source: Caselaw Access Project

license: Public Domain

text:
    John J. Mitchell, Jr., Appellant, v. J. D. Comstock, Appellee.
    Gen. No. 41,027.

      Heard in the third division of this court for the first district at the December term, 1939.
    Opinion filed May 22, 1940.
    Rehearing denied June 14, 1940.
    Taylor, Miller, Busch & Boyden, of Chicago, for appellant; Johh S. Miller, Preston Boyden, Morris I. Leibman and Richard A. Beck, all of Chicago, of counsel.
    Hummer, Van Ness & Yowell, of Chicago, for appellee; John J. Yowell, of counsel.
   Mr. Justice Burke

delivered the opinion of the court.

On June 30,1938, plaintiff filed a statement of claim in the municipal court of Chicago, and sought to recover from the defendant the sum of $14,049.99 on a promissory note dated Chicago, September 2,1924, for the principal sum of $8,333.33. The note was attached as exhibit 1. Therein the defendant promised to pay the principal amount on demand at 231 South LaSalle street, Chicago, with interest at 5 per cent per annum until paid. The note contained a warrant of attorney in the usual form, authorizing any attorney of any court of record to appear for him in such court, in term time or vacation, and to confess judgment. The statement of claim averred that plaintiff had been a resident of the State of Illinois since September 2,1924, and prior thereto, and that the defendant “has not resided in the state of Illinois and has resided out of the state since September 2, 1924.” An agent of the plaintiff filed a supporting affidavit. Attached to the statement of claim was an affidavit by plaintiff, called exhibit 2, wherein he deposed that he had been a resident of this State at all times during the last 20 years, and that the defendant has not at any time been a resident of the State. At the time the complaint was filed, a cognovit was filed by an attorney at law who, by the purported authority of the warrant of attorney, confessed the claim of the plaintiff in the principal sum of $8,333.33, plus interest of $5,666.66, and attorney’s fees of $50. On the day the statement of claim was filed, the court entered an order, which recited that, having read the pleadings, including the affidavits attached to the statement of claim, and having heard the testimony of plaintiff and another witness, and arguments of counsel, found that the note was executed by defendant at Chicago, Illinois; that he is not a resident of Illinois and has not been a resident of Illinois since September 2, 1924, and that he resided out of this State during all of said time; that the plaintiff has been a resident of this State during all of said time and is still a resident of this State. The order thereupon entered judgment for plaintiff and against the defendant in the sum of $14,-049.99 and costs. On August 29, 1938, attorneys Barthell, Schroeder and Hatmaker presented a written motion “to open up, vacate and set aside the judgment on the grounds (1) that the alleged indebtedness did not accrue within 10 years before the commencement of this action and was and is barred by the Statute of Limitations in accordance with Section 16 of the act in regard to limitations, Chapter 83, paragraph 17, Ill. Rev. Stat. 1937; (2) that at the time the alleged cause of action accrued neither plaintiff nor defendant were residents of the State of Illinois, and the facts fall within the exception under Section 18 of the Act in regard to Limitations, Chapter 83, paragraph 19, Ill. Rev. Stat. 1937; and (3) that the alleged cause of action arose outside of Illinois and by the laws of California the action was and is barred by reason of the lapse of time, and therefore this action cannot be maintained by virtue of Section 20 of the Act in regard to Limitations, Chapter 83, paragraph 21, Ill. Rev. Stat. 1937.” The motion was supported by an affidavit by defendant, wherein he deposed that the note was executed by him at Chester, West Virginia on September 2, 1924; that he was then a resident of West Virginia and had been a resident thereof from 1919 until 1928, when he moved his residence to California, where he continued to reside until the date of the making of the affidavit; that on September 2, 1924, plaintiff was a resident of Santa Barbara, California; that on the date of the execution of the note both parties were nonresidents of the State of Illinois, and that he did not learn of the entry of the judgment against him until August 3, 1938. The hearing on the motion was continued until September 13, 1938. On September 1, 1938, Barthell, Schroeder and Hatmaker entered a formal appearance in behalf of the defendant. On September 9,1939, they filed a document called “Memorandum of Defendant.” Point 1 of this memorandum consists of a recitation of the facts. Point 2 urges that “the judgment should be opened up because the affidavit of defendant sets out a good defense to plaintiff’s claim.” Under this point defendant calls attention to rule 190 of the municipal court providing that a judgment by confession may be opened with leave to the defendant to plead whenever the evidence introduced by him, by affidavit or otherwise, taken by itself alone is sufficient to establish a good defense to the plaintiff’s claim in whole or in part. In the memorandum defendant suggests that rule 190 means that the court should examine defendant’s affidavit alone, ignoring any evidence of plaintiff, and determine whether it, standing alone, establishes a good defense to plaintiff’s cause of action in whole or in part. Point 3 of the memorandum urges that “the judgment should be opened up without requiring any security on the part of defendant.” On September 13, 1938, the defendant moved for leave to file interrogatories, and that a rule be entered on plaintiff to answer such interrogatories. Apparently, the motion to file interrogatories was abandoned, as no further action thereon was taken. The motion to open up the judgment was continued from time to time. When such motion came on to be heard on February 17, 1939, two firms of Chicago attorneys, namely, Gurman & Rogers, and Towell & Langdon, and an attorney from California, appeared for the first time in behalf of defendant. These attorneys moved (orally) to withdraw the general appearance. Mr. Perkins, defendant’s California attorney, testified at this hearing. His testimony was introduced for the purpose of showing, if he could, that attorneys, Barthell, Schroeder and Hatmaker had no authority to enter a general appearance. The defendant, by his attorneys, also argued at length, for the first time, that under paragraph 5 of section 50 of the Civil Practice Act, as amended (par. 174, ch. 110, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 104.050]) the court had no jurisdiction to enter the judgment by confession, because it was not entered in the county where the defendant resided, or in which the note was executed. Counsel for defendant also argued that the cause of action was barred by the provisions of the statute of limitations, and that the court had no authority by virtue of the warrant of attorney to enter the judgment, when the face of the note, without extrinsic proof, showed that it was barred by the statute of limitations. After the case was thoroughly argued, the court denied the motion to withdraw the general appearance. The oral motion to vacate the judgment was continued, and the argument was resumed on February 24, 1939. On that day, one of the attorneys for the defendant stated that he was appearing in support of the written motion that was filed by attorneys, Barthell, Schroeder and Hatmaker. He stated that he also was standing on the oral motion to vacate on the ground that the court did not have jurisdiction to enter the judgment. After further argument, the court denied the oral motion to vacate the judgment. Because of the absence of one of the attorneys for the defendant, the hearing of the argument on the written motion was continued. When the hearing was resumed on March 13, 1939, despite the fact that the court had already overruled the oral motion, the defendant was given permission to file a written motion setting forth the same points that were fully argued when the oral motion was presented. The court gave permission to file the written motion. The record does not show that the clerk formally entered the order denying the oral motion to vacate the judgment. At the hearing of March 30,1939, the attorney for plaintiff stated that he recognized that the written motion filed by attorneys Barthell, Schroeder and Hatmaker tendered factual issues, and suggested that the judgment be considered as opened temporarily for the purpose of introducing evidence on the questions of fact. Accordingly, the plaintiff and another witness, on direct and cross-examination, testified as to the place of residence of plaintiff, the place where the note was executed and the consideration therefor. At a subsequent hearing the trial judge indicated that he had changed his mind and that he believed the judgment should be vacated. The court suggested that it would be well to have all the facts in the record so that if the Appellate Court disagreed, judgment could be entered there. Both parties approved the suggestion. The court stated, “But counsel says that he is perfectly willing to stipulate that he has not any further defense. Isn’t that what I understand?

“Mr. Yowell: [Attorney for defendant] That is right.

“Mr. Leibman: [Attorney for plaintiff] So that it may be considered a trial on the merits with all defenses considered, Judge?

“The Court: If there is no objection to it, we can so consider it that way so that the Appellate Court will have everything before it when it gets there.

