text:
    Samuel Baker v. Chicago Title & Trust Company, Trustee, et al. Appeal of Sidney Rubin, Appellant, v. Lena Sherman, Individually and as Trustee, Appellee.
    Gen. No. 32,866.

      Opinion filed December 19, 1928.
    Rehearing denied January 2, 1929.
    Harry C. Diamond and L. L. Smith, for appellant; Russell S. Clark, of counsel.
    Fischel, Kahn, Heart & Epstein, for appellee.
   Mr. Justice Wilson

delivered the opinion of the court.

This is an appeal from a decree in favor of cross-complainant, Lena Sherman, and an order continuing-a receivership for the purpose of collecting rents in order to satisfy the claim of the cross-complainant. The appeal is by Sidney Bubin, purchaser of the equity of redemption, claiming that the court did not have jurisdiction to continue the receivership, nor to enter the decree on the cross-hill. The original hill filed in the cause was entitled, Samuel Baker v. Chicago Title & Trust Co., et al., and was for the foreclosure of a senior trust deed. On June 4, 1927, a decree of sale was entered in the circuit court and, among other things, the decree found the various amounts due to complainant and to certain defendants. Among other things found due were certain notes secured by a trust deed in the amount of $4,869.25 in favor of Lena Sherman, cross-complainant here.

Under the original decree the property was sold by the master for the sum of $24,000, which was insufficient (o pay the amount found due the complainant, Baker. After the payment of certain prior liens and the costs incurred, it appears that there was a deficiency due Baker to the amount of $65.55. The receiver continued in possession and proceeded with the collection of rents. On October 10, 1927, and after the entry of the decree of sale and the order confirming said sale, Sidney Rubin, cross-defendant, by leave of court, filed his intervening petition urging that he had purchased the equity of redemption and asking to be paid the amount of money in the hands of the receiver, after the payment of the deficiency decree and expenses, and also claiming the possession of the premises and the rents therefor during the remaining term of the equity of redemption. On October 24, 1927, on motion of Lena Sherman, the court entered an order granting her leave to file a cross-bill and continuing the receiver in possession.

’ The cross-bill set up the facts substantially as heretofore stated and in addition charged that the mortgagor was insolvent and unable to pay the mortgage debt; that the master’s sale had produced sufficient to satisfy all prior mortgages and that there was nothing left for cross-complainant except the rents arising during the period of redemption. The trust deed, upon which the cross-complaint is predicated, contained the customary clause to the effect that the court had the power thereunder to appoint a receiver for the purpose of collecting rents and income from said property in reduction of the indebtedness secured by the trust deed.

There appears to be but one principal question involved, namely, as to whether or not the court had jurisdiction to permit the filing of a cross-bill in the proceeding for the purpose of collecting rents for the benefit of cross-complainant under her junior mortgage after the entry of the final decree in said cause and the sale.of said property.

An examination of the original bill and the decree filed in said cause reveals the fact that the cross-complainant was a party to said suit and presented her notes and trust deed and the amount found due her thereunder was ascertained and adjudicated by the court. The cross-bill is germane to the original bill and the parties and subject matter the same. The court in its original decree found as a matter of fact that after the sale there was not a sufficient fund out of which to pay complainant’s indebtedness. The court further found, after the sale under the original decree, that there was a deficiency of $65.55. It was not necessary that the original decree should provide therein for a deficiency judgment, in the event the sale was insufficient to pay the amount of the senior mortgage and the liens on said property. This finding could have been entered by the court after the entry of the original decree and after the sale had demonstrated that the property was insufficient to pay the amount of the liens.

Cahill’s Illinois Revised Statutes, chapter 95, entitled, “Mortgages,” paragraph 17, expressly provides as follows:

“And such decree may be rendered conditionally at the time of decreeing the foreclosure, or it may be rendered after the sale and the ascertainment of the balance due.”

The Supreme Court of this State in the case of Ruprecht v. Muhlke, 225 Ill. 188, in its opinion says: rents, issues and .profits of the premises sold, during the period of redemption. In Chicago Artesian Well Co. v. Connecticut Mutual Life Ins. Co., 57 Ill. 424, which was a mechanic’s lien suit, a cross-hill was filed after a final decree, declaring the rights of the parties in respect to their several liens, had been entered; but said cross-bill was not filed with a view to interfere in any way with the operation of that decree, nor did it tend to delay the petitioner in securing his rights under said final decree, hence the cross-bill was regarded as filed in sufficient time. We think the cross-bill was properly filed.”

“The next contention of the plaintiff in error is, that the cross-bill of defendant in error was not filed in apt time, and for that reason it is urged the second appointment of Clettenberg as receiver was improperly made. The general rule is that a cross-bill should be filed in apt time, which would usually be before final decree. (Fread v. Fread, 165 Ill. 228.) In this case, however, no attempt was made, by virtue of the cross-bill, to interfere with the final decree, which had been entered and executed by a sale of the premises prior to the time the cross-bill was filed. The sole object of the cross-bill was to reach, through a receiver, the

The Supreme Court of this State in the case of Chicago Artesian Well Co. v. Connecticut Mut. Life Ins. Co., 57 Ill. 424, in its opinion, says:

“The interests of defendants, so brought into court, are entitled to regard, and should not be denied protection. It should not be made a serious objection to this cross-bill, that it was filed after final decree, when the final decree was rendered February 18, 1868, and the matter complained of in the cross-bill did not take place until January 5, 1870.
“The cross-bill does not seek-to open that decree, nor to disturb any proceeding which has been had in the suit. Its sole purpose is to set aside a sale of the property made to Starr.
“The rules of chancery practice referred to, as to the proper time of filing a cross-bill, to entitle it to be heard with the original bill, and that a defendant cannot, after unnecessary delay, by interposing a cross-bill, postpone the hearing of the original cause, seem to have little pertinency to this case, because the petitioner has obtained its satisfaction, and can not be delayed ; and rules adopted to prevent delay do not apply here. In a case so circumstanced as the one before us, it ought never to be too late to file such a cross-bill, so long as the court has control of the cause,”

This question appears to have been before this court in the case of Eggers v. Adler, 248 Ill. App. 118. From the facts in that case it appears that the cross-bill was filed at a term later than the one at which the original decree of foreclosure and the master’s report of sale was approved and confirmed. The court in its opinion discusses the various cases cited by petitioner herein and appears to satisfactorily answer his contention, namely, that the cross-bill should have been filed within the term at which the final decree was entered, in the negative. The court, in its opinion in that case, says:

“The appellant here attempts to distinguish this and other cases cited by the fact that in these cases the cross-bill was filed and the order appointing the receiver entered within the term at which the final decree of foreclosure was entered. This case is not distinguishable from Ruprecht v. Muhlke, supra, on that ground. The cross-bill there was filed several terms after the decree was entered. In any event, we think that distinction could not avail. While the decree of foreclosure and sale is a final one, it does not necessarily dispose of all the issues in the case or the subject matter of the suit. As to undisposed of matters, the jurisdiction of the court would continue until the whole matter is disposed of, although, of course, further proceedings would not be allowed to change or modify in any way the final decree theretofore entered. The jurisdiction of the court of chancery over undisposed of matters does not end at the expiration of the term at which a particular final decree may be entered.

“We think the court was not without jurisdiction and that the order was equitable and just, and it is affirmed. ’ ’

In the case at bar it appears that the court had not lost jurisdiction of the cause because there had been no final distribution of the fund in the hands of the receiver at the time the cross-complainant filed her bill. The court still had jurisdiction to enter a deficiency decree after the distribution of that amount and the court still had jurisdiction to continue the receiver for the purpose of collecting the rents, issues and profits for the benefit of cross-complainant by reason of the fact that, as defendant in the original cause, her trust deed there in evidence provided that she was entitled not only to the property as security, but to the rents, issues and profits therefrom. The court had the right to consider these provisions in the trust deed of the said cross-complainant, as defendant to the original bill, for the purpose of doing complete equity between the parties. It could have continued the receiver for the purpose of satisfying her claim in the original proceeding, and we see no reason why that court could not continue the receiver for the purpose of satisfying her claim under her cross-bill when it was brought to the court’s attention.

For the reasons stated in this opinion, the decree of the circuit court is affirmed.

Decree affirmed.

Holdom, P. J., and Ryner, J., concur.


source: Caselaw Access Project

author: Mr. Justice Wilson,

license: Public Domain

text:
    Edna W. Hoffman, Appellee, v. Charles W. Gillett, Appellant.
    Gen. No. 32,873.

      Opinion filed December 19, 1928.
    Rehearing denied January 2, 1929.
    Brundage, Landon & Holt, for appellant; Perry B. Brelin and Floyd E. Britton, of counsel.
    Albert Sabath and Charles Hudson, for appellee.
   Mr. Justice Wilson,

delivered the opinion of the court.

The statement of claim charges that plaintiff Edna W. Hoffman, on or about the 11th day of August, 1922, paid to the defendant Charles W. Gfillett $500 for 50 shares of Class A stock of a corporation known as The Turbulator Corporation, upon the representations by the defendant, through his duly authorized agent, that said stock would be listed on the stock exchange within a period of 90 days, or the money of the plaintiff would be refunded. Plaintiff charges that the said stock was never listed and although she has made repeated demands the defendant has failed to return said money. To this statement of claim the defendant filed his affidavit of merits and the cause proceeded to trial before the court, without a jury.

During the course of the trial counsel for the plaintiff asked leave to amend her statement of claim by setting out therein the fact that said stock was not duly qualified under the Securities Act, Cahill’s St. ch. 32, If 254 et seq., and, thereupon, the cause was continued for two days and leave granted plaintiff to file an amended statement of claim and defendant given three days thereafter to answer. A sworn amended statement of claim was filed by the plaintiff March 9, 1928, charging that plaintiff’s claim was for the sum of $500, the same being the amount paid by the plaintiff for 50 shares of stock of The Turbulator Corporation and which was signed by the defendant, as president; charges further that at the time said sale was made it was represented to the plaintiff tiy the agent of the defendant and of said corporation that said stock was Class A stock and would be within 90 days listed upon the New York Stock Exchange; charges further that said stock when delivered to the plaintiff was a temporary certificate and bore the words printed thereon, “Class A,” and that at the time of said sale one Cars-well, the agent and salesman of the defendant and of The Turbulator Corporation, and on behalf of the defendant as his agent, promised that if said stock was not listed, as aforesaid, the defendant would buy back said stock from the plaintiff and return to her the $500.

