author: Mr. Justice Wolee

text:
    Cody Trust Company, Plaintiff, v. Hotel Clayton Company et al., Defendants. William H. Foil et al., Appellees, v. Chicago Title and Trust Company, Appellant.
    Gen. No. 9,172.

      Opinion filed September 9, 1937.
    Rehearing denied January 10, 1938.
    Defrbes, Buckingham, Jones & Hoffman, Castle, Williams & McCarthy and A. Edmund Peterson, all of Chicago, for appellant; Vincent O’Brien, Frank J. Madden and A. Edmund Peterson, all of Chicago, of counsel.

      Hall & Httlse, Edwards & Block, John V. Moor-adian, Charles E. Jack and Harry Breger, all of Waukegan, and William C. Connor and Bernard J. Jurón, both of Chicago, for appellees; Sidney H. Block, Albert L. Hall, Marshall Meyer, John Y. Mooradian, William T. Kirby and J. E. Bairstow, all of Waukegan, of counsel.
   Mr. Justice Wolee

delivered the opinion of the court.

In trust deed foreclosure cases numbered 23,765 and 35,349 pending in the circuit court of Lake county, interlocutory orders of identical character were entered. The parties have stipulated that the cases may be consolidated for the purpose of this appeal. Although a complaint for foreclosure was filed in each case, only one trust deed is involved. The orders, in brief, give other and further powers to the receiver appointed in case number 23,765 by directing him to issue receiver’s certificates which are to be made a lien prior to that of the trust deed, on the mortgaged premises. The appeal is taken under section 78 of the Civil Practice Act, Ill. State Bar Stats. 1935, ch. 110, If 206; Jones Ill. Stats. Ann. 104.078, governing appeals from interlocutory orders concerning receivers. The validity of that part of the orders which subordinates the lien of the trust deed to the receiver’s certificates, is questioned.

On January 1, 1928, the Hotel Clayton Company, a corporation, executed and delivered to the Cody Trust Company, its trust deed conveying* to the Cody Company as trustee, real estate and premises in the city of Waukegan, known as the “Hotel Clayton.” The trust deed was given to secure 250 coupon bonds of the mortgagor, payable to bearer, aggregating* $125,000; Said bonds matured serially, every six months, beginning January 1, 1930, with final maturity on January 1, 1935. The interest coupons attached to the bonds were due and payable semiannually after January 1, 1928, and represented six per cent interest on the principal of the bonds. The bonds were sold to the public. It is alleged that the value of the real estate does not exceed $68,450. The trust deed also pledges the rents, issues and profits of the mortgaged premises as security for the payment of the bonds and the coupons.

The trust deed provides, among other things, as follows: That one month after its date, and monthly thereafter, the mortgagor should make sinking fund deposits of money equal to one-sixth of' the aggregate amount of the principal and interest maturing on the next succeeding interest date; that if the mortgagor did not pay any bonds or interest coupon when due, the Cody Trust Company, individually, might advance the necessary amount therefor and the bond and interest coupon, so acquired by the Cody Trust Company, would be considered purchased and not paid; that the Cody Trust Company would become sub-rogated to the rights of the holder of such bond and interest coupon, except that the lien of the trust deed as security for the payment of such bond and interest coupon should be postponed, and to that extent subordinated, to the lien of the trust deed in favor of all other bonds and interest coupons maturing thereafter; that if the mortgagor failed to properly insure the premises, or to pay the taxes thereon, or to keep the premises in proper condition and repair, the trustee is authorized to do so and the amounts advanced by the trustee for any such purposes are to be paid to the trustee by the mortgagor, and are declared to be additional indebtedness secured by the trust deed and a first lien on the premises prior and paramount to the bonds secured by the trust deed.

The trust deed further provides that in case the mortgagor fails to pay any bond or interest coupon when due, or makes default in the due performance of any covenant of the trust deed, by the mortgagor to be performed: ‘ Trustee has the right to declare the principal of all bonds hereby secured to be due and payable immediately; Trustee, without any action on the part of any bondholder and without the necessity of the possession of any of said bonds or interest coupons, or of declaring said bonds due, may, and upon the written request of the holders of not less than 25% in amouilt of said bonds then outstanding and upon being satisfactorily indemnified, shall institute such suit or suits, in equity or law, in any court of competent jurisdiction, to enforce and protect any rights of trustee or of the bondholders hereunder as it may deem proper, and especially may institute proceedings to foreclose this trust deed in any manner provided by law and to obtain a sale of the mortgaged premises under order of court.” Eeasonable compensation of the trustee and costs of foreclosure proceedings are made additional indebtedness secured by the trust deed and made a lien prior to all other indebtedness, secured, in any manner, by the trust deed.

The trust deed provides, further, that, if the mortgagor fails to perform any covenant thereof, the trustee shall be entitled to the immediate possession of the mortgaged premises with power to operate and manage the same, and to apply the rents and profits therefrom to the payment of all necessary expenses of operation, including the maintenance of improvements on the premises; that the costs of so administering the premises, including reasonable compensation to the trustee, are declared to be additional indebtedness, secured by the trust deed and prior and paramount to the lien of the trust deed.

Section 7, Article IX, of the trust deed, is as follows: “It is understood (anything in this trust deed or in the Bonds issued hereunder to the contrary notwithstanding) that Trustee may (and on the written request of all such Bondholders, and upon satisfactory indemnity, shall) proceed to enforce the rights and remedies available at law or equity to the holders of Bonds- and/or Interest Coupons subordinated under the provisions of Section 8 Article III hereof, without notice to or joinder of holders of Bonds and/or Interest Coupons having priority under said Section 8, always provided further, that any such proceedings shall be for the benefit of all holders of such subordinated Bonds and/or Interest Coupons maturing on the same date, without preference or priority among them. All of the covenants, terms, and provisions of this Article IX, shall extend to, and be available in proceedings under this Section 7, including the appointment of a Receiver. ’ ’

The provision of the trust deed relative to the appointment of a receiver is in part as follows: “Upon or at any time after the commencement of any proceeding instituted in the case of default, the court wherein the same is pending, shall, on application of complainant, as a matter of right and without regard to the then value of the mortgaged premises, and without regard to the solvency of Mortgagor, or of any other party liable hereunder, or the then use of the mortgaged premises, appoint a Receiver of the mortgaged premises to collect the rents, issues, and profits thereof, pending foreclosure and sale and during the period of redemption.”

On August 1, 1929, the mortgagor failed to make the sinking fund deposit of $625 due as provided by the trust deed. The Cody Trust Company, as trustee, on November 9, 1928, took possession of the premises, and employed Edward Hall to manage and operate the hotel, and was so in possession of the premises on December 14, 1929, when it filed its complaint in case number 23,765 for partial foreclosure of the trust deed. The complaint is brought by the Cody Trust Company, “individually and as trustee.”

The bill sets forth the failure of the mortgagor to make the sinking fund deposit of August 1, 1929, and that the mortgagor failed to pay the interest coupons maturing on January 1,1929, and July 1,1929, totaling $7,500; that the Cody Trust Company, individually, advanced $7,500 to pay the matured coupons and became the purchaser thereof and was subrogated to the rights of the former holders of such coupons; that the fair, customary, and usual charges for services of Edward Hall in managing the hotel, is the sum of $7,200; that the usual and reasonable fee for the trustee in administering the premises, for the benefit of the bondholders, during the time it was in possession thereof, is $7,500, which sums the Cody Trust Company is entitled to, under the terms of the trust deed; that the Cody Trust Company, while in possession of the premises, expended thereon $17,903.23, for necessary repairs on the hotel building; that the mortgagor failed to properly keep the mortgaged premises insured and the Cody Trust Company necessarily expended for the purpose the sum of $3,780.54; that the Cody Trust Company has been compelled to employ attorneys to prepare the foreclosure complaint and represent it in the foreclosure proceeding, and it is liable for the reasonable fee in that behalf; that it will be necessary to advance costs for the foreclosure proceeding; that the Cody Trust Company has paid taxes and special assessments on the premises which the mortgagor failed to pay.

The bill makes various persons who have, or may have, an interest in the premises, parties to the suit, and states that their interest in the premises is subject and inferior to the interest of the Cody Trust Company, and the lien of the trust deed. The holders of the unsubordinated and unmatured bonds and interest coupons are not made parties, nor does the complaint state that the suit is brought for and on their behalf. The complaint prays that an account may be taken of the amounts due the Cody Trust Company for matured interest coupons purchased by it, and for the expenses made and incurred by it under the terms of the trust deed, and for its compensation as trustee; that the persons liable therefor may be ordered to pay the indebtedness, together with interest, costs, solicitors’ fees, master’s fees, and other charges; that the amounts so found due may be decreed to be a good, valid, subsisting lien on the premises and on the rents, issues, and profits thereof, such lien to be subject and inferior only to the continuing lien of the said trust deed as security for the remaining and unmatured indebtedness thereby secured; that in the event that the amounts so found due are not paid, the premises may be sold as directed by the court to satisfy the amount decreed to be paid to the Cody Trust Company, together with its costs, fees, and charges, subject, however, to the continuing lien of the said trust deed as security for the remaining and unmatured indebtedness, thereby secured. The bill further prays for further conventional relief with respect to the issuance of master’s deed, the appointment of a receiver of the premises and the issuance of summons.

On January 20, 1930, an order was entered in the cause appointing said Edward Hall receiver of the mortgaged premises, and the rents, issues, and profits thereof. The order of appointment authorizes him to collect the rents, issues, and profits and to continue, modify, enlarge, or otherwise change the terms of any lease by any tenant in possession of the premises or any part thereof.