“Mr. Yowell: Yes.” On May 1, 1939, the court sustained the written motion of August 29, 1938. However, on May 8, 1939, the court vacated the order of May 1,1939, sustained the written motion filed on March 13, 1939, vacated the judgment by confession, and entered a judgment against plaintiff for costs. This order recited that it was entered nunc pro tunc as of May 1, 1939. On May 8, 1939, the court also made findings of fact, as follows:

“1. I find from the evidence that the plaintiff, John J. Mitchell, has at all times been a resident of the State of Illinois, and, without limiting the generality of the foregoing, that plaintiff was a resident of Illinois on September 2, 1924 and from that time to the date on which this action was commenced. “2.1 find from the evidence that the note herein involved was executed by the defendant at Chicago, Illinois. ’ ’ The findings of fact were entered nunc pro tunc as of May 1, 1939. These findings of fact were excepted to by defendant. This appeal is prosecuted to reverse the order of May 8, 1939, entered nunc pro tunc as of May 1, 1939, sustaining the motion to vacate the judgment and entering judgment for costs against plaintiff and to restore the judgment by confession.

The first point advanced by plaintiff is that the action is not barred by the statute of limitations. Paragraph 17 of chapter 83, Ill. Rev. Stat. 1939 (sec. 16 of the Limitations Act [Jones Ill. Stats. Ann. 107.276]) provides that actions on promissory notes shall be commenced within 10 years next after the cause of action accrued. The note is dated September 2, 1924, and is payable ‘ on demand. ’ ’ Under the decisions, the statute of limitations commences to run from the time of the delivery of a “demand” note. (In re Estate of Chapman, 248 Ill. App. 12.) Paragraph 19 of the same chapter (sec. 18 of the Limitations Act [Ill. Rev. Stat. 1939; Jones Ill. Stats. Ann. 107.278]), reads: “If, when the cause of action accrues against a person, he is out of the state, the action may be commenced within the times herein limited, after his coming into or return to the state; and if, after the cause of action accrues, he departs from and resides out of the state, the time of his absence is no part of the time limited for the commencement of the action. But the foregoing provisions of this section shall not apply to any case, when, at the time the cause of action accrued or shall accrue, neither the party against nor in favor of whom the same accrued or shall accrue, were or are residents of this state.” The record clearly establishes that prior to and at the time of the execution and delivery of the note, the plaintiff was a resident of Illinois and that he continued to reside here thereafter, and that the defendant at the time of the making of the note was a resident of West Virginia, that he later became a resident of California, and that he was not at any relevant time a resident of Illinois. The record also establishes that the note was executed in Chicago. The language of sections 16 and 18 of the Limitations Act (Pars. 17 and 19, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 107.276, 107.278]) is explicit that where the creditor is at all times an Illinois resident, the 10-year period does not run during the debtor’s absence from the State. The statute is tolled while the debtor is out of the State unless neither the creditor nor the debtor is a resident of the State. (Wooley v. Yarnell, 142 Ill. 442; Lobdell v. Williams, 255 Ill. App. 489.) The resident creditor may proceed to enforce his remedy even though the debtor has never been a resident of Illinois. (Janeway v. Burton, 201 Ill. 78; Story v. Thompson, 36 Ill. App. 370; Orschel v. Rothschild, 238 Ill. App. 353.) The Illinois creditor may enforce his remedy even though the debtor never returns to Illinois. (Jones v. Foster, 175 Ill. 459; Richey v. Sinclair, 167 Ill. 184; Hibernian Banking Ass’n v. Commercial Nat. Bank of Chicago, 157 Ill. 524; Blakeslee v. Hoit, 116 Ill. App. 83.) It is patent, therefore, that since plaintiff was at all times a resident and the defendant a nonresident, in the absence of a warrant of attorney the plaintiff would be entitled to a judgment against the defendant, provided the court acquired jurisdiction over the person of the defendant. Defendant insists that the exceptions in section 18 of the Limitations Act are inapplicable because the action must be commenced after the defendant comes into or returns to the State and not before. He argues that the defendant did not depart from the State after the cause of action accrued. Also, that it is not alleged that defendant was ever in the State and that he could not depart from the State unless he had been in the State. The court found that the note was executed in Chicago, and we are of the opinion that the evidence supports that finding. The cause of action accrued when the note was executed. It is clear, therefore, that after the cause of action accrued, the defendant departed from and resided out of the State. We are of the opinion that the exceptions contained in section 18 of the Limitations Act are applicable. Under this point defendant also argues that under the warrant of attorney, the judgment could have been confessed at any time after the cause of action accrued; that hence plaintiff could have taken judgment against the defendant at any time after the note was delivered without the necessity of serving summons, and that because he could have so taken judgment, the statute was not tolled, even though the defendant was at all relevant times absent from the State. This argument is another way of saying that the plaintiff cannot recover because the note contained a confession clause. To so hold would be, in effect, to repeal by judicial action the plain language of section 18 of the statute of limitations. That, in effect, is what the Supreme Court said in the Hibernian case. There is no doubt that the payee of a note which contains a confession clause may sue thereon without taking advantage of the warrant of attorney. In such case, service may be had on the defendant and the action may proceed as though the note did not contain a warrant of attorney to confess judgment. The warrant of attorney in the instant case authorizes any attorney of any court of record to appear and confess judgment for the maker. It does not require that the attorney appear and confess judgment. Hence, whether the judgment is obtained by securing service of summons, or by confession of judgment, is optional with the holder of the note. There is nothing in the Limitations Act which establishes a different rule as to the tolling of the statute during the absence of the debtor as between a note that contains a confession clause and one that does not contain such a clause. As indicating the trend of judicial thought in this State, we call attention to the fact that despite the express provisions in § 11, ch. 83, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 107.269], that no foreclosure shall be brought more than 10 years after the action accrues, the courts have nevertheless held that section 11 is subject to section 17 (part payment or new promise) and section 19 (absence of debtor), and that the creditor may bring an action to foreclose after 10 years where his debt is still' in existence because of a new promise or part payment, or where the debtor is absent from the State. ,(Hibernian Banking Ass’n v. Commercial Nat. Bank of Chicago, 157 Ill. 524; Kraft v. Holzmann, 206 Ill. 548; Richey v. Sinclair, 167 Ill. 184.)

The second point urged by plaintiff is that at the time of the entry of the judgment the record showed, and the court found, facts conclusively demonstrating that the statute of limitations had not commenced to run, because of defendant’s continued absence from the State and plaintiff’s continued residence therein, and the confession of judgment of that date was, therefore, properly entered. Both parties place great reliance on the case of Matsenbaugh v. Boyle, 156 Ill. 331. Defendant urges that as soon as the note becomes barred by the statute of limitations, the warrant of attorney is functus officio and no longer confers authority to confess judgment. Defendant also maintains that the court had no power to proceed on the statement of claim because it showed that he was a nonresident and failed to allege that the note was executed in Cook county. The note was dated Chicago, September 2, 1924. In the absence of evidence to the contrary, it will be presumed to have been executed at the place where it is dated. (Brontie v. Leslie, 30 Ill. App. 288.) In the instant case, the court specifically found from the evidence that the note was executed at Chicago, Illinois. Defendant relies on the provisions of par. 5, sec. 50, of the Civil Practice Act (subparagraph 5 of paragraph 174) Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 104.050], which provides that applications to confess judgment shall be made in the county in which the note or obligation was executed, or in the county where one or more of the defendants reside, or in any county in which is located any property owned by any of the defendants, and that a judgment entered by any court “in any county other than the county herein specified shall have no force or validity, anything in the power to confess to the contrary notwithstanding. ’ ’ The prohibition quoted does not appear in the Municipal Court Act, and there is no rule of that court containing such a restriction on the right to confess a judgment. Whether that paragraph of section 50 of the Civil Practice Act is applicable to judgments confessed in the municipal court of Chicago, has not been passed upon by any court of review. It has been held, however, that the Civil Practice Act (except as to appellate procedure) does not apply to the municipal court of Chicago. The judges of that court have the power to adopt rules of practice therein and may, if they wish, adopt parts of the Civil Practice Act and parts of the Supreme Court rules. In any event, the point made by the defendant is without force because the note here in question was executed in Chicago.

