text:
    J. P. Strickland, Trading as J. P. Strickland and Company, Appellee, v. The Washington Building Corporation et al., Defendants. Appeal of Archie M. Andrews, Appellant.
    Gen. No. 38,957.

      Opinion filed November 30, 1936.
    Rehearing denied December 14, 1936.
    Schein & Beckwith, of Chicago, for appellant; Ernest Schein and Abraham W. Brussell, of Chicago, of counsel.
    Joseph F. Edward and William C. McHenry, both of Chicago, for appellee; Joseph F. Edward, of counsel.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.

Strickland is a judgment creditor of the Washington Building Corporation, an Illinois corporation, of which defendant Archie M. Andrews was a director and stockholder. October 14, 1930, he filed his amended bill against Andrews et al., setting np the rendition of a judgment in his favor against the corporation, the relationship of Andrews and his certain acts with reference to the corporation, and prayed that Andrews might be held personally liable for the amount of the judgment because while a director of the corporation he assented to the creation of the debt of the corporation to the plaintiff, which was in excess of the amount of its capital stock, because he assented to the declaration and payment of a dividend whereby the corporation was rendered insolvent and the capital thereof impaired, and because he had not paid in full his subscription to the capital stock of said corporation.

Defendants answered denying the equity of the bill. The cause was put at issue and referred to a master, who filed his report finding in favor of the complainant. Objections which had been filed to the master’s report and overruled were by order permitted to stand as exceptions. The exceptions, upon hearing, were overruled as to defendant Andrews and a decree entered against him on November 15, 1935, for the sum of $49,541, to reverse which he appeals.

Defendant contends that he fully paid for his stock in. the corporation; that he did not assent to the creation of any corporate indebtedness in excess of the capital stock; that under the evidence the plaintiff is not such a creditor as is entitled to enforce any personal obligation against him as an assenting director; and that the chancellor erred in refusing to reopen the case as requested by defendant, in order to permit the introduction of other proper evidence in his behalf. Plaintiff contends there was no error in these respects and also contends, as the decree finds, that defendant, through the manipulation of various corporations controlled by him, took from the Washington Building Corporation assets under such circumstances as to render him liable as found by the decree.

After the record was filed in this court the plaintiff made a motion to dismiss the appeal “for lack of jurisdiction” because the record was not filed in this court within 35 days from the filing of the notice of appeal in the trial court, as provided by Rules 1 and 10 of this court. The motion has been reserved to the hearing and is argued in the briefs.

As already stated, the final decree in this cause was entered on November 15, 1935. The cause was heard upon the exceptions of defendant to the report of a master to whom it had been referred, and defendant’s notice of appeal was filed in the cause on January 10, 1936. The record was not filed in this court until May 9, 1936. No order was entered extending the time for filing the same. The record shows on March 5,1936, the plaintiff made a motion in the trial court to dismiss the appeal. On the following day defendant Andrews filed a motion with affidavit in support thereof, asking that his time be extended to April 9, 1936, to file the transcript of testimony taken before the master and have the same approved. On March 9, 1936, plaintiff withdrew without prejudice the motion to dismiss, and the court entered an order that the date for defendant to file his report of trial proceedings be extended to April 9,1936, without prejudice to the contention of the plaintiff, and without any determination of the court as to “whether or not there can be or should be any report of trial proceedings of this cause.”

On April 6th thereafter the defendant presented an instrument purporting to be such a report of proceedings of the court, and over the objection of the plaintiff the judge signed, approved and ordered the same filed. The report in substance certifies that the cause came on for hearing upon the pleadings and report of the master in chancery, and the evidence attached to his report, and the 80 exhibits used and taken in such hearing before the master.

It further certifies that neither the complainant nor the defendants introduced any further or additional evidence. The certificate of proceedings adds nothing to the knowledge of this court not already disclosed by the record.

The Civil Practice Act changed in material ways the law of this State with respect to the method by which litigants may obtain a review of judgments and decrees in civil cases. The sections applicable will be found in Illinois State Bar Stats. 1935, chapter 110, sections 74-92, mf 202-220, pp. 2448-51. Section 74 provides that an appeal may be taken by “notice of appeal,” which shall be deemed to present to the reviewing court all issues which were theretofore presented by appeal or by writ of error. Section 76 provides that no appeal shall be taken to the Supreme or Appellate Courts after the expiration of 90 days from the entering of the judgment appealed from except upon order of the reviewing court, which may be granted upon proper showing within one year from the entry of the order or decree. Section 79 provides that the Supreme Court may by general rules regulate the practice and procedure upon review. Section 90 provides that notice of the taking of the appeal shall be given to the opposing party or his attorney “in such manner as may be provided by rules.” Paragraph 2 of section 76 provides that an-appeal shall be deemed perfected when notice of appeal shall be filed in the lower court, and that no step other than this shall be deemed jurisdictional.

The Supreme Court adopted rules at the December 1933 term, and these were amended at the June term of that court in 1935. These rules prescribe the form and contents of the notice of appeal, that it must be served on the other parties within five days after filing; that a praecipe for record must be filed with the clerk within 10 days after filing of the notice, and that the opposite party, if he desires, must file his praecipe for other parts of the record within five days; that the clerk shall prepare the record in chronological order, etc. The purpose of all these provisions is to expedite the business of the reviewing court and secure to litigants a speedy determination of their causes.

Plaintiff contends that a report of the master in chancery is a part of the record without being incorporated in a report of proceedings, and that a report of proceedings was here improper and unnecessary. Such was the law under the former practice, as stated in Ferris v. McClure, 40 Ill. 99, where the court said that the master’s report was as'much a part of the record as the bill, answer, replication or decree, and that no “Bill of Exceptions” was ever necessary or proper in a chancery case except to preserve oral evidence introduced upon the hearing under the statute allowing that to be done. In Central Illinois Public Service Co. v. City of Sullivan, 294 Ill. 101, the Supreme Court said that upon the hearing of a cause upon exceptions to the master’s report, the report of a master was a part of the record without any certificate of evidence; that upon such a hearing where the reference was to report conclusions of law and fact no evidence other than that taken by the master would be heard; that it was essential the record should show it contained all the evidence heard, but not that it should appear from the certificate of the chancellor nor from the certificate of the master.

The plaintiff contends that the rule is similar under the Civil Practice Act; that as a matter of common sense the report of proceedings is intended to cover oral proceedings before the chancellor and matters not otherwise of record, but not to cover evidence taken before the master and already written up and made a part of his report, and therefore a matter of record; that this view is confirmed by the language of section 74, subsection 2 of the Civil Practice Act, which describes the trial record as including every writ, pleading, motion, order, affidavit or other document filed or entered in the cause; is consistent with rule 36 (1) (b) which recognizes a distinction between the “Report of Proceedings at the Trial” and the “original of the Master’s Report”; harmonizes with the object which the statute and the rules are designed to accomplish, and is sustained by the opinion of the second division of this court in West Side Trust & Savings Bank v. Damond, 280 Ill. App. 343, where the court said in substance that an appellant could not extend the period allowed under the rules of the Supreme Court and this court for filing the record, by specifying in his praecipe a report of proceedings where the record showed that no such report was necessary or proper. Plaintiff suggests that the master’s report with the evidence accompanying it is “a document filed in the cause” within the meaning- of section 74 of the Civil Practice Act, and asserts that it is quite impossible to believe that the new practice, which was designed to liberalize procedure, should be held to impose a more stringent rule in this respect than existed under the old practice.

Defendant suggests that a report of proceedings was proper, in order to preserve a motion made by him to reopen the case and again send it to the master. This motion was supported by affidavit, and the motion, order and affidavit are here in the record proper. These are not in the report of proceedings submitted to the court by defendant. Moreover, that motion was heard before another judge and therefore if a certificate was proper it necessarily would have been made by the judge who heard the motion.

Defendant contends that decisions concerning the master’s report under former statutes are not now applicable under the Civil Practice Act; that under the provisions of section 1 of that act, Illinois State Bar Stats. 1935, chapter 110, paragraph 129, page 2438, proceedings upon appeal are the same in both law and equity cases, unless there is some express statutory provision otherwise, as in section 92; that it was the intention of the legislature that the procedure in law and equity cases upon appeal should be identical. Defendant further contends that subparagraph (c) of Rule 36 of the Supreme Court broadens the subject matter that may be presented to a chancellor for a certificate of correctness. It is clear, defendant says, from an examination of all the provisions of the Civil Practice Act, that the legislature abolished the distinction between a bill of exceptions and a certificate of evidence and intended there should be only one name used to designate" testimony taken at a judicial proceeding, namely, the report of trial proceedings. So assuming, he says that a fundamental concept of a report of trial proceedings is that it consist of evidence taken before a judicial tribunal, and that it is axiomatic that a trial cannot be had before one who is not a judicial officer; that the very concept of trial implies the existence of a judicial officer. Therefore, he concludes that it cannot be said that a stenographic report of testimony taken before the master is a report of a trial. He then goes on to argue, citing authorities, that a master in chancery is an officer of statutory origin; that the master has purely ministerial powers; that a master’s report is purely advisory and is not binding on the chancellor, therefore the master is not a judicial officer but merely a source of information to the chancellor; that the transcript of testimony taken before him is not in law identical with or a part of his report, but the report is separate and distinct from such transcript. All this and much more may be conceded without determining the question arising here, which is whether it is under the Civil Practice Act necessary that the report of the master and the testimony taken by him be preserved by a report of proceedings in order that the same may become a part of the record.