On February 6, 1930, an order was entered in the cause of partial foreclosure, authorizing and empowering the receiver to operate and manage the mortgaged premises as a hotel, and specifically to employ the necessary persons in connection with the operation of the hotel and to make expenditure for laundry and coal. Other orders were also entered authorizing and empowering the receiver to borrow money and to purchase supplies, goods and merchandise as a necessary part of the operation of the hotel. It is not contended that the receiver exceeded the authority and power granted to him by the orders, and it is not disputed but that the expenditures made by him from which receiver’s certificates are asked to be issued, as will hereafter appear, were for the operation of the hotel and within the terms of the said orders.

Edward Hall continued as receiver of the premises, under the partial foreclosure proceeding, until August 5, 1935. On July 31,1935, the Chicago Title and Trust Company, in case number 35,349, as successor trustee to the Cody Trust Company, filed its complaint on behalf of all unsubordinated bonds and interest coupons secured by the trust deed, for the foreclosure of the trust deed and the sale of the premises to pay such bonds and coupons. On August 5, 1935, an order was entered in case number 35,349 extending the receivership to the new case and directing the receiver to segregate all money received by him subsequent to the order, subject to the further direction of the court.

Between the dates of August 8, 1935 and June 23, 1936, petitions were filed in both cases by ten persons who had either earned wages working at the hotel under the receiver, or who had supplied the hotel with laundry service, coal, ice, lumber, or loaned money to the receiver. The petitions allege that the receiver was authorized to take possession of the property, and to collect the rents thereof, to operate and manage it as a hotel and to employ persons necessary to run it and to make expenditures therefor, including expenditures for laundry and coal; that he was authorized to borrow money to purchase supplies, and merchandise to operate the hotel; that it became necessary for him to borrow money to purchase supplies and hire servants and employees to operate and preserve the hotel business; that the hotel was leased by order of court for a term of years for a certain consideration each month, to be paid to the receiver by the lessees of the hotel; that the receiver did borrow money to purchase supplies and hire servants, and that the money, materials, and services were used to conduct the hotel as a going concern, and that they were necessary for the preservation of the hotel business, and for the benefit of all persons interested in the premises; that the receiver did not have funds to pay the petitioners. They pray for the issuance of receiver’s certificates, payable as the court might direct, to bear interest and to be a lien on the premises, the rents thereof, and upon any fund realized from the sale thereof, prior to the lien of all persons having a lien on the premises.

The Chicago Title and Trust Company filed answers to all of the petitions, denying the averments thereof, and setting forth that the complaint filed by the Cody Trust Company sought foreclosure of the lien of the trust deed as security for the payment of certain subordinated indebtedness; that the complaint expressly stated that the lien of the trust deed, as sought to be foreclosed therein, was inferior to its lien as security for the payment of the unsubordinated indebtedness; that neither the owners of the unsubordinated indebtedness nor the trustee, as their representative, were parties to the Cody Trust Company foreclosure case, nor had been given any notice of the pendency thereof; that it would be improper to require the re-eeiver to pay any indebtedness incurred prior to the extension of the receivership to the Chicago Title and Trust Company case, or any receivership certificates issued in payment thereof, out of funds coming into his possession subsequent to the entry of the order extending the receivership; that it would be improper to provide for the issuance of any certificate which would be a lien on the premises and the rents, prior to the lien of the trust deed as security for the un-subordinated indebtedness.

The petitions and the answers in the respective cases came on for hearing at the same time, September 28, 1936. Thereupon the court entered its order in each case, reciting and finding the facts concerning the incurrence of the obligations of the receiver as set forth in the petitions, to be substantially as in the petitions set forth; that the materials, supplies, and services rendered, and money loaned by the petitioners, were rendered and advanced to the receiver prior to the entry of the order on August 5,1935;, extending the receivership. The order states: “The Court further finds that the said moneys were borrowed, the said supplies, goods and merchandise were purchased and said servants and employees were hired at the direction, and with the full knowledge and consent of the said Receiver, and that the said moneys, materials and services were used for the said business of conducting the said hotel as a going concern, which moneys, materials and services were necessary for the operation, taking care of, saving and preservation of the said hotel business, and was for the benefit of all parties interested in the said premises, and represented items of expense necessarily incurred by the said Receiver in operating and preserving the aforesaid property.” No report of the trial proceeding appears here in this court and the evidence heard on the hearing before the Chancellor is not before this court. (First Nat. Bank v. 10 West Elm St. Bldg. Corp., 277 Ill. App. 337; Eick v. Eick, 277 Ill. App. 329.)

It was ordered on September 28, 1936, in both cases, that the claims of the petitioners, totaling $15,835 be allowed for payment by the receiver and that he issue certificates to the petitioners in the amounts due them, payable six months after date with interest at five per cent per annum, and that the certificates should constitute a lien on the premises and the rents thereof and any funds realized from the sale thereof, prior to the liens of all persons claiming any lien on the premises. The two cases were then consolidated for purposes of appeal from the two orders.

It is urged by the petitioners that the holders of the unmatured bonds and interest coupons are bound by the orders appointing the receiver and authorizing and empowering him to operate the hotel as above stated, under the doctrine of representation by the Cody Trust Company as trustee under the trust deed; that by reason of their representation, they have consented to the appointment of the receiver and his operation of the hotel under the order of the court.

In the case of Farmers’ Loan & Trust Co. v. Lake St. Elevated R. Co., 173 Ill. 439, it is stated: “It is true, as a general rule, that all parties interested in the subject matter of the suit should be made parties, and that, when foreclosure is sought of a mortgage or deed of trust, the cestuis que trustent> as well as the trustee should be made parties, but there are two well established exceptions to this rule. The first is, that, where the absent parties are properly represented, it is sufficient to make such representatives, parties to the suit.” In Hale v. Hale, 146 Ill. 227,'we said: (page 257) “Where it appears that a particular party, though not before the court in person, is so far represented by others that his interests receive actual and efficient protection, the decree may be held to be binding upon him.” Jones, on Corporate Bonds and Mortgages, say§ (sec. 398): “A trustee for bondholders represents their interests, they are made a party to a suit affecting their interests, and, when made a party to a suit affecting their interests, they are as much bound by the decree rendered in the suit as if they are individually made parties to the suit.

“Another exception to the rule is, that, where the beneficiaries are very numerous, so that the delay and expense of bringing them in becomes oppressive and burdensome, they will not be deemed necessary parties, where the trustee or trustees representing them are made parties.”

It is, therefore, pertinent in this case to inquire whether the holders of the unmatured bonds and interest coupons, as absent actual parties to the suit, were so far represented by the Cody Trust Company in the partial foreclosure suit that their interests received the actual and efficient protection of the court, when the receiver was appointed and the orders entered authorizing and empowering him to incur the expenses and obligation for borrowed money, as set forth in the petitions, necessary for the operation of the Hotel Clayton.

The complaint filed by the Cody Trust Company for partial foreclosure does not state that it is brought for or on behalf of the holders of the unmatured bonds and interest coupons. It is evident that the Cody Trust Company did not, under the acceleration clause of the trust deed, declare the unmatured bonds due and payable and institute the suit to secure a sale of the mortgaged premises for the payment of the bond issue. The sole purpose of the suit, so far as the chancellor w;as informed by the pleadings, ivas to fix the rights of the Cody Trust Company,' individually, as the purchaser of the interest coupons which had matured on January 1, 1929, and July 1, 1929, and to reimburse it, as trustee, for expenditures made by it, which the mortgagor, under the trust deed, was bound to make, and to recover compensation as trustee in possession, together with fees and costs of the foreclosure proceeding. All these demands by the complaint of the Cody Trust Company, and under the decree of sale secured by it, were expressly subordinated to the unmatured and outstanding .bonds and interest coupons. At the time the receiver was appointed and the orders entered directing him to make expenditures for the operation of the hotel, and to borrow, if necessary, funds for that purpose, there was nothing in the pleading or procedure to invoke the action or the diligence of the chancellor to protect any rights of the holders of the unmatured bonds and interest coupons.

Under section 7, of Article IX of the trust deed, the joinder of the holders of the unmatured bonds and interest coupons as parties, was not necessary, in so far as the complaint of partial foreclosure seeks the fixing of the rights of the Cody Trust Company, individually, as the purchaser of the matured interest coupons. By subordinating its demands, as set forth in its complaint, to the unpaid bonds and coupons, the Cody Trust Company, trustee, was not attempting to enforce any adverse claims against the cestuis que trust. The rights and interests of the unmatured bonds and interest coupons under the allegations of the complaint, were passive. The interests of the Cody Trust Company and the bondholders under the complaint were not analogous, and the issue was not presented by the complaint that the interests of the bondholders, as first lien holders, was in any manner to be affected by subordination or otherwise by any proceeding or steps taken, or to be taken, in the partial foreclosure suit.

It is contended by the petitioners that as the partial foreclosure suit is brought in the name of the Cody Trust Company “as trustee,” the holders of the bonds are represented by the trustee and bound by the orders entered in the receivership matter. No interests of the bondholders are set forth in the complaint and their interests in the mortgaged premises are not represented by the Cody Trust Company, excepting in so far as the complaint states that the bondholders ’ rights are a first lien on the premises and superior to the demands of the Cody Trust Company. Every right the bondholders have in the premises is preserved to them by the complaint and the decree of partial foreclosure, and they were not necessary parties to such foreclosure suit. Boyer v. Chandler, 160 Ill. 394; Northern Trust Co. v. Sanford, 308 Ill. 381. The suit was brought to secure payment of demands of the Cody Trust Company, and not those of the bondholders. The court may look to the facts in the case to determine the interests of the parties to the suit. (People v. General Electric R. Co., 172 Ill. 129.)

We are of the opinion that the pleadings, facts, and procedure herein, do not present a case where we are permitted to hold that the bondholders are bound as quasi parties by representation by the Cody Trust Company. (Cross v. Will County Nat. Bank, 177 Ill. 33.)

