text:
    James G. Mastin, Appellant, v. National Tea Company and Joseph Wych, Appellees.
    Gen. No. 37,531.
    Opinion filed December 19, 1934.
    Charles C. Spencer, of Chicago, for appellant.
    Kelly, Pratt & Zeiss, of Chicago, for appellees; Will A. Kelly, of counsel.
   Mr. Presiding Justice Hebel

delivered the opinion of the court.

The petitioner, plaintiff below, filed a petition in this court for leave to appeal from the order entered by the trial court granting a new trial to the defendants, which- was allowed.

In support of this appeal it appears from the record that the plaintiff was injured July 14, 1930, on Lake street at the intersection of Albany avenue, in Chicago, by an automobile owned by the defendant National Tea Company, and driven by Joseph Wych, also a defendant. Plaintiff instituted suit and after trial, the jury returned a verdict finding the defendants guilty and assessing plaintiff’s damages at $7,500. On March 23, 1934, the trial court entered an order setting aside the verdict and granting the defendants a new trial, which was granted principally upon the ground of the failure of the witness Dr. N. B. Snell, who testified for the plaintiff, to return and give further testimony and to produce certain X-ray pictures.

The facts in the record are substantially that at the time of the accident the plaintiff was a physician and surgeon engaged in the active practice of this profession in the City of Chicago. On July 14,1930, at about 11 o’clock in the forenoon, plaintiff was walking west on the south side of Lake street, across the intersection of Albany avenue at that point. On the southwest corner of the two streets is a used automobile market and there were at the time of the accident automobiles standing parked both along the south side of Lake street and on the west side of Albany avenue, close to the corner. The plaintiff looked for traffic in both directions before going across Albany avenue, and could see none coming. When he was almost across Albany avenue and within a few feet of the west side of the street, defendants’ automobile came from the west on Lake street, turned the corner south into Albany avenue at a rapid rate of speed, and without warning of its approach and while the plaintiff was endeavoring to get away from the automobile, struck him when he was within a few feet of Albany avenue, knocking him down and injuring him.

There was also evidence by the witness Edward Fay, who lived at Port Washington, Wisconsin, corroborating the statements made by the plaintiff.

Defendant Wych was' the only eyewitness to the accident who testified on. behalf of the defendants. He testified that he did not drive east on Lake street and turn the corner into Albany avenue, but that he came south on Albany avenue, across the street car tracks on Lake street, and that the plaintiff walked into the side of his slowly moving automobile.

As we have already stated, the trial court entered an order granting the defendants’ motion for a new trial, from which order the plaintiff is petitioning for leave to appeal, as provided for by sec. 77 of the Civil Practice Act, Cahill’s St. ch. 110, ¶ 205, Rule 20 of this court, and Rule 30 of the Supreme Court.

It appears from the record that upon the trial of the case Dr. N. R. Snell was a witness for the plaintiff, and testified he had known the plaintiff for many years, and had attended and treated him for the injuries in question; that he called on him first on July 21, 1930. Dr. Snell described the injuries, his treatment thereof, and the progress of the plaintiff after his treatment. He also testified that on February 19, 1934, he took X-ray pictures of the plaintiff’s knees. These pictures were received in evidence without objection. It also appears from Dr. Snell’s evidence that about a week or two after the injuries to plaintiff he took X-ray pictures, but that from these X-rays it did not appear there were any bony changes in the joint at that time. He also testified that these X-rays were taken on July 21, 1930. On cross-examination by W. A. Kelly, counsel for the defendants, it appears that the doctor testified that he believed the first X-rays were still at his office, and that upon request he would try to find them; that his practice had been to keep the X-rays taken by him for about a year or a year and a half. After the redirect examination of this witness was concluded, Mr. Kelly stated as follows:

“Mr. Kelly: I think, if your Honor please, I would like to have the doctor bring in those X-rays that were first taken in this case.
“Mr. Spencer (counsel for plaintiff): If you can find them, will you bring them in!
1 ‘ The Witness: I will.
“Mr. Spencer: When were they taken!
. “The Witness: They were taken two or three weeks after.
“Mr. Spencer: That is •all.”

The doctor then left the court room and did not return.

The principal question before the court is: Did the trial court in granting a new trial upon the ground that the witness, Dr. N. R Snell, did not return to the court for further examination, err in setting aside the verdict! The witness, as we view the record, was to make a search for certain X-ray pictures taken by him shortly after the injury to the plaintiff. The doctor testified for the plaintiff, and was examined and cross-examined, and at the close of the examination by the lawyers for each of the parties, the doctor was permitted to go. He stated in court, however, that upon request he would make a search for the X-ray pictures wanted by the defendants, and if he found them he would bring them to the court.

The trial proceeded and the defendants continued to offer evidence. The failure of the witness to return was not made the subject of an objection at any time during the trial, and no doubt if it had been properly called to the attention of the trial court, a motion for leave to withdraw a juror and the case continued, would have been considered. The defendants speculated as to the outcome of the cause, and having submitted the cause to the jury, are not now in a position to complain. If the witness Snell was subject to puniskment for contempt of court in failing to return, such action should not have deprived the plaintiff of the benefit of the testimony of this witness. City of Chicago v. Powers, 117 Ill. App. 453. While the court has the discretion to refuse to permit such witness’ testimony to stand, still its discretion is not an arbitrary one, and its abuse is subject to review. Ewing v. Cox, 158 Ill. App. 25. So by analogy, this rule would apply in the instant case to determine whether the court abused its discretion in the granting of a new trial. It is apparent that the trial court at the time the motion for a new trial was heard was of the opinion that the evidence sustained the plaintiff’s declaration, but was also of the opinion that the failure of the doctor to appear may have had an influence as to the amount of the plaintiff’s damages. This matter was not disposed of at the trial, but was made the subject on an objection by the defendants in support of their motion for a new trial. The trial court allowed a new trial, notwithstanding no objection was made by the defendants at the time of the trial, and as we regard the record in this particular case, the court erred in granting this motion.

We have considered the evidence and are of the opinion that the verdict is not contrary to the evidence and that the amount of damages sustained by the plaintiff is not excessive.

After reaching the conclusion that the court erred in granting a new trial, the question then arises: Can this court enter a judgment upon the verdict of the jury without remanding the cause to the court below, with directions to enter judgment on the verdict ?

Upon an examination of par. 220, sec. 92, eh. 110, of the Civil Practice Act, Cahill’s Ill. Rev. St. 1933, providing for the granting of powers to a reviewing court, under subsection (f) it is provided:

'“Give any judgment and make any order which ought to have been given or made, and make such other and further orders and grant such relief, including a remandment, a partial reversal, the order of a partial new trial, the entry of a remittitur, or the issuance of execution, as the case may require, ’ ’ which provision gives this court the power to enter the judgment that should have been entered by the trial court.

For the reasons stated, the order of the court granting a new trial is reversed and set aside and judgment entered on the verdict of the jury in favor of the plaintiff and against the defendants in the sum of $7,500.

Order reversed and judgment here.

Wilson and Hall, JJ., concur.


source: Caselaw Access Project

author: Mr. Presiding Justice Hebel Mr. Peesiding Justice ITebel

license: Public Domain

text:
    The People of the State of Illinois, Appellee, v. Elmer E. Cowdrey, Appellant.
    Gen. No. 37,580.
    Opinion filed December 19, 1934.
    Rehearing denied and additional opinion filed January 11, 1935.
    Martin Gorski and Paul B. Skala, both of Chicago, for appellant; Clyde C. Fisher, of Chicago, of counsel.

      Thomas J. Courtney, State ’s Attorney, for appellee; Edward E. Wilson, J. Albert Woll and Henry E. Seyfarth, Assistant State’s Attorneys, of counsel.
   Mr. Presiding Justice Hebel

delivered the opinion of the court.

This case is in this court upon a notice of appeal from a judgment entered in the criminal court of Cook county, finding the defendant guilty in manner and form as charged in each of the five counts of the indictment, and imposing a penalty of $1,000 in each of said counts.

The indictment was based upon a violation of the Motor Fuel Tax Law, Cahill’s St. ch. 95a, ¶ 78 et seq. The first count charged that the defendant and Howard E. Adams, also a defendant, were copartners, doing business under the firm name of Cowdrey & Adams; that they were engaged in the business of distributors of motor fuel, and as such distributors sold large quantities of motor fuel in Cook county during the entire month of November, 1931, and sold large quantities of such gasoline and collected from the purchasers thereof a tax of three cents a gallon, which they wilfully refused to make payment of to the Superintendent of Finance of the State of Illinois. The second count is similar to the first, except that it is charged the offense was committed during the month of December, 1931. The third, fourth and fifth counts áre similar to the first and second, except that the offense charged in each of these counts was in reference to the months of January, February and March, 1932.

The defendant Adams was not apprehended, and. the trial proceeded against the defendant Cowdrey alone. The case was tried before the court and a jury, and a verdict was returned finding the defendant guilty on each of the five counts of the indictment, and a penalty was imposed as above stated.

The People of the State of Illinois, as appellee, by the State’s attorney of Cook county, presented a motion and moved that this court dismiss the appeal of the defendant, upon the ground that a review of a criminal case can only be considered upon the issuance of a writ of error. To this motion the defendant filed' his written suggestions in opposition to the motion of the People of the State of Illinois.

