Morris J. Landman filed their answer in said superior court proceeding, and in said answer denied that said U. S. Dahm was the owner of said trust deed and notes, and set forth a defense upon the merits to said notes and a claim for damages against the real owner thereof in excess of the balance alleged to be due thereon; that said suit had been referred in September, 1931, to Sidney S. Pollack, a master in chancery of said superior court, and that hearings had been had on behalf of all parties before said master ever since said date, until about a month before the hearing on said motion; that upon the last hearing before the master, the father of the cross complainant in this cause, was on the stand under direct examination by Martin Piepenburg, on behalf of U. S. Dahm; that at the said last hearing Martin Piepenburg stated that U. S. Dahm’s father was too busy to reappear before said master in chancery to complete said direct examination and to submit to cross-examination, and that no further hearings were had before the master; that previous to that time,'dozens of hearings were had before the master on behalf of both complainant and the defendants, and that hundreds of pages of evidence had been offered and transcribed by the parties to the original bill; that evidence on behalf of said defendants, Jennie Landman and Morris J. Landman had been completed before said master some five or six months before said 31st day of March, 1933, and that since the completion of evidence on behalf of the defendants, the solicitor had been offering evidence on behalf of the cross complainant in the suit pending in the superior court. Whereupon, the court asked Martin Piepenburg, if Mr. Levy’s statements were true, and Martin Piepenburg then stated that said statements were statements of fact, but that no appearance had been filed in this cause by said defendants, nor by Mr. Levy for said defendants; that on the day set for hearing February 8, 1933, before Ninian H. Welch, master in chancery of this court, to whom the cause was referred, he had telephoned Mr. Levy and informed him that on said date he intended to prove up the trust deed on said notes of IT. S. Dahm, and that said Levy was present at the hearing before the master; and" that upon said hearing Mr. Piepenburg had informed said master of the pendency of said superior court proceedings and claims therein made on behalf of said Jennie Landman and Morris J. Landman.

It also appears that Mr. Levy, who was appearing on behalf of the defendants Jennie Landman and Morris J. Landman, had received a notice that the decree would be presented in the court room of his honor Judge Burke; that he was engaged before his honor Judge Hugo Friend, and that he appeared in the court room of Judge Burke at six minutes after 10 o’clock on March 30, 1933, the morning the decree was presented; that the decree had been entered, and thereupon Mr. Levy immediately served notice upon all interested parties of the presentation of said motion to vacate or modify said decree.

The proceeding before the chancellor was upon the motion to vacate offered by the defendants Jennie Landman and Morris J. Landman, who were in default at the time, and was in the nature of a plea in abatement that a prior suit was pending between the same parties named in the cross-bill upon the same subject matter and for the same relief as asked for in the cross-bill in the instant case.

Jennie and Morris Landman were named as defendants in the original bill to foreclose the trust deed, the subject matter of the litigation in the pending cause. It also appears from this bill that there is a suit pending in the superior court of Cook county between U. S. Dahm and Jennie and Morris Landman, and that Jennie and Morris Landman had knowledge of the filing of the present suit, to which U. S. Dahm was made a party defendant, and that Dahm was made a party defendant because of his interest in the trust deed and notes, which are a second lien and subject to the trust deed and notes being foreclosed by the complainant Peter Phillip. The defendants Jennie and Morris Landman were served with summons and were defaulted for want of appearance in this case. The defendant U. S. Dahm is not voluntarily in this suit. He was made a party defendant, was served with a summons, appeared and filed an answer and cross-bill. He proceeded to establish his rights in the cause and offered proof before the master in chancery of his ownership of the notes, as well as of the trust deed, but before proceeding with the hearing, he notified Harry H. Levy, who appeared as attorney for Jennie and Morris Landman in the hearing before the master. The attorney for U. S. Dahm, the defendant and cross complainant, made a statement as to the pendency in the superior court of the proceeding between these same parties, and this statement was incorporated in the master’s report.

After the master’s report was approved and the decree drafted in accordance with the court’e direction, these defendants Jennie and Morris Landman were notified that the decree based upon the master’s report would be presented to the chancellor. The defendants failed to appear until after the decree was signed by the chancellor and entered. The established rule which requires no citation of authorities, is that a plea in abatement must be presented at the earliest opportunity. This was not done by the defendants Jennie and Morris Landman, who were in default and with knowledge that a hearing was to be had before the master in chancery upon the cross-bill. By this cross-bill it was necessary for Dahm to establish the fact that he was the holder and owner of the notes, the subject of the foreclosure set forth in the cross-bill. These defendants took no steps to call the attention of the court to the condition of the record, and permitted the cause to proceed to entry by the court of the final decree, and a motion was not presented until after the decree had been entered on March 30, 1933.

The cross complainant did not conceal the fact of the pending litigation in the superior court, but, on the contrary, notwithstanding the defendants were in default, notified the defendants through their attorney that a hearing would be had before the master in chancery, upon the question of the ownership of the notes secured by the trust deed, and at the time of the hearing the cross complainant’s attorney made a statement, which is.incorporated in the master’s report, as to the pendency of the litigation in the superior court of Cook county. After the service of summons on December 3, 1932, the defendants Jennie and Morris Landman delayed until March 30, 1933, and then moved that the decree be modified because of a prior action pending. This does not indicate that the defendants were diligent, or that they called the matter to the attention of the court at an early opportunity. IT. S. Dahm was a party to this suit, and as a cross complainant he was entitled to proceed with the litigation and to establish his rights, and the chancellor erred in modifying the decree of March 30, 1933. If the defendants desired to call upon the court to enter an order requiring Dahm to elect in which of the causes he desired to submit his case, this should have been done at the earliest opportunity, and upon his election the court no doubt would have entered a just. and equitable order as to the payment of costs.

This court is of the opinion that the chancellor erred in entering the order of April 5, 1933, modifying the decree of March 30, 1933, and denying the relief prayed for by the cross complainant and as recommended by the master in chancery. For that reason the decree is reversed with directions to the court to proceed in conformity with the views expressed in this opinion.

