author: Mr. Presiding Justice Wilson

text:
    Frederick A. Auschwitz, Appellee, v. Wabash Railway Company, Appellant.
    Gen. No. 34,090.

      Heard in the third division of this court for the first district at the February term, 1930.
    Opinion filed October 29, 1930.
    Rehearing denied November 10, 1930.
    Hat & Brown and Leesman, Roemer & Schnell, for appellant.

      Royal W. Irwin, for appellee.
   Mr. Presiding Justice Wilson

delivered the opinion of the court'.

This is an appeal from the superior court of Cook county, seeking to reverse a judgment obtained by the plaintiff because of personal injuries sustained on November 13, 1926.

The plaintiff, Frederick A. Auschwitz, at the time of the accident, was a locomotive engineer. He bases his right to recover upon the Federal Boiler Inspection Act. Plaintiff was, at the time of the accident, in the course of his employment and the locomotive upon which he was at work was being used by the defendant, Wabash Railway Company, in interstate commerce. .

The fourth count of the declaration, upon which plaintiff principally relies, avers that it was the duty of the defendant to provide and maintain said locomotive and tender in a reasonably safe condition and repair, but that the defendant failed in its duty in that regard, in that it permitted and provided a certain step on the rear of the tender which was bent, twisted and extended out too far from the side of said tender, and, as a result thereof, the plaintiff, having dismounted from said engine or locomotive, was struck by said step while the said engine or locomotive was proceeding over, along and upon the tracks or rails of the defendant.

During the trial of said cause plaintiff amended this count of the declaration by striking out the words: “was bent, twisted and out of place,” leaving in effect that part of the counts which charged that the engine was defective by reason of the fact that the step extended out too far from the side of the tender. Defendant made a motion for a continuance because of the amendment, which was denied, and we believe properly so. The amendment added nothing new to the declaration, but on the other hand, limited the ground for recovery so that the defendant could not have been harmed by reason of the amendment. Moreover, the ground for recovery remained the same, in that it was based upon a defective condition of the engine, and did not charge a new cause of action.

From the facts it appears that the accident happened at a station of the defendant at Mansfield, Illinois. At this point there was a wooden platform extending along the railroad track and used by the defendant for passenger and freight traffic. The edge of the platform was between 2 and 3 feet from the rail and, at the time of the accident, it was wet and slippery. The platform was very low and, according to the testimony of the plaintiff, was only about 8 inches above the ties. There were steps upon the tender of the locomotive; one on the front and one on the rear corner, on the side nearest the platform. The engine had been engaged in switching cars and as it approached the platform plaintiff proceeded to alight from the cab of the engine for the purpose of obtaining something to eat. He had turned the engine over to the fireman, so that he could take the train down the track and permit the cars to stop opposite the platform. As the plaintiff alighted from the cab, his feet slipped from under him and he fell upon the platform. The testimony as to what happened immediately thereafter is conflicting.

According to the testimony of the plaintiff, he fell with both hands and feet upon the platform, facing in the direction in which the train was going. He was about to get up when the step on the rear end of the tender struck him and threw him around and knocked him down so that his legs were caused to go under the truck of the first car attached to the engine. The train at the time of the accident seems to have been running at between 4 and 5 miles an hour.

According to testimony introduced on behalf of the defendant, the plaintiff fell with his feet off of the platform and his legs went under the engine before he was struck by the step of the tender.

The manner in which the accident happened was a question of fact which was submitted to the jury, and this court is unable to say that its finding is manifestly against the weight of the evidence. There appears, however, to be one clear-cut issue in the cause, namely, whether or not the fact that" the step on the tender extended out beyond the side of the tender so far as to create a condition that was dangerous and defective, so as to bring the cause of action under the Federal Boiler Inspection Act.

It is insisted on behalf of the defendant that, even though the step extended out from the side of the tender, it was not defective because it was securely fastened, in good repair, and suitable for the purpose for which it was intended. On the other hand, plaintiff contends that there is an imaginary clearance line along the side of the locomotive or engine, which is known to all railroad employees and that the defendant, by providing the tender of its engine with a step which extended out beyond this imaginary clearance line, caused a condition of danger to those who, by reason of their employment, were caused to be near the engine or locomotive while it was in operation and moving along the rails of the track; that consequently, the step was defective because of said fact, even though it may have been firmly attached to the tender and not out of repair. "We do not consider that the manner of its construction was an engineering question, although this point is urged in the briefs.

The question was whether or not the locomotive was defective in that it had a defective step on the tender which was the proximate cause of the injury. Such a question is not an engineering one, but a question of fact. Chicago & Eastern Illinois R. Co. v. Driscoll, 176 Ill. 330; Pell v. Joliet, P. & A. R. Co., 238 Ill. 510.

The Federal Boiler Inspection Act provides that it shall be unlawful to use any locomotive or tender unless it and all parts appurtenant thereto shall be safe and suitable for the purpose for which they are intended. Section 4 of the Federal Employers’ Liability Act, Cahill’s St. ch. 114, If 324, provides that assumed risk shall not be a defense in any case where an employee is injured by reason of the violation of any statute enacted for the safety of employees. Section 3 of the same act, Cahill’s St. ch. 114, ff 323, provides that no employee shall be held guilty of contributory negligence where he has been injured by reason of the violation of any federal statute which is enacted for the purpose of providing for the safety of employees. By reason of these enactments, the question of assumed risk and contributory negligence on the part of the plaintiff are out of the case, leaving the sole question as to whether or not the step on the rear end of the tender was defective by reason of the manner of its construction. It is argued on behalf of counsel for the plaintiff that this step should have extended down below the tender in such a manner as to cause the edge of the stirrup or step to be flush with the side of the tender. It is insisted that if this step extended out beyond the side of the tender and 2 or 3 feet beyond the imaginary clearance line, it would not only be defective, but a trap, and dangerous to any person employed by the defendant company who happened to be working alongside of the track over which the engine was proceeding and that, therefore, the fact that it did extend out beyond this clearance line was a question for the jury as to whether or not it extended sufficiently far to cause a dangerous and defective condition.

It is not controverted that the step did extend out beyond the clearance line. The witnesses differ as to how far Put beyond the side of the tender the step extended, some placing it at 5 inches and others as high as 12 inches. It was not necessary in order to recover that the plaintiff should have been engaged in using the step while he was injured. It was sufficient if the step, by reason of its construction, was the proximate cause of the injury. Davis v. Wolfe, 263 U. S. 239.

A case very much in point is that of Gray v. Davis, 294 Fed. Rep. 57, decided by the United States Circuit Court of Appeals, First District. From the facts in that case it appears that the plaintiff, a brakeman, backed down the step at the end of the tender of the engine for the purpose of alighting and, while there was no direct testimony as to how the accident happened, the plaintiff having died as a result of the injury, there was evidence showing that the platform was built with a wavy contour and not straight, so that he might have been caught between the step and the edge of the platform. The platform was not-defective in that it was out of order or out of repair, but, if defective at all, by reason of the manner of its construction. The court in that case held that it was a question of fact for the jury. To the same effect see Lehigh & N. E. R. Co. v. Smale, 19 Fed. (2d) 67; Frye v. Chicago, Rock, Island & P. Ry. Co., 157 Minn. 52; and St. Louis-San Francisco Ry. Co. v. Barron, 166 Ark. 641; Molloy v. Chicago Rapid Transit Co., 335 Ill. 164.

We have examined the instructions and find no error, either in the giving or refusing of any of them.

If, as a matter of fact, plaintiff was upon the platform in the manner in which he testified, facing for-' ward on his hands and knees and in a position of safety, and was struck while in this position by the step on the tender as the engine proceeded along -the platform, then he is entitled to recover if the step projected so far out from the side of the tender as to be dangerous, and this we believe a question of fact which was properly submitted to the jury.

For the reasons stated in this opinion the judgment of the superior court is affirmed.

Judgment affirmed.

Hebel, J., concurs.

Friend, J., not participating.


source: Caselaw Access Project

license: Public Domain

text:
    Joseph Bros. Lumber Company, Appellant, v. Samuel Wolberg, Appellee.
    Gen. No. 34,153.

      Heard in the third division of this court for the first district at the February term, 1930.
    Friend, J., not participating.
    Opinion filed October 29, 1930.
    Robert L. Huttner, for appellant.
    I. E. Korn, for appellee; Clyde C. Fisher, of counsel.
   Mr. Presiding Justice Wilson

delivered the opinion of the court.

Plaintiff, Joseph Bros. Lumber Co., a corporation, brought suit against the defendant, Samuel Wolberg, on the following promissory note:

“8,283.36/100 Nov. 21st, 1927.
“Ninety day after date I promise to pay to the order of Morris Joseph, eight thousand two hundred eighty three 36/100 Dollars at office of Joseph Bros. Lumber Co. Value received, with interest at 6 per cent per annum.
' “ (Signed) Samuel Wolberg.”
The note bore the following indorsement:
“Pay to the Joseph Bros. Lumber Co.
Morris Joseph,
By Harry M. Fisher,
Attorney-in-Fact,
Joseph Bros. Lumber Co.”