It is admitted by the defendant that under the practice prior to the passage of the Civil Practice Act, in force January, 1934, defendant could have a judgment of conviction in a criminal court reviewed by a court, of appellate jurisdiction only upon the issuance of a Avrit of error. Defendant upon this appeal proceeded by notice of appeal under this new Civil Practice Act. From an examination of the act governing this right of appeal, it appears under section 1, Cahill’s St. ch. 110, ¶ 129, the provisions of the act shall apply to all civil proceedings both in law and equity. This language seems plain, and therefore limits the right to a revieAv under the neAv act to civil cases only. The appeal provided for by this act is an appeal of right and does not apply to a revieAv of a judgment in a criminal cáse. It Avas never intended by this act that a defendant in a criminal case could by appeal stay the execution of a sentence as a matter of right.

The fact is that the only means by Avhich the defendant can have his case revieAved is a writ of error, and in order that the execution of the judgment may be stayed, it is necessary that he apply for a supersedeas in the court in Avhich his criminal case is to be revieAved, and if granted, the court, if it deems proper, Avill fix the amount of the bond and he Avill be released from custody pending the disposition of the writ of error. Par. 839, ch. 38 of the Criminal Code provides for the method by which this may be accomplished, and is the only method by which defendant can procure a stay of the execution of the judgment entered in the criminal case.

The Supreme Court in the case of People v. Klyczek, 307 Ill. 150, held that an appeal is not permitted in criminal cases; that a judgment in a criminal case can be reviewed only by a writ of error; that the trial court had no authority to admit the defendant to bail pending the review of the case in the Appellate Court; that that can only be done by the Appellate Court granting a supersedeas. The provisions of the Civil Practice Act do not provide for an appeal in a criminal case. The manner of reviewing such a case has not been changed, and must be by writ of error. Gallagher v. People, 207 Ill. 247.

For the reasons stated, the appeal in this case is dismissed.

Appeal dismissed.

Wilson and Hall, JJ., concur.

Additional Opinion.

Mr. Peesiding Justice ITebel

delivered this additional opinion of the court.

Our attention has been called to Rule 28 of the Supreme Court of Illinois, wherein it is provided that:

“The provisions of the Civil Practice Act and the rules of this court referring to notice of appeal, appellant and appellee shall, to the extent applicable, include writ of error and defendant in error in criminal cases and in civil cases where writ of error is preserved as a method of review.
“If a writ of error be improvidently sued out in a case where the proper method of review is by appeal, or, if the appeal be improvidently employed where the proper method of review is by writ of error, this alone shall not be a ground for dismissal, but if the issues of the case sufficiently appear upon the record before the court of review, the case shall be considered as if the proper method of review had been employed.”

The Civil Practice Act in the first section provides that the provisions of the act shall apply to practice in civil cases alone. The Supreme Court has not passed upon the applicability of this rule to practice in criminal cases. This rule would have a far reaching effect if appeals were taken under the Civil Practice Act in criminal chses. It should be borne in mind that the Practice Act does not eliminate the procedure that now applies to practice in criminal cases, nor does the new Practice Act take the place of the statutory-provisions governing criminal procedure. This court is of the opinion that par. 839, sec. 12, ch. 38, of the Criminal Code, Cahill’s Ill. Rev. Stats. is still in full force and effect, which provides as follows:

“Whenever any defendant has been convicted of any criminal offense, which under the law is bailable, and sentence has been imposed, and such defendant desires to prosecute a writ of error to either the Appellate or the Supreme Court, upon application to the presiding judge a reasonable time shall be fixed by said presiding judge in which to make application to the Supreme or Appellate Court, or some one of the justices thereof, for a supersedeas, during which time if the defendant shall have been admitted to bail the recognizance shall continue in force, or if he shall not have been admitted to bail then said presiding judge shall fix the amount of recognizance, and shall suspend the issuing of the mittimus for commitment during such reasonable time: Provided, that said presiding judge may in his discretion increase the amount of such bail and require the "defendant to enter into a new recognizance during such time.”

We believe that under the law an appeal by the defendant in the instant case is not warranted, and in order to obtain a review of his case, it will be necessary for him to follow the practice that applies in criminal cases. However, from what we have said in the opinion, we adhere to our position that the defendant’s appeal must be dismissed.

Wilson and Hall, JJ., concur.


author: Mr. Presiding Justice Hbbel

text:
    Cleaning and Dyeing Plant Owners Association of Chicago et al., Appellees, v. Sterling Cleaners and Dyers, Inc., et al., Appellants.
    Gen. No. 37,916.

      Opinion filed December 19, 1934.
    Rehearing denied January 9, 1935.
    Irving Breakstone, of Chicago, for appellants.
    Lavin & Jaeee, of Chicago, for appellees; George S. Lavin, William Jaeee and Ira S. Kolb, of Chicago, of counsel.
   Mr. Presiding Justice Hbbel

delivered the opinion of the court.

This is an interlocutory appeal by certain defendants from a temporary in junctional order entered by the chancellor upon the sworn bill of complaint of the plaintiffs, and upon notice to the defendants. The part of the order complained of is:

“It is Therefore Ordered that all parties hereto, both plaintiffs and defendants, and each of them, and their respective officers, agents, attorneys, solicitors or employees, and all associations, firms or persons assisting or aiding them, or any of them and their officers, agents, attorneys, solicitors and employees absolutely desist and refrain, until the further order of this court, of and from:
“(a) Selling, offering for sale, rendering or offering to render, cleaning and dyeing services for men’s and women’s garments at a price less than sixty-nine (69^) cents per garment for cash and carry and less than eighty-five (85<í) cents per garment called for and delivered.
“ (b) Advertising in any publication, newspaper, periodical, by signs, on wagons, signs on windows, signs on trucks, through the radio, verbal solicitation, through the use of circulars, hand bills, billboards, or from making known in any other manner that the cleaning and dyeing services as above set forth in paragraph (a) will be rendered at prices below those designated in paragraph (a) hereof.”

The order then recites that it is entered without prejudice to the rights of any of the parties to move for its modification at any time prior to the final termination of the cause.

The bill of complaint in the instant case was filed by the Cleaning and Dyeing Plant Owners Association of Chicago, a corporation not for profit, and 92 associate members as plaintiffs and against 22 named defendants.

The complaint sets forth the nature of the several plants owned by the plaintiffs, the amount invested, which is in excess of $12,000,000, and that each of the plaintiffs operates a cleaning and dyeing plant in Chicago; that the industry in Chicago and vicinity employs in excess of 7,500 workers; that the total business done in Chicago and the surrounding territory, in the aggregate, amounts to $15,000,000, and that the plaintiffs herein did in excess of $11,000,000 during the past year, and that the total business done by the defendants during the same year was approximately $1,000,000; that each of the plaintiffs has been in the cleaning and dyeing business in Chicago for a period of from 3 to 40 years, and has for many years last past advertised his or its services, quality and price throughout the community; that such advertising has been conducted through newspapers, circulars, letters, handbills, signs, billboards, radio, etc., and that the plaintiffs have expended large sums of money annually, and have established good will.

The bill then sets up the history of the industry from 1921 to 1928 and recites that prevailing prices for dry cleaning during that period were $1.75 for men’s suits and $2 and upwards for women’s dresses; that because of ruinous competition and price wars, the cleaning business steadily decreased and the cleaning industry suffered losses; that since the depression, investigations were made by the plant owners, including some of the plaintiffs and defendants, and their books submitted and examined, so that a fair and reasonable price could be determined; that fair prices were adopted by the greater part of the industry; that when it looked most hopeful that fair dealings would be restored, the defendants began selling below cost and selling cleaning and dyeing services at a price of 15 cents per garment, the purpose being to entice the customers of the plaintiffs and thereby injure and destroy plaintiffs’ business; that the plaintiffs were forced to either meet the low cost competition of the defendants or shut down their respective plants, and for a period were forced to offer a cleaning and dyeing service for a price below cost; that defendants retaliated by dropping to a still lower price; that plaintiffs sustained losses and made efforts to arbitrate, and although a price of 85 cents per garment was agreed upon between the plaintiffs and the defendants, the defendants soon reverted to cutthroat competition and unfair practices.

The bill then recites the economic condition of the years after 1931 and the activities of the legislative bodies of the several States, as well as the Congress of the United States, to relieve unemployment and to rehabilitate industry; that on or about November 8, 1933, the plaintiffs and the defendants presented a code of fair competition in the dyeing and cleaning trade, which code became effective November 20, 1933; that the minimum price schedule was announced as being a reasonable price, and one which would permit the owners of the cleaning and dyeing establishments to make a fair return on their investment.

The bill then sets out the various types of labor employed by the plaintiffs, with minimum rates of pay, based upon 40 hours per week, ranging from $14 for beginners to $45 per week for fancy goods spotters, and that union help is employed; that there are contracts between the plaintiffs and the Inside Help Union, and also the Drivers Union, which provide for-a minimum wage scale, and based upon a retail price of $1 per garment.

It is also charged in the complaint that the defendants engaged in a conspiracy to:

“ (a) Engage in destructive and ruinous trade competition, with the purpose and effect of unsettling or destroying the cleaning and dyeing industry in Chicago and its environs and prevent recovery for any of the plaintiffs ;
“(b) Embarrass, damage, injure or destroy the plaintiffs and the plaintiff association;
' “(c) Inaugurate and maintain a system of price cutting and underselling, without regard to cost or profit, so as to compel the plaintiffs to operate their respective businesses at a loss;
“ (d) Deprive the plaintiffs of their customers and prospective customers, and to injure their good will, business and investments and their thousands of employees ;
“(e) Induce other persons, firms or corporations engaged in the cleaning and dyeing business to participate with them in their price cutting and below cost selling activities and join such conspiracy;
“ (f) To cause the plaintiffs irreparable loss, damage, injury and expense in connection with the contracts entered into by the plaintiffs for labor under their respective contracts, forfeiture of leases, loss of salesmen, foremen, and other experienced and capable personnel, and other items of irreparable loss, damage and injury, including the destruction of the good will of the plaintiffs’ businesses.”

