text:
    The People of the State of Illinois ex rel. Ernest Palmer, Appellant, v. Acme Plate Glass Mutual Insurance Company, Appellee.
    Gen. No. 39,338.

      Opinion filed November 10, 1937.
    Otto Keener, Attorney General, for appellants; Wm. O. Clausen and John B. Harris, Assistants Attorney General, of counsel.
    Bell, Boyd & Marshall and Crowe, Gorman, Sheridan, Mulder & Wesselink, both of Chicago, for appellee; David A. Watts and Louis H. Geiman, both of Chicago, of counsel.
   Mr. Presiding Justice Hebel

delivered the opinion of the court.

This is an appeal by the plaintiff from an order entered in the circuit court of Cook county on November 4, 1936, which the plaintiff contends the court was without jurisdiction to enter, and which, in effect, vacates and sets aside a final decree entered December 3, 1934, directing the liquidation of the defendant insurance company.

From the facts as they appear in the briefs, it appears that on November 20, 1934, the plaintiff filed a petition for liquidation and dissolution of the defendant company. A.n order was issued by the court against the Acme Plate Class Mutual Insurance Company to show cause why the court should not find the existence of sufficient cause for the appointment of a receiver to liquidate the affairs of this corporation. The company filed an answer and the matter came on for a hearing, and on December 3, 1934, a decree was entered by the .court in which various findings of fact appear with respect to the manner in which the affairs of the company had been operated, including findings of mismanagement, misrepresentation, fraud, etc., together with its insolvency, and the court further found that sufficient cause existed for the appointment of a receiver to liquidate its affairs.

On December 4, 1934, Ernest Palmer, director of insurance, designated and appointed one H. B. Hershey as receiver, who duly qualified by giving his bond, with surety thereon, which was duly approved by the circuit court on December 5, 1934. Subsequently, the receiver proceeded with the liquidation of the affairs of the company. On December 21, 1934, an order was entered fixing the time and procedure for filing claims. On this date a further order was entered for leave to sell furniture and fixtures, also an order granting the receiver leave to file an inventory of the assets of this defendant corporation. Subsequent to the entry of these orders a further order was entered on May 23, 1935, granting the receiver leave to foreclose a certain real estate mortgage held by this corporation, and on the same date a further order was entered granting the receiver leave to foreclose another mortgage securing notes held by the defendant corporation.

The first current report and account of the receiver was filed on July 20, 1935, and approved by the court, and on March 5, 1936, the receiver’s second report and account was approved. On April 24, 1936, an order was entered authorizing the receiver to sell a certain mortgage securing notes that were held by the defendant company. An order was entered on June 24, 1936, granting the receiver leave to accept a refunding bond and execute refunding agreements.

On the 13th day of May, 1936, a petition was filed by the defendant company for an order vacating the decree of liquidation entered by the court on December 3, 1934, on the ground that the company was now solvent, and there was no further cause to liquidate the business of the company. Answers were filed to this petition by the receiver as well as by the plaintiff, and a reference was made to a master in chancery, who filed his report to the effect that the company had now obtained sufficient releases of claims to make the company solvent and recommending that an order be entered dismissing the receiver and reinstating the company.

Objections were filed to the master’s report and overruled and an order entered by the court allowing the objections to stand as exceptions. A hearing was had before the court, and upon consideration of the questions, the court regarded the releases of claims insufficient and re-referred the matter to a master to consider the obtaining of new releases and certain cash to be turned over to the company to make it solvent.

The master upon filing his report on this re-reference found that by reason of the new releases of claims obtained and the new cash to be turned over to the company it was solvent and that the receiver should be dismissed and the company reinstated and relicensed to do an insurance business in the State of Illinois. Objections filed to the report and overruled by the master were, by order of court, allowed to stand as exceptions. The court on a hearing of these exceptions and the supplemental report of the master, entered an order finding it had jurisdiction to vacate or modify the decree of December 3,1934, and that the defendant company was solvent, and ordered that the receiver be dismissed and that he file a final report and account and turn over and deliver all records and assets to the treasurer of the company; that the liquidation proceedings be terminated and that the company be authorized to re-engage in business, and directed that the director of insurance of the State of Illinois issue a license to the defendant company to resume business within the power granted to this company.

The question presented to this court is whether the decree entered on December 3,1934, was a final decree, directing the liquidation of the company, and being final the court was without jurisdiction to entertain the petition of May 13, 1936, and to enter the order of November 4, 1936, in effect vacating and setting aside the decree of December 3, 1934.

The complaint in this case was filed pursuant to the provisions of “An Act in relation to delinquent insurance companies, associations and societies,” Ill. State Bar Stats. 1935, ch. 73, ft 105 (1); Jones Ill. Stats. Ann. 66.067, and is based on sec. 2 of the above act, which provides that whenever certain conditions set forth therein exist, the director of insurance shall report the same to the attorney general, whose duty it shall be to apply, upon relation of the director of insurance, in the name of the people, to the circuit court of the county in which the principal place of business of such company in this State is located, for an order directing such company, upon such notice as the circuit court may prescribe, to show cause why a receiver should not be appointed to take possession of the property of the company and conduct its business, and for such other relief as the nature of the case and the interests of the creditors, stockholders and public may require, and such procedure having been followed, the decree of December 3, 1934, was entered.

This decree finds that during the month of September, 1933, the director of insurance caused an examination to be made of the affairs of the Acme Plate Class Mutual Insurance Company and the examination disclosed that the liabilities exceed the assets by $2,342.26. A subsequent examination was made by the department of insurance as of December 31, 1933, which disclosed that a deficiency still existed. The decree also finds that on or about May 15,1934, interests in control of the Acme Plate Class Mutual Insurance Company transferred control to interests associated with the Preferred Investments, Inc., and it was represented that the Acme Plate Class Mutual Insurance Company would be rehabilitated by surplus contributions and by reinsuring the company’s April, 1934, business in force.

The decree in words provides: “It was thereafter represented by the officers of the company that a reinsurance had been effected with the Sun Indemnity and the Union Insurance Company so as to make good the impairment. The officers of the company not only prepared the bordereau of the reinsurance of the Acme Plate Class Mutual Insurance Company, but recorded transactions of reinsurance on the books of the Acme Plate Class Mutual Insurance Company, although there had been no reinsurance effected and the general agent for the reinsuring companies who, with the Secretary of the Acme Plate Class Mutual Insurance Company, presented the plan for such reinsurance to representatives of the Department of Insurance for their approval, well knew that neither the Sun Indemnity nor the Union Insurance Company would reinsure thg business, but it was so misrepresented for the purpose of misleading the Department of Insurance so the Acme Plate Class Mutual Insurance Company could still continue in business, although its liabilities still exceeded its assets.”

The court further found in its decree that after an examination made on behalf of the Acme Plate Glass Mutual Insurance Company of its affairs and an .examination by the director of insurance such examinations indicated a deficit and default, so that its liabilities exceeded its assets, and the court entered the order that a receiver be appointed with bond as therein provided, with power to act until the final liquidation and a report of this corporation be had and submitted to the court for approval. The decree finds that it was necessary to liquidate the affairs of the company to satisfy the claims, which exceeded the assets of the company. This is clearly the purpose of the provisions of the Insurance Act. Section 4 of the act, Ill. State Bar Stats. 1935, ch. 73, H 105(4); Jones Ill. Stats. Ann. 66.070, provides that upon a hearing the court shall order liquidation of the business of the company which shall be under the direction of the receiver, and the receiver is vested by operation of law with title to all of the property of the company as of the date of the order directing liquidation, and the filing for record of such order in the office of the recorder of deeds in any county of this State shall impart the same notice that a deed, bill of sale or other evidence of title duly filed for record by such company would have imparted.

In this case the court found sufficient facts in its decree, and apparently there was no objection to it by the defendant company, for it made no move for the purpose of calling to the attention of the court that it was in a solvent condition and clearly able to meet its liabilities, and not until November 4,1936, about a year and a half after the filing of the decree of December 3, 1934, did the court enter an order upon the petition to vacate filed by the defendant company approving the master’s report filed in the cause and make this further finding: . . . that in this proceeding by virtue of the Statute of the State of Illinois, it has jurisdiction of determining, during the pendency of this liquidation proceeding, the question of the solvency or insolvency of the Acme Plate Class Mutual Insurance Company, a corporation, and upon such determination to vacate or modify any previous order of this Court.

