text:
    P. A. Fischer, Appellee, v. William M. Jackson, Appellant.
    Gen. No. 7,900.
    1. Foreclosure op mortgages — presumption as to nature of service upon which judgment in foreclosure based. Where a judgment in. foreclosure proceedings in the courts of another State expressly recites that it is a judgment in rem, and the record does not show that any deficiency judgment or any other judgment was taken against the mortgagor in respect of the mortgage indebtedness, in the absence of affirmative proof that the judgment in foreclosure was had upon personal service it must be considered as based upon constructive service.
    2. Former adjudication — essential allegations in support of plea of former recovery in assumpsit for mortgage foreclosure deficiency. In an action of assumpsit upon promissory notes secured by a mortgage given by thd defendant, covering lands in another State, it is incumbent upon defendant, in order to establish a plea of former recovery upon the identical causes of action based upon proof of a foreclosure of the mortgage in the courts of the State wherein the land was situate, to plead facts showing that he either appeared personally or was personally served in the mortgage foreclosure proceeding.

      3. Negotiable instruments — maturity of right of action on notes not yet due, after default of payment of principal or interest of mortgage debt represented, thereby. The holder of promissory notes falling due at consecutive yearly intervals was not precluded from bringing assumpsit upon all of them by reason of the fact that some were on their face not yet due, where the mortgage by which such notes were secured recited that in the event of a default of payment of principal or interest of the mortgage debt, represented by such notes, the whole indebtedness, at the option of the mortgagee, might be declared .presently due and payable, and the declaration averred an election by the plaintiff to declare the entire indebtedness due on account of a default in the payment of principal and interest in accordance with the terms aforesaid.
    4. Foreclosure of mortgages — right of mortgagee to maintain assumpsit to recover deficiency after sale on foreclosure by constructive service in State where lands situated. Notwithstanding Montana Code, § 9467, providing that there may be but one action for the enforcement of any right secured by a mortgage upon real property, and that in such action the court may direct a sale of the mortgaged property and the application of the proceeds thereof to the debt, and thereafter docket a judgment for any unpaid balance against the defendants personally liable therefor, the holder of notes secured by a mortgage of lands in that State may sue the maker thereon in this State in assumpsit, although he has had foreclosure upon such mortgage in the courts of Montana, where such foreclosure judgment was had upon constructive service and the sale on foreclosure left a balance of the mortgage indebtedness unpaid.
    5. Evidence — admissibility of former plea of defendant in assumpsit to which demurrer of plaintiff sustained. It is not error to admit in evidence, at the trial of an action in assumpsit, a former plea of the defendant therein to which a demurrer has been sustained, such plea constituting a statement of fact by defendant as to the subject matter of the action.
    6. Harmless and brejudicial errors — instruction as to amount of recovery in assumpsit on notes in absence of testimony as to computation thereof. Error may not be predicated upon the fact that the court, in an action in assumpsit on promissory notes, gave the peremptory instruction for plaintiff without any witness having testified as to a computation of notes, interest and indebtedness, where the matters in issue were all before the court and the record shows that the computation made by the court before the instruction was given exceeds the amount stated in the instruction and found by the verdict, as well as the ad damnum stated in the declaration, and there was no dispute in the testimony as to the amount oí the indebtedness.
    Appeal by defendant from the Circuit Court of Christian county; the Hon. William B. Weight, Judge, presiding. Heard in this court at the October term, 1925.
    Affirmed.
    Opinion filed December 31, 1925.
    R. C. Neff, for appellant.
    Hogan & Reese and Springstun & Springstun, for appellee.
   Mr. Justice Shurtleff

delivered the opinion of the court.

Appellee brought this action in assumpsit against appellant, based upon ten promissory notes, each for the sum of $1,000, and executed by appellant on April 28, 1919, bearing interest at the rate of 6 per cent per annum, one of said notes falling due- on each April 28 during the ten consecutive years following 1919. The declaration sets out the notes and further avers: “That the aforesaid notes were secured by a certain mortgage on real estate signed by the said William M. Jackson in which it is provided as follows: ‘But in case default shall be made in the payment of said principal sum of money, or any part thereof as provided in said notes, or if the interest or taxes that may grow due thereon or any part thereof shall be due and unpaid according to the terms of said notes for the space of ten days after the same should have been paid, then and from thenceforth it shall be optional with the said party of the second part (P. A. Fischer), his heirs, executors or assigns to consider the whole of said principal sums, expressed in said notes, immediately due and payable at the time expressed in said notes, if the time of payment thereof shall not have arrived.

“ ‘It is further averred in said count the plaintiff has elected to declare the entire indebtedness due and payable on account of the default in the payment of the principal and interest according to the terms of said notes.’ ”

Appellee also filed the common counts and averred his damages at $5,000. Appellant pleaded the general issue and a special plea averring the recovery of a judgment by appellee against appellant in the District Court of the Seventh Judicial District of the State of Montana in and for the county of Wibaux, for the same and identical cause and causes of action, on the 3d day of March, 1922, for the sum of $12,375. Appellee joined issue on the general issue and as to appellant’s second plea replied nul tiel record, upon which replication issue was joined. There was a trial by jury, proofs were submitted by appellee and the court instructed a verdict in behalf of appellee in the sum of $5,000, upon which judgment was rendered, and appellant has brought the record to this court, by appeal, for review.

It appears by the proofs submitted that appellant executed a mortgage on the 28th day of April, 1919, covering certain lands situated in Wibaux county, Montana, to secure the said notes, and that said mortgage contained the optional clause herein recited, authorizing and empowering the holder of said notes, in case of a default, to declare the entire indebtedness due and payable, and the mortgage further contained provisions, requiring the grantor, appellant, in case of foreclosure or suit, to pay certain attorney and solicitor’s fees, charges and costs. The proofs submitted show a default on the part of appellant in the payment of the notes by letters, written by appellant to appellee and by the record of a judgment in rem in the District Court of Montana in and for the county of Wibaux, wherein appellee by a suit brought to foreclose the mortgage given by appellant against the said lands had secured a decree in said court, wherein appellant was named as defendant, on March 3, 1922, finding and decreeing that there was due from the defendant to the plaintiff, appellee in this suit, the sum of $12,375 upon the said notes and indebtedness, and decreeing the said sum to be a lien and charge upon the said lands and ordering a sale of the lands or so much thereof as might be necessary to. satisfy said decree.

It further appears from the records of said court that thereafter, in pursuance of said decree, the sheriff of said Wibaux county sold the said lands to appellee, he being the highest bidder therefor, for the sum of $8,000, and it is recited in said proceedings that after said sale there still remains due from defendant to the plaintiff, after applying the amount of said sale upon the said indebtedness, the sum of $4,479.08. Appellee submitted as proofs the. notes, the mortgage, the letters of appellant and the record of the proceedings in Montana to show the default on the part of appellant and the amount of the sale to be applied upon the notes. Appellant submitted no proofs. The principal contention in the case is, whether the Montana court had jurisdiction over the person of the. defendant (appellant) and rendered a personal judgment against blrn. If there was a judgment entered in the Montana court against appellant, the court having jurisdiction over his person, the notes became merged in the judgment and appellee could not sue in assumpsit. Appellant is relying upon the proofs submitted by appellee. The record offered recites: “It appears to the satisfaction of the court that the summons in this action, together with the complaint therein, was duly and regularly served upon the defendant William M. Jackson, and defendant has been duly and regularly summoned to answer the plaintiff’s complaint.”

The record further recites: “That there is due plaintiff from defendant William M. Jackson upon the promissory notes named and described in the complaint the sum of $10,000.00 and interest, $1,721.67, $109.52 taxes and interest $7.81 and $536.00 attorney fees and the sum of $13.00 costs allowed and assessed by the Court making a judgment due and owing by the said defendant to the plaintiff in the sum of $12,375.00 and cost. * * * And upon motion, * * * plaintiff is granted judgment against defendant, William M. Jackson, upon said notes and mortgage for the whole sum of $12,375.00 and costs; that the same is a good and valid lien upon the land in the complaint described and is secured by the terms of said mortgage.” And it is further recited: “It is further adjudged and decreed that this judgment is in rem.” The clerk’s certificate of the report of sale recites that the judgment is in rem and further recites: “That there is no deficiency judgment of record and that there is no judgment in the above entitled Court vs. William Jackson for any sum or sums.”

We have copied the provisions of the judgment record as furnished the court in the abstract by appellant. The recital in the first clause of the record does not state whether the summons and complaint were served upon the defendant in the State of Montana or in Christian county, Illinois, or whether they were served personally upon the defendant or by some method of publication provided for by statute. It may be that the first three recitals of the record, standing alone, Would afford prima facie proof of a personal judgment, if offered to support a judgment. (Bimeler v. Dawson, 5 Ill. [4 Scam.] 536; Whittaker v. Murray, 15 Ill. 294, and Thompson v. Emmert, 15 Ill. 416.) But coupled with the positive provisions, of the decree that the judgment is in .rem and that there is no deficiency judgment or any judgment in said court against appellant, the record loses even its prima facie effect and must be construed as a judgment based upon constructive service only. (Botsford v. O’Conner, 57 Ill. 72; Hunter v. Stoneburner, 92 Ill. 79; Illinois Cent. R. Co. v. People, 189 Ill. 121.)