The cases show this was not true prior to the enactment of the Civil Practice Act. If it had been the intention of the legislature in the enactment of the statute, or of the Supreme Court of the State in adopting the rules to so provide, it is not conceivable that ambiguous language would have been used. We hold that a report of proceedings in this case was wholly unnecessary, and the defendant could not extend his time for filing his record in this court by a specification in his praecipe for a report of proceedings for the record. The appeal must be dismissed.

However, we have considered the appeal upon its merits and find defendant could not in any case have prevailed, for the reason that he is indebted to the Washington Building Corporation to an amount exceeding that for which the judgment against him was given. The corporation received its certificate from the secretary of state on December 29,1919. Its capital stock consisted of 5,000 shares of preferred stock of the par value of $100 each, and 5,000 shares of common stock of no par value. Defendant Andrews organized, dominated and controlled this corporation. The preferred stock with the exception of two qualifying shares was transferred to him. In payment therefor and as the sole consideration he caused to be transferred to the corporation a leasehold of the premises known as 163 West Washington street, Chicago. A few days prior to the organization of the corporation he procured from the owners, the Chicago Herald Company, an agreement to transfer this leasehold to him or his assignee, for $200,000. The leasehold was so transferred to the building corporation January 3,1920, and was the only consideration given for the stock issued to defendant. The court found that defendant was still indebted to the corporation in the sum of $300,000, on account of this transaction, and we think the finding was justified. There is no competent evidence in the record tending to show either that the leasehold was in fact worth more than $200,000 on January 3, 1920, or that defendant had any reason to believe at that time that it was worth more than $200,000. In February, 1920, defendant caused the building corporation to issue bonds to the amount of $500,000, secured by a trust deed conveying this leasehold. These bonds were delivered to defendant, and in consideration thereof he delivered up the preferred stock theretofore issued to him in order that it might be canceled. It is true that on May 15, 1926, more than six years thereafter, the corporation sold the leasehold to Robert Bartlett for a stated consideration of $575,000. As a part of the consideration Bartlett assumed and agreed to pay the bonds. As a matter of fact, Bartlett paid in cash only $41,203.91, and this money was at once turned over by the building corporation to A. M. Andrews Investment Corporation, another organization which defendant also organized and controlled.

February 5, 1927, defendant Andrews sold $200,000 par value of these bonds to Stanley McCormick for $200,133.33, and on May 15, 1927, he sold to the same party $137,000 face value of the bonds for $139,430.70. The proceeds of the bond issue were appropriated by defendant to his own uses.

As already stated, there is no competent evidence tending to show that the leasehold on January 3,1920, was worth more than $200,000. The sale thereafter made to Bartlett does not establish such value because it was remote in time, was not for cash, and there was no evidence tending to show either that the improvements on the premises were of the same value at the one time as at the other, or that the market price of such leaseholds had remained constant.

It appears that much evidence was in possession of and under the control of defendant Andrews which he did not produce upon the trial; that since January 1, 1926, he has not resided in the State of Illinois; that the corporate records of the building corporation and other companies likewise controlled by him have been taken outside of the State, where they still remain. Defendant did not appear and testify at the trial. His evidence was obtained by means of interrogatories directed to him demanding an answer as to specific questions under oath. It is true that he denied generally the allegations of the bill to the effect that the stock issued to him had not been paid for by him in full, and he now argues that in view of these answers in order to justify a finding for plaintiff on this point, his testimony should be overcome by evidence equivalent at least to that of two witnesses. He cites Salsbury v. Ware, 183 Ill. 505, to this point. There are two answers. First, the statements in the answer of the defendant were mere conclusions not responsive to the complaint or to the interrogatories. Atkinson v. Foster, 134 Ill. 473; O’Brian v. Fry, 82 Ill. 274.

Second, the rule contended for no longer obtains. It was a part of the old chancery practice provided for in section 21 of the Chancery Act, Illinois Revised Stats. 1931, chapter 32, section 21, but has been repealed by the Civil Practice Act which, by reason of the fact that the taking of evidence in this case did not begin before January 1, 1934, is applicable under rule 1 of the Supreme Court.

Defendant, however, contends that the court erred in denying a motion made by him on October 16, 1935, while the case was pending before the chancellor for a rereference and the opening of proofs in order, among other things, that he might produce competent testimony tending to show the value of the leasehold at the time it was transferred to the corporation. We think the court did not err in this respect, since the defendant was guilty of gross negligence for which no adequate excuse was presented. Matthews v. Whitethorn, 220 Ill. 36; Johnson City State Bank v. Sowell, 277 Ill. App. 10; Rouss v. Kendrick (Tenn.), 41 S. W. 1074, 1077.

Defendant argues quite at length that the chancellor erred in applying what is called the “Actual Value Buie” as distinguished from the “Good Faith Buie” in determining the value of the property in the time of its transfer to the corporation in payment for defendant’s stock. He cites Coleman v. Howe, 154 Ill. 458. Without question the “Actual Value Buie” was in force in Illinois at the time of this transaction. The weight of authority is overwhelming to this effect. Dee Co. v. Proviso Coal Co., 290 Ill. 252. It may be true that the rule has been changed by a later statute, but this cannot operate retroactively. The transfer of property worth only $200,000 in cash by the owner thereof to a corporation which he also owns and controls, in payment of an obligation of $500,000, indicates bad faith and fraud as to subsequent creditors. This one point is decisive of this case upon the merits. It is not necessary to consider other grounds of liability. For reasons indicated the appeal must be dismissed.

Appeal dismissed.

O’Connor and McSurely, JJ., concur.


source: Caselaw Access Project

author: Mr. Justice McSurely

license: Public Domain

text:
    Inner Group Financing Corporation v. Halsted Exchange National Bank of Chicago and Florence E. Johnston, Defendants. Halsted Exchange National Bank of Chicago, Appellant, v. Inner Group Financing Corporation and Florence E. Johnston, Appellees.
    Gen. No. 38,966.
    Opinion filed November 30, 1936.
    Rehearing denied December 14, 1936.

      John M. Lee and Carl M. Loos, both of Chicago, for appellant.
    Sindeh & Hassell, of Chicago, for certain appellee.
   Mr. Justice McSurely

delivered the opinion of the court.

Plaintiff brought suit against the Halsted Exchange National Bank of Chicago, defendant, alleging that it had wrongfully charged the amount of two checks to plaintiff’s deposit account, and upon trial by the court had judgment for $800. Defendant appeals.

Plaintiff’s statement of claim alleged that it was an Illinois corporation; that it opened a checking account with the defendant bank and delivered to it a copy of a resolution adopted by it which authorized the bank to pay out the funds of the plaintiff corporation on deposit with it upon checks “signed in the name of this Corporation by its Treasurer”; that while this resolution was in full force and effect defendant honored and paid out on two checks money belonging* to plaintiff— one for $500, another for $300 — both signed by Florence E. Johnston, individually, and not signed in the name of plaintiff by its treasurer in accordance with the resolution ; that these moneys were not paid out upon any obligation or indebtedness owed by plaintiff and the amounts were wrongfully charged to plaintiff’s account.

Defendant first says in this court that there was no proof that plaintiff made a demand on defendant for the amount of these checks. This point was not made upon the trial in any way and it is well established that such a point cannot be made for the first time upon appeal. Bekins Household Shipping Co. v. Grand Trunk R. System, 162 Ill. App. 497; Chicago, I. & L. Ry. Co. v. Monarch Lumber Co., 202 Ill. App. 20; Erickson v. Gregory, 275 Ill. App. 286.

Florence E. Johnston was plaintiff’s treasurer, and defendant says that it was advised that the moneys in plaintiff’s deposit actually belonged to her, and that she was authorized to withdrew these moneys on checks signed by her individually. Cases are cited like Hanna v. Drovers’ Nat. Bank, 194 Ill. 252, but in that case, like others cited by defendant, the bank had notice before the moneys were paid out that the fund belonged to another, and in such a case it is held that the bank may refuse to pay it to the depositor and be compelled to pay it to the real owner. In the instant case it was affirmatively shown that the bank had no notice that Florence E. Johnston claimed to own the money on deposit in the name of plaintiff until some weeks after the amount of the checks had been paid and plaintiff’s account charged.

Defendant’s theory seems to be that if the checks were improperly honored the defendant paid out its own money and not the money of plaintiff, and before plaintiff can have judgment it must prove that it owned the money in its account. We do not follow this reasoning. When defendant charged plaintiff’s- account with the amount of these checks it reduced by so much plaintiff’s deposit. If defendant paid out its own money and not that of plaintiff, defendant should credit plaintiff’s account with the moneys erroneously paid out before it can say that it belongs to another.

When a corporation opens a deposit account the bank must be satisfied that the officer signing the checks is authorized to do so, and if it pays on an unauthorized check it takes the risk of being held liable for the amount irregularly paid. Among the many cases holding the bank liable under such circumstances are Lund v. Seamen’s Bank, 37 Barbour (N. Y.) 129; Citizens Nat. Bank v. Alexander, 120 Penn. 476; Dalmatinsko, etc. v. First Union Trust & Sav. Bank, 268 Ill. App. 314; Ellis v. Western Nat. Bank, etc., 136 Ky. 310; Havana Cent. R. Co. v. Central Trust Co. of New York, 204 Fed. 546; Guaranty State Bank & Trust Co. v. Oklahoma Coal Co., 209 Fed. 350. In the first two cases just cited it was also held that a hank receiving money from a depositor enters into an implied contract to honor his checks and cannot allege, after the money has been erroneously paid out, that the money belonged to someone else.