It is proposed by the petitioners that by the process of collecting the income, rents and profits of the premises by the receiver to pay the subordinated demands of the Cody Trust Company, the claims of the petitioners for services, materials, and money furnished for the operation of the hotel, are superior to the original lien of the trust deed in favor of the bondholders and their claims should be made a lien on the premises, by means of receiver’s certificates, paramount to the lien of the bondholders.

As a general rule, the fixed legal right of a mortgagee cannot be impaired by any equities subsequently arising against the objection of the mortgagee. In the case of Kneeland v. American Loan S Trust Co., 136 U. S. 89, 34 L. Ed. 379, it was said: “It is the exception, and not the rule, that such priority of liens can be displaced. We emphasize this fact of the sacredness of contract liens, for the reason that there seems to be a growing idea that the chancellor, in the exercise of his equitable powers, has unlimited discretion in this matter of the displacement of vested liens. ’ ’ The general rule is not controlling in cases of railroad mortgages. A mortgagee of a railroad accepts the lien of his mortgage with the understanding and condition that the necessary expenses of the operation of the railroad by a receiver may by a court of equity, within prescribed limits, be given a preference as unsecured claims over the lien of his mortgage. It has been stated that this is the most extreme exercise of power ever ventured upon by a court of equity. High on Receivers, 4th ed., sec. 398.

In the case of Fleming v. Anderson, 220 Ill. App. 570,. involving a receivership of a corporation manufacturing drain tile, this court said: “It is urged by appellants that the court had no power to authorize the issuing of receiver’s certificates for the purpose of improvements or carrying on the business without the consent of appellants.

“The object of appointing a receiver is to preserve the property for the benefit of all parties interested, and while the authority of a court to continue a business in the hands of a receiver, and to charge the expenses thereof on the corpus of the property, is rather an exception to a general rule than a rule itself; the court, in its discretion, has such right upon a proper showing being made. Makeel v. Hotchkiss, 190 Ill. 311; Knickerbocker v. McKinley Coal & Mining Co., 172 Ill. 535; Pittsburgh Plate Glass Co. v. Kransz, 291 Ill. 84. Authorizing a receiver to issue receiver’s certificates to carry on the business was formerly confined to receivers for railroads and semi-public corporations, but according to the later authorities, the power of a court to grant such authority to receivers of industrial corporations is conceded. Pittsburgh Plate Glass Co. v. Kranss, supra.

“In the exercise of this power the court should use great caution and it should only be exercised when it is made very clear to the court that it is for the best interest of all parties in interest, that the power be exercised.

“The court has no power to authorize the receiver of an industrial corporation to continue the business and to make receiver’s certificates superior to prior liens, without the consent of the holders of such liens, unless it be apparently necessary to do so in order to preserve the corporate property or the franchises of the corporation.”

In the case at bar, the effect and result of the orders making the receiver’s certificates a first lien on the mortgaged premises is to compel the first lien holders to pay for the attempted collection or satisfaction of the subordinated or second lien of the Cody Trust Company. In any case, assuming that it is a valid exercise of jurisdiction by a court of equity, the question of making receiver’s certificates a first lien superior to prior vested liens, is purely an equitable one, and to be determined upon just and equitable principles, as the circumstances of the case shall warrant. As pointed out in the case of Fleming v. Anderson, supra, it may be done in receiverships of industrial corporations when it is made very clear to the court that it is for the best interests of all parties that the power be exercised in order to preserve the corporate property or the franchise of the corporation. In the case of Makeel v. Hotchkiss, 190 Ill. 311, it is held that a receiver’s expenses for running a hotel would not be made a paramount lien upon the mortgaged hotel, superior to the rights of the holder of a master’s deed under a foreclosure sale, who was not a party to the receivership suit, which involved only the equity of redemption. (Thomsen v. Cullen, 196 Wis. 581, 219 N. W. 439.) The bondholders were entitled to their day in court and to contest the validity of the order giving the receiver’s certificates priority over the trust deed. (Mercantile Trust Co. v. Tennessee Cent. R. Co., 291 Fed. 462; Sibley County Bank of Henderson v. Crescent Milling Co., 161 Minn. 360, 201 N. W. 618.)

In the present case, the petitions for receiver’s certificates allege that the money, materials, and services were furnished to operate the hotel and preserve the hotel business. The trust deed provides that any holder of the bonds accepts the same subject to the express understanding and agreement that every right of action, whether at law or in equity, upon or under the deed of trust is vested primarily in the trustee, and under no circumstances shall the holder of any bond or interest coupon have the right, alone or with other bondholders, to institute any action at law or any suit or proceeding' in equity for the purpose of enforcing any payment, covenant, or remedy provided by the trust deed, nor to foreclose the deed of trust, unless the trustee shall, after 30 days, request in writing by holders of not less than twenty-five per cent in amount of the outstanding bonds, and upon having been tendered satisfactory indemnity, have refused to take the action requested or other appropriate action.

In the case of Hanna v. State Trust Co., 70 Fed. 2, a junior mortgagee filed a bill for the foreclosure of its mortgage, secured the appointment of a receiver, and subsequently enjoined the senior mortgagees from commencing any suit for the foreclosure of their mortgages. Thereafter the receiver petitioned the court to issue certificates to operate the business of the mortgagor, and requested that the certificates be made a lien on the corpus, superior to the liens of the first mortgagees. The court came to the conclusion that the experiment of operating the business of the mortgagor by the receiver was to enhance the value of the mortgaged premises at the expense of the senior mortgagees. The court there says: ‘ ‘ The effect of the proceeding was to burden the prior mortgagee with the whole cost of the expenditures and experiments made for the betterment of the property on the petition, and for the benefit of the insolvent corporation and the junior mortgagee. ’ ’ The reasons for reaching this conclusion by the United States Circuit Court of Appeals are stated in its opinion, many of which are applicable to cases where junior mortgagees request that receiver’s certificates, issued by a receiver appointed on its behalf, may be made a prior lien to pre-existing first liens.

In this case, as the partial foreclosure suit expressly continued the first lien of the bondholders as superior to the demands of the Cody Trust Company set up in its complaint for partial foreclosure, it cannot be said that the bondholders acquiesced in the appointment of the receiver and his operation of the hotel.

It is our opinion that in this case, no clear and convincing equitable grounds, or reasons, have been presented, which should cause us to depart from the general rule that existing vested legal liens should not be displaced by the subsequent claims of the petitioners.

The decree of the circuit court of Lake county, is hereby reversed and the cause remanded.

jReversed and remanded.


source: Caselaw Access Project

license: Public Domain

text:
    Sycamore Preserve Works, Appellee, v. Chicago & Northwestern Railroad Company, Appellant.
    Gen. No. 8,961.
    Opinion filed December 2, 1937.
    Rehearing denied January 10, 1938.
    Lowell B. Smith, of Sycamore, and Nelson J. Wilcox and Nelson Trottman, both of Chicago, for appellant.
    John M. Zane and Edward A. Zimmerman, both of Chicago, for -appellee; Zane, Morse, Zimmerman & Norman, of Chicago, of counsel.
   Mr. Justice Wolee

delivered the opinion of the court.

This case was appealed to this court to the October Term, 1935. An opinion was filed on February 10, 1936, in which we reversed and remanded the case for a new trial. We held that the first four counts of the declaration did not state a cause of action. The fifth count of the declaration charges that a fire was started through the negligence of the railroad company’s employees, and since the right of way of the defendant company was covered with dry grass and weeds, the fire spread to the warehouse of the plaintiff, which, with its contents, was greatly damaged. We held that there was not sufficient evidence for the plaintiff to maintain its suit on the fifth count of its declaration.

On February 19, 1936, the Sycamore Preserve Works, the appellee, filed its motion to amend the judgment of the Appellate Court by striking out the words, “and the cause remanded.” This motion was supported by an affidavit signed by Edward A. Zimmer-i man, one of the attorneys for the appellee, in which he stated in part, that, “Under the theory of law laid down by this Court, the plaintiff admits that if there was such error it cannot be obviated by additional evidence, and that it has no further evidence to offer or which it might offer on retrial of the above entitled cause, besides or in addition to the facts, circumstances, and documents which were proven at the trial of said cause heretofore had in the Circuit Court of DeKalb County, which might obviate said error.” The affiant further states, “Whether or not the plaintiff, Sycamore Preserve Works has a cause of action against the defendant, Chicago & Northwestern Railway Co., growing out of the facts and circumstances proven at the trial and found as facts by this court in its opinion, depends entirely upon a single question of law relating to the proper construction of the statutes of Illinois upon which the plaintiff’s declaration is based, being Section 1% of the Act of March 31, 1874, entitled, ‘An Act in Relation to Fencing and Operating Railroads.’ ” After considering the motion and affidavit, the court struck out the remanding clause in said judgment.

The case was appealed to the Supreme Court of the State of Illinois. On the 12th day of February, 1937, the Supreme Court sustained the judgment of the Appellate Court as to the first, second, third, and fourth counts of the declaration, in that the same did not state a good cause of action. The court reversed the judgment of the Appellate Court as to the fifth count of the declaration. The court held that there was some evidence that tended to prove the allegation as charged in that count of the declaration. It reversed and remanded the case to this court with directions “to consider all errors arising on the trial, insofar as they affect the fifth count, and affirm the judgment or reverse and remand the case.”

One of the errors assigned by the appellant in this court and the Supreme Court is, that the verdict of the jury is manifestly against the weight of the evidence. The appellant insists that this court should weigh the evidence and determine whether the verdict is manifestly against the weight of the evidence. The appel-lee seriously contends that this court has no authority to weigh the evidence, but such question is wholly for the jury to decide.