Appellant had the full knowledge as to said judgment and the nature of the service upon him, and if he was served personally by summons in the State of Montana, or entered his appearance personally in said cause, he should have pleaded such facts and supplied the proper records.

It is further contended by appellant that at the time suit was brought only three of the notes were due, and that as to the other notes the suit was prematurely brought. The notes became due at the time stated on the face of the notes absolutely, or upon the contingency provided in the mortgage at an earlier date, and suit was properly brought upon all the notes. (Hunter v. Clarke, 184 Ill. 158; McCormick v. Unity Co., 239 Ill. 314; Kraft v. Hora, 159 Ill. App. 363.)

Appellant eonteiids that by virtue of section 9467 of the Statutes of Montana, offered in evidence, providing: “Proceedings in Foreclosure Suits: That there is but one action for the recovery of debt, or the enforcement of any right secured by a mortgage upon any real or personal property, which action must be in accordance with the provisions of this chapter. In such action the court may, by its judgment, direct a sale of the encumbered property (or so much thereof as may be necessary), and the application of the proceeds of the sale, and the payment of the costs of the court and the expenses of the sale, and thei amount due plaintiff; and if it appears from the sheriff’s return that the proceeds are insufficient and a balance still remain» due, judgment can be docketed for such balance against the defendant or defendants personally liable for the debt, and it becomes a lien upon the real estate of such judgment debtor as in other cases on which execution may be issued,” the notes and mortgage became merged in the judgment in the Montana court, and the appellee can only sue upon that judgment. But the foregoing section of the Montana Code was adopted from the State of California, and in California is numbered as section 726. Under section 726 of the California Statute it was held that this section providing only the one action to recover debt or force a mortgage does not prevent a new action on a note which is secured by mortgage to recover a deficiency left on foreclosure of mortgage, as the amount realized on foreclosure may be treated as a payment on the note and the action is brought to recover the balance. (Blumberg v. Birch, 99 Cal. 416, 34 Pac. 102, 37 Am. St. Rep. 67; In re Linforth, 87 Fed. 386; Boucofski v. Jacobsen, 36 Utah 165, 104 Pac. 117, 26 L. R. A. [N. S.] 898; Wright v. Wimberly, 94 Ore. 1, 184 Pac. 740; Randerson v. McKay [Okla.], 188 Pac. 323.)

In our own State it is the well-settled doctrine that proceedings in rem and in personam to collect the same demand, or to accomplish the same object, do not necessarily interfere until satisfaction is obtained or the object secured in one of such proceedings. (Wright v. Simpson, 200 Ill. 64; 8 Am. & Eng. Encyc. of Law, 1st ed., p. 549.)

Appellant assigns error upon the admission in evidence of a former plea filed in this cause by appellant, to which a demurrer has been sustained. It was a statement of fact by appellant as to the same subject matter and no error was committed by admitting the plea in evidence. (Kankakee & S. R. Co. v. Horan, 131 Ill. 291; Schmisseur v. Beatrie, 147 Ill. 210.)

Appellant assigns error on the ground that the court gave the peremptory instruction without any witness having testified to a computation of the notes, interest and indebtedness. The matter was all before the court, and as to the amount of indebtedness, in documentary evidence, and the record shows that the court made the computation before the instruction was given. We have examined the computation made and find that it exceeds the amount stated in the instruction and found by the verdict, and exceeds the ad damnum stated in the declaration. There was no dispute from the competent testimony in the case as to the amount of the indebtedness and there could be, therefore, no error in the instruction.

Finding no error in the record that will warrant a reversal, the judgment of the circuit court of Christian county should be and is affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Shurtlepp

license: Public Domain

text:
    Felix Scalzo et al., Plaintiffs in Error, v. Commercial Trust & Savings Bank et al., Defendants in Error.
    Gen. No. 7,910.
    1. Cobpobations — jurisdiction of equity to appoint receivers and wind up affairs. Courts of chancery have no equity powers to appoint receivers and close up the affairs of a corporation.
    2. Banking — public interest in banking business. The subject of banking, under the law of this State, is impressed with a public interest and trust which seeks to protect, not only the depositor and creditor, but the stockholder and general public.
    3. Banking — jurisdiction of equity to appoint receivers and supervise affairs. The power of a court of equity to appoint receivers and to supervise the affairs of banks is to be found in Cahill’s St. ch. 16a, and section 54 of the General Corporation Act, Cahill’s St. ch. 32, 54, does not apply.
    4. Cobpobations — prerequisites to suit by stockholder upon cause of action primarily belonging to corporation. Before a stockholder should be permitted to bring suit, in his own name, to institute and conduct litigation which usually belongs to the corporation, he should show to the satisfaction of the court that he has exhausted all of the means within his reach to obtain within the corporation itself the redress of his grievances or action in conformity to his wishes.
    5. Banking — sufficiency of bill by stockholders seeking receiver for bank and injunction restraining acts of liquidators. A bill by minority stockholders seeking appointment of a receiver for the bank and an injunction restraining officers thereof, acting as a liquidating committee, from enforcing against complainants certain obligations to the bank, was properly dismissed for want of equity, where there was no allegation of application to and refusal by the auditor of public accounts to proceed against the bank as'provided by Cahill's St. ch. 16a, fí 11, nor allegations sufficient to show that the stockholders were in danger of suffering injury through fraudulent acts on the part of the said officers.
    Error by plaintiffs to the Circuit Court of Sangamon county; the Hon. Erank W. Burton, Judge, presiding. Heard in this court at the October term, 1925.
    Affirmed.
    Opinion filed December 31, 1925.
    A. M. Fitzgerald, O. J. Putting, Edward Pree, T. J. Sullivan and H. C. Moore, for plaintiffs in error.
    Graham & Graham, Sidney S. Breese and Barber & Barber, for defendants in error.
   Mr. Justice Shurtlepp

delivered the opinion of the court.

This is a writ of error to review a decree of the circuit court of Sangamon county, sustaining general demurrers to an original bill and two amended bills filed by plaintiffs in error, minority stockholders seeking the appointment of a receiver for the defendant in error bank, and an injunction to restrain the individual defendants in error, officers, from enforcing obligations in favor of the bank. We shall speak of the plaintiffs in error as complainants and the defendants in error as defendants.

The relevant facts as alleged by the original and amended bills are: That defendant Commercial Trust and Savings Bank was organized under the laws of Illinois July 14, 1920, with a capital of $500,000, consisting of 5,000 shares and with a surplus of $250,000. On May 2, 1924, it ceased its deposit business, and its directors and officers pledged its assets to five trustees, Latham T. Souther, George E. Keys, Joseph F. Bunn, Henry G. Bengel and C. J. Peterson, Jr., representing the five clearing house banks of Springfield (First National Bank, First State Trust and Savings Bank, Bidgely-Farmers State Bank, Springfield Marine Bank and Illinois National Bank), to secure the payment to said clearing house banks of the sum of approximately $1,400,000 advanced by said clearing house banks to pay the debts and deposit liabilities of defendant bank, and thereupon the bank ceased receiving deposits and making loans.

The stockholders of the bank held a special meeting, which meeting was also attended by its directors and officers, and passed and adopted resolutions that the bank be placed in voluntary liquidation; that its deposit business be discontinued, its assets be converted into money, its obligations discharged, and the net residue thereof be distributed pro rata among its stockholders, also ratifying and approving said contract made by the directors and officers with said trustees for said clearing house banks and appointing defendants in error F. E. Shuster, L. A. Danner and George W. Solomon as a liquidation committee to conduct the liquidation of the bank, and appointing “a long list of members of the Advisory Committee to assist and advise with said liquidation committee.”

It is also alleged that all sums advanced by the clearing house banks, and all debts of the bank, have been paid and there remains in the hands of the liquidation committee as a fund for the benefit of stockholders of the bank, assets of the face value of over $700,000; that the liquidation committee “is forcing certain firms and individuals that are indebted to said Commercial Trust and Savings Bank to assign their property to said liquidation committee”; that “defendants hold 320 shares, comprising the controlling interest in the Lincoln Park Coal and Brick Company, as collateral to the paper of complainant James A. Hall, and have given notice that they would sell said 320 shares at public or private sale at the south door of the county court house in Springfield, Illinois, on February 19, 1925, and defendants have conspired to purchase said stock at a very low figure, approximately $1,600 whereas in fact said stock has a market value of $32,000 to the damage of the stockholders of $30,400, and that unless restrained by the court, defendants will continue to force down prices of this collateral and other collaterals so that it can be purchased for their own private gain and benefit, at the expense of the stockholders of said bank.”

There are also allegations claiming that $2,500 was lost to the bank by not selling the lease of its banking house location; that $350 per month was wasted in employing too many clerks, and that $5,500 was lost by selling for $2,500 property obtained as collateral from a debtor.