Even if it could be invoked as a defense that the moneys represented by the checks belonged to Florence E. Johnston individually, and not to the plaintiff corporation, we find no evidence in the record proving this to be the fact. When the corporation was formed Miss Johnston was to put in $1,800; of this amount she had put in $800; apparently she was dissatisfied, and there is a suggestion that she wished to withdraw her money and put it into another business, associating herself with a John J. Mulkern. The checks in question were made payable to Mulkern, who collected them.

Miss Johnston testified that the president of plaintiff corporation, Mr. McDonnell, verbally authorized her to withdraw this money. McDonnell denies this; he testified that he never had any conversation with her about withdrawing the funds and that she did not claim that these funds were her own; that the first he knew of the withdrawal of the funds was the day after Thanksgiving when he called up the bank to ascertain how the account stood and was told the account had been closed; that he immediately went to the bank, got the checks and statement and took them to his attorneys, and this suit was commenced to recover the money. We find no valid defense to the claim of plaintiff and the finding of the court that defendant was liable was proper.

Defendant petitioned the court to make John J. Mulkern and Florence E. Johnston defendants and third parties, and a “third party notice” was served upon them. Such procedure is authorized under Buie 38 of the municipal court, where it is provided that where a defendant claims to be entitled to contribution “or indemnity over against any person not a party to the action,” he may, by leave of court, issue a “third party notice” to be served upon such person, stating the nature and grounds of defendant’s claim to contribution or indemnity, and requiring the appearance of such person served with summons. This notice was served on Mulkern and on Miss Johnston, but Mulkern failed to appear and was defaulted. Miss Johnston appeared and testified. Her defense to defendant’s claim of indemnity was that when she was interviewed by an officer of defendant bank in January, 1935, and gave it an affidavit asserting that she claimed the fund, she received from the bank a letter as follows:

“On receipt of your affidavit of January 5,1935, with reference to checks for $500.00 and $300 dated November 5, 1934, and November 12, 1934, respectively, payable to John Mulkern which have been signed by you personally and charged to the corporation account of Inner Group Finance Corporation, we hereby state that we will not implicate you should suit be brought against us by the Inner Group Finance Corporation of which you have been secretary and treasurer.” Defendant argues that this was not a release to Miss Johnston of liability and that it is entitled to judgment against her.

The trial court in its order found that Florence E. Johnston has a good defense against the claim of defendant bank, as it agreed it would not implicate her should suit be brought against it. It was ordered that judgment be entered in her favor against the bank. We think the court properly interpreted the evidence on this point. The court also entered judgment against Mulkern in favor of the bank for $800. This also was proper.

We see no reason to disag’ree with the conclusion of the trial court and its judgment is affirmed.

Affirmed.

Matchett, P. J., and O’Connor, J., concur.


author: Mr. Justice MoSurelt

text:
    Ruth E. Zorger, a Minor, by George F. Zorger, Her Next Friend, Plaintiff in Error, v. Hillman’s, Defendant in Error.
    Gen. No. 38,979.
    Opinion filed November 30, 1936.
    A. W. Martin, Edward H. S. Martin, and John B. King, all of Chicago, for plaintiff in error.
    Cassels, Potter & Bentley, of Chicago, for defendant in error; Kenneth B. Hawkins and Robert B. Johnstone, both of Chicago, of counsel.
   Mr. Justice MoSurelt

delivered the opinion of the court.

Plaintiff alleged that she ate some pork bought at defendant’s store which gave her trichinosis; the jury found the defendant not guilty, and plaintiff appeals from the judgment on the verdict.

The gist of the defense was the testimony of physicians tending to show that plaintiff could not have com tracted trichinosis from this pork.

On the afternoon of September 26, 1931, plaintiff’s mother and father called at defendant’s store in Chicago and purchased a pork loin which was taken home, cut into chops and fried by the mother. Plaintiff says that at about eight o’clock on that same evening she ate a chop and a half and at six o’clock the next evening became acutely ill, suffering extensive nausea and diarrhea; that she had cramps in the muscles of the arms and legs on this evening and her eyes became puffy; that she grew worse and on October 2nd was taken to the Cook county hospital where her illness was diagnosed as trichinosis. The mother testified that she fried the chops over a gas flame turned on full force; that they were cooked for approximately 15 minutes, browned on both sides, and the meat was white all the way through — no blood or rareness in the chops after they were cooked.

The greater weight of the medical testimony tended to prove that the symptoms of which plaintiff complained as occurring less than 24 hours after she had eaten the chops, could not possibly occur earlier than 36 to 72 hours after eating pork containing trichinae, according to the testimony of the doctors called by plaintiff, and not earlier than three to six days thereafter, according* to the doctors called by defendant. These doctors also said that the severe pains in her muscles and the puffing of her eyes could not occur, before six to 14 days after eating the pork if it contained trichinae.

Dr. Raffensperger, who was with the United States Department of Agriculture (Biological Division of Animal Research) evidently well qualified after many years of experience, testified that trichinosis is a disease caused by the microscopic parasite trichinae; that its presence can be detected only by microscopic examination; that extensive experiments and investigations showed a failure of this test to discover trichinae so as to protect the consumer, and the Grovernment thereupon abandoned it and undertook a campaign to teach that all pork should be cooked before eaten. Cooking pork so that there is no blood or rawness in it renders it wholesome and fit for food. The evidence in this case shows that the chops were thoroughly cooked, and therefore, under the testimony of the doctors, could not contain trichinae capable of infecting plantiff.

The testimony as to trichinae was voluminous and we have only outlined it. The jury heard it and had the opportunity to observe the witnesses who testified. It accepted defendant’s theory and we cannot say its verdict is against the manifest weight of the evidence.

Counsel for plaintiff criticizes instructions given on behalf of defendant and the refusal of the trial court to give one requested by plaintiff. These instructions are not set out in the brief. It has been repeatedly held that instructions of which complaint is made should be set out in full in the brief, followed by definite and clear reasons supporting the alleged errors incident thereto. General Platers Supply Co. v. L’Hommedieu & Sons Co., 228 Ill. App. 201; Harris v. Piggly Wiggly Stores, Inc., 236 Ill. App. 392; Spencer v. Chicago & N. W. Ry. Co., 249 Ill. App. 463; Roy Iverson Co. v. U. S. Lloyds, Inc., 251 Ill. App. 150; Cory v. Woodmen Accident Co., 253 Ill. App. 20; In re Estate of Wood v. Tyler, 256 Ill. App. 401.

However, we have examined in the abstract the instructions of which complaint is made and find no reversible error in this respect. The point of the criticism as to given instruction No. 18 is that it told the jury plaintiff must show that the meat sold by defendant was unfit for consumption by human beings after being* cooked to 137 degrees Fahrenheit. Plaintiff says that the Criminal Code, ch. 38, If 19, Ill. State Bar Stats. 1935, forbids selling* any flesh of any diseased animal, and that this has been construed in Wiedeman v. Keller, 171 Ill. 93, as forbidding the sale of pork containing* trichinae, regardless of the fact that ordinary cooking* will make it harmless. The cited case does not so hold, but in apt language says “that the article sold be sound and fit for the use for which it was purchased.” The use for which pork is purchased is to eat it cooked, not raw. A number of cases in other jurisdictions involved the scientific facts relating to trichinae and these decisions support our view that pork chops are not sold to be eaten raw, and that the wholesomeness required by our pure food statute means that pork is fit for food when properly cooked. Feinstein v. Daniel Reeves, Inc., 14 F. Supp. 167; Dressler v. Merkel, Inc., 284 N. Y. S. 697; Tavani v. Swift & Co., 262 Pa. 184; Cheli v. Cudahy Bros. Co., 267 Mich. 690.

Moreover, plaintiff’s given instructions Nos. 19 and 22 are upon the theory that the pork was to be cooked to be rendered wholesome for food. As to the other instructions we find nothing requiring comment. They are for the most part stock instructions which have been repeatedly approved by the courts.

Both plaintiff’s mother and father testified that they did not eat any of the pork. There was evidence that the dog ate of the pork, and upon motion the court struck out this latter evidence. Plaintiff now argues that he expected to show that the dog became infected with trichinae and died, but the record fails to show that any offer of such proof was made upon the trial. Other objections are made as to the rulings of the court upon the evidence but we find nothing of sufficient importance to require a reversal.

The question submitted to the jury was one of fact and the evidence on behalf of the defendant amounted almost to a demonstration that plaintiff did not suffer trichinosis by reason of eating the pork in question. Regardless of errors upon the trial, the jury could not properly have brought in any other verdict. The judgment is therefore affirmed.

Affirmed.

Hatchett, P. J., and O’Connor, J., concur.


author: Mb. Justice McSurely

text:
    Irene Novotny v. Acacia Mutual Life Insurance Company v. Irene Novotny et al. Appeal of Frank Novotny, Jr., and Frank E. Brence, Administrator of the Estate of Gladys Novotny Brence, Deceased, Appellants. Irene Novotny, as Administratrix of the Estate of Frank Novotny, Deceased, Appellee.
    Gen. No. 39,039.

      Opinion filed November 30, 1936.
    Levy & Sohmetterer, of Chicago, for appellant Frank Novotny, Jr.
    John O. Hruby and Meyer Shapiro, both of Chicago, for appellant Frank E. Brence.
    Alfred Boy Hulbert and Clarence W. Shaver, both of Chicago, for appellee.
   Mb. Justice McSurely

delivered the opinion of the court.

Irene Novotny, plaintiff, brought suit seeking to collect the proceeds of a life insurance policy issued by the Acacia Mutual Life Insurance Company upon the life of her husband, Frank Novotny, deceased.