The judgment in the instant case was entered in term time, as are all judgments in this county. Our Supreme Court has held that such a judgment is entitled to the same presumptions as are indulged in favor of judgments entered after the service of process. In Alton Banking & Trust Co. v. Gray, 347 Ill. 99,106, the court said: “The issue in the trial court on the motion to vacate the judgment was, 'Did the plaintiffs in error execute the power of attorney to confess judgment?’ The same presumptions are indulged in favor of a judgment by confession entered in term time as in a judgment entered by service of process. (Boyles v. Chytraus, supra; Hansen v. Schlesinger, 125 Ill. 230.) The rule is different where the judgment is entered by confession in vacation. (Farwell v. Huston, 151 Ill. 239.) In the latter case a compliance with all the statutory requirements to authorize the confession of judgment must appear on the face of the record, while in the former case every presumption will be indulged in favor of the judgment, even to the extent of presuming that a sufficient warrant of attorney was produced and proved to the court though another which was insufficient appeared in the files. ’ ’ In Matzenbaugh v. Doyle, 156 Ill. 331, p. 334, the court said:

“In cases of this character the authority of the attorney to execute the cognovit, and of the clerk to enter up judgment in pursuance thereof, should fully and clearly appear from the papers filed upon the application for judgment. Those papers, together with the judgment, constitute the record, and, like other records, it must be tried by itself, and its validity cannot be made to depend upon evidence aliunde. The entry of judgment having been made in vacation, before the clerk,— a mere ministerial officer, — it will be aided by none of those presumptions which prevail where judgments are entered in open court, and hence no presumptions will be indulged in that evidence was presented or heard other than that appearing in the record. If, then, the authority of the attorney to execute the cognovit was not shown at the time the judgment was entered, the clerk was without authority to enter up the judgment, and such entry was improvidently made. . . .

“The question remains whether, from the record made at the time the judgment was entered, it appears that such entry was improper, so as to justify the court in setting the judgment aside. It appears from that record that the note was then more than ten years overdue, and no evidence was offered or suggestion made of any partial payment or new promise, or of any other fact bringing the case within any of the exceptions contained in the statute. It thus appears, upon the face of the record, that the debt was barred. The statement in the plaintiff’s affidavit filed with the cognovit, ‘that the sum of $1,482.57 is due on said note according to its tenor and effect, ’ had no tendency to bring the case within any of the statutory exceptions. That statement tended to show neither a partial payment within ten years, a new promise in writing, the non-residence of the defendant, nor any other fact which would arrest or otherwise affect the running of the statute. It is merely a statement that by the terms of the note $1,482.57 is due, — a statement not inconsistent with the theory that the debt is barred by limitation, especially in view of the rule, which seems to prevail in this State, that the effect of the statutory bar is to cut off the remedy without extinguishing the right.” From a careful reading of the Matzenbaugh and Alton Banking & Trust Co. cases, we conclude that if the record made at the time the judgment was entered, shows, not by way of conclusion, but as a fact, that there was a partial payment within 10 years, a new promise in writing, the non-residence of the defendant, or any other fact which would arrest or otherwise affect the running of the statute, then it is proper to enter judgment by confession even though the face of the note does not itself show that the running of the statute was arrested. At the time the note was executed in Illinois, the defendant was presumed to know that under the law the running of the statute of limitations would be arrested during the time when he was absent from the State, providing the plaintiff continued to reside there. While he knew that the action would be barred after 10 years from the date of the note, he also knew that it would not be barred providing any of the situations which prevented the tolling of the statute, existed. Hence, he knew at the time he signed and delivered the note that the warrant of attorney would authorize the confession of a judgment thereon even after the 10-years’ period had elapsed, providing the statement of claim and exhibits attached thereto showed affirmatively that the running of the statute of limitations had been tolled. In entering the judgment in the instant case, the exhibits attached to the statement of claim are considered as a part of such statement of claim under the provisions of paragraph 3 of rule 60 of the municipal court of Chicago. We are convinced that under the statement of claim and the exhibits attached thereto, and the cognovit, the court had the right to enter up the judgment.

The trial court declined to allow the defendant to withdraw the formal general appearance entered on September 1, 1938. The record shows that the court was right in so ruling. The defendant, however, had entered a general appearance on August 29,1938, when he filed a motion to vacate the judgment. Such motion was supported by an affidavit by the defendant. The motion and the affidavit raised points other than those questioning the jurisdiction of the court. The presentation of the motion on August 29, 1938, was in itself a general appearance. (Kunde v. Prentice, 329 Ill. 82; People v. White, 263 Ill. App. 425.) The defendant did not seek to file a special appearance for the purpose of attacking the jurisdiction of the court until approximately six months after his general appearance had been filed, and then he insisted on preserving his right to urge all the points set up in his original motion which we have held constituted a general appearance. The defendant having appeared generally, the court had an undoubted right to enter judgment against him to the same extent as if he had been served with a summons. The plaintiff was allowed to introduce testimony on the issues of fact raised by the written motion, and he did so on the basis that the judgment was opened up for that purpose. Although no formal order was entered opening up the judgment, for the purpose of permitting the introduction of the testimony, the record shows that such procedure followed. The defendant in his written motion and supporting affidavit raises factual issues which could only be determined by the introduction of testimony. The proper practice would be for the court to open up the judgment (allowing it to stand as security), for the purpose of hearing testimony on the issues. The defendant, however, was not harmed by the informality of the procedure. The discussion between the court and counsel, which has been set out in the statement of the case, shows that both parties desired that the case be considered as one submitted on the merits.

The defendant also argues that the note was barred upon the express agreement that it should become an absolute obligation and plaintiff’s property only upon a certain contingency, and that the judgment was wrongfully obtained on the theory that the note was delivered as an absolute obligation of the defendant. This point was not argued in the trial court. From the testimony of the plaintiff, which was the only evidence on this subject, it appears that the plaintiff loaned $25,000 to the Cord Tire Company. The plaintiff, defendant and another person were stockholders in that corporation. The defendant was president. The plaintiff took a note from the corporation for the money loaned. The note was never collected. The corporation went into receivership. At the time of the loan to the corporation, the defendant and the other party-each gave plaintiff a note for one third of the $25,000 loaned to the corporation. These notes were dated January 8, 1924. The note sued on herein, dated September 2, 1924, was a renewal note which replaced the one dated January 8, 1924. The testimony of plaintiff does not support the contention of defendant that the obligation represented by the note was conditional. Undoubtedly, if the note signed by the Cord Tire Company was paid, the defendant would be entitled to credit accordingly. However, the evidence shows that the note of the Cord Tire Company has never been paid. Defendant also maintains that when the note was signed, there was only a conditional delivery. There is nothing in the record to support this contention.

The court was right in finding that the plaintiff was at all relevant times a resident of this State, and that the defendant at no relevant time was a resident of the State, and that the note was executed in Chicago. Under these facts, the action was not barred by the statute of limitations and the court was in error in vacating the judgment and in entering judgment for costs against the plaintiff. It was the duty of the court to restore the judgment. For the reasons stated the order of the municipal court of Chicago entered May 8, 1939, nunc pro tunc as of May 1,1939, vacating the judgment and dismissing the cause, is reversed, and the cause is remanded with directions that the municipal court of Chicago enter an order that the judgment entered on June 30,1938, for the plaintiff and against defendant in the sum of $14,049.99 and costs stand in full force and effect as of the time of its rendition.

Reversed and remanded with directions.

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


author: Mr. Justice Burke

text:
    People of the State of Illinois ex rel. Daniel J. O’Brien, Appellee, v. Board of Commissioners of Cook County et al., Appellants.
    Gen. No. 41,088.
    Heard in the third division of this court for the first district at the February term, 1940.
    Opinion filed May 22, 1940.
    Thomas J. Courtney, State’s Attorney, for appellants; Jacob Shamberg, William J. Tuohy and Neal J. McAuliffe, Assistant State’s Attorneys, and George F. Mulligan, Jr., of Chicago, of counsel.
    James W. Breen, of Chicago, for appellee.
   Mr. Justice Burke

delivered the opinion of the court.