Defendant’s second amended affidavit of merits admitted the execution of the note, but denied the authority of Fisher to indorse or transfer said note on behalf of the defendant. Said affidavit of merits contained additional defenses, but the trial court directed the jury to find the issues against the plaintiff and based its ruling upon the ground that the power of attorney did not authorize Fisher to indorse and deliver the note. The power of attorney in question was dated August 15, 1927, executed by Morris Joseph and his wife, Kate, appointing Harry M. Fisher their attorney to grant, bargain or sell any real estate of which they were then possessed and to sign deeds and execute, acknowledge or deliver contracts for the sale of such property and to sign and deliver trust deeds with or without covenants and to release dower and homestead rights. Also to sign, execute and deliver notes, bonds and guarantees and other evidence of indebtedness and confirming all such acts on behalf of their attorney touching or concerning such premises.

From a reading of the power of attorney it appears to be limited solely to the right to convey, mortgage, transfer and dispose of the real estate or any part of such as was possessed by the said Joseph and his wife, on the date of the instrument in question. The other provisions contained in said power of attorney appear to be those necessary to carry out this power granted their attorney in fact.

The note upon which this action is brought had no relation to any real estate owned by Joseph or his wife, but was executed during the course of a business dealing between Joseph, Wolberg and the plaintiff, and, according to our reading of the power of attorney, foreign to its purport and intent. It was not signed, executed nor delivered by reason of any transaction in which Fisher, the attorney in fact, was concerned, nor was it given to carry out any contracts concerning conveyances of real estate.

From the statement of claim it appears that the action is based upon the fact that the note was executed by the defendant, Wolberg, to the order of Morris Joseph and by him indorsed by his duly authorized agent. From this statement, it is apparent that the plaintiff relies upon the indorsement for the purpose of showing title in itself. Under the pleadings it became necessary for the plaintiff to allege and prove the indorsement. If plaintiff did not rely upon the indorsement it would have been necessary to set forth in the statement of claim the circumstances under which it was received. This rule is not in conflict with Pfeil v. Loeb, 255 Ill. App. 484, cited by counsel for plaintiff. If the power of attorney, under which the indorsement was signed, was not sufficiently broad to authorize the indorsement, then the plaintiff’s claim must fall. A power of attorney should be construed so as to limit the power to the clear and obvious intent of the agency therein created. Horne v. Ingraham, 125 Ill. 198.

From the facts involved in this proceeding, we are of the opinion that Fisher, as attorney in fact, derived no Authority from the power of attorney to indorse or deliver the note upon which this suit is predicated.

For the reasons stated in this opinion, the judgment of the municipal court is affirmed.

Judgment affirmed.

Hbbel, J., concurs.

Friend, J., not participating.


author: Mr. Justice Hebel

text:
    The People of the State of Illinois ex rel. Frank J. Loesch, Appellant, v. Frank L. Link et al., Appellees.
    Gen. No. 33,835.

      Heard in the third division of this court for the first distriet at the October term, 1929.
    Friend, J., not participating.
    Opinion filed October 29, 1930.
    John A. Swanson, State’s Attorney, for appellant; Edw. E. Wilson and John Holman, Assistant State’s Attorneys, and David S. Stansbury, of counsel.
    John L. McInerney, Albert Fink, Harold It. Schradzki and Bernhardt Frank, for appellees; John L. McInerney, of counsel.
   Mr. Justice Hebel

delivered the opinion of the court.

On the second day of May, 1929, a petition was presented to the superior court of Cook county by the State’s Attorney of Cook county, John A. Swanson, for leave to file an information in the nature of quo warranto to oust from office Frank J. Link, James M. Whalen, John J. Touhy, Lawrence F. King, August W. Miller, John K. Lawler and Henry A. Berger, members of the Sanitary District of Chicago. The petition sets forth that the statute of Illinois (Cahill’s St. ch. 42, If 337; chap. 42, sec. 320 Smith’s Stats., 1929, page 1195), provides that biennially after November 30, 1906, the trustees of the Sanitary District of Chicago shall make a full, complete, accurate and itemized report of all receipts and expenditures of moneys made by said the Sanitary District of Chicago, together with a copy of all contracts for expenditures of money to be made, and such report should be' made to the Glovernor and to the two branches of the legislature separately; and upon the failure, refusal or neglect of such trustees to furnish said report said trustees shall forfeit the office of sanitary trustee and be removed therefrom by writ of quo warranto.

The petition further states that on November 30, 1928, the said Link, Whalen, Touhy, King, Miller, Lawler and Berger all of whom were trustees of the Sanitary District of Chicago; and as such trustees became bounden to comply with the provisions of the statute and make a report therein exacted and directed to the G-overnor and to both branches of the legislature ; that it has been related to the petitioner by Frank J. Loesch that the said trustees had failed, refused and neglected to file the report required by the laws of the State of Illinois for the period beginning December 1, 1927, and ending November 30, 1928.

The affidavit upon which this petition was based was made by Frank J. Loesch and states that said Loesch is a taxpayer of the county of Cook and State of Illinois and that he now pays taxes in the district comprehended and territorially embraced in the Sanitary District of Chicago. It is then set forth that the said Link, Whalen, Miller, Lawler, Touhy, King and Berger were trustees, having been duly elected either by the People, or as in the case of Berger, by the members of the Sanitary District on the death of one Michael Rosenberg, who had been a trustee..

The affidavit further sets forth that from December 1, 1926, to November 30, 1928, the expenditures of the Sanitary District were in excess of one million dollars ($1,000,000) which moneys were obtained by taxation upon the assessable property in the said Sanitary District of Chicago and by sale of bonds for the said Sanitary District; that the above named trustees had failed, refused and neglected to furnish reports required by law for the period beginning December 1, 1926, and ending November 30,1928; that for this reason the said Sanitary trustees had forfeited their respective offices as trustees of the Sanitary District of Chicago but still pretended to be such trustees and to execute without any warrant, or right the offices of said trustees.

The information in quo warranto presented by the State’s Attorney sets up substantially the facts heretofore set forth in the affidavit of Frank J. Loesch, showing the election of the various members of the Sanitary District of Chicago; their qualifying to said office; sets out the statute in respect to their duty to make report, their failure to make such report and alleging in consequence thereof that said Link, Whalen, Touhy, King, Lawler, Miller and Berger respectively had forfeited their respective offices as trustees of the Sanitary District of Chicago and that they now hold and execute said offices without any warrant, title or right to said offices.

The information further alleges that the said Link et ah, as trustees of the Sanitary District had failed, refused or neglected to furnish the report required by law and for this reason had forfeited their offices as said trustees of the Sanitary District and were exercising the rights thereof without warrant of law.

A motion was made for leave to file information above mentioned, and the court thereupon entered a rule nisi that the respondent show cause why the prayer of the petition should not be granted.

Respondents in answer to said rule, over objection of relator, presented affidavit of Harry E. Hoff, in which said Hoff deposed that he was clerk of the Sanitary District of Chicago and that the said Sanitary District passed a certain resolution May 7, 1929; that he was familiar with the facts set forth and with the practice prevailing, in the Sanitary District of Chicago in connection with the preparation, filing, and time of filing the biennial reports; that he had examined the books and memorials and records as to the time of filing said biennial reports since 1906 and that he believed the matter contained in the' resolution in respect thereto was true; that there was attached to this affidavit a report for the fiscal year of 1927 and 1928, filed by affiant as clerk of the Sanitary District with the Governor of the State of Illinois and each branch of the legislature on May 8, 1929'; and that said biennial report contained all items of expenditures by the trustees during the fiscal years 1927 and 1928; that said report was attached hereto and marked Exhibit B and that the receipts from the presiding officers of each branch of the Legislature and from the Governor were also attached and marked Exhibits C, D and E.

The resolution of May 7,1929, referred to, sets forth that the State’s Attorney has asked leave to file an information in the nature of quo warranto based upon section 1 of the Sanitary District Act in respect to making reports, and that they deemed it advisable and necessary to state what actions had been taken to comply with the provisions of said Act by said trustees. The resolution reviews the passage of the Act in question and gives the history of the proceedings of The Sanitary District in respect thereto from 1905 and sets forth also that at no time has any Governor or other branch of the legislature by committee or otherwise called for further report after the filing of reports.

The resolution further states that the Sanitary District’s fiscal year ends on December 31 of each year; that the books are closed on that date but that the audits are not completed until about February 1 for the following year. In the year 1929, a new clerk was elected on January 17, and a new member of the Board of Trustees was admitted to the office of president on. December 6; that in the latter part of January or the early part of February the State’s Attorney started an investigation of the affairs of the Sanitary District and as a result vouchers and books of the Sanitary District had been in possession ■ and custody of the State’s Attorney. In consequence thereof, the work of auditing books and properly preparing reports of the Sanitary District had been delayed. In addition thereto, investigations of the Chicago Bar Association and a committee of the State Senate had delayed the progress of the work of preparing said report.