One of the cases that the appellee relies upon as sustaining its contention that this court has no authority to pass upon the facts and decide whether the verdict is manifestly against the weight of the evidence, is Mirich v. Froschner Contracting Co., 312 Ill. 343. Whether the Appellate Court can weigh the evidence and declare that the verdict of the jury is manifestly against the weight of the evidence, was not involved in this suit, but what the court did hold was, that neither the trial court nor the Appellate Court can review the evidence if it is conflicting, and take the case from the jury, and direct a verdict, as that would be usurping the power of the jury. The rule is, “If there is any evidence taken with all its reasonable intendments in favor of the plaintiff, then it is a question of fact for the jury to decide. ’ ’ In addition to Mirich v. Froschner Contracting Co., supra, the appellees have filed an additional brief in which they cite the cases of Kinsey v. Zimmerman, 329 Ill. 75; Peoria Grape Sugar Co. v. Frazier, 26 Ill. App. 60; Potter v. Chicago, M. & St. P. Ry. Co., 208 Ill. App. 363; and Adamsen v. Magnelia, 286 Ill. App. 412. An examination of each of these cases discloses that the same question was involved as in the Mirich v. Froschner case, supra, namely, that neither the trial court nor the Appellate Court has any authority to review the evidence if it is conflicting and to direct a verdict.

It seems to us that there is no question but that this court not only has the right, but it is a duty cast upon the Appellate Courts, when error is assigned, that the verdict is contrary to the manifest weight of the evidence, to review the evidence and if in our opinion such verdict is manifestly against the weight of the evidence, to reverse and remand the case for a new trial.

In the case of Legnard v. Rhoades, 156 Ill. 431, on page 436 the following language appears: “The statute conferred the right on plaintiff in error to appeal or sue out a writ of error to review the judgment of the circuit court. The Appellate Court is authorized to review questions of law and fact, and when a case is presented it is the duty of that tribunal to consider the questions of fact as well as questions of law. Indeed, where the judgment of the circuit court is erroneous on the facts, the Appellate Court is the only tribunal where an error of that character can be corrected, and if not corrected there, the party is deprived of a right conferred by the statute. It is therefore not only the duty of the Appellate Court to review the evidence when it is claimed that the judgment is erroneous on the facts, but it is a matter of the greatest importance to the parties to the cause that the facts should be considered and passed upon, and it is error to refuse to review the same.”

In the case of the Illinois Cent. R. Co. v. Smith, 208 Ill. 608, the court used this language: “It is also assigned as error that the Appellate Court refused to consider all the evidence in the case or to weigh the evidence upon controverted questions of fact presented to that court for decision. It was assigned as error jn the Appellate Court that the verdict is contrary to the manifest weight of the evidence. This court has held it is the duty of the Appellate .Court, upon such assignment of error, to weigh the evidence and determine whether the verdict is against the weight of the evidence, as that court, upon such an assignment, is the only appellate tribunal in this State that can determine that question, since this court, in actions at law, is permitted under the statute to review only questions of law.”

In the case of Hujawa v. Chicago & Alton R. Co., 175 Ill. App. 325, this court in passing upon the suficiency of the evidence to sustain a verdict uses this language: “It becomes the duty of this court to review the evidence, and if we find that upon any one of those three things essential to have been shown by the appellee, the finding of the jury is manifestly against the weight of the evidence, then it becomes our duty to reverse the judgment.”

A clear expression of the Supreme Court in one of the late cases, White v. City of Belleville, 364 Ill. 577, 580, states the general rule of reviewing the facts after a verdict of a jury, and is as follows: “When all the necessary elements of a cause of action are charged in a declaration or complaint and there is evidence in support of the plaintiff’s case which, if taken as true, with all reasonable- intendments therefrom most favorable to the plaintiff, tends to establish the negligence charged, the case should be submitted to a jury for its consideration. On the coming in of a verdict in such case in favor of the plaintiff the question as to the weight of the evidence is for the trial court upon a motion for a new trial. (Libby, McNeil & Libby v. Cook, 222 Ill. 206; Pollard v. Broadway Central Hotel Corp., 353 id. 312.) Section 5 of article 2 of the constitution provides the right of jury trial. Where there is a question of fact it should be submitted to a jury unless the facts are such as to raise purely a question of law. There was evidence in the record on behalf of the plaintiff which, standing alone, under the rule already announced, would have entitled her to have the cause submitted to a jury. The action of the Appellate Court in reversing without remanding was contrary to the rule in such cases as announced by the court. (Mirich v. Forschner Contracting Co., 312 Ill. 343.) It was within the province of the Appellate Court, however, to consider the weight of the evidence, together with any other errors that may be apparent from the record. If a verdict and the judgment of the trial court are manifestly against the weight of the evidence the Appellate Court may reverse and remand for a new trial. ’ ’

The following cases all support the rule, when the question is properly presented, that it is the duty of the Appellate Court to weigh the evidence and reverse and remand the case for a new trial, if the court is of the opinion that the verdict is manifestly against the weight of the evidence: Mahaney v. Edwards, 66 Ill. App. 101; Sauter v. Anderson, 112 Ill. App. 580, 586; Chicago & Alton R. Co. v. Heinrich, 157 Ill. 388; Chicago & E. R. Co. v. Meech, 163 Ill. 305; Illinois Cent. R. Co. v. Hecker, 129 Ill. App. 375; Hubbell v. Heidrich, 142 Ill. App. 404; Love v. Love, 145 Ill. App. 150; Illinois Cent. R. Co. v. Haecker, 110 Ill. App. 102; Wieboldt v. Best Brewing Co., 163 Ill. App. 246; City of Nokomis v. Farley, 113 Ill. App. 161, 164; Singer Mfg. Co. v. Weil, 115 Ill. App. 384, 387; Chicago, R. I. & P. R. Co. v. Nelson, 115 Ill. App. 432, 434; Chicago & Alton Ry. Co. v. Jennings, 120 Ill. App. 195, 196; Titus v. Rates, 122 Ill. App. 103; Sterling, D. & E. E. Ry. Co. v. Wise, 128 Ill. App. 632, 635; Legnard v. Rhoades, 156 Ill. 431, 436; Devine v. Kelly-Atkinson Const. Co. 156 Ill. App. 602; Donelson v. East St. Louis & S. Ry. Co., 235 Ill. 628; Gilbert v. Lloyd, 170 Ill. App. 436; Chicago City Ry. Co. v. Mead, 206 Ill. 174, 175.

We have examined the abstracts and records in regard to the evidence relative to the fifth count of the declaration, and it is our conclusion that the verdict of the jury in favor of the plaintiff as to such count is manifestly against the weight of the evidence, and the case should be reversed and remanded to the trial court for a new trial.

The appellant argues strenuously that the instructions to the jury were erroneous, and for that reason the judgment should not stand, but should be reversed and remanded. It seems to us that it is of little or no consequence as to whether the instructions given at the first trial were proper or not. Then the case was tried on the theory that the first four counts of the declaration stated a good cause of action and the court instructed the jury on that theory of the case. With the first four counts out of the declaration and the fifth count standing alone, no doubt, at the next trial of the case the court would give different instructions from the ones given at the first trial. We are not assuming to pass upon the merits of the instructions as given.

A great deal has been said in the printed briefs and oral arguments in regard to the ruling of the court relative to damages sustained by the plaintiff and the amount that it realized in salvaging the burned goods. If the plaintiff is entitled to recover any damage because of this fire, it is entitled to receive only such an amount as will compensate it for the injuries and loss it has sustained. If the preserve works received anything from the salvage of these goods, either directly or indirectly, then, when estimating its loss, this amount should be deducted from the value of the goods as ascertained before the fire. The court cannot lay down any particular rule that must be followed in establishing this amount, but it should be proven the same as any other fact. If any testimony tends to establish this fact it would be admissible in evidence.

The attorneys for appellant complain bitterly against the action and conduct of the attorneys for the appellee on the trial of the case, and cite many instances in which they claim that by the argument and remarks of the attorneys for the appellee their client was prejudiced. We have read the evidence as abstracted, twice, and it seems to us that there were many unnecessary objections and remarks on each side which did not assist the court in arriving at a decision as to the law, nor the jury as. to judging facts in the case, but did make it difficult for the trial court to conduct the hearing of the case. If the case is again retried, these annoyances to the trial court should be eliminated.

Counsel for the respective parties differ materially in their contentions of what this court in our former opinion held to be the facts, relative to where the fire started. We did not then, nor do we now, mean to say where this fire actually started, or how the same was communicated to the property of the plaintiff, but what •we did mean is, that from the evidence adduced on the trial of the case, these facts were shown. What the evidence may be, either for or against the proposition that the fire started on the right of way of the defendant, we have no knowledge, but on the trial of the case another time, this fact must be proven, the same as any other controverted question in the case.

The judgment of the circuit court of DeKalb county is hereby reversed and the cause remanded.

Reversed and remanded.


author: Mr. Justice Wolfe

text:
    H. H. Gunther et al., Appellees, v. O’Brien Brothers Construction Company et al., Defendants. Appeal of Galesburg Sanitary District, Appellant. Theodore P. Lenzen, Cross-Appellant.
    Gen. No. 9,163.
    Opinion filed December 2, 1937.
    Rehearing denied January 15, 1938.
    Woolsey, Stickney & Lucas, of Galesburg, and White & Hawxhurst, of Chicago, for appellant;

      Homer G. Dawson, of Chicago, Edward S. Stickney and Ralph R. Hawxhurst, of counsel.
    L. Fred O ’Brien and Burrel Barash* of Galesburg, for cross-appellant.
    Hardy, Hardy, Hardy & Witherell, Nelson & Gustafson, Lewis & Thompson, Burrel Barash, L. Fred O’Brien, Richard J. Neagle, E. D. Hardy, Wilfred Arnold, Nelson, Neagle & Gustafson, Wallace Thompson, James E. Davis, John C. Kost, Herman S. Allen, all of Galesburg, Gumbart & Grigsby, of Ma-comb, Harry M. McCaskrin, of Rock Island, Edgar F. Thoma, of Elmhurst, and Harold Kalmon and John M. Quinlan, both of Chicago, for appellees.
   Mr. Justice Wolfe

delivered the opinion of the court.