Daniel J. O’Brien was born on June 7,1866. He entered the service of the county of Cook on November 26,1910, and remained in such service until September 30, 1938, when he resigned, having completed a service of 27 years and 10 months. He became 65 years of age on June 7, 1931. He requested the Retirement Board of the County Employees’ Annuity and Benefit Fund of Cook County to grant him an annuity. The board granted an annuity in the sum of $54.96 per month beginning as of October 1, 1938, the day following his resignation from the service. On February 15,1939, he served a notice on the president and members of the Board of Commissioners of Cook County that he was entitled to an annuity of $80.64 per month, and therein demanded that such board appropriate an amount of money sufficient to pay him an annuity of $80.64 per month. The Board did not comply. On May 16, 1939, in the superior court of Cook county he filed a petition for a writ of mandamus against the Board of Commissioners of Cook County and the Retirement Board of the County Employees’ Annuity and Benefit Fund for the purpose of enforcing his demand. Defendants admitted the truth of the facts alleged, but denied that the relator was entitled to any increase in his annuity. The cause was submitted on the undisputed facts, and the court found that relator was entitled to receive a monthly annuity of $80.88, and commanded the members of the Retirement Board to furnish to the members of the Board of Commissioners all data necessary to enable them to provide funds for the payment of the monthly annuity of $80.88, commencing with October 1, 1938, and further commanded the Board of County Commissioners to “pass such legislation as may be necessary to appropriate, or to transfer into the proper account or accounts sufficient money to enable plaintiff to receive a monthly annuity of $80.88 from October 1, 1938, down to the present time, and to continue to provide sufficient revenue for the payment of his monthly annuity at the rate of $80.88 during the period of his natural life.” It will be observed that the petition for the writ asks for a monthly annuity of $80.64 and that the writ commands the payment of $80.88. The relator states that he intended to amend his petition so as to have it conform to the writ, but inadvertently failed to do so. However, the defendants are not making any point as to the difference between the amount claimed in the petition and the amount directed to be paid by the court order. This appeal is prosecuted for the purpose of reversing the order awarding the writ of mandamus.

The first annuity or pension act affecting the employees of Cook county was approved June 29, 1915. This act established a voluntary pension fund for the employees of the county. The Act of 1915 and the pension board established thereunder was superseded by an act approved July 2, 1925, which provided for the creation of an employees ’ annuity and benefit fund, to be administered by a board of trustees to be known as the “Retirement Board of the County Employees’ Annuity and Benefit Fund.” Section 11 thereof authorizes the County Board to levy a tax of not more than 35/200ths of a mill on the dollar of the assessed valuation of all taxable property in the county for the purpose of providing revenue for such annuity and benefit fund, and that the amount of the tax to be levied in each year shall be certified to the County Board by the Retirement Board. Under the provisions of the Act of 1925, the employees of Cook county are divided into two general classes, namely, “present employees” and ‘future entrants. ’ ’ These two general classes embrace several distinctive groups within each class. However, the only group of interest in the consideration of this case is the group to which the plaintiff belonged, namely, the group defined in paragraph (a) of the definition of “Present Employee” in section 12 of the act (par. 199, ch. 34, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 100.397]). Such paragraph defines the group as “Any employee who shall be in the employ of such county on the thirty-first day in the month of December of the year in which this Act shall come in force and effect in such county who shall become a contributor to the annuity and benefit fund herein provided for on the first day in the month of January of the first year after the year in which this Act shall come in force and effect in such county. ’ ’ Plaintiff was in the employ of Cook county on December 31,1925. He was a contributor to the annuity and benefit fund on January 1,1926. The dispute between the parties arises from the construction of the provisions of the statute governing the annuity accumulations applicable to relator. Section 15 of the act (par. 202) directs that “age and service annuity” shall be provided for future entrants and present employees. Section 17 (par. 204) provides that annuities shall be based on deductions from salary received subsequent to January 1, 1926. Under this section 3% per cent of the salary is deducted for age and service annuity and 5% per cent is contributed by the county, or a total of 9 per cent and contributions by the county terminate when the employee attains the age of 65 years. Section 18 (par. 205) directs that annuities to be known as “prior service ’ ’ annuities shall be provided for present employees in addition to age and service annuities. Section 19 (par. 206) lays out the method of accumulating the money for the prior service annuities. These two annuities, namely, age and service annuities and prior service annuities, together constitute the total annuity payable to a present employee. No other or different annuity, pension, bonus or award is granted to him in consideration of his service as an employee of the county. The annuity so granted is based on his salary deductions and contributions by the county allocated to his credit, until he attains the age of 65 years. These credits are improved by the addition of interest each month. Section 19 of the act (par. 206) prescribes the method of building up the monetary accumulation in computation of prior service annuity. The section directs that as soon as the Retirement Board ascertains the amounts which have been deducted from the pay of each present employee and applied to the county pension fund in operation at the time the superseding act came into effect, and also all other amounts paid into such fund according to law by such present employee, before January 1, 1926, the board shall credit to the account of such employee in the annuity and benefit fund an amount equal to the aggregate of all such sums deducted from his salary and otherwise paid by Mm, with interest on such amounts at the rate of 4 per cent per annum from the end of the month in which such amount has been deducted or paid, to January 1, 1926, and shall also credit to the account of such employee an amount equal to 9 per cent of his annual salary as it shall be on January 1,1926, for a period of time equal to that of the service rendered by such employee prior to January 1, 1926, with interest thereon at the rate of 4 per cent per annum to January 1, 1926, such interest being computed on the assumption that V12 of such 9 per cent of such annual salary was due at the end of each month of such service. The section further provides that each amount to the credit of such person employed shall be improved with interest at the rate of 4 per cent per annum during the time thereafter that such present employee remains in the service of the county until the amount of annuity to which such present employee shall have a right, shall be fixed according to the provisions of section 27 (par. 214). It will be observed that under section 17, 3%. per cent of the salary is deducted for age and service annuity and the taxpayers of the county are required to contribute 5% per cent. These two items make up the total of 9 per cent, which forms the basis for the annuities. Therefore, when under section 19 the board credited relator’s account with an amount equal to 9 per cent of his annual salary from the commencement of his employment until January 1, 1926, on the basis of his salary as of January 1,1926 (prior service annuity), it credited him not only with the full amount of the county contributions (5% per cent) for the entire period of his service, but also with the entire amount of salary deductions which would have been paid by him had deductions been made from his salary at the rate of 314 per cent from the beginning of his employment with the county down to January 1, 1926. Section 17 also provided that the 314 per cent of salary, representing salary deductions for the prior service annuity fund, for the period from the beginning of his employment, down to January 1,1926, which the county advanced to him for credit on his annuity account, should be paid back by means of continued deduction from his salary after he attains the age of 65 years while he is in the service of the county, the purpose of these deductions being to repay the amount advanced by the county for the period prior to January 1, 1926. It is undisputed that under the 1926 Act the contributions by the county are required to be terminated at the time the employee attains the age of 65 years, while the deductions from the salary of the employee are to be continued after his attainment of that age until the amount deducted from his salary and paid into the annuity fund, plus his payments in the pre-existing pension fund, is equal to the amount that would have been deducted from his salary, had deductions at the rate of 314 per cent been made from his salary during the entire period of his service, including the period of service rendered by him prior to January 1,1926. The reason why this group of employees was required to continue paying the salary deductions into the fund after the attainment of the age 65, was because the county, out of taxes, had placed to the credit of the employee concerned the full amount of county contributions for his period of service prior to January 1, 1926, and had also credited to his account, out of taxes, the full amount of the deductions from salary which this section required him to repay into the fund after attainment of the age 65, if he continued in the service.

However, the legislature adopted an act to amend certain sections of the County Employees’ Annuity and Benefit Fund Act, which amendatory act was approved July 10, 1935. Section 61a thereof, (par. 248a, ch. 34, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 100.447(1)]) reads:

“Notwithstanding the provisions of any other section or sections of this Act, all deductions heretofore made from the salary of any employee in the service on July 1,1935, and paid into the annuity and benefit fund herein provided for after the said employee reached the age of sixty-five (65) years and prior to July 1,1935 shall be used to increase the annuity of said employee in the same manner and to the same extent as deductions made from the salary of said employee before the age of 65 years is reached. Beginning with July 1, 1935, no deductions shall be made from the salary of any employee after said employee shall have reached the age of sixty-five (65) years.” At the same session of the legislature, another amendment was adopted, known-as Section 61b, (par. 248b [Jones Ill. Stats. Ann. 100.447(2)]). This amendment was approved July 6, 1935, and reads:

“Section 61a of this Act as amended, shall be interpreted to apply only to employees described in subdivision (a) in the definition of present employee in section 12 hereof. In the case of any employee other than one described in the definition of present employee in said subdivision (a) of said section 12, deductions from salary and contributions by such county shall be made as provided in sections other than section 61a of this Act as amended, until the amount of annuity to which such employee shall have a right shall become fixed. When the annuity of any such employee shall become fixed, no further deductions shall be made from the salary of such employee for any purpose of this Act.” After relator reached the age of 65 years, on June 7, 1931, deductions were made from his salary until July 1,1935, which was the date when section 61a became effective. From the latter date no deductions were made from his salary. In computing relator’s annuity, the board credited him with deductions from his salary from July 7, 1931, when he became 65 years of age, to July 1, 1935, when section 61a became effective, plus interest on such deductions from the respective dates of payment to July 1, 1935. The present controversy arises from the conflicting contentions as to the meaning of section 61a. This section provides that notwithstanding the provisions of any other section or sections of the act, all deductions theretofore made from the salary of any employee in the service on July 1, 1935, and paid into the annuity and benefit fund after the employee reached the age of 65 years, and prior to July 1, 1935, shall be used to increase the annuity of the said employee in the same manner and to the same extent as deductions made from the salary of the said employee before the age of 65 years is reached. It is the contention of the relator that unless the county, concurrently with each deduction from plaintiff’s salary from June 7, 1931, when he became 65 years of age, until July 1, 1935, contributes 5% per cent of the salary of the employee with each deduction from the salary of the employee, the deductions made from the salary of relator will “not in the same manner and to the same extent,” increase his annuity as deductions made from his salary before he reached the age of 65 years would do. It is the theory of relator that it is the duty of the county to make contributions concurrently with each deduction from the salary of the relator after he reached the age of 65 years up to and including July 1, 1935. The defendants, on the other hand, insist that the only modification and the only additional grant given to the employees affected was that they should have placed to their credit for annuity purposes “deductions made from their salaries” and paid into the fund subsequent to their attainment of age 65 years, and prior to July 1,1935, and that no further deductions should be made from their salaries after July 1, 1935. Defendant argues that there is no provision in section 61a that the Retirement Board, acting for the taxpayers, should pay into the fund to the credit of such employee any contributions by the county for any period subsequent to the employee’s attainment of age 65. Defendants further state that the accumulations to the credit of the relator which were and are used in computing his annuity, are the following: 1. The accumulated sum' credited to him for prior service annuity, upon his attainment of age 65. 2. The accumulated sum credited to him upon his attainment of age 65 from deductions made from his salary and paid into the pre-existing county employees’ pension fund. 3. The accumulated sum credited to him at age 65 from salary deductions, beginning with January 1, 1926. 4. The accumulated sum at age 65 derived from contributions by the county until his attainment of age 65. 5. The accumulated sum upon July 1, 1935, derived and resulting from the release of the deductions made from his salary after he had reached the age of 65 years and prior to July 1, 1935, granted to him by section 61a of the act. On the basis contended for by defendant, relator’s annuity was computed as of the age of 65 on an allowance of a total sum of $5,542.92. The monthly annuity of $54.96 was arrived at according to the formula prescribed by the act, using the American Experience Table of Mortality, and interest at the rate of 4 per cent per annum, and the tables set out in “Life Expectancies” by E. T. Spurgeon, (1932 edition, pages 128-129). The relator contends that if he be credited with additional contributions by the county from July 7, 1931, when he reached the age of 65 years, to July 1,1935, plus interest on such contributions, and interest on Ms accumulations of $5,307.30, (the amount to his credit at age 65) to July 1, 1935, and if Ms annuity be computed as of age 69 instead of age 65, he will receive a montMy annuity of $80.88.

The annuity fund is derived from deductions from the employees and contributions by the taxpayers of the county, plus interest. Throughout the act the distinction between deductions and contributions is emphasized. The age of 65 years, specified to be used in computing annuities, was adopted to encourage employees to retire after reaching that age. For this reason the act provides that no contributions are to be made by the county after the employee attains the age of 65 years, and that no matter what his age should be when he retired, an employee’s annuity would be fixed on an assumed age of 65 years. In this manner, continued service of an employee (after his annuity accumulation had reached its maximum) would not increase his annuity, and any possibility of increasing his annuity was not held out as an inducement to an employee to continue in the service. On the basis of relator’s reckoning, his annuity would be computed as of the age of 69 instead of as the age of 65. We agree with the relator that the act is remedial and should be given a liberal construction. Section 61a states that the deductions theretofore made shall be used to increase the annuity of the employee in the same manner and to the same extent as deductions made from the salary of an employee before the age of 65 years is reached. The board did increase relator’s annuity by adding the deductions for the period from June 7,1931, to July 1, 1935, plus interest. The manner and extent of increasing the annuity by adding the deductions and interest was in accordance with directions of the legislature. Had the legislature intended to increase the annuity by a contribution from the taxpayers of the county, (in addition to crediting the salary that had been deducted) it would have so indicated by the act. By crediting the relator with salary deductions from 1931 to 1935, the Retirement Board gave to him all the benefit which the act intended. A careful consideration of the entire act does not show a legislative intent that contributions shall be made by the county after the employee reaches the age of 65 years. If the county had not credited the relator with the 3% per cent which (theoretically) he should have contributed to the fund from the commencement of his service up to January 1,1926, it would have been unnecessary to deduct from his salary after he reached the age of 65 years. The purpose of section 61a was to give him credit in the annuity fund for the amount deducted from his salary after he became 65 years of age and until such amendment went into effect. Section 61b was adopted at the same session of the legislature as section 61a, and is complementary thereto. The purpose of section 61b is to make it clear that the beneficial features of section 61a are limited to the employees described in subdivision (a) in the definition of “Present Employee” in section 12. This is the group to which relator belonged. Section 61b, after limiting the operation of section 61a to employees of the group to which relator belonged, specifically provided that in the case of the other and less favored employees of the county ‘ ‘ deductions from salary and contributions by such county” should continue to be made as provided in the sections other than section 61a of the act. It is manifest, therefore, that at the time the amendments known as sections 61a and 61b were adopted, the legislature had in mind the distinction between deductions and contributions, and deliberately left out of section 61a any requirement for contributions by the county. Section 61a deals solely with contributions by the employee and makes no reference to contributions by the county. Section 61b deals with both. Section 61a does not make any reference to changing the age as of which annuities shall be computed, nor as to payment of interest on all contributions, to age 69. Nevertheless, relator’s claim for the increase of his annuity requires both a change from age 65 to 69 as the basic age of compensation, and the granting of additional interest to age 69 on all contributions, as well as the payment of additional contributions by the county to age 69. As we have seen, the act specifically designates age 65 as the fixed and terminating age to be used. Viewing the amendments of 1935 and their relationship to the entire act, we are of the opinion that the deductions made from the time he attained the age of 65 years until July 1, 1935, have been used to increase his annuity in the same manner and to' the same extent as deductions made from his salary before he arrived at the age of 65 years. Therefore, we conclude that the court was in error in holding that the relator had the right to be credited with contributions from the county from June 7, 1931, to July 1, 1935. '

A second point urged by the defendants is that section 60 (par. 247, ch. 34, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 100.446]) provides that “the retirement board shall have exclusive original jurisdiction in all matters of claims for annuities, pensions, benefits or refunds under this Act, and its actions on such claims shall be reviewable by the common law writ of certiorari only.” The instant action is in the form of a petition for mandamus. The defendants answered and did not raise any point as to the propriety of the form of the action. The parties were in agreement on the facts and treated the case as if it were a petition for •a writ of certiorari. As this point of procedure was not raised in the trial court, we will not consider it here. Defendants also point out that the commissioners of Cook county, in appropriating the full amount permitted by the act, performed their full duty, and that the allowance and the administration of the fund is in the hands of the trustees of the Eetirement Board. As we have decided that section 61a does not require the county to contribute to the annuity fund after the relator became 65 years of age, it is unnecessary to consider this and other points that are raised.

For the reasons stated, the judgment order of the superior court of Cook county is reversed.

Judgment reversed.

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


author: Mr. Justice Hebel

text:
    Henry L. Balaban, Appellee, v. Grace Williamson Willett, Appellant. Howard L. Willett, Appellant.
    Gen. No. 41,024.

      Heard in the third division of this court for the first district at the December term, 1939.
    Opinion filed May 22, 1940.
    Rehearing denied June 14, 1940.
    Robert E. Cantwell, Jr., of Chicago, for certain appellant.
    Cassels, Potter & Bentley, of Chicago, for certain other appellant; Martin W. Crosse, of Chicago, of counsel.
    West & Eckhart, William L. Morgan and David B. Rothstein, all of Chicago, for appellee; John Neal Campbell, of Chicago, and William L. Morgan, of counsel.
    Henry L. Balaban, pro se.