“And the Court finds that the Acme Plate Class Mutual Insurance Company, a corporation, is now solvent.” And then the court by its order dismissed the receiver theretofore appointed and directed that he file a final report and account within 15 days, and by this order we find that the cause was terminated and the receiver was to turn over the property to the company, which was directed to engage in the “performance of the purposes provided for in its charter; and that it pay to the State of Illinois, as provided by statute, the statutory license fee and corporation fees for the years 1935 and 1936, and that upon said payment a license issue to the said Acme Plate Class Mutual Insurance Company, a corporation, to engage in the insurance business as provided for in its charter. ’ ’

The question to be determined is whether the decree of December 3,1934, is a final one. The purpose of the statute in proceedings of this kind is, by its provisions, to place in the hands of the director of insurance of the State of Illinois, when he finds that an insurance company is not complying with the provisions of the statute, the power of calling such violation to the attention of the court, and if violations have taken place, the court will enter a decree of liquidation and will approve the bond of the receiver who has been designated and approved at the suggestion of the representative of the State, who is to liquidate the assets of the company for the purpose of satisfying claims. By liquidation is meant that the receiver is to settle accounts and distribute the assets of the company for the purpose of winding up its affairs as a business institution. Upon this ground, the decree of the court is final. The adjustment of accounts, disposition of assets and the winding up of the business of this corporation is final in its nature, and of course the court would be without jurisdiction, after a period of 30 days had elapsed between the time the director of insurance of the State of Illinois had acted and the receiver was appointed, to liquidate the affairs of the company.

In the case of Chicago Life Ins. Co. v. Auditor of Public Accounts, 100 Ill. 478, which was a proceeding to wind up the affairs of the defendant company and to put it in liquidation, as is the purpose of this proceeding, the court entered a decree from which the insurance company by writ of error called upon the Supreme Court to consider. It is apparent from a reading of the opinion, which is very short, that there was a preliminary injunction, which was made a perpetual one, the appointment of a receiver, and orders entered directing that steps be taken to wind up the corporation, and adjust its affairs. A motion was made in the Supreme Court to dismiss the writ of error as it was not proper for the court to consider it because the decree was not the final decree. The court said in passing upon this motion: 1 ‘ The nature and character of the decree, as we conceive and the majority of the court think, settles the ultimate rights of the parties. It determines that the corporation is in such condition as to be liable to that proceeding. The remaining proceedings to be had, if this decree stands, will simply be in enforcement of this decree.” This expression is an apt one and applies to the decree entered here. As we have stated before, the purpose of the decree is to wind up the affairs of the company, in other words, to liquidate, which, as herein indicated, is to wind up the affairs and adjust the accounts of the company, so that whatever is done after the final decree, will “simply be in enforcement of this decree. ’ ’

In the case of People ex rel. Lowe v. Old Colony Life Ins. Co., 270 Ill. App. 403, the court used this language:

“The court in passing upon the question of liquidation of the defendant company, entered a decree on November 7,1932, upon notice to all parties in interest and after an examination of the report of the receivers upon the condition of the defendant and for instruction as to the further administration and consideration of the evidence presented, approved the réceivers ’ report, and the court in its finding found that the condition of the business and affairs of the Old Colony Life Insurance Company was such that in the interests of its policyholders, creditors, stockholders and the public, the business and affairs of said company should be liquidated by the receivers, and decreed that the property and assets of the Old Colony Life Insurance Company be liquidated, and that the receivers proceed to liquidate the same under orders to be entered by the court from time to time, and that the orders and decrees heretofore entered be and the same are modified accordingly. The court further decreed that the receivers may at any time apply for orders to sell or dispose of the assets of the company. Therefore we must necessarily conclude that the only question remaining is that of the accounting between the parties. The essential and primary object of this proceeding is the liquidation of the assets of the defendant, and the decree is final upon that question. Chicago Life Ins. Co. v. Auditor of Public Accounts, 100 Ill. 478. Any subsequent proceedings in the disposition of this litigation will simply be to adjust the rights of the parties in and to the assets of the company, and to settle the liquidation of the company’s business.” According to these authorities it would seem that the order of liquidation is final.

But one question remains, and that is whether the court is empowered by any of the provisions of the act above cited to consider the question of reorganization of the company based upon the order that there is sufficient in the petition to justify the order of the court.

Having reached the conclusion that the decree entered on December 3,1934, was a final one, we will now consider whether under the provisions of the statute in question the court had jurisdiction to enter the order appealed from.

The only section which provides for the removal of a "receiver and for the granting to the company the right to resume possession of its property and the conduct of its insurance business appears in sec. 3, ch. 73, Ill. State Bar Stats. 1935, 11105(3); Jones Ill. Stats. Ann. 66.069. This section provides the court may find that sufficient cause exists for the appointment of a receiver to conduct the business of the company, and, where the court has appointed a receiver for that purpose, the same section further provides that application thereafter may be made to the court either by the director of insurance or the company to find that the cause for such order for the appointment of a receiver has been removed and that the company can properly resume possession of its property and the conduct of its business. This is . the only provision bearing upon the question in the several sections of the act. In sec. 4 there is no such provision. Sec. 4 provides that “after a full hearing, the court shall order the liquidation of the business of such company, such liquidation shall be made by and under the direction of such receiver,” and it is further provided in this section that “The rights and liabilities of any such company, and of its creditors, policyholders, stockholders and members, and of all other persons interested in its assets, shall, unless otherwise directed by the court, be fixed as of the date of the "entry of the order directing the liquidation of such company.”

The action provided for is controlled by the sections of this act, and unless there is a provision providing for the procedure followed, the court is without jurisdiction to entertain or enter an order such as was entered in this case. The purpose of this act is for the benefit and protection of the public against a willful default or misconduct of the company, and what was said by the Supreme Court in the case of Chicago Life Ins. Co. v. Auditor of Public Accounts, 101 Ill. 82, is pertinent upon the questions in the case before us, that is: “The point finally made is, that all there was of wrong in the management and condition of the company is to be laid to the charge of the secretary of the company alone, — that all the other officers and agents of the company had acted in good faith, and were guiltless of any wrongdoing, and hence it should be taken that there was no willful default on the part of the company, and it should not be subjected to this proceeding. The company could act only through its officers and agents, and should be held responsible for the acts of, and mode of management by, its secretary, and the result therefrom. It is the management and condition of the company, rendering its continuance in business hazardous to the public, which entitles to this proceeding, without regard to what one or how many of the company’s officers participated in the mismanagement or the bringing about of such condition. The public should have the protection which the law has provided against the unsafe doing of business by insurance companies. The hazard to the public is the same whether one or more of the company’s officers were concerned in producing it, and whether or not it resulted from the willful default or misconduct of the company.”

We are unable to concur in the views of the court expressed in its order that the company is now solvent, and that by reason of the waiver of many of the creditors of the company and the additional cash provided, the company becomes solvent.

The fact is that the company failed to comply with the provisions of the Insurance Act, and not alone was it insolvent at the time the receiver was appointed, but there was gross misrepresentation of fact which fully justified the court in acting as it did in entering the decree of December 3, 1934, and, from the facts in the record, we are unable to concur in the order entered by the court permitting resumption of the insurance business by the defendant company.

There is another question which might be considered, •and that is as to the order which directs that the director of insurance issue a license to this company to do an insurance business. The issuance of a license to do business is vested in the director of insurance and it is for him to exercise a discretion as to whether this insurance company is to resume the business in which it was engaged at the time the receiver was appointed and depends upon whether in applying for such license the company has complied with the law, and unless this is so, it would be proper for the director of insurance to refuse the license, and the order directing the insurance director to issue such license without considering whether it comes within the terms provided by law is erroneous and should not have been entered.

The decree of November 4, 1936, is reveresd.

Reversed.

Denis E. Sullivan and Hall, JJ., concur.

       See Callaghan’s Illinois Digest, .same topic and section number.


source: Caselaw Access Project

author: Mr. Presiding Justice Hebel

license: Public Domain

text:
    Blakeslee’s Storage Warehouses, Inc. et al., Plaintiffs, v. City of Chicago, Appellant.
    Gen. No. 39,382.
    Opinion filed November 10, 1937.
    Rehearing denied November 22, 1937.
    Barnet Hodes, Corporation Counsel, for appellant; Joseph F. Grossman, First Assistant and Arthur A. Sullivan and J. Herzl Segal, Assistant Corporation Counsel, of counsel.
    Aaron Soble and William Feldman, both of Chicago, for appellee; Max Chill, of Chicago, of counsel.
   Mr. Presiding Justice Hebel

delivered the opinion of the court.

The defendant appeals from a judgment entered by the court for the sum of $1,909.24, based upon the plaintiff’s complaint wherein it is alleged that on February 16, 1926, an award was entered in the sum of $58,152, in the circuit court of Cook county in a condemnation proceeding instituted under the Local Improvements Act, to take certain property for the purpose of widening or opening streets.

The complaint alleges that the award was the amount of just compensation allowed for taking the parcel of land involved; that interest is due on this award from the date of rendition, February 16, 1926, to the date of payment, September 28, 1927, amounting to $4,617.70, and further interest upon the amount of that interest from the date of payment of the principal to the date of trial.

To this allegation the defendant replied that the amount of the award was $58,152, but that the assessment against the remainder of the property for benefits resulting thereto amounted to $3,598; that the difference between these amounts is $54,554, the amount which the defendant was obliged to pay, and if interest were allowable under the law, it would be allowed only on the net award of $54,554.