Sometime prior to May 19, 1930, the appellant, the Galesburg Sanitary District, a municipal corporation, in Knox county, Illinois, was organized pursuant to the statutes of the State of Illinois, for the creation of a sanitary district. The O’Brien Brothers Construction Company was an Illinois corporation, engaged in the contracting and construction business. On May 19, 1930, the Sanitary District and O’Brien Brothers entered into a written contract by which the O’Brien Brothers agreed to construct certain ditches, drains, sewers, bridges, and other related construction work for the Sanitary District. O’Brien Brothers performed a considerable portion of the work called for by the said contract. On July 28,1931, 0 ’Brien Brothers defaulted and ceased to do any further work upon the contract. In accordance with the contract, notice of the default of the O’Brien Brothers was given by the proper parties to all persons and companies concerned. All necessary resolutions and ordinances were properly passed by the Sanitary District in connection with such default. Subsequent to said default and prior to relet-ting a formal contract for the completion of the work, the Sanitary District paid ont, on items of expense, for labor, etc., an amount aggregating $14,424.44, which the court found was reasonable in amount and necessary for the completion of the work according to the contract. After the default of 0 ’Brien Brothers, the Sanitary District took necessary and appropriate steps, by means of advertising for bids, the passing of ordinances, etc., and on December 1, -1931, entered into a contract with Alexander & Rep ass Brothers for the completion of the work left unfinished by the 0 ’Brien Brothers. The total payments called for by the 0 ’Brien contract was $692,230.62. The total payments made to O’Brien Brothers for work done and materials furnished according to the contract, prior to the default, was $494,293.37. The total paid to Alexander & Repass Brothers under and pursuant to their contract for the completion of the work was $144,900.

On January 30, 1931, John C. Coberg served a written notice upon the trustees of the Sanitary District, that O’Brien Brothers Construction Company was indebted to him in the sum of $4,981.90; that he had furnished lumber and machinery to said O ’Brien Brothers, which was used in the construction of the sewer, etc., of the Sanitary District, and that he claimed a lien for the amount of such indebtedness upon any money, bonds, or warrants due, or to become due, to O’Brien Brothers from said Sanitary District on account of said contract between O’Brien Brothers and said Sanitary District.

Between January 30,1931 and December 1,1931, numerous other persons, who claimed they had furnished materials for the construction of the sewers, etc., or had worked for the O ’Brien Brothers Company on said sewer project, had not been paid for their materials and labors, served notice upon the Sanitary District that they claimed a lien on any money that was due or might become due from the Sanitary District to O’Brien Brothers on account of said contract. Later on, numerous other claims were filed with the Sanitary District. Each stated that they had a lien on the unex-pended fund of the Sanitary District by reason of the claimants having furnished material, insurance, labor, etc., to the 0 ’Brien Brothers for use in said sewer construction.

On January 20,1932, H. H. Gunther et al., filed a bill of complaint in the circuit court of Knox county, setting forth that the Galesburg Sanitary District, a municipal corporation in Knox county, had entered into a contract with the O’Brien Brothers for the construction of a sewer system for said Sanitary District, and that each of the complainants had furnished to the O’Brien Brothers Construction Company work, materials, or service of some kind which had gone into the construction of said sewer system; that each of the complainants is asking to have the amount due them, respectively, made a lien on the funds in the hands of the Sanitary District, and asks that the same may be ordered paid in the amount found to be due each of them, respectively. Other lien claimants filed answers to the bill of complaint and were given leave to intervene, setting forth facts and circumstances upon which they claimed to have a lien on the funds in the hands of the Sanitary District, which were, or might come, due the 0 ’Brien Brothers.

The Sanitary District filed its answer to all petitions for liens, in which it neither admitted nor denied many allegations of the bill, and neither admitted nor denied the justness of the claim of the separate claimants. No quéstion is raised in this appeal in regard to the pleadings in the case, so it seems unnecessary to state anything further in regard to them.

The contract between the Sanitary. District and O’Brien Brothers provided that payments were to be made as work progressed, that is, 85 per cent of the value of the work done and material furnished was to be paid to the 0 ’Brien Brothers Company, and the remaining 15 per cent was to be held by the Sanitary District and was not due and payable until the completion of the work and final acceptance by the Sanitary District. The 15 per cent held by the Sanitary District, which had not been paid to the 0 ’Brien Brothers Company, amounted to $87,288.41.

The case was tried before Judges Loren Murphy, Biley E. Stevens, and George C. Hillyer, the judges of the Ninth Judicial Circuit, sitting in banc. The court found the issues in favor of the complainants and entered a decree, part of which is as follows: “And the Court finds and decrees that the Sanitary District is not entitled to credit for any part of said 15% fund expended in protecting or preserving the work, or in completing said work, until all claims for - labor and material allowed in the former decree or filed with the Sanitary District and may be hereafter allowed, are fully paid; and the Sanitary District had no right to use any part of said 15% fund for either of said purposes until all of said liens had been paid in full; that the lien claimants whose claims have been heretofore or are herein allowed, or filed and may be hereafter allowed, have a first and prior lien upon said 15% fund amounting to $87,288.41, to the extent of their several liens allowed or to be allowed, and that no part of said fund could, or can, be legally used or applied for any other purpose until all of said liens, together with Court costs, have been paid.”

The appellant, in its brief, has assigned seven reasons why the judgment of the lower court should be reversed, but the following paragraphs of the brief, which relate to the part of the decree of the court above quoted, states its position in a concise manner: “That holding of the Court is the nub of this case, and presents the main question for review. In making the aforesaid holding, the Court overruled the Master in Chancery, who, as above stated, found and held the amounts expended by the Sanitary District for the protection and completion of the work to be proper deductions and allowed the Sanitary District credit therefor.

“As indicated, there is no controversy about the facts. After the completion of the construction work, the Sanitary District had left as due the contractor, the sum of $38,612.21, which it paid to the Master in Chancery under order of court. The lien claims allowed, exceeded that sum; and in addition some claims remained undisposed of, of which the Court retained jurisdiction for future disposition. No point is made, or error assigned, in this brief, as to the allowance of any of said claims or the amounts thereof. Our contention is, that the Sanitary District should not have been decreed to pay any more than the $38,612.21.”

As stated above, the controversy in this case has narrowed down to one point as to whether the $87,288.41, which represents 15 per cent of the amount of work done and material furnished by the O’Brien Brothers Construction Company, could be used by the Sanitary District for the purpose of completing the contract before the liens of the complainants had been paid in full or whether the mechanic’s lien claimants were entitled to the full fund as represented by the 15 per cent held back by the Sanitary District or so much of the said fund as was necessary to pay each of their claims in full.

Section 781, ch. 24, Ill. Rev. Stat. 1937; Jones Ill. Stats. Ann. 76.095, provides that the successful bidder for the construction of such improvement shall enter into a bond; that said bond shall provide that the contractor shall well and faithfully perform and execute said work in all respects according to the com-, píete and detailed specifications, etc., and according to the time, terms, and conditions of the contract, and also, that such bidder and contractor shall promptly pay all debts incurred by such bidder or contractor in the prosecution of such work including those for labor and materials furnished, and that suit may be brought on such bond in case of default or failure to pay such debts promptly by and in the name of the city or village for all damages sustained either by the city or village or by any person or party interested, or for the damages sustained by the city or village and all other parties in interest, or by any beneficiary or party interested. The Sanitary District failed to take such bond as required by statute. O’Brien Brothers, the successful bidders, did enter into a bond with good and sufficient surety to protect the Sanitary District against loss or damage in the construction of the sewer system, but it does not protect the lien claimants.

Section 39 of the Mechanic’s Liens Act, Ill. Rev. Stat. 1937, ch. 82; Jones Ill. Stats. Ann. 74.39, provides: “This act is and shall be liberally construed as a remedial Act.” Our courts have held that while this section of the Mechanic’s Liens Act provides “that it shall be liberally construed as a remedial Act,” the liens exist only by the act by which they are created and the statute must be strictly followed with respect to all matters on which the liens depend. Liese v. Hentze, 326 Ill. 633; Charles A. Hohmeier Lumber Co. v. Knight, 350 Ill. 248. Neither the appellant nor the appellee have cited any case which to us seems to have much bearing on the question as presented by this appeal. The facts are not in dispute. It is conceded that the claimants in establishing their right to a lien have complied strictly with all of the statutory requirements. The only question is, What funds are available to pay these liens! The object and purpose of the Mechanic’s Liens Act is to protect those who, in good faith, furnish material or labor for the construction of buildings or public improvements. Granite City Lime & Cement Co. v. Board of Education, 203 Ill. App. 134. After the lien claimants have complied strictly with the statutory requirements to establish their liens, then the court should give the statute a liberal construction, so that justice will be-done between the parties. This is a suit in equity and equity principles should prevail.

It is conceded that the O’Brien Brothers Construction Company is insolvent and that if the claims of the appellees are not allowed in full they will probably suffer a loss. On the other hand, the Sanitary District is fully protected by good and sufficient bond against any loss they might sustain by reason of the default of the O’Brien Brothers Construction Company in carrying out their contract. A fund of $87,288.41 was held by the Sanitary District for their own protection and for the protection of the people who furnished the material and labor to build the sewer system for said Sanitary District.

It is our conclusion that the .trial court properly held that the Sanitary District was not entitled to credit for any part of said fund of $87,288.41 for the protection, preservation, or completion of said work, until all claims for labor and material, as represented by the mechanic’s lien claimants, had been paid in full.