   Mr. Justice Hebel

delivered the opinion of the court.

This is an appeal by Crace Williamson Willett, the judgment debtor, and Howard L. Willett, the garnishee defendant, from a judgment order entered in the trial court on June 22,1939, finding that the plaintiff Henry L. Balaban, recover from the garnishee defendant the sum of $13,606.40.

Two issues were presented in the trial court. First, whether or not the funds sought to be reached in garnishment were subject to garnishment, and, second, whether or not the judgment against Crace Williamson Willett had been paid. .

It appears from the record that on December 5,1934, the plaintiff, an attorney, filed his complaint against the defendant Crace Williamson Willett praying that a judgment be entered for the sum of $23,500 for attorney’s fees for services performed by the plaintiff.

The garnishee defendant Howard L. Willett was named defendant in that complaint by reason of the fact that he had been theretofore served with a notice of attorney’s lien for the fees claimed, inasmuch as they were earned in matters in which, it was alleged, he was a party in interest. A default was taken in the case against the defendant Grace Williamson Willett, and the defendant Howard L. Willett was dismissed. On June 5, 1935, the defendant Grace Williamson Willett filed her verified answer asking that the default be vacated, and that she be permitted to defend the claim, alleging as her defense that the plaintiff Henry L. Balaban originally agreed to represent her in one injunction matter only, free of charge; that he later demanded $475, which was paid, and denying that he had represented her in other matters as alleged in the complaint. The default was vacated, and on February 14, 1936, after a trial before a court and jury, a judgment was entered against the defendant Grace Williamson Willett for $11,750. Thereafter on March 7, 1936, the plaintiff filed his affidavit in garnishment, naming as garnishee defendants the First National Bank of Chicago, the Continental Illinois National Bank and Trust Co. of Chicago and Howard L. Willett. The causes in garnishment against the two banks were disposed of in the trial court and will no longer be considered on this appeal.

Garnishee defendant Howard L. Willett filed his answer to the interrogatories in garnishment on March 30, 1936, alleging substantially that there was due the defendant Grace Williamson Willett the sum of $1,483.33 on April 1, 1936 and $1,000 per month thereafter through April, 1939, provided that she was alive on said dates.

The funds sought to be reached in garnishment were due. from the garnishee defendant to the principal defendant under an agreement entered into between the parties on the 1st day of May, A. D. 1934, by which Grace Williamson Willett surrendered all her right, title and interest in and to the property of Howard L. Willett and the Willett Motor Coach Company, a corporation, in consideration of the payment to her of certain funds specified in the agreement and the creation, by a separate instrument, of a certain trust of which she was the beneficiary.

It is to be noted that after the service of summons in garnishment, the garnishee defendant continued to pay the sums due under the terms of the agreement, and paid to the principal debtor a sum in excess of $45,000 after the service of the summons, including a payment of $1,000 on the day after he filed his answer in this cause.

Grace Williamson Willett filed her answer on January 10,1938, in which she alleged, substantially, that on November 24, 1936, the judgment of the plaintiff was compromised and paid by her, that she received a receipt, which is in words and figures as follows:

“11-24-36
Received payment by cash
(signed) Henry L. Balaban.”

Two handwriting experts, Rudolph B. Salmon and Katherine Keeler, testified concerning the disputed receipt. Rudolph B. Salmon, who was in the courtroom at the request of the attorneys for the defendant Grace Williamson Willett, and was called as a witness by the plaintiff, testified that the signature was a forgery. Katherine Keeler, who was also called by the attorneys for the defendant, Grace Williamson Willett testified that the signature was a forgery, but that the forgery was committed by the plaintiff Henry L. Balaban who forged his own signature in order that he might be in a position to deny it later. It may also be noted here that the prime reason for the delay in the hearing of the cause was that the defendant Grace Williamson Willett who, under the terms of the agreement was bound to defend the cause in garnishment, had prior to that time married a man named Chamberlain and moved to Prescott, Ontario in Canada.

On the 20th day of January, 1934, the defendant Grace Williamson Willett filed her complaint for separate maintenance in the superior court of Cook county against Howard L. Willett and the Willett Motor Coach Company, a corporation. All questions relating to the rights of the plaintiff, in that suit, in and to the property of the defendants were disposed of by an agreement dated May 1,1934. This agreement recites, in part, as follows:

“Whereas, it is the intention and the desire of the parties hereto that there will be a complete, final and effective settlement of their respective rights in and to the property of each other and the property held by them jointly, and a full relinquishment of all rights, interests and claims which the one party may otherwise have upon the property of the other:
“Now, Therefore, in consideration of the premises and to accomplish the ends sought, both parties, with full knowledge of the extent, value, and character of the property owned by them separately and jointly, which disclosure was made in open Court in the above proceeding, the transcript of which and exhibits are hereby made a part hereof by reference, and of their respective incomes, obligations, and needs, do freely and voluntarily agree by and between themselves as follows : ’ ’

It appears from the record that the garnishee defendant Howard L. Willett agreed to provide $100,000 for the purchase of an annuity paying $500 per month commencing two years after the date of the agreement, the annuities to contain a spendthrift clause. He further agreed to execute a declaration of trust and to hold pursuant to the same 1,666% shares of the common stock and 12% shares of the preferred stock of the Willett Motor Coach Company, a corporation, in trust for

the defendant G-race Williamson Willett. He further agreed in paragraph “C” thereof that for five years after the date of the contract, the defendant guarantied to G-race Williamson Willett that her income would be not less than $17,500 a year. He further agreed in paragraph “D” thereof to personally pay to the defendant G-race Williamson Willett $1,458.33 per month in advance for a period of two years after the date of the agreement and $1,000 per month for three years thereafter. He further agreed to pay some of her personal debts amounting to $5,036. This agreement recited in the third paragraph that there were claims against the defendant G-race Williamson Willett for legal services by Henry L. Balaban, Bennison F. Bartel and Nathan William MacChesney; that Henry L, Balaban and Bennison F. Bartel had served notice of attorney’s lien and that the garnishee defendant Howard L. Willett agreed to provide a sum not exceeding $3,200 to be used in settlement of all the claims, if the same could be settled for that amount; that in the event of any lawsuit or garnishment proceeding, G-race Williamson Willett would defend the same and in the event of a recovery against Howard L. Willett in excess of the sum of $3,200 he would have the right to reimburse himself for said excess out of the trust funds provided for in the agreement. In consideration thereof the parties released each other from any and all claims to the property of each other except as provided for in the contract.

The complaint for separate maintenance was amended so as to make the complaint one for divorce. The agreement was incorporated in the decree for divorce, by reference only, and its terms made a part of the judgment of the court with the same force and effect as any other judgment of a court of record.

Under the terms of the agreement the garnishee defendant paid to the principal defendant a sum totalling $70,073.27 up to the date of the entry of the order appealed from, of which more than $45,000 was paid to the principal defendant after service of summons in the garnishment proceedings.

By the terms of the agreement entered into between Mr. and Mrs. Willett the payments provided for become due and payable by Mr. Willett to Mrs. Willett on the first of each month, in the event that Mrs. Willett is then living. In the event Mrs. Willett should die prior to the first day of any given month during the five-year period, no money which otherwise might become due, would be due and payable by Mr. Willett. Such is the contention of the defendants, and they further point to the fact that by the terms of the agreement these payments did not become due and payable until the first of each month and not before, and if Mrs. Willett could not, either on the date Mr. Willett was served with garnishee summons, or on March 30, 1936, the date of the filing by Mr. Willett of his answer in garnishment, call upon Mr. Willett to pay her the instalment which became due and payable on the first of the month following the filing of Mr. Willett’s answer of “No funds,” then Henry L. Balaban, the garnisher, could not do so either. In support of the position of these defendants they call the court’s attention to the case of Capes v. Burgess, 135 Ill. 61, where the court said: “The question remains, however, whether the judgment creditors of Capes can, by process of garnish-' ment, litigate said claim for unliquidated damages and subject it to the payment of their judgment, and that is a question of law which is open for review in this court. The Appellate Court decided this question in the negative, and after maturely considering the arguments of counsel submitted here, we are disposed to concur in the conclusion reached by that court.