Decree reversed cmd cause remanded with directions.

Hall, P. J., and Wilson, J., concur.


text:
    Patricia Jean Hallis, by Her Father and Next Friend, Joseph A. Hallis, Appellee, v. Stover Company, Appellant.
    Gen. No. 36,896.

      Opinion filed May 2, 1934.
    John A. Bloomihgstoh, for appellant.
    Eider & Thuma, for appellee; Chester D. Kerh, of counsel.
   Mr. Justice Hebel

delivered the opinion of the court.

The defendant appeals to this court from a judgment entered in the superior court of Cook county in a personal injury action in which a judgment was entered in favor of the plaintiff in the sum of $10,000, and which was reduced by plaintiff’s remittitur to $6,500. The case was tried twice, and on the previous trial the jury returned a verdict of $10,000, and upon motion for a new trial by the defendant, the trial court set aside the verdict and granted a new trial.

The amended declaration upon which the issues were joined alleges in the first count that the plaintiff, a minor, was about 19 months old and lived with her parents at 2914 North 76th avenue, Elmwood Park, Illinois; that at the time of the occurrence this infant was walking in the kitchen of her parent’s home, and the defendant through its servant negligently placed and permitted a bucket of lye to stand on the floor of the kitchen at the place where the plaintiff’s minor was walking, and that as a proximate result and in consequence of defendant’s negligence by its servant, plaintiff fell against, upon and into said bucket of lye and was injured.

The second amended count is the same as the first, except that it alleges that the defendant by its servant placed and permitted to stand on the floor of the kitchen, where the plaintiff was walking, a container or receptacle containing a dangerous fluid and that the defendant so carelessly and negligently failed to guard and cover said container that as a direct result and in consequence of the defendant’s carelessness and negligence, by its servant, plaintiff fell against, upon and into said container and her person came in contact with said fluid and by means thereof plaintiff was injured.

The accident involved in this suit occurred in the kitchen of the home of plaintiff’s parents where she was injured by a pail containing lye coming in contact with her body. The lye was used in repairing a refrigerator owned by the father of this minor. The child was 18 or 19 months old at the time of the accident. The father, Joseph A. Hallis, called upon the Stover Company, the defendant, to have needed repairs made upon the refrigerator, and upon request of the father, an agent of the company was sent to make such repairs.

There is evidence that on the morning of April 9, 1931, about 10 o’clock, Boy Thompson, a repair man from the defendant company, called to make the needed repairs to the refrigerator. He requested Margaret Hallis, the infant’s mother, to remove all food from the refrigerator, which was done, and the food placed upon the kitchen table. While Thompson was removing the tools from his kit, the plaintiff’s minor was in the kitchen. Mrs. Hallis stated in the presence of Thompson that she would take the baby out of the kitchen, and the baby and her toys were put on the back porch, and Mrs. Hallis hooked the gate that led to the back stairway and returned to the kitchen and fastened the storm door to the kitchen. During the course of the morning, Mrs. Hallis removed, the child from the porch and put her in the bathroom, and then again put her back on the porch and fastened the storm door which led to the entrance of the kitchen and Thompson continued his work. The evidence from this point is conflicting.

There were two occurrence witnesses present at the time the child was injured, one being Mr. Thompson, defendant’s repair man, and the other Joseph Hallis, a son of Joseph A. Hallis and Margaret Hallis, and a brother of plaintiff’s minor. As to the occurrence, Joseph Hallis testified for the plaintiff, substantially as follows: That at the time of the occurrence he was seven years of age; that he had returned home from school about five minutes after 12 on the day of the accident; that he rang the front doorbell and his mother opened the door and he entered and was told that he would have to wait for his lunch; that Mrs. Hallis went into the kitchen and Thompson continued to work on the refrigerator; that his tools were scattered on the floor; that about 15 minutes to one the boy came into the kitchen and told his mother that he would be late in his return to school; that he had his lunch at about 25 minutes to one, which he ate in the kitchen while standing at the corner of the table; that the repair man was in the kitchen at the time and continued working on the refrigerator; that the repair man got up and walked over to the door and unhooked it, and then put the infant Patricia’s table against it to hold it open; that he returned to his work, and the child came in and sort of stumbled over the tools and sat in the bucket in the middle of the floor; that Thompson when he heard her scream turned around and put her under the water faucet, and the mother of the child came into the kitchen.

Thompson’s version of the accident is that he came to the home of the plaintiff, met Mrs. Hallis, who complained that the refrigerator ran excessively; that he examined the machine and told her that the operating-pressure on the machine would have to be reduced and a new part put in the machine; that he advised Mrs. Hallis that there would be disulphide oxide in the room and that the windows would have to be opened for ventilation; that the windows were then opened, and at that time he saw this little girl and told Mrs. Hallis that the gas was irritating but not poisonous, and that she had better put the child out of the room while he was working; that he then proceeded to fix the machine; that the child was on the back porch or in the back yard, and the mother was elsewhere in the house ; that a kitchen table was placed crosswise of the kitchen door, and the screen door was also closed; that a few. things were taken from the ice box and put on the table; that Thompson then proceeded to take the gas from the machine, and it was necessary to let the sulphur dioxide out of the machine, and in order to do that he used a pail into which he poured two pints of lye and a gallon and a half of water; that the pail was about 14 inches high, 10 or 11 inches around, was water tight and held about 2 gallons; that he then ran a copper tube from the unit into the bottom of the bucket and allowed the gas to drain into the lye solution; that neutralized the gas so that only a part of this very irritating substance was permitted to diffuse into the room; that while this was going on, the air was bad; that none of the material was spilled; that when the gas was filtered he did not know whether he would have to use the bucket of lye again, so he shoved it over to the sink and went ahead and worked on the machine; that after he had been working on the machine a couple of hours the young boy came home from school through the back door, and moved the table at which time his mother was preparing his lunch, both the boy and his mother being in the room; that the work was done on the machine with his back toward the mother and the boy; that while the boy was eating his lunch and while he, Thompson, had his head close to the ice box listening to the sound of the motor, and his back to the door entering the porch — the mother having left the room without the knowledge of Thompson, — he heard a baby cry, and turning around he saw that this little girl had apparently sat down in the bucket of lye. He immediately jumped up, pulled the pail from under the sink, raised the little girl to the sink and began to run cold water over her; that the mother came in almost immediately and took the child from him.