The resolution states that immediately after each meeting of the board of the Sanitary District of Chicago the proceedings thereof are printed and such printed proceedings contain a true and correct copy of all contracts for the expenditures of money entered into by the Sanitary District of Chicago as well as full, complete, accurate and itemized reports of all receipts and expenditures of money by The Sanitary District and are distributed to such persons as desire copies thereof. At the close of the fiscal year such proceedings are bound for the entire year and all of the proceedings of the Board of Trustees of the Sanitary District for the years/1927 and 1928 have been printed, which proceedings include copies of all contracts which were entered during the years 1927-1928 by said Sanitary District.

In the month of January, 1929, there was published in the Journal of Commerce a daily circular newspaper of general circulation in the State of Illinois a full statement of all receipts and expenditures of every kind, class and character made by the trustees of the Sanitary District during the year 1928.

The resolution further states that the board has been advised by the Law Department of The Sanitary District of Chicago that the submission or filing of said report while the legislature was in session and before the adjournment, was a compliance with the Act of section 1 of The Sanitary District Act in issue in quo warranto proceeding; that all reports filed pursuant to said Act above mentioned were filed during the sessions of the legislature and before the adjournment thereof excepting the report required to be filed for the period commencing with the organization of the district and ending July 1, 1905, which said report was filed October 19, 1905.

The trustees deny any intention on their part to refuse or neglect to comply with the provisions of the Act of 1905 referred to and that the trustees have considered the actions taken by their predecessors over a period of 23 years and they felt that they had substantially complied with the requirements of said Act and that the Governor and both Houses of the Legislature aiid- People at large had acquiesced in their action in the premises and thereby had placed a contemporaneous and binding construction upon the meaning of said Act. And they direct the clerk to file said report at once with the Governor and the two branches of the legislature.

In his affidavit, Hoff deposes that he believes the facts set forth in the resolution of the Sanitary Board are true.

The affidavit of Walter Beebe was presented on behalf of respondents. The affidavit was objected to by relator. The affidavit of Beebe explains what the various exhibits therein are, stating that Exhibit A is a schedule of the bonded indebtedness of the Sanitary District showing when the respective issues become due. Exhibit B is a schedule of the outstanding issues of tax anticipation warrants. Exhibit 0 is a copy of the decree of the Supreme Court of the United States and the lake level controversy. Exhibit D is a schedule showing the amount of sewage treated and Exhibit E is a schedule showing the territorial extent of the Sanitary District' of Chicago.

Henry A. Berger made a motion to dismiss as to himself based upon an affidavit showing that he was filling out the unexpired term of Michael Rosenberg and that on November 30, 1928, he had been a trustee for five months.

There was offered in evidence several pages of the Chicago Journal of Commerce which was objected to by relator.

From the affidavit of Harry Hoff, introduced in evidence as Exhibit B, there was taken the following letter from Edward Gore & Company, Certified Public Accountants, addressed to the Trustees of the Sanitary District of Chicago on November 28, 1928, which is in words and figures as follows:

“As a result of our work, the accounts of the District are up to date and its accounting records will compare favorably with, those of a private business establishment. ’ ’

After considering the petition, affidavits of respondents and exhibits in the case, the court overruled the motion for leave to file an information in the nature of quo warranto, to which action of the court exception was taken by relator, and the case comes before this court on appeal.

The People of the State of Illinois say that the judgment of the court below should be reversed:

Because the court erred in denying the prayer of the petition for leave to file an information in the nature of quo warranto.

Because the court erred in receiving over objection of relator the affidavit of Harry Hoff.

Because the court erred in receiving over objection of relator the affidavit of Walter Beebe.

Because the court erred in receiving evidence of certain pages of the Journal of Commerce issued January 31, 1921.

The judgment of the court is contrary to law.

It also appears from the record in this case that a separate report together with a copy of all contracts, was filed on May 8, 1929, with the Governor of the State of Illinois, the Lieutenant-Governor and the speaker of the House, and a separate receipt was given to the respondents, signed by David E. Shanahan, Speaker .of the House of Representatives of the State of Illinois, by Fred E. Sterling, President of the Senate of the State of Illinois, and by Louis L. Emmerson, Governor of the State of Illinois, which receipts are identical except the official signing and issuing a receipt and are in words and figures as follows:

“Received from Henry A. Berger, Howard W. Elmore, Lawrence F. King, John K. Lawler, Frank J. Link, August W. Miller, John J. Touhy, James M. Whalen and Ross A. Woodhull, Trustees of the Sanitary District of Chicago, biennial report for the fiscal years 1927 and 1928, submitted and filed with me as Speaker of the House of Representatives of the State of Illinois, upon behalf of such House of Representatives of the State of Illinois pursuant to Section 1 of ‘An Act to create Sanitary Districts and to remove ob: structions in the Des Plaines and Illinois Rivers,’ approved May 29,1889, and in force July 1, 1889, as subsequently amended May 13, 1905, and in force July 1, 1905, and as a compliance therewith, said report purporting to contain a full, complete, accurate and itemized statement of all recipts and expenditures of moneys during the period commencing January 1, 1927, and ending December 31, 1928, of said The Sanitary District of Chicago, together with a bound copy of the proceedings of the Board of Trustees of the Sanitary District of Chicago for the year 1927 and a bound copy of the proceedings of the Board of Trustees of The Sanitary District of Chicago for the year 1928, which proceedings purport to contain copies of all contracts entered into by The Sanitary District of Chicago for the years 1927 and 1928, together with a resolution concerning said report passed by the trustees of The Sanitary District of Chicago on May 7, 1928.”

The statutory provision, with which terms the petition charges the respondents failed and neglected to comply, is entitled, “An Act to Create Sanitary Districts, and to Remove Obstructions in the Des Plaines and Illinois Rivers,” approved May- 29, 1889. In force July 1, 1889. Section I of said Act, Cahill’s St. ch. 42, 337, was amended May 13, 1905, in force July 1, 1905, and is in part as follows:

“Provided, that the trustees of all sanitary districts heretofore created under this act and all sanitary districts hereafter to be creatéd under this act, whenever the expenditures of any such district shall have amounted to the sum of one million dollars and such sum shall have been raised by taxation upon the assessable property in any such sanitary district or shall have been raised by the sale of bonds of said district or otherwise, shall on or before September 1, A. D. 1905, report to the Governor of this State, and to the two branches of the Legislature thereof separately all of the items of expenditures theretofore made by them as such trustees, of the moneys so belonging to said sanitary district, together with all items of receipts from all sources and shall furnish with all such reports copies of all contracts entered into by them for the expenditures of moneys so belonging to said district and upon November 30, A. D. 1906, and biennially thereafter the trustees of any such districts shall make full, . complete, accurate and itemized reports of all receipts and expenditures of such moneys to be hereafter made by them respectively, together with a copy of all contracts for the expenditure of moneys hereafter to be made by such trustees to the Governor and the two branches of the State Legislature of this State separately, and the Governor and either branch of the said Legislature of this State shall have the right to examine the books of said trustees, and all expenditures made by or in any such district, by committee or otherwise, and to call for further reports, accounts, items and copies of all contracts made by or documents held in the possession of any such trustees, and upon the failure,- refusal or neglect of any such trustees to accurately and completely furnish any and all such items, accounts, documents and reports of contracts as provided in this act, any and all trustees of any such sanitary district shall forfeit their office and by writ of quo warranto be ousted and removed therefrom; all such actions to be brought in the county where any such trustees may reside, or wherein the major portion of any such sanitary district may be situated. ’ ’

The statute under consideration imposes a duty upon the trustees of the Sanitary District of Chicago to make a full, complete, accurate and itemized report as therein provided, to the Governor and to the two branches of the legislature separately. A failure to comply with the statute does not of itself cause the forfeiture or avoid the right and title to an office, but only renders it subject to forfeiture by proper proceeding, which is evidenced by the provision of the statute itself.

On May 8, 1929, the respondents, together with certain other trustees of the Sanitary District of Chicago, made and filed reports with the Governor, President of the Senate and the Speaker of the House of Representatives of the State of Illinois, five days after the petition for leave to file an information in the nature of a quo warranto was presented to the trial court. It is apparent that the State of Illinois, through its representatives, received the reports as being in compliance with the provision of the statute requiring such reports to be made as therein provided.

It must be conceded that a failure, neglect, or refusal to make such reports within the time required by the statute, the Governor, President of the Senate, or Speaker of the House of Representatives of the State of Illinois would be justified in refusing to receive and accept such reports, because such default would subject the respondents to a forfeiture of their several offices. But these State officers elected to waive the default as to the time of filing and making such report, and received the reports and issued receipts therefor. The purpose of the statute was the mailing of the reports to the Governor and to the two branches of the legislature separately. This object was fulfilled when the reports were made and received. A compliance with the provision of the statute of the State, as was done in this case, protected the title of the respondents against forfeiture of their several offices.

It is contended by the relator that the time fixed by the provision within which the report must be made is mandatory, that the respondents, and each of them, having failed to file a report together with a copy of all contracts, on November 30, 1929, forfeited the title to their offices. The law does not favor forfeitures, which rule has been long established and adopted in this State, and the court will not adopt a construction of language which would produce a forfeiture, unless the language of the statute is clear and it appears that such is the intention of the legislature. In other words, the court will not search for a construction to bring about such a result.