One of the issues involved in this bill is whether a court of equity, at the suit of a small minority of the stockholders who have sought no redress in the corporation, will interfere, by injunction or receiver, with the settlement of the affairs of a bank where the stockholders have voted to go into voluntary liquidation and wind up its business and with its directors have placed its affairs in the hands of a liquidation committee made up of three of its directors who are proceeding to convert its assets into cash and distribute the same among its stockholders.

There is a further issue as to whether certain allegations in the bill are sufficient to charge fraud and gross mismanagement of the affairs of the bank to the extent that a court of equity, will intervene and assume jurisdiction. The court below sustained a demurrer to the bill and a decree was entered on the pleadings dismissing the bill for want of equity, and the complainants have brought the record to this court, by writ of error, for review. In equity, amended bills are construed as a continuation of the original bill, and with it constitute a single record. (Beck er v. Billings, 304 Ill. 202 [23 N. C. C. A. 105].) From the bill we glean that some of the complainants are indebted to the bank and are unable to meet their indebtedness. Complainants contend that there has been no voluntary dissolution of the defendant banking corporation, either under the Banking Act or the General Corporation Act, but that the bank, by reason of ceasing to take deposits and make loans and by not electing a board of directors in January, 1925, has abandoned its- charter powers, ceased to function as a bank and placed its property illegally in the hands of three trustees who hold the assets of the bank as a trust, and complainants contend under section 54 of the General Corporation Act [Cahill’s St. ch. 32, 54] providing: “Courts of equity shall have full power, on good cause shown, to dissolve or close up the business of any corporation, to appoint a receiver therefor who shall have authority, by the name of the receiver of such corporation to sue in all courts and do all things necessary to closing up its affairs, as commanded by the decree of such court”; that a receiver should be appointed and an injunction issue. It cannot be said that the bank has ceased to function or is without a governing body because the stockholders did not elect a new board of directors in January, 1925. It is provided in section 4 of the Banking Act [Cahill’s St. ch. 16a, [[4]: “Any omission to elect directors shall not impair any of the rights and privileges of the association or of any person in any way interested, but the existing directors shall hold office until their successors are elected and qualified, as in such cases may be by law provided,” so that the bank continues to have the legal agency by which it. is authorized and is presumed to be. doing business. The bill does not aver whether the defendants Shuster, Danner and Solomon, constituting the liquidation committee, are members of the board of directors or not, and as- the bill must be taken most strongly against the pleader, courts must presume that the named defendants are members of the board of directors of defendant bank, if such membership in any manner is requisite for service upon a liquidation committee for the bank. As to a voluntary dissolution of the banking corporation, section 15 of the Banking Act [Cahill’s St. ch. 16a, [[15] provides that the corporation “may determine its affairs, distribute its assets among its stockholders, resign its charter or certificate of incorporation and close up its business by resolution passed at a meeting of its stockholders called for that purpose.” The statute says this may be done “on depositing with the auditor an amount of money equal to the whole amount of debts and demands against it,” etc. Under this statute, the banking corporation has full power to wind up its affairs and distribute its assets among its stockholders when its depositors and creditors are paid, or the fund with which to pay the liabilities is deposited with the auditor. No question arises in this case as to the legality of the arrangement with the trustees for the clearing house banks as the depositors were paid in full and, without doubt, with the full approval of the auditor, and the remaining assets were in the hands of the liquidation committee prior to the filing of the bill of complaint in this case.

From the allegations in the bill it is apparent that the defendant bank, on the 17th of July, 1924, by its stockholders, by resolution, took the proper, necessary and sufficient action to discontinue the banking business and wind up its affairs, and thereafter it had two years, at least, to complete its dissolution. (Commercial Loan & Trust Co. v. Mallers, 242 Ill. 54.)

It is provided in section 11 of the Banking Act [Cahill’s St. ch. 16a, ¶ 11] that:

“No bill shall be filed or proceedings commenced in any court for the dissolution or for the winding up of the affairs or for the appointment of a receiver for any such banking corporation on the grounds of insolvency or impairment of the capital stock of such banking corporation, or upon the ground that such bank is being conducted in an illegal, fraudulent or unsafe manner, except in the name and by the authority of the Auditor of Public Accounts, represented by the Attorney General.”

It is contended by the complainants that this provision of the Act, construing the language used in connection with the language in section 15 of the Act, is intended for the safety and protection of the depositors and creditors of the bank only, and that when the depositors, are paid and all liabilities cancelled, the' banking corporation becomes the same as any general corporation, and the provisions of section 54 of the General Corporation Act, before recited, apply, and that the complainants are entitled, in equity, to relief in this case.

Certain provisions of the General Corporation Act apply to banks where there is no specific statutory enactment in the Banking Act. (Commercial Loan & Trust Co. v. Mallers, supra; Wilson v. Mackinaw State Bank, 217 Ill. App. 494.) Courts of chancery have no general equity powers to' appoint receivers and close up the affairs of corporations. It is held in Coquard v. National Linseed Oil Co., 171 Ill. 485: “Courts of chancery have no general power to appoint receivers of corporations and can only appoint them where expressly authorized by the statute. In the absence of statutory authority they have no jurisdiction to decree the dissolution of a corporation by decreeing a forfeiture of its franchise. (Wheeler v. Pullman Iron & Steel Co., 143 Ill. 197; Chicago Steel Works v. Illinois Steel Co., 153 Ill. 9; People v. Weigley, 155 Ill. 491.) The whole power of a court of equity in such cases is derived from section 25, chapter 32, of the Revised Statutes. Complainant did not bring himself within any provision of that section, and is not entitled to the appointment of a receiver or dissolution of the corporation.” And the same rule is laid down in Blanchard Bro. & Lane v. Gay Co., 289 Ill. 420; Hunt v. LeGrand Roller Skating Rink Co., 143 Ill. 121; Abbott v. Loving, 303 Ill. 167, and other cases. Section 25 of the General Corporation Act referred to is now section 54 of the Revised Act [Cahill’s St. ch. 32, ¶ 54]. In Blanchard Bro. & Lane v. Gay Co., supra, the court said on page 421: “Appointing a receiver to take possession of the assets of a corporation and distribute them is tantamount to dissolving the corporation by decree in equity,” and again the court said in the same case: “Courts are particularly disinclined to appoint a receiver for misconduct or mismanagement of a corporation or for the purpose of merely preserving its assets where the application is made by stockholders, for the reason that the sovereign does not furnish public agencies for the carrying on of private enterprises.”

In this particular, pointed out by the court, the legislature has made a broad distinction between general corporations engaged in private enterprise and banking corporations. As to banks, the State, has provided an executive branch of the State government to license, inspect, supervise and regulate State banks and under section 11 of the Banking Act, if upon an examination of the affairs of the bank it appears to the auditor that its business is being conducted in an illegal manner, he may appoint a receiver to take charge of the affairs of the bank without the order of any court and wind up its affairs, obtaining orders of court for certain specific purposes, and this the auditor is empowered to do, either before or after the payment to the depositors, according to the letter of the statute. The subject of banking, under the law of this State, is impressed with a public interest and trust which seeks to protect, not only the depositor and creditor, but the stockholder and general public. In the opinion of this court, the power of a court of chancery to appoint receivers and supervise the affairs of banks is to be found in the statutory law adopted by the people in chapter 16% of the Revised Statutes [Cahill’s St. ch. 16a], and section 54 of the General Corporation Act [Cahill’s St. ch. 32, ]\ 54] does not apply to banks. Before a stockholder should be permitted to bring suit, in his own name, to institute and conduct a litigation which usually belongs to the corporation, he should show to the satisfaction of the court that he has exhausted all of the means within his reach to obtain within the corporation itself the redress of his grievances or action in conformity to his wishes. (Hawes v. Contra Costa Water Co., 104 U. S. 450 [26 L. Ed. 832]; Babcock v. Farwell, 245 Ill. 46; Continental Securities Co. v. Belmont, 206 N. Y. 7, 51 L. R. A. [N. S.] 112; Fleming v. Black Warrior Copper Co., 15 Ariz. 1, 51 L. R. A. [N. S.] 99.) Nothing is shown by the bill that any complaint has ever been made to the auditor of State by any of the complainants ; neither is the auditor of State made a party to the bill.

Regardless of all that has been said, cases may arise in which such a fraudulent condition of affairs may be charged to exist, and the auditor of State refuse to take action so that a court of equity should take jurisdiction on the ground of fraud. Complainants in part have attempted to invoke the jurisdiction of the court on the ground of fraud. It is charged in the bill that the liquidating committee refused to dispose of a lease of the bank building to the damage of the bank in the sum of $2,400. No facts are stated, as to whether or not the lease was assignable or whether it was necessary to hold the lease to dispose of the bank fixtures or for other reasons. It is charged that the committee paid out $350 per month for clerk hire which was not necessary, when the board of trustees at the same time was paying the First State Trust and Savings Bank $500 per month, for all clerical work in liquidating the defendant bank to the loss of the stockholders of $2,100, but the bill does not aver that these clerks performed no services or any other facts from which the court may determine the necessity of their employment.