The evidence of the occurrence witnesses, together with the testimony of other witnesses upon facts material to the issues, was before the jury, and upon this evidence the jury returned the verdict.

There is no conflict in the evidence except in regard to that bearing upon the accident, in the kitchen, to plaintiff’s minor. The controverted question of fact is' as to the location of the pail of lye and the manner in which the child entered the kitchen and was caused to stumble and come in contact with the pail of lye solution. This solution is a poisonous chemical and is a dangerous substance. The label on the can offered in evidence has this cantionary warning: “Caution— Hudson Lye is very powerful chemical and must be handled with care. Be careful of eyes, face hands and clothes. Follow instructions exactly — Failure to do so may cause injury.” With this in mind, we are led to the belief that the defendant’s agent was fully aware at the time he produced the cans for the purpose used, that this dangerous chemical should be handled so as not to cause injury. He had knowledge of the presence of the child, and there is evidence which tends to establish the fact that defendant’s agent opened the kitchen door knowing of the child’s presence on the porch, and failing by this act to take precaution to prevent the child from entering the kitchen and coming in contact with the pail of lye, she was injured as a result of being burned by this powerful chemical.

The defendant calls the attention of the court to the case of Putney v. Keith, 98 Ill. App. 285, as being conclusive as to the right of plaintiff to recover. This action was one to recover damages for injuries sustained by a minor two years of age falling into a pan of hot water which stood on the floor of the kitchen, causing the death of the child. In the discussion of the case, the court said:

“What was the duty which Martha Keith owed to Susan Putney? She did not invite, but- knew that Susan had been invited and had come to the house; that she was in the habit of passing, in running around a circuit, through the rooms of the house, among other rooms through the kitchen of the house (and a doorway leading into such kitchen); she knew that Susan was a child, two years of age. Martha owed to Susan the duty of not intentionally or willfully injuring her, or preparing for her a trap or pitfall with the intention that Susan should or might fall therein. She owed to her the duty of doing her work with ordinary care for the safety of Susan. Martha was not employed to look after and watch out for the safety of Susan. . . . She owed no duty to Susan, except such as arose from her knowledge of the presence and habits or ways of Susan. She did not owe to Susan the duty of ceasing to discharge her household duties in the ordinary way, and in the manner by which they are by ordinarily prudent people discharged. ... In the absence of allegation to the contrary, it must be assumed against the pleader that Martha was engaged in a proper domestic occupation for which such a dish of hot water was required, at the particular place in the room where it was put, and that she had a right to perform that domestic office at that particular time. ... Undoubtedly that which is ordinary care as respects adults, may not be as regards children; nevertheless, as regards children as well as adults, the care of persons having no special relation to them, required by law,, is that which prudent people exercise under like circumstances.”

This case does not militate against this cause of action. As we understand the reasoning of the court, for want of a proper allegation that the dish of hot water was negligently placed and used at the particular place in the room with knowledge of the presence of the child, the declaration did not allege actionable negligence.

The declaration in this case states a cause of action. The allegation in the first count alleges that the defendant knew of the presence of the child, and further alleges general negligence in the placing of the pail of lye on the floor of the kitchen where the child was walking, and in the second count the allegation of the presence of the child and that defendant’s servant placed and permitted to stand on the floor of the kitchen a container or receptacle containing a dangerous fluid, uncovered and unguarded, and because of the defendant’s negligence the child came in contact with the fluid and was injured. The fact that the lye is a dangerous substance and must be handled with care, and failure to do so may cause injury is covered by the allegations in the declaration. As to whether this lye was handled by the defendant’s agent with such care as not to cause injury to the plaintiff’s minor was for the jury. The child is not chargeable with contributory negligence because of her age, and the contention of the defendant that the mother of the child was negligent in the care of the injured child cannot be imputed to the child. In the case of Ohnesorge v. Chicago City Ry. Co., 259 Ill. 424, the court said upon this question:

“ . . . it is the settled law of this State that in a suit by a child who is merely injured, to recover damages, the contributory negligence of the father will not defeat the action brought by the child. This proposition must be conceded as sound law under the decisions of this court. Chicago City Railway Co. v. Wilcox, 138 Ill. 370; Chicago City Railway Co. v. Tuohy, 196 id. 410; Richardson v. Nelson, 221 id. 254; Perryman v. Chicago City Railway Co., 242 id. 269.”

The defendant contends that the evidence of Joseph Hallis, the brother of Patricia Jean Hallis, is so improbable that the court would be justified in rejecting his evidence completely.

We have examined the testimony of this witness. This boy was present in the kitchen at the time of the occurrence in question, as testified to by the witness Thompson, who was produced by the defendant, and was the only other witness present at the time of the accident. This youth was vigorously cross-examined by the defendant, and the fact that the boy was only seven years of-age at the time of the accident does not disqualify him as a witness. His testimony was clear and the jury no doubt considered his evidence, to-getter with the other circumstances in evidence, and believed his story. It will not be necessary to repeat the substance of his testimony, except to say that the evidence of this boy is not improbable, but, on the contrary the jury upon the question of credibility believed the evidence offered by the plaintiff, which included the testimony of this witness.

There is also the question before this court as to the admissibility of certain evidence of medical experts based upon hypothetical questions, and the defendant complains that Dr. Tenney, a witness, was permitted to answer that in his opinion the falling of the child into the lye produced the burns and scars, and was responsible for the diseased condition of the kidneys, and the abnormal condition of the anemia of the blood.