The amended statement of claim further charges that said stock was not “Class A” stock and was not listed on the New York Exchange and was fraudulent and void under the laws of the State of Illinois; that said stock was, at most, “Class D” stock and the defendant and his agent Carswell, and the corporation of which the defendant was president, did not, as required by law, place on the certificates the words: “Securities in Class D under the Illinois Securities Law.” The amended statement of claim charges that the plaintiff now elects to void said purchase or sale to her and demands that the defendant as seller, and as an officer and director of The Turbulator Corporation, shall repay the amount given for said stock with plaintiff’s reasonable attorneys’ fees. Plaintiff further tenders back said stock in open court.

The defendant filed his answer to said statement of claim denying that the stock was purchased from the defendant and denies that Carswell was his agent and denies that he promised to repurchase said stock within 90 days. Defendant further asserts that said stock was qualified as Class D stock under the Securities Law of the State of Illinois, Cahill’s St. ch. 32, 254 et seq., and charges further that the statute of limitations had run against the filing of said claim. Substantially all of the testimony on behalf of the plaintiff had been heard by the court prior to the continuance of the cause for the purpose of permitting plaintiff to file her amended statement of claim. A witness by the name of Lloyd Taylor testified on behalf of the plaintiff that in June, 1924, he went with her to the defendant’s office and there met Gillett and that the plaintiff said to Gillett that Mr. Carswell had stated that he would take the stock off her hands and that he replied, “My agent hasn’t any authority to tell me what I should do, for right now I am tied up but later on I will try and take it off your hands.”

The plaintiff testified on her own behalf that Cars-well came to her house and told her that if the stock was not listed within 90 days, Gillett would take it .off her hands; that on January 13,1925, she wrote a letter to Mr. Gillett stating that she had been waiting to hear from him since her call at his office concerning the 50 shares of stock; that Mr. Carswell knew all about the matter and had assured her that Gillett would take it off her hands if it was not on the market within 90 days. This letter was introduced in evidence. To this communication a letter was received signed by the secretary of the defendant, acknowledging receipt of the letter. Plaintiff testified that she looked at the stock exchange reports from time to time, but never found the stock quoted. A letter from counsel for plaintiff, addressed to defendant, was introduced in evidence dated March 17, 1925, in which said counsel sought to have some adjustment made of the claim. In answer to this communication a letter was received from one O’Brien, stating that this communication, addressed to Mr. Gillett, under date of March 17th, had been referred to him and that-if plaintiff desired to dispose of her stock she would have to resell it to some one else, as the corporation did not have the power-to deal in its own securities. Both the mother and the brother of the plaintiff testified to the effect that Carswell stated that Mr. Gillett had sent him out to call upon the plaintiff and that if she purchased the stock, Gillett would take it off her hands if it was not listed on the stock exchange within 90 days.

The defendant on his own behalf denied the agency of Carswell and stated that if he was selling stock it was on behalf of the corporation and not as the agent of the defendant. He stated further that Carswell was working on a salary and commission basis for The Turbulator Corporation and that he, the defendant, never received any money from Mrs. Hoffman, nor any person on her behalf. He testified further that he did not receive the $500 in question nor any other moneys from Mr. Carswell and denied that O’Brien represented him as his lawyer or counsel in answering the communication of the attorney for the plaintiff dated March 17, 1925.

The defendant offered in evidence a certificate from the secretary of State, showing that The Turbulator Corporation on May 10, 1922, had filed statements and documents seeking qualifications as Class D securities to the amount of 40,000 shares of Class A stock. The defendant offered in evidence the subscription agreement of the plaintiff to 50 shares of Class A capital stock of The Turbulator Corporation, dated August 11, 1922. This subsequent agreement contained the following provision: “No representations or agreements, verbal or written other than herein contained, will be accepted by the corporation. No salesman has authority to sign, or endorse the name of this corporation. Make checks, drafts and money orders payable to The Turbulator Corporation.”

The subscription agreement bears the signature, as witness, of James Carswell, salesman. The defendant introduced in evidence a receipt made out and delivered at the time of the purchase which acknowledged the receipt of $500 in full payment of subscription to the stock of The Turbulator Corporation. The receipt was signed, “The Turbulator Corporation, by James Carswell.” The plaintiff admits having received this receipt at the time of the purchase. The court found for the plaintiff in the sum of $500 and entered judgment upon the finding and from this' judgment this appeal was perfected to this court.

The cause of action of the plaintiff rests upon the amended statement of claim filed March 9, 1928. The direct charge is to the effect that the sale of the stock was fraudulent and void because of the fact that it did not contain the words on the face thereof, “Securities in Class D under the Illinois Securities Law.” The plaintiff thereupon elected by. said amended statement of claim to void said purchase or sale and demanded a repayment of the money given as a consideration for said stock, together with her attorneys’ fees, and tendered the stock back in open court to the seller.

The Securities Act, Cahill’s St. eh. 32, ft 254 et seq., provides for the recovery of attorneys’ fees in the event the stock does not comply with the act and suit is brought thereon to recover the purchase price. Moreover, it is apparent that plaintiff did not rely upon the original statement of claim based upon the promise of the defendant, by his agent Carswell, that he would repurchase the stock if it was not listed within 90 days. We do not consider it necessary to discuss the question as to whether in fact Carswell was the agent, as, under the view we take of this proceeding, it becomes unnecessary.

The recovery of the purchase price, the tender of the stock in open court, the application for attorneys ’ fees and the demand that the transaction be declared null and void, indicate but one thing, namely, that the action is predicated upon a violation of the Securities Act of the State of Illinois. Such being the case, it is clear that the claim was outlawed by the statute of limitations. The stock was purchased August 11,1922. The amended statement of claim was filed March 9, 1928, over five years after the date of the purchase. There is no force in the contention that the period does not begin to run until after the election of the plaintiff to return the stock. If such were the case, the tolling of the statute could ,be continued indefinitely. Moreover, the position of the plaintiff, that defendant was liable because he had promised and agreed to repurchase the stock if it was not listed within 90 days after the date of purchase, is untenable. The facts show that the purchase was made August 11, 1922, and, giving every favorable intendment to the testimony of the plaintiff, it appears that the first demand- upon the defendant was made in June, 1924, nearly two years after the alleged purchase from G-illett. Suit was not commenced on said claim until June 15, 1925.

From plaintiff’s own testimony it is apparent that she examined the lists of the stock exchange for the purpose of finding out whether said stock was listed and found that it was not. After the expiration óf 90 days she was placed upon notice and was obligated to demand of the defendant that he fulfil his obligation. The law gave her a reasonable time within which to do this, but it required of her that she exercise this right within that period of time. Having waited over a year and a half to make her demand and nearly three years before starting suit, we are of the opinion that that right was not exercised within such period of time as the law could say was reasonable. Ide v. Brody, 156 Ill. App. 479.

For the reasons stated in this opinion the judgment of the municipal court is reversed and judgment will be entered here in favor of the defendant.

Judgment reversed and judgment here.

Holdom, P. J., and Ryner, J., concur.


author: Mb. Justice Boggs

text:
    W. S. Chilvers, Conservator of the Estate of Myron K. Brunson, Appellant, v. Walter Huenemoerder et al., Appellees.
    Gen. No. 7,953.

      Opinion filed December 4, 1928.
    Bunge, Grotefeld & Bunge and Charles Hudson, for appellant.
    Litsinger, Healt & Reid, Benjamin B. Morris, Sherman C. Spitzer and Thomas J. Hoban, for appellees.
   Mb. Justice Boggs

delivered the opinion of the court.

Appellant, as conservator of the estate of Myron K. Brunson,' filed a bill in the circuit court of DuPage county, setting forth that his ward, Myron K. Brunson, was a bachelor, 75 years of age, and the owner of certain real estate in the village of Downers Grove; that for some 20 years he had been employed in the business of house moving and well drilling; that prior to 1924, he had been active in business, efficient and careful; that about the year 1924 he began to show signs of advanced age, was forgetful and indifferent as to business matters and that his condition grew worse; that appellant “is informed and believes that in the spring of the year A. D. 1927, Daniel C. O’Connell and Walter Huenemoerder, doing business as Fort Dearborn Builders, of the City of Chicago, Cook County, Illinois, did through fraud, misrepresentation and undue influence, induce said Myron K. Brunson, who was then 74 years of age, a bachelor, living alone, seriously ill and in a mental and physical condition which rendered him wholly incapable of tending to his matters of business, to sign a contract for the construction of a large flat building”; that appellant “is informed and believes that the building contemplated and which has been partially constructed on said premises should not cost more than $95,000 to build complete”; that at the time of the signing of said contract, said above-mentioned persons, hereafter referred to as Fort Dearborn Builders, “were insolvent and hopelessly involved financially”; that on the 27th day of June, A. D. 1927, said Fort Dearborn Builders, “through fraud, misrepresentation and undue influence, induced Myron K. Brunson to execute a trust deed, dated June 27, 1927, * ® * and to execute and deliver to them the bonds mentioned in said trust deed, aggregating the sum of $100,000; that all said bonds and trust deeds, your orator is informed and believes, were delivered by * * * Fort Dearborn Builders, to the Heitman Trust Company,” and that “its officers, employees and agents, were at the time acquainted with said Daniel C. O’Connell and Walter Huenemoerder, trading as Fort Dearborn Builders, and accepted said trust deed, bonds and other documents, with full knowledge of the financial condition and general reputation of the said * • * * Fort Dearborn Builders, and with full knowledge of the circumstances of said transaction, and the contract between Myron K. Brunson and the said builders ; that the execution and delivery of said above mentioned trust deed, bonds, etc., were obtained from said Myron K. Brunson upon the fraudulent misrepresentation of the * * * Fort Dearborn Builders, to the effect that the money secured from the sale of the mortgages was to be used to pay the cost of the construction of the said building and * * * that no commissions for the negotiation óf the said mortgages were to be charged to said Myron K. Brunson, but that the full face value of said mortgages were to be used to pay the cost of the construction of the building”; that said Fort Dearborn Builders “also fraudulently induced Brunson to execute and deliver to them additional bonds aggregating the sum of $25,000, being part of the $100,000 mentioned in the above trust deed, which were to be subrogated to $75,000 of the above-mentioned bonds, and which last-mentioned bonds your orator believes were obtained by Daniel C. O’Connell and Walter Huenemoerder for their own personal use, and that they have negotiated said bonds at tremendous discounts and have appropriated the moneys received therefor to their own private use; that said Fort Dearborn Builders thereafter on July 26, 1927, procured the said Brunson to execute a trust deed securing notes aggregating $2,306.25”; and also, “by the same fraudulent misrepresentations and undue influence, caused said Myron K. Brunson to execute and deliver to them a, third mortgage trust deed * * * securing notes aggregating the sum of $31,500, and to deliver the bonds secured thereby.”