It is further averred that the defendants’ liquidating committee in a contract set a price of $5 per share on the stock of the Lincoln Coal and Brick Company; that the defendant bank held 320 shares of the stock of said company as collateral to loans made by complainant Hall from the said bank; that the par and actual value of said stock was one $100 per share and that the defendants wrongfully conspired together to obtain these 320 shares of stock for the lowest figure possible1 from the defendant bank, to. the damage of the stockholders in the sum of $30,400. The bill does not state the amount that complainant Hall owes the bank, or whether he is insolvent. It does not state whether Hall has paid the bank or whether the bank holds other security. It does appear that the defendants, have advertised the stock for sale at a public sale. There are one or two charges of a similar nature, none of which, however, aver facts with sufficient certainty, so that the court can see that the stockholders of the bank are in danger of suffering injury. None of the complainants have suggested any of these matters to the auditor of State. Defendant bank was organized with a capital of $750,000. Sufficient assets have been converted into cash to pay the depositors and creditors in an amount of about $1,400,000. There are on hand assets and securities to the amount of about $770,000 in course of liquidation to be distributed to the stockholders, with which, from the allegations, in this bill, a court of equity has no occasion or jurisdiction to interfere.

The circuit court of Sangamon county did not err in sustaining the demurrer to and dismissing the bill for want of equity, and the decree of that court is affirmed.

Affirmed.


author: Mr. Justice Partlow

text:
    Brown Brothers Garage & Tire Company, Inc., Appellant, v. Joe Backes, Appellee.
    Gen. No. 7,590.
    1. Certiorari — sufficiency of petition for certiorari to review judgment of justice corruptly preventing taking of appeal. Where following the trial of an action before a justice the case was taken under advisement until a designated day, and on that day the justice announced a decision for plaintiff and gave defendant to understand that he then entered judgment accordingly, whereas he had entered such judgment four days earlier, the circuit court properly refused to quash a writ of certiorari to review such judgment, the petition therefor alleging, in addition to the foregoing, facts, showing that the defendant was thereby and without negligence on his part, prevented from taking an appeal from such judgment within the time limited* for so doing, and alleging further that the justice had corruptly, etc., misled the defendant as to the date of such judgment for the purpose of preventing an appeal, such petition being under oath and uncontradicted.
    2. Certiorari — presumptions as to petition on motion to quash writ. On motion to quash a writ of certiorari the averments of the petition therefor, if made under oath and uncontradicted, must be taken as true.

      3. Appeal and error — necessity that abstract show appeal prayed or granted. Where the abstract of the record does not show that an appeal was ever prayed or granted, affirmance of the judgment appealed from would be warranted, notwithstanding the abstract shows that motion for a new trial was overruled, and that there was an appeal bond and a bill of exceptions, the latter being likewise silent as to whether an appeal was ever prayed or granted.
    Appeal by plaintiff from the Circuit Court of Peoria county; the Hon. T. N. Green, Judge, presiding. Heard in this court at the October term, 1925.
    Affirmed.
    Opinion filed December 24, 1925.
    John E. Cassidy, for appellant.
    Dailey, Miller and McCormick & Radley, for appellee; R. H. Radley and Emerson T. Anthony, of counsel.
   Mr. Justice Partlow

delivered the opinion of the court.

Appellant, Brown Brothers Garage So Tire Company, a corporation, recovered a judgment, before a justice of the peace in Peoria county, against appellee Joe Backes. Appellee filed a petition for writ of certiorari in the circuit court of Peoria county to review the judgment. A writ of certiorari was issued and, upon its return, appellant moved to quash the writ, which motion was overruled. There was a trial by jury, verdict and judgment in favor of appellee, and an appeal has been prosecuted to this court.

The only complaint made upon this appeal is that the court improperly refused to quash the writ. The petition for certiorari was under oath and alleged that on July 19, 1923, a judgment was rendered by a justice of the peace against appellee and in favor of appellant for $206.95, and costs; that the judgment was not the result of negligence on the part of appellee, who appeared on the return day of the summons to' defend the suit; that, after the evidence was heard the justice took the case under advisement until July 23, 1923; that upon that date appellee and his attorney went to the court of the justice who informed appellee that it was his opinion that appellant should recover of appellee $206.95, and that he rendered judgment accordingly. Appellee thereupon prepared an appeal bond to the circuit court of Peoria county which bond was signed by the Continental Auto Insurance Association as surety. On August 9, 1923, within twenty days from the rendition of the judgment, E. T. Bamewolt took the appeal bond, with a check for $7.25 to cover the justice’s fees for the transcript and the approval of the bond and docket fee of the circuit clerk, and left the same at the office of the justice for his approval. It is alleged that the bond was a good and sufficient bond and no objections were ever made to the surety. Several days later the bond was returned to Barnewolt with a statement that it was filed too late; that thereafter appellee learned that the justice had wrongfully, wickedly, corruptly and designedly told appellee that the judgment had been rendered on July 23, 1923, when in truth and in fact the justice had rendered judgment on July 19, 1923, which false statement was made by the justice to prevent appellee from perfecting an appeal within the twenty days as provided by law; that when the justice informed appellee and his attorney that he had rendered judgment on July 23, 1923, appellee believed that such representation was true, and that he would have until August 12,1923, in which to file his appeal bond; that the suit of appellant was based upon an automobile accident wherein there was a collision, without negligence on the part of appellee, and the accident was the result solely of the negligence of appellant, and that appellant should respond in damages to appellee; that the justice refused to approve the appeal bond, issued an execution upon the judgment, the same being given to a constable who threatens to levy upon the personal property of appellee and sell the same to satisfy the judgment.

When the petition for certiorari was presented to one of the judges of the circuit court of Peoria county, the writ was ordered issued upon appellee giving bond in the sum of $420 to be approved by the clerk. The motion to quash the writ was in writing, but was not under oath, and no evidence was heard in its support at the time of the hearing on the motion to quash. The grounds of the motion to quash are that the petition failed to allege facts, proof of which would show that it was not in the power of appellee to perfect an appeal, or that the judgment was not the result of negligence of appellee; that it failed to allege that degree of care required by law in perfecting appeals so as to entitle appellee to a writ of certiorari; that it failed to allege that the judgment was unjust and erroneous, and allege the facts constituting the injustice and error; that the petition shows that the appeal bond was not executed according to law.

Section 75, chapter 79 (Cahill’s St. ch. 79, If 178, § 75), confers jurisdiction on the judges of the court to which the appeal is taken to grant writs of certiorari. Section 76 provides that the writ of certiorari shall set forth and show, upon the oath of the applicant or his agent, that the judgment before the justice of the peace was not the result of negligence of the party praying such writ; that the judgment, in his opinion, is unjust and erroneous, setting forth wherein the injustice and error consists, and that it was not in the power of the party to take an appeal in the ordinary way, setting forth the particular circumstances which prevented him from so doing. Section 77 provides that no writ of certiorari shall issue after the expiration of six months from1 the date of the rendition of the judgment.

In Pierce v. Wade, 19 Ill. App. 185, the petitioner was summoned as a garnishee. He appeared before the justice, and in his answer denied that he was indebted to the defendant. After he made this return he was told by the justice that he might go, and that the justice had no further use for him, which he understood to mean that he was discharged. Later, a judgment was entered against him without his knowledge. He did not learn that the judgment had been rendered until it was too' late to appeal. He filed a petition for a writ of certiorari to review the judgment, and it was held that the facts set forth in the petition were sufficient grounds for the writ.

In McDonald v. Williams, 41 Ill. App. 378, at the close of the trial, the justice announced that there would be a judgment in favor of the plaintiff for $195.90, and he noted this amount on the back of the wrapper containing the papers in the case. Later, when the justice wrote up the judgment it was for only $95.90. The plaintiff did not learn of-the" amount of the judgment until the expiration of twenty days from the date of its rendition and therefore he could not appeal. He filed a petition for a writ of certiorari and the court said:

“Having heard the justice announce his judgment * * * in relying on said announcement as being the judgment, and there was no lack of diligence in his not examining the wrappen or looking at the docket, in order to see that the judgment was minuted and written in the docket as it was announced by the justice. McNerney v. Newberry, 37 Ill. 91; Pierce v. Wade, 19 Ill. App. 185; O’Hara v. O’Brien, 4 Ill. App. 154.” It was held that the petition stated sufficient ground to entitle the petitioner to have a writ of certiorari issued.

In Withers v. Bruntom, 83 Ill. App. 126, it was held that a justice of the peace cannot date a judgment prior to the day on which the same was actually rendered, and by so doing deprive a party of the full twenty days in which, to appeal, and if this is done certiorari will lie to remedy the injustice.