Theodore Lenzen filed a claim against the appellant for a mechanic’s lien for $9,700.85, for steel which was furnished to the O’Brien Brothers Construction Company and used in the work on the Sanitary District. The master found that the claim should be allowed for $6,282.65. Lenzen filed objections to the master’s report, which were overruled. Exceptions were filed to the report, in the circuit court, and the same were overruled. Judgment was entered in favor of Lenzen and claim was allowed for $6,282.65. From this judgment Lenzen has filed a cross appeal. A motion to strike the cross appeal was made, because the cross appellant did not file a praecipe for a record, as required by the rules of court, nor file his abstract and brief in apt time. This motion was taken with the case. The motion to strike is hereby overruled, but we do not pass upon the merits of the motion. We have decided to consider the merits of the cross appeal.

The only question raised by the cross appeal is one of fact, namely, the amount of steel which was furnished by Lenzen to O’Brien Brothers Company which was used in the construction of this sewer system. Mr. Lenzen called several witnesses who testified to the amount of steel which he furnished the O’Brien Brothers Construction Company to be used in the sewer work. The complainants called H. H. Gunther, who testified that he was a general contractor, that he had experience in reading plans and specifications,. such as were involved in the sewer construction of the Galesburg Sanitary District. He analyzed each exhibit of the cross appellant, the plans and specifications where the cross appellant claimed he had furnished steel, and gave as his opinion that only 957.61 tons of steel were used by the O’Brien Brothers Construction Company in the work they did on the construction of the sewer. The master gave more credence to the testimony of this witness than to the others. The three judges sitting in banc, reviewed this testimony and they also gave more credence to the testimony of Gunther than the other witnesses.

From a review of all the testimony concerning this claim, we cannot say that the finding of the trial court is manifestly against the weight of the evidence. The cross errors assigned by Theodore P. Lenzen are overruled and the judgment of the trial court is affirmed in this respect.

We find no reversible error in the case and the judgment of the circuit court of Knox county is hereby affirmed.

Judgment affirmed.


text:
    The People of the State of Illinois ex rel. Lyle H. Rossiter, Appellant, v. Clarence V. Wagemann et al., Appellees.
    Gen. No. 9,235.
    Opinion filed December 2, 1937.
    Rehearing denied January 10, 1938.
    March & Eossiter, for appellant.
    Bussell W. Keeney, State’s Attorney, and William E. Friedrich, of Naperville, for appellees; William E. Hooper, Joel Baker and Lee E. Daniels, Assistant State’s Attorneys, of counsel.
   Mr. Justice Wolfe

delivered the opinion of the court.

This is a proceeding for a writ of mandamus to compel Clarence V. Wagemann, the county clerk of Du-Page county, Illinois, to certify certain facts, which he had before ascertained, to the county collector of DuPage county, and to compel Arthur L. Hellyer, county treasurer of DuPage county, to proceed to ascertain the value of certain real estate lots, and to also ascertain the sum total of the forfeited general taxes and forfeited special assessments against each of said lots, and further, that if said Arthur L. Hellyer found that the sum total of forfeited general taxes and special assessment on each of said lots exceeded the value of each of said lots, then to compel said Arthur L. Hellyer to certify that fact to the county collector of DuPage county. The petition was filed on the 29th day of January, 1937, and made the three county officers parties defendant to the suit. The lots were described by their legal description. The amount of the forfeited general taxes, the amount of the forfeited special taxes, and the actual value of each lot was set forth in the petition, all of said lots being in the city of Naper-ville, in DuPage county, Illinois.

The basis of the complainant’s cause of action is a part of the revenue laws of the State of Illinois, and is found in Ill. Rev. Stat. 1937, § 189, sec. 203, ch. 120; Jones Ill. Stats. Ann. 119.225, and is as follows: “Every tract or lot so offered at public sale, and not sold for want of bidders, unless it is released from sale by the withdrawal from collection of a special assessment levied thereon, shall be forfeited to the State of Illinois: Provided, however, that whenever the county judge, county clerk and county treasurer shall certify that the taxes and special assessments not withdrawn from collection on forfeited lands equal or exceed the actual value of such lands, the officer directed by law to expose for sale lands for delinquent taxes shall, on the receipt of such certificate, offer for sale to the highest bidder the tract or lands, in such certificate described, after first giving ten days’ notice of the time and place of sale, together with a description of the tract or lands so to be offered. And a certificate of purchase shall be issued to the purchaser at such sale as in other cases in this act provided; and the county collector shall receive credit in his settlement with the custodian of the several funds, for ivhich such tax was levied for the amount not realized by such sale. And the amount received from any such sale shall be paid by such collector, pro rata, to the custodian of the several funds entitled thereto. ’ ’

The city of Naperville was granted leave to file an intervening petition in said suit and to become a party defendant thereto. The county clerk, the county treasurer and the county judge, together with the city of Naperville, filed a motion to dismiss the suit on the ground that the law as stated in § 189, sec. 203 of ch. 120 of said statute, did not impose any duty on said officers to ascertain the amount of forfeited general taxes, or the amount of forfeited special assessments, or the value of said lots, and that it was purely a matter of discretion of each of the officers whether they did any or all of the acts as specified in said statute.

Upon a hearing of said motion the court sustained the same and the petitioner elected to stand by his petition. The court then entered an order dismissing said petition. From the order of dismissal this appeal was taken.

The appellant contends that the statute is mandatory and the designated officers have no discretion in the matter, but must ,act in pursuance of the statute. The appellees contend that the statute provides several remedies to pursue in the collection of delinquent taxes and that it is discretionary with the tax collector and officials as to the method to be used in the collection of taxes, and that the officials have seen fit not to proceed under the provision of the Bevenue Act involved in this proceeding.

In the case of MacGregor v. Miller, 324 Ill. 113 at page 118, it is stated: “It is a well recognized rule that where the performance of an official duty or act involves the exercise of judgment or discretion the officer cannot ordinarily be controlled with respect to the particular action he will take in the matter, and where an officer, in the exercise of a discretionary power, has considered and determined what his course of action is to be he has exercised his discretion, and his action is not subject to review or control by mandamus; and so careful are the courts of encroaching in any manner upon the discretionary powers of public officials, that if any reasonable doubt exists as to the question of discretion or want of discretion they will hesitate to interfere, preferring rather to extend the benefit of the doubt in favor of the officer.” People ex rel. Gamber v. Board of Supervisors of Gallatin County, 294 Ill. 579; Coughlin v. Chicago Park District, 364 Ill. 90.

It is our opinion that said § 189 of the Revenue Act, Ill. Rev. Stat. 1937, ch. 120, sec. 203; Jones Ill. Stats. Ann. 119.225, provides only one method by which taxing bodies may collect delinquent taxes and it is not mandatory on the officers to pursue this particular remedy if in their own opinion some other method is a better one to pursue, and the manner in which they proceed is left to the discretion of the officers.

The court did not err in sustaining the motion to strike and dismiss the suit.

Judgment affirmed.


author: Mr. Presiding Justice Hebel

text:
    Minnie B. Gardiner, Appellee, v. Guy A. Richardson et al., trading as Chicago Surface Lines, Appellants.
    Gen. No. 39,423.

      Opinion filed December 15, 1937.
    Frank L. Kriete, Warner H. Robinson and Arthur J. Donovan, all of Chicago, for appellants; John R. Q-uilliams, of Chicago, of counsel.
    H. H. Patterson and Jerome M. Rosenthal, both of Chicago, for appellee; Edmund C. Maurer, of Chicago, of counsel.
   Mr. Presiding Justice Hebel

delivered the opinion of the court.

This is an appeal by the defendants from a judgment entered on the verdict of a jury for $10,000, for damages sustained by the plaintiff on April 19,1935, occasioned by a fall while she was alighting from the front step of a northbound Broadway avenue street car. Defendants’ motion for judgment notwithstanding the verdict was overruled and judgment was entered on the verdict.

The plaintiff charges that the motorman opened the door located at the front of the street car which would permit the plaintiff to alight therefrom; that plaintiff proceeded to step down upon the step located at and beneath the opened door of said platform, and by reason of said step failing to be in a position which would permit the plaintiff to safely alight from said street car, said step not being in a position horizontal to the street level, but instead was at an angle thereto, said plaintiff was caused to lose her balance and fall violently to the street; that the accident and injuries to plaintiff were due to the carelessness and negligence of the defendants and their agents in permitting said step to be at an angle which would cause plaintiff to fall.

There was also a wilful and malicious charge, which on motion of the plaintiff was withdrawn.

The answer of the defendants denies all charges, and alleges if the plaintiff sustained injuries they were not caused by any alleged carelessness or negligence on the part of the defendants, or their agents or servants, but were caused by the plaintiff’s own negligence at the time and place in question.

At the close of plaintiff’s case the defendants presented a motion to instruct the jury to find the defendants not guilty; also at the close of all the evidence. These motions were denied, and the instruction presented with each motion was further refused, after which the defendants presented their motion for judgment notwithstanding the verdict, which was denied and judgment was entered upon the verdict of the jury.

It does not appear from the record that the defendants filed a motion for a new trial, and the subject for review is the single question of whether the evidence of the plaintiff is legally sufficient to sustain the cause of action and to justify the court in directing that judgment be entered on the verdict of the jury.

From plaintiff’s evidence it appears that as the street car approached Rosedale avenue she, as a passenger, motioned to the motorman to let her off and he stopped the car at that point; that when the car stopped the motorman opened the door that leads from the platform to a step underneath the car for the purpose of alighting upon the street; that she had hold of the upright handle and stepped down onto the step with her right foot, when, as she testified, “my foot came in contact with the step and the step went down and it threw me and I went out; it threw me down.” It further appears from cross-examination of this witness that she looked toward the step in getting off and it appeared to be down; that “there was something wrong in the way the step was put down; it appeared to be level but it was not. It appeared to be all right but it wasn’t all right,” and she further said in her testimony that “no one else got off the car ahead of her and as to what I felt when my foot and weight hit that step, I was on the step and I felt the step under me and then suddenly it went down further after I was on.”