“The remedy by garnishment is statutory, and the question of its application to any given case or class of cases is therefore purely a matter of statutory regulation____The rule is accordingly laid down by the leading text-writers on the subject of Garnishment, that in no case where the claim of the defendant against the garnishee rests in unliquidated damages can the garnishee be made liable. Drake on Attachments, sec. 548; 2 Wade on Attachment and Garnishment, sec. 447; Waples on Attachment and Garnishment, 197,...”

The plaintiff calls our attention to the third paragraph of the agreement, wherein it is recited that there were claims against the defendant Grace Williamson Willett for legal services by Henry L. Balaban, Bennison F. Bartel and Nathan William MacChesney; that Balaban and Bartel had served notice of attorney’s lien and that garnishee defendant Howard L. Willett agreed to provide a sum not exceeding $3,200 to be used in settlement of all the claims, if the same could be settled for that amount; that in the event of any lawsuit or garnishment proceeding, Grace Williamson Willett would defend the same and in the event of a recovery against Howard L. Willett in excess of the sum of $3,200 he would have the right to reimburse himself for said excess out of the trust funds provided for in the agreement.

, The question involved seems to be does a relationship of debtor and creditor actually exist between the principal defendant and the garnishee defendant, where a fund is sought to be reached in garnishment, or is there merely a contingent relationship between the principal defendant and the garnishee defendant, the actual existence of which depends upon the happening of a condition precedent. It is submitted by the plaintiff that the agreement set up a debtor-creditor relationship between Grace Williamson Willett and Howard L. Willett without contingency. If the debtor-creditor relationship actually exists then for the purpose of garnishment the time and manner of payment are immaterial. The case of Miller v. Scoville, 35 Ill. App. 385, where the test above mentioned was applied. In that case the plaintiff filed an affidavit and summons in garnishment seeking to attach a sum due upon a building contract from the garnishee defendant to the principal defendant. The contract between the parties provided that the garnishee defendant should retain 10 per cent of the contract price until it should be completed, and so certified as completed by an engineer named therein. The garnishee defendant argued that the fund retained was contingent upon the certification by the engineer and could not therefore be reached in garnishment. In affirming a judgment against the garnishee defendant in favor of the plaintiff the court said:

‘ ‘ The contingency, it is argued, which was to render the debt due and certain, was obtaining the engineer’s certificate that the contract was performed, and until that was produced it could not be known that appellants were indebted at all. The vice in that argument lies in the assumption that the certificate of the engineer created the debt from appellants to the firm which executed the work. The words of the contract relating to the final payment are, ‘party of the second part hereby agrees that whenever this contract shall be completely performed on the part of the said party of the first part, and the engineer has certified the same in writing, the said party of the second part shall, within ten days thereafter, pay to the said party of the first part any remaining sums due for the said work according to this contract. ’ This makes the certificate relate to the time when the debt shall be discharged; not to the creation of it. The performance of the work under the contract created the debt between the parties, but its collection by action might not be enforced till the certificates should be produced, or a legal excuse for its non-production shown. The contingency that will render a debt not garnishable must be one that affects the debt itself, and not the amount of it or the time or manner of payment. ’ ’

When we come to examine the contract in the instant case we find that the debt sought tobe reached was created by the signing of the contract between the parties, and its collection could not be enforced until the amount provided for in the contract was due.- It further appears that in the instant case in this court the liability existed as of the date of the contract, for there is no provision within the four corners of the contract providing that as a condition precedent to any monthly payments Mrs. Willett must be alive on the first day of the month. This liability is fixed by the terms of the contract and the fact that the garnishment may be defeated by a condition subsequent will not defeat the debt that was due under the terms of the contract at the time the garnishment proceeding was instituted.

The plaintiff further points to the fact that the cases cited by the defendants support the plaintiff’s contention namely that if the liability is fixed the time, manner and amount of payment are questions that may be determined in a garnishment suit and will not defeat the garnishment. In Wheeler v. Chicago Title & Trust Co., 217 Ill. 128, the liability of the garnishee defendant did not come into existence until its appointment as executor. In Capes for use of Haynes, Gordon & Co. v. Burgess, 135 Ill. 61, the liability of the garnishee defendant was contingent upon a finding against him by the court. In Schneider v. Autoist Mut. Ins. Co., 346 Ill. 136, the liability of the garnishee defendant was contingent upon the finding of such liability by the court. In Hanover Fire Ins. Co. v. Conner for use of Farnum, 20 Ill. App. 297, a judgment against the garnishee was sustained because the garnishee defendant by the terms offits policy of fire insurance had not made a filing of a proof of loss under the terms of the policy a condition precedent to recovery. Since its liability was fixed the court permitted a recovery against the garnishee even though the amount of the payment due had not been ascertained. In Zimek for use of Fieldcamp v. Illinois Nat. Casualty Co., 370 Ill. 572, a judgment against the garnishee was affirmed. The court stated: “In the present case it is said the claim is contingent because the casualty company denies that it is liable to Zimek under the terms of the policy of insurance. But defendant misconceives the nature of the contingency contemplated by the rule. A contingent claim is one where liability hinges upon some future event, which may or may not occur; it is dependent upon some condition as yet unperformed. . . . Here, whatever right Zimek has against the company has vested; all the events which can fix the garnishee with liability have taken place.” As we have indicated, the debt sought to be reached is not contingent, because it is fixed in the agreement, and further, the liability does not hinge upon the happening of a future event, which may or may not happen, and, that it is subject to garnishment.

Counsel for the defendants, contend that the payments made by Howard L. Willett to Grace Williamson Willett subsequent to the entry of the decree of the court on May 21,1934, were paid as the income from a spendthrift trust which cannot be reached in a garnishment proceeding, and refer to the agreement which was entered into between the parties in contemplation of a divorce between the parties and declaration of trust which was approved and made a part of the judgment of divorce.

After stating the facts which led to the execution of the contract in question, it appears from its terms that—

“Now, Therefore, in consideration of the premises and to accomplish the ends sought, both parties, with full knowledge of the extent, value, and character'of the property owned by them separately and jointly, which disclosure was made in open Court in the above proceeding, the transcript of which and exhibits are hereby made a part hereof by reference, and of their respective incomes, obligations, and needs, do freely and voluntarily agree by and between themselves as follows:

“First: This agreement is expressly declared by both parties to be effective only in the event the Court, upon due and proper consideration of the bill as amended and the evidence adduced in Court, shall enter a Decree of Divorce severing the bonds of matrimony. In the event the Court, upon due and proper consideration of the bill, as amended, and the evidence so adduced, shall not enter a Decree of Divorce so severing the bonds of matrimony, then this agreement shall be and become null and void.

“Second: Said Howard L. Willett hereby agrees to do the following things:

“A. To provide a fund of One Hundred Thousand Dollars ($100,000) to consist of cash in the amount of Thirty-four Thousand Dollars ($34,000) and his Two (2) Principal Promissory notes for Thirty-Three Thousand ($33,000) each, due on or before One and Two Tears respectively from the date of this Agreement, which cash and notes shall be delivered by said Howard L. Willett to such Insurance Company or Companies as shall be selected by the Court, and cause said Insurance Company or Companies so selected to deliver to said Grace Williamson Willett its or their pure annuity policy or policies which will pay, beginning two (2) years from the date hereof, a fixed annuity of not less than Five Hundred Dollars ($500) per month for and during her lifetime. Said annuity contract or contracts shall also provide substantially as follows:

“ (1) They shall be irrevocable and contain substantially the following spendthrift clause; That said annuity cannot be anticipated by her nor assigned nor be subject to levy, execution, or garnishment, and shall not in any wise be liable to any claim of any creditor of the said Grace Williamson Willett.” And this contract provides further that:

“Said Howard L. Willett shall execute a Declaration of Trust whereby he will hold, as Trustee, One Thousand Six Hundred Sixty-six and Two-thirds (1,666%) shares of the common stock and Twelve and Two-thirds (12%rds) shares of the preferred stock of the Willett Motor Coach Company, a New Jersey Corporation, now owned by him, for the use and benefit of Grace Williamson Willett. ’ ’ And in and by the contract that:

“Howard L. Willett guarantees to Grace Williamson Willett that her income shall be not less than Seventeen Thousand Five Hundred Dollars ($17,500) a year for the first five years from and after the date of this contract.” The contract further provides by its conditions that: payments may be made for a period of two years, or until the annuity payments commence under the annuity contracts, and shall be the sum of $1,458.33 per month in advance, and thereafter, for the remaining three years of the five-year period, $1,000 per month in advance; provided, however that Howard L. Willett shall be entitled to reimburse himself for said payments so made only out of the income payable to Grace Williamson Willett by the provision of the declaration of trust. Such are the conditions provided for and must be considered as to whether the amounts so provided for payment are subject to garnishment proceedings.