It is also charged that in pursuance of such conspiracy, the defendants commenced a course of “sweat shop” production and a program of deceptive “bait” advertising, and caused their drivers and agents to solicit the customers of the various plaintiffs; that one of the defendants through the owner of all the capital stock of the company, stated that he was engaging in low cost competition and unfair trade practices for the purpose of forcing the plaintiffs to buy out his plant at an exorbitant price; that the conspiracy resulted in a strike and lockout early in September, 1934, and on September 12, 1934, there was addressed and delivered to the plaintiff association, a letter signed by the three defendants and others, and the letter recognized the demoralized state of the cleaning business resulting from the strike and lockout in the cleaning industry and the necessity of settling the controversy, and suggested a price of 59 cents per garment, cash and carry, and 75 cents per garment, called for and delivered; that a committee of plaintiffs met with the defendants and it was suggested that a price of 69 cents, cash and carry, and 85 cents, delivered, be adopted; that some of the defendants were willing to do so, but the great majority remained steadfast in their position on the price heretofore charged by them; that after the termination of the strike on September 19, 1934, the defendants resumed their low cost selling bait advertising and other unfair trade practices.

The complaint further charges that the actual cost to the plant owners of cleaning a lady’s dress or a man’s suit in the Chicago area at this time ranges from 70 to 80 cents, if the plant operates at capacity; that the cost of wholesale cleaning and dyeing service is as follows:

Ladies’ dresses cleaned and finished.45$ per garment

Men’s suits cleaned and spotted.....30$ per garment

Men’s suits cleaned, spotted and pressed ........................45$ per garment

Men’s felt hats....................40$ per garment

The relief prayed for in the bill of complaint is that the defendants be enjoined and restrained, temporarily and permanently, from engaging in any conspiracy or combination for the purpose of damaging or injuring plaintiffs or causing loss of customers to the plaintiffs and loss of wages to their employees, and from doing any acts in furtherance thereof, from engaging in destructive or ruinous trade or competition; from interfering with the business of the plain-: tiffs; from inaugurating or maintaining a system of price cutting; from in any way creating a price war or selling below cost, and from advertising or announcing service to the public below cost price in any manner or form.

In the discussion of the question called to the attention of the court by the plaintiffs, it is urged that, upon an interlocutory appeal, the sole question to be determined is, whether the averments of the complainants show a probable cause of action, and, upon motion for a preliminary injunction, the chancellor may rightfully consider the balance of convenience and the relative equities of the parties, and enter an injunction in order to preserve the status quo until a full hearing may be had on the merits.

It is true, generally speaking, that the granting of a temporary injunction is a matter resting in the sound discretion of the chancellor, that appellate courts hesitate to interfere with the proper exercise of such discretion, and this rule is supported by the general trend •of opinions of courts of appeal. The authorities hold, however, that an improper exercise of such discretion is subject to review if the court has violated some established rule of law or principle of equity. City of Chicago v. People’s Gas Light& Coke Co., 170 Ill. App. 98.

When we consider the order in the instant case, the court directs the defendants to desist from selling or rendering cleaning and dyeing service for less than ■the prices specified in the order, or in other words, in order to render service, the defendants are obliged to sell their service at the prices provided for in the order. The effect of this injunction order is mandatory in character. The rule is that caution should be exercised in the issuance of a mandatory injunction based upon the sworn bill of complaint alone. The plaintiff must make out a clear case, free from doubt or dispute, as a basis for its issuance. Where, as in the instant case, complete relief may be afforded the complainant upon a final hearing, upon the facts stated in the bill, the plaintiffs are not entitled to a temporary injunction which is mandatory in character. It appears from the facts stated in the bill that the cleaning and pressing service to be rendered should be at a retail price of from 70 to 80 cents per garment for a lady’s dress or a man’s suit requiring such attention; still it is stated in the bill that at a wholesale price service can be rendered for a lady’s garment cleaned and finished at 45 cents, and men’s suits at from 30 to 45 cents.

The thought then is that the range of prices for this service may be questioned by the defendants as to reasonableness, and they have a right to be heard. This court will not at this time determine the reasonable prices for such service or the profit that may be had by the parties, but this should be passed upon by the court at a final hearing.

The prayer for relief is that prices shall be fixed and relief granted so that the defendants may not sell below cost. In order that the chancellor may be advised, evidence should be offered upon a final hearing, and the merits determined as to the reasonableness of the prices to be charged for the service, and whether the defendants are selling below cost for the purpose of destroying the business of the plaintiff's. The injunction, in effect, is a final determination of the prices to be charged, in the absence of evidence to establish the reasonableness of the prices provided for in the order.

What we have said in regard to the mandatory character of the order entered by the court in fixing the prices for cleaning and dyeing services that appear in the temporary injunction applies with equal force to the paragraph contained in the same order that prohibits the defendants from the use of advertising mediums in an effort to sell the service at prices other than set forth in the injunctional order.

An interesting case is City of Chicago v. People’s Gas Light & Coke Co., supra. The bill for injunction was filed by the City against the Gas Company, but before an answer by the defendants, the chancellor, upon motion of the City, entered a temporary injunction restraining the officers and agents of the defendants from collecting more than 80 cents per thousand for gas furnished by the defendants, and ordering that the excess over the rate fixed by an ordinance passed by the City should be paid over to the trustee named in the order. The court in that opinion said:

“While it is true, generally speaking, that the matter of granting a preliminary injunction is a matter resting in the sound discretion of the trial court and that appellate courts are averse to any interference with the proper exercise of such discretion (New Ohio Washed Coal Co. v. Coal Belt Ry. Co., 116 Ill. App. 153, 157; West Side Hospital v. Steele, 124 Ill. App. 534, 543), yet the authorities hold that an improper exercise of such discretion is shown if it appears that some established rule of law or principle of equity has been violated. High on Injunctions, 4th Ed., Sec. 1696.
“It is a familiar principle of equity, that to warrant a court in granting a preliminary injunction, some fact or facts must be made to appear from which the court can see that unless prevented the acts sought to be enjoined will in all probability be committed to the injury of the complainant. Coquard v. National Linseed Oil Co., 171 Ill. 480, 482; Chicago Telephone Co. v. Northwestern Telephone Co., 199 Ill. 324, 365; 16 A. & E. Ency. of Law, 2nd Ed., 360."

The court in its opinion announces the rule by which the court should be guided in the issuance of a mandatory preliminary injunction, and says:

“The rule as to the issuance of a mandatory preliminary injunction is thus stated in High on Injunctions, 4th Ed., Sec. 2: ‘While a court of equity is always reluctant to grant a mandatory injunction upon an interlocutory application before final hearing, it may do so in an extreme case where the right is clearly established and the invasion of the right results in serious injury.’
“In Florida East Coast Ry. Co. v. Taylor et al., 47 Southern Rep. 345, the rule is thus stated: ‘It is settled by an overwhelming weight of authority that except in rare cases where the right is clear and free from reasonable doubt, a mandatory injunction commanding the defendant to do some positive act will not be ordered, except upon final hearing, and then only to execute the judgment or decree of the court.’
“In Hunt v. Sain, 181 Ill. 372, 378, the court apparently holds that a mandatory injunction will never be ordered except on final hearing; but this was interpreted in City of Rock Island v. Central Union Telephone Co., 132 Ill. App. 248, 259, as stating only the usual rule.
“In 22 Cyc 742, the author of the article on Injunctions says: ‘There is no doubt that the court has jurisdiction to issue preliminary mandatory injunctions and it is proper to do so in cases of extreme urgency where the right is clear indeed, and where considerations of the relative inconvenience bear strongly in complainant’s favor,’ citing many authorities which amply support the statement quoted.
“In view of these authorities thus clearly limiting the power of a court of equity in the issuance of mandatory preliminary injunctions to very rare cases of extreme urgency, where the right is clear indeed and free from reasonable doubt, the obvious question to be determined is whether such an extreme case is made by the bill and exhibits in this case.”

The Appellate Court in an abstract opinion in the case of Paxton v. Fabry, 200 Ill. App. 104, held that an order restraining the use of a building for an ordinary drug store and physician’s office in the city during the pendency of the suit, in violation of restrictive covenants, is in the nature of a mandatory injunction granting the relief sought by the bill in advance of a hearing on the merits, and should not be granted.

Then again, this court in the case of Levy v. Rosen, 258 Ill. App. 262, upon the question of the issuance of a mandatory injunction upon a preliminary hearing, held it is improper on a motion for an interlocutory injunction to grant an order for a mandatory injunction, which is a final order without any hearing on the merits and which grants the complainants all the relief they pray for in their bill, and changes the status quo of the parties.

There is no question that a party complaining in a chancery proceeding is entitled to the protection of the court and to the issuance of a temporary injunction to restrain a defendant from an effort to destroy the business of the said parties by unfair practices, when this purpose is apparent and the facts are clearly stated in the .bill of complaint. It is not, however, the purpose of courts to interfere with the conduct of business where fair competition is involved. If by such fair competition a party engaged in the business may suffer a loss, he is not entitled to an order restraining his competitor in the conduct of his business.