The insurance company filed a counter-complaint in the nature of an interpleader, admitting the policy, alleging that there were rival claimants and that the company is ready to pay the amount due to such persons as the court may order.

Frank Novotny, Jr., and Gladys N. Brence, children of Frank Novotny, the insured, by prior marriage, filed answers claiming the fund; pending the litigation Gladys Brence died and Frank E. Brence was appointed administrator of her estate and he was substituted as a defendant. By order of court the insuranee company deposited the fund in controversy with the cleric of the superior court. Upon hearing the court held that plaintiff, as administratrix, was entitled to collect $3,550.56, and that Frank Novotny, Jr., should be paid $330 out of the fund deposited with the clerk. Defendants appeal from this order.

The theory of the plaintiff is that when Frank Novotny, the insured, died, there was no beneficiary stated in the policy, and therefore under the law the administratrix is the only one entitled to collect. Defendants say that where there is no proper designation of beneficiary the proceeds of the policy vest in the family of the insured, free from administration.

When the policy was issued Frank Novotny designated his first wife, Anna M. Novotny, as beneficiary; she died leaving two children, the defendants here; under the provisions of the policy for a change of beneficiary the insured then designated as beneficiary the American State Bank, Berwyn, Illinois, as trustee; subsequently he married the present plaintiff, Irene Novotny; the insured then made a second change of beneficiary, designating as beneficiary the First American National Bank and Trust Company of Berwyn as trustee under trust No. 208; these changes of beneficiary were indorsed on the policy by the company; subsequently the last named beneficiary went into the hands of a receiver and ceased doing business; thereupon, in March, 1933, the insured, acting under the power reserved by him in Trust Agreement 208, in writing released the trustee from all obligations under the trust agreement and canceled it; he failed to designate a successor-beneficiary and died intestate.

Defendants argue that the cancellation of Trust Agreement No. 208 did not effect a change of beneficiary. It is obvious that when the trustee-beneficiary ceased doing business and the trust agreement was canceled by the insured, the designation of this trustee as beneficiary was automatically canceled. The argument seems to be that it still remained the beneficiary because no change was indorsed on the policy. In Sun Life Assur. Co. v. Williams, 284 Ill. App. 222, leave to appeal denied by the Supreme Court, we held that the provision for an indorsement of change of beneficiary on a policy was for the protection of the insurance company, which may be waived by it, and that bringing the fund into court by interpleader waives the necessity of such indorsement.

We find no cases in this State presenting the question as to who shall collect where no beneficiary is designated and the policy does not cover such a contingency. In Clarke v. Schwarzenberg, 162 Mass. 98, where, the designation of the beneficiary was held invalid, it was held that the executrix was entitled to collect the insurance money. This was followed in the subsequent case of Boyden v. Massachusetts Masonic Life Ass’n, 167 Mass. 242, where it was again held that where no beneficiary is effectively designated the administrator of the estate is entitled to collect the insurance money. Other cases to the same effect are noted in 37 C. J. 569, see. 331. Where no beneficiary is named in the policy the fund belongs to the insured’s estate and the executor or administrator can collect. No other view is reasonably possible.

Defendants assert in this court that this policy was issued by a fraternal organization and that under the statute and decisions the payment of death benefits shall be paid only to the heirs or blood relations of the insured, (ch. 73, 488) Ill. State Bar Stats. 1935) to which plaintiff replies that this point is made in this court for the first time; that there was no evidence heard upon the trial as to the character of the insurance company and that the only thing before this court to guide it in determining whether the insurance company was a fraternal beneficiary society or a regular mutual life insurance company is the policy itself, which was attached as an exhibit to the interpleader of the insurance company.

It is a well established rule that points not made upon the trial cannot be made for the first time in the court of review. Chicago, I. & L. Ry. Co. v. Monarch Lumber Co., 202 Ill. App. 20; Erickson v. Gregory, 275 Ill. App. 286. This rule is especially applicable to the instant case, which would seem to require evidence to establish the character of the insurance company. There were no allegations or proofs that the policy is a fraternal benefit certificate.

The policy itself states on its face that it is a “special whole life participating policy,” with provision for medical examination, cash loans, extended insurance, instalment options and other like provisions which, it is asserted by plaintiff, are not found in fraternal benefit certificates but are universally found in old line and mutual life insurance policies. Both counsel seek to supply in their briefs evidence which should have been presented to the trial court on this question.

Ch. 73, par. 488, Illinois State Bar Stats. 1935, defines a fraternal beneficiary society as one carried on for the sole benefit of its members and their beneficiaries and not for profit; that it shall have a lodge system, with a ritual and other like provisions. We find nothing in the present policy relating to such requirements.

The statute further provides that death benefits shall be paid only to relations, and yet the form attached to the policy for a change of beneficiary provides that “If beneficiary is not related give present address or other identification. If a business concern give full corporate name. ’ ’ This is not consistent with the statutory requirement that the beneficiaries of a fraternal certificate shall be “blood relations.” We are of the opinion that the court properly found that the administratrix was entitled to collect the fund.

The trial court allowed Frank Novotny, Jr., $330 out of the insurance money deposited with the clerk of the court. The defendants appeal from the entire order. Plaintiff, appellee here, confesses error in this respect and asks that this portion of the decree be vacated.

Frank Novotny, Jr., claimed that he had advanced $330 for payment of premiums or interest on loans made on his father’s insurance policy. Without passing upon the credibility of his testimony, we are of the opinion that his claim in this respect was not properly before the trial court for adjudication. The question before the trial court was whether the administratrix should collect the insurance money. The court properly held that she should do this and should have held she was entitled to collect all of it. Frank Novotny, Jr., should present his claim in the probate court, to be acted upon as that court may decide.

That part of the decree holding that the administratrix is entitled to collect the insurance fund is affirmed, and that part of the decree awarding $330 to Frank Novotny, Jr., is reversed and the cause remanded to the superior court with directions to entelan order that the administratrix of the estate of Frank Novotny is entitled to collect all of the insurance fund now on deposit with the clerk of the superior court, costs of this appeal to be taxed against the appellants.

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

Hatchett, P. J., and O’Connor, J., concur.


author: Mr. Justice O’Connor

text:
    Meyer Brooks, Appellant, v. R. A. Watson, Appellee.
    Gen. No. 39,068.
    Opinion filed November 30, 1936.
    Ewart Harris, of Chicago, for appellant.
    No appearance for appellee.
   Mr. Justice O’Connor

delivered the opinion of the court.

Plaintiff brought an action against the defendant to recover $2,565.76 which he claimed was for $489.62 plaintiff had advanced to defendant for his share of anticipated profits, and one-half of the loss sustained by the parties in a joint venture in buying and selling apples. At the conclusion of plaintiff’s evidence the court held that because a partnership accounting was involved he had no jurisdiction — that such a suit was cognizable only in a court of equity. The suit was then dismissed at plaintiff’s cost and he appeals.

The record discloses that on September 26, 1931, plaintiff and defendant entered into a written agreement whereby they were to buy and sell apples, each performing certain work in connection therewith, plaintiff to furnish all the money, and they were to divide the profits equally, or, in case there was a loss, each should stand one-half of the loss. The apples were purchased and sold, plaintiff furnished all the money, and there was a loss of $4,152.28. Plaintiff furnished defendant with a statement of the amount and demanded payment, which was refused. Defendant filed an affidavit of merits in which he admitted the making of the contract but interposed as a defense that plaintiff did not perform his part of the contract because he failed to consult defendant as to the disposition of the apples; that plaintiff did not sell the apples at prices mutually agreed upon by the parties, as the contract required.

At the beginning of the trial counsel for defendant suggested that the case was one over which a court of law had no jurisdiction because it involved a partnership which was cognizable only in a court of equity.

The record discloses that plaintiff was in the produce business at 938 W. Randolph street, Chicago, and defendant was connected with another concern engaged, among other things, in the storage business, and stored apples. The apples were purchased from the owners of orchards in Illinois; they were picked and for a time stored in the storage house of the concern with which defendant was connected, the storage company making the customary charges for such services. The transactions began in September, 1931, and were closed in January, 1933, when all the apples had been sold. On March 31, 1933, plaintiff submitted a statement to defendant showing the loss and the amount claimed as above stated. The principal business of plaintiff and defendant was in no way connected with the purchase and sale of the apples. The transactions and the proving up of the cost and expenses of buying and selling the apples were very simple and in no way involved, and there is no reason apparent why a court of law was not as competent to pass on the question as a court of equity would he. The relation between the parties was not that of a true partnership, but clearly one of joint venture. Townsend v. Gregory, 132 Ill. App. 192; Chicago Die & Electric Co v. Nathan, 141 Ill. App. 171; Frey v. Potter, 12 R. I. 542; Burleigh v. Bevin, 48 N. Y. S. 120.

The Townsend v. Gregory case was an action in assumpsit. The parties entered into an agreement whereby plaintiff was to have a certain part of the net profits received from a certain contract. The court said (p. 193): “Defendants and plaintiff had separate offices and were engaged in business other than that pertaining to the construction contract . . . There was no general partnership between them. Their joint interests were limited to the matters to be exploited under the contract between them. It was a special joint deal and undertaking — a joint enterprise as distinguished from a general partnership.” One of the contentions made was, “That the suit involves a partnership accounting, of which a court of equity alone has jurisdiction.” The court held the contention untenable and said (p. 196): “It is clear from the testimony of Gregory and the documentary evidence that there was no general partnership between the parties to this record. They were jointly interested in an enterprise, it is true, but to that alone their joint interest was circumscribed.” The evidence there showed that the work involved in the enterprise had been completed and there was $15,000 remaining for division. The court continuing said (p. 197): “Where the partnership has ended and the accounts are not complex, ... a court of law has jurisdiction. It may be that in such a condition there would be concurrent jurisdiction of equity and law. In such an event the aggrieved party may elect to which tribunal he will resort in an assertion of his rights.” To the same effect is the holding in the Nathan case (141 Ill. App. 171) where it was held that a joint interest in a special project limited in character did not constitute a partnership.