Upon the trial the plaintiff conceded the defendant’s contention was good and waived any claim for interest upon the $3,598, being the amount assessed against the remainder of the land for benefits.

The facts as they appear in the record are that on February 16, 1926, the judgment in question was entered in the circuit court of Cook county in a proceeding to condemn certain property for the purpose of widening South Ashland avenue in the city of Chicago. Judgment was entered in the sum of $58,152, in favor of Lola Menn, plaintiff’s intestate. At that time there was an assessment against the remainder of the property for benefits in the sum of $3,598, leaving a net award of $54,554. This amount was paid on October 28, 1926.

The plaintiff offered evidence that the payment of this amount was received under protest and that interest was demanded at the time of payment. From the record it appears to be a controverted question of fact as to whether the plaintiff’s intestate protested at the time she accepted the net amount of the award of $54,554. Payment was made by a voucher of the city of Chicago in the sum of $58,152 on October 28, 1926, which recited that the sum was “in full payment for said condemned land and in full of all claims for damages to same by reason of said proceedings. ’ ’ Receipt of this amount was signed by Lola Menn on the back of the voucher.

The amount received was made up of the net award of $54,554, and the sum of $3,598, the amount covered by an assessment for benefits, making the total award $58,152. Therefore the question arises upon what is claimed to be the unpaid interest on the sum of $54,554, from the date of the rendition of the judgment February 16, 1926, to date of payment, October 28, 1926. The judgment in this case for the interest is $1,909.24, which is agreed to be the correct amount of interest upon $54,554, from February 16, 1926 to October 28, 1926. The plaintiff claims further interest upon the amount of $1,909.24, from October 28, 1926, to the date of the trial, in which the court refused to allow interest on interest, and the question of the allowance of this interest is the subject of cross appeal by the plaintiff.

In a discussion of the subject before this court, the Supreme Court filed opinions in two cases, one entitled Blaine v. City of Chicago, 366 Ill. 341, and the other, Kamberos v. City of Chicago, 366 Ill. 471, and from what is said in these cases, the question is somewhat simplified and relates largely to the decision of the court upon the construction of the Interest Act.

In the case of Blaine v. City of Chicago, supra, the court held that a final judgment of compensation for property taken does not differ in effect from any other judgment, and the property owner is entitled to interest from the date of judgment until the same is paid regardless of the time of talcing possession, and it cannot be contended that allowing interest is allowing additional compensation and violates sec. 13 of art. 2 of the constitution making the jury the exclusive tribunal to ascertain just compensation.

In the case of Kamberos v. City of Chicago, supra, it was held by the court that interest is allowable on condemnation judgments under the Local Improvements Act from the date of the same, and it cannot be contended that no interest can be allowed until the condemnor actually takes possession, but under sec. 16, where there is a special assessment for benefits, interest must be computed on the net award to the property owner from the date the judgment was entered.

There is a question as to whether the suit filed by the plaintiff was barred by the statute of limitations. Sec. 15 of the Limitations Act, Ill. State Bar Stats. 1935, ch. 83, U16; Jones Ill. Stats. Ann. 107.275, provides: “Actions on unwritten contracts, expressed or implied, or on awards of arbitration, or to recover damages for an injury done to property, real or personal, or to recover the possession of personal property or damages for the detention or conversion thereof, and all civil actions not otherwise provided for, shall be commenced within five years next after the cause of action accrued. ’ ’

The original judgment in the instant case was entered on February 16, 1926. The judgment was paid on October 28, 1926, and this suit was not instituted until December 5,1934, more than eight years after the original judgment was entered and more than eight years after the judgment was paid. It is apparent that the amount paid by the city of Chicago was to be entirely applied to pay the amount of the judgment, and such being the fact, the judgment does not now exist, and the interest is that which accrued before the judgment was paid. Section 15 of the Act of Limitations would apply, and the claim for interest is covered by the prolusion of the Act providing that “all civil actions not otherwise provided for, shall be commenced within five years next after the cause of action accrued. ’ ’

What was left unpaid according to the contention of the plaintiff was accrued interest at the time payment was received for the amount of the judgment. Therefore, it would seem but reasonable to hold that this separate action for accrued interest would be controlled by the statutory provision within which an action could be maintained, and as we have indicated, we think the plaintiff in this case has not exercised his right to maintain a suit for recovery of the accrued interest within the statute of limitations to which we have called attention.

The plaintiff contends that the action is controlled by If 27, sec. 3 of the statute of limitations, Ill. State Bar Stats. 1935, ch. 83; Jones Ill. Stats. Ann. 107.286, which provides: “Judgments in any court of record in this State may be revived by scire facias, or by ordinary civil action in lieu of scire facias as provided by the Civil Practice Act, and all existing and future amendments thereto, or a civil action may be brought thereon within twenty years next after the date of such judgment and not after; and the provisions of the foregoing section shall apply also to this section.” And urges that this being in the nature of a claim based upon a judgment, sec. 3 of the statute would apply. However, we are controlled by what was said by the Supreme Court in the case of Bank of Eau Claire v. Reed, 232 Ill. 238, on the question as to the plaintiff’s right to recover under the provision of this section, namely: “The only question to be determined in a proceeding by scire facias to revive a judgment is whether the plaintiff has a right, as against the defendant, to have the judgment executed. That rule was stated in Smith v. Stevens, 133 Ill. 183, and in connection with the rule the court quoted from Dowling v. McGregor, 91 Pa. St. 410, as follows: ‘The only defense in the trial of the scire facias on a judgment is a denial of the existence of the judgment or proof of a subsequent satisfaction or discharge thereof. ’ The defenses available, and which go to the plaintiff’s right, as against the defendant, to have the judgment executed, are, that there is no such record, or that the judgment has been paid or released, or there has been .an accord and satisfaction.”

We have indicated in our opinion, the judgment in question was satisfied when plaintiff’s intestate accepted the check for the amount due. The amount of $58,152, was receipted for and the receipt was signed by Lola Menn on the back of the voucher at the time of its receipt. This sum was the full amount due on the judgment, and the only question is as to whether the interest, which was not received, would be controlled by sec. 3 of this act. The fact is that there is no judgment in force for the amount, and the plaintiff’s intestate having accepted the amount of the judgment, the only issue here is whether plaintiff is entitled to the interest claimed. According to our view of sec. 3 and what the Supreme Court has said would have to be established by the plaintiff in the action to revive the judgment, we think the claim could not be maintained.

Having passed on all the questions that have been called to our attention, we are of the opinion that the plaintiff in this action cannot recover, and the judgment entered is reversed.

Judgment reversed.

Denis E. Sullivan and Hall, JJ., concur.


author: Mr. Justice Hall

text:
    Marion G. Wilson, Executrix of the Estate of William Garnett, Deceased, Appellant, v. Raymond E. Prochnow, Appellee.
    Gen. No. 39,361.
    Opinion filed November 10, 1937.
    Rehearing denied November 22, 1937.
    Thomas G. Vent, of Chicago, for appellant.
    Altheimer, Mayer, Woods & Smith and William F. Struckmann, both of Chicago, for appellee.
   Mr. Justice Hall

delivered the opinion of the court.

By this appeal Marion Gf. Wilson, executrix of the estate of William Garnett, deceased, seeks the reversal of an order of the circuit court of Cook county, entered on November 21, 1936, by which Raymond E. Prochnow was discharged from imprisonment in the county jail, where he had been detained under a decree and order of the circuit court of Cook county from the 14th day of May, 1934, for failure and refusal to account for and produce certain property of the estate, held by him. The decree and order of commitment were entered in the circuit court of Cook county after a hearing on an appeal from the probate court of Cook county, where the proceeding involved here was originally instituted. In the decree entered • in the cause it was found that Prochnow had appropriated to his own use various securities belonging to the estate of William Garnett, deceased, of the value of $30,282.61, which amount he was ordered and required to pay over and deliver to Marion G. Wilson, executrix of the estate of William Garnett, deceased, within 20 days of the.entry of the order and decree of May 24, 1932, and that in default thereof, Prochnow be committed to the county jail in and for the county of Cook and State of Illinois, until he should comply with the order and decree of the court. It was further ordered that jurisdiction of the cause and proceeding be expressly reserved “so that this order and decree may be made effective.”