Assume that the trustees filed the biennial report, as required, on December 1, which was received as a compliance with statute. In reason, would not that be a reasonable effort to perform a duty required by law — that is, the making of reports Í A failure to file in time does not of itself annul the title to office, but renders it voidable. If the trustees in this case had made a report on November 30, 1929, then the title of such trustees to their several offices would not be subject to a forfeiture. If the report was made to the proper officers after that date and received as a compliance with the statute, then the title of the trustees to their several offices would be equally indefeasible, which is a reasonable construction of the statute in question.

In the case of the City of Chicago v. Gage, 95 Ill. 593, the Supreme Court had under consideration the question: Is a provision requiring a bond to be filed by the treasurer elect within 15 days after the official canvass has been declared, mandatory, and does a failure to file a bond within that time eo instanti upon the termination of the time absolutely vacate the office! The court in that case says:

“It is insisted on the contrary, that the sections of the charter on this subject taken together were intended merely to empower the mayor and council, in their discretion, to declare a vacancy and appoint a successor, or to waive the default as to the mere time of filing bond, and to accept and approve it when after-wards filed; therefore, a failure to file in time does not, of itself, annul or avoid the right or title to the office, but merely renders it voidable or defeasible. That if the officer files his bond strictly in time, his right and title to the office are indefeasible. If .he files it after-wards, and it be accepted and approved, his right and title thereupon become equally indefeasible.
“This latter seems a reasonable construction, and is one which we are disposed to. adopt. Gage derived his title to the office from the election. The law does not favor forfeitures, and ‘in enforcing forfeitures courts should never search for that construction of language which must produce a forfeiture, when it will bear another reasonable construction.’ Hartford Ins. Co. v. Walsh, 54 Ill. 168.
“Suppose the filing of the bond within the fifteen-days had been prevented by some inevitable accident, but the very next day after the officer filed his bond, which was accepted and approved, — in reason, why should not that suffice, and the officer have right to the office for the term for which he was elected? The aim of the statute would be fulfilled. The object of the statute was not a change of person to hold the office, but to secure an official bond. That having been given, the person whom the people had elected would seem the more proper person to have the office, than one appointed by the mayor and council.
“It is conceded that after the expiration of the fifteen days the mayor and council would have been fully justified in refusing to accept and approve this bond, because of this default; and in appointing Gage’s successor, as in the case of Ross v. The People, 78 Ill. 375. Had they so elected, Gage’s right to the office would have been forfeited, and a person appointed who would give a bond. But (in theory at least) the rights and interests of the public were made equally secure by electing to waive the right of forfeiture and accepting and approving the bond in suit, after the fifteen days.
“ ‘ There is a known distinction, ’ say Lord Mansfield, ‘between circumstances which are of the essence of a thing required to be done by an act of Parliament, and clauses merely directory. The precise time, in many cases, is not of the essence.’ Rex v. Loxdale, 1 Burr. 447. It seems reasonable that it is only when ‘the rights of the public, or of third persons, depend upon the exercise of the power or the performance of the duty to which it refers, ’ that the statute should be held mandatory, and otherwise but directory. Kane v. Footh, 70 Ill. „ 590; and see Sedgw. Stat. and Const. Law, 368-74. Here, the essence of the thing to be done, — that upon which the rights of the public depend, — is the giving of the bond, not the precise time when it is done.
‘ ‘ There are numerous authorities that a provision of law, that an officer shall give bond within a prescribed time after Ms election, is directory only. The People v. Holly, 12 Wend. 480; State v. Churchill, 41 Mo. 41; State v. Porter, 7 Ind. 204; and see Kearney v. Andrews, 2 Stock. Ch. 70; Speake v. United States, 9 Cranch, 28. The other clauses in the charter, ‘he shall be deemed to have refused said office and the same shall be filled by appointment, ’ or, (if held to apply here) ‘the office shall become vacant,’ it may be held do not change the rule, as the following authorities show, in the case of words even more explicit than these.
“In State v. Toomer, 7 Rich. (Law) 216, the statute required the master in chancery, within three weeks after his election, to tender his bond for approval, and upon its approval, to deposit it with the treasurer and sue out his commission, and that ‘upon his neglect or failure- to do so within the said time, his office shall be deemed absolutely vacant, and shall be filled by election or appointment, as heretofore provided. ’
“But the court held that the failure to comply with this reqMrement was only cause of forfeiture, but not a forfeiture ipso facto. That by a strict compliance with the directions of the statute, the title of the office was protected against forfeiture, ‘ and that if the State sees proper to excuse his delinquency by granting him his commission, the defects of his title are cured, and it is converted into a title de jure, having relation back to the time of his election. ’
“In Sprowl v. Lawrence, 33 Ala. 674, the statute required the sheriff to file his official bond in the office of the probate judge, before entering upon the duties of his office, and within fifteen days after his election. The statute also expressly declared that if he failed to file his bond within the time prescribed by law, he vacated his office. The court there say: ‘By virtue of his election, Duncan was sheriff, so far as his mere right to the office was concerned, before he executed his bond. . . . The election having thus invested Dim with his title to the office, the statute requiring him to file his bond within fifteen days, and providing that on his failure to do so he “vacates his office,” operates as a defeasance, and not as a condition precedent, ’ and concluding as follows: ‘Our conclusion is, that the failure of a legally elected sheriff to file his bond within the time prescribed, does not, by its unaided force, operate his instantaneous removal from office; and that a bond executed by him more than fifteen days after his election, and before any steps or proceeding on the part of the State to effect his amotion, must be considered as the bond of an “officer” within the meaning of section 132 of the code, ’ that is, of an officer de jure.”

In Massey v. The People, 201 Ill. 409, 412, the court cited with approval City of Chicago v. Gage, supra, in these words:

“The statute provides that the city clerk shall give notice to the person elected within five days after the result of the election is declared, and unless such person shall qualify within ten days after notice the office shall become vacant. (1 Starr & Cur. Stat. 1896, P. 689.) But the provision- for notice has been held as directory, and the declaration that the office shall become vacant as the cause of forfeiture of an office rather than forfeiture ipso facto. (City of Chicago v. Gage, 95 Ill. 593.) In that case the question received a very full consideration, and under its authority the statute might authorize the city council to reject the defendant as alderman or to refuse to allow him to qualify later than ten days after notice, but he would not lose the title which he obtained by his election if he was permitted to qualify and act.”

For the reasons indicated, it will not be necessary to pass on other questions raised on this appeal.

The order denying leave to file an information in the nature of quo warranto is affirmed.

Order affirmed.

Wilson, P. J., concurs.

Friend, J., not participating.


text:
    Henry F. Ehlers, Appellant, v. Jennie M. Ehlers and Chicago Title & Trust Company, Trustee, Appellees.
    Gen. No. 33,844.

      Heard in the third division of this court for the first district at the October term, 1929.
    FRiend, J., not participating.
    Opinion filed October 29, 1930.
    Edward A. Zimmerman and Robert L. McDougal, for appellant.
    Ewart Harris, for appellees.
   Mr. Justice Hebel

delivered the opinion of the court.

The complainant, Henry F. Ehlers, filed his amended bill in the circuit court of Cook county to cancel and set aside a certain agreement by which the sum of $2,000 was deposited by him with the Chicago Title & Trust Company, to which amended bill the court sustained a demurrer and the complainant electing to stand by his amended bill, the trial court dismissed the bill for want of equity, from which decree the complainant perfected his appeal to this court.

The bill alleges in part that the complainant had been employed as a bookkeeper at a maximum salary of $275 per month; but by reason of his employer going out of business he lost his position and on account of his inexperience in the business world has been unable to obtain a position equally remunerative; that he had laid up a modest sum for the support of himself and wife, Jennie M. Ehlers, but which, due to her extravagance, was rapidly depreciated; that for more than five years prior to June, 1927, he had given the defendant a regular allowance of $170 per month, and in addition thereto paid all bills in connection with the maintenance of their home; that the defendant, Jennie M. Ehlers, is a woman of quarrelsome nature and unruly temper and had made false accusations against him and various threats upon his life; that for a short space of time it became necessary for him to live separate and apart from her; that she engaged the services of an attorney and through the attorney continued to make unreasonable demands, and on the 16th day of February, 1927, upon her demand and that of her attorney, complainant was induced to execute an agreement, in words and figures as follows:

“Chicago, February 16, 1927.
“Chicago Title and Trust Co.,
Chicago, Illinois.
‘ ‘ Gentlemen:
“I am depositing with you today the sum of Two Thousand ($2,000.00) Dollars with which amount you are directed to purchase an investment to be held upon the following conditions:
“During the lifetime of Jennie M. Ehlers you are to pay her the net income from the investments held hereunder, less your fees which are to be $25.00 per annum.
“Upon the death of either the said Jennie M. Ehlers or myself, you are to transfer and pay over the property held hereunder to the survivor of the said Jennie M. Ehlers and myself.
“In case either the said Jennie M. Ehlers or I shall file a bill for divorce or separate maintenance and the summons is issued thereunder, you are immediately thereupon to transfer and pay over all of the property held hereunder to the said Jennie M. Ehlers.
“Any or all of the property held hereunder may be withdrawn upon the joint written direction of the said Jennie M. Ehlers and myself.
“(Signed) Henry F. Ehlers. •
“Approved:
Jennie M. Ehlers.
Receipt of $2,000.00 is acknowledged to be held upon the above terms and conditions.
Chicago Title and Trust Company.
By M. A. James, Asst. Trust Officer.”