Frey v. Potter, 12 R. I. 542, was an action in assumpsit to recover one-third of the losses of a joint speculation. The parties there had entered into a written agreement that they should share equally the profits or losses. All of the money was advanced by one of them for the purchase of land involved in the enterprise. It was later sold at a heavy loss. The defendant there moved for a nonsuit on the ground that an action of assumpsit would not lie to recover money due from one partner to another unless the account were settled. The lower court denied this contention, and on appeal the judgment was affirmed. The court there said (p. 543): “There was no general co-partnership, but only an agreement to share the gains and losses of a particular adventure, the entire capital for which was furnished by plaintiff’s testator. There were no joint debts or liabilities, and no mutual claims subsisting to be adjusted. The transaction was closed, and the losses ascertained. Nothing remained for the defendant to do but pay his share of them. The case is not intrinsically distinguishable from an ordinary case in assumpsit, and, even without precedent, we should have little difficulty in maintaining the action. There are, however, respectable precedents for it.”

In Burleigh v. Bevin, 48 N. Y. S. 120, plaintiff brought suit against the defendant to compel payment of part of a loss sustained in the purchase and sale of stock. It was contended that an action in law would not lie before the settlement of the accounts between them. This contention was denied, the court saying (p. 120): “They admit the agreement; the purchase and sale of the stock; that all of the money was provided by plaintiff; that a loss was sustained in the amount named; that this loss has all been paid by plaintiff; and that under the agreement one-third was to be paid by their testator. They also admit that this constitutes the whole transaction, and that it is closed. . . ■. did the transaction in question, under the agreement referred to, constitute the parties to it partners in such a sense as to bring them within the reason of the rule above referred to? I think not. There was no general ‘partnership’ in the sense in which that word is usually understood. The agreement was simply to share the profits and bear the losses of a single transaction. There were not and could not be any joint debts or mutual accounts to be adjusted. After the sale of the stock nothing remained to be done except to divide the profits or contribute to the losses, and no good reason can be assigned why an action at law, under such circumstances, should not be maintained to recover a proportionate share of .the losses sustained or profits made.”

In Bracken v. Kennedy, 3 Scamm. (4 Ill.) 558, it was held that one of the reasons why one partner could not sue a partnership was that he could not be both plaintiff and defendant. The court, in giving the reason for the rule, there said (p. 563): “and the reason is, that one man can not occupy the double position of plaintiff and defendant at the same time.” It is clear that the case at bar could have been as easily disposed of in a court of law as in a court of equity. Under the authorities above stated, and many others, the court had jurisdiction and it was error to dismiss the suit.

The judgment of the municipal court of Chicago is reversed and the cause remanded.

Reversed and remanded.

Hatchett, P. J., and HcSubely, J., concur.


text:
    The People of the State of Illinois ex rel. John S. Rusch, Appellee, v. Peter Bendix et al., Appellants.
    Gen. No. 39,079.
    Opinion filed November 30, 1936.
    Rehearing denied December 14, 1936.
    Max Lurie, of Chicago, for appellants; Abraham Teitelbaum, of Chicago, of counsel.
    Thomas J. Courtney, State’s Attorney, for appellee; John F. Cashen, Jr., of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.

Peter Bendix, Peter Stankus and John Josephitis were judges at a primary election held in Chicago on April 14, 1936. They were removed as such judges at about nine o’clock in the morning of the election because of the manner in which it was claimed they conducted themselves. Afterward a petition was filed against them charging that each of them, while acting as judge of the primary election, fraudulently and unlawfully permitted ten official Republican primary ballots and seven official Democratic primary ballots to be taken from the polling place of the 57th precinct of the 11th ward. The prayer was that they show cause why they should not be adjudged in contempt of court for such misconduct and misbehavior. Afterward they appeared in court, were represented by counsel, and the matter was heard. The court found the defendants guilty as charged, each was committed to the county jail of Cook county for a period of one year and they prosecute this appeal.

The record discloses that the three respondents were regularly appointed as judges of the primary election. The official ballots to be used at the election were delivered on the evening of April 13 to the home of the mother of respondent Peter Bendix across the street from where he lived; he there obtained the ballots which were wrapped up in two packages, one containing the Republican and the other the Democratic ballots, and took them to his home. Shortly before six o’clock the next morning the respondent John Josephitis called at Bendix’s home and assisted in carrying the ballots to the polling place where the two packages were opened and the ballots counted. At about six o ’clock the other respondent, Peter Stankus, arrived at the polling place and the three judges initialed about 20 or 30 ballots of each party; they said this was done because they were expecting quite a large number of persons would want to vote shortly after the polls opened. Soon after the polls opened Philip Zimmerman, who apparently was a worker at the polls and who was acquainted with respondents Stankus and Josephitis, was seen in the polling place. Shortly thereafter there was a commotion or a fight somewhere outside the polling place, when Zimmerman was arrested and taken downtown to the Election Commissioners’ office in the city hall, where 10 Republican ballots, initialed “J. J.” (the initials of respondent John Josephitis) and seven Republican ballots initialed “P. S.” (the initials of Peter Stankus) were found in his pocket. Shortly thereafter the three respondents were removed as judges of election. The foregoing facts are not disputed.

Respondent John Josephitis testified that he acted as judge of the primary election from six o’clock in the morning to nine o’clock in the morning; that this was the first time he had served as judge of election; that he opened the package containing the Republican ballots and counted them at the direction of respondent Bendix, and that there were 100 of such ballots; that Bendix then told Mm there were a lot of people outside and for him to initial 15 or 20 ballots and then to act as usher in keeping the place in order; that the ballots were initialed, then people came in to vote and he asked them to form a line; that he did not hand the ballots to the voters; that he did not see anyone give a ballot to Philip Zimmerman, but saw Zimmerman in the polling place; that the only ones who received ballots were qualified voters; “there was a commotion outside about fifteen minutes after the polls opened”; that he initialed ballots from the Republican package and the other two judges initialed Democratic .ballots; that he did not know how the 17 ballots taken from Zimmerman were removed from the polling place; that he was removed as a judge at about nine o’clock the morning of the election.

Respondent Peter Bendix testified that he was by occupation a printer and served as a Republican judge at the election in question; that he arrived at the polling place at six o’clock in the morning; that one of the Democratic judg-es opened one packag-e of ballots and he opened the other; that he initialed some of the ballots'; that he gave out ballots to voters but did not give any to a person who was not qualified to vote; that he did not give any ballots to Philip Zimmerman at any time; that he did not know how the 17 ballots got out of the polling* place; “there was quite a lot of commotion that morning”; that he served as clerk of election in 1932; that the ballots were delivered to his mother’s house across the street from where he lived the evening* before the election; that he obtained them that evening; that the next morning respondent Josephitis assisted him in carrying the ballots to the polling place; that he did not see Zimmerman in the polling* place that morning, that he did not know him; that a number of ballots were initialed before the voting* began, because there was a crowd outside.

Respondent Peter Stankus testified that he was a bank clerk; that he was a judge of election on the day in question and arrived at the polling place about two minutes after six o’clock that morning; that the packages of ballots were opened before he got there; that he then passed out the ballots to the voters as they cast their votes; that he knew Philip Zimmerman to see him but was not intimate with him; that he did not give anybody 17 ballots at one time; that he only gave ballots to those qualified to vote; that he did not know how the 17 ballots got out of the polling place; that on the morning* of the primary election he answered the telephone call from the Election commissioners ; “They asked if there was a fight in the polling place and I told them there was not. . . . There was a commotion.” This is the substance of all the evidence in the record.

Counsel for respondents contend that respondents “performed their duties as judges of election to the best of their ability; that they were hampered by confusion and the crowds in the polling place, and that they did not give any ballots to anybody but qualified voters”; that the judgment is not warranted by the evidence, and in support of this say, “No evidence whatsoever was introduced by the petitioner to prove the charges made in the petition. No proof was tendered to link the respondents with Philip Zimmerman upon whose person the seventeen ballots were found. These respondents were not jobholders. They were not interested in the outcome of the primary election or in any candidate”; that before the court was warranted in finding the respondents guilty, the law requires “most convincing evidence of the truth of the charge”; that the evidence was not only not convincing, but, on the contrary, the finding of the court is against the manifest weight of the evidence. We think there is no merit in this contention. The evidence shows that each of the respondents was intelligent. Two of them had acted at primary elections as judges before. Before the voting began they opened the packages containing the ballots and initialed 20 or 30 from each package, and the excuse is that this was rendered necessary because a large number of persons were coming to the polls to vote at this time. The evidence shows that' two of the respondents knew Philip Zimmerman and that he was in the polling place shortly before he was arrested. The undisputed evidence is that he was arrested outside the polling place, taken to the Election Commissioners in the city hall, at which time (about 7:30 a. m.) the 17 ballots were found in his pocket. Zimmerman was not called to testify in the instant case. The only explanation given by respondents as to what took place is, that shortly after the polls were opened there was a “commotion outside the polling place.” The term, “commotion” as used conveys little or no idea of the facts. There was no fight or disturbance in the polling place.