The effect of the order in the instant case disposes of the question of price for services rendered, and really disposes of the question of merits before a final hearing, the result of which is to grant the plaintiffs the relief sought by their bill. The rule in equity is that the issuance of a temporary injunction, if the allegations of the bill justify it, is for the purpose of maintaining the status quo until the merits can be determined upon a final hearing. The court by its order disposed of the question of the merits of the controversy, and thereby changed the status of the parties.

Other questions have been called to our attention, but they are not important in view of the conclusions we have reached and stated above.

For the reasons indicated, we believe the court erred in the entry of the temporary injunction, and therefore the order will be reversed.

Order reversed.

Wilson and Hall, JJ., concur.


author: Mr. Justice Hall

text:
    Ella J. Derdiger, Appellee, v. Thompson Ross and Company, Appellant.
    Gen. No. 37,168.
    Opinion filed December 19, 1934.
    Pam & Hurd, of Chicago, for appellant; Lincoln R. Clark, of Chicago, of counsel.
    Peden, Melaniphy, Ryan & Andreas, of Chicago, for appellee; John C. Melaniphy, of counsel.
   Mr. Justice Hall

delivered the opinion of the court.

This is an appeal by Thompson Ross & Company, defendant, from a judgment of the circuit court of Cook county in favor of plaintiff and against defendant for $1,000 and costs of suit. The trial was by jury, and the judgment was entered upon a verdict directed by the court on motion of the plaintiff at the conclusion of plaintiff’s evidence. The defendant offered no evidence.

On February 4, 1932, plaintiff filed a declaration in assumpsit, and in a special count charged in substance that on or about April 27, 1928, defendant sold plaintiff a certain note of the Hart Coal Corporation, and as an inducement to such purchase and in consideration therefor, promised and agreed with plaintiff to repurchase the note at any time on request of plaintiff at the same consideration as that paid by her. In addition to this special count, plaintiff filed the common counts. Defendant filed pleas of the general issue, the statute of frauds and an affidavit of merits, denying any such promise to repurchase.

On April 27, 1933, plaintiff, by leave of court, filed an additional count, and it was ordered that the pleas theretofore filed by defendant should stand as pleas to the additional count. This additional count charges in substance that on April 28, 1928, defendant offered to sell plaintiff a mortgage note of the Hart Coal Corporation, and for the purpose and with the intent of inducing plaintiff to purchase such note and pay the purchase price therefor, defendant by its officers and agents represented to the plaintiff that the Hart Coal Corporation was prosperous, and was making large profits; that thereafter plaintiff learned that such représentations were untrue, and on April 26, 1933, tendered back to the defendant the note and demanded that defendant repay to plaintiff the sum that plaintiff had paid therefor, but which defendant refused to do. This count also alleges that on April 26, 1933, plaintiff elected to rescind and did rescind the purchase and sale, and that by reason thereof defendant became indebted to her in the sum of $1,026.36.

Plaintiff testified in substance that on or about April 28, 1928, she visited the office of defendant company and conversed with one S. M. Fitch. She does not state what Mr. Fitch’s connection with the defendant company was, except that he had an office there; that she discussed with Mr. Fitch the question of purchasing securities, and that he particularly spoke of the Hart Coal Corporation securities; that Fitch said they were first class securities, and that she would make no mistake in buying them; that Fitch stated that the company was a good earning company, that it earned 10 to 12 per cent; that he took plaintiff to an office and said to her, “I want you to meet one of our vice presidents and sales manager ’ ’; that she inquired of this last mentioned person as to the proposed purchase of the Hart Coal Corporation note, and that he told her she had nothing to fear, that “we will stand back of it, and at any time you want your money back, we will purchase the bonds back at their face value of any of the securities.’’ She testified that she then bought the bonds. Plaintiff also testified that in March, 1933, she saw for the first time the following-letter addressed by Thompson Boss to one J. W. Pain, which letter was received as evidence, and is as follows :

“Dear Mr. Pain:
“As you have probably known, Thompson Boss & Company over a period covering the last few years has advanced the Hart Coal Corporation on open account cash to a total of approximately three hundred thousand dollars. T. R. & Co. did this for the sole purpose of course of protecting the bondholders’ and noteholders’ interests. I feel that we have done all and probably more than we should do along that line, and am not at all inclined to advance the company additional funds to take up the notéis, due next December 1st. ' !>
Sincerely yours,
“Thompson Boss.”

On the trial, defendant took the position as it does here, that plaintiff could not maintain an action based on a contract to repurchase the note in question, and at the same time rescind the contract and base her action on a charge of fraud, and insisted that plaintiff should elect which remedy she chose to invoke. It is also insisted that by the filing of the last special count, based on fraud, plaintiff had waived any right to sue on the contract.

In Brown v. Brown, 142 Ill. 409, the Supreme Court said:

“A contract into which one party has been induced to enter by the fraud or false representation of the other is not void, but only voidable at the election of the defrauded party. He may, if he chooses, abide by the contract and hold the party guilty of the fraud to its performance. But he is at liberty to disaffirm and repudiate it, and if he seasonably elects so to do and takes the steps necessary to work a rescission, the contract is no longer binding, and he is remitted to the same position and legal rights which he held before the fraud was perpetrated. But he is not permitted to do both, and having once made his election, either to affirm the contract or to rescind it, he must abide by such election, and cannot afterward chang'e his position in that respect.
“The authorities all agree that an election to rescind, if made at all, must be made within a reasonable time after the defrauded party has obtained knowledge of the fraud. As was said in Masson v. Bovet, 1 Denio, 69: ‘A person who is induced to part with his property on a fraudulent contract may, on discovering the fraud, avoid the contract and claim a return of what has been advanced upon it. Fraud destroys the contract ab initio, and the fraudulent purchaser has no title. But if the party defrauded would disaffirm the contract, he must do so at the earliest practicable moment after the discovery of the fraud. That is the time to make his election, and it must be done promptly and unreservedly. He must not hesitate; nor can he be allowed to deal with the subject matter of the contract and afterwards rescind it. The election is with him; but he may affirm or disaffirm the contract, but he cannot do both; and if he concludes to abide by it, as upon the whole advantageous, he shall not afterwards be permitted to question its validity.’ ” (Italics ours.)

In Toledo, W. & W. Ry. Co. v. Jacksonville Depot Bldg. Co., 63 Ill. 308, the railway company had made a contract with the depot company, by the terms of which the railway company had leased to the depot company a portion of its grounds in the City of Jacksonville for the construction thereon by the depot company of a depot and eating house. By the terms of this agreement, the railway company agreed to occupy a portion of the building to be built and pay as rent therefor 10 per cent upon the cost of the portion of the building occupied by it, and it was agreed that the remainder of the building to be used as an eating house should be leased by the depot company to persons approved by the railway company. It was also agreed that at the end of a certain period the railway company at its option might purchase the building. The building was completed, the eating house portion rented, and the portion provided for use by the railway company was occupied by it. The tenant of the eating house portion remained two years, but failed to pay rent, and the depot company asked the consent of the railway company to obtain a new tenant, which consent was denied, and the depot company rented the eating house portion of the building to a new tenant, without the consent of the railway company. As a part of the agreement between the parties, it was provided that all passenger trains of the railway company should stop at the station for meals. After the new lease, made without its consent, the railway company’s trains ceased to stop at the station for a sufficient length of time to enable the passengers to obtain meals. The last named tenant left, the depot company ceased the occupancy of any portion of the building, and suit was brought by it, resulting in a verdict and judgment for the depot company, from which an appeal was taken to the Supreme Court. The declaration filed consisted of the common counts, and plaintiff’s contention was that because of the wrongful action of the railway company, it had a right to treat the contract as rescinded and recover not merely the damages from loss of rent not paid, as provided by the contract, but the entire value of the building, and the court admitted evidence based on both claims. In its opinion, the court said:

“Counsel for appellee (the depot company) relies upon the well established rule that, where work has been done or goods have been sold under a special contract prescribing a particular mode of payment, if the debtor fails to discharge his obligations in the manner required by the contract, the creditor may treat it as rescinded, and recover the value of the labor or goods upon a declaration containing only the common counts. If a contract has been faithfully executed by one party according to its terms, and the other party has refused to execute, the party not in default has his election to sue upon the contract, or to treat it as rescinded, and recover upon such a contract as the law Avill imply from the circumstances of the case. This rule has been, in substance, so often stated that it is needless to cite authorities. ... In the case at bar, if the defendant has violated its contract Avithout justification, and made it impossible for the plaintiff to let the house at a reasonable price, the latter can recover from the defendant the rent thus lost, as damages, and this it may do by a series of actions, from year to year, so long as the defendant persists in the alleged wrong. But the action, in its present form, cannot be maintained.” In other words, the holding of the court is that the depot company could recover for rent lost, as damages under the contract, or it might, because of the wrongful act of defendant, treat the contract as rescinded and recover on that ground, but that it could not do both. To the same effect is Dalson v. Bradberry, 50 Ill. 82.

In the instant case, plaintiff could, if she had chosen to do so, waive her right to sue under the alleged contract to repurchase and bring her action on the ground of the alleged fraud and deceit, and her action of assumpsit, based on the latter ground, would be proper. However, she could not do both, and we hold that by filing the last count based on fraud and deceit, she Avaived her rig-ht to an action on the contract.