Counsel for defendants put this question to the plaintiff: “I say it was simply your conclusion, after you fell off, that something must have happened to the step, isn’t that true?” and she answered: “No, not the way you put it, it is not true.” So what we have indicated is, in a measure, the evidence of the plaintiff as to how the accident happened in which she was injured.

In considering the evidence offered on behalf of the plaintiff, we should have in mind the rules announced by the Supreme Court and the Appellate Court of this State that apply with reference to directing a verdict for the defendant or after a verdict for the plaintiff for judgment for the defendant notwithstanding the ver-diet. Plaintiff’s counsel calls our attention to Supreme Court Eule 22, which is also referred to by the defendants and reads as follows: “The power of the court to enter judgment notwithstanding the verdict may be exercised in all cases where, under the evidence in the case, it would have been the duty of the court to direct a verdict without submitting the case to the jury.”

In the case of Kelly v. Chicago City Ry. Co., 283 Ill. 640, the plaintiff recovered a verdict and judgment in a personal injury case, which was affirmed by the Appellate Court for this district. A certificate of importance and appeal was granted and upon review the court said:

“It is first insisted that the court was in error in refusing to exclude the evidence and instruct the jury to find defendant not guilty. A motion of this character, accompanied by the proper instruction, was made at the close of the plaintiff’s case and renewed again at the close of all the evidence. The court refused to give the instruction, and its refusal is assigned as error. The only question raised and preserved for review in this court on such motion is, does the evidence on the part of the plaintiff, if taken as true and most favorably considered for him, with all just inferences to be drawn therefrom, make out a prima facie case on the part of the plaintiff 1 The question of the weight of the evidence or the credibility of the witnesses cannot be considered. If there was any evidence in the record from which, standing alone, the jury might, without acting unreasonably in the eyes of the law, have found the material averments of the declaration to have been sustained, the motion was properly denied and the instruction refused. McGregor v. Reid, Murdock & Co., 178 Ill. 464; Libby, McNeill & Libby v. Cook, 222 Ill. 206; Devine v. Delano, 272 Ill. 166. We can, therefore, only review the evidence at this time for the purpose of ascertaining whether or not the evidence on the part of appellee established a prima facie case.”

That being the general rule, what effect did the failure of the defendants to make a motion for a new trial have when they made a motion for a judgment notwithstanding the verdict of the jury!

The court in the case of Illinois Tuberculosis Ass’n v. Springfield Marine Bank, 282 Ill. App. 14, had this to say upon the question involved in a motion for judgment notwithstanding the verdict under the Civil Practice Act of 1934: “It is provided however by sec. 68, par. (3)a, of the Civil Practice Act, Cahill’s Rev. St. 1933, ch. 110, par. 196, that at the close of the testimony either party may request the court for a directed verdict and that the court can reserve its decision thereon, and submit the case to the jury and after verdict may hear arguments for and against such request and if the court shall decide as a matter of law that the party requesting the directed verdict was entitled thereto, the court shall enter its decision on the record and order judgment in accordance with such decision notwithstanding the verdict. This provision of the Civil Practice Act changes the common law rule and permits either party to move the court for judgment notwithstanding the verdict.” The court further said:

‘1 The court in passing upon the motion must decide, as a matter of law, that the party requesting the directed verdict is entitled thereto. This provision of the Civil Practice Act taken in connection with Rule 22 of the Rules of Practice of the Supreme Court which provides: ‘The power of the court to enter judgment notwithstanding the verdict may be exercised in all cases where, under the evidence in the case, it would have been the duty of the court to direct a verdict without submitting the case to the jury,’ requires the court to be governed by the same rules in passing upon a motion for a judgment notwithstanding the verdict as govern it in passing upon a motion for a directed verdict. The trial court in passing upon this motion has no more authority to weigh and determine controverted questions of fact under the Civil Practice Act than under the Practice Act of 1907. Capelle v. Chicago & N. W. Ry. Co., 280 Ill. App. 471.”

In Capelle v. Chicago & N. W. Ry. Co., 280 Ill. App. 471, cited with approval by the court in the case of Illinois Tuberculosis Ass’n v. Springfield Marine Bank, supra, this language is used: “We are not of the opinion that the present Practice Act in allowing a trial court to give judgment notwithstanding the verdict, in favor of a defendant, has in any way abrogated or modified the above rules of law. The trial court has no more power to weigh and determine controverted questions of fact under the present Practice Act, than it had prior thereto. In furtherance of the general principle that it is preferable that cases involving-questions of fact should be disposed of on their merits by a jury, rather than upon formal motions, a trial court after denying a motion for an instructed verdict for defendant, at the close of plaintiff’s evidence and again at the close of all the evidence, should not render nugatory the verdict of a jury returned on disputed questions of fact, by rendering a judgment non obstante veredicto in favor of such defendant; but if the court is dissatisfied with the verdict under the evidence., he should grant a new trial instead.”

The trial court upon considering* what was said and after submitting the cause to the jury upon the question involved, was of the opinion it would not be justified in disturbing the verdict of the jury, for the court denied defendants ’ motion that the court enter a judgment for the defendants notwithstanding the verdict. The rule is well established that in passing upon a motion of this character the court is limited to the facts appearing in evidence, and must consider the evidence in the light most favorable to the plaintiff. As will be observed, the court is not in a position to weigh the evidence, but only to determine whether there is evidence tending to sustain the pleadings. This court is without jurisdiction upon a motion of the defendants to determine from all the evidence in the case whether the verdict of the jury is against the manifest weight of the evidence. Talcing into consideration plaintiff’s evidence, we believe it is sufficient to sustain the pleadings filed by her.

In the case of McCarthy v. Rorrison, 283 Ill. App. 129, a personal injury action in which the defendant made a motion to return a verdict in favor of the defendant notwithstanding the verdict, the court stated:

“Defendant concedes that in passing upon his motion the trial court had no right to pass upon the credibility of the witnesses or the weight of the testimony, and that his ruling can only be justified upon the theory that the evidence most favorable to plaintiff, with all its reasonable inferences, fails to make out a prima facie case upon a necessary element of her case. . . . ” The court stated further:

“In passing upon defendant’s motion the trial court was governed by the established rule that the evidence most favorable to plaintiff, with all its reasonable inferences, must be taken as true. ’ ’

As already indicated, we are of the opinion that plaintiff’s evidence makes out a prima facie case and that the court in denying the motion of the defendants for a judgment notwithstanding the verdict of the jury acted properly.

There being no error such as would justify a reversal, the judgment is affirmed.

Judgment affirmed.

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


text:
    Harry A. Frankel, Appellant, v. Allied Mills, Inc., Appellee.
    Gen. No. 39,450.
    Opinion filed December 15, 1937.
    Rehearing denied December 28, 1937.
    Henry E. Pratt and Landis, Landis & Landis, of Chicago, for appellant; Alvin Landis, of counsel.
    Winston, Strawn & Shaw, of Chicago, and Miller, Elliott & Westervelt, for appellee; John D. Black, of Chicago, Frank T. Miller, John D. Thomason, of counsel.
   Mr. Presiding Justice Hebel

delivered the opinion of the court.

Plaintiff appeals from a final judgment entered by the court in favor of the defendant notwithstanding a verdict was returned by the jury in favor of the plaintiff in the sum of $17,000.

On September 27, 1935, plaintiff instituted this action against the defendant by filing a complaint alleging substantially that he was employed by the defendant as an agent and broker to sell certain real estate owned by the defendant for an agreed commission of $17,000. On motion of the defendant, the original complaint was stricken and thereafter an amended complaint was filed. The defendant filed an answer to the amended complaint. Subsequently the plaintiff filed additional counts to the amended complaint and the defendant filed its answer to the additional counts. During the course of the trial the defendant filed an amendment to its answer to the additional counts.

A trial was had before the court and a jury and after the plaintiff rested, the defendant presented a motion for a directed verdict, which motion the court took under advisement and reserved its ruling thereon. The defendant did not offer to introduce any testimony on its behalf and at the close of the case renewed its motion for a directed verdict, which renewed motion the court also took under advisement. The issues were submitted to the jury under instructions by the court and after due deliberation, the jury returned its verdict in favor of the plaintiff for $17,000. The court entered and recorded the verdict, and thereafter the defendant presented its motion for a judgment notwithstanding the verdict of the jury, which motion was allowed by the court and an order was entered granting judgment for the defendant.

The defendant contends that under the terms of the contract of brokerage in the instant case plaintiff was not entitled to commission unless the seller and the purchaser entered into a written contract of sale which was binding and enforceable, and points to certain testimony of the plaintiff as to a conversation in New York between him and Hinkley Gf. Atwood, president of the defendant corporation, which is: “He (Atwood) asked me how much commission I wanted and I said $25,000 if a contract is consummated. At first he said it was a lot of money and was not sure that a deal could be agreed upon and I told him that a contract could be made. Finally he said, ‘all right, if I make a satisfactory deal, I will pay you $25,000.’ ” On cross-examination plaintiff further testified: “Mr. Atwood did not protest against paying me a commission in New York. The first time we met in the Distillers & Brewers offices, I told him it was a large deal and that a commission of $25,000 should be paid to me as broker, and after talking a while he said: ‘all right, if I make a deal I will pay you a commission of $25,000. ’ ’ ’ And further that he previously testified that:

“He (meaning Atwood) made the arrangements there for me to be the agent in this deal, right there and then. The contract was not signed then. It was just if and when he did make a contract I was to get $25,000. If he did not make a sale, I was to get nothing.” Defendant also points to the testimony of Bobert Silverstein, a witness for the plaintiff, which was to the same effect.