There is no evidence in the record that the child did not come in contact with this lye solution, and it is not disputed that the child was burned by this lye, and the child being burned it would necessarily follow that certain results could occur. This does not invade the province of the jury, or call for the opinion of the witness upon an ultimate question of fact. In the case of Wolczek v. Public Service Co., 342 Ill. 482, the court said, which is material upon the question here involved: “As to the objection that the answer amounted to no more than a speculation, it is sufficient to say that the answer was the opinion of the witness, who had been qualified as an expert and was based on evidence in the record. The third ground of objection is that the answer invaded the province of the jury. It is argued that the statements of the witness that there was a direct causal relation between the accident and the conditions found and that in all cases of severe electric shock there is a dilatation of the heart, were, in effect, telling the jury that such conditions were true in this case. Where there is no dispute as to the manner and .cause of the injury or that the injury was sustained, a physician may directly testify that in his opinion a condition later found was caused by the injury. (Fellows-Kimbrough v. Chicago City Railway Co., 272 Ill. 71; Schlauder v. Chicago and Southern Traction Co., 253 id. 154; City of Chicago v. Didier, 227 id. 571.) In this case there is no dispute as to the facts of the accident or that injury resulted therefrom. The witness, as an expert, stated as his opinion that in all cases of severe electric shock a heart dilatation results. He had also testified that he had found, both by clinical examination and X-ray pictures, that the plaintiff at the time of the trial was so affected. We find no error in the admission of this testimony. ’ ’

The testimony of Dr. Kvitek, the attending physician, is also questioned, but his testimony is based upon his attendance upon the injured child, and his observation of the condition of the child at the time of the accident and after treatment by him during the course of several weeks, and we are unable to agree with the defendant that the court erred when it admitted the evidence of this doctor, which is in part as follows: That he attended the plaintiff’s minor at St. Anthony’s Hospital the day after the accident, and further attended her for a period of five weeks, and described her condition and the treatment. At the time of the first visit, the doctor found the child unconscious, with her eyes closed, and burns over one-third of her body, over her arms, the body, and both upper and lower extremities. The doctor was unable to open the eyes to examine them until two days later. The eyes remained closed for about four days. The child was screaming, delirious and.at times completely unconscious. The doctor treated her for five weeks, first seeing her two or three times a day. He examined the child on January 14, 1933, about 19 months after the accident. He found the scarred areas healed, and where the burns had been a keloid formation, one about seven inches long and about a half inch wide. The doctor described a keloid formation as a tumor formation usually occurring in the area of a scar or burn. He tested the heart and found it slightly enlarged. He testified that the plaintiff had sustained a permanent injury to her kidneys, that the heart was involved, and that she must be watched closely.

It is also contended that the verdict of the jury was excessive. As we have already indicated, the jury brought in a verdict of $10,000, and by a remittitur of $3,500, a judgment was entered for $6,500. The evidence bearing upon the question as to whether the judgment for $6,500 was based upon the evidence, it appears from the record that Patricia Jean Hallis was 19 months of age, and according to the testimony of the mother, with the exception of a cold or a stomach ache had always been in perfect health; that when her clothes were taken off by her mother her skin came off with them and she stopped crying within a few minutes ; that at the Belmont Hospital the doctor did not attempt to bandage her for the reason that she was too sore — her body was raw and red, and she was unconscious for four days. Dr. Kvitek, the attending physician, saw the child the day following the accident, and attended her for a period of five weeks. He described her condition and treatment, but it will not be necessary to repeat his testimony, as it is set forth elsewhere in this opinion.

From the evidence as we have it before us, the court ivas fully justified in entering a judgment for $6,500 after a remittitur of $3,500, and the judgment is accordingly affirmed.

Judgment affirmed.

Hall, P. J., and Wilson", J., concur.


text:
    Inger McMahon, Plaintiff in Error, v. Frank L. Smith, Defendant in Error.
    Gen. No. 36,920.
    Opinion filed May 2, 1934.

      Edward Schatz, for plaintiff in error; Harry Hamill, of counsel.
    Fischel, Kahn, Heart & Epstein, for defendant in error.
   Mr. Justice Hebel

delivered the opinion of the court.

This cause is in this court upon a writ of error directed to the superior court of Cook county to review the record, wherein Inger McMahon, complainant, on May 29, 1929, filed a bill for an accounting against Frank L. Smith, defendant. Upon an answer being filed, the chancellor referred the cause to a master in chancery, and upon the recommendations and findings of the master, the chancellor, on July 16, 1931, dismissed the bill for want of equity.

.From the record it appears that the complainant is a resident of Morris, Illinois, and that on or about August 2, 1924, was the owner in fee simple of certain lands situated in Grundy county, State of Illinois, which are fully described in the bill of complaint. This property was subject to foreclosure proceedings then pending. It was also subject to sale by reason of delinquent payment of taxes. Frank L. Smith, one of the defendants, was engaged in buying and selling real estate and farm lands, and making loans thereon. On or about the 2nd day of August, 1924, said real estate was sold in a foreclosure proceeding and the period of redemption was about to expire. The complainant conferred with the defendant Frank L. Smith regarding financial assistance in endeavoring to sell her property, and proposed to sell 240 acres of said land and to procure a loan on the balance. After negotiations, the complainant decided that it would he necessary to sell more of the land, and from the evidence it appears that she finally agreed to sell 400 acres to Frank L. Smith for $140 per acre; that Smith agreed to procure a loan of not more than $34,000 on the remaining 320 acres of land, and thereupon the complainant and J. C. McMahon, her then husband, and the defendant Frank L. Smith entered into a certain agreement in writing as follows:

“Morris, Illinois August — 1924.