The only proof offered substantiating plaintiff’s charge of fraud Avas the letter from Thompson Boss to Pain, Avritten about a year after the transaction. Where fraud is claimed, the proof must be clear and convincing. Wolf v. Lawrence, 276 Ill. 11. We are of the opinion that under the evidence adduced, the court Avas not justified in directing a Aerdict for plaintiff. Payette Fruit Packing Co. v. Oregon Short Line R. Co., 180 Ill. App. 253. Therefore, the judgment is reversed and remanded.

Reversed and remanded.

Hebel, P. J., and Wilson, J., concur.


author: Hr. Justice Hall

text:
    Dorothy Dietzel, Appellant, v. Samuel Posen et al., Appellees.
    Gen. No. 37,233.
    Opinion filed December 19, 1934.
    Rehearing denied January 9, 1935.
    Carl G. Pretzel, of Chicago, for appellant; Henry T. Chace, Jr., of Chicago, of counsel.
    Lewis D. Boss, of Chicago, for appellees; Boy S. Gaskill, of Chicago, of counsel.
   Hr. Justice Hall

delivered the opinion of the court.

By this appeal complainant seeks to reverse an order and judgment of the circuit court of Cook county, sustaining an oral demurrer to a bill filed by complainant to contest the will of William J. Posen, deceased.

The bill recites in substance that on the 20th day of June, 1932, decedent executed a certain instrument in writing, purporting to be his last will and testament, and that thereafter on the 23rd day of June, 1932, he died in the City of Los Angeles in the State of California, leaving as his heirs • at law Samuel and Harry Posen, his brothers, Sophie Posen, his mother, Sarah and Minnie Tenser, cousins, Jean Winters, a cousin, and Sarah Stein, an aunt; that by this purported last will and testament he bequeathed all of his property to Samuel and Harry Posen, his brothers, in trust for the use of Sophie Posen, his mother, and in the event of the mother’s death, to Harry Posen, his brother; that on the 3rd day of August, 1932, this instrument, purporting to be the last will and testament of William J. Posen, deceased, was admitted to probate in the probate court of Cook county, and that letters testamentary thereon were granted to Samuel Posen; that on the 3rd day of March, 1932, William J. Posen made and executed an instrument in writing, then purporting to be his last will and testament, leaving to complainant the sum of $20,000, together with certain bequests to other persons; that the will of March 3, 1932, was in existence at the time of the death of William J. Posen, but that such will has been either lost or destroyed since said time; that at the time of the execution of the instrument dated June 20, 1932, Posen was not of sound mind or memory, and was at the point of death by reason of some malignant disease, and that his mind and memory were so impaired as to render him incapable of making any just and proper distribution of his estate; that Harry, Samuel and Sophie Posen, the only legatees in the pretended will dated June 20,1932, together with other persons, used and exercised undue arts and fraudulent practices and resorted to falsehoods and misrepresentations to induce William J. Posen to execute the will of that date. The particular charge as to undue influence used is that these persons refused to permit William J. Posen to read letters sent to him by complainant, but intercepted such letters so it was impossible for William J. Posen to receive them, and that they made statements damaging to the character of complainant. There is a charge that other alleged fraudulent practices were used at this time, but they are not particularized. The prayer of the bill is that the instrument of June 20, 1932, purporting to be William J. Posen’s will, and the probate thereof, may be set aside and declared null and void, and that his estate be distributed among his heirs and devisees according to law and according to the instrument in writing of March 3, 1932. It is alleged in the bill that complainant had no knowledge of the existence of the alleged will of June 20, 1932, until after its admission to probate, and that because of the fact that the alleged will of June 20, 1932, was so admitted to probate, complainant was prohibited from offering for probate the lost or destroyed will dated March 3, 1932.

It is insisted by defendants, appellees here, that a court of equity will not recognize nor act upon a will until it has been admitted to probate, and it is suggested that complainant has no standing in a court of chancery until the will has been so admitted.

In Adams v. First M. E. Church, 251 Ill. 268, the testatrix in a will died leaving no child nor descendant, and whose heirs at law were brother and sister. Two Avills executed by her were presented to the probate court of Cook county. One Avas dated September 9, 1904, by which she gave most of her property to Harry C. Adams, the appellant in that case. The other will was dated February 29, 1908, by which the testatrix left nothing to- Adams and gave most of her estate to the First M. E¡. Church of Irving Park. The court refused probate of the first will, but admitted to probate the one of the later date. Complainant filed his bill in the superior court of Cook county, setting forth facts which would show the first will to be valid when made, and charging that the testatrix, at the time of the execution of the later will — the one admitted to probate — was not of sound mind and memory, and that the instrument was the product of undue influence exercised by the members of the church. In holding that the complainant had a right of action, the court said:

“The first question to be determined is whether the complainant had a right to file the bill. The court decided that he had, and the ruling is questioned by a cross-error. The statute authorizes any person interested to contest the validity of a will by his or her bill in chancery, and if the complainant was interested, within the meaning of the statute, he had a right to file his bill. It is not denied that he would have had such a right but for the order of the probate court denying probate of the will in his favor. Counsel say that he should not have presented the will for probate, or should have withdrawn his petition or had it continued until the validity of the later will was finally adjudicated, or appealed from the decision of the probate court. We do not see how his position would have been any better if he had taken either course suggested. Probate of the first will was denied because there was a later will revoking all former wills, and until the later will should be set aside it would have been useless to appeal. The judgment of the probate court on the merits in allowing or disallowing any will to probate is final and conclusive unless reversed on appeal (In the Matter of Storey, 120 Ill. 244) but where probate is denied because of the existence of a subsequent will the judgment is not conclusive if the subsequent will is set aside.”

In the instant case, under the facts pleaded, it would have been a futile gesture for complainant to have offered the alleged will of March 3, 1932, for probate, as defendant insists she should have done. She charges in her bill that she had no knowledge of the existence of the subsequent will until its admission to probate, and several weeks after the testator’s death, and that the alleged -will of March 3, 1932, was in existence at the time of testator’s death. Whether her allegations as to the prior will could be sustained or not, of course, would depend upon proof, but we are of the opinion that in this regard under the authorities, complainant, by her bill, shows a right of action.

The question is then presented as to whether the allegations in the bill as to fraud, undue influence and lack of capacity of the testator to make a will are sufficient. We will first consider the allegations of fraud and undue influence.

In Stephens v. Collison, 249 Ill. 225, a bill was filed seeking to set aside an agreement and lease made between complainant and the executors of complainant’s father’s will, and to contest the will. The bill in that case charged that at the time of the execution of the will, testator was not of sound mind and was mentally incapable of making any distribution of his property, and that fraud was used in obtaining the execution of certain leases. In passing upon the question as to a necessary allegation in a bill, the object of which is to set aside an instrument on the ground that its execution was obtained by fraud, the Supreme Court said:

“The rule is well settled that where it is sought to impeach a transaction on the ground of fraud it is not sufficient to charge fraud generally, but the complaining party must state in his pleading the specific acts or facts relied on as establishing the fraud. Langlois v. McCullom, 181 Ill. 195; East St. Louis Connecting Railway Co. v. People, 119 id. 182; Fortune v. English, 226 id. 262.”

To the same effect is Ater v. McClure, 329 Ill. 519, a suit to contest a will. Here the Supreme Court said:

“It is not sufficient to aver undue influence as a conclusion. Facts must be stated warranting the conclusion and go to the extent of showing that thereby the testator was deprived of his free agency. ’ ’

In Pollock v. Pollock, 328 Ill. 179, the court said:

“Undue influence which will invalidate a will must be of such a character as to deprive the testator of free agency. It must be such as to destroy the freedom of the testator’s purpose and render the instrument more the will of another than his own. Such influence must be directly connected with the execution of the instrument and operate at the time it is made, producing a perversion of the testator’s mind, and it must be a species of fraud. Advice or persuasion will not vitiate a will freely and understandingly made.”

We are of the opinion that the alleged facts set forth 'in the bill as to fraud and undue influence are not sufficient.

As to testator’s capacity to make the will of June 20, 1932, complainant states that at the time of the execution of this instrument testator “was not of sound mind and memory; but on the contrary, was at the point of death by reason of some malignant disease, the exact nature of which is to your oratrix unknown, and his mind and memory were so impaired as to render him wholly incapable of making any just and proper distribution of his estate.”

The “Act in regard to Wills,” Cahill’s Illinois Revised Statutes 1933, chapter 148, section 1, provides that “every person . ■ . . being of sound mind and memory shall have power to devise ... by will or testament” his properties of various kinds.

In American Bible Society v. Price, 115 Ill. 623, the Supreme Court, in passing upon the question as to what is a sufficient allegation in a bill to contest a will on the ground of the lack of mental capacity in the testator, said:

“The bill, it has been seen, charges that the testator had become, and was at the time of the making of the will, of unsound mind and memory, thus, in effect, simply putting in issue his testamentary capacity, which, by our statute, is defined to be that of being of a prescribed age, and ‘of sound mind and memory. ’ The only material question, manifestly, under this allegation, was whether the writing produced was the product of an unsound mind and memory. ’ ’

In the instant case, the allegation in the bill, as stated, is not to the effect that the will was wholly the product of an unsound mind and memory, but is limited to the charge that the testator’s mind was so impaired as to render him incapable of making a just and proper distribution of his estate. This is not a charge of mental incapacity to make a will. The question to be decided is “whether the writing was the product of an unsound mind and memory,” without regard to who the beneficiaries might be. We are of the opinion that there is no sufficient allegation in the bill that it was. The judgment of the circuit court of Cook county in sustaining the demurrer to the bill is affirmed.