The plaintiff suggests to this court that the trust must fail as against creditors, for Grace Williamson Willett did not secure the benefits of the same by way of gift but by way of purchase and, because of that fact, it is a fraud upon the creditors, and directs this court’s attention to the contract and trust agreement, and states that the first question is as to the contract and trust agreement entered into by the parties; that the contract first recited that it was entered into in order to settle a cause then pending in the superior court of Cook county, Illinois, entitled “Grace Williamson Willett v. Howard L. Willett and the Willett Motor Coach 'Company, a corporation,” and that the contract further recites that it is the intention of the parties to that contract to effect a complete settlement of their respective rights in and to the property of each other and the property held by them jointly, and then the contract further provides, that each party waives and releases the property of the other, now owned or hereafter acquired from an inchoate right of dower, claim or title, contingent, reversionary or otherwise; that each party shall be free to deal with his separate estate as if unmarried, and that Grace Williamson Willett releases any claims or demands that she then owned or would afterwards acquire against Howard L. Willett. The recitals in the contract do not present the interest, if any, that Grace Williamson Willett had in the property of Howard L. Willett or what stock, if any, she owned in the Willett Motor Coach Company, a corporation. It can be fairly assumed however that she had some present interest from the wording of the contract. By its terms she surrendered that interest and agreed to sign the necessary deeds to effect the surrender, and her right to share in the property of Howard L. Willett upon his death, and it was in consideration therefor the trust was created for her benefit, and the plaintiff cites the case of ReQua v. Graham, 187 Ill. 67, in support of his theory that the contract was a purchase contract. It appears in that case that the testatrix bequeathed to her husband the annual sum of $1,800 during his natural life, payable in quarterly instalments, provided he would accept the annuity in lieu of any and all claims that he might have against her estate. He so accepted. A creditor’s bill was filed to subject the annuity to payment of his debts. He defended upon the theory that since the trust had in good faith been created by and had proceeded from a person other than himself it was exempt from claims of creditors under sec. 49 of ch. 22 of the Illinois Statutes then in force. That section of the statute is still the law in this State (ch. 22, § 49, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 106.12]). The question before the court in that case was whether or not the trust was created by some person other than the debtor in order to bring it within the statute. The court upon the questions involved said:

“In order to bring a case within the exception of the statute it is necessary that the trust fund proceed from some person other than the defendant himself. If the trust fund in this case proceeded from John F. Nichols himself it does not fall within the exception. of the statute and is not protected. The annuity in question was a mere offer by Mrs. Nichols to her husband for the purchase of his interest in her estate. He was at liberty to accept or reject the same, and having accepted it, he took it as a purchaser and it is subject to the payment of his debts, the same as any other legacy. ’ ’ And the court further said: (quoting from the case of Isenhart v. Brown, 1 Edw. Ch. 413, approved in Carper v. Crowl, 149 Ill. 465).
“ ‘So, on the other hand, the husband offers a price for his wife’s legal right of dower, which he proposes to extinguish, and if she agrees to the terms she relinquishes it and is entitled to the price. It is therefore a matter of contract of convention between them, and what she thus becomes entitled to receive is not by way of bounty, like other general bequests, but as purchase money for what she relinquishes. ’ In the case of Bank of Commerce v. Chambers, 96 Mo. 459, a husband who released his curtesy in his wife’s estate, accepting in lieu thereof an income given him by her will, was regarded as a purchaser of such income and not a mere recipient of his wife’s bounty, and the income was held subject to claims of his creditors, notwithstanding the provisions of the will exempting it from such claims. ”

So, when we come to consider the questions involved in the instant case, Mrs. Grace Williamson Willett, the defendant, surrendered, at least, her dower interest in the estate of the garnishee defendant during his lifetime, and what she received therefor was in payment as purchase money for such surrender, and it appears that what she did amounted to nothing more than the purchase of an annuity by her or the creation of a spendthrift trust by her in her own favor with the purchase money received, and that therefore the proceeds of the trust, both principal and income, are subject to garnishment.

The defendants complain of the dilatory tactics of the plaintiff in this action, and argue that the acts of the plaintiff were what caused a delay in the disposition of the litigation. The plaintiff answers that the defendant Grace Williamson Willett caused this delay, and not the plaintiff. The defendants agreed to defend any cause in garnishment instituted by the plaintiff, and both parties to the property settlement agreement agreed that she should have the right to make a defense of her own in any such action. According to the record she did not appear in this case until January 10, 1938, almost two years after it was filed. She had in the meantime married a Mr. Chamberlain and moved to Canada and had great difficulty in coming to Chicago for hearings. Inasmuch as she was defending upon the theory of payment of the judgment, the cause could not be disposed of until she appeared therein and she should not now be heard to complain that there was any delay in the disposal of the cause. That seems to be the reason for the delay, if any, and we do not believe from the facts it would be just to charge that the plaintiff was guilty of any delay, or that the delay was prejudicial to the rights of the garnishee defendant.

Another question which we think should be considered is as to the findings of fact of the court, which are controverted. The general rule is that a reviewing court will not disturb findings of fact of a trial court based upon conflicting evidence unless they are clearly and manifestly against the weight of the evidence, and in this case upon the facts the judge who heard and saw the witnesses was in a better position to determine the facts than is this court. In Moore v. David J. Molloy Co., 222 Ill. App. 295, this court upon a like question said:

“It is also well settled that the finding of a judge to whom a cause is submitted for trial without a jury is entitled to the same weight on controverted questions of fact as the verdict of a jury, and will not be set aside by an appellate tribunal unless it is manifestly against the weight of the evidence.”

One of the questions before the trial court was whether a receipt offered in evidence, written in longhand and sent to Mrs. Willett, was signed by the plaintiff. It does not recite how much money was received and is dated November 24, 1936. From the testimony of Mrs. Willett it appears that she sent this money wrapped up in a brown paper package with her laundress, Mathilda Camp, to the plaintiff’s office; that she did not remember the denominations of the bills; that she did not instruct the laundress to obtain a receipt for the money, that the laundress did not know what was in the package. It also appears from the evidence of a friend of Mrs. Willett that Mrs. Willett sent the $3,200 because a Mr. Warren Keith, a messenger from Mr. Balaban’s office told her that the judgment could be settled for that amount; that Mrs. Willett never saw Mr. Keith in Mr. Balaban’s office; that she did not call Mr. Balaban or any of her attorneys to verify Mr. Keith’s statement, and she had seen Mr. Keith only once before, not in Mr. Balaban’s presence. It seems from Mrs. Willett’s story that Mr. Keith had returned a book, “The Love Match,” which it is claimed Mr. Balaban had previously borrowed from Mrs. Willett; that Mr. Keith is a resident of California and his whereabouts was unknown at the time of the hearing. Before calling on Mrs. Willett in 1936, Mr. Keith left a note for her stating “I am passing through the City and I would like to return the book I had borrowed from you.”

The evidence is disputed, and from plaintiff’s evidence it appears that he never received the $3,200; that the indorsement on plaintiff’s exhibit 1 of the receipt, was not in his handwriting, and he did not know a man named Keith; that he did not borrow the book entitled “The Love Match”; that Mathilda Camp did deliver a package to his office on November 14, 1936, consisting of papers for which she got a typewritten receipt; that he arranged a settlement for Mrs. Willett with her husband for $478,000, computing the value of real estate holdings, cash and equities, and stock in the Willett Company, which in 1933 appraised at $478,000, and this settlement Mrs. Willett refused. The settlement ultimately made was in lieu of alimony and property rights, and Mrs. Willett then discharged the plaintiff and engaged other counsel.

There is evidence of handwriting experts who passed upon the questioned documents. As to whether the plaintiff signed this purported receipt, is a question.

It is apparent that the facts were in dispute. The court passed upon them, and we are of the opinion that the evidence supports the findings of the court and that the conclusion of the court is not against the manifest weight of the evidence. We believe the court was justified in entering the judgment order finding that the plaintiff Henry L. Balaban recover from the garnishee defendant the sum of $13,606.40.

Judgment affirmed.

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