“Whereas Inger McMahon and husband have executed a deed to certain lands in Saratoga Township, Grundy County Illinois of even date herewith and whereas it is desired that an agreement concerning the said transfer be executed it is therefore hereby understood and agreed that the undersigned Frank L. Smith will reconvey to the said Inger McMahon the South Half of Section Nine 3A-7 East 3 P. M. in Grundy County, Illinois, and furnish the said Inger McMahon a loan on said premises up to $34,000 on a basis of 5%% and 2%% cash commission with the understanding that if the undersigned Smith can place said loan at a rate of less than 5%% he will be entitled to the difference for the full term of the loan. Said loan to be a first lien on said premises. Said Smith is to allow said Inger McMahon $56,000 for the 400 acres and to be allowed a discount of $140' per acre for any shortage. Said Inger McMahon is to execute a contract of Agency to the said Smith for the said 320 acres to be irrevocable during the term of the said loan and under said contract said Smith is to have entire charge of said half section to rent it, collect the rent, keep the buildings insured, sell the grain, collect the rents make any necessary repairs and out of the income therefrom apply the same on the payment of interest, taxes, insurance and repairs. If for any reason said Smith is unable to negotiate for the redemption of said lands from the foreclosure sale then this agreement is null and void and said Smith will execute a quit claim deed to said Inger McMahon for said lands.”

This agreement was signed by each of the parties. The signatures were witnessed by Frank L. Flood. At the time of the execution of the agreement, complainant and her husband made and executed their quitclaim deed, conveying to said Frank L. Smith the following described real estate: “The Northwest Quarter (NW%) of Section ten (10); the Northeast Quarter (NB%) of Section Nine (9); the Southeast Quarter (SE14) of Section Nine (9); the Southwest Quarter (SWM) of Section 9; and the East Half (E%) of the Southeast Quarter (SE14) of Section Sixteen (16), all in Township Thirty-four (34), North, Eange Seven (7) East of the Third Principal Meridian.”

subject to liens and incumbrances. The deed was duly acknowledged before a notary public, and filed for record in the office of the clerk of the circuit court of Grundy county. Upon the execution of the above agreement, the complainant and her then husband, and Frank L. Smith, entered into a certain agreement dated the 9th day of August, 1924, which is substantially as follows: That by this agreement Frank L. Smith during the term of the loan is hereby constituted and appointed the agent of the complainant to look after, manage and operate the 320-acre tract of land, giving Frank L. Smith full power and authority to lease said land, collect the rent, sell grain, make the necessary repairs, provide for insurance on the buildings, pay taxes and interest on the mortgage on the land described in the contract, and after deducting reasonable compensation for his services, to pay the balance, if any, to the complainant. It also appears that said agency contract was to be irrevocable during the term of the mortgage, provided the complainant and her husband should continue to be owners of said property during said terms.

The contract contains other conditions and provisions, such as if the complainant shall desire to sell property to any proposed purchaser, she will give Frank L. Smith an opportunity to purchase said property at a price equal to that offered by any other person. It also provides for a reasonable compensation, and is signed by the parties and witnessed by S. Thompson and Harry Hamill.

There is evidence that after execution of the quitclaim deed by said complainant to Smith, it was agreed between them that she would convey the said 400 acres of land to the prospective purchasers in separate parcels, and thereupon Smith and his wife conveyed said 400 acres of land to the complainant, and she executed separate warranty deeds, bearing date September 1, 1924, conveying the whole of said 400 acres in separate parcels as described in the deed, to one B. E. Hamilton, one Louise W. Crain, and the balance of said 400-acre tract to one Fred D. Zabel.

That defendant Smith procured a loan of $30,000 for said complainant, which loan was secured by a trust deed bearing date August 1, 1924, and conveying the south half of section 9, described in the trust deed, which was given to secure the principal note of said complainant and her husband for $30,000, bearing the date of said trust deed and due five years after date thereof, with interest at the rate of six per cent per annum. It also appears from the record that on the 8th day of September, 1924, the defendant Frank L. Smith prepared a statement for the complainant, showing the state of the account between them, which said statement was submitted to, and, from the record, appears to have been approved by said complainant, and that this account with Frank L. Smith was an itemized account.

It appears that said Frank L. Smith prepared a second mortgage loan of $5,000 for the complainant, and a statement of this transaction .is contained in the record. A statement was prepared by Smith and submitted' to the complainant, and it appears from the face of this statement that the account was approved by her. This is also an itemized account between the complainant and the defendant Frank L. Smith, and the receipts and expenditures are specifically set forth in the statement.

It also appears from the evidence that from the first statement of account between the parties there was a payment to the complainant of $3,377.73, which payment was evidenced by a check signed by Frank L. Smith dated September 8, 1924, payable to the complainant, by her indorsed and deposited in the Farmers and Merchants National Bank, Morris, Illinois, on September 10, 1924.

It also appears, as shown by said first statement, that $125 was refunded to her, which said sum was charged for commissions on the second mortgage loan, and appears in the second statement.

It also appears that the sum of $3,444.90 shown on the second statement in the record, was paid to the complainant and was evidenced by three checks, one for $200, payable to the complainant, by her indorsed and turned over to Smith to apply on taxes, one for $244.90, also payable to the complainant, which she indorsed and delivered to .Harry Ilamill, her attorney, and which bears his indorsement, and another check for $3,000, which the complainant turned over to one Mrs. O. L. Sangelman.

The complainant denies, however, that she received any of the statements which we have mentioned; she also denies the execution of the deeds conveying the real estate heretofore mentioned. There is evidence in the record that said statements were submitted to the complainant; that she approved the same; that the several items appearing in said statements were properly expended for the benefit of the complainant,- and that she received the balance, as shown by each of said statements appearing in the record. There is evidence that the lands in question were sold for $56,000 to Smith, that all of the transactions took place in the year 1924 and the early part of 1925, and that the complainant did not take legal steps for an accounting against Frank L. Smith 'until she filed the bill of complaint against him on the 29th day of May, 1929, a period of more than four years after the transactions had taken place.

It also appears that the complainant disputes the claim of Frank L. Smith, and contends that she is entitled to moneys received for the grain cut on the land in the year 1924. There is evidence that the grain was stored in the grain elevator at Morris, Illinois, and that the Morris Grain Company of Morris, Illinois, made the distribution of the proceeds of the sale of said grain, and that there was paid to Louise W. Crain, the purchaser of part of the land, the sum of $137.80 to B. E. Hamilton, the purchaser of certain other portions of said lands, the sum of $384.20, and to Fred D. Zabel, the purchaser of the balance of said 400-acre tract, the sum of $407.95, and that said payments were made by the Morris Grain Company at the direction of the complainant, and that defendant Frank L. Smith did not receive any of the proceeds from the sale of said grain.