Affirmed.

Hebel, P. J., and Wilson, J., concur.


text:
    S. Gans, Appellant, v. Maurice Klein, Appellee.
    Gen. No. 37,295.
    Opinion filed December 19, 1934.
    Rehearing denied January 9, 1935.
    Guy C. Baltz, of Chicago, for appellant.
    Louis Cohen and John W. Day, both of Chicago, for appellee.
   Mr. Justice Hall

delivered the opinion of the court.

In this case, an action in assumpsit was brought in the superior court of Cook county by plaintiff against defendant, Maurice Klein, trustee in bankruptcy of Unexcelled Auto Products Company. Plaintiff: alleges that under the order of a referee in bankruptcy, and shortly after the sale to plaintiff: by defendant of a number of accounts, due to the bankrupt’s estate, defendant compromised and settled certain of these accounts with the bankrupt’s debtors, as the declaration indicates, for and on account of and for the benefit of the estate. It is claimed by plaintiff that even 1 hough the compromises and settlements were made upon the order and with the approval of the referee in bankruptcy, which the record shows is the fact, still they were unauthorized, because the title to them had passed to the plaintiff prior to the date of this order, and that the trustee is liable personally to the plaintiff for the amounts received by him in settlement of these claims.

The claims involved are one of Unexcelled Auto Products Company, bankrupt, against the Federal Auto Products Company in the amount of $869.42, and another of the same party against Conrad Mandel, doing business as Safe-T-Lite Company in the amount of $2,280.79. It is charged that the claim against Federal Auto Products Company was settled by defendant for $250, and the claim against Conrad Mandel doing business as Safe-T-Lite Company, was settled for $1,500. After the sale of these accounts had been made, plaintiff appeared before the referee in bankruptcy and asked leave to file a petition setting up his claimed rights in the fund, which petition was denied. The trial court found for the defendant and entered judgment against plaintiff for costs. This appeal is from that judgment.

Defendant insists that inasmuch as these funds came into the possession of the trustee appointed by a federal court, and through the order of a referee appointed by such court, that the federal court necessarily retains jurisdiction of the entire subject matter. This was apparently the view of plaintiff when he asked leave of the referee to file a petition in and by which plaintiff sought to assert his alleged rights. As already stated, leave to file this petition was denied by the referee. It is urged by defendant that if the referee was in error in denying such leave, plaintiff; could have had the referee’s order reviewed by the United States District Court. It is to be noted that in his reply brief, plaintiff does not take issue with defendant in this regard.

In State ex rel. Pope v. Germania Bank of St. Paul, 103 Minn. 129, the court said:

“It is elementary that the court appointing a receiver or assignee in insolvency proceedings has and retains exclusive jurisdiction over the proceedings and the receiver or assignee for all purposes, settling and adjusting, in the same proceeding, all conflicting interests, all controversies, and all matters arising out of or connected with the trust, all questions respecting the accounts of the receiver, allowances for his compensation, the compensation of his attorneys, ag-ents, and necessary clerks. ’’ Attention is also called to the case of Hoffman v. McClelland, 264 U. S. 552.

Barnes Federal Code, 1919, chapter 5, section 9122, page 2166, contains the following provisions regarding referees in bankruptcy:

“Jurisdiction of referees. Referees respectively are hereby invested, subject always to a review by the judge, within the limits of their districts as established from time to time, with jurisdiction to . . . perform such part of the duties, except as to questions arising out of the applications of bankrupts for compositions or discharges, as are by this Act conferred on courts of bankruptcy and as shall be prescribed by rules or orders of courts of bankruptcy of their respective districts, except as herein otherwise provided.”

The exceptions referred to in the act do not relate to the questions arising here. By the terms of this act, • — reference being had to the entire act, — the referee is given jurisdiction of the entire subject matter involved here, and further by his motion for leave to file his petition in which all the matters here involved were fully set forth, plaintiff submitted himself to the jurisdiction of the referee, and in so far as his rights there asserted are concerned, they were determined. If he was not satisfied, he could have had the matter reviewed by the Federal District Court, when the referee denied his motion for leave to file the petition, as the statute provides. In Words & Phrases, Judicially Defined, Volume 7, page 6126, res ad judicata is defined as follows:

‘Res adjudicata’ means that if an action be brought and the merits .of the question be discussed between the parties, and a final judgment be obtained by either party, the parties are concluded, and cannot canvass the same question in another action. It is founded upon two maxims of the law, one of which is that a man should not be twice vexed for the same cause, and the other that it is for the public good that there be an end of litigation. Wisconsin v. Torinus, 9 N. W. 725, 726, 28 Minn. 175.”

In .view of the fact that the defendant trustee came into the possession of the assets of this bankrupt estate under the order by the direction and with the approval of the referee in bankruptcy, that the settlement of the accounts by the trustee was made and approved, by such referee, and that the matters involved here were fully set forth in the petition presented to the referee, we are of the opinion that the orders of the referee, when not appealed, were final, that the federal court had complete jurisdiction of the subject matte!*, and that it is not the province of the State courts to interfere. Therefore, the judgment of the superior court is affirmed.

Affirmed.

Hebel, P. J., and Wilsom, J., concur.


text:
    The People of the State of Illinois, Defendant in Error, v. Eugene Morgenstern, Plaintiff in Error.
    Gen. No. 37,527.
    Opinion filed December 19, 1934.
    Nathan Schwartz, of Chicago, for plaintiff in error.
    Thomas J. Courtney, State’s Attorney, for defendant in error; Edward E. Wilson, J. Albert Woll, Henry E. Seyfarth and Amos P. Scruggs, Assistant State’s Attorneys, of counsel.
   Mr. Justice Hall

delivered the opinion of the court.

By this writ of error, defendant seeks the reversal of a judgment of the municipal court of Chicago, finding him guilty of being the keeper of a house of prostitution and assignation, and a place for the practice of fornication, prostitution and lewdness.

The grounds for reversal arc that the complaint filed in the case was not signed nor verified. The record shows that on August 14, 1933, a complaint charging the crime of which defendant was .found guilty ivas signed by one Fred Crowley, but that the affidavit attached to such complaint was not signed, although there is a certification by the clerk of the municipal court of Chicago to the effect that Crowley, the complainant, did subscribe and swear to the complaint on August 14, 1933.

Tlie order appealed from recites that the defendant appeared in court, waived a jury, and submitted his cause to the court. This order was entered on September 12, 1933. On December 21, 1933, an order was entered committing' the defendant to the county jail. On December 22, 1933, an order was entered denying defendant’s motion for a new trial. On January 8, 1934, a petition was filed in support of a motion to set aside the order denying defendant a new trial and to vacate the judgment. On January 22, 1934, an amended verified petition was filed in which it is recited that the complaint filed in the cause was not verified; that such fact was not called to the attention of the judge who tried the case, and that if a motion to quash the complaint had been made, it would have been sustained, and that because defendant was unfamiliar with the rules of practice, such motion was not made at the trial. On January 22, 1934, the court entered an order denying the motion to vacate the ' judgment and grant a new trial. A motion in arrest of judgment was then made and overruled. On February 17, 1934, a bill of exceptions was signed by a judge of the municipal court and filed in the case, in which it is recited that on September 12, 1933, when the cause came on for trial, a motion was made to dismiss the information for the reason that it was not sworn to.

From the order entered September 12, 1933, and defendant’s affidavit filed January 22, 1934, we are led to the conclusion that no motion was made to quash the information at the time of or prior to the trial, but that defendant waived such motion and proceeded to trial.

In People v. Duyvejonck, 337 Ill. 636, cited by defendant, on page 640, the Supreme Court said:

“A verification, or lack thereof, does not affect the jurisdiction of the court where the information charges a crime, and while it is an invasion of his constitutional rights to try the accused on an unverified or improperly verified information, yet such an objection may be waived by the accused and is waived by him by proceeding to trial without raising the' objection. (People v. Leinecke, 290 Ill. 560; People v. Reed, 287 id. 606; People v. Powers, 283 id. 438.)”

This case is decisive of the question raised on appeal. The judgment is affirmed.

Affirmed.

Hebel, P. J., and Wilson, J., concur.


text:
    De Kalb Trust and Savings Bank et al., Appellees, v. De Paul Educational Aid Society et al., Appellants. De Paul University et al., Defendants.
    Gen. No. 37,763.
    Opinion filed December 19, 1934.
    Chapman & Cutler, of Chicago, for appellants A. C. Allyn & Co., Inc. and John C. Meiners.

      Moses, Kennedy, Stein & Bachrach, of Chicago, for appellant De Paul Educational Aid Society; Perry M. Chadwick, Julius Moses and Ralph F. Huck, all of Chicago, of counsel.
    Shulmán, Shulman & Abrams, of Chicago, for appellees ; Meyer Abrams, of counsel.
   Mr. Justice Hall

delivered the opinion of the court.

On June 11, 1934, plaintiffs filed a bill of complaint in the superior court of Cook county against De Paul Educational Aid Society, De Paul University, First National Bank of Chicago, A. C. Allyn & Company and John C. Meiners, the last named individually and as chairman of a bondholders’ protective committee. Certain other persons who are not parties to this appeal were also made defendants.