On June 18,1932, a supplemental decree was entered in the cause by the circuit court of Cook county to the effect that Prochnow pay over and deliver to Marion G. Wilson, executrix of the estate of William Garnett, deceased, or to Thomas G. Vent, Esq., her counsel, the sum of $30,282.61; also, $2,000 par value of General Vending Corporation 10 Yr. Sec. Sinking Fund 6 per cent bonds due August 15, 1937, with August 15, 1930, and all subsequent interest coupons attached thereto, or in lieu thereof, the receipts or voting trust certificates issued therefor, if any there are, duly assigned to the petitioner; and $3,000, par value, of National Theatres Corporation First and Refunding Mortgage A 6% per cent bonds, comprising bonds Nos. 1576,1579 and 1580, with June 1,1930, and all subsequent interest coupons attached thereto, or in lieu thereof, the depositary certificate issued therefor, if any there is, duly assigned to petitioner, all within 20 days from and after the day and date thereof, or that, in default thereof, Raymond E. Proehnow be committed to the county jail in and for said county of Cook and State of Illinois, until he shall comply with the order and decree of the court, and that jurisdiction of the cause and proceeding be expressly reserved so that this order and decree might be made effective; that more than 20 days had elapsed since the entry of the final decree, and that the respondent, Raymond E. Prochnow, had failed to make the payments and to deliver the securities required of him in the decree, and had failed to comply with the provisions of the decree, either in whole or in part; that he had not presented or filed an appeal bond for the approval of the court wherewith to perfect an appeal from said final decree to the Supreme Court of the State of Illinois, as provided for in the decree, and that the said decree, order and judgment had, therefore, become final and absolute as against the respondent; that it be therefore ordered, adjudged and decreed that a body attachment or capias be forthwith issued to attach the body of the respondent, Raymond E. Proehnow; that a mittimus forthwith issue for Raymond E. Proehnow, and that he be committed to and confined to the county jail in the county of Cook and State of Illinois until he should comply with this final order and decree of the court, as by the statute, Ill. Rev. Stat. 1937, ch. 3, secs. 81 and 82; §§82 and 83; Jones Ill. Stats. Ann. 110.082 and 110.083, made and provided; that jurisdiction of the cause and proceeding be expressly reserved so that the said final order and decree and the supplemental decree might be made effective.

Thereafter, a petition in the nature of a writ of error coram nobis was filed by Prochnow in the circuit court of Cook county, seeking to set aside the decree and order referred to, which petition was ordered dismissed by the circuit court of Cook county. The order of dismissal was reviewed by this court and the Supreme Court and affirmed.

All the matters and things above referred to are reviewed in Wilson v. Prochnow, 284 Ill. App. 369. The subject matter of the proceeding before this court in the last mentioned case was a petition filed by Prochnow in the circuit court of Cook county on February 20, 1935, in which he recites the orders above referred to, and sets forth that he was at that time confined in the county jail of Cook county, and had been so confined since May 14,1934, that the petitioner at one time prior to the entry of the decrees and order aforesaid had been in the possession of said bonds, but that at the time of the entry of the order he was not in possession or control of them, and that they have not since that time been in his possession or control, nor had they been in the possession or control of any other person or persons for him; that he had no knowledge of the whereabouts of the bonds and he did not know who now claimed ownership thereof; that he was not then, nor since the entry of the decrees and order, in possession or control of them, either directly or indirectly, in his own hands or in the hands of any person or persons for him, nor in control of any assets of any kind belonging to the estate of said William Gar-nett, deceased; that he was unable to procure any funds on credit or otherwise with which he might be enabled to comply with the decrees and order of the court; and that he was unable to comply with said decrees and order. It is further stated that should he continue to be detained and imprisoned, he would not be able to earn any money and, therefore, so long as he should be detained and imprisoned, he would be unable to make any payment on account of the decrees or order entered against him. This petition further states that “unless your petitioner shall be ordered discharged from said detention and commitment, he will be kept in confinement during the rest of his natural life.” The prayer of the petition was that the decrees and order committing the petitioner to jail be vacated and that the commitment and attachment theretofore issued be withdrawn and the petitioner discharged from the custody of the sheriff of Cook county. To this petition a special demurrer was filed by Marion G. Wilson, executrix of the estate of William Garnett, deceased. The court entered an order sustaining the demurrer and dismissing the petition, and in such order found among other things, that “This court is without jurisdiction to set aside, vacate, modify or annul the decrees and orders entered herein at the May Term, A. D. 1932 of this court, or to grant the relief or any part or portion thereof as prayed for in said petition, and that said demurrer is well founded in point of law and should be sustained.” In that case, on appeal, this court reversed the circuit court, and in commenting on the reasons given by the circuit court for sustaining the demurrer, said: “On this point, we are unable to agree with the court’s finding. As already stated, the proceeding under sections 81 and 82 of the Administration of Estates Act is a summary proceeding, and is, brought for the sole purpose of compelling any person having property or effects belonging to the estate of a deceased person, to produce them, and to turn them over to the personal representative of the estate, in this case, the executrix of the estate of William Gar-nett, deceased. It necessarily follows that the court in attempting to exercise the powers given it by these sections of the act must retain full control over the matter for the purposes noted in the statute. The very language of the act in this regard indicates that this is true.”

Subsequently, Prochnow filed an amended petition in the circuit court, and the ground upon which he now seeks his discharge, as set forth in this petition, is that notwithstanding the admitted fact that he embezzled and appropriated to his own use a large amount of property belonging to the estate of William Garnett, deceased, and which he has failed and refused to turn over to the personal representative of the estate, the fact is that he is bankrupt, without funds, and is totally unable to comply with the order of the court. In his brief filed, it is admitted that the following facts were established by the orders and decrees of the circuit court, all of which have been affirmed on review: (1) That Prochnow converted to his own use certain assets of William Garnett, deceased. (2) That among the assets so converted were certain securities, the value of which, including interest, was ascertained by the circuit court at the time of the entry of the decree of May 24, 1932, to be $30,380.61. (3) That judgment was entered for this amount in favor of the executrix and against Prochnow, and execution ordered, and that such judgment remains fully unpaid. (4) That in addition to the assets so converted Prochnow has not accounted for certain bonds belonging to the Garnett estate. (5) That these bonds, at the time of the entry of the decree of May 24, 1932, were in Prochnow’s possession or control. (6) That Prochnow at the time he was committed to jail, had not paid the money judgment and had not restored the bonds.

As stated, in its amended and supplemental decree under which Prochnow was committed, the court found that Prochnow had received from the decedent and appropriated to Ms personal use, a number of bonds issued by various industrial institutions, naming them, wMch in value at the time of the entry of the decree, together with accrued interest thereon, amounted to the sum wMch the court found due the estate of the decedent, and which bonds, or the proceeds thereof, Prochnow had converted and failed to account for. In the hearing before the court, from whose order tMs appeal is being prosecuted, Prochnow was asked tMs question by Ms attorney: “Q. Directing your attention to the decree that was entered by Judge Taylor and to the finding of that decree that certain assets belonging to William G-arnett were converted by you— for your own use, when were these assets converted!” “A. Between 1925 and 1927.” He also testified to the effect that from 1925 to the time of the entry of the supplemental decree, he had no assets of any Mnd either in Ms possession, or under Ms control, or in the possession of anybody for him, whether belonging to the estate of William Garnett or belonging to the concern of wMch he had been a member, known as Raymond E. Prochnow & Company, or belonging to the witness, and that at the time of the examination, he had no assets of any Mnd or character. He also testified that he had no income from any source whatever. In tMs he was corroborated by Ms wife and some other witnesses.

The securities which Prochnow admits he appropriated to his own use are listed by the court in its decree. In the petition filed in the circuit court, wMch the court dismissed for lack of jurisdiction and which this court reversed, practically the same grounds were urged for the discharge of Prochnow as are now urged, and we reversed the order of the circuit court for the simple reason that that court possesses the machinery for determining with accuracy the truth of any statement that Prochnow might make as to just what disposition he made of these securities. The circuit court has the power through subpoena of witnesses and documents to determine the truth or falsity of his claims, and it was the duty of that court to exercise its full power in this regard. Prochnow has testified that he disposed of these securities. Whether this is true or not, can be very easily ascertained without relying on the testimony of a confessed embezzler. The very purpose of the Act involved is to compel persons of the character of Prochnow to disgorge, and every power possessed by that court should be exercised to its fullest extent before it should consider discharging him from custody.

We again call attention to sec. 82 of the Administration of Estates Act, Ill. State Bar Stats. 1935, ch. 3, TÍ 83 (page 57) ,• Jones Ill. Stats. Ann. 110.083, which recites that “if such person refuses to answer such proper interrogatories as may be propounded to him, or refuses to deliver up such property or effects, or in case the same has been converted, the proceeds or value thereof, upon a requisition being made for that purpose by an order of said court, such court may commit such person to jail until he shall comply with the order of the court therein.” (Italics ours.) His commitment to jail was.not for the purpose of punishment, but to coerce him into obeying the order of the court.