In the case at bar the sworn petition is the only evidence before us. It alleged that after the trial, on July 17, 1923, the justice took the case under advisement until July 23, 1923, at which date appellee and his attorney appeared and heard the decision. The justice announced that it was his judgment that appellant should recover $206.95, and that he rendered judgment accordingly. The judgment was not rendered on that day, but had been entered on July 19, 1923. The justice did not inform appellee of that fact, but led him to believe that the judgment would be rendered as of July 23,1923. The appellee had a right to rely upon this statement of the justice, and he was not required to examine the docket to see that the judgment was rendered as it was announced by the justice. The petition also alleged that the justice wrongfully, wickedly, corruptly, and designedly told appellee that the judgment had been rendered on July 23,1923, which false statement was made for the purpose of preventing appellee from perfecting an appeal within twenty days as provided by law. The petition was under oath, was not contradicted, and we must take its allegations as true upon the motion to quash. It contained sufficient allegation to bring it within the provisions of the statute with reference to petitions for certiorari and the court properly refused the motion to quash.

There is another ground upon which the judgment might be affirmed. The abstract of the record does not show that any appeal was ever prayed or granted. It shows that a motion for a new trial was overruled; that there was an appeal bond and a bill of exceptions. No part of the bill of exceptions appears in the abstract, and it is silent as to an appeal having been prayed or granted. Notwithstanding the fact that the abstract does not show that an appeal was prayed or granted we have deemed it best to consider the question upon its merits rather than affirm, it upon other grounds.

We find no reversible error and the judgment will he affirmed.

Judgment affirmed.


author: Mr. Justice Jett

text:
    Phoebe Miner, Plaintiff in Error, v. Elmore H. Stafford et al., members of Board of Trustees of Police Pension Fund of Rock Island, Illinois, Defendants in Error.
    Gen. No. 7,542.
    1. Officers and public employees — power to increase or diminish amounts of future instalments of pensions. Since a pension is a bounty, to be given or withheld at the pleasure of the sovereign power and necessarily to be paid in the future after its allowance, the amount of future instalments is to be determined by that power, which may add to or diminish the same, or discontinue them altogether.
    2. Statutes — application of amended statute to pre-existing conditions as retrospective. No retrospective application is given to an amendment of a statute providing for payment to the widow of a police officer of a pension equal to one-half of such officer’s salary, “not to exceed $600 per year,” the amendatory statute re-enacting the former statute verbatim except as to the quoted words, and in place thereof saying: “not to exceed $1,250 per year,” by holding that the statute as amended governed the right of a widow of a police officer to a pension after the effective date of such amendment, although the death of such officer occurred prior thereto.
    3. Statutes — effect of amendment re-enacting amended statute verbatim except as to parts thereof. Where a statute providing for payment of a pension to the widow of a police officer equal to one-half of his salary, “not to exceed $600 per year,” was amended by an act providing that the foregoing act should be amended to read as follows, such amendatory act then restating verbatim the statute amended, except as to the quoted words, in lieu thereof stating, “not to exceed $1,250 per year,” the effect of such amendment was to continue in force all provisions of the former act so repeated, to repeal the provision first quoted and to enact in lieu thereof the second quoted provision, and to leave the act as amended the sole law governing cases falling within the scope of either.
    4. Statutes — amendment removing limitation upon right created by amended act as •affecting remedy instead of rights. Where a statute providing for payment of a pension to the widow of a police officer equal to one-half of such officer’s salary, "not to exceed $600 per year,” was amended by re-enacting that statute verbatim except as to the quoted portion, and in lieu thereof stating, “not to exceed $1,250 per year,” such amendment did not grant any new right to the widow of an officer dying prior to the effective date of such amendment, nor did it enlarge any right existing under such prior right, although the purpose of the amendment was to remove a limitation upon such former rights, since such limitation affected only the remedy of the pensioner and not her right to be a pensioner, the language of the amendatory act evincing a legislative intent to continue the old act in force, except as to the restriction, as though no amendment had ever been made.
    5. Statutes — rules for ascertainment of legislative intent. The legislative intent can be ascertained in three ways: (1) By what it says; (2) by the effect of its act viewed in the light of the rules announced by the courts for the construction of statutes; and (3) by examining the old law, the mischief, the new law and the remedy.
    6. Statutes — tests for determining mischief to be remedied by amendatory act. In determining the mischief designed to be remedied by the amendment of a statute the court can take into consideration the social conditions existing when the amendment was made, as well as all those commonly known facts of which courts will take judicial notice.
    7. Municipal cobpobations — rights of beneficiaries under police pension act as affected by subsequent amendment of statute. In enacting Laws 1923, p. 251, amendatory of Cahill’s St. 1921, ch. 24, If 920, providing for a pension to widows of police officers, it was the intention of the legislature, when it used in the amendatory act precisely the same language as was contained in the prior act, ° to confer the benefits of the amendment upon those who had been entitled to them under the former act, and simply to remove the limitations imposed by the prior act upon those who were already enjoying the benefits, as well as those who in the future would enjoy them.

      Error by plaintiff to the Circuit Court of Rock Island county; the Hon. Nels A. Laksoh, Judge, presiding. Heard in this court at the October term, 1925.
    Reversed and remanded with instructions.
    Opinion filed December 30, 1925.
    Kenworthy, Dietz;, Shallberg, Harper & Sinnett, for plaintiff in error.
    Huber & Beidy, for defendants in error.
   Mr. Justice Jett

delivered the opinion of the court.

Phoebe Miner, plaintiff in error, filed her petition in the circuit court of Bock Island county for a writ of mandamus to compel Elmore H. Stafford, Bollin C. Berry and William Gr. Johnston, members of the Board of Trustees of the Police Pension Fund of the City of Bock Island, defendants in error, to pay to her $60 a month instead of $50. A demurrer was filed to the petition which was sustained. Plaintiff in error elected to stand by her petition and this appeal was prosecuted.

It is charged in the petition that Edward Miner, the husband of the plaintiff in error, was a pohce officer of the City of Bock Island and was killed in the discharge of his duty as such officer on October 15, 1922; that the plaintiff in error made an application for a pension which was granted and she drew $50 per month from the time of the death of her husband until the date the petition was filed in this proceeding, which was October 2, 1924.

At the time of the death of the husband of the petitioner, the Act of 1909 (amended by the Act approved June 30, 1919), with reference to the police pension fund, was in force. Section 6 of that Act [CahiE’s St. 1921, ch. 24, [[920] provided as follows: “Whenever any member of the police force of any city, village or town shall lose his Efe while in the performance of his duty or receive any injury from which he shall thereafter die leaving a widow, or child or children under the age of 16 years, or parent who is dependent upon such policeman for maintenance and support, then, upon satisfactory proof of such facts made to it such hoard shall order and direct that a yearly pension equal to one-half the salary received by said member, not to exceed $600 per year, shall be paid to such widow during her life.”

The said Police Pension Fund Act was amended on June 28, 1923, which amendment went into full force and effect on July 1, 1923, and which amendment provides that whenever a member of the police force of any city, village or town shall lose his life while in the performance of his duty or receive injuries from which he shall thereby -die, leaving a widow or child or children, under the age of 16 years, that upon satisfactory proof made of such facts to it, such board shall order and direct that a yearly pension equal to one-half of the salary, not to exceed $1,250 per year, shall be paid to such widow during her life and until her remarriage. [Cahill’s St. 1925, eh. 24, [f 920.]

Petitioner insists that she is entitled to receive as a pension from said Police Pension Fund the sum of $60 per month, from and after the 1st day of July, 1923, the day when the Police Pension Fund Act was amended and when said amendment went into effect. She made a demand upon the Board of Trustees of the Police Pension Fund for said allowance from the 1st day of July, 1923. The Board of Trustees of said Fund refused to pay the amount of $60 per month, as provided for by the amendment.

The question involved is whether or not the General Assembly, by amending the Act of 1923 by changing only the figures in limitation of the amount of the widow’s pension, intended to remove the limitation of pensions of widows of policemen who were killed in service prior to the passage of the amendment or whether the increasing of the limitation in 1923 was to apply only to widows of policemen whose death occurred subsequent to July 1, 1923. In other words, the question is: What was the intention in enacting the amendment to section 6 in 1923? In answering this question we must be guided by the statute and general rules of construction for there is no case in this or any other jurisdiction, so far as we have been able to ascertain, which decides the particular question here involved. It is the contention of the defendants in error that this cause is one which must be governed by the rules of construction that holds a statute to be prospective unless the will of the legislature to give it a retrospective effect is declared in terms so positive as to admit of no doubt. In order to determine the question involved it must be remembered that a • pension is a bounty springing from the graciousness and appreciation of sovereignty. It may be given or withheld at the pleasure of a sovereign power, and under the statute in question is paid in instalments for the life or until the remarriage of the widow. Necessarily it is to be paid in the future after its allowance, and the amount of the future instalments is to be determined by the sovereign in the future who can either be liberal or penurious, who can add to or diminish or take away entirely at its pleasure. It must also be borne in mind that the husband of the plaintiff in error was killed October 15, 1922, and that his salary as such policeman at the time of his death was $120 per month or $1,440 per year; that plaintiff in error applied for a pension on February 1, 1924, and on March' 1, 1924, the defendants in error (the Police Pension Board) allowed her a pension from October 15, 1922, and to continue during her life or until she remarried, at the rate of $50 per month or $600 per year. This amount was exactly the amount of the limitation imposed by the law of 1909, but was less by $10 per month than one-half of the salary drawn by her husband at the date of his death.