The bill alleges in substance that prior to July 1, 1927, De Paul University adopted a plan for the erection of a building in the downtown district of Chicago, and in order to obtain funds for such project, devised a plan to issue and sell bonds in sufficient amount to provide funds for the construction of this building, and in furtherance of the plan, to organize a separate corporation for the purpose of executing and disposing of such bonds; that in pursuance of this plan, the De Paul University on January 12, 1927, caused to be formed and chartered a corporation, not for profit, known as the De Paul Educational Aid Society, the purpose of which was “to promote and advance the education of men and women”; that prior to the procurement of the charter of the De Paul Educational Aid Society, this society on July 1,1927, caused a trust deed to be executed by the terms of which this society conveyed to the First Trust and Savings Bank of Chicago certain leases- on lands in Chicago; that the society covenanted in this trust deed that it was lawfully possessed of this leased property. ■ It is further alleged that it is provided in this trust deed that upon ■default in the payment of principal and interest, or both, and such default should continue for 60 days, that the trustee might on the request of not less than 25 per cent of the principal amount of the bonds then outstanding, declare the principal of all the bonds to be due, and might institute foreclosure proceedings, and that the right of such action was vested exclusively in the trustee, and that in addition to such remedy, the trustee might enter into the possession of the properties for the purpose of conserving the income therefrom; that the trust deed was executed before the De Paul Educational Aid Society had acquired title to these properties, and that a representation made in the trust deed that at the time of its execution the society was the owner of such properties, was false; that A. C. Allyn & Company, bankers, floated the bond issue in order to realize commissions amounting to $100,000; that A. C. Allyn & Company caused to be distributed a circular stating in substance that De Paul University, for whose benefit the society was organized, was headed by influential persons who controlled the society and were behind the project; that the leasehold was valued at $392,000, and that the value of the building to be erected on the premises was estimated to be of the value of $2,778,175, and the total first mortgage bond issue represents slightly less than 56 per cent of the appraised fair market value of the leased property and the building, when completed; that it was estimated that the net income from the properties would amount to the sum of $188,377 per annum, and that a sinking fund was to be established to pay the current interest requirements, the balance to be devoted to the retirement of bonds, and that the title to the mortgaged premises would be guaranteed by the Chicago Title & Trust Company, but that the statements above referred to were not guaranteed. It is alleged that plaintiffs, De Kalb Trust and Savings Bank and Eleanor C. Gochenour, relying upon these representations, which were misleading, purchased certain bonds issued by the Aid Society, believing such bonds to be bona fide, and that the bondholders were fully protected and safeguarded, but that it is now discovered that the bonds Avere illegally issued, and that the officers, directors and trustees of the Aid Society were not authorized by law to execute the trust deed gi\en by the society to secure the payment of these bonds, and that the Aid Society AAas not authorized by law to purchase the leaseholds so mortgaged; that the organization of this society Avas brought about for the sole purpose of obtaining funds, and at the same time relieve the promoters of the plan of any personal liability, and that in violation of law, the promoters caused the bonds to be placed on the market and that thereby plaintiffs and others Avere defrauded, and that the trustee is liable Avith the other defendants; that in anticipation of a default in the payment of the bonds issued, A. C. Allyn & Company formed a bondholders’ protective committee of three employees of A. C. Allyn & Company, and that such committee entered into an agreement between themselves in accordance with the plans of the promoters of the scheme, by which the bondholders were to be induced to place their bonds in the hands of this committee; that further and in anticipation of a default in the payment of the bonds, and for the purpose of depriving the bondholders of their rights in the premises, A. C. Allyn & Company and the trustee induced the bondholders’ committee to cause a letter to be mailed to such bondholders, urging them to deposit their bonds Avith the committee, and to sign an agreement concerning the disposition of such bonds; that Eleanor C. > Gochenour, after depositing her bonds with such committee and signing such agreement, and being at such time unadvised as to its contents and import, subsequently learned that it is provided in this agreement that the members of the committee should be reimbursed for any expenses and disbursements made in and about their efforts to protect the bond issue; that if she had been advised as to any such agreement, she would not have given her bonds to this committee; that misrepresentations have been made by the committee to the bondholders as to the rents and incomes of the property involved; that default has been made by the society in the payment of its ground rent; that no deposits have been made, as agreed, by the society to create a sinking fund for the payment of principal and interest of the bonds as the same become due; that the society is insolvent, and that it has been notified by the owners of the leased lands that the leases will be forfeited unless the rent is paid, and that because of these conditions, unless a receiver is appointed to conserve the property, the money invested in the bonds will be lost. The bill recites that it is brought for the benefit and on behalf of the plaintiffs and all of the bondholders, and they ask that a receiver be appointed for the De Paul Educational Society, that the society be dissolved, and the trustee under the trust deed removed; that the bondholders’ committee be restrained from using any of the bonds for any of the alleged purposes for which they were deposited, and that the committee be ordered to return all the bonds held by it to the true owners. Plaintiffs also seek to have an accounting taken, to have the defendants made jointly and severally liable for the difference between the value of the building at the time the bond issue was floated and the present value, and that a new trustee, when appointed, be authorized to bid the property in at any sale.

On June 13, 1934, a motion was presented to the court for the appointment of a receiver for the property, and on that day the court continued such motion until July 13, 1934. Between June 13 and July 13, 1934, answers were filed by the defendants, De Paul University and De Paul Educational Aid Society, and motions were made by A. C. Allyn & Company and John A. Meiners that the complaint be made more definite and certain. On July 12, 1934, the De Paul Educational Aid Society filed a petition in the District Court of the United States for the Northern District of Illinois seeking a reorganization of the institution under sections 77-A and 77-B of the National Bankruptcy Act. On July 13, 1934, the superior court of Cook county, upon a hearing, participated in by all the parties, entered an order, of which the following is a part:

“It is therefore ordered, adjudged and decreed that Oscar Weiner and J. A. Stephens be and are hereby appointed Receivers of the De Paul Educational Aid Society and of all of its property, things and effects, including the real estate described in the Bill of Complaint, located at 64-68 East Lake Street, Chicago, Illinois, and all parties are hereby required to attorn to the Receiver and to turn over all property of every kind, nature and description belonging to the said De Paul Educational Aid Society. . . .
“It is further ordered that all parties, their agents, solicitors and attorneys, be and are hereby enjoined and restrained from further proceeding with any plans of reorganization or with any other proceedings in any other court, either at law or in equity, directly or indirectly, and from using any of the lists of the bond owners for the purposes of reorganization, and from soliciting the bond owners to carry out any reorganization plan under the alleged Depositary Agreement until the further order of the court.”

The receiver appointed hy this order is required to give a bond in the sum of $50,000. Two separate interlocutory appeals were taken from this order, — one by the De Paul Educational Aid Society from the entire order, by which appeal this defendant prays that this court reverse, vacate and set aside the order of July 13, 1934, that the receiver appointed be discharged, that the society be restored to the possession of the property, and that the court vacate and dissolve the injunction. This appeal is numbered 37,763. A. C. Allyn & Company and John C. Meiners appeal from the injunction order, and this appeal is numbered 37,764. The causes have been consolidated in this court, and but one set of abstracts and briefs has been filed. On September 29, 1934, after defendants’ brief had been filed, plaintiffs entered a motion to dismiss the appeal as to the order granting the temporary injunction, which motion has been reserved to the hearing.

It may be noted that the effect of the order entered by .'¡the court below is to enjoin defendant, De Paul Educational Aid Society, from proceeding further in the federal court in the matter of the petition in bankruptcy filed there, and defendants contend that the State court cannot enjoin one from the exercise of any rights granted by the Constitution of the United States and the Bankruptcy Act, and that the State court is without power to pass upon the question as to whether the federal court has or has not complete jurisdiction of the matters now pending before it.

In Morgan v. State, 154 Ark. 273, a bill was filed against a corporation and its officers by a stockholder on behalf of all the creditors and stockholders of the corporation, and it was alleged that the corporation was being mismanaged and was insolvent. The bill prayed for an accounting, for the appointment of a receiver, and that the corporation be dissolved. In that case the court issued an injunction restraining the officers and directors from controlling, or attempting to control, the affairs of the corporation or its assets, and from calling or holding a directors’ or stockholders’ meeting. On the date of the issuance of the injunction, the directors held a meeting and ordered that a voluntary petition in bankruptcy be filed, which was accordingly done shortly thereafter. The directors were cited for contempt of court by the State court, and were adjudged guilty. On appeal to the Supreme Court of Arkansas, in an order quashing the decree adjudging defendants guilty of contempt, the court said:

“Art. 1, sec. 8, of the Constitution of the United States provides that Congress shall have power to pass uniform laws on the subject of bankruptcies throughout the United States. Congress has exercised this power and enacted a general bankrupt law for the United States, and business corporations like the Consumers Ice & Coal Company may become voluntary bankrupts under its provisions. See Barnes’ Federal Code, 1919, sec. 9089. ...
“The Attorney General relies upon the case of In re Associated, Oil Co., Inc., 271 Fed. 788. In that case it was held that after a receiver has been appointed for a corporation by a State court, under authority of the laws of the State, with power to take possession of and hold the property of the corporation, its directors are without power to authorize the filing of a petition in voluntary bankruptcy and the surrender of its property to the bankruptcy court.
“It is true that in that case, as in the present one, the petition in bankruptcy was filed pursuant to a resolution of the board of directors of the corporation, declaring that the affairs of the corporation were in a precarious state, owing to the pendency of a suit in the State court for a receiver; but there the analogy ends. The State court in that case did not enjoin the directors from filing a petition in bankruptcy and did not attempt to punish them for contempt in so doing. The receiver appointed by the State court appeared in the bankruptcy court and contested the right of the directors to file a voluntary petition in bankruptcy. The bankruptcy court was of the opinion that the appointment of a receiver by the State court took the control of the assets out of the corporation, so that there was nothing to surrender to a trustee in bankruptcy. ■ Furthermore, in the exercise of discretion the bankruptcy court declined to interfere with the State court in the matter. The reasoning was that to allow an adjudication in bankruptcy would undo all that had been accomplished in the State court to prevent the mismanagement of the affairs of the corporation.
“This was a decision of the federal bankruptcy court which has, as we have already seen, exclusive jurisdiction in bankruptcy matters. It is one thing for a bankruptcy court to declare under what circumstances it will exercise its discretion in matters relating to the bankruptcy law and quite a different thing to say that this discretion may bé exercised by State courts. To hold that State courts have any jurisdiction to adjudicate under what circumstances a person or corporation entitled to the benefit of the bankrupt laws may file a voluntary petition in bankruptcy would be to oust the federal bankruptcy courts of that exclusive jurisdiction vested in them by the Constitution of the United States and declared by the Supreme Court of the United States.
“To say that a State court may enjoin a person from filing a petition in bankruptcy for any reason is to that ¿xtent to take away the" exclusive' jurisdiction' of the bankruptcy court in the mattér. In other words, it was a question for' the Federal court in bankruptcy and not for the chancery court to declare under what circumstances the corporation was entitled to be adjudged a bankrupt, or whether it was entitled at all to be declared a bankrupt.”