Said bill further alleges that appellant “is informed and believes that the Heitman Trust Company, a corporation, has made certain payments on said loan, the exact amount of which is unknown to your orator, but that your orator is informed and believes that the advancements amount to about $50,000; that a portion of said $50,000 was obtained by said * * * Fort Dearborn Builders, by. fraudulent affidavits and bogus waivers, said sums so obtained they have also appropriated to their own personal use; * * * that he is informed and believes that said Heitman Trust Company, a corporation, claims the sum of $11,000 as commissions and expenses in advance to make said mortgage of $75,000, and that said Heitman Trust Company, a corporation, has with it on deposit approximately the sum of $12,000, undisbursed, in said loan”; that the Fort Dearborn Builders “by fraudulently misrepresenting to said Myron K. Brunson that they were unable to obtain advancements on said first mortgage induced said Myron K. Brunson to make a further advancement to them of approximately $8,000 in cash, which said Builders agreed to return to said Myron K. Brunson but which they failed, neglected and refused to do, and in order to obtain said $8,000 the said builders, through fraudulent misrepresentation induced said Myron K. Brunson to mortgage and dispose of all the remainder of his property, and that he is now destitute and has no money with which to complete said building, nor any money for the necessaries of life. * * ”; that said building has been partially erected; that there are now outstanding more than $20,000 in unpaid accounts, and that it will require approximately $25,000 to complete said building; “that said Heitman Trust Company refuses to make any further payments on said loan, and that the Fort Dearborn Builders have abandoned and refuse to complete said building”; that appellant is informed and believes that said Fort Dearborn Builders “have negotiated the above trust deeds and notes, and have obtained thereon approximately the sum of $47,000, which they have appropriated to their own personal use.”

Said bill named as parties defendant said Fort Dear-born Builders, Heitman Trust Company, Lake View Trust & Savings Bank, “unknown owners and holders of the notes and bonds secured by” the trust deeds mentioned, and Chicago Title & Trust Company, and prayed “that the above mentioned mortgages or trust deeds be vacated and set aside and be declared to be absolutely null and void; that the notes and bonds secured by said trust deeds be also declared null and void; that the holders of the same be decreed to surrender them for collection; that the contract between said Myron K. Brunson and Daniel C. O’Connell and Walter Huenemoerder, doing business as Fort Dear-born Builders, * * * be decreed to be surrendered by said builders and canceled, and that the same be decreed to be absolutely null and void; that an accounting be taken in this behalf by this honorable court, and that the equities of the parties hereto may be ascertained, and that your orator may have such other and further relief as to the court may seem meet.”

To said bill appellees Heitman Trust Company and Chicago Title & Trust Company filed demurrers, general and special, which were sustained and, the complainant electing to abide his bill, a decree was entered dismissing the same. To reverse said decree, this appeal is prosecuted.

The question here for determination is whether, on the allegations of the bill, the court erred in sustaining said demurrers.

The bill disclosed that the contract between Brunson and the Fort Dearborn Builders was executed prior to the appointment of said conservator. While the bill disclosed that the contract had been partially performed and the consideration therefor partially paid, there is no allegation of restoration or offer therefor.

Cahill’s'St. ch. 86, 15, provides: “Every contract made with an idiot, lunatic or distracted person before such finding, or with a drunkard or spendthrift made after the application for the appointment of a conservator, may be avoided, except in favor of the person fraudulently making the same.”

Contracts therefore, made with an insane, feeble minded or distracted person, prior to a judicial finding, are voidable and not void. Burnham v. Kidwell, 113 Ill. 425-428; Paulen v. Springfield Consol. Ry. Co., 166 Ill. App. 382-383; Jordan v. Kirkpatrick, 251 Ill. 116-120.

As said building had been partially constructed and partially paid for, it would be inequitable to cancel said trust deeds and to declare the bonds secured thereby null and void, without restoration on the part of Brunson, there being no allegations that Heitman Trust Company was connected with the alleged fraud and misrepresentation. '

It is well settled that a party to a contract, who seeks to rescind it on account of fraud practiced on him, must tender back what he has received under the contract, so that the other party may be placed in the same position in which he was before the contract was entered into. Huiller v. Ryan, 306 Ill. 88, citing Brady v. Cole, 164 Ill. 116; Hansen v. Gavin, 280 Ill. 354; Wanegar v. Bollenbach, 180 Ill. 222.

The allegation of fraud and of the knowledge of Heitman Trust Company with reference to the transaction in question is made on information and belief. Such allegation is not sufficient on which to base a decree setting aside said trust deeds and declaring the bonds secured thereby null and void, without an offer of restoration, and the court did not err in so decreeing. Scanlan v. Cobb, 85 Ill. 296; Burnham v. Kidwell, 113 Ill. 425-429; Eldredge v. Palmer, 185 Ill. 618-620; Ronan v. Bluhm, 173 Ill. 277-287; Jordan v. Kirkpatrick, 251 Ill. 116-120.

It will also be observed from an examination of said bill that the charges of fraud and misrepresentation are on information and belief only. This is not sufficient. Murphy v. Murphy, 189 Ill. 360-365; Grabarski v. Stankowicz, 179 Ill. App. 45-47; Smith v. Brittenham, 98 Ill. 188. In Murphy v. Murphy, supra, the court at page 365 says:

‘In alleging fraud, it is well settled, both at law and in equity, that the mere general averment, without setting out the facts, upon which the charge is predicated, is insufficient. * * * It is essential that the facts and circumstances which constitute it (the fraud) should be set out clearly, concisely, and with sufficient particularity to apprise the opposite party of what he is called upon to answer.’ (9 Encyc. of Pl. & Pr. pp.686, 687; Brooks v. O’Hara, 8 Fed. Rep. 529; Jones v. Albee, 70 Ill. 34; Klein v. Horine, 47 id. 430.) * * * ‘A mere statement that the plaintiff is informed, or is informed and believes, puts in issue only his information and belief, and not the truth or falsity of the facts thus referred to.’ ” (Walton v. Westwood, 73 Ill. 125; 3 Encyc. of Pl. & Pr. p. 363.)

There are no facts set forth on which the charge of fraud and misrepresentation is based in connection with the procuring of the contract with Brunson for the erection of said apartment. The only allegation tending to show that said contract should not have been entered into is that, at the time of entering into the same, Brunson was not physically and mentally capable of transacting business. There is no allegation that the contract was unfair or unreasonable.

Another charge in the bill is that the Fort Dearborn Builders procured said bonds and "trust deed from the said Brunson on the understanding that no commissions would be charged for the negotiation of the mortgages, but that the full face value thereof should be used to-pay the costs of said buildings. What their intentions were, or what they had represented their intentions to be, was a representation with reference to a future matter, and was not a representation of fact. In Murphy v. Murphy, supra, the court at page 364 says:

“The law upon this subject is well settled. Kerr, in his work on Fraud and Mistake, * * * says: ‘As distinguished from the false representation of a fact, the false representation as to a matter of intention, not amounting to a matter of fact, though it may have influenced a transaction, is not a fraud at law, nor does it afford a ground for relief in equity. ’ The foregoing statement of the law has been quoted with approval by this court in the following cases, to-wit: Gage v. Lewis, 68 Ill. 604; People v. Healy, 128 id. 9; Haenni v. Bleisch, 146 id. 262. A false representation, within the meaning of the law, must be a representation as to an existing or past fact, and not merely a promise to do an act in the future. ‘A failure to comply with such a promise does not constitute fraud. The general rule is that, to amount to fraud, there must be a willful, false representation as to an existing or past fact.’ (Murray v. R. P. Smith & Sons, 42 Ill. App. 548.)
“In Gage v. Lewis, supra, it was said ‘that to warrant an action for a deceitful representation it must assert a fact or facts as existing in the present tense. A promise to perform an act, though accompanied at the time with an intention not to perform, is not such a representation as can be made the ground of an action at law. The party should sue upon the promise, and if this be void he has no remedy.’ (Gallagher v. Brunel, 6 Cow. 346.) Even if at the time when such representations, amounting to a mere promise to do an act in the future, are made, it is not intended to comply with them, it is but an unexecuted intention, which has never been held of itself to constitute fraud. ’ ’

It is insisted by counsel for appellant that said bill was a bill for an accounting, and should have been sustained as such. An examination of the bill discloses that its real purpose was to set aside said trust deeds and make null and void the bonds secured thereby, and that the accounting prayed for was incidental thereto. As to the parties filing said demurrers, the court did not err in sustaining the same. Appellant had the right to amend his bill, if he had seen fit so to do, but he elected to abide the same, and the court therefore, under the law, was fully warranted in dismissing said bill.