Objections were filed to the report of the master and also to his supplemental report, which were overruled; and thereafter, upon presentation of the master’s report to the court, complainant was permitted to file exceptions. Upon consideration, the court overruled the exceptions and dismissed the bill for want of equity.

From complainant’s statement in her brief, it appears that she does not question any of the transactions of Smith involving the 320-acre tract of land, its care, income or disbursements, nor does she question the written statement of account made by Smith. Complainant admits that she signed the irrevocable agency for the 320 acres, and that she received credit for both loans on the 320 acres, and that there is no controversy as to the 320-acre tract, the loans thereof, or its care and collection of rents, since 1925, by the defendant Frank L. Smith, but the complainant contends that defendant Smith did not account for the balance of the purchase money collected by Smith from the purchasers of the 400 acres, amounting to $5,000 and also that he did not account for the grain money realized from the 1924 crop on the 400 acres, which it is contended was misappropriated by Smith, and also $500 wrongfully paid to attorney Flood as attorney’s fee alleged to be due Flood from the complainant, and also the excess amount paid to Boyd over the amount due him on his decree of foreclosure against the complainant.

Did the defendant Frank L. Smith, in the sale of the 400-acre tract of land, act as the agent of the complainant? The position of the defendant throughout the transaction has been that he acted as the purchaser of the land in question from the complainant. The acts of the parties will largely determine this question. In the inception of the transaction, it is to be noted that the complainant was sorely in need of funds and, as a result of the complainant’s visits to the defendant’s office, a contract was entered into on August 2, 1924. This contract was signed by the complainant and her husband, and the defendant Frank L. Smith.

From the agreement it appears that defendant Smith was to allow to the complainant $56,000 for the 400 acres described in the agreement, and it follows as a reasonable construction of the entire instrument, which is hereinabove set forth, that the defendant was to pay this price for the purchase of the land, and that a discount was to be allowed for a shortage in the acreage of the land at the rate of $140 per acre. This construction is further supported by a document dated June 24, 1925, signed and acknowledged by the complainant addressed to the defendant.

The complainant in that agreement construes the contract of August 2, 1924, as a contract to sell and convey the land in question to the defendant Frank L. Smith, and the complainant stated in this document, in effect, that Smith contracted to sell part of the 400-acre tract of land to one Fred Zabel, which was to be conveyed by deed direct to Zabel in fulfillment of the Smith and Zabel contract. It finally appears from this written agreement that if Smith was compelled to allow Zabel for a shortage of the land, the complainant agreed to pay the shortage to Smith. From this statement it clearly appears that the complainant understood that the agreement of August 2, 1924, was a contract to sell the land in question to Smith, and was so understood by her when she signed and acknowledged this agreement. The consideration mentioned in the three warranty deeds conveying the several pieces of land described to B. E. Hamilton, Louise W. Crain and Fred Zabel, totals the sum of $61,000. The complainant had knowledge that this sum was received by Smith when she executed and delivered the several deeds to the parties therein mentioned; and when the statement of account was received by her from Smith dated September 8, 1924, and signed and approved by her, she must have known that she was to receive from Smith the purchase price of $56,000.

The first act of a principal when his agent fails to account, is to object to the accounting when it appears that the agent does not fully account for the total sum to be accounted for. This was not done by the complainant, but she accepted a check from Smith for the balance due her. This amount due appears from the statement received by her dated September 8, 1924.

"While the complainant has questioned some of the written exhibits in the record, still there is no evidence that she was unable to read and write. The complainant appears to have been able to comprehend the accounts signed and approved by her, and if she did not understand, it was her duty to investigate and learn the nature of the several transactions. The evidence does not tend to show that the defendant prevented the complainant from ascertaining the truth regarding the several statements and documents furnished to her by the defendant. In the complainant’s brief she does not question the statement of account by Smith, except that the amount received by him from the sale of the 400 acres of land was not accounted for, and further, that the amount received for grain by the several purchasers of the land was also unaccounted for.

There was nothing in the transactions that would indicate fraud in the conduct of the defendant Smith. The contention of the complainant that defendant Smith failed to account for the grain stored with the Morris Grain Company, of Morris, Illinois, is not borne out by the record. There is evidence that the sale proceeds of the grain in question was delivered, as directed by the complainant, to the three purchasers of the 400-acre tract, and the three checks payable to the purchasers of the land were produced by a witness who testified that the money for the grain was paid as directed by the complainant, and that Smith did not receive any of the money. It might be said in this connection the complainant stated to this witness, M. H. Wilcox, that she had sold part of the land to Smith and as a result the defendant Smith was entitled to the money received for the grain. A statement of similar import, namely, that the complainant sold 400 acres of her land to Smith, was made by her to George Bedford, the county judge who took the acknowledgment of the complainant and her husband to the deed conveying the title of her land to Smith. As to the objection of the complainant that the defendant was not justified in allowing a payment of $500 to be made to one Flood without her consent, the defendant’s account dated September 8, 1924, included this $500 payment, and this account was approved by the complainant. The statement listed all disbursements necessary to pay and discharge the judgment lien upon the 400-acre tract, and the amount necessary to effect a redemption from a foreclosure sale, and the balance left in this account was paid to the complainant. It is not disputed that the amount of $500 paid to Flood was entered upon the ledger sheet of the defendant. There is also evidence that ledger sheets were submitted to the complainant, who did not at any time state that the entries in the accounts were not correct. It is clear that the complainant approved the several statements of account, and having done so after full knowledge of the facts, she is not now in a position to claim that fraudulent entries were made upon the books of the defendant Smith.