The trial judge, who saw and heard the respondents testify, gave no credence to the version of the respondents. We think his conclusion was the only one that could justifiably be drawn from the evidence. Certain it is that we cannot say the finding of the trial judge, who saw and heard the witnesses testify, is against the manifest weight of the evidence. The three respondents were appointed and were acting as judges of election. It was their duty to see that the ballots were not taken from the polling place and that they were given only to voters entitled to vote. Neither of the correspondents has any explanation as to how the 17 ballots, which bore the initials of two of the judges, came to be in Zimmerman’s possession, outside the polling place, shortly after the polls opened.

We think the judgment of the trial judge was warranted by the law and the facts. People ex rel. Rusch v. Kotwas, 275 Ill. App. 406; People ex rel. Rusch v. Greenzeit, 277 Ill. App. 479.

Counsel for respondents further contend that the court “did not acquire jurisdiction to sentence respondents upon a petition for contempt without a rule to show cause being issued and served upon them.” We think there is no merit in this contention. A verified petition was filed informing them of the charges made against them. They were in court, represented by counsel, and a hearing* had on the merits. The judgment order recites that, “This cause coming on to be heard upon the rule or order to show cause heretofore entered against the above named respondents and each of them, the oral answer to said rule or order by the respondents . . . and each of them, now appearing* personally in court and by their counsel,” etc. We think the proceeding as shown by the record was in substantial conformity with the statute. The respondents have had a fair hearing* and the judgment of the county court of Cook county is affirmed.

Judgment affirmed.

Hatchett, P. J., and HcSurely, J., concur.


author: Mr. Justioe Hall

text:
    The People of the State of Illinois ex rel. John S. Rusch, Defendant in Error, v. Frank J. Kirgis et al., Plaintiffs in Error.
    Gen. No. 38,847.
    Opinion filed November 30, 1936.
    Simon H. Herr, of Chicag’o, for plaintiffs in error.
    Thomas J. Courtney, State’s Attorney, Otto Keener, Attorney General, and Ditchburne & Lounsbury, of Chicago, for defendants in error.
   Mr. Justioe Hall

delivered the opinion of the court.

On February 5, 1936, a petition was filed in the county court of Cook county, in which it was charged that the defendants, Frank J. Kirgis, Steve Burns and James E. Sheehan, judges and clerks of election, were guilty of misconduct and misbehavior as such judges and clerks at a general election held in the city of Chicago Heights, State of Illinois, on April 16, 1936, and were, therefore, guilty of contempt of the county court. After a hearing, the defendants were found guilty of contempt, as charged. An order to show cause had theretofore been issued by the court. Thereafter, this order was made absolute, and each of the defendants was sentenced to serve a term of one year in the county jail of Cook county. They now seek to have the judgment of the county court reviewed by writ of error.

The Supreme Court of this State, in the cases of People v. Kotwas, 363 Ill. 336, People v. Ford, 363 Ill. 340, People v. Benjamin, 363 Ill. 344, and recently in the case of People v. Brown, 364 Ill. 273, has held that a judgment of the character of the judgment in this case cannot be reviewed by writ of error, but that appeal is the proper procedure. The writ of error is, therefore, dismissed.

Writ of error dismissed.

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


text:
    Peoples Gas Light and Coke Company, Appellee, v. James M. Slattery et al., Appellants.
    Gen. No. 39,297.

      Opinion filed December 8, 1936.
    Otto Keener, Attorney General, and Barnet Hodes, Corporation Counsel, for appellants; James G. Skinner, Montgomery S. Winning, Harry R. Booth, Robert H. Farrell, Howard C. Knotts and W. Robert Ming, Jr., Assistants Attorney General, Joseph F. Grossman, First Assistant Corporation Counsel, and James J. Danaher and Fred V. Maguire, Assistant Corporation Counsel, of counsel.
    Cooke, Sullivan & Ricks and Wilson & McIlvaine, all of Chicago, for appellee; George A. Cooke, Francis L. Daily, Edward H. Fiedler, John M. Connery, James T. Mullaney and Joseph R. Gray, all of Chicago, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court. .

By this appeal James M. Slattery, Andrew Olson, Charles E. Byrne, James D. Marnane and Harry A. Barr, the members of the Illinois Commerce Commission, and Otto Kerner, Attorney General of the State of Illinois, seek to reverse an order or decree of the circuit court of Cook county temporarily enjoining* and restraining* them from enforcing or attempting to enforce the present rates and charges for gas sold by plaintiff to the general public in Chicago, and from attempting to enforce any penalties against plaintiff for failure to charge the present rates. The order further provided that the injunction was issued on condition that plaintiff should not charge or collect from its customers for gas sold and delivered, rates or charges higher than those set forth in Schedule 19 filed by plaintiff with the Illinois Commerce Commission, and that plaintiff, on or before the tenth day of each calendar month, deposit in the American National Bank and Trust Company an amount equal to the difference between the present rates, which are set forth in Schedule No. 17, and the rates and charges set forth in Schedule No. 19. And that if it were finally determined that plaintiff was not entitled to the higher rates, it should make a refund to its customers of the excess charge over the rates mentioned in Schedule No. 17.

September 1, 1936, plaintiff filed its complaint in equity. It was not verified, but seven days thereafter, on September 8, plaintiff filed a number of affidavits in support of its motion for a temporary injunction, in some of which the affiants swear that the allegations of the bill are true. The City of Chicago filed an intervening petition, and on September 10 the defendants filed their joint and several answer, which was not verified. September 21 defendants filed a number of affidavits in opposition to those filed by plaintiff, and on that day an order was entered referring plaintiff’s motion for a temporary injunction to a master in chancery for a prompt hearing, the matter to be heard upon the complaint, the answer, plaintiff’s affidavits, defendants’ counter affidavits, plaintiff’s rebuttal affidavits, and the intervening petition of the City, and that the master report promptly his findings of fact and conclusions of law as to whether the court had jurisdiction of the cause, and whether-plaintiff’s motion should be allowed.

September 30 the master reported that he had conducted the hearing as ordered, found that the court had jurisdiction, and recommended that plaintiff’s motion for a temporary injunction be denied. Plaintiff, defendants, and the City filed objections, plaintiff on the ground that the master did not recommend the allowance of its motion, and the defendants on the ground that the master erred in finding the court had jurisdiction. The objections were overruled, and they were afterward ordered to stand as exceptions. The exceptions of the defendants and the City were overruled, the exception of the plaintiff was allowed, and a decree entered as above stated.

The record discloses that plaintiff sells gas to the inhabitants of Chicago, and on June 17, 1933, filed its schedule of rates known as No. 17 with the Illinois Commerce Commission. A hearing- was had before the Commission as to the reasonableness of the rates, and they were approved by the Commission on April 15, 1934; such rates had been in effect for some time before this date. July 16, 1935, the Gas Company filed with the Commission its schedule of rates known as No. 18, whereby it proposed an increase of its rates, with certain exceptions, of 3 per cent of the total of any bill rendered, on the ground that on July 1, 1935, the “Public Utilities Tax Act” imposed a 3 per cent tax on the gross sales made by the company. August 7, 1935, the Commission entered an order suspending the proposed increase in rates until December 13,1935, and the matter was set for hearing on September 25, 1935. Thereafter the cause was twice continued on motion of counsel for the Company, and on February 14, 1936, the Company began the presentation of its evidence before the Commission, continuing to May 29, 1936. Evidence was then introduced by the Commission, and after argument of counsel the Commission entered an order on June 12,1936, in which it was found the company had failed to establish that the rates then in effect (Schedule No. 17) were not just and reasonable, and, further, that the company had failed to establish to the satisfaction of the Commission that the rates proposed in Schedule 18 were just and reasonable, and it was ordered that the rates of Schedule 18 be cancelled and annulled. Fourteen days thereafter, June 26, 1936, the company filed with the Commission its schedule of rates No. 19, which rates were higher than those in schedule 18. July 1, 1936, the Commission entered an order suspending- the increased rates until November 24, 1936, and the matter was set for hearing on July 15, 1936. On that date it was agreed by counsel for both parties that the Commission might consider all the evidence that had theretofore been offered in connection with Schedule 18. The company then introduced further evidence and rested. July 24, 1936, while counsel for the Commission were cross-examining some of the company’s witnesses, it filed a petition with the Commission praying that it be given immediate authority to put into effect the schedule of rates in No. 19, pending the final determination of the reasonableness of such rates. August 21, 1936, the Commission entered an order denying the prayer, in which it was stated that the physical properties of the company, used by it in rendering gas service throughout the City, were of considerable magnitude, that the Commission had not had sufficient time to investigate the facts and was then unable to pass intelligently upon the merits of the company’s contentions, one of the reasons being that the company was then using some natural gas in addition to the gas manufactured by it; that “no claim is made to the effect that unless the emergency increase sought is allowed the company’s service will in any way be impaired.” Eleven days thereafter the company filed its complaint in the instant case, claiming that the rates and charges as set forth in Schedule 17 were confiscatory of its property and therefore in conflict with sec. 1 of the 14th amendment of the United States Constitution and sec. 2, Article (2) of the Constitution of the State of Illinois, and that defendants be enjoined from enforcing or attempting* to enforce such rates and charges and from enforcing penalties against plaintiff and its representatives.