For the reasons above set forth, the decree of the trial court will be affirmed.

Decree affirmed.


author: Mr. Presiding Justice Barry

text:
    Rhoda Mitchell, Guardian, Appellant, v. W. O. Eareckson, Appellee.

      Opinion filed July 16, 1928.
    Additional opinion filed September 12, 1928.
    Rehearing denied September 12, 1928.
    Jambs T. Roberts, for appellant.
    Farmer & Klingel, for appellee.
   Mr. Presiding Justice Barry

delivered the opinion of the court.

Joseph Mitchell sued appellee to recover for personal injuries and for the injury of his automobile alleged to have been sustained in a collision that occurred between his automobile and that of appellee, on December 31, 1926. The cause was tried before a jury on November 8, 1927, and there was a verdict of not guilty. No motion for a new trial was filed and judgment was entered on the verdict in favor of appellee on December 30, 1927. '

A few days later, and at the next term of the court, appellant herein filed her motion in the nature of a writ of error coram nobis. It was averred in the motion that J oseph Mitchell was adjudged insane and incapable of managing his affairs by the probate court of St. Louis county, Missouri, on the 23rd day of December, 1927; that to the April term, 1927, of said court, a certain suit, in which the said J oseph Mitchell was plaintiff and appellee herein was defendant, was begun and a trial was had on the issues joined on November 8, 1927; and that on December 30, 1927, a judgment was rendered in favor of appellee herein; that at the time of the trial of said cause on November 8, 1927, the said Joseph Mitchell was insane and incapable of managing his affairs; that the fact that he was insane at the time of the trial of said cause was not known to the court or the judge thereof who presided at the trial of said cause, and the fact of the insanity of the said Joseph Mitchell was not known to the attorney who appeared and tried said cause for and on behalf of the said Joseph Mitchell. The mdtion asks that for the reason aforesaid the judgment in the said cause of Joseph Mitchell versus appellee herein, be set aside and held for naught and that said cause be reinstated on the docket of said court for further proceedings, etc.

On the hearing of the motion aforesaid, appellant offered some affidavits which tended to show some mental incapacity on the part of Joseph Mitchell which is alleged to have existed since the date of his injury, December 31, 1926.

While appellant averred in her motion that the fact that the said Joseph Mitchell was insane at the time of the trial was not known to the court or the judge who presided at the trial, yet she offered no evidence in support thereof. That was an essential element and without proper proof thereof she would not be entitled to any relief under section 89 of the Practice Act, Cahill’s St. ch. 110, fí 89.

A motion under that section of the statute to set aside a judgment for an error of fact must set up and rely upon such fact or facts as do not appear upon the record and are unknown to the court, and which, if known, would have precluded the rendition of the judgment. People v. Noonan, 276 Ill. 430. The motion amounts to a declaration in the new suit to reverse or recall the judgment it is intended to correct, and such suit is independent of the proceeding in which the judgment sought to be set aside was rendered. Harris v. Chicago House Wrecking Co., 314 Ill. 500.

Appellant verified her motion but inasmuch as the motion stands as a declaration in a new suit, the verified motion is not evidence of the averments therein contained. The motion is not evidence, although sworn to, as its office is merely to point out the errors of fact on which relief is sought. 34 C. J. 401; Hicks v. Haywood, 4 Heisk. (Tenn.) 598. A sworn petition for a writ of error coram nobis is only a pleading in the ease, and is not proof of the matters alleged in it. Johnson v. Straus Saddlery Co., 2 Ala. App. 300, 56 So. 755.

The gist of appellant’s motion is that Joseph Mitchell was insane prior to the time he brought suit against appellee and that he continued to be insane down to the time the court rendered judgment in that case and from thence hitherto and that the trial court was not aware of the fact that the said Joseph Mitchell-was insane prior to the entry of the judgment. So far as the evidence shows the court may have been informed of .the alleged insanity and may have appointed a next friend or guardian ad litem to prosecute the suit in the name of Joseph Mitchell. The presumption is that the trial court followed the law and this presumption should prevail until the fact is shown to be otherwise.

Under the state of the. record in this case, appellant is asking this court to presume that the trial court did not know that Joseph Mitchell was insane prior to the entry of the judgment in his case against appellee and that the court made no order appointing a next friend or guardian ad litem to prosecute the suit for Mr. Mitchell.

Where a minor was sued and a judgment recovered against him, a motion in the nature of a writ of error coram nobis was filed. The ground of the motion was that the defendant was under the age of 21 years at the time the judgment was rendered and that the court was not advised thereof, and that the defendant appeared by attorney and not otherwise. Those facts were shown by affidavits incorporated in a bill of exceptions. The court said: ■ “The question whether or not plaintiff in error appeared only by an attorney, is one which underlies the entire merits of the application, and can be'determined by us only by inspection of the record itself. That record was before the court below, forming an essential and indispensable part of the grounds of decision. If indispensable there, it must be here, in determining the correctness of that decision. It is no answer to say that plaintiff in error swore that he appeared only by attorney, and no affidavit was filed contradicting that statement; because, if a score of witnesses had sworn to the same statement, and the record showed to the contrary, the latter would prevail. *' * * Inasmuch as the fact as to how he appeared in the cause, whether by attorney or guardian, could be properly ascertained only by the record in that cause, and as he has seen fit not to have it brought up, he must fail in his assignment of error.” Mains v. Cosner, 67 Ill. 536. To the same effect see Wettrick v. Martin, 181 Ill. App. 94.

Appellant has wholly failed to show that the trial court in the case of Joseph Mitchell versus appellee herein did not appoint a next friend or guardian ad litem to prosecute the suit in behalf of Mr. Mitchell. Under the cases last above cited that proof can be made only by the production of the record in that ease. The record was not produced on the hearing of the motion, was not offered in evidence, and is not contained in the transcript of the record filed in this cause. The only showing as to what occurred in the original cause is a recital that on November 8, 1927, there was a trial by jury and a verdict of not guilty and that on December 30, 1927, the plaintiff in that cause was given leave to withdraw a motion in the nature of a writ of error coram nobis and that thereupon the court entered judgment on the verdict.

The recital to the effect that the court gave the plaintiff leave to withdraw his motion in the nature of a writ of error coram nobis on December 30, 1927, which was one week after a guardian had been appointed for him, indicates that before the court rendered judgment a motion similar to the one now under consideration had been filed in the original cause.

If the alleged insanity of Joseph Mitchell was brought to the knowledge of the court before entry of judgment, then a motion in the nature of a writ of error coram nobis will not lie. In such case there is nothing upon which to predicate such a motion. Graves v. Graves, 255 Mo. 468, 164 S. W. 496. If the facts were known to the court it would be an error of law in •the court, and should for that reason be taken to a higher tribunal for reversal, instead of making application to the court itself. Asbell v. State, 62 Kan. 209, 61 Pac. 690; State v. Stanley, 225 Mo. 525, 125 S. W. 475. At any rate it appears from the record that Rhoda Mitchell is the wife of the said Joseph Mitchell and was present in court at the time the case was on trial, and that after the verdict of the jury on December 23,1927, she filed a petition upon which she was appointed guardian of the said Joseph Mitchell. Her letters of guardianship are dated December 23, 1927. She was guardian for seven days before the court rendered judgment upon the verdict in the original cause. It is the universal rule that if a fact be known prior to the entry of judgment, or by reasonable diligence it might have been known prior to the entry of judgment, such fact cannot be relied upon under the common-law writ of error coram nobis to set aside such judgment. Jeude v. Sims, 258 Mo. 26, 166 S. W. 1048; Reed v. Bright, 232 Mo. 399,134 S. W. 653. The same rule is stated in 5 Encyc. Pl. & Pr. p. 29.

For the reasons aforesaid the trial court' did not err in overruling appellant’s motion, and the judgment is affirmed.

Affirmed.

Additional Opinion on Denial oe Petition eor Rehearing.

Appellant insists that the averments of her motion should be taken as true because they were not denied but were admitted by appellee to be true by moving the court to strike her motion from the files. She did not so regard the matter in the trial court, but voluntarily offered some evidence in support of her motion the same as if the allegations thereof had been formally denied. After she rested, appellee offered in evidence a motion to strike appellant’s motion from the files and without any ruling thereon appellee undertook to disprove the alleged facts sought to be proved by appellant. Both parties proceeded on the theory that the truth of the averments of appellant’s motion was in issue. That being true appellant cannot be heard to say, on this appeal, that the facts were not in issue. Devine v. Chicago City R. Co., 237 Ill. 278.

Appellant says that the verdict of the jury was the rendition of a judgment within the meaning of section 89 of the Practice Act, Cahill’s St. ch. 110, If 89, without further action on the part of the court. That suggestion is made to create a theory that the cause had gone to final judgment more than one month before appellant was appointed guardian. • The contention is unsound. It is the province of the court, and not the jury, to render a final judgment in a cause. Appellant’s motion was filed under section 89 of the Practice Act which provides that such a motion may be made at any time within five years after the rendition of final judgment. Until the court renders judgment upon a verdict-there is no final judgment within the meaning of that statute. It was held, as early as 1839, that the verdict of a jury is not a final judgment. Harrison v. Singleton, 2 Scam. (3 Ill.) 21.

The petition for rehearing is denied.


author: Mr. Justice Scanlan

text:
    J. Iva Hilyard, Appellee, v. B. B. Redfield et al., on Appeal of Benjamin Krisolofsky and Anna Krisolofsky, Appellants.
    Gen. No. 32,826.
    Opinion filed December 31, 1928.
    Rehearing denied January 11, 1929.
    Epstein, Feiwell, Arvey & Sachs and Meyer N. Rosengard, for appellants; Maurice S. Dolin, of counsel.
    Harry A. Biossat and Nels H. Olson, for appellee.
   Mr. Justice Scanlan

delivered the opinion of the court.