The law is well settled that this court will not disturb the findings of the court below in a case involving an accounting and consideration of numerous items in the accounting, unless the findings are shown to be manifestly against the weight of the evidence. In the case of Chicago Title & Trust Co. v. Central Trust Co., 312 Ill. 396, the court upon this same question said:

“We simply conclude this part of the case by saying that the law of the case is fully stated in this and our former decision, when we add the further statement that we have recognized the law as settled by this court in numerous decisions that we will not disturb the findings of the master and the court below in a case of this kind, involving an accounting and consideration of numerous items in the accounting, unless such findings are shown to be manifestly against the weight of the evidence. This court has plainly stated in the case of Williams v. Lindblom, 163 Ill. 346, that the findings of fact by the master are conclusive in such a case unless a clear mistake or fraud is shown. ’ ’

The complainant contends that the trial court permitted the defendant to file an amended answer, which, according to complainant’s contention, was a clear abuse of discretion. The court did permit the defendant to file an amended answer, which was filed on June 2, 1930, and after the filing of this amended answer, the complainant did not offer any further evidence upon the issues as they appear from the pleadings, which include the amended answer. The master’s report was filed on January 6, 1931, which was several months after the court permitted the filing of the amended answer, and the rule is that a court may in its discretion permit the pleadings to be amended, provided no prejudice results to any of the parties involved in the litigation. From the record we are unable to find that the complainant was prejudiced by the filing of the amended answer, and we can find nothing in the record which would tend to show that the court abused its discretion when it permitted the defendant to file an amended answer.

The point is made by the complainant that the alleged contract is not enforceable, and could not be enforced by either of the parties to this alleged contract, and therefore is void and contrary to the statute of frauds and the Sales Act in force in the State of Illinois. This question is not a material one upon the state of the record as we have it before us. In the first place, this is not a suit to enforce a contract to convey real property, but is in the nature of a bill for an accounting filed by the complainant against the defendant; and secondly, the complainant conveyed the land by warranty deed to the several parties named therein, and is only now seeking to recover what she claims is a balance of the consideration for the transfer and the amount recovered from the sale of certain grains which were harvested on the land in question. In the consideration of this case we have concluded that the status of defendant Smith was not that of an agent, but of a purchaser of land from the complainant, and from the record it appears that the defendant paid the consideration as a purchaser to the complainant. Therefore, the chancellor did not err in overruling the complainant’s exceptions to the master’s report and in entering the decree dismissing the bill of complaint for want of equity. It follows that the decree must be affirmed.

Decree affirmed.

Hall, P. J., and Wilson, J., concur.


author: Mr. Justice Wilson Mr. Justice Hebel

text:
    The People of the State of Illinois ex rel. Oscar Nelson, Auditor of Public Accounts, Complainant, v. Chicago Bank of Commerce, Defendant. Josephine Glynn, Intervening Petitioner, Appellant, v. Alfred K. Foreman, Receiver of Chicago Bank of Commerce, Appellee.
    Gen. No. 36,717.

      Opinion filed May 2, 1934.
    Harrikgtok & McDonnell, for appellant; Joseph T. Harrington, of counsel.
    Schuyler, Weineeld & Hennessy, for appellee; Lawrence Nelson, Jr., Jack Sidney Morris and Herbert M. Johnson, of counsel.
   Mr. Justice Wilson

delivered the opinion of the court.

This is an appeal by Josephine Glynn, intervening petitioner, from an order entered by the chancellor upon the receiver’s petition finding that $12,920.65, in the hands of an insolvent bank, was a preferred claim in favor of the receiver and directing immediate disbursement before adjudicating as to other preferred claims.

From the facts as shown by the various pleadings and petitions it appears that the Chicago Bank of Commerce had been appointed and was acting as receiver in certain different cases pending in both the circuit and superior courts; that said bank went out of business and closed its doors June 24, 1932, and thereafter one Alfred K. Foreman was appointed receiver of this bank and took charge of its assets. From the records of the bank it appears that at the time of the closing of the Chicago Bank of Commerce there was on hand $27,443.10 in cash and the sum of $66,219.07 due from other banks; that the records of the trust department show a total liability far in excess of the amount on hand in the way of cash and accounts collectible from other banks.

The court found that the sum of $12,920.65, collected by said bank as receiver, prior to its closing, was commingled with the general assets of the bank and that thereupon said assets became a trust fund for the payment of this amount and was, therefore, a preferred and prior claim against the assets of the bank. The chancellor ordered and directed that this amount be paid in full by the receiver of said bank without regard to the allowance of any other preferred or trust claim which may be or has been adjudicated against said bank and that said amount should be immediately disbursed by the receiver prior to payment of any other preferred or trust claims against the bank.

Prior to the hearing of this petition, the intervening petitioner Glynn had filed her petition in said cause setting forth that she was a depositor in the Chicago Bank of Commerce and that the day before the bank closed its doors and while it was still doing business, she presented her check to the bank and demanded payment in full of her account, which she was refused. Upon the hearing of the petition for the receiver, this intervening petitioner asked that her claim be considered before the court ordered a final disbursement of the amount of the funds claimed to be due the receiver Foreman.

The intervening petitioner claims: first, that the receiver is a general creditor and has no right to a preference in the funds of the closed bank; second, that even though the receiver may have a preferred claim it should not be prior to the other preferred claims or trust funds in the hands of the bank; and third, that the order of the court ordering immediate disbursement is erroneous in that the court should have ordered the claim to have been paid in the due course of administration of the receivership and after the court had had an opportunity to pass upon the rights of all other claimants.

It has been insisted that the funds in the hands of the Chicago Bank of Commerce was a preferred claim in favor of the receiver appointed for that institution because of the fact that the funds deposited therein were receivership moneys and, therefore, under the custody and control of the court. In support of this proposition a number of cases are cited based upon the theory that the State by reason of its inherent right of sovereignty has a priority in the payment of claims against the closed bank. We cannot see the application of this principle, however, in the case at bar. When funds in the hands of a receiver are deposited in a bank by such receiver without a direct order of court, they are so deposited at receiver’s risk. 23 R. C. L. (Receivers), sec. 89; Ricks v. Broyles, 78 Ga. 610.

