author: Mr. Justice McSurely

text:
    Sophia Filipiak, Appellee, v. Frank V. Zintak, Appellant, and Leopold Saltiel, Appellee.
    Gen. No. 35,518.

      Opinion filed January 25, 1932.
    Rowe & Bailey, for appellant; Ian P. MacDonald, of counsel.
    Leopold Saltiel, Pro Se.

   Mr. Justice McSurely

delivered the opinion of the court.

This case involves an attorney’s fee of $900 awarded to Leopold Saltiel under paragraph 13 of chapter 13, Cahill’s Rev. Statutes which gives attorneys a lien upon claims and causes of action that may he placed in their hands for suit or collection for the amount of any fee which may have been agreed upon between such attorneys and their clients, or, in the absence of such agreement, for a reasonable fee for the services rendered.

Sophia Filipiak, hereafter called petitioner, by set- • tlement received from Frank Y. Zintak $7,500 on account of an automobile accident from which plaintiff received injuries through the alleged negligence of Zintak. Leopold Saltiel, an attorney at law, practicing in Chicago, claims a lien upon the amount of the settlement. Petitioner asked for an adjudication of the rights of the parties' under Saltiel’s claim. Both Zintak and Saltiel filed answers. The chancellor awarded $900 to Saltiel as compensation, and from this decree Zintak appeals. The petitioner also appears in this court, asserting that she is interested in the $900, and adopts the brief and argument filed by Zintak, the appellant. Both question the allowance.

May 1,1929, about nine o ’clock in the evening, there was a collision between two automobiles, in one of which petitioner was riding. She received severe injuries, including crushed pelvic bones and a cut in the forehead. She was taken at once to a hospital where she remained for six weeks.

On the morning after the accident a Miss Elizabeth Dickinson who, Saltiel says, was the daughter of an old client of his, called at Saltiel’s office and told him she thought she might be able to get a lawsuit for him and asked him for a form of contract, which he gave her. Miss Dickinson had not known Miss Filipiak or any of her family, but had apparently heard of the accident. She went at once to the hospital and testifies she obtained the petitioner’s signature to this contract. The petitioner testified that she had never seen Miss Dickinson until she saw her in court and denies that she signed the contract or authorized anyone to sign it for her. The sister of petitioner who, as Miss Dickinson testified, was present at the hospital, testified that she had never seen Miss Dickinson at the hospital and testified that the signature on the contract was not that of her sister.

There was convincing evidence that for upwards of a week after the accident the petitioner could not recognize her sisters or speak to them, although they visited her every day, but was constantly moaning and suffering great pain.

The alleged contract is as follows:

“Chicago, 111.
“I hereby employ Leopold Saltiel, Attorney and Counselor, to represent me as my Attorney in the prosecution of my claim for damages against Frank V. Zintak, for personal injuries sustained by me on 1st day of May, 1929.
“And I agreed to pay him as compensation for his said services a sum of money equal to y of any settlement or; suit of any judgment that may be obtained or recovered out of said claim.
“It is further agreed that Leopold Saltiel will make no settlement of this claim without first obtaining my consent thereto, and I agree, to make no settlement without his knowledge and consent.
“ (Signed) Sophie' Filepiak.
“Witness: • — —■—■—--
“Accepted by-.”

May 12 following the accident a clerk from Mr. Saltiel’s office, as he testified, called at the hospital and spoke to the petitioner and took the statements of two of her friends who were with her in the automobile at the time of the accident. Petitioner denies she ever saw this clerk at the hospital and asserts that the first time she saw him was at her home sometime after June 17. It was asserted on one hand and denied on the other, that Doctor Eicardo, sent by Mr. Saltiel, had called at the hospital to examine petitioner.

Mr. Saltiel’s clerk had several talks with a sister of the petitioner and she gave him information and certain bills. About June 17, the clerk called the sister to Mr. Saltiel’s office, where she was told by Mr. Saltiel that the insurance company had offered $2,700 to settle the case in full. Mr. Saltiel urged that petitioner settle for this amount. Apparently after this interview the sister of petitioner told Mr. Saltiel that they wanted him to withdraw from the case, to which he replied by letter stating he would hold her strictly to her contract. After this letter of June 17 nothing further was done in the matter by either Mr. Saltiel or his clerk. April 5, 1930, almost a year after the accident, petitioner entered into a contract with another attorney and through his efforts her claim against .Zintak was settled for $7,500.