J. Iva Hilyard, plaintiff, sued B. B. Redfield and Benjamin Krisolofsky and Anna Krisolofsky, defendants, in the municipal court of Chicago in a contract action. The case was tried before the court without a jury. At the close of the plaintiff’s case, on motion of the plaintiff, the suit was dismissed as to Bedfield. There was no evidence offered by any of the defendants. The court found the issues against the defendants, the Krisolofskys, and assessed the plaintiff’s damages at the sum of $500. Judgment was entered on the finding and this appeal followed.

The plaintiff and the defendants, the Krisolofskys, on January 26,1925, entered into a written contract by which the plaintiff agreed to purchase certain property in Chicago, and the defendants agreed to sell said property and to convey a good title by general warranty deed. The contract provides, inter alia, the following: “Said purchaser has paid Five Hundred Dollars, as earnest money, to be applied on such purchase when consummated * * *. In case material defects be found in said title, and so reported, then, if such defects be not cured within sixty days after such notice thereof, this contract shall, at the purchaser’s option become absolutely null and void, and said earnest money shall be returned; notice of such election to be given to the vendor * * *. This contract and the said earnest money shall be held by B. B. Bedfield for the mutual benefit of the parties concerned.” After the contract was signed by the plaintiff and the Krisolofskys, the plaintiff gave to Bedfield her check in the sum of $500, payable to the order of Bedfield. The latter cashed the check and retained the money. Upon the trial the plaintiff proved that the building upon the premises in question encroached upon the adjoining lot; that she had notified the Krisolofskys of the defect and that they did not cure the same within 60 days, and that thereupon the plaintiff had rescinded the contract and demanded the return of the earnest money. Not receiving the. same, this suit followed. In the affidavit of merits filed by the Krisolofskys they admit “that a survey was made of the said premises after the said contract was made, and the building on said premises was found to encroach on the street and sidewalk three inches,” and they aver that the $500 was left with Redfield for the mutual benefit of the plaintiff and the defendants Benjamin Krisolofsky and Anna Krisolofsky, and that Redfield never turned over the $500 to them, and they deny that they are indebted to the plaintiff in any sum. Upon the trial Redfield contended that he was not a party to the written contract and was not bound by its terms.

The defendants contend: “The defendants submitted certain propositions of law which were marked refused by the court. These propositions were based upon the theory that Redfield, under the terms of the contract, was the agent for both parties; that he held the fund of money as such agent, and that in the event the sellers did not comply with the conditions of the contract, that he, and he alone, would be liable for the return of said fund,” and that therefore the court erred in marking these propositions, “refused.”

The plaintiff contends that Redfield was not a party to the contract and that the fact that the plaintiff may have a claim against him for the $500 does not void or change the legal liability of the Krisolofskys under the terms of the written contract; that the right of the plaintiff to recover against the Krisolofskys is based upon the terms of the contract; that as the defendants concede that material defects were found in the title and that they did not cure the same within 60' days, and that the plaintiff had a right under the terms of the contract to declare it null and void, it thereupon follows from the terms of the contract that the plaintiff was entitled to the return of the earnest money, and that it is for a breach of this provision that she sues.

Counsel for each side state that they have been unable to find any authorities directly bearing upon the point involved and that this court must determine the question by an interpretation of the contract.

The defendants concede that the plaintiff is entitled to the return of the $500 but they contend that she, under the terms of the contract, can sue only Redfield for it, and in support of this position they stress the point that the plaintiff had a right of action against Redfield for the $500. While Redfield was not a party to the contract, nevertheless, the plaintiff would have a right of action against him, not upon the theory that there was a contractual relation between Redfield and the plaintiff, but upon the principle that Redfield has money in his possession which ex aequo et bono he has no right to retain and which belongs to the plaintiff. In our judgment the mere fact that the plaintiff had a right of action against Redfield is of no importance in determining the question as to whether the plaintiff can recover against the Krisolofskys in the present suit. It is admitted that through no fault of the plaintiff, and through the fault of the defendants, the sale of the property was never consummated and that the plaintiff had the right to rescind under the contract. Therefore the provisions of the contract that relate to a consummated sale (not set forth in this opinion) are not material in determining the instant question. The contract provides that “in case material defects be found in said title, and so reported, then, if such defects be not cured within sixty days after such notice thereof, this contract shall, at the purchaser’s option become absolutely null and void, and said earnest money shall be returned.” (Italics ours.) The meaning of the italicized language is plain, and the use of the word “returned” is significant and important. Who was to return the $500 to the plaintiff? Redfield was not a party to the contract. The only reasonable interpretation of the language in question is that the defendants, the only parties to the contract, save the plaintiff, were to return the $500 to the plaintiff. It is for damages for a breach of this provision of the contract that the plaintiff is suing. In our judgment, the action of the trial court in marking the propositions of law in question “refused,” and in entering judgment for the plaintiff, was justified, under the contract and the undisputed facts of the case. The defendants have not questioned the amount of the damages found by the court.

The judgment of the municipal court of Chicago is affirmed.

Affirmed.

Gridley, P. J., and Barnes, J., concur.


author: Mr. Presiding Justice Niehaus

text:
    The People of the State of Illinois, Defendant in Error, v. Harry W. Foster, Plaintiff in Error.
    Gen. No. 8,204.

      Opinion filed July 2, 1928.
    G. G. Ginnaven, for plaintiff in error.
    Hugh Green, State’s Attorney, for defendant in error.
   Mr. Presiding Justice Niehaus

delivered the opinion of the court.

In this case Harry W. Foster, the plaintiff in error, was convicted in the county court of Morgan county under the fourth count of an indictment charging him with a violation of the Prohibition Act, Cahill’s St. ch. 43, namely, that he unlawfully had in his possession “certain intoxicating liquor, to-wit, certain beer containing more than one half of one percentum of alcohol by volume.’’ The plaintiff in error was thereupon sentenced to pay a fine of $1,000.

The indictment and conviction is based upon a search and seizure carried on with reference to the commission of the offense in a dwelling house situated on what was known and described as the “Thompson farm,” situated near Jacksonville, and owned by the plaintiff in error. In reference to the search and seizure it appears Grant Graff, the sheriff of Morgan county, who conducted the same, testified concerning it as follows: “I am the Sheriff of Morgan County. I was out to the farm on the 22nd and 23rd of March, 1927. I had a Search Warrant the second time I was there. We found a lot of sloppy stuff and I don’t know what to call it. We took two cans out of the vats and sent them out to the Illinois College.” On cross examination he further testified: “On March the 22nd, I and two officers went through the house and barns without a Search Warrant, then left an officer in charge, returned to Jacksonville and on March 23rd secured a Search Warrant, then returned to the farm with the State’s Attorney. * * * Harry W. Foster did not live on this farm, but lived about a % or % miles away. There was no one found in possession of this sloppy stuff and no one was arrested under the Search Warrant.”

W. S. Leavensworth testified that he was professor of chemistry at the Illinois College, and that the samples of the sloppy stuff submitted to him for anaylsis contained alcohol. One sample contained 6 and 35-100ths per cent by volume, and the other 4 and 90-100ths per cent by volume. The only evidence adduced on the trial to connect the plaintiff in error with the alleged possession of the sloppy stuff described as beer mash was the testimony of Leonard Hill, deputy circuit clerk, which was to the effect that the record of a deed showed that plaintiff in error bought the farm in question on March 3, 1922.

William Gr. Pendall was also called as a witness, and testified: “I live in Alexander, and have known the defendant for about 8 years, I live about % a mile from him. I live across the road from the Thompson farm. In November, 1926, I noticed a good deal of hauling. I did not pay much attention to it. I also saw the defendant with a team pulling out a truck that was stuck in the mud. On Feb. 2, 1927, after returning from the Waltman auction sale, I milked, then that night I heard defendant’s voice over by the farm. I did not see the defendant over on the Thompson farm between November and March 23rd. * * * On February 2nd, I was about an 8th of a mile away and heard talking down on the farm that sounded like the voice of the defendant.”

Mrs. N. M. Pendall also testified that she was the wife of William Pendall and had known the defendant about nine years; that in November, 1926, he borrowed a scraper to grade a road down by the Thompson farm; that about the middle of November she saw the defendant help pull out a truck that was stuck in the mud, and that on February 2, 1927, at night after the Wait-man sale she heard the defendant’s voice down on the Thompson farm. This was all the evidence adduced that plaintiff in error was guilty, and the record contains no evidence that he had possession or control directly or indirectly of the beer mash which was seized under the search warrant by the sheriff. The only evidence adduced by the People which in any way connects the plaintiff in error with the vats containing beer mash on the premises in question is that at the time of the search and seizure he was the owner of the premises.

The plaintiff in error testified that he was the owner of the Thompson farm, but had never lived on it; that it had been occupied by tenants; that Allie Moore occupied it in 1924; that Tony Keifer occupied it in 1925; that Ed Robinson occupied it in 1926; and that Robinson vacated it about November 15th; that it was thereupon leased to Virgil McCawley in November, 1927, and that McCawley was in possession as the tenant after that time; that he had not been on the farm after November 15, 1926; and had no knowledge about any vats or any use made of the farm for the purpose of violation of the law.

Before the trial a motion was made to quash the search warrant, which was overruled. Afterwards the complaint and search warrant and the evidence procured by means of the search and seizure were admitted in evidence against the plaintiff in error on the trial. The search warrant in question was issued upon the complaint of the sheriff, and the basis of the complaint upon which it was issued set forth: ‘ ‘ That said complainant has just and reasonable grounds to believe and does believe that intoxicating liquor is now unlawfully manufactured at and within certain premises consisting of a parcel of land, dwelling house and out buildings including sheds located on said real estate in the west half of section 12 of township 15 North and Range 9 west of the 3rd Principal Meridian, said dwelling house being a two-story frame house located about one-fourth of a mile north of the public road leading from Jacksonville, Illinois, to Springfield, Illinois, and near the east line of said half section, said premises containing in all 28 and 94-100ths acres, being a part of the real estate of George W. Foster, late of said county of Morgan in the State of Illinois, and by him theretofore conveyed to Harry W. Foster, and now owned by said Harry W. Foster, in the county of Morgan,” etc.