It is also proper to bear in mind that the plaintiff in error does not make any claim for an increase covering any period prior to the going into effect of the amendment of 1923. Section 2 of chapter 131, entitled “Statutes,” provides that: “The provisions of any statute, so far as they are the same as those of any prior statute, shall be construed as a continuation of such prior provisions and not as a new enactment.” [Cahill’s St. oh. 131, ft 2.] If this statutory rule of construction is applied then the amendment of 1923, being the same as the Act of 1909, excepting as- to the limitation on the amount of the pension to the widow of a policeman killed in service, continues the right to the petitioner as it existed prior to the amendment, and simply removes the limitations as to the amount contained in the Act of 1909, but continues in force the provision that such widow shall receive a yearly pension equal to one-half the salary received by such member of the police force who lost his life. If this be true, then since 1923 the only limitation upon petitioner’s right to a pension equal to one-half of her deceased husband’s salary is the limitation contained in the amendment of $1,250 per year, which repeals the limitation of $600 per year contained in the old act. If this be not true, what determines the amount of the pension a widow is entitled to receive since the amendment? The limitation of $600 in the old act cannot govern after the adoption of the amendment because that limitation was repealed by the amendment. It, therefore, necessarily follows that the limitation in the amended Act of 1923 must govern because that is the only law remaining in the statute on the subject. There is no question of giving a retrospective construction to the amendment of 1923 because the petitioner does not seek to compel the defendants in error to pay her more than $600 per year during the period between her husband’s death and July 1,1923, the date the amendment became effective. She seeks only an amount equal to one-half her husband’s salary since July 1, 1923, and this amount is not in excess of the amount of the limitation imposed by the amendment of 1923. The amendment was simply to remove the limitation imposed by the act in force when her husband lost his life. The Act of 1923 gives her no- new rights for the reason that her right to a pension was given by the Act of 1909, and by the express words of that act which was continued in force by the amendment of 1923 she was entitled to a pension equal to one-half of her husband’s salary. By removing the limitation imposed in the Act of 1909, by substituting the new and larger limitation in the amendment of 1923, the effect was. to- automatically raise her pension to- an amount equal to one-half of her husband’s salary after the amendment became effective. This does not require any retrospective construction to be given to the amended statute. It simply gives force and effect to all portions of the law of 1909 which were re-enacted and continued by the amendment of 1923 but would give no force and effect to that portion of the Act of 1909 which was repealed because changed by the amendment, namely, the substituting of the limitation of the amount of the pension of $1,250 per year in place of $600 per year. The pension was to continue in the future and manifestly the future amount was to be determined by the future Acts of the General Assembly in relation thereto. If the legislature increased the amount then this affected only the remedy, and the new act would apply, without regard to whether the right to the pension accrued before or after the change in the law.

If the new act had to do with the right to a pension — that is, if the amendment provided that some person, not entitled to a pension under the old act, should receive a pension, then, a person within the same class as the new pensioner, but whose right accrued after the enactment of the amendment, would not come within the amendment and become liable to a pension unless the language of the aet was such as to clearly evidence a legislative intent to make the act retrospective. Such is the case of Eddy v. Morgan, 216 Ill. 437, relied upon by the defendants in error.

But where the change by the amendment is simply to change the remedy, or the amount which the pensioner should receive, and to enlarge the limitation or restriction imposed by the old law, a" converse rule of construction is applied. In support of this rule is the case of the Chicago & W. I. R. Co. v. Guthrie, 192 Ill. 579. It is said: “If a change in the law affects only the remedy or procedure all rights of action are governed thereby, without regard to whether they accrued before or after such change and without regard to whether suit had been previously instituted or not, unless there is a saving clause as to existing litigation.”

A limitation or restriction on the amount of a pension has to do only with the remedy of the pensioner and nothing to do with her right to be a pensioner. Tested by any rule relating to construction of statutes, the amendment of 1923 did not grant any new right or enlarge any old right to- a widow of a police officer who may have lost his life in the service, although its only purpose was to remove a restriction or limitation upon the old right. This, however, is only because of the manner in which the legislative intent was expressed. The Act of 1923 being a re-enactment of the law of 1909, in so far as section 6 is concerned, simply and only re-enacted the 1909 Act, without the change of a word, syllable or punctuation mark except as to the amount to which a pensioner’s right to a pension equal to one-half of her deceased husband’s salary was restricted or limited by the phrase “not exceeding $600.” The effect was to continue the old act in force, except as to the restriction, precisely as though no amendment had ever been made.

The legislative intent can be ascertained in three ways: (1) By what it says; (2) by the effect of its act viewed in the light of the rules announced by the courts for the construction of statutes; and (3) by examining the old law, the mischief, the new law and the remedy. In determining the mischief designed to be remedied, the court can take into consideration the social conditions existing when the amendment was made as well as all those commonly known facts of which courts will take judicial knowledge. Considering this act in the light of the above rules for determining the intent of the General Assembly, we find: (1) there is nothing stated in the act which states whether the restriction was intended to be removed or not, depending upon the date of the death of the policeman. (2) The effect of the act is to' re-enact the old law without the restriction therein contained. Its effect then comes within the rule announced in the case of Merlo v. Johnston City, etc., Coal & Mining Co., 258 Ill. 328, namely: Where an amendatory act provides that a certain act or a certain section of an act shall be amended so- as to read as the same is repeated in the amendatory act, all such portions of the old act or section as are not repeated in the new act are repealed, without any express words for that purpose, but such portions of the old law as are retained, either literally or substantially, are regarded as a continuation of the old law and not as a new act; that where a statute is revised and rewritten, only such portions of the old act as are omitted from the revised act are repealed, and all the provisions of the old act which are retained in the new one are regarded as having been continuously in force, without any hiatus between the going out of the old law and the coming in of the new, as both events happen at the same instant; that this rule-with reference to revisions of statutes is the same as the rule with reference to the amendment of statutes.

In the above case the deceased was killed in an explosion in the mine of the plaintiff in error on November 29,1909. Suit was commenced April 22,1910. The cause was tried and final judgment entered in the cause on June 22,1911. In 1911 the General Assembly passed an act revising the law relating to- coal mining, which went into effect July 1 of that year, which purports to repeal the act on the same subject of April 18, 1899, which was the statute upon which the suit was based. The Act of 1911 contains no saving clause as to pending proceedings. On error the plaintiff in error argued inasmuch as there was no saving clause as to pending proceedings, the law of 1899 being repealed, this action, which is based upon said law, must abate. The Supreme Court, however, examined the revision of 1911 and found, in the revision, a substantial copy of the sections of the Act of 1899, upon which the plaintiff in that suit based his cause of action, and for that reason the court determined that the legislative intent was to continue those sections of the old act in force the same as if the revision had not taken place. This rule of construction has frequently been announced in this State. Svenson v. Hanson, 289 Ill. 242-248; People v. Brunstrom, 274 Ill. 62; Spiehs v. Insull, 278 Ill. 184.

In Endlich on Interpretation of Statutes, sec. 294, the rule is stated as follows: “A statute which is amended is thereafter, as to all acts subsequently done, to be construed as if the amendment had always been there, and the amendment itself so thoroughly becomes a part of the original statute that it must be construed in view of the original statute as it stands if the amendments are introduced and the matters superseded by the amendments are eliminated.”

In Black on Interpretation of Laws, sec. 131, the following rule is announced: “An amendment of a statute by a subsequent act operates precisely as if the subject matter of the amendment had been incorporated in the prior act at the time of its adoption, so fax' as regards any action had after the amendment is made, for it must be remembered that an amendment becomes; a part of the original act, whether it be to change a word, figure, line or entire- section, or a recasting of the whole language.”

The above rule as stated by Black on Interpretation of Laws is cited with approval in the case of Village of Melrose Park v. Dunnebecke, 210 Ill. 432.

Applying the above rules, the right of plaintiff in error to a pension continued after the amendment as it did before, equal, as before, to one-half of her husband’s salary but the restriction thereon was removed. The restriction being removed the only act to be done after the amendment was the determination of the amount of her pension and the payment of the same. Furthermore, if from the act itself or from the application of the above rules of construction of statutes the legislative intention is obscure, then the court, as we understand it, has the right and should examine the old law, the new law, the mischief and the remedy. People v. Greer, 43 Ill. 213; Peavler v. City of Mt. Vernon, 158 Ill. App. 610.

Or, as was stated in People v. Wabash, St. L. & P. Ry. Co., 104 Ill. 476 (p. 485): “In arriving at a proper construction to be placed upon an act of the legislature, it is- a legitimate, inquiry to ascertain the purpose and object of the law, the evil to' be remedied, and the wrong to be righted by the passage of the law.”