1. Defendants contend that the circuit court had no jurisdiction of the subject matter in the instant case because plaintiff had an adequate remedy at law, as provided by secs. 67 and 68 of the Public Utilities Act; that when the Commission entered the order of August 21, 1936, denying plaintiff’s application for an immediate increase in rates pending* the completion of the Commission’s investigation, plaintiff should have petitioned for a rehearing, and if it were denied, take an appeal to the circuit or superior court of Cook county, as provided in secs. 67 and 68 of the Public Utilities Act, citing Hoyne v. Chicago and Oak Park R. R., 294 Ill. 413; City of Chicago v. O’Connell, 278 Ill. 591; Utilities Comm. v. Springfield Gas Co., 291 Ill. 209.

In the Eoyne case an information in chancery was filed by the State’s attorney of Cook county against four elevated railroad companies, praying that they be enjoined from charging more than five cents per passenger, and alleging that an order of the Public Utilities Commission, which prescribed a six-cent fare, was unconstitutional, as an impairment of the City ordinances. A demurrer was sustained to the information, which was dismissed, and the case was taken to the Supreme Court where the decree was affirmed. The court said the purpose of the suit was to have the order entered b.y the Public Utilities Commission, increasing the rate of fare, set aside as unlawful because the Commission had no power to deal with that question. The court said the information disclosed that there was a hearing before the Commission on the question of the sufficiency of the rates, and the matter was there contested; that sec. 41 of the Public Utilities Act gave the Commission complete power and authority to grant such hearing and to determine the just, reasonable and sufficient rates to be charged, and that sec. 68 of the act gave any person or corporation affected by the order an appeal to the circuit court of Sangamon county for the purpose of having the reasonableness of the rates inquired into and determined, and that an appeal might also be taken from the circuit court to the Supreme Court. The court held that the order was not void, and therefore not subject to a collateral attack, and said (p. 423): “anyone affected by the order . . . had a complete remedy at law by appealing from the order in the mode pointed out by statute.”

In the O’Connell case, 278 Ill. 591, an order of the Utilities Commission was attacked on the ground that it was in violation of constitutional rights of the City and others. An injunction was sought to restrain the Commission from enforcing the order. The court held that the method prescribed by the Public Utilities Act, for determining the reasonableness of the order, was exclusive and the question could not be determined in a proceeding to enjoin the enforcement of it. On the other hand, plaintiff’s position is that it is not making a collateral attack on the Commission’s order of August 21st, but a direct attack upon the rates set forth in Schedule 17, which rates the Utilities Act provides must be charged, and that such rates are confiscatory of plaintiff’s property; that if plaintiff prosecuted an appeal to the circuit court of Cook county, the only order that could be entered in that court would be to affirm or to set aside the order and that this result would not afford plaintiff an adequate remedy for the confiscation which results daily from the enforcement of the rates in Schedule 17; that in this State courts have no power to fix rates for public utilities ; that such power has been delegated by the Legislature to the Commerce Commission, and Alton & So. R. Co. v. Ill. Comm. Commission, 316 Ill. 625, and Illinois Commerce Commission v. Chicago & E. I. Ry. Co., 332 Ill. 243, are cited.

In the Alton case the court said (p. 629): “Courts are not rate-fixing bodies and have no authority of law to fix or establish rates for-public utilities. This power belongs to the legislative branch of the State and has by the legislature been delegated only to the Commerce Commission. The Circuit court in reviewing an order of the Commerce Commission has no authority to revise or modify it.”

The Chicago & E. I. Ry. Co. case, 332 Ill. 243, was an appeal from a judgment of the circuit court of Cook county reversing an order of the Commerce Commission which required a reduction in freight rates. The judgment was reversed with directions to approve the order of the Commission. The court there said (p. 248): “The right to review the findings of the Commerce Commission in a proceeding such as this is limited to the questions whether the Commission acted within the scope of its authority, whether the finding is without any reasonable foundation in the evidence, or whether a constitutional right has been infringed by such finding. . . . Orders of the Commission are entitled to great weight and can be set aside only if arbitrary or unreasonable or in clear violation of a rule of law. . . . The law does not authorize the court to put itself in the place of the qommission, try the question anew and substitute its judgment for that of the commission. . . . Where it is found that the order of the commission is without substantial foundation in the evidence it is the duty of the court to set it aside. . . . Tested by the canons regulating judicial power in cases of the sort now before us, the judgment of the Circuit court was erroneous. The court, exercising a special statutory jurisdiction, had no.authority to order that the former rate of $1.85 be restored after setting aside the order fixing the rate at $1.65. . . . The law was made to protect those served as well as those who serve.”

Obviously, no rule of law — no formula — can be stated that will apply to every case in determining whether one has an adequate remedy at law. It would be futile to attempt to formulate such a rule. Each case must be decided on the particular facts involved. While general pronouncements in opinions and statutes may be helpful in reaching a correct decision, they cannot be universally applied. So, in the instant case, although the Public Utilities Act points out a method to be followed where one is dissatisfied with the orders of the Commission, yet this method is not exclusive where to follow the provisions of the act would result in irreparable damage. In such cases, resort may be had to courts of equity. Oklahoma Gas Co. v. Russell, 261 U. S. 290; Prendergast v. New York Tel. Co., 262 U. S. 43; Pacific Tel. Co. v. Kuykendall, 265 U. S. 196.

In the Kuykendall case the Telephone Company filed a bill to enjoin the State Commission from interference with increases in telephone rates. An interlocutory injunction was refused, the bill dismissed and an appeal taken to the Supreme Court. The contention of the Telephone Company was that the rates were confiscatory. The statute of the State of Washington authorized the company to apply to the superior court for a review of the order to determine the reasonableness and lawfulness of the rates. Without having applied to the superior court for review the Telephone Company filed its bill alleging that the existing rates were confiscatory. The trial court held that the suit was prematurely brought because the company had failed to exhaust the remedies provided by the State statute, and a decree was entered dismissing the bill, which decree was reversed by the Supreme Court, where the Chief Justice, in speaking for the court, said (pp. 204-5): “Under such circumstances comity yields to constitutional right, and the fact that the procedure on appeal in the legislative fixing of rates has not been concluded will not prevent a federal court of equity from suspending the daily confiscation, if it finds the case to justify it.”

In the case at bar plaintiff contends that the enforcement of the rates in Schedule 17 confiscates its property daily, and unless and until it is permitted to charge higher rates, the confiscation will continue and that such loss can never be recovered. Whether the facts before us are sufficient to establish confiscation as contended by plaintiff, must be determined before a proper decision can be made, and it therefore follows that the circuit court has jurisdiction of the matter.

2. Defendants further contend that the in junctional order “had the effect of changing rather than maintaining the status quo and ivas therefore mandatory and should not have been issued except after full and complete hearing and final determination of the merits,” while plaintiff’s contention is that the injunction against the defendants “was preventative and not mandatory in character.” We do not stop to consider the several shades of distinction contended for by each side on this question, for the result brought about by the injunctional order is clear. By it the rates and charges in Schedule 17 are rendered ineffective and thereupon plaintiff is entitled to charge higher rates, provided they do not exceed those mentioned in Schedule 19, the amount of such excess to be retained by plaintiff or returned to its customers, as might be determined when the rates were finally fixed by the Commission. While as a general rule a preliminary, mandatory injunction will not be awarded, yet in a proper case the issuance of such an injunction may be the only effective remedy (Pokegama Sugar-Pine Lumber Co. v. Klamath River Lumber and Imp. Co., 86 Fed. 528) and as said in United Rys. of San Francisco v. Superior Court, 172 Cal. 80 (155 Pac. 463): “There is no magic in the phrase ‘maintaining the status quo ’ which transforms an injunction essentially prohibitive into an injunction essentially mandatory. ’ ’ Whether the injunction in the instant case was properly awarded must he determined upon a consideration of the facts.

3. A further point is made by defendants that the court erred in entering the order “without making any findings of fact or conclusions of law,” and. in support of this the case of Public Service Commission of Wis. v. Wis. Tel. Co., 289 U. S. 67, is cited. In that case a suit was brought in the Federal court to restrain the enforcement of an interlocutory order issued by the Commission of Wisconsin reducing telephone rates. The case was heard by three judges. The decree did not find any facts but merely stated that the order “would result in the confiscation of the property.” On appeal to the Supreme Court in an opinion delivered by the Chief Justice it was said (p. 71): “The result of the court’s inquiry into the issues and into the facts presented upon the interlocutory application, in order to satisfy itself as. to the gravity of complainant’s case and the probable consequences of unrestrained enforcement of the statute or order, should be set forth by the court in a statement of the facts and law constituting the grounds of its decision. While that decision is not on the merits and does not require the findings of fact and conclusions of law which would he appropriate upon final hearing; the court should make the findings of fact and conclusions of law that are appropriate to the interlocutory proceeding.

“That duty the court below failed to perform . . . and we are not called upon, unaided by opinion or findings, to search this voluminous record to find a basis for the court’s decree.” The decree was vacated and the cause remanded with directions to the trial court to make findings of fact and conclusions of law.

In the instant case the master in his report simply states that the court had jurisdiction of the subject matter and recommended that plaintiff’s motion for a temporary injunction be denied. In his decree the court found that it had jurisdiction of the subject matter and that plaintiff was entitled to a temporary injunction. Obviously the master’s report was of little or no assistance to the chancellor and the decree throws no light on the subject matter. The decree is not in accordance with the rule announced by the U. S. Supreme Court in the case last cited. But the law in this State does not require that there be findings of fact and conclusions of law in the decree. Par. 192, sec. 64, ch. 110, Ill. State Bar Stats. 1935, Civil Practice ; Eick v. Eick, 277 Ill. App. 329. Par. 3 of sec. 64 provides: “No special findings of fact or certificate

of evidence shall be necessary in any case in equity to support the decree.” And prior to the going into effect of sec. 64 a decree was not required to contain findings of fact and conclusions of law where the evi-, dence upon which the decree was rendered was preserved in the record. Central Trust Co. v. McGurn, 257 Ill. App. 45. And since the evidence, viz., the complaint, answer and affidavits upon which the chancellor acted, are in the record before us, the requirements of the law are satisfied, though the master and chancellor might have thrown more light on the subject matter had there been proper findings of fact and conclusions of law.