The signing of the contract with Saltiel by petitioner is earnestly contested, but we are inclined to believe that she signed it, although there is very good reason also to believe that she was at the time suffering from such pain that she would hardly understand its terms.

However this may be, we are of the opinion that fees cannot be allowed.for the reason that the contract on its face is invalid. The contract contains the agreement “that Leopold Saltiel will make no settlement of this claim without first obtaining my consent thereto, and I agree to make no settlement without his knowledge and consent.” In North Chicago Street R. Co. v. Ackley, 171 Ill. 100, a similar contract was under consideration. The court said: “The law does not discourage settlements in cases for personal injuries. Whether a cause of action exists, and if so, its nature and amount, are facts always involved in uncertainty, and a defendant has a right to buy his peace. The plaintiff has a right to compromise, and avoid the anxiety resulting from a cause pending to which he is a party. Any contract whereby a client is prevented from settling or discontinuing his suit is void, as such agreement would foster and encourage litigation. Lewis v. Lewis, 15 Ohio 715; Elwood v. Wilson, 21 Iowa 523; Foster v. Jacks, 4 Wall. 334; Greenhood on Public Policy, 474; Boardman v. Thompson, 25 Iowa 487; Huber v. Johnson (Minn.), 70 N. W. Rep. 805.” This is decisive upon this point.

Even were the contract valid, it is doubtful whether respondent could recover under it for the reason that there'was no proof that a proper notice in writing was served upon the party against whom the petitioner had her claim. This is conceded by Mr. Saltiel, who argues that such proof was unnecessary because the service of such notice was admitted in the pleadings. This admission is predicated upon an allegation in the petition of petitioner to the effect that “she is informed and believes, and so states the fact to be, that the said Leopold Saltiel has filed written notice of his alleged lien arising out of an alleged contract with petitioner, with Frank V. Zintak, who caused the injuries to your petitioner.” Zintak, in his answer, referring to this allegation in the petition, “admits the allegations set forth in this paragraph. ” In Tuohy v. Chicago & Joliet Electric Ry. Co., 200 Ill. App. 446, it was held that in a suit to establish an attorney’s lien, the respondent, by admitting the service upon him of the notice, does not admit that the service was made in the manner required by the statute. The notice required by the statute must state the interest which the attorney claims and the service must be personal, and the lien ‘ ‘ shall attach . . . from and after the time of service.” Cahill’s St. ch. 13, fí 13.

Other points are argued which it is unnecessary to comment upon, since we hold that the contract, which is the basis of the attorney’s claim, is invalid.

The respondent has filed cross errors, claiming that he is entitled under his contract to a larger amount than is given him by the decree. Our view of the invalidity of the contract disposes of this. His claim for compensation must be presented on the basis of quantum meruit and not as a lien upon the amount of the settlement.

For the reasons indicated the order allowing the respondent Saltiel a lien for attorney’s fees is reversed and the cause is remanded, with directions to enter an order to this effect.

Reversed and remanded with directions.

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


source: Caselaw Access Project

license: Public Domain

text:
    In re Peter Voislowsky, Deceased, Telfer MacArthur, Appellant, v. Louis Engel, Executor, Appellee.
    Gen. No. 35,539.

      Opinion filed January 25, 1932.
    Wisner, Davis & Walsh, for appellant.
    Julius H. Miner, for appellee; Henry Perlman, of counsel.
   Mr. Justice McSurely

delivered the opinion of the court.

Telfer MacArthur, hereinafter called claimant, filed his claim in the probate court against the estate of Peter Voislowsky, deceased, for $1,000 with interest, said to have been loaned deceased by claimant, which was allowed. Appeal was taken to the circuit court where, upon trial by the court, the finding was against the claimant. He appeals from the judgment entered.

Claimant filed a special appearance in the circuit court and moved to dismiss the appeal on the ground that the bond