This language, which is criticized by the defendant, is not altogether controlling in this case for the reason that the parties themselves construed the effect of the contract entered into. From the evidence of Francis J. Parker and from other evidence in the record, it appears that the amount of the commission the plaintiff was to receive was discussed in New York with the parties in interest, when payment of the amount was considered by witnesses Francis J. Parker and Mr. Buhrer, who acted in fixing- the amount with the consent of all of the parties. Mr. Atwood was there at the time representing the defendant company, as well as Mr. Ungerleider and the plaintiff. The amount to be paid to the plaintiff appears from plaintiff’s exhibit 1, which is initialed by Parker and Buhrer, and according to the figures the amount agreed upon was $17,000. The witness Parker testified that when Mr. Atwood, Mr. Ungerleider and the witness came out of a private office to discuss the commission with the plaintiff, the contract had been signed; that Mr. Atwood, for his company, agreed to pay a lesser commission of $17,000, after Mr. Buhrer and Mr. Parker had decided upon the amount that was to be paid.

From these facts it seems to be clear that the plaintiff was entitled to a commission for services rendered; that the amount was agreed upon between the parties and by their acts the plaintiff was entitled to payment ; and that the amount to be paid was fixed at the sum of $17,000.

The only other question to be considered is whether the plaintiff not being a licensed broker in the State of New York is precluded from recovery because óf that fact. Plaintiff was a licensed broker in the State of Illinois, and upon invitation, at least, called on Mr. Atwood in New York with reference to the sale of the property located in Peoria, Illinois, consisting of a rather large tract of land, together with the buildings thereon, which were used for the distilling of liquor, and title to which would, according to the laws of Illinois, have to be conveyed by proper instruments.

The language of sec. 442-d, the section of the statute of the State of New York upon which the defendant relies as a bar to plaintiff’s action, is as follows: “Section 442-d: No person, co-partnership or corporation shall bring or maintain an action in any court of this State for the recovery of compensation for services rendered in any place in which this article is applicable, in the buying, selling, exchanging, leasing, renting, or negotiating a loan upon any real estate without alleging and proving that such person was a duly licensed real estate broker or real estate salesman on the date when the alleged cause of action arose.”

As we have already indicated in this opinion, the plaintiff was a licensed real estate broker doing business in Illinois. The contract which resulted in the claim now before this court had its inception in Illinois when plaintiff learned from Mr. Miller, a member of the board of directors and attorney for the defendant, that the property was for sale. When the question of sale was discussed by the plaintiff with Mr. Atwood, the president of the defendant company, it is evident that this transaction between the plaintiff and the defendant was for the purpose of carrying out the suggestion of the plaintiff to Mr. Atwood regarding the sale of the property, and it is wholly immaterial whether the plaintiff was licensed to do business in the State of New York.

In the case of Zeigler v. Illinois Trust & Savings Bank, 245 Ill. 180, where an issue arose somewhat similar to the one in the instant case, the plaintiff sought to recover for services rendered as a doctor upon a contract entered into between the doctor and a Mrs. McVicker of Chicago, the services being* rendered in California, where the doctor, by virtue of his contract, was obliged to attend her and render medical service. The defense was, because he was not licensed to practice medicine in California he could not recover for the amount due him under the contract. The court said:

“Appellee complains of the action of the court in refusing to give certain instructions asked in its behalf and in giving other instructions asked on the part of appellant. The questions raised on a number of these instructions have been already passed upon in the discussion of other questions involved and it will not be necessary to deal with them further. Matters raised by some of them, however, have not been noted. About four months before her death Mrs. McVicker, accompanied by the appellant, went to the State of California, where she died. Under a special arrangement made with Mrs. McVicker appellant accompanied her to California and attended her there. It is con- • ceded that appellant was not licensed to practice medicine in the State of California, and appellee insists that for that reason he is not entitled to recover anything for his services performed in the State of California, whether rendered pursuant to a contract or otherwise, and that the jury should have been so instructed. Appellant, when in attendance upon Mrs. McVicker, under the terms of his contract, while she was sojourning temporarily in the State of California, was licensed to practice medicine in the State of Illinois, and, so far as the determination of the questions involved here is concerned, it is immaterial whether he had authority to practice medicine in the State of California, or whether the medical attention he gave to Mrs. McVicker while in the State of California was in violation of the laws of that State. He was not ■ engaged in the general practice of medicine in California but was simply in attendance upon his patient, who was a resident of Illinois, while she was temporarily in California. The instructions asked on the part of appellee on this question were properly refused.”

How true that is in this case. The plaintiff was not engaged in the real estate business in the State of New York, but was merely in attendance for the purpose of taking up the question of the sale of property located in the State of Illinois, at the invitation of Mr. Atwood, president of the defendant company; and to carry out his obligation, he was in New York only temporarily.

The facts as to payment, whether by cash or stock, were submitted to the jury who passed upon this question, together with other questions mentioned in this opinion, and in doing so they were guided by the instructions of the court, to which no objections were made.

We are of the opinion that the court erred in entering judgment on defendant’s motion notwithstanding the verdict of the jury and the judgment is reversed and judgment entered here for the plaintiff in the sum of $17,000.

Judgment reversed and judgment here.

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


text:
    Klein’s Restaurant Corporation, Appellee, v. George McLain et al., Appellants.
    Gen. No. 39,746.
    Opinion filed December 15, 1937.
    Rehearing denied December 28, 1937.

      Harold L. Levy, Johntry & Fitzgerald, and Gren-ville Beardsley, all of Chicago, for appellants; Gren-ville Beardsley, of' counsel.
    Haas & Leffmann, of Chicago, for appellee \ Paul H. Leffmann, of counsel.
   Mr. Presiding Justice Hebel

delivered the opinion of the court.

Defendants appeal from an order entered by the court for a temporary injunction restraining the defendants from entering plaintiff’s place of business, liar ras sing, hindering, molesting or interfering with plaintiff, its agents, servants or employees; impeding, hampering, hindering or harrassing plaintiff in the conduct of its business; appearing with, or causing others to appear with banners, placards, posters, signs or notices of any kind, nature or description, intended, calculated to interfere with, impede, harrass or hamper plaintiff in the operation or conduct of its business; exhibiting, or causing to be shown, exhibited or carried, any sign, placard or poster upon which appears the statement, “This place is unfair to organized labor,” or words of similar import; making any statement that “plaintiff is unfair to organized labor” or a statement of like import or meaning. This was prayed for by the plaintiff in its bill of complaint.

From the record it appears that the matter in question was referred, upon the issues formed upon the plaintiff’s bill of complaint and the defendants’ answer, to a master in chancery who, on July 16, 1937, filed his report, and thereafter the court approved the master’s report and entered an order granting the injunction as prayed for by the plaintiff.

It appears from evidence presented to the master in chancery that in September, 1936, a strike was called by defendants against the plaintiff, and that two pickets were posted by defendant, one on the street in front of plaintiff’s restaurant and the other at the rear entrance to plaintiff’s place of business, who carried banners upon which appeared the following:

‘ ‘ This place is unfair to organized labor, Local 484, Hotel and Restaurant Employees International Alliance; Local 278, Bartenders’ International League of America, affiliated with American Federation of Labor, Illinois Federation of Labor and Chicago Federation of Labor. ’ ’

The disputed question is whether or not the employees of the plaintiff desired to join the union, one of the defendants in this cause. Plaintiff permitted representatives of the union to enter its place of business for the purpose of inducing the waitresses who worked for plaintiff in its restaurant business to join the union, which they refused to do, and the defendants called a strike because the plaintiff refused to discharge the employees and employ union help. However, we are not expressing an opinion upon the merits of the controversy for the reason that from an examination of the record we find the chancellor has granted the relief prayed for in the bill of complaint.

This question is before us upon the theory that the injunctional order of the court was an interlocntory one and granted for the purpose of permitting consideration of any further proceeding* by the parties and in order that the matter might remain in statu quo until a final hearing.

The Supreme Court in the case of People v. Standidge, 333 Ill. 361, made this statement upon the question: “An interlocutory injunction is merely provisional in its nature and does not conclude a right. It usually stands as a binding restraint until rescinded by the further action of the court. Its object is to preserve the subject in controversy, but it is not decisive of the cause upon the merits. The court merely recognizes the fact that, without expressing- a final opinion, a sufficient showing- has been made to warrant the preservation of the property or the rights in issue in statu quo until a hearing- may be had upon the merits of the cause. The granting of an interlocutory injunction necessarily rests largely in judicial discretion, to be exercised in view of the facts of the particular case. 1 High on Injunctions, (4th ed.) secs. 4, 5, 5a, 11; 2 Words and Phrases, (2d series) pp. 1149, 1150; 14 R. C. L. p. 312; Penkala v. Tomczyk, 317 Ill. 356; Baird v. Community High School District, 304 Ill. 526.” From this rule announced by the Supreme Court it is clear that an interlocutory injunction is merely provisional in its nature and does not conclude a right. The order of the court, although in form declares the order is a temporary one, in effect disposes of the merits of the controversy between the parties.

There is another question here regarding which we believe the court erred, and that is as to that part of the order granting leave to the defendants to file nunc pro tunc as of the date of the entry of the decree, written objections to the master’s report. The court in the order states, “and the court being advised of the nature and content of such objections, orders that upon the filing of such written objections same be and hereby are overruled nunc pro tunc as of this date.” Since no objections were filed and none presented to the court, we are of the opinion that the overruling of the objections in the manner indicated was erroneous. For the reasons stated the order is reversed and the cause remanded with directions to the court to proceed to a further hearing and enter such final decree as would be justified by the record.

Reversed and remanded with directions.

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