The amendment of 1923 examined with this idea in view together with the fact’ that the only change of the old law by the amendment was the enlargement of the restriction placed by the old law upon the amount of the pension, the only conclusion that can be reached is that it was the legislative intent to provide for a more liberal bounty to pensioners than the restriction in the old law permitted. It is. a matter of common knowledge that during recent years living expenses have been- greatly increased and that the value of money or the purchasing power thereof has been very much diminished. May we not then indulge in the presumption- that the benevolent object of the legislature in providing for a pension was to provide the widow of a policeman who lost his life in service with the necessities of life.

What reason was there for removing the restriction as to the amount of the pension as to widows whose husbands were killed after July 1, 1923, and not removing it as to widows whose husbands lost their lives prior to July 1, 1923. We understand'if there is any language in the amendment which evidences that the legislative intent was to confine the old restrictions to widows whose husbands had been killed prior to the passage of the amendment, and make the enlarged restriction apply only to widows whose husbands were killed after the amendment went into effect, a court construing the legislative intent would be bound by those words but there is no such language in this statute. The construction here contended for by plaintiff in error was given to an amendment in the case of Smith v. Board Trustees of Firemen’s Pension Fund, 212 Ill. App. 122. In this case Smith died February 25, 1915. At the time of his death he had been for more than 23 years a member of the fire department of the City of Bloomington and was receiving a salary of $70 per month. Bloomington at that time was a city between 25,000 and 75,000 in population and had for many years maintained a paid fire department and had accumulated a pension fund under the Firemen’s Pension Act of 1887, although the minimum of said fund had not at that time reached the sum of $25,000. On April 13,1914, Mrs. Smith, the widow, made application to the board for a pension, which was refused for the reason that the fund had not reached the minimum of $25,000, and on June 3, 1916, she renewed her application and was again refused. Section 4 of the Act there in question, as amended in 1909, provided in substance that when $25,000 shall be reached and accumulated in said fund said sum shah be retained as a permanent fund and thereafter the annual income of such fund shall be available for the uses and purposes of such pensions. Section 8 of the Act as amended in 1913 provided that if any member of the fire department shall die while in such service after 20 years and shall leave a widow * * * such trustees shall direct the payment from such fund to such widow, while unmarried, $35 per month, providing that there shall not be paid a total pension exceeding one-half of the amount of the annual salary of said fireman at the time of his decease. In 1915 (after Smith’s death) an act was passed by the legislature becoming effective July 1 of that year. Section 8 of the new Act is substantially the same as section 8 of the Act of 1887 as amended in 1913, in so far as the payment of pensions to the widows of deceased firemen who have served 20 years is concerned, except that it raises the amount from $35 to $45 per month and omits the provision that the amount paid shall not exceed one-half of the amount of the annual salary of such deceased fireman. In that case two contentions were advanced by the appellant why Mrs. Smith was not entitled to a pension and one of these contentions was the Act of 1915 repealed the Act of 1887 without any saving clause. The Appellate Court, following the decision of Merlo v. Johnston City, etc., Coal & Mining Co., 258 Ill. 328, held:

“It undoubtedly was not the intention of the legislature, by the passage of the Revision Act of 1915, to deprive any. person of any benefits which they might have been entitled to under the Act of 1887. The intention that all such benefits were to be preserved is manifest from sections 1 and 8.”

In the case of the People v. Board Trustees of Firemen’s Pension Fund, 228 Ill. App. 481, a question somewhat analogous to the questions involved in this case was discussed, and it was there held that a retired fireman was entitled to a pension under a law enacted after his retirement, because the new law contained substantially the same provisions as the law which was in force when the fireman retired.

We are of the opinion that the legislature in enacting the amendment using precisely the same language as was contained in the prior act intended to confer the benefits of the amendment upon those who had been entitled to them under the prior act, and simply to remove the limitation imposed by the prior act upon those who were already enjoying the benefits as well as those who in the future would enjoy them. It was certainly not the intention of the legislature to deprive the plaintiff in error of her pension. If her pension is to be continued it necessarily must be done under the amendment of 1923. We are of the opinion that she is entitled to $60 a month, which is a sum equal to one-half the salary that was drawn by the policeman when he lost his life in the service.

We conclude, therefore, that this cause should be reversed and remanded with instructions to the trial court to overrule the demurrer to the petition, which is accordingly done.

Reversed and remcmded with instructions.


author: Mb. Presiding Justice Barnes

text:
    Albert Misek, Appellee, v. Village of La Grange, Appellant.
    Gen. No. 30,223.
    1. Appeal and ebbob — presumptions as to verity of record notwithstanding irregularities therein. On appeal from, an order denying a motion in arrest of judgment based upon a misjoinder of parties plaintiff, where the record shows that an additional plaintiff was joined by order of court on motion by the original plaintiff, such record imports verity, and the original plaintiff cannot be heard to say that the motion and amendment was intended only as a disclaimer by the added plaintiff of any interest in the suit, notwithstanding the record discloses many irregularities by both sides in referring to the parties in the cause.
    2. Appeal and ebbob — restriction to record on review of motion in arrest based on misjoinder of parties. On appeal from the denial of a motion in arrest of judgment based upon a misjoinder of parties plaintiff, the review must be based upon the record.
    3. Judgments — validity and effect of judgment for “plaintiffs” where declaration of joint plaintiffs shows cause of action in one only. Where a declaration alleged an injury by a continuing nuisance of an abatable character to the use and possession of certain parcels of land owned by A. M. alone, but the same was amended so as to join L, M. &§ «plaintiff and so as to allege that as to one of such parcels A. M. and L. M. were joint tenants, with the use thereof solely in A. M. by the consent of L. M., and the entry of judgment for “plaintiffs” was preceded in the record by irregularities by both sides in referring to the parties in the cause, such judgment could not be sustained as one for either A. M. or L. M. alone, since they sued jointly, nor as one for both, since the declaration showed on its face that L. M. had no interest in the cause of action.
    4. Nuisances — sufficiency of declaration to allege cause of action in plaintiffs jointly. A declaration alleging injury by nuisance to the use and possession of certain parcels of land owned by the plaintiff A. M., and to certain other parcels held by the plaintiff A. M. and the plaintiff L. M., in joint tenancy, was insufficient to allege a joint cause of action in A. M. and L. M.
    5. Pleading — verdict as curing declaration failing to state cause of action. Where a declaration on its face states no cause of action the defect will not be cured by verdict.
    6. Judgments — motion in arrest as reaching failure of declaration to state cause of action. The contention that a declaration is insufficient because failing to state a cause of action may be raised by a motion in arrest of judgment.
    Appeal by defendant from the Superior Court of Cook county; the Hon. Wells M. Cook, Judge, presiding. Heard in the second division of this court for the first district at the March term, 1925.
    Reversed and remanded.
    Opinion filed February 2, 1926.
    Rehearing denied February 17, 1926.
    George M. Stevens, for appellant; Thomas J. Peden, James G. Skinner and Gerald Ryan, of counsel.
    John J. Coburn and Fred W. Bentley, for appellee.
   Mb. Presiding Justice Barnes

delivered the opinion of the court.

This suit was brought to recover for injuries alleged to have been caused by a nuisance resulting from neglect by the Village of LaGrange and the Village of Brookfield of their sewer systems.' A judgment for $15,000 was entered against the Village of LaGrange, from which it has appealed.

Appellant urges that it was error to deny its motion in arrest of judgment.

The record is in an anomalous state of confusion. The suit was brought by Albert Misek. He filed his declaration July 12, 1921. The- plea of general issue and special pleas were filed thereto by both defendants, the Village of LaGrange and the Village of Brookfield. The cause of action was predicated on alleged injuries to the use or possession of several described parcels of land, alleged to be owned by Albert Misek. Later, February 25, 1924, on motion of plaintiff’s attorney, an order was entered that leave be “given plaintiff to amend all papers and proceedings in said cause by making Lizzie Misek party plaintiff herein,” and another order which reads as follows:

“Comes now Albert Misek and Lizzie Misek, his wife, plaintiffs, and leave of court being first had and obtained amends the declaration and each count herein by inserting after the description of the property in question the following: ‘Except lot six (6) in block four (4) in Bickers Addition to Lyons aforesaid, which said lot is owned by the said plaintiffs as joint tenants and not as tenants in common and the use of which at all times has been given by the said Lizzie Misek to Albert Misek, husband. ’ ”

On the same day it was ordered that the pleas already filed stand to the declaration as amended, and leave was given to file an additional plea, which was filed. To the latter plea there was a replication by the “plaintiff.” On the same day, whether prior to or after said amendment cannot be told and is imma- ' terial, another amendment was allowed at the instance of “plaintiff” alleging what were the highest and best purposes for which said “premises” (not described) could be used or devoted. The verdict found “defendant” guilty and assessed “the plaintiff’s” damages at $15,000. The judgment was that “plaintiffs” recover said sum of and from the defendant Village of La Grange.