Defendants further contend that there is no cause of action stated in the bill which entitled plaintiffs to any of the relief prayed, in so far as the petition asks for the appointment of a receiver, the dissolution of the corporation, and the other relief therein demanded. We call attention to the fact that this is an interlocutory appeal, and not an appeal from a final order. No demurrer was filed to the bill, and the order was entered after a hearing, with all the parties in court.

In McDougall Co. v. Woods, 247 Ill. App. 170, this court said:

“The statute permitting appeals from interlocutory orders was not intended primarily to provide for a review by this court of the rulings of the trial court on demurrers or to secure from this court its judgment on demurrers before the trial court has ruled thereon. A bill, when first filed, is frequently demurrable, especially bills for injunctions which are usually hurriedly prepared, hut which may be made good by proper amendments which the first court has power to allow. We have nó such power. The primary purpose of the statute is to permit a review of the exercise of the discretion lodged in the chancellor with the purpose of determining whether the interlocutory order probably was necessary to maintain the status quo and preserve the equitable rights of the parties.
“We do not feel called upon to pass upon the demurrability of the bill or the merits of the cause. It is enough to say at present that the bill presents circumstances which lead to a belief that probably the plaintiff will be entitled to relief. The essence of the bill is the averment of a fiduciary relationship between the parties, in which defendant in the matter of collections made by him was the agent of complainant, having under his control the only books showing such collections and the accounts. There was no impropriety in temporarily enjoining the defendant from collecting or receiving any monies which equitably belonged to the complainant and from using any of said funds for his own use. The receiver is not a general receivership, but is given the power only to collect and receive all funds belonging to the complainant and to discover assets belonging to it.”

However, as to that portion of the injunction order which restrains the De Paul Educational Aid Society from proceeding further in the federal court with the bankruptcy petition filed there, this court is of the opinion that the court was without power to enter such order, but that any questions as to the jurisdiction and power of the federal court in bankruptcy matters are to be determined by that court. In so far as the other relief granted is concerned, this court is of the opinion that on this appeal, we will not interfere "with the order appealed from. Therefore, the order here is that the motion to dismiss the appeal from the injunction order be denied, and that the cause be reversed and remanded with the direction that the order appealed from be modified in accordance with this opinion. In all other respects, the order of the superior court is affirmed.

Reversed and remanded with directions.

Hebel, P. J., and Wilson, J., concur.


author: Mr. Justice Wilson

text:
    Pioneer Trust and Savings Bank, Administrator of the Estate of Charles Patterson, Deceased, Appellee, v. Metropolitan Life Insurance Company, Appellant.
    Gen. No. 37,340.
    Opinion filed December 19, 1934.
    Hoyne, O’Connor & Rubinkam, of Chicago, for appellant.
    Prescott, Burroughs & Taylor, of Chicago, for appellee; A. M. Burroughs and Patrick B. Prescott, Jr., of counsel.
   Mr. Justice Wilson

delivered the opinion of the court.

This matter comes before us on appeal of the Metropolitan Life Insurance Company, defendant, from a judgment entered in favor of the plaintiff, Pioneer Trust & Savings Bank, administrator of the estate of Charles Patterson, deceased, in the municipal court of Chicago for the sum of $851.60, the proceeds of two industrial life insurance policies held by the deceased in the defendant company. The policies in question were of that class intended to facilitate the payment of funeral expenses and doctors’ bills upon the death of the deceased and contained what is known as the “facility of payment clause” which provides:

“The Company may make any payment or grant any nonforfeiture privilege provided herein to the Insured, husband or wife, or any relative by blood or connection by marriage of the Insured, or to any other person appearing to said Company to be equitably entitled to the same by reason of having incurred expense on behalf of the Insured, or for his or her burial; and the production of a receipt signed by either of said persons, or of other proof of such payment or grant of such privilege to either of them, shall be conclusive evidence that all claims under this Policy have been satisfied.” This clause is inserted for the benefit of the insurer and in order to protect it against litigation by giving to the insurer the option and privilege of paying such claim, usually small in amount, in order to facilitate the payment of expenses surrounding the last illness of the insured.

The two policies in question were issued in the years 1926 and 1928, respectively, on the life of Charles Patterson, deceased; they were industrial policies and payable to the executor or administrator or at the option of the company, under the facility of payment clause, to any person paying the funeral bills or other debts of the deceased.

Patterson died January 18, 1933, and on April 4, 1933, one Irene Patterson filed her claim and delivered said policies which were in her possession, together with receipt books showing payments of premiums to the company. At the same time she delivered an affidavit wherein she stated that she had paid the expenses of the insured and promised to pay $75 toward his funeral bill.

On the trial the undertaker testified that Irene Patterson had paid him $100 and that he had marked his funeral bill which was for $114 as paid in full and gave it to the defendant company.

From the facts it also appears that Irene Patterson had lived with the deceased for a number of years, although in the last year or two of that time he had become of unsound mind and was removed to the Hines Hospital; that the premiums on the policies, however, were paid by her.

May 2, 1933, defendant issued its check to Irene Patterson in payment of the policies and this was subsequently cashed by her. It appears from the record also that an additional policy had also been issued payable to the mother of the deceased and that on May 4,1933, the mother received a “notice to claimant of payment of policy” and that this notice specified the policy to which she was entitled as well as the two policies involved in this proceeding. Plaintiff relies upon this notice as showing knowledge of the defendant, namely, that the insured had a mother and that it should have paid the amount of the policy to her or the representative of the deceased. The facts, however, show that the check had already been paid to Irene Patterson under the “facility of payment clause.”

Considerable evidence was introduced for the purpose of showing that Irene Patterson was not the wife of the deceased, but was, in fact, one Irene Moore and that the facts contained in her affidavit, under which she secured the payment of the policies, were untrue; that both deceased and Irene Patterson were supported and.financially aided by his own relatives and not by her.,: As between the claimants to the' policies this evidence may have been material, brit "the only question before us is Avhether or not the company had the right to rely upon the affidavit and statements of Irene Patterson at the time it paid her the proceeds of the policies. There is nothing in the record indicating bad faith on the part of the company or that it acted otherwise than in the regular course of business in paying to a person authorized to collect upon proof satisfactory to the company. The Supreme Court of this State in the case of McDaniels v. Western & Southern Life Ins. Co., 332 Ill. 603, in its opinion says:

“The facility of payment clause, as indicated by its language, gave an option to the insurer to make any payment or to grant any non-forfeiture provision to any relative by blood or connection by marriage of the insured, or to any person who has incurred an expense or obligation on behalf of the insured or for the burial of the insured. Such clause in an industrial policy, usually issued for a small amount, is authorized in order to protect the insurance company, with the consent of the insured, against trifling but expensive litigation which might constantly occur over disputes as to parties entitled to the amount of the insurance, and where the company has exercised that option such exercise will be a complete defense under the terms of the policy. Bradley v. Prudential Ins. Co., 187 Mass. 226; Thomas v. Prudential Ins. Co., 148 Pa. St. 594.” The effect of this decision, it is clear, contemplates that the company, having exercised its option to pay, is completely protected under the terms of the policy, there being no bad faith and no utter disregard of the rights of other parties. To the same effect see Bishop v. Prudential Ins. Co. of America, 217 Ill. App. 112; Whitaker v. Metropolitan Life Ins. Co., 259 Ill. App. 668 (Abst.). The fact that Irene Patterson was not the wife of the deceased does not void the action of the defendant in making payment.

From the facts it is our opinion that the municipal court erred in entering the judgment in this case against the defendant company. It was known to the company that Irene Patterson had been living with Charles Patterson and had been paying the insurance premiums and her affidavit to the effect that she had incurred expense in and about his funeral and burial was sufficient to justify the company in making payment under the “facility of payment” clause.

For the reasons stated the judgment of the municipal court is reversed with a finding of fact.

Judgment reversed with a finding of fact.

Hebel, P. J., and Hall, J., concur.

Finding of fact: We find as an ultimate fact that the defendant insurance company paid the amount of the two policies in question to Irene Patterson in good faith upon presentation of affidavits and proof of claim, and were therefore protected under .the “facility of payment, clause. ”