We also call attention to the fact that in addition to finding that Prochnow had converted certain securities, which at the time of the entry of the decree, were valued at the sum of $30,282.61, the court also found that at the time of the entry of the decree, he then had in his control certain bonds for which he had made no accounting. All of these bonds are necessarily listed some place. The record shows the names of the institutions which issued the bonds. Prochnow should be compelled to state to the court when and to whom he disposed of these bonds, and indicate what he did with the proceeds, so that the representative of the estate may have the opportunity to check up and ascertain whether or not he is telling the truth. A search of the record discloses that he has never made any such statement. He merely states that he converted them to his own use, that he has no funds, and that this should end the controversy. In spite of this statement, the record indicates that he apparently has had sufficient funds to employ able and eminent counsel to prepare and file costly records, briefs and abstracts in three different appeals in this court, three appeals in the Supreme Court of this State, and to conduct a series of extensive and expensive hearings and defenses in the probate, circuit and criminal courts in his effort to avoid an accounting and imprisonment. Before it is ordered that he be released, he should, at least, be compelled by the court to make a detailed statement, under oath, as above suggested.

The motion to dismiss the appeal is denied. The order appealed from is reversed and the cause is remanded with the direction that the court vacate the order releasing Prochnow from imprisonment, and order his recommitment to the county jail under the terms of the orders of the circuit court herein referred to.

Reversed and remanded with directions.

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


text:
    Anna Wiener, Appellant, v. The Pennsylvania Railroad Company, Appellee.
    Gen. No. 39,370.
    Opinion filed November 10, 1937.
    David J. Bentall, of Chicago, for appellant; Willard Hedlund, of Chicago, of counsel.
    Theodore Schmidt, of Chicago, for appellee.
   Mr. Justice Hall

delivered the opinion of the court.

On September 24, 1936, plaintiff filed a complaint in the superior court of Cook county in which she alleges, in substance, that she owns and lives in certain property close to the point on Garfield boulevard, in Chicago, Illinois, where the defendant’s right-of-way crosses that boulevard; that prior to July, 1934, the defendant in routing and classifying freight cars assigned to its classification yards located at 49th and Wallace streets in Chicago for routing and classification purposes confined the switching operations that were incidental to said routing and classification to an area on the defendant’s right-of-way extending from a point approximately 1,500 feet north of the classification yards to a point 1,500 feet south of the classification yards; that in the doing of the railroad business of the defendant as conducted by it prior to July 13, 1934, on the right-of-way at and near the plaintiff’s house: The locomotives of the defendant did not throw off smoke, soot and cinders in such a manner and in such quantities as to penetrate into and cover the plaintiff’s house; the locomotives pulling the trains of the defendant did not cause the plaintiff’s house to vibrate and shake, did not cause the siding of the outside walls, the plastering and wallpaper on the inside walls, the plastering on the ceilings to crack and fall off; the noise of warning bells and the steam whistles on the locomotives of the defendant, the escape of steam from said locomotives did not annoy the plaintiff or keep the plaintiff and the tenants occupying her house from sleeping at night; there was no noisy bumping together of freight cars or the noisy squeaking of brakes to annoy the plaintiff and the tenants in her house and to keep them from sleeping at night; in the absence of vibration and shaking of the house the plaintiff and the tenants occupying her house were not in constant fear of injury from falling plaster; that in July, 1934, or thereabouts, the defendant changed its freight classification practices with reference to the routing and classification of said freight cars in that the switching operations incident to such routing and classification were not confined to the area on the defendant’s right-of-way that they were formerly confined; that the defendant in July, 1934, changed the purpose of its right-of-way, extending from a point approximately 1,500 feet south of the classification yards to a point approximately 2,000 feet to one-half mile south of G-arfield boulevard into a switching yard; consequently, locomotives pull along freight trains from the classification yard to a point approximately 2,000 feet south of Grarfield boulevard; that these locomotives violently push and pull these freight trains in a northerly direction, suddenly starting and suddenly stopping them; engaging in these new switching operations in this new area, these locomotives throw large quantities of smoke, soot and cinders on the plaintiff’s property, injuring it inside and out, and cause vibrations that shake her house violently, causing siding on the outside walls, the plastering on the inside walls and ceilings and the wallpaper on the walls to crack and fall off; that the falling plaster and the vibration kept the plaintiff and those who have occupied, or who occupy, the house with her in constant fear of injury; that the deafening noise from the new switching operations in the new switching area has kept plaintiff and the others who have occupied, or who occupy the house, from sleeping at night, and that as a result of the new switching operations her house has been greatly damaged in that its rental value has been destroyed; its value as a home for the plaintiff has been substantially impaired, and it has been all but rendered useless and valueless. Plaintiff claimed damages in the sum of $7,000. Defendant filed the following motion:

“The defendant, The Pennsylvania Railroad Company, a corporation, moves that the above-entitled action be dismissed, and for grounds of said motion says that the amended complaint is substantially insufficient in law in the following respects:

1. It fails to state a cause of action against the defendant.

2. It fails to show a breach by the defendant of any duty which it owed the plaintiff.

3. It fails to show that the defendant is using the portion of its right-of-way, as described in the amended complaint, for any purposes not within the scope of the defendant’s original acquisition of said right-of-way.

4. The alleged present use of said portion of the defendant’s right-of-way, as described in the amended complaint, is not, as a matter of law, inconsistent with or essentially different from the alleged former use.

5. The use of said portion of the defendant’s right-of-way, as described in the amended complaint, is not a new or additional use of said right-of-way for which the plaintiff is entitled to damages.

6. The alleged new use of said portion of the defendant’s right-of-way, as described in the plaintiff’s amended complaint, is a necessary and proper development and extension of the operation of the defendant’s railroad, and for any consequences thereof no damage has been caused the plaintiff for which she can recover in this suit.

7. The defendant, in making the alleged change in ' its freight classification practices with reference to the classification and routing of freight cars, as described in the plaintiff’s amended complaint, was and is operating in its public capacity, and is not liable in damages to the plaintiff for any consequences thereof.” The court allowed the motion of defendant and dismissed the petition. This is an appeal from that order.

In Chicago & E. I. R. Co. v. Loeb, 118 Ill. 203, an action on the case was brought by Adolph Loeb, against the Chicago and Eastern Illinois Railroad Company on June 9, 1880, in the superior court of Cook county, to recover damages sustained from the operation of defendant’s railroad, by throwing smoke, cinders and ashes npon plaintiff’s premises. Upon á trial by the court, without a jury, there was judgment for the plaintiff for $1,200, which was affirmed by the Appellate Court, and the defendant appealed further to the Supreme Court. In that case, the declaration averred that plaintiff was the owner of three lots in Chicago, with the buildings thereon which were used for dwellings, and that "defendant wrongfully and unjustly maintained and operated near plaintiff’s property, divers railway tracks and switches upon the street within 10 feet of the property; “that steam engines have passed and repassed along the property, and in doing so have unlawfully and unjustly caused to be thrown and deposited in and upon plaintiff’s property, large quantities of smoke, cinders, dust, soot, ashes, sparks of fire, and other substances, and in operating the same they generally disturbed and vibrated the buildings; that by reason of the close proximity to said premises, the defendant has constantly thrown and deposited upon plaintiff’s property, smoke, cinders, soot, dust and ashes and other substances, which greatly damaged the same, and depreciated the value of the property.” Issues were joined on pleas of the general issue and the statute of limitations, and a trial was had, resulting in a verdict and judgment for the plaintiff, from which an appeal was taken, which, as stated, ultimately reached the Supreme Court where the judgment was reversed and the cause remanded, and the Supreme Court said: “For the class of injuries here sued for, — injuries necessarily resulting from the operation of a railroad, — there was no remedy, as we understand, previous to the constitution of 1870. The constitution of 1848 provided only that private property should not be taken for public use without just compensation. The provision for the first time was incorporated in the constitution of 1870, that ‘private property shall not be taken or damaged, for public use, without just compensation. Such compensation, when not made by the State, shall be ascertained by a jury, as shall be prescribed by law. ’ Before the adoption of the latter constitution, where there was land taken for public use, there was provision for compensation. But where there was other disconnected land not touched by the improvement, but damaged, merely, as complained of in this case, no compensation was provided. To meet this want, the clause of the constitution restrictive of the exercise of the power of eminent domain, provides that private property shall not be taken or damaged for public use without just compensation.

“We think it to be within the true intent and meaning of this provision as to damage, that there should be but one proceeding for recovery of damage, in which there should be recovery for the entire damage, past, present and future; that it should be similarly regarded, in this respect, as the provision in regard to the taking of property, where there is but one proceeding, and an assessment of compensation and damages once for all. The two provisions are coupled together, and are both in restriction of the exercise of the power of eminent domain.” The court held, in effect, that the act of defendant, not being tortious, gave the landowner the right to recover any damage, past, present and future, which might result from the operation of the railroad, based on the proved depreciation in the value of the land, but that there was but one action and that must be brought within five years of the beginning of such operation.