That immediately after the agreement was signed and the money deposited, Jennie M. Ehlers resumed her abuse and unreasonable demands for money and made threats that unless he paid her further sums beyond her regularly monthly allowance she would bring an action against him for separate maintenance or divorce and ask for the $2,000 deposited with the Chicago Title & Trust Company; that the demands having been refused, Jennie M. Ehlers then residing with him on May 8,1927, filed a bill for separate maintenance falsely charging that she was compelled to cease cohabiting with him, which bill was afterwards dismissed. Complainant prays that the contract' be canceled and set aside and decreed null and void, and that the trust company pay over whatever sum is found to be due complainant and for such other and further relief as equity shall require.

The demurrer to the bill sets up, in substance, that complainant has not stated such a cause of action as would entitle him to equitable relief; that the agreement sets up a provision for payment from the fund held by the trust company of an income to Jennie M. Ehlers, the wife of Henry F. Ehlers; that the agreement provides for the disposal of the fund by agreement of the parties and upon the death of either, which provisions are lawful; that the agreement is severable and the lawful provisions severable from the unlawful.

The complainant contends that the agTeement, the subject of this controversy, is void as against the public policy of the State, in that it encourages divorce and separate maintenance and disturbs and interferes with the existing marriage relations; that the contract lacks consideration and is inequitable. There is no question but that a husband has the power to make a settlement of property or funds on his wife by a trust agreement, which may be done before marriage or after-wards. When it is so done, as between the parties, it has always been held to be binding, and can only be questioned by creditors or third parties if injured or defrauded. A husband is bound to support his wife, and of course may make such provision therefor by contract. Such contract, because of the relations of the parties thereto, has always been held to constitute a sufficient consideration. In the case of Phillips v. Meyers, 82 Ill. 67, 69, the'court having passed upon such a contract, says:

“The wife is regarded as a meritorious object of the bounty of the husband. Provisions for her support are always upheld, unless wrong or injury results to those holding legal obligations against the husband. In such cases, the duty to support forms a sufficient consideration. ’ ’

The contract in question provides for a deposit of $2,000 with the Chicago Title & Trust Company, and it is directed to invest such sum, to be held on condition that the trust company during the lifetime of the defendant pay her the net income from the investment, and that upon the death of either the defendant or the complainant, to pay over the property to the survivor. The contract also provides that the property may be withdrawn upon the joint written direction of the complainant and the defendant. There can be no doubt that if these were the only provisions in the contract it would be an enforceable one, but it is earnestly insisted upon by the complainant that the following provision, “In case either the said Jennie M. Ehlers or I (meaning the complainant) shall file a bill for divorce or separate maintenance and the summons is issued thereunder, you (meaning the trust company) are immediately thereupon to transfer and pay over all of the property held hereunder to the said Jennie M. Ehlers.” makes the contract void as against the public policy of this State, and is not divisible from the other provisions of this contract. This provision made by the complainant for his* wife, the defendant, that the income from the money deposited by the complainant shall be paid by the Trust Company under this agreement to the wife, and upon the death of either, to the survivor, is based upon sufficient consideration, and as said in the case of Stratton v. Wilson, 170 Ky. 61, “When an agreement founded on a legal consideration contains several promises or a promise to do several things, and some only of the things to be done are illegal, the promises which can be separated, or the promise so far as it can be separated, from the illegality, may'be valid.”

The consideration for the contract now under consideration was the meritorious object of the complainant to provide for his wife. That is clear, for the income from the fund is to be paid unto the defendant during her lifetime. That is one of the several things that the Trust Company must do. That being so, the provision is to be treated as a severable one from the provision that if either one of the parties to the contract shall file a bill for divorce or separate maintenance and summons is issued therefor, the Trust Company shall pay over all of the said property to the defendant. There is no serious question but that the provision is void. It is an inducement to a future separation that may or may not happen. The settled rule and policy of the law is to the effect that the marital state should not be disturbed, and that the parties to it should not be led into breaking its vows by the allurement of any stipulation they may enter into. Stratton v. Wilson, supra.

This provision may be disregarded, for the reason that it is a promise that is several and is not an essential part of the contract, the consideration of this contract being the payment by the Trust Company of the income to the wife, the defendant. Stratton v. Wilson, supra; Tenner v. Chicago City Ry. Co., 258 Ill. 523.

This contract is an executed one so far as the complainant and defendant are concerned, and it will be sustained in equity. The intent of the parties to the contract is that the defendant is to receive the income as fixed in the contract. Nothing remains to. be done by the parties thereto, except that the trustee is to carry out each lawful provision of the contract, disregarding the provision that the Trust Company is to pay the sum deposited to the defendant upon a bill for divorce or separate maintenance being filed by one of the parties to the contract.

The trial court did not err in sustaining the demurrer, and upon the election of the complainant to stand by his amended bill, the decretal order dismissing the bill for want of equity is affirmed.

Affirmed.

Wilson, P. J. concurs.

Friend, J., not participating.


author: Mr. Presiding Justice Matchett

text:
    Mike Lucas et al., Plaintiffs in Error, v. Eva H. Hamilton et al., Defendants in Error.
    Gen. No. 34,208.
    Heard in the first division of this court for the first district at the April term, 1930.
    Opinion filed November 3, 1930.
    Rehearing denied. November 17, 1930.

      J. H. Silver and William C. Greatman, for plaintiffs in error.
    Samuel A. Ettelson, Corporation Counsel, and Frank J. Core, Assistant Corporation Counsel, for defendant in error Zoning Board of Appeals. Schuyler, Weinfeld & Parker, for defendant in error Louis Dworkin; Carl J. Appell and George W. Lennon, of counsel.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.

This is a writ of error to review an order of the circuit court of Cook county entered in a proceeding upon certiorari granted by said circuit court to the Board of Appeals of the City of Chicago under the zoning ordinances of said city.

Louis Dworkin, the owner of premises known as 1021-25 North Robey Street, requested from the building commissioner of the city a permit to erect a one-story retail and wholesale bakery building on said premises. The request was refused and the owner appealed to the board, which after a hearing found that the ordinance imposed a hardship upon the owner and passed a resolution allowing a variation.

Petitioners are owners of certain pieces of real estate on said North Robey Street and on Winchester Avenue, a parallel street. North Robey Street is placed by the zoning ordinance in a commercial district and for what is described by the ordinance as a “03” use. The ordinance declares:

“A C3 use shall include, provided all materials and products are stored and all manufacturing operations are carried on entirely within substantial buildings completely enclosed with walls and roof, and provided no operations are of such a nature as to become offensive or noxious to the occupants of adjoining premises devoted to or adapted for other uses, by reason of the emission of odors, fumes or gases, dust, smoke, noise, or vibrations, the following uses: — food products, beverages, confections manufacturing, preparation, compounding, baking, canning, packing or bottling. ’ ’

The evidence indicates that the building, as the plans finally submitted provided it should be constructed, complied with all the provisions of the ordinance, but it is contended on the part of petitioners that the proposed building violated section 10 (d) of the ordinance, which provides:

“(d) No C3 use or part thereof, together with auxiliary uses thereto, shall be established in that part of a Commercial District which is nearer at any point to a residential district or apartment district than 125 feet.”

The boundary line between the commercial district, in which the Eobey Street property is located, and the apartment district in which the Winchester Avenue properties are located is an alley between the two streets, and if the measurement is made in a direct line across the alley, the distance between the same is (of course) less than 125 feet; but if the distance is measured from the front of the lot on Eobey Street to the front or, as it is claimed, to the rear, of the lots on Winchester Avenue, the distance would be much more than 125 feet.

The evidence shows without contradiction-that many of the premises upon North Eobey Street are already devoted to nonconforming uses ;■ some being used for grocery stores, others for drug stores, another for a doctor’s office. A dairy and a delivery stable are also located upon North Eobey Street. The owner states (and the statement is not contradicted by any reply brief) that all of the witnesses who testified for petitioners were property owners from Eobey Street and other streets situated in the commercial district, and That there is no evidence in the record tending to show that the proposed building would cause any damage to property owners on Winchester Avenue.

After the request for a permit was filed, the plans seem to have been changed so as to permit a driveway in front of the premises with no means of egress or ingress from the back, which is to be wholly closed, and the construction is to be of a kind and character which would prevent noise of any nature. Indeed, the residence property on Winchester Avenue seems to be completely protected from damage under the altered plans.

In view of the nonconforming uses which already existed upon North Robey Street, the lack of objection by owners from the residential district and the want of standing to object under the terms of the ordinance by the owners on North Robey Street, and the findings of the circuit court after weighing the evidence, we would hardly be justified in holding that the Zoning Board abused its discretion in allowing the variation. Whether there was such abuse of discretion would seem to be the question which we are required to decide. People v. Board of Sup’rs of LaSalle County, 84 Ill. 303; Johnson v. Sanitary District, 163 Ill. 285; MacGregor v. Miller, 324 Ill. 113; Minkus v. Pond, 326 Ill. 467.