Appellant urges among other grounds for reversal that on such disclosures of the record the judgment is void for uncertainty and cannot stand because of misjoinder of plaintiffs, and the insufficiency of the declaration.

Since the case was argued an amended record has been filed showing that the Village of Brookfield was dismissed out of the case before verdict, thus removing the alleged ambiguity of the verdict in referring to a single defendant.

While the declaration as amended is predicated upon an injury to the use and possession of land alleged to be in Albert Misek alone, it makes Lizzie Misek co-plaintiff. Counsel for Albert Misek asserts that the case went to final issue and trial with him only as plaintiff, but that statement is not supported by the record. The contention that the motion and amendment were only intended as a “disclaimer” by Lizzie Misek of any interest in the suit is untenable in the face of the record. Not only do we know of no such pleading at law on the part of the plaintiff, but Albert Misek’s intention to make her a party plaintiff cannot be doubted in the face of the record showing that she was made a party coplaintiff on his own motion, and that his declaration was amended accordingly. The record imports verity and with respect to the parties remained unchanged except as to one of the defendants. While the record discloses many irregularities by both sides in referring to the parties to the cause, yet such irregularities did not change the actual orders of the court or the state of the pleadings or estop either party from relying upon them. Of course our review must be made upon the record.

The only question necessary to consider is whether the judgment upon such a state of the record can stand. The judgment is for “plaintiffs.” But it seems to be conceded that the cause of action alleged is in one only, but appellee would have it construed as for Albert Misek only. Under well-established principles of practice it could have been entered for him alone only by discontinuing the case as to the other plaintiff and amending the declaration accordingly. (Chicago, R. I. & P. R. Co. v. Todd, 91 Ill. 70.)

The cause of action being predicated upon injury to the use and possession of land by Albert Misek alone, the right of action was in him only, and could not be in him jointly with another. As described, the nuisance was, and was alleged to be, of a continuing character, one that could be abated. It affected the enjoyment of his possession. In such a case any one having the right of occupancy of the land whose enjoyment thereof is affected by the nuisance has a private right of action (29 Cyc. 1257), and “if the right of action is in one only, another may not be joined with him as plaintiff in the action. * * * This rule extends both to actions ex contractu and ex delicto.” (Gould on Pleading, p. 188.)

There, could have been no recovery by Lizzie Misek on the theory of the action, namely, interference with or injury to the right of possession, for the declaration alleges it was in Albert Misek alone. “A party suing, who, by his own showing, by the averments in his declaration, has no interest whatever in the cause of action, never can be permitted to recover in an action at law.” (Dix v. Mercantile Ins. Co., 22 Ill. 272, 276.) It is a familiar principle that when several parties sue jointly as plaintiffs all must be entitled to recover or none can; and if any one of them is incompetent to sue, all must fail though the evidence may sustain the action as to one or more of them. (Prestwood v. McGowin, 128 Ala. 267; McLeod v. McLeod, 73 Ala. 42; Freeman on Judgments, 5th ed., p. 182.) The declaration here charges interference with the rights of a person actually in possession of land where that person is the sole owner of only part of the premises affected and joint tenant with respect to another part. Neither of the owners conld sue for damages to the other’s interest in the premises, where they were not joint interests. But where the immediate enjoyment or possession is interfered with, which in this case is alleged to be in one person, Albert Misek, then the rule laid down in Dicey on Parties to Actions (p. 356) is applicable, namely:

“The person to sue for any interference with the immediate enjoyment or possession of land or other real property is the person who has the possession of it and none can sue merely for such an interference who has not possession.”

It is dear, therefore, that there was no joint right of action. While the declaration as amended was demurrable, yet it showing no joint cause of action a judgment for both plaintiffs could not stand, and could not be cured by verdict. It is not a case of a defective statement of a cause of action, but of the insufficiency of a cause of action in both plaintiffs. Where a declaration on its face discloses no cause of action the defect will not be cured by verdict (McLean County Coal Co. v. Long, 91 Ill. 617), and the question of its sufficiency may be raised by a motion in arrest of judgment (Klofski v. Railroad Supply Co., 235 Ill. 146).

Accordingly the judgment is reversed and the cause remanded.

Reversed a/nd remcmded.

Gridley and Fitch, JJ., concur.


author: Mr. Presiding Justice Barnes

text:
    Lillian Mikkelsen, Defendant in Error, v. George Mikkelsen, Plaintiff in Error.
    Gen. No. 30,242.
    1. Divoecb — single act of cruelty after remarriage as reviving like grounds "based upon acts during former marriage. A decree for divorce upon the ground of extreme and repeated cruelty, entered for the wife following the remarriage of the parties after their prior divorce at her suit upon like grounds, is not sustained by evidence of a single act of extreme cruelty on the part of the defendant subsequent to the remarriage, causes of action arising under the first marriage not being revived by a repetition of the grounds thereof during the second marriage.
    2. Divoecb — repetition of acts of extreme cruelty as prerequisite to divorce. To support a decree of divorce upon the ground of extreme and repeated cruelty there must be proof of at least two acts of that character.
    3. Divoecb — sufficiency of evidence to establish act of extreme cruelty. Evidence in a suit for divorce upon the ground of extreme and repeated cruelty held to- preponderate in favor of the defendant as to one of the alleged acts relied upon, and hence to require a reversal of the decree for plaintiff.
    Error by defendant to the Superior Court of Cook county; the Hon. Walteb P. Stbbtbit, Judge, presiding. Heard in the second division of this court for the first district at the October term, 1925.
    Reversed and remanded with directions.
    Opinion filed February 2, 1926.
    Louis L. Cohen, for plaintiff in error.
    Frank B. Teed, for defendant in error.
   Mr. Presiding Justice Barnes

delivered the opinion of the court.

This writ of error is brought to reverse a decree for divorce on the ground of extreme and repeated cruelty, granted to the complainant, defendant in error.

The decree recites that the cause came on for hearing on the second amended bill and the supplemental bill and the answers thereto, and finds that the parties were married in June, 1914; that complainant obtained a divorce in 1917 on the grounds of extreme and repeated cruelty and drunkenness; that on June 25,1917, complainant, relying on his promise to treat her in a proper manner as a husband should, remarried; that defendant was guilty of extreme and repeated cruelty on two specified occasions, namely, June 4, 1922, and February 21,1923; that the equities of the case entitled her to the relief prayed for in her second amended and supplemental bills of complaint.

The original bill was filed June 6, 1922, the second amended bill February 14, 1923, and the supplemental bill February 28, 1923.

The original and amended bills charged only one act of cruelty as occurring after the remarriage, namely, that on June 4, 1922.

After a full hearing had upon the issues formed upon the answers to the second amended bill and defendant’s cross-bill, and both parties had rested, the court directed dismissal of both the bill and the cross-bill but no order therefor was entered. Later, on leave given, complainant filed her said supplemental bill. It repeated in substance the averments of the amended bill and charged an additional act of violence as occurring on February 21,1923, two days after said hearing. Defendant was ruled to plead, answer or demur thereto and filed an answer on which additional evidence was heard, and the decree aforesaid was entered.

In support of the decree and the right to hear evidence of acts of cruelty committed during the first marriage, counsel for defendant in error invokes the doctrine that the repetition of a condoned offense against the marital relation revives the offense so condoned. In invoking that doctrine counsel loses sight of the fact that when all the alleged acts of cruelty occurred there was not a continuous marital relation. Each marriage constituted a separate civil contract. The personal relation or status created by the first marriage having been terminated by the for- • mer divorce, what occurred during that marriage had no relation to rights or causes of action arising under the second contract of marriage. The relation under each marriage being distinct and separate, a cause of action for dissolution of the second marriage must necessarily have arisen during its existence. The new marriage did not revive the relation as of date of the former marriage, nor alter the fact that the former relation was legally terminated by the first decree of divorce. We think there is no question that only proof of acts of cruelty occurring during the second marriage was admissible in evidence.

It having been frequently held that to' constitute extreme and repeated cruelty there must be at least two acts of physical violence, no decree could have rested on the second amended bill as it relied upon and charged only one act of cruelty during the second marriage.

The supplemental bill, however, is based on said act and one alleged to have been committed after the original bills were filed. Whether the original bills could be aided by the supplemental bill containing such an allegation need not be discussed, for on a careful review of the evidence we are convinced that it clearly preponderates in favor of plaintiff in error with respect to the alleged act of cruelty on June 4,1922, that is charged in all the bills. The evidence of complainant with respect to that incident is uncorroborated, while several witnesses supported plaintiff in error’s version of it to the effect that he acted only in self-defense on that occasion. Therefore, even if the supplemental bill could be entertained and the proof of cruelty charged therein as having taken place on February 21, 1923, were satisfactory, the record would still show only one act of physical violence or cruelty after the remarriage, and hence the decree upon the charge of extreme and repeated cruelty must be reversed, and the cause remanded with directions to dismiss the several hills, including the cross-hill, in respect of which no order was entered.

Reversed and remanded with directions.

Gridley and Fitch, JJ,, concur.