In Kotz v. Illinois Cent. R. Co., 188 Ill. 578, an action was brought by Kotz against the railroad company to recover damages to a lot owned by him fronting north on Sixtieth street in Chicago, and adjoining on the west the right of way of defendant, alleged to have been occasioned by the elevation of the company’s roadbed and tracks. A trial was had, and at the close of all the evidence the court instructed the jury peremptorily to return a verdict for the defendant. Judgment was rendered on the verdict and appellant prosecuted an appeal from such judgment to the Supreme Court. The judgment was affirmed, and in its decision, among other things, the Supreme Court said: “One element of damages claimed by appellant, arising from the operation of appellee’s railroad as elevated, is, that more noise, dust, cinders, smoke, gases and other noxious substances have been cast upon his lot. The right of way of appellee was granted . . . ‘for the purposes of constructing, maintaining and operating thereon a single or double track railroad, with all the necessary appurtenances, and for all uses and purposes connected with the construction, repair, maintenance and complete operation of said railroad. ’ . . . The increased uses of the right of way of appellee which have produced the effects complained of, are a necessary incident to and inseparable from the successful operation of appellee’s railroad and fall within the terms of the grant of its right of way. It follows that for such increased uses and the consequences flowing therefrom, no damage has accrued to appellant, the damage, if any, being damnum absque injuria.

‘ ‘ The appellee, ... to meet the growing demands of trade and commerce, may with the same propriety elevate its road-bed through a populous city that it may increase the number of its trains or tracks, change its motive power from steam to electricity or consolidate its lines with those of other companies, so as to furnish to the traveling public through connections and direct communication from inland towns and cities with the seaboard. The right of appellee to use its right of way ‘for all uses and purposes connected with the construction, repair, maintenance and complete operation of said railroad’ was not exhausted so soon as a surface road was built thereon, but is a continuing right, which will enable appellee to change its plan of construction and operation to meet the demands upon it of a growing business and the changes wrought by the development of society. . . .

“We are of the opinion that appellee had the right to elevate its road-bed and tracks, that it did not by reason thereof become liable to respond to appellant in damages, and that the superior court of Cook county properly instructed the jury to find for the defendant. ’ ’

It is to be noted that there is no charge made here of negligent or unlawful operation of defendant’s railroad. We are of the opinion that the court was correct in sustaining the motion to strike. Therefore, the judgment of the superior court of Cook county is affirmed.

Affirmed.

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


author: Mr. Justice Denis E. Sullivan

text:
    People of the State of Illinois ex rel. John S. Rusch, Appellee, v. Frank J. Kirgis et al., Appellants.
    Gen. No. 39,349.
    Opinion filed November 10, 1937.
    Rehearing denied November 22, 1937.
    Simon Hebe, of Chicago, for plaintiffs in error.
    Otto Keener, Attorney General, Thomas J. Courtney, State’s Attorney, and Ditohburne & Lounsbury, of Chicago, for defendant in error; Thomas J. Johnson, Jr., of Chicago, of counsel.
   Mr. Justice Denis E. Sullivan

delivered the opinion of the court.

This is an appeal from a judgment of conviction entered in the county court against Frank J. Kirgis, Steve Burns and James E. Sheehan, finding them guilty of a violation of the election law and sentencing them to one year in the county jail.

The abstract shows that on February 5,1936, a verified petition was filed in the county court of Cook county by John S. Busch, chief clerk of the board of election commissioners of Chicago, Illinois, alleging that a general election was held in Chicago on April 16, 1935, at which election various candidates of different political parties were voted upon; that at said election in the 10th precinct in the city of Chicago Heights, Illinois, the following named persons served as judges and clerks of election, to wit: Frank J. Kirgis, Steve Burns, James E. Sheehan, Alice Parker and Daniel Guenette.

Said petition further states: 1 ‘ That said aforementioned persons are designated as respondents; that petitioner is advised and believes that certain misconduct and misbehavior hereinafter alleged of said respondents as such judges and clerks of said election at and during said election constitutes a criminal offense or criminal offenses against the People of the State of Illinois and also constitutes contempt or contempts of this honorable court. Petitioner further alleges and charges the fact to be that said respondents, while serving and acting as judges and clerks of said election in said precinct did fraudulently and unlawfully make a false canvass and return of the votes cast in said precinct at said election, and that, while serving and acting as judges and clerks of said election in said precinct, were guilty of corrupt and fraudulent conduct and practice in the duty of said respondents as judges and clerks of said election. Petitioner prays that an order and rule may be entered against the respondents commanding them to be and appear in this court at a time to be designated in said order, then and there to show cause, if any they can, why they and each of them, as officers of said court, should not be adjudged guilty of contempt or contempts of this court for misconduct and misbehavior in office on account of the matters and things hereinabove alleged.”

Upon this petition an order was entered attaching the defendants. The sheriff brought them into court and they were admitted to bail on a $2,500 bond each.

By a stipulation of the parties the talley sheets and the recount figures were introduced in evidence and showed, among other things, the following:

“Candidate Official Recount

Carl Fiedler................ .... 302 336

Oscar Fox ................. .... 332 283

John W. Cansen, Jr.......... .... 357 376

Walter Krebs .............. .... 176 177

Bernhard N. Bandeen....... .... 129 130

Arthur II. Pannenborg...... .... 139 142

Maurino Riechuto .......... .... 261 280

John A. Zimy.............. .... 340 350

Carl W. McCehee........... .... 236 235

August J. Zeller............ .... 256 257

Alice Klinger .............. .... 359 360

Armand A. Cerardi......... .... 36 37

Cornelius Yanderwarf ...... .... 218 220

Arthur A. Hinze............ .... 131 132

Joseph Josephs on .......... .... 116 115

The evidence introduced by the State is in substance as follows:

Benjamin W. Cooper testified that he was a watcher in the precinct in question on April 16, 1936; that he went there at the direction of captain Hopkins of the board of election commissioners in Chicago; that he arrived there about ten minutes to six in the morning; that his purpose in going there was to watch the general activities; that the poll officials were there and opened the polls at 6 a. m.; that the judges set up the ballot box and put it on the table; that he observed their activities during the day and watched the call and tally of the ballots at night; that he remained there until

the work was all finished, the ballot box sealed, packed and all paraphernalia taken away; that nothing irregular occurred during the day; that after the polls closed he was attentive to the proceedings and watched the judges as the votes were being called and noticed the ballots as the judges were calling from them and that the judges absolutely called the votes as the ballots were marked.

Cooper further testified that as the count of the votes was being made, he looked over the judge’s shoulder or stood where he could see the judge calling the vote to see that they were being called correctly ; that he could not account for the discrepancy in votes for Fiedler and Fox as not only the watchers from the election commissioners were watching but there were present other watchers and deputies with credentials from the various candidates and the judges representing the different factions; that he stood close to where the count was being made and the ballots were being turned over one by one and he saw each name called correctly; that he was in a very good position to see the tally sheet at the same time the call was made; that the names were called as they were voted on the ballot; that he could not account for any discrepancy; that the judges called the ballots one at a time, all individually; that only on one or two occasions was there any dispute, but “there wasn’t any fuss or arguments” as to the tally of the count; that on one occasion the call was too fast and the tallier asked that they “kind of slow up” so that he wouldn’t fall behind.

Captain Hopkins of the election commissioners’ office stated that the two witnesses Cooper and Rourke were official employees of the election commissioners appointed by the board and paid by the board and returned their reports to the board and were given their credentials by the board.

Lloyd W. Rourke, called as a witness on behalf of respondents, testified that he was a watcher assigned to the 10th precinct in Chicago Heights on April 16, 1935, in the general election held there; that on the morning in question he arrived at the polls at ten minutes of six in the morning and stayed there until almost eight o’clock in the evening, which was after the ballots had all been counted and the packages sealed and returned to the city hall; that he watched the ballots as the judges were calling the votes and was in a position to see the ballots as they were called; that the judges absolutely called the ballots as they were marked; that he could not recollect the names of the judges, but would know them if he saw them and described one of the judges; that the call of the votes lasted from the time the polls closed until about 7:30. He identified Frank Kirgis, one of the respondents as the judge who was doing the calling.

Rourke further testifying stated that he stood right next to the desk and had a full view of the count and could see the ballots very, closely; that there were several different watchers present watching the count; that at no time was there any dispute as to the correctness of the tallies by the clerks; that there may have been some minor disputes, just corrections or something of that kind but nothing outstanding; that the ballots were turned face down on the table, stacked up in front of the judge; that the judge picked up each ballot to call it and he would lay it in front of the watchers as he laid it in front of him so that the watchers could see; that it was not a big ballot but had just a few names thereon; that the ballots as he remembered had a group of candidates consisting of those for mayor of Chicago Heights and commissioner and two or three others; that he could not explain how Fox, who was a candidate for commissioner, received 50 votes more than he was entitled to because as far as he could say “why the thing was just as much on the up and up as we could possibly see.”

The evidence shows that the questioning of these watchers was conducted in the chambers of the judge and the other watchers who were at the polling place on the occasion in question were present, having been subpoenaed by defendants; that after the two watchers from the office of the election commissioner had testified, the attorney for the defendants asked if there were any watchers in the chambers who were present during the count of the votes; that the court thereupon stated that he would call all of the watchers and make them his witnesses; that thereupon Clarence Molyneaux was called as a court’s witness.