The search warrant issued in accordance with this complaint is as follows: “We command you, in the name of the People of the State of Illinois, taking with you the necessary and proper assistance in the day time, to forthwith enter the said premises hereinbefore described, and make diligent and careful search for intoxicating liquor and any mash, still or other property hereinbefore described and seize and bring any and all intoxicating liquor there found, and all vessels containing the same, and all property, implements, furniture and vehicles kept or used for the purpose of violating or with which to violate, any law of this state, there found, and any and all persons, if any there be, in whose possession they are found, forthwith before me at my office in Jacksonville, Illinois, or before some other judge or justice of the peace having cognizance of the case, to be dealt with according to law.”

The complaint was clearly insufficient to justify the issuing of a search warrant. It does not state the facts which constitute the reasonable grounds of the belief of the complainant that intoxicating liquor was then unlawfully manufactured in the dwelling house to be searched, and does not charge the plaintiff in error with any offense in connection with the manufacture of such intoxicating liquor, nor with having illegal possession thereof. The search warrant is the same in scope and character as the one condemned by this court in Hirschfield v. People, 241 Ill. App. 439, and by the Supreme Court in People v. Elias, 316 Ill. 376. The Supreme Court in commenting on the illegality of the search and seizure proceedings in the Elias case said:

“The complaint filed in this case does not charge that Anton Elias, or any other person, has committed a crime. It merely states that the affiant believes that intoxicating liquors are to be found in a building occupied, owned or controlled by Elias. The fact that Elias owned the building and that intoxicating liquor was kept in it would not subject him to the penalties of the law unless the liquors were kept there with his knowledge for some prohibited purpose. Notwithstanding the failure of the complaint to charge any person with a crime, a general warrant was issued on the filing of the complaint, directing the sheriff to arrest any and all persons found in the premises in the event intoxicating liquor was found there. It was such general warrants issued by the officers of the Crown in England that caused the American people to demand that the Federal Constitution specifically prohibit the issuance of a warrant except ‘upon probable cause supported by oath or affirmation and particularly describing the place to be searched and the persons or things to be seized.’ ” And the court further said: “The verified complaint must state the facts on which the complainant bases his belief that the articles sought to be seized are concealed by the accused, with sufficient definiteness so that if it is false perjury may be assigned on the affidavit.” People v. Prall, 314 Ill. 518.

It is evident from the foregoing authorities that the search and seizure proceedings in question were illegal, and the court should therefore have quashed the search warrant. And it was error to admit in evidence on the trial the articles procured by this unlawful search and seizure. People v. Brocamp, 307 Ill. 448. But the admission of this evidence was erroneous for another reason, namely, that there was no proof which tended to show that plaintiff in error was in the possession or control of the alleged intoxicating liquor or beer mash in question. “The burden rests upon the People to prove that the defendant committed the crime set forth in the indictment, by proof, beyond a reasonable doubt, of all the material and essential facts constituting the crime.” People v. Cramer, 298 Ill. 509. The same requirement of law pointed out applies to charges made for violation of the Prohibition Act, Cahill’s St. ch. 43, as well as any other violations of the law which are criminal in character.

For the reasons stated, the judgment of conviction is reversed.

Judgment reversed.


text:
    The People of the State of Illinois, Defendant in Error, v. S. F. Ayers, Plaintiff in Error.
    Gen. No. 8,207.

      Opinion filed July 2, 1928.
    William E. Isley, for plaintiff in error.
    Everett Connelly, State’s Attorney and H. J. Buxbaum, Special State’s Attorney, for defendant in error.
   Mr. Presiding Justice Niehaus

delivered the opinion of the court.

The plaintiff in error, S. F. Ayers, on the 7th day of August, 1927, attended the Old York reunion in Clark county with his family. He went to the reunion by automobile and got there in the evening of the same day. He parked his automobile, and he and his family proceeded to the grounds where the reunion was held. Later in the evening an automobile license inspector, in company with a deputy sheriff, “inspected” the plaintiff in error’s car and discovered bottles under the front seat, which were apparently filled with some kind of liquor. This was reported to the sheriff, who thereupon came out and searched the automobile and found seven pint bottles containing liquor under the front seat of the plaintiff in error’s car. The search was made without any search warrant, and the plaintiff in error was placed under arrest after the search of his car and his car was seized by the sheriff, and he was taken to the county seat; subsequently an information was filed by the state’s attorney in the county court of Clark county, charging him with illegal possession of intoxicating liquor, and of unlawful transportation of the same. The case was set for trial for the 15th day of September, 1927. Before the trial, plaintiff in error filed a petition to impound the bottles of liquor seized and exclude the evidence which had been procured by the illegal search made of his car; that it was an unreasonable search and an invasion of his constitutional rights. The court denied the prayer of the petition. A motion was also made by the plaintiff in error to quash the information, which was overruled. Thereafter, however, an amended information was filed charging the plaintiff in error with the unlawful possession of intoxicating liquor for the purpose of sale. On the day the case was set for trial, the plaintiff in error made a motion for continuance on the ground of the absence of material witnesses, whose evidence was set out in affidavits filed with the motion. The court denied the motion for a continuance. Thereupon the plaintiff in error filed a motion for a change of venue on account of alleged prejudice of the judge of the court, which motion was supported by the affidavits of two citizens of Clark County. This motion was also denied; the case thereupon proceeded to trial. The trial of the case resulted in the following verdict: “We, the undersigned jurors, find the defendant guilty of possession of intoxicating liquor and no more.” Upon this verdict the court rendered judgment, sentencing the defendant to five months’ imprisonment on the Illinois State Farm at Vandalia. A writ of error .is now prosecuted from the judgment.

A number of errors are assigned. It is insisted that the court erred in refusing to grant the prayer of the petition to impound and exclude the evidence procured by the sheriff in searching plaintiff in error’s car, because the search was made without a warrant and was an unreasonable search, and therefore a violation of the constitutional rights of the plaintiff in error, and in derogation of section 6 of article 2 of the State Constitution. It is sufficient to say concerning this contention, that it involves a constitutional question which this court is without jurisdiction to determine.

Error is also assigned on the refusal of the court to grant a change of venue on account of alleged prejudice of the presiding judge of the court. It is clear however from the record that this motion was not made until the beginning of the trial, and there is no showing by the plaintiff in error when he discovered the fact of the prejudice alleged; the petition was therefore properly denied. But the record shows that the trial of the case proceeded without any plea of not guilty entered by the defendant, and there was no issue for trial. A plea of not guilty is essential to constitute an issue to be tried in a criminal case whether the offense charged is a misdemeanor or a felony. People v. Kennedy, 303 Ill. 423. In every case before a verdict can be sustained, the record must show that an issue was made by a plea of not guilty. People v. McCarthy, 176 Ill. App. 499; People v. Hughes, 226 Ill. App. 135.

Another error which is assigned concerns the argument of the State’s attorney because of inflammatory and prejudicial references made therein to the plaintiff in error. The record discloses that the State’s attorney, in the course of his argument, said: “There isn’t a bit of evidence in this record to show that the defendant is innocent. * * * I say this man is a bootlegger. There is no doubt that he is a bootlegger. * * * Are you going to allow a high-class lawyer to come up here from another county and free a man who is guilty of transporting intoxicating liquor, on a few technical points of law? You but mock the officials of the law * * *. This gentleman has never appeared on the witness stand. * * * He did not have any right to come here without putting any witnesses on the stand. It there any question of doubt in your mind? If there is, for God’s sake, speak up and tell me what it is. Is that intoxicating liquor? What kind is it? No man can look into that bottle without seeing death staring at him. A man that will go over Clark county, that will sell this to your children, your sons and daughters— * * *. You would repudiate the judge that sits on' the bench at all of these trials if you acquitted this man. Gentlemen of the Jury, you. certainly will not betray the interests of the tax payers of Clark county in any such manner. * * * You don’t want to go home and tell your wife or your children, that you have turned loose a bootlegger over Clark county. * * * This bootlegger, the least that I can call him, came up from Snother county and came to this county and rode over this county selling whiskey.”

The record does not disclose any evidence that the plaintiff in error was a bootlegger, or that he ever sold or attempted to sell any whisky in the county. The remarks of the State’s attorney were clearly reprehensible and without legal justification. The fact that he referred to the failure of the plaintiff in error to go on the stand and testify, or to produce any witnesses to establish his innocence was in and of itself reversible error.

Another error assigned relates to the verdict of the jury. It will be noticed with reference to the verdict of the jury that they find the defendant guilty merely of having possession of intoxicating liquor, which is not necessarily an offense or violation of the Prohibition Act, Cahill’s St. ch. 43. The jury did not find the plaintiff in error guilty or not guilty of the offense charged in the information, and the facts stated in the verdict do not contain the essential elements of the crime charged in the information. People v. Barnes, 314 Ill. 140. The verdict was insufficient' to base a judgment of conviction upon, and to sentence the plaintiff in error for the crime charged. People v. Bam, 279 Ill. 206.

For the reasons stated the judgment is reversed and the cause remanded.

Reversed and remanded.


text:
    Culver Military Academy, Appellant, v. Emma L. Staley, Appellee.
    Gen. No. 8,214.

      Opinion filed July 2, 1928.
    F. B. Wiley, for appellant.
    LeForgee, Black & Samuels, for appellee.
   Mr. Presiding Justice Niehaus

delivered the opinion of the court.

The Culver Military Academy commenced this suit in the circuit court of Macon county to recover a balance of tuition claimed to be due from Emma L. Staley, the appellee herein; also to recover for certain extras, clothing, books, etc., furnished the appellee’s son during the time he was a cadet at the academy.