Where moneys have been deposited by the clerk of a court, under an order of that court in a bank which afterwards failed, it has been held that such a deposit did not become a special fund even though the assets of the bank came into the hands of a receiver. Under such circumstances the clerk must share pro rata with the other depositors of the bank. Otis v. Gross, 96 Ill. 612.

Another rule, however, intervenes under the facts in the case at bar. Here the Chicago Bank of Commerce had been appointed a receiver and kept the funds of the receivership among its own assets. A separate account was kept of this fund as shown by the records of the bank. Under such circumstances this bank came under the rule that a receiver having moneys in his hands is bound to keep the fund separate and distinct from moneys of his own. It may therefore be presumed that as receiver of these funds, which it held as such, they were kept intact among the assets in the hands of the bank at the time it closed. It is no longer, under the modern rule, necessary to trace such funds.

The Supreme Court in the case of People v. Bates, 351 Ill. 439, in its opinion, says: ‘ ‘ The modern doctrine as now established is, that where the form of trust property is changed by a fiduciary and the proceeds mingled with the mass of the assets comprising his insolvent estate the cestui que trust may resort to the mass if augmented by the trust property. Sorenson v. Farmers State Bank of Polk, 121 Neb. 532, 237 N. W. 857; Macy v. Roedenbeck, 227 Fed. 346; In re City Bank of Dowagiac, 186 id. 250.”

The Supreme Court of this State in the case of People v. Peoples Bank & Trust Co., 353 Ill. 479, in its opinion, says:

“As to the third point raised or suggested by plaintiff in error, that of tracing the trust fund into the hands of the receiver, there appears to be no dissent among the cases. It is a conclusive presumption in equity that a trustee dissipates or spends his own funds first, before touching or encroaching upon the trust fund. From this it follows that if there was more than the amount of the trust fund on hand at the time the draft was drawn, and at all times thereafter until the closing of the bank, the trust fund must have been included with that which the receiver took over. ’ ’

Under the rule as announced, namely, that a receiver is presumed not to commingle his receivership funds with his own, it is apparent that the receivership fund which constitutes a trust fund is among the cash or assets in its hands at the time of its failure, so that the trial court was not in error in finding that the closed bank, Chicago Bank of Commerce, had funds on hand among which was its receivership moneys collected in the due course of its receivership.

The claim of the intervening petitioner to the effect that its deposit should be construed as a preferred claim inasmuch as it was a trust fund held after demand for payment, has been recognized in various jurisdictions. This is based upon the theory that a bank holds the money of a depositor subject to demand and under the law he is required to pay at once upon the presentation of a check if there are funds sufficient to satisfy it. If demand is made and refused, the bank holds such moneys ex maleficio and as a trust for the benefit of the depositor who made the demand. This demand removes such depositor from the class of general creditors to which other depositors belong. Munn v. Burch, 25 Ill. 35; Johnson v. Farmers’ Bank of Clarksdale, 223 Mo. App. 513, 11 S. W. (2d) 1090; Bryan v. Coconut Grove Bank & Trust Co., 101 Fla. 947, 132 So. 481, 134 So. 229; Claxton v. Cantley (Mo. App.), 297 S. W. 975; Mallett v. Tunnicliffe, 102 Fla. 809, 136 So. 346, 137 So. 238.

From a careful reading of the opinion in the case of People v. Dennhardt, 354 Ill. 450, we are of the opinion that the Supreme Court of this State has recognized this principle. In that case Dennhardt drew a check upon his account and presented it at the bank for payment. Instead of paying the check in money a draft on the Continental Illinois Bank and Trust Company of Chicago was drawn and issued. The next day the drawee bank failed and the draft was dishonored. The Supreme Court held that under the statute in this State, being paragraph 2 of section 13 of “An Act defining the relations between banks and their depositors with respect to the deposit and collection of checks and other instruments payable in money, approved July 8, 1931,” Cahill’s St. ch. 16a, 11 37, the plaintiff Dennhardt became a preferred creditor when the bank charged his account with the amount of his check and issued the draft. The Supreme Court, however, in concluding its opinion, says: “The defendant in error did not request the draft on the Continental Illinois Bank and Trust Company and his right to a preference became fixed regardless of the issuance of the draft.” In other words the depositor, regardless of the statute, by making his demand and being refused, created a situation under which he became a preferred creditor and the bank held his money ex maleficio or as a trust. It cannot be argued that the check of intervenor was an assignment of funds because the check was made out to a drawer. People v. Peoples Bank & Trust Co., 353 Ill. 479.

Holding as we do that the claim of the intervening petitioner was a preferred claim held as a trust by the solvent bank at the time of its failure, it has a right to pro rate together with other preferred claims and the claim of the receiver Foreman pro rata according to the amount of the respective claims, in the funds in the hands of the bank which are found to be subject to the payment of preferred claims. There is in our opinion no reason why the claim of the receiver should have precedence over the claim of other cestui que trusts. The chancellor erred in ordering an immediate disbursement of the funds claimed by the receiver Foreman to the various receiverships. The order should have directed the receiver Foreman to pay this money due the various receivership estates in the due course of the administration of the receivership, and after payment of costs and expenses. People v. Bates, supra. Before proceeding to distribute said fund, the chancellor should have heard the various petitions of others claiming a preference in the assets of the insolvent bank, Chicago Bank of Commerce, as well as evidence as to the claim of the intervening petitioner.

That part of the order finding the receiver Foreman entitled to a preference is affirmed and that part of the order which directs immediate distribution is reversed and the cause is remanded to the circuit court with directions to proceed in conformity with the views expressed in this opinion.

Affirmed in part and reversed in part and remanded with directions.

Mr. Justice Hebel

specially concurring: I concur in the conclusions reached by the court, but am not in accord with the opinion in passing upon the merits of the claim of the intervener and appellant, Josephine Grlynn, which claim is still pending and undisposed of in the trial court, and is not properly before this court on this appeal.

Mr. Presiding Justice Hall concurs in the specially concurring opinion.