For the reasons indicated the judgment of the trial court is affirmed.

Affirmed.

McStjrely and O’Cosmos, JJ., concur.


author: Mr. Presiding Justice Hatchett

text:
    C. F. Raming and L. B. Raming, Trading as Raming & Raming, Appellants, v. Dr. Ed. Peyser et al., Defendants. Dr. Ed. Peyser, Appellee.
    Gen. No. 34,279.
    Heard in the first division of this court for the first district at the April term, 1930.
    Opinion filed November 3, 1930.
    Herman Haling, for appellants; James B. Cashin, of counsel.
    Harold O. Hulks, for appellee.
   Mr. Presiding Justice Hatchett

delivered the opinion of the court.

Plaintiffs in the trial court, who are appellants here, brought an action in replevin. There was a trial by the court and a finding for defendant with an order for a writ of retorno habendo, motions for a new trial and in arrest being overruled. Plaintiffs seek to reverse the judgment by this appeal.

Defendant in his brief urges a motion to dismiss the appeal, but he has not complied with Rule 15 of this court with reference thereto, and for that reason the motion will not be considered.

The property in controversy is a Chevrolet motor car of the alleged value of $250, which the declaration alleges to be the property of plaintiffs, unjustly detained by defendant.

Defendant filed a plea that plaintiffs were not the owners and a further plea that the note and chattel mortgage upon which plaintiffs rely to establish their rights, were given in a transaction wherein a loan of $250 was made by plaintiffs to defendant; that plaintiffs were without a license from the Department of Trade and Commerce as provided by an Act approved June 14, 1917, in force July 1, 1917 (see Laws of Illinois, 50th General Assembly, 1917, p. 553), Cahill’s St. ch. 74, jf 27, and that under the provisions of that act the note and mortgage were void; that plaintiffs thereby forfeited the right to receive either principal or interest. To this plea plaintiffs filed a special demurrer, which was sustained, and there was no further pleading with reference thereto.

Plaintiffs filed a replication to defendant’s plea of property, and the evidence was heard by the court, with finding and judgment as heretofore stated.

Upon the trial plaintiffs offered in evidence the note and chattel mortgage made August 8, 1929, and the uncontradicted evidence submitted tended to show that while the note purports to represent a transaction wherein $350 was loaned, the actual amount loaned was $250; that the plaintiffs were not licensed under the statute, and that the transaction was usurious and of a kind forbidden by the statute. The evidence was in part presented by stipulation, and the record does not disclose any objection made to the evidence when offered.

It is now contended by plaintiffs upon this appeal that the introduction in evidence of the chattel mortgage and note established a prima facie right to possession in them (Commercial Credit Trust v. Land, 251 Ill. App. 469); that the defense of usury was a right personal to the debtor, which was waived (Schiele v. Anderson, 252 Ill. App. 390), and that the fact that the contract was usurious could not be presented as a defense unless it was specifically pleaded. (Harris v. Bernfeld, 250 Ill. App. 446; Manufacturers Finance Trust v. Stone, 251 Ill. App. 414.)

This contention cannot be sustained for several reasons. In the first place, the case was not tried upon that theory, there being no objection made to the evidence when it was offered. In the second place, while the general rule is undoubtedly as contended by plaintiffs, there is a well recognized exception to it, namely, that where a plaintiff relies upon an instrument in writing for the purpose of showing his right or title, a defendant may attack the instrument on the ground that it is void for usury without specially pleading it. Jacques v. Stewart, 81 Gra. 81, 6 S. E. 815; Adamson v. Wiggins, 45 Minn. 448, 48 N. W. 185; Davis, McDonald & Davis v. Tandy, 107 Mo. App. 437, 81 S. W. 457; Davis v. Culver, 58 Neb. 265, 78 N. W. 504; 27 Ruling Case Law, 267, sec. 70, note 12; 39 Cyc. 1041. Moreover, the statute in question has been construed to mean that even a single forbidden transaction makes the lender guilty of a violation of its provisions. People v. Stokes, 281 Ill. 159. The whole transaction was therefore illegal and contrary to law.

Plaintiffs contend that clause A of section 2 of the act, Cahill’s St. ch. 74, j[28, which provides: “If interest or charges in excess of those permitted by this Act shall be charged, contracted for or received by any license, the contract of loan shall be void and the licensee shall have no right to collect or receive any principal, interest or charges whatsoever,” applies only to licensees. Since plaintiffs in this case had no license, it is said that that clause is not applicable to them. The particular clause may not be applicable to persons other than licensees, but the statute makes a transaction of this kind also illegal if made by a person who has not obtained a license and subjects him to fine and imprisonment. Under the provisions of the statute, the contract was illegal, whether made by a person licensed or unlicensed, and in either case the contract would be void.

For the reasons indicated the judgment of the trial court is affirmed.

Affirmed.

McSurely and O’Connor, JJ., concur.


author: Mr. Justice McSurely

text:
    John S. Cherkezian and Nishan Cherkezian, Trading as Cherkezian Bros., Plaintiffs in Error, v. A. A. Julin, Trading as Julin Importing Company, Defendant in Error.
    Gen. No. 34,242.
    Heard in the first division of this court for the first district at the April term, 1930.
    Opinion filed November 3, 1930.
    Maurice L. Zaretsky, for plaintiffs in error.
    No appearance for defendant in error.
   Mr. Justice McSurely

delivered the opinion of the court.

By this writ of error plaintiffs seek the reversal of a judgment in favor of defendant entered after the overruling of plaintiffs’ demurrer to defendant’s special plea.

The action was originally one in replevin against A. A. Julin doing business as Julin Importing Company, Edward Gr. DeFoe, Claude A. Huck, Frank N. Farnsworth, John Doe and Mary Doe for the recovery of certain rugs valued at $2,021.09. The affidavit of replevin was duly filed and a writ of replevin issued and directed to the sheriff commanding him to seize said rugs. The defendants appeared and filed pleas, denying the taking and detention of the rugs. The defendants DeFoe, Huck and Farnsworth filed special pleas, claiming ownership of the rugs through a purchase from Julin in the regular and ordinary course of business without any notice of the rights of plaintiffs. Subsequently, by stipulation, DeFoe, Huck and Farnsworth were dismissed out of the case and plaintiffs were given leave to amend their declaration instant er by adding two counts in trover, and leave was given to Julin to plead to the amended declaration. The two counts in trover were added and defendant . Julin filed a special plea asserting that the dismissal of defendants Farnsworth, Huck and DeFoe out of the case amounted to a bar against the plaintiffs proceeding against the remaining defendant, Julin. To this special plea plaintiffs interposed their special demurrer ore tenus, which the court overruled, and plaintiffs electing to stand by their demurrer the court found in favor of defendant Julin and entered judgment accordingly.

Did the dismissal of some of the defendants bar the plaintiffs from proceeding further against the remaining defendant? The defendant does not appear in this court and no authorities are presented in support of the court’s holding that such a dismissal worked a bar.

As a general proposition the dismissal of some of the defendants does not prevent the plaintiff from proceeding against those still in the case. Youngquist v. Hunter, 227 Ill. App. 152. In Roman v. Dreher, 1 Ala. App. 429, it was held that, where one defendant was dismissed out of a trover case, plaintiff would be permitted to proceed to judgment against the remaining defendant. In Waterhouse-Wilcox Co. v. Betz & Mabrey, 73 Cal. App. 236, it was held that in a replevin action plaintiff may dismiss against one or more defendants and proceed against the remainder. The rule is stated in 18 C. J. 1162, sec. 37:

“In an action of tort the plaintiff may at any stage of the cause enter a nolle prosequi, dismiss or discontinue as to a part of the defendants without discharging the rest. ’ ’

Among the cases in this State following this are Humason v. Michigan Cent. R. Co., 259 Ill. 462; Nordhaus v. Vandalia R. Co., 242 Ill. 166; Lasher v. Littell, 202 Ill. 551; Adams v. Jurich, 160 Ill. App. 522.

We see no good reason why this rule should not be applied in the instant case. It is a tort action in which all the defendants are liable jointly and severally, and to dismiss some of them does not affect the right to proceed against the remaining defendant.'

The demurrer to the special plea of defendant should have been sustained. The judgment is therefore reversed and the cause remanded for further proceedings consistent with what we have said in this opinion.

Reversed and remanded.

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


author: Mr. Justice O’Connor

text:
    Catherine Hughes et al., Defendants in Error, v. Dora P. Hoerich et al., Plaintiffs in Error.
    Gen. No. 34,198.
    Heard in the first division of this court for the first district at the April term, 1930.
    Opinion filed November 3, 1930.
    Sherwin, Dosland, Conner & Mayfield, for plaintiffs in error.
    Charles J. Gallagher, for defendants in error; Sherman C. Spitzer and Charles F. Grimes, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.