Clarence Molyneaux testified that he was a watcher in the polling place during the count of the ballots; that no argument arose at any time as to the correctness of the count; that on one occasion one of the watchers was not able to see and he asked the judge to hold the ballots so he could see; that there was no dispute at any time between the judges and the clerks as to the correctness of their tallies nor when the work was completed and the clerks announced the results; that he stood directly in front of the judge as the ballots were being called and the votes were called as the ballots were marked.

John MacMurray testified as a court’s witness that he was present in the polling place during the count of the ballots; that there was no irregularity there as to the calling of the votes; that he noticed no dispute at any time or quarrel as to the correctness of the count; that he knows since that there is a discrepancy between Fox and Fiedler but doesn’t know how it arose; that nobody marked the ballots either during the count or after it; that he was standing in front of the judge, some of the time directly in front and the other times off on one side and remained there during the entire time of the counting of the ballots and the judges called each ballot as it was marked; that he was able to see each ballot and to check each mark on the ballots; that “I claim that they called them just what was there.”

Ernest Jones, called as a court’s witness, testified that he was there during the count of the ballots and also stated he could not tell how the discrepancy occurred between the vote of Fox and Fielder; that he saw the greater part of the ballots as the judges were calling the votes from the ballots to the clerks; that he wouldn’t say that he saw every ballot counted, but as far as he saw at the time he watched, the judges called the votes from the ballots as they were marked; that he was a watcher for John S. Thomas, candidate for mayor and was interested in three or four of the individual commissioners and Fox was one of the candidates in whom he was interested.

At the conclusion of Jones’ testimony the court stated: “I find nothing against the clerks here, because they tallied as the votes were cast or called to them, so I will be obliged to discharge the clerks and dismiss the proceeding. If the respondents want to tell me and tell me how the thing happened, I would like to hear it. Otherwise, I will have to hold them responsible.”

The evidence further shows that several other watchers were called and asked questions by the court.

A witness by the name of Gilbert testified that he was there for the specific purpose of watching the count on the police magistrate.

Another witness by the name of Cole testified that he was a watcher and did not know how the discrepancy occurred.

A witness by the name of Dubridge stated that he was a watcher, but that he did not know how the discrepancy occurred; that he was there during the count.

The witness Paul Pomrehn was asked by the court if he knew how the discrepancy occurred, but stated that he remembered them saying that the light was bad in the room, that either Mr. Burns or Mr. Sheehan said that, he did not know which one; that he was a watcher for Gannon, candidate for mayor of Chicago Heights and was frequently in a position to see the ballots as they were called and on these occasions these ballots were called as they were marked.

The official report of watchers for the board of election commissioners was offered in evidence, which in substance is the same as their testimony, that there was no disturbance throughout the day at the polls and no violation of law and that the rules with reference to persons wearing badges remaining 100 feet from the polls, etc., were complied with.

James Sheehan, one of the respondents, testified that he is married and lives at 120 West Hickey street, Chicago Heights; that he lives there with his wife and two children; that he is in the restaurant business and has never been been arrested or charged with the violation of any law, either federal, state or municipal prior to these proceedings; that he acted as a judge of election on April 16,1935 at the 10th precinct, Chicago Heights; that he arrived at the polling place five minutes of six; that during the day from time to time he checked the record on the voters coming in to vote to see that they were legitimate voters; that the polls closed at five o’clock and they started to count the ballots about 5:30; that after the polls closed they took a few minutes to eat; that when they started to count the votes the ballots were placed on the table in full view of everyone ; that Mr. Burns commenced the count and all the judges alternated in calling; that he watched the call and was positive that the judges called the votes exactly as the ballots were marked; that he was not interested in the outcome of any candidate on the ticket that day and neither he nor the other judges sought to favor or disfavor any candidate or candidates; that there had not been any discussion between the judges in that respect; that he had no interest whatsoever with respect to either of the candidates Fox or Fiedler or any other candidate and could not understand how the error occurred, but that it was not an error on the part of the judges if an error occurred; that he has served as a judge of election for eight years; that he never served as precinct captain nor has any member of his family; that prior to that day he did not know that the candidacy of Oscar Fox for commissioner was sponsored by John E. Thomas, candidate for mayor, nor did he know that the candidacy of Carl Fiedler for commissioner was sponsored by Thomas.

Frank Kirgis, another respondent, testified that he lived at 1668 Buena Vista Circle, Chieag’o Heights, and was a judge of election on April 16, 1935, in the 10th precinct in Chicago Heights; that probably 20 minutes after the polls had closed the ballot box was opened and the ballots taken out, put upon the table and straightened out and the count proceeded; that the judges alternated calling from the ballots; that Mr. Burns, one of the judges, started the call; that while Burns was calling the votes he, the witness, stood where he could see the ballots and every ballot was called as marked by the voter; that he had no particular candidate on that ticket that he was interested in and had no interest in the candidacy of either Fiedler or Fox; that he had not been requested by anyone to favor or disfavor either of them; that there had been no agreement entered into between the judges with respect to the candidates; that his sole interest was to watch the ballots and perform his duties on election day; that the votes were called as the ballots were marked as he kept his eyes riveted on the ballots to make sure the call was correct; that if an error was made it was not made by the judges; that he was a clerk in a Chicago Heig’hts bowling alley and had served as judge of election for six years; that he was a high school graduate and was married and lived with his wife and two children.

Steve Burns, who was also a respondent, testified that he lived at 17 West Hickey street, Chicago Heights, was 75 years old and was a janitor and a great grandfather ; that after the polls closed he commenced the counting of the ballots; that regarding the light in the room that he had a new bulb put in the light before he started the count; that when he called the votes two other judges were standing one on each side of him; that he absolutely called the votes as the ballots were marked; that he had no friends or foes on the ballots and had no particular interest in the election of any person thereon; that he had no particular interest in the candidacy of either Fiedler or Fox, they were both friends óf his; that he never entered into any agreement with anybody to favor or disfavor any candidate; that he had never been arrested for violating any law, either federal, state or municipal and that this was his first experience; that he lived with his wife at the address given; that his children were married and he was a great grandfather; that he could not see the clerks tallying because they were sitting four or five feet away; that he was in a position to see that the ballots were being called correctly, that was his business. He further stated, “I swear that if any mistake occurred there, that night, it didn’t occur on the part of the judges”; that he heard no dispute or discussion of substantial difference referring to the count and heard nothing said about the discrepancy in the count of Fox or Fiedler; that when the two clerks announced the totals and they checked correctly, the judges announced the official figures; that he had no explanation for the discrepancy that occurred in the results as to Fox and Fiedler; that there were 16 watchers in the polling place; that the clerks did not tally on dummy sheets, they didn’t copy; that he thought they tallied on the original tally sheets.

Ño one could read this evidence without being impressed with the fact that the respondents herein were not shown to have been careless of the trust imposed in them.

It is to be noted that the clerks of election, whom the evidence shows put down the figures and tallied them, were discharged in the midst of the hearing. They were not sworn as witnesses nor were they interrogated in connection with the figures which they put down, which figures are the sole basis of this complaint.

The State claims that the evidence is sufficient to support its contention and cites the case of People ex rel. Rusch v. Greenzeit, 277 Ill. App. 479. In that case the clerks were sworn and testified that they put down the figures as called.

The defendants contend that the proof must be established beyond a reasonable doubt and cite in support of their contention the case of People ex rel. Rusch v. Kotwas, 363 Ill. 336. We do not think that case supports their contention.

The defendants denied any wrong doing and this was corroborated by the testimony of the watchers for the candidates and others who were at the polls when the ballots were counted. There was no evidence aside from such errors in the return that the defendants ever intended by word or act, or had any interest or desire to falsify the vote, or that they had any motive for doing so. There are no circumstances appearing in evidence from which an intention to make a false statement might be inferred. There was a mistake in the returns but the overwhelming evidence shows the defendants had nothing to do with writing the tallies on the returns.

We have set forth the testimony of the various witnesses at considerable length, and we are of the opinion that the defendants did nothing intentionally which was contrary to the law and we do not believe the State sustained its position that the defendants were guilty by such clear and convincing evidence as would justify defendants ’ conviction. While every person should be interested in maintaining the sanctity of the ballot, yet persons on trial for an alleged violation of the law should not be deprived of their liberty and imprisoned, excepting by such evidence as proves their guilt.

In the instant case three men, whom the evidence shows to be respectable citizens, were found guilty and given the extreme punishment of one year in the county jail on charges which, after having been carefully investigated, are not supported by the evidence.

Inasmuch as there is not sufficient evidence in this case to support the conviction, the judgment of the county court is reversed.

Judgment reversed.

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


text:
    People of the State of Illinois, Defendant in Error, v. Valeria Klinger, Plaintiff in Error.
    Gen. No. 39,379.
    Opinion filed November 10, 1937.