The special count of the amended declaration which states appellant’s cause of action avers that the appellee’s son, Andrew Bollin Staley, was entered by the appellee, on her written application made for that purpose, as a cadet in appellant’s academy for the year commencing September, 1925, and ending June, 1926, subject to the conditions of the printed catalogue issued by the academy and the regulations of the academy; and the application expressly provided, that “as a precaution against the admission of undesirable boys, it is distinctly understood that the parents or guardian in this application certify that his son is amenable to discipline, and is free from vicious or immoral habits;” and that “cadets are admitted only upon the express condition that they shall remain at the academy until the end of the session, unless suspended or dismissed for misconduct or breach of school discipline; and the parent or guardian agrees that in the event of such suspension or dismissal, or in case of voluntary withdrawal, no part of the fee for tuition for the school year shall be refunded or remitted; and any unpaid balance on account of such fees for the school year shall become immediately due and payable to the academy as liquidated damages.” The declaration further avers that the appellee’s son was admitted to the academy on September 8,1925, as a cadet therein, pursuant to the appellee’s application for his admission, and that on September 23, 1925, in disregard of the regulations of the academy, he intentionally and wilfully ran away and left the academy, and absented himself without leave for three days; and that this act of desertion was subversive of and contrary to the requirements in the catalogue, and in violation of the discipline and printed regulations of the academy, and made appellee’s son liable to dismissal; and that for this act of desertion the appellant, through its proper officers, the superintendent, commandant of cadets, executive officer and faculty, upon due consideration of the matter, dismissed him from the academy; and that therefore under the conditions agreed upon in the appellee’s application for the admission of her son as a cadet, the appellant was entitled to recover the balance due on the amount of the tuition, namely, $1,250, and the balance due for the extras furnished, amounting to $12.30. The appellee filed the general issue to the declaration, and the case proceeded to a trial by the court, a jury having been waived by agreement. At the close of all the evidence, the court found the issues for the appellee, and on motion of the appellee rendered judgment against the appellant for costs of the suit. This appeal is prosecuted from the judgment.

On the trial of the case in the court below, the appellant offered in evidence the appellee’s application for the entering of her son as a cadet in the academy which has been referred to; also, the catalogue of the academy containing the rules and regulations mentioned in the application, which fix the amount of the tuition and other charges which would become due and payable in connection with the cadetship of the appellee’s son in the academy; also the written regulations and discipline which all cadets were obliged to submit to and be governed by, including paragraph 210, which is as follows: “Any cadet who shall absent himself from the immediate vicinity of barracks at night, after call to quarters, .without permission, and go beyond the limits, shall be dismissed.” Also paragraph 256, which is as follows: “The superintendent and also the commandant of cadets shall have power to investigate violations of the regulations, disorders and breaches of discipline committed by cadets. In any official investigation made by the superintendent or commandant of cadets (under the authority given them in this paragraph) they have the right to require any person under their command to answer interrogatories as to the facts within his knowledge, no matter who, except himself, may be incriminated by his answers, and refusal to answer is disobedience to orders.” Further evidence was introduced by calling W. R. Kennedy as a witness, and he testified as follows in reference to appellee’s son as a cadet in the academy: “I am employed by the Culver Military Academy of Culver, Indiana, as a teacher, and have been since September, 1905. I have charge of.the tactical staff. The school is divided into eight infantry companies, one battery of artillery, one troop of cavalry and one band. The infantry companies are designated by letter; the battery by the name of the Culver Battery and the troop by the name of Black Horse Troop. I know and am acquainted with Andrew Rollin Staley. I first got acquainted with him about September, 1923, as I recall it. He was a student in the institution in the year 1923 and 1924. The academic year for 1925 started about September 15. I saw young Staley there about September 15. I have charge of Company B. * * * I saw him there following September 15, 1925. I saw him at the barracks, in my barracks, B. Company barracks, until sometime in the night of September 18, 1925. I first discovered his absence from the academy the morning of September 19.” The appellant also called M. V. Bennett, who was connected with the academy as a teacher of cadets, and who was present at a meeting of the governing iriembers of the faculty held about September 21, following the disappearance of appellee’s son from the academy, for the purpose of considering the matter of the reinstatement of appellee’s son as a cadet. The witness was asked concerning the members of the faculty present at the meeting with reference to the positions that they held in the academy, which was a matter within his knowledge, but on objection by the appellee’s counsel was not allowed to answer. Nor was he upon objection of the appellee allowed to answer what statement if any appellee’s son made, or what reason he gave at this meeting of the faculty for leaving the academy, and when he left and why he left.

The record sufficiently discloses that the meeting referred to was held by the governing officials of the academy for the purpose of determining the status of appellee’s son as a cadet after his alleged desertion from the academy, and to determine the extent and character of his infraction of discipline and breach of the rules and regulations of the academy, and for the purpose of passing on his application to be reinstated as a cadet. It was a necessary element in appellant’s right of recovery to show that young Staley left the academy without proper leave given or in violation of the rules and regulations of the., academy. Young Staley’s own statement as to the motive he had in leaving, or the purpose of his leaving, or whether he left without obtaining proper leave therefor, was competent and the best evidence on that subject. Appellee’s son was her agent for the purpose of carrying' into effect her contract with the appellant as set forth in her application for his cadetship; her son was in the academy for the purpose of Ms tuition, training and discipline. The application, the catalogue and the rules and regulations of the academy are all a part of the contract here involved. Manson v. Culver Military Academy, 141 Ill. App. 250. All of the acts and declarations of appellee’s son as a cadet after he had entered in the academy concerMng the carrying into effect of the contract or in connection with his cadetship, or in the course of his cadetship so far as they tended to show a compliance or noncompliance with the terms and conditions of the contract, are binding on the appellee and are competent evidence as a part of the res gestae. “The declarations of an agent * * * are admissible in evidence against the company when they form a part of the res gestae of some business transacted * * * for his principal.” Lincoln Coal Min. Co. v. McNally, 15 Ill. App. 181; Citizens Gas-Light & Heating Co. v. Granger, 19 Ill. App. 201; 1 Green 113. In the case of Prussian Nat. Ins. Co. v. Empire Catering Co., 113 Ill. App. 67, the same principle was involved and the court said in reference- to the declarations of an agent of the Empire Catering Co.: “Mr. Gregory was the representative of the appellee in relation to the adjustment of this loss. Whatever he did in the lawful prosecution of that business was the act of the Empire Catering Co.; clearly, what he may have said respecting the subject matter, if made while still engaged in the principal’s business, is also admissible as a verbal act and part of the res gestae.” It is a well-established principle of the law that declarations which form a part of the res gestae and are to be considered as a part of the transaction do not come under the head of hearsay, but are admissible as original evidence. Lund v. Tyngsborough, 8 Cush. (Mass.) 36; 22 C. J. 449.

For the reasons stated, we are of opinion that the ruling of the trial court in excluding the evidence pointed out was erroneous, and the judgment is therefore reversed and the cause remanded.

Reversed and remanded.


text:
    Roy Dukeman et al., Appellants, v. Alfred Beisley et al., Appellees.
    Gen. No. 8,226.

      Opinion filed July 2, 1928.
    John McNutt, for appellants.
    Craig & Craig, for appellees.
   Mr. Presiding Justice Niehaus

delivered the opinion of the court.

In this case a bill in equity was filed by the appellants, Roy Dukeman, Claud Campbell and Charles E. Comer, in the circuit court of Coles county, against the appellees, T. E. Lyons, receiver of the Areola State Bank, and G. S. Tarbox, F. M. Groves and others, alleged to be stockholders of the Areola State Bank; also against Alfred Beisley,. a depositor, who has a suit pending against G. S. Tarbox, one of the stockholders of the bank mentioned. The purpose of the bill is to enforce the stockholders’ liability resulting from the insolvency of the Areola State Bank, for the benefit of creditors and depositors of the bank. The allegations of the bill are as follows:

“Your orators, Roy Dukeman, Claud Campbell and Charles E. Comer, respectfully represent to your Honors that they are residents of the State of Illinois; that on the 27th day of February, 1927, they were depositors in the Areola State Bank located in the City of Areola, County of Douglas and State of Illinois, a corporation and one of the defendants hereinafter named, and bring this' suit for the benefit of themselves and such other general depositors of the Areola State Bank on said date who may hereafter become parties complainant to this suit and contribute to the expense of said suit.
“Orators further represent that Areola State Bank was organized and existing under and by virtue of the laws of the State of Illinois, and transacting a general banking business in the City of Areola, Douglas County, Illinois; that on the 27th day of February, A. D. 1927, the Areola State Bank closed its doors and notified the Auditor of Public Accounts of the State of Illinois that the directors and stockholders of said bank by resolution duly adopted had voted to voluntarily liquidate the affairs of said bank; that thereupon the said Auditor of Public Accounts took charge of said bank and on the 7th day of March, 1927, determined, after an examination of the affairs of said bank, that the impairment of the capital stock of the Areola State Bank could not be made good and on said day appointed T. E. Lyons, receiver of said Areola State Bank and that said Lyons duly qualified as such receiver and took charge of the affairs and property of said bank and is now still acting as such receiver; that said bank is hopelessly insolvent; that said receiver has paid a small dividend to each depositor of approximately 15 per centum of the amount each depositor had in said bank on the 27th day of February, 1927, the day of the closing of said bank; and that it is not probable that any further dividend will be paid to any depositor of said bank.
“That your orators are advised and state the facts to be that the following named persons were stockholders in said Areola State Bank on the day of closing, to-wit: T. E. Lyons, G. S. Tarbox, F. M. Groves, Maria M. Lins, Mary Agnes Donnell, Minney Lyons, H. H. Foster, R. F. W. Beazley, Henry H. Martin, J. Rue Edgar, J. H. Sullivan, George M. Pfeifer, Thomas F. Monohan, Henry Harding, Ben F. Cox, J. C. Ludhoff, Clarence Coombe, M. J. McCafferty, Alva Watson, W. N. Rugh, L. C. Engle, N. J. Higgenbotham and Caroline Reinheimer, Alma Reinheimer and Pearl Reinheimer, as heirs at law of B. Reinheimer, deceased, and Caroline Reinheimer, Walter Reinheimer and Pearl Reinheimer, executors of the estate of B. Reinheimer, deceased, and Ida Jacoby, executrix of the estate of John Burkey, deceased; that whether or not there are other stockholders your orators are not advised nor are orators advised as to the number of" shares each of the above_named stockholders owned of the capital stock of said Areola State Bank.
“Orators further represent that Roy Dukeman had on deposit in said bank on the day of closing its doors the sum of $11.99; that Claud Campbell had on deposit $24.00 and that Charles E. Comer had on deposit the sum of $265.30; that your orators have received from the receiver of said bank a dividend of about 15 per centum of the amount of their deposits; that your orators are informed and state the fact to be that the remainder of their respective deposits has been lost by the suspension and insolvency of said bank. Orators further represent that by virtue of the Constitution of the State of Illinois each of said stockholders of the Areola State Bank is individually responsible and liable to the creditors of said bank over and above the amount of stock by him or her held, to an amount equal to his or her respective shares so held or for the liability of the bank accruing while he or she remained such stockholder; that the liability of each of said stockholders accrued to your orators while the persons above named as stockholders were stockholders of said bank.
“Orators further represent that Alfred Beisley, a depositor in said Areola State Bank, has brought an action of debt in the Circuit Court of Coles County, in the State of Illinois, against G-. S. Tarbox, a resident of the County of Coles and a stockholder in the Areola State Bank, to recover from said Tarbox the sum of $2,000, the full amount of the constitutional liability of said Tarbox as a stockholder in the Areola State Bank; that said cause of action has arisen through and by virtue of the suspension of business and the insolvency of said Areola State Bank; that said cause has been filed to the October term of said Coles County Circuit Court and will come up for hearing at said term of court which is now in session unless restrained by the order of this court.
“Orators are further advised that other suits are about to be brought by other creditors and depositors of said bank against other stockholders of said bank; that the constitutional liability of each of said stockholders is a common fund upon which the said general depositors of said bank have equal claims; that the remedy at law is totally inadequate to afford the full measure of relief to each depositor without the bringing of a multiplicity of suits; that the total capital stock of the Areola State Bank as incorporated was $50,000 and that the total deposits held by said bank when its doors were closed were more than $134,000; that it is evident that if the entire amount of constitutional liability of said stockholders should be collected that the depositors in said bank could not near be paid in full; that in equity and good conscience this court should take charge of the common fund arising through said stockholders ’ liability and control it for the benefit of all depositors of the Areola State Bank.
“Orators further represent that in order to protect the rights and interests of all the depositors in the Areola State Bank the said Alfred Beisley and all other depositors and creditors of said bank should be enjoined from, prosecuting suits against any and all stockholders of said Areola State Bank to enforce said stockholders’ liability and thus obtain priority over your orators and others interested in said trust fund; that all the creditors and depositors of said bank should be ascertained; that the liabilities of said bank should be ascertained; that the liabilities of the stockholders and each of them and the extent of each stockholder’s liability to the creditors should be ascertained by the court; that upon the determination of each stockholder’s liability the court should provide for the distribution thereof among the creditors and depositors of said bank; and that a receiver should be appointed to collect such amounts so determined from the stockholders and distribute the same among the depositors.
“Forasmuch, therefore, as your orators are without remedy in the premises except in a court of equity and to the end that Areola State Bank, a corporation, T. E. Lyons, receiver of Areola State Bank, Alfred Beisley, T. E.- Lyons, G. S. Tarbox, F. M. Groves, Maria M. Lins, Mary Agnes Donnell, Minney Lyons, H. H. Foster, R. F. W. Beazley, Henry H. Martin, J. Rue Edgar, J. H. Sullivan, George M. Pfeifer, Thomas F. Monohan, Henry Harding, Ben F. Cox, J. C. Ludhoff, Clarence Coombe, M.. J. McCafferty, Alva Watson, W. N. Rugh, L. C. Engle, N. J. Higgenbotham and Caroline Reinheimer, Alma Reinheimer and Pearl Reinheimer, as heirs at law of B. Reinheimer, deceased, and Caroline Reinheimer, Walter Reinheimer and Pearl Reinheimer, executors of the estate of B. Reinheimer, deceased, and Ida Jacoby, executrix of the estate of John Burkey, deceased, who are made parties defendant to this suit, may be required to make a full and direct answer to the same but not under oath, the answer under oath being hereby waived; that Alfred Beisley may be restrained by the order of this suit from prosecuting his suit in the Coles County Circuit Court against Gr. S. Tarbox to enforce his constitutional liability as such stockholder until the further order of this court; that this court may take full and complete jurisdiction and control of any and all liabilities arising under the Constitution of the State of Illinois against any and all stockholders of the Areola State Bank on the 27th day of February, 1927, and may ascertain the creditors and depositors of said Areola State Bank and may ascertain the liabilities of said bank and may ascertain who are the stockholders of said bank and the number of shares held by each and the extent of each stockholder’s liability to the creditors and depositors of said bank; that this court may determine the rights and equities of the stockholders and depositors of said bank and shall marshal the fund arising from said stockholders’ liabilities and distribute said fund among the creditors and depositors of said bank prorata according to the amount each depositor had on deposit at the closing of said bank; that any and all depositors and creditors of said bank be restrained by an order of this court from prosecuting any suit against any and all stockholders of the Areola State Bank until the further order of this court; that a receiver be appointed by this court to collect the amount so determined by the court to be due from each stockholder and to distribute the same among the depositors and creditors pro rata; and that your orators may have such other and further relief in the premises as equity may require and to your Honor may seem meet.”

The bill was filed on October 11,1927, to the January term following, and summons was served on 27 of the defendants in the bill on or about November 1, 1927. Five defendants in the bill, namely, F. M. Groves, Maria M. Lins, Mary Agnes Donnell, Minney Lyons and N. J. Higginbotham, were not found in the county, and a return on the summons made by the sheriff to that effect.

At the January term following, the appellants, who are defendants in the bill, filed a plea in abatement, in which it is alleged that another bill in equity in which A. F. Love, A. F. Love, treasurer of the American Legion Post at Areola, A. J. Barnes, Albert Harrington, F. M. Rich, Pearl Rich, Harry 0. Snyder and others, as depositors of the insolvent Areola State Bank, had on the 3rd day of November, A. D. 1927, filed a bill of complaint in the circuit court of Douglas county, against substantially the same parties defendant, as stockholders, who were sued in the bill of complaint in question; and the plea sets forth the various allegations of the Douglas county bill of complaint, to show that the purpose and parties to the suit are substantially the same, and that the subject matter and relief prayed for are the same. The plea was set down for hearing by the court, and was sustained on the hearing, and thereupon the court allowed the appellants to amend their bill of complaint, and they thereafter filed an amended and supplemental bill; and the court ordered that the plea in abatement filed to the original bill stand as a plea to the amended and supplemental bill. The plea was again set down for hearing and argument, and upon the hearing was- again sustained by the court, and thereupon the amended and supplemental bill was dismissed. This appeal is prosecuted from the order of the court sustaining the plea in abatement and dismissing the bill.

The only question presented for review is whether the circuit court of Douglas county or the circuit court of Coles county, which have concurrent jurisdiction to adjudicate and determine the matters involved in the bills of complaint referred to, had first obtained jurisdiction thereof. The rule is well settled, “that the pendency of a former suit in the same jurisdiction in the same or another court of equity, between the same parties, for the same cause of action and relief may be pleaded in abatement in the second suit.” Haas v. Righeimer, 220 Ill. 193. In recognition of this rule in the case of Loomis v. Federal Union Surety Co., 163 Ill. App. 621, the court said: “As between courts of the same state which have concurrent jurisdiction, the one first obtaining jurisdiction will retain it, and in another action begun in the courts of that state the former action may be pleaded in abatement. ’ ’

The record clearly discloses that the bill of complaint involved in this appeal was filed at least twenty days prior to the filing of the bill of complaint of the Douglas county suit, which is the basis of the plea in abatement; and that all the defendants in the Coles county suit except five had been served with the summons issued therein at least three days before the commencement of the suit in Douglas county; and it appears also that three of the five defendants which were not served are nonresidents; and all of the five defendants not served are alleged in the amended and supplemental bill to be insolvent.

It is apparent that the suit in Coles county is the prior suit; and that by the service of the summons on the 27 defendants it had obtained jurisdiction of the subject matter of the suit, so far as it concerned the parties defendant who had been served with process, before the commencement of the suit in Douglas county. The appellees contend, however, that the jurisdiction of the court in the Coles county suit cannot be considered as complete, because it had not acquired jurisdiction of all the defendants; that it was necessary that the Coles county circuit court should also have had service of process on the five defendants which were “not found” in the county. The point contended for by the appellees may be applicable to suits where the court must have jurisdiction of all defendants who are necessary parties to an adjudication of the subject matter of the suit; as for instance in partition cases, where the joint interests of the tenants in common in real estate are itivolved, and therefore indispensable that the court have jurisdiction of all the joint owners of the property which is sought tó be partitioned. The five defendants who were not served in the Cole county case, however, were not necessary parties to adjudicate the subject matter of the suit, in so far as it concerned the defendants who had been served. The failure to get service on the five defendants mentioned did not oust the court of the jurisdiction it had acquired of the defendants served with process. The liability of the defendants served with process as stockholders is an individual liability and separate and severable from the liability of the defendants not served with process. Golden v. Cervenka, 278 Ill. 409. Nor did the fact that the complainant by leave of court filed an amended and supplemental bill have the effect of giving priority to the suit in Douglas county. The amended bill did not set up a new equity or seek a different ground of relief; nor was there any change in the subject matter of the suit. “The rule of equity pleading is that an amended bill or an amendment to the bill is a continuation of the original bill of which it is considered a part, the two together constituting one record.” Becker v. Billings, 304 Ill. 190, 23 N. C. C. A. 105.

For the reasons stated, we conclude that the court erred in sustaining the plea in abatement and dismissing the bill of complaint, and the order is therefore reversed and the cause remanded with directions to overrule the plea.

Reversed and remanded with directions.