Catherine Hughes and the trustee named in the trust-deed filed a bill to foreclose the trust deed which was given to secure an indebtedness. The evidence was taken before the master and a decree entered by the chancellor finding that there was due the complainant $13,111.02, and decreeing that it be paid by some of the defendants within three days, or the property conveyed by the trust deed be sold by the master, and out of the proceeds thereof pay the complainant, and if there was a deficiency, to report the same to the court. It is the ordinary foreclosure decree. The decree further found that the defendant Elias Herman was the legal owner and holder of an indebtedness which was a lien on the premises being foreclosed but was subordinate to the lien of the complainant, Catherine Hughes. Neiman has sued out this writ of error and his contention is that the decree should have given him a first lien on the premises.

The record discloses that Neiman is the owner of three deficiency decrees rendered in three foreclosure suits in which the defendant Sarah Korach was the maker of the notes and trust deeds. She is also the maker of the note and trust deed in the instant case. The three decrees in the three foreclosure suits were entered September 13, 1928, and the three trust deeds in those cases conveyed three pieces of property owned by defendant Korach. These properties were other and different from the property covered by the trust deed in the foreclosure suit before us.

The evidence further shows that on September 5, 1928, eight days before the three decrees were entered, Catherine Hughes, the complainant, sold the premises in question to the defendant, Sarah Korach, and on the same date, and as a part of the purchase price, took back the trust deed and note involved in the present foreclosure suit. The trust deed, however, was not recorded until October 2, 1928. On October 30, 1928, within a month after Sarah Korach purchased the property, she conveyed it to a third party and by mesne conveyances the premises came into possession of one of the defendants and there being a default in payment of the interest due on the mortgage, foreclosure was brought.

As stated, three foreclosure decrees were entered in favor of Neiman and against Sarah Korach on December 13, 1928, on property other than that in question. There were sales under these decrees and three deficiency decrees were entered November'2, 1928. The three decrees entered in favor of Neiman were the ordinary foreclosure decrees to the effect that unless the indebtedness found by the respective decrees was paid within three days, the property be sold, etc.

The sole question for decision is whether the three amounts found to be due from Korach to Neiman in the three decrees of September 13, 1928, were liens upon the premises being foreclosed superior to that of the lien of Catherine Hughes. Neiman contends that the three decrees rendered in his favor are superior to the lien of Catherine Hughes because they were entered September 13, 1928, while the trust deed in question was not filed for record until October 2, 1928. On the other hand, complainants contend that the three decrees were not a lien upon the premises in question until the deficiency decrees were entered November 2, 1928, which was after complainants’ trust deed was filed for record. Complainants make a further contention that> since the note in foreclosure here was given to evidence a part of the purchase money, the lien created by the trust deed would be superior to the claim of Neiman.

Neiman contends that the three decrees entered in his favor were decrees for the payment of money and by reason of section 44 of the Chancery Act, Cahill’s St. ch. 22, tf 44, became a lien on the land in question. That section is as follows: “A decree for money shall be a lien on the lands and tenements of the party against whom it is entered, to the same extent and under the same limitations as a judgment at law.” And in support of this contention chief reliance is placed on the case of Eames v. Germania Turn Verein, 74 Ill. 54. We have carefully considered that case and are of the opinion that it is in point and sustains the defendants’ contention. We are further of the opinion that under the authorities of Karnes v. Harper, 48 Ill. 527, Kirby v, Runals, 140 Ill. 289, and Bouton v. Cameron, 205 Ill. 50, the three foreclosure decrees are not money decrees within the meaning of section 44 of the Chancery Act, and that Neiman did not have a lien on the property in question until the entry of the three deficiency decrees.

In the Eames case there was a decree of foreclosure on certain premises and it was held that this was a lien on other real estate owned by the maker of the mortgage. Chief Justice Walker delivered the opinion of the court. The same justice also delivered the opinion of the court in the Karnes case (48 Ill. 527), which was a foreclosure proceeding. The court there said (p. 529): “It is insisted that under the 14th section of the chancery code [now section 44] or under the 45th, the lien of the decree was lost by failing to issue a copy of the decree or have the property sold within a year after the rendition of the decree. The 14th section of the chancery code declares that decrees for money shall be a lien on the lands and tenements of a party against whom it is rendered to the same extent and under the same limitations as a judgment at law. This section is intended to embrace general decrees for the payment of money, when the proceeding is in personam and not specific and in rem. In a proceeding to foreclose a mortgage in chancery, the decree ascertains the sum due and orders the sale of the specific property for its satisfaction. It is in the nature of a decree in rem. The last clause of the 45th section, however, gives the lien to the same extent and subject to the same restrictions as liens created by judgments at law. This section provides for two liens, the first in cases where a decree is in respect to the real estate to which the decree is pronounced. The second is in cases in which a decree is rendered for the performance of an act other than for the payment of money.” And the court in the Kirby case (140 Ill. 289), held that on a bill to foreclose a mortgage a decree may be entered against the defendant personally liable if there was personal service for any balance or money due over and above the proceeds of the sale, and that an execution may issue for such balance, the same as when the decree is solely for the payment of money, and that such decrees may be rendered conditionally at the time of foreclosure or after an ascertainment of the balance due, and that such holding in Karnes v. Harper, 48 Ill. 527, was not overruled by the Karnes case, 74 Ill. 54. In the Kirby case the court said (p. 297): “Second — Section 44 of the Chancery act provides: ‘A decree for money shall be a lien on the lands and tenements of the party against whom it is entered, to the same extent and under the same limitations as a judgment at law. ’ A judgment at law, in a court of record, is a lien on the real estate of the person against whom it is obtained only for the period of seven years. . . . It is claimed by appellant that the decree of foreclosure in question was a money decree, within the meaning of said section 44, and that as more than seven years had elapsed since the entry of the decree, . . . she purchased the mortgaged premises discharged from the lien of the decree. We think it very plain that said section controls only decrees in personam, and does not embrace a mere decree in rem, — -as, where a court forecloses a mortgage and determines the amount due, and orders that in default of payment within a specified time the property'specifically mortgaged be sold for its satisfaction, and renders no personal judgment or decree against those personally liable for the mortgage debt, and awards no execution, conditionally or otherwise, against them. It was expressly so decided in Karnes v. Harper, 48 Ill. 527.

‘‘ Section 16 of the Mortgage act provides that a decree may be rendered against defendants personally liable for the mortgage debt, if there be personal service, for any balance of money due over and above the proceeds of sale, and that execution may issue for such balance the same as when the decree is solely for the payment of money, and that such decree may be rendered conditionally, at the time of foreclosure, or after sale and ascertainment of the balance due. Said section was under consideration in Karnes v. Germania Turn Verein, 74 Ill. 54. But that case does not overrule Karnes v. Harper, as seems to be supposed. The decree in question in the Karnes case expressly provided that if the sale failed to produce a sum sufficient to pay the decree, then an execution should issue for the balance, and the court merely gave force and effect to the provisions of the Mortgage act above mentioned. The court, referring to said decree and said section of the statute, said: ‘ This section undoubtedly authorized a money decree in the case,’ and further said: ‘That this was, either in whole or in part, a money decree, we think cannot be controverted. ’ It was held that it was a decree for money, within the meaning of said section 44 of the Chancery act, and became a lien upon the real estate of the party against whom it was rendered, but that since an execution had not issued within one year from the time of its rendition, such lien had ceased to exist. That the property involved in the Karnes case was real estate other than the mortgaged premises is manifest from the statement in the opinion of the court that section 16 of the act in relation to mortgáges in nowise had any bearing on the lien. Such a decree should be on other property than the mortgaged premises. But the decree under consideration in the case now at bar was not a decree in personam against the party personally liable for the mortgage debt, and did not award an execution against him. It was not a decree against any of the defendants personally, but was, in effect, an alternative decree, that if the money should not be paid within the time limited then the premises should be sold. (Gochenour v. Mowry, 33 Ill. 331; Glover v. Benjamin, 73 Ill. 42.) The conclusion, therefore, must be that it was not a money decree, within the purview of section 44 of the Chancery act.”

In the Bouton case (205 Ill. 50), it was held that a money decree could be entered in a foreclosure proceeding only for the balance remaining unpaid after a sale of the property had failed to produce the amount found to be due. The court there said (p. 66): “It is only by virtue of the statute that a money decree can be rendered by a court of equity in a foreclosure proceeding, and the statute only provides for a deficiency decree for the balance remaining due after a sale of the property has failed to produce the full amount found to be due. That a money decree can be rendered, in a foreclosure suit, for a deficiency only, has been decided by both this court and the Appellate Court. In Cotes v. Bennett, 183 Ill. 82, it was declared (p. 85): ‘It is only in virtue of power conferred by the statute a money decree can be rendered by a court of chancery in a foreclosure proceeding against the mortgagor or other person liable for the mortgage debt. (8 Am. & Eng. Ency. of Law, 264.) Section 16 of chapter 95 of the Revised Statutes, entitled “Mortgages,” authorizes courts in this State to render such decrees “for any balance' of money that 'may be found due to the complainant over and above the proceeds of the sale or sales” of the mortgaged premises, and provides that such a decree may be conditionally rendered at the time the decree of foreclosure and sale is entered, or that it may be entered after the sale and ascertainment of the balance due. .It is to be noted this statute authorizes such decrees to be rendered only “for any balance of money that may be found due to the complainant over and above the proceeds of the sale or sales” of the mortgaged premises.’