      Bay E. Lane, of Chicago, for plaintiff in error.
    Thomas J. Courtney, State’s Attorney, for defendant in error; Edward E. Wilson, John T. Gallagher, Melvin Starkle Bembe, Blair L. Varnes, Assistant State’s Attorneys, of counsel.
   Mr. Justice Denis E. Sullivan

delivered the opinion of the court.

Defendant Valeria Klinger brings this appeal from a judgment entered in the county court finding her guilty of having violated the Medical Practice Act, Ill. Rev. Stat. 1937, ch. 91, secs. 1-39; Jones Ill. Stats. Ann. 79.01-79.40, and sentencing her to the county jail for 30 days and imposing a fine of $100 for said violation.

In the trial court the defendant was informed against by an information which consisted of two counts charging her with having* violated the Medical Practice Act, ch. 91, sec. 24, Ill. Rev. Stat. 1937, Jones Ill. Stats. Ann. 79.25. The information was sworn to by one Adolph J. Meadel, an inspector in the department of registration and education. The trial was had before a judge and jury. A motion was made to quash the information and each count thereof, which motion was overruled and a verdict was returned upon which judgment was entered as aforesaid.

Charlotte Hermes, testified on behalf of plaintiff that she was employed by the State as an investigator for the department of registration and education; that she called at the home of the defendant at 6641 North Artesian avenue, Chicago, Illinois, on June 11, 1936; that she .told the defendant that she had been suffering from severe headaches and wanted to see her; that defendant said she had certain times for her patients; that she again called at the home of the defendant on July 10, 1936, about 7 o’clock and went into the basement where other people were waiting; that she told the defendant that she had an arm that would repeatedly go out of joint; that defendant said she understood and would help her; that the statements of the witness with reference to her ailments were untrue; that defendant gave the witness a treatment, manipulating the shoulder muscles with her hands and also worked on the back of her neck; that defendant seemed to go into a trance and that defendant folded her hands as if in prayer; that she paid the defendant $1 for the treatment; that she, the witness, has used the names of Agnes Hilgren, Mrs. Sigerman and also Mrs. E. Johnson.

The defendant, Valeria Klinger, testified that for the past five years she has belonged to the First Spiritualist Church of Cicero and is a qualified healer of that church; that she does not sell any medicine or give it away or prescribe any medicine, just prays for divine healing and heals through prayer; that she does not practice surgery; that the first time she ever saw Charlotte Hermes was on September 10, 1936, in the courtroom, and that she received no money from her.

C. A. Burgess, a witness on behalf of defendant, testified that he lived at 110 South Loomis street, Chicago, Illinois; that he has been president of the Spiritual Association of Illinois for the past 27 years; that it is a regular church incorporated under the laws of the State of Illinois; that there are 62 such churches in Illinois and they have healers; that these healers are examined by the board of examiners of the church and are given certificates by the Illinois State Board; that defendant is a healer of that church; that the law of the church permits the practice by certified healers; that the Hlinois Spiritualist Association was organized about 30 years ago and chartered by the National Spiritualist Association, also chartered by Springfield, State of Illinois, to organize churches, certify to representatives of the churches, and to certify mediums and healers, ordain or recommend ordination; that healers are authorized to get the necessary healing forces to operate upon the patient by prayer; that they believe the majority of cases are mental and if they can correct that mental condition by prayer, they go ahead; that he has been a healer for 64 years.

Many questions are raised by defendant which we do not think it is necessary to consider at this time.

The section under which the prosecution is urged is sec. 37 of ch. 91, Ill. Rev. Stat. 1937; Jones Ill. Stats. Ann. 79.38, known as the Medical Practice Act, which reads as follows: “This Act shall not apply to dentists, pharmacists, optometrists, or other persons lawfully carrying on their particular profession or business under any valid existing Act of this State regulatory thereof, nor to persons rendering gratuitous services in cases of emergency, nor to persons treating human ailments by prayer or spiritual means as an exercise or enjoyment of religious freedom.”

The evidence in this case clearly shows that defendant’s method of curing was by prayer; that defendant was a duly authorized member of the First Spiritualist Church of Cicero and that her license was issued by the Spiritualist Association of Illinois, Inc., which was incorporated under the laws of the State of Illinois, and defendant was one of their regular healers. The Spiritualist Church was organized under the laws of the State of Illinois and no doubt comes within the provisions of the statute hereinbefore quoted. Therefore, since defendant came within the class of persons exempted by the statute, we do not think a conviction should have been had.

For the reasons set forth in this opinion the judgment of the county court is hereby reversed.

Judgment reversed.

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


text:
    City of Chicago, Appellant, v. Bowman Dairy Company, Appellee. The Northern Trust Company, Appellee.
    Gen. No. 39,456.
    Opinion filed November 10, 1937.
    Barnet Hodes, Corporation Counsel, for appellant; David Lefkovits, Alexander J. Besa and Adam E. Patterson, Assistant Corporation Counsel, of counsel.
    Montgomery, Hart, Pritchard & Herriott and Miller, Bengel & Lavery, both of Chicago, for appellees ; Louis E. Hart, L. Edward Hart, Jr. and Paul Lavery, all of Chicago, of counsel.
   Mr. Justice Denis E. Sullivan

delivered the opinion of the court.

This is an appeal by the city of Chicago from a judgment for defendant entered at a hearing on a garnishment proceeding which was founded upon an alleged judgment for $25,600, which it was claimed was entered on August 8, 1934, against the defendant Bowman Dairy Company.

The abstract of record shows that on August 8,1934, a judgment was rendered in favor of plaintiff and against the defendant for the sum of $200 and costs amounting to $10; that following this judgment upon the “half sheet” appears the notation: “Fine Two Hundred and costs for 122 days from April 6th, to August 6th, 1934 for a total amount of $25,600.”

The abstract by its terms shows that thereafter on December 4,1936, a judgment for $24,400 was rendered, this being subsequent to the date of the entry of the judgment order of Judge Padden dismissing the garnishee, such judgment having been rendered on November 25,1936; that in the same action a judgment for $200 and costs against the defendant Bowman Dairy Company was entered on August 8, 1934, an undated notation appearing at the conclusion of the judgment order for $200, wherein mention of the sum of $25,600 is made and also an alleged judgment entered on December 4, 1936, for $24,400 and $10 costs of suit, all in the same suit; that the purported judgment for $24,400 and the notation as to a fine of $25,600 were entered without the vacation of any previous judgment in this cause.

The abstract in terms further shows that on October 7, 1936, the judgment for the fine of $200 and costs in this cause was satisfied of record; that an execution upon the judgment of $200 and costs issued out of the municipal court, which execution is dated September 8, 1934 and was returned on December 7, 1934; that an “execution” issued December 11, 1934, for an alleged judgment of $25,600, returned on March 12, 1935; that the record does not show the issuance of any execution upon the judgment for $24,400, rendered December 4, 1936.

The abstract in this case further shows that subsequent to the judgment order entered by Judge Padden on November 25, 1936, discharging garnishee, the city of Chicago filed a motion to “correct the record” in this cause and Judge Holland assumed to enter a judgment on December 4, 1936, in favor of the city of Chicago and against the defendant Bowman Dairy Company, for the sum of $24,400, presumably, although the order does not so state, in lieu of the notation: “Fine Two Hundred and costs for 122 days from April 6th to August 6th, 1934, for a total amount of $25,600.”

The abstract in this case is not complete and we do not find the substance of any affidavit upon which the garnishment writ could be issued.

Sec. 1 of ch. 62 on Garnishment, Ill. State Bar Stats. 1935, H1; Jones Ill. Stats. Ann. 109.284, provides that prior to the issuing of a writ an affidavit must be filed.

As was said in the case of First Nat. Bank v. Hahnemann Institutions, 356 Ill. 366: “Garnishment is an ancillary proceeding in the nature of process to obtain satisfaction of a judgment rendered in the principal action or proceeding, and, being a statutory proceeding, a party seeking its benefits must comply strictly with the requirements of the statute, and jurisdiction is not acquired in the absence of any of the required conditions.”

The rules of this court provide that a complete abstract be filed in each case. In the instant case, as we have already stated, the abstract is not complete. The Supreme Court in the case of Kuhn v. Kunz, 353 Ill. 205, at page 206, said: “It has been so many times held as to require no citation of cases, that this court will affirm a judgment where the plaintiff in error or appellant does not file an abstract sufficient to present the issues involved. This court will not go into the record to supply deficiencies in the necessary features of the abstract.

“For want of a sufficient abstract the judgment of the circuit court is affirmed.”

So far as we can glean from the incomplete abstract filed in this cause a judgment was raised from $200 and costs to $25,600 and then reduced to $24,400, these changes having been made long after the court had lost jurisdiction and such action had no legal basis and was not in harmony with correct legal procedure. The bank accounts of the defendant in six different banks were garnisheed, which was not in compliance with the law which provides that real estate be levied upon first.

Therefore, for the reasons set forth in this opinion the judgment of the municipal court is affirmed.

Judgment affirmed.

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