4. We now come to the merits of the controversy. Defendants contend that plaintiff failed to establish that the rates and charges specified in Schedule 17 resulted in confiscation, and therefore the court should not have awarded the injunction.

In Grand Trunk Ry. Co. v. Mich. Ry. Commission, 231 U. S. 457, it was held that a public utility is entitled to demand a rate which would yield a fair return on the value of the property used by it for public convenience, and that the value of such property is to be determined as of the time when the inquiry is made. Utilities Comm. v. Springfield Gas Co., 291 Ill. 209.

Counsel for plaintiff say in their brief that plaintiff’s “theory is that the value of its physical property is fairly measured by the present cost of reproduction less depreciation, ’ ’ that the present value so measured is $156,037,952, which is made up of three items: (1) the present value of its physical property, $130,703,867; (2) working capital, $10,334,085; and (3) “going value inherent in its established business and organization,” $15,000,000; that it is plaintiff’s position that it is entitled to earn upon its value not less than 7 per cent or $10,920,000, and that its net earnings for the year 1935 were only 3 per cent or $4,735,817, and its estimated net earnings for the year 1936 were 3.1 per cent or $4,892,370. Counsel further say that if the annual charges for depreciation were computed upon the basis of the original cost of the property, as required by the “Classification of Accounts prescribed by the Commission,” the net earnings for 1935 and 1936 would be but approximately 2.8 per cent upon the value of its property.

On the other hand, defendants’ position is that the present value of plaintiff’s property is not more than $120,000,000 and that the Commission’s order of August 21, 1936, denying plaintiff an immediate increase in rates, “used as a tentative rate base the original cost depreciated plus working capital”; that plaintiff’s valuation of the property at $156,000,000 was based on an estimate made by Sloan as to reproduction cost depreciated; that this method is erroneous in excluding “original cost new and depreciated as a factor in fair value”; that “the Company has violated the principle that original cost must be given due consideration in the determination of fair value of utility property for rate-making purposes”; that Sloan’s appraisal included general overhead expenses of $19,966,416; and according to an affidavit this was substantially $7,000,000 excessive.

Defendants further point out other items that were included by plaintiff in this valuation of $156,000,000, which are shown by affidavits filed on behalf of defendants to be excessive; that Sloan’s appraisal includes a considerable amount of property that is not used nor useful in rendering gas service; that excluding this property would justify an elimination of $4,500,000 from plaintiff’s valuation; that the item $10,334,085, included in plaintiff’s valuation as “working capital” should not exceed $7,500,000, as shown by the affidavit of Dittmer; that the item of $15,000,000 for “going value,” included in plaintiff’s valuation of its property, is not supported by any evidence except a statement of one of plaintiff’s officers; that this item is nearly 10 per cent of plaintiff’s claimed value, is speculative, and cannot be considered in determining whether plaintiff’s property is being confiscated.

Plaintiff’s position is that the valuation of $156,000,000 is justified by the evidence in the record; that Sloan was a consulting engineer of more than thirty years experience and had been retained by many municipalities and commissions in the United States and Canada, as well as by private companies; that he had some knowledge of plaintiff’s property, having assisted in making an inventory of it some twenty years ago; that in making the appraisal he worked more than eighteen months; that in valuing the company’s land he adopted the appraisal made by three competent real estate men in Chicago; that such value, apart from structures, was $9,230,557; that he also adopted appraisal figures of plaintiff’s buildings amounting to $1,106,950, being the estimated cost of reproduction, and that the value of such buildings depreciated was $929,405; that these figures were prepared by a well qualified architectural firm of Chicago and were incorporated in Sloan’s finding.

Counsel for plaintiff further say that plaintiff’s property was in part built by plaintiff and in part acquired through mergers and leases from 12 predecessor companies; that Stuart J. Barrett, assistant to plaintiff’s vice president in charge of accounts, prepared an inventory of plaintiff’s property showing original cost as of January 1, 1936, incurred by plaintiff and its predecessor companies, covering a period of more than 80 years, to be $115,752,858, of which sum $4,556,121 was the cost of land and $111,196,737, cost of physical, structures and facilities other than land; that this property was the same property assessed by Sloan; that this is all of plaintiff’s property that is used and useful in its business of supplying gas as a public utility. Counsel also point out other affidavits, all tending to show that the property had a value of $156,000,000. Much more is said on this subject, but we think it would serve no useful purpose to analyze it further.

San Diego Land and Town Co. v. Nat. City, 174 U. S. 739, was a proceeding to fix rates that should be charged and collected for water furnished. The court there said (p. 758): “We are dealing here with an ordinance fixing rates or compensation to he collected within a given year for the use of water supplied to a city and its inhabitants.” (p. 759'): “The only issue properly to be determined by a final decree in this cause is whether the ordinance in question, fixing rates for water supplied for use within the city, is to be stricken down as confiscatory by its necessary operation, and therefore in violation of the Constitution of the United States.” The court there also said (p. 754): “But it should also be remembered that the judiciary ought not to interfere with the collection of rates established under legislative sanction unless they are so plainly and palpably unreasonable as to make their enforcement equivalent to the taking of property for public use without such compensation as under all the circumstances is just both to the owner and to the public; that is, judicial interference should never occur unless the case presents, clearly and beyond all doubt, such a flagrant attack upon the rights of property under the guise of regulations as to compel the court to say that the rates prescribed will necessarily have the effect to deny just compensation for private property taken for the public use.”

Grand Trunh Ry. Co. v. Mich. R. R. Commission, 231 U. S. 457, was an appeal from a decree by three judges denying a motion for an interlocutory injunction against an order of the Railroad Commission. The court said (p. 465): “And, as we have seen, the order of the Commission was suspensory only of the tariff of the appellants, not a final determination against it or of the conditions which might or might not justify it. It is too late in the day to question the competency of a State to create a commission and to give it the power of regulating railroads and necessarily of investigating the conditions upon which regulation may be directed. If a judicial interference is sought with the exercise of such power, it must be clearly shown to have been transcended, not left as a conclusion from the balancing of conflicting affidavits, or even, it may be, as held by the District Court, on ex parte affidavits. Courts are reluctant to interfere with the laws of a State or with the tribunals constituted to enforce them. Doubts will not be resolved against the law, nor the decision of its tribunals prevented or anticipated unless the necessity for either be demonstrated.”

In Wisconsin-Minnesota Light & P. Co. v. R. R. Commission, 267 Fed. 711, while the commission was engaged in investigation of the utility company’s application for increase of rates, it filed suit seeking the right to increase its rates and enjoin the enforcement of the rates then in force on the ground that they were confiscatory. The court there said (p. 722): “The pleadings as they now stand, and the discussion by counsel upon argument, preclude the thought that any fact or facts could be seized upon by the court as sufficiently free from doubt and as sufficient basis in equity to justify the requisite preliminary conclusion. . . . The court could not with propriety award preliminary relief.”

In Cumberland T. & T. Co. v. R. R. and Public Util. Commission, 287 Fed. 406, a bill was filed against the commission to enjoin the enforcement of orders of the commission in reference to the maintenance of existing telephone rates and for an increase of rates. The injunction was asked before the completion of the hearing before the commission, but was denied. The verified bill there alleged that the rates were inadequate to yield a reasonable return, (p. 409): “that since January 1, 1920, its business has been conducted at an actual loss; that said existing rates are confiscatory and in violation of the Fourteenth Amendment to the Constitution of the United States.” The motion for an interlocutory injunction was heard upon the pleadings, affidavits and counter affidavits, including some documentary evidence. The court there said that although the hearing before the commission had not been completed (pp. 416-17): “there is strong authority that the utility, upon a showing that such reduced rates are confiscatory, ifiay be granted an injunction, restraining, upon proper refunding bond, the enforcement of such reduced rates pending the continuance of the rate-making process.”

Since the instant case was heard on the pleadings and affidavits, we are in as good position to determine the truth of the matter in controversy as were the master and the chancellor. And bearing in mind that under the law the court should not interfere while the commission, to whom alone is delegated the power to fix rates and charges, is investigating the matter, “unless the case presents clearly and beyond a doubt” a flagrant case of confiscation and that such a conclusion should not be arrived at “from the balancing of conflicting affidavits,” we think the injunction should not have been awarded.

On plaintiff’s own showing, it is now making an annual net profit of more than 3 per cent on its own estimated value, and it further appears from plaintiff’s figures that its profits are increasing. Courts take judicial notice of the great depression during recent years. Straus v. Chicago T. & T. Co., 273 Ill. App. 63; Atchison, T. & S. F. Ry. Co. v. U. S., 284 U. S. 248. It is also common knowledge that times are much improved over a few years ago and that the trend of business is upward. And since no contention is made that the Commissioners were unreasonably delaying the hearing, and also bearing in mind that public officials are presumed to perform their duties expedítiously, we think the chancellor was in error in entering the decree for a temporary injunction.

The decree of the circuit court of Cook county is reversed.

Decree reversed.

Hatchett, P. J., and HcSurely, J., concur.