“In Phelan v. Iona Savings Bank, 48 Ill. App. 171, the rule is declared in the following language (p. 175): ‘Decrees upon such bills [foreclosure] rested upon purely equitable principles and were solely for the purpose of foreclosing* this right of redemption. The courts rendering them were without power or jurisdiction, in such proceeding, to render personal decrees for the indebtedness secured by the mortgage, or even for a part of such indebtedness remaining unpaid after the sale of the mortgaged premises. . . . The mortgagee might, if he desired a judgment in personam, bring his action at law upon the indebtedness, and might at the same time file a bill in chancery for the foreclosure of the mortgagor’s equity of redemption. The' remedies are concurrent. (4 Kent’s Com. 184.) The powers and jurisdiction of the courts of Illinois have been increased in respect of such matters by statutory enactment, but with this statutory power added, the courts of our State are yet without jurisdiction to render judgments or decrees for the payment of the mortgage indebtedness agains’t defendants in foreclosure proceedings. The only,addition to.their power is such as is given by section 16 of chapter 95 of the Revised Statutes, which authorizes the rendition of a personal decree “for the balance of money that may be found unpaid” after the mortgaged premises have been sold and the proceeds applied upon the indebtedness. A decree against the defendants in a foreclosure proceeding for the whole debt would, therefore, be wholly extrajudicial. ’ ”

In the three foreclosure decrees it was decreed that some of the defendants pay the amounts found to be due within three days or the property would be sold. They were not money decrees within the meaning of section 44 of the Chancery Act as construed in the Karnes, Kirby and Bouton cases, supra. No execution could be awarded in these decrees until after sale and deficiency decrees were entered and the execution could only be for the deficiency. Section 16, chapter 95, Revised Statutes. The three deficiency decrees were not entered in the foreclosure suit until November 2, 1928, which was after the making and recording of the trust deed in the instant case, and • therefore there was no money decree against Sarah Korach, the maker of the notes and trust deed, which would be a lien on the property in question until after the note and trust deed in the instant case were made and the trust deed recorded.

The decree of the superior court of Cook county is affirmed.

Affirmed.

Matchett, P. J., and McSurely, J., concur.


text:
    Ida M. Hazzard, Appellee, v. The City of Chicago, Appellant.
    Gen. No. 34,458.

      Heard in the first division of this court for the first district at the June term, 1930.
    Opinion filed November 3, 1930.
    Samuel A. Ettelson, Corporation Counsel, and William D. Saltiel, City Attorney, for appellant; Hyman B. Ritman, Assistant City Attorney, and Roy S. Gaskill, Assistant Corporation Counsel, of counsel.
    Kremer, Branand & Hamer, for appellee.
   Mr. Justice O’Connor

delivered the opinion of the court.

Plaintiff brought suit against the defendant to recover damages for personal injuries claimed to have been sustained by reason of the alleged negligence of the defendant in operating a bridge across the Chicago River at Ogden Avenue, as the result of which plaintiff was injured. There was a verdict and judgment in plaintiff’s favor for $1,500 and defendant appeals.

The record discloses that about eight o’clock (daylight saving time) on the evening of August 24, 1926, the motor boat in which plaintiff was riding down the north branch of the Chicago River came in contact with a wire cable used by defendant in opening a bridge over the river at Ogden Avenue, as a result of which plaintiff was thrown into the water and injured.

The evidence of plaintiff was to the effect that on the evening in question Frank J. Hazzard, a young man about 19 years old, was driving the motor boat in a southerly direction in the north branch of the Chicago River. Frank’s father and plaintiff, his grandmother, were riding in the rear of the boat. Shortly before he reached the Ogden Avenue bridge Frank sounded his siren. As the boat was about to pass under the bridge the employees of the City began to open the bridge to permit a boat coming from the south to pass .under the bridge. The bridge, a temporary pontoon bridge, was operated by means of wire cables which rested on the bottom of the river when the bridge was in place. To open the bridge it was necessary to wind up the cable, causing it to rise above the surface of the water. As the boat driven by Frank was passing over the cable the employees of the City, apparently not seeing the small boat, began to open the bridge to permit the larger boat from the south to pass through the bridge. The cable rose from the bed of the river to the surface of the water under the boat Frank was driving, causing it to capsize. All three of the persons in the boat were thrown into the river; the father drowned and plaintiff sustained injuries for which she sues.

The evidence on behalf of the defendant was to the effect that a boat coming from the south whistled as a signal to have the bridge opened; that the two men in charge of the bridge proceeded to open it; that there was a signal bell ringing and lights were on the roadway of Ogden Avenue on each end of the bridge; that it was just about dark; that they did not see the small boat coming from the north until they heard the screams of the persons in the boat about the time it-came in contact with the cable.

We think the questions whether the plaintiff was in the exercise of due care for her own safety and whether the employees of the city were guilty of negligence, were properly left to the jury. Certain it is that the court would not be warranted in directing a verdict for the defendant as requested.

Plaintiff alleged in her declaration that she had caused notice to be served on the city officials, as required by the statute, in which the City was notified of the time and place of the accident and the manner in which it occurred. The notice goes into considerable detail, gives plaintiff’s address and further notifies the City that immediately after the accident plaintiff was taken to the Cook County Hospital, where she received first aid from Dr. MaCormack, “whose address is Whitehall, Wisconsin, and Dr. Percy J. Delano, whose address is Cook County Hospital, Harrison and South Wood Streets, Chicago, Illinois”: and that on August 27, 1926, she was removed from the Cook County Hospital to her home at 2052 North Lamon Avenue, Chicago, where she was attended by Dr. William F. Groth, “whose address is 4 North Cicero Avenue, Chicago, Illinois.” The notice was offered in evidence, whereupon counsel for defendant said: “I object to it, not for the purpose there wasn’t any service. I will admit the service, but object to the form and substance of the notice.” The objection was properly overruled. In this court counsel for the defendant contends that the judgment is wrong and should be reversed because there was no ' evidence offered to show that plaintiff was attended by Dr. Ma-Cormack or that his address was at Whitehall, Wisconsin,- or that plaintiff was attended by Dr. Delano, or that his address was Cook County Hospital, Harrison and South Wood Streets, Chicago, and that there was no proof that Dr. William F. Groth’s address was 4 North Cicero Avenue, as stated in the notice. Dr. Groth testified that he treated plaintiff at her home in Chicago, having been first called there on August 27, 1926, and went into considerable detail as to the nature of her injuries and what he did to relieve her. He gave his residence but was not §,sked by anyone whether he had an office at 4 North Cicero Avenue, Chicago, and no mention seems to have been made of the other two doctors.

In view, of the evidence in the record and the objection made on the trial by counsel for defendant, we think the objections here urged are without merit.

No complaint is made as to the sufficiency of the notice or that it was not served upon the proper city officials, nor is there any contention that any of the information given in the notice was contrary to the evidence in any particular. The notice being in proper form and having been properly served, plaintiff, by introducing it in evidence and by making out her case on the merits by other evidence, made out a prima facie case. It was not necessary that she prove by evidence on the trial that the matters contained in the notice as to names and addresses of the attending physicians were as stated in the notice. If such evidence had been offered and it did not conform to the facts stated in the notice, defendant’s contention might be valid as held in the authorities cited by defendant’s counsel. But there was no variance between the proof offered and the notice, and we hold that it was unnecessary for plaintiff, in the instant case, to prove the names and addresses of the physicians. It has often been stated by the Supreme Court and by this court, that the purpose of the statute requiring notice was to give the municipality information to enable it to investigate the merits of a claim made by a person ag-ainst the municipality and to properly defend an action in case suit were brought. In the instant case the information was given by the serving of the notice and no complaint is made that such information was inac-" curate. The statute was complied with. : . -

Complaint is also made that the court erred in giving plaintiff’s instruction number 3. By that instruction the jury were told that if they found for the plaintiff they would be required to determine the amount of her damages, if any, and in determining such damages, the jury had the right and they should take into consideration all the facts and circumstances “as proven by the evidence before them, the nature and extent of plaintiff’s physical injuries, if any, so far as the same are shown by the evidence to be the direct result of the injury, her bodily pain and suffering, if any, resulting from such physical injuries, and her necessary expense for medical attention in endeavoring to be cured of her said injuries, if any; and they may find for her such sum as the jury may deem from the evidence and proofs, as will be fair compensation for such damages as she may have sustained.”

Counsel for defendant, in their brief, quote this instruction in full and the only argument made is as follows:

“The foregoing instruction was condemned as being erroneous in the very recent case of Garvey v. Chicago Rys Co., 339 Ill. 276, wherein the court, at page 289 said: ‘An instruction which does not require the assessment of damages to be based upon evidence as to damages for which the law allows recovery is improper. ’ ’ ’

This argument is of no assistance to this court and is insufficient to raise any point as to the correctness of the instruction. If counsel have any complaint to make, it should be specifically pointed out. This has not been done. But in any event, we think the instruction did not prejudicially affect the defendant in any particular. Moreover, no complaint is made that the verdict is excessive.

The judgment of the circuit court of Cook county is affirmed.

Affirmed.

Matchett, P. J., and Me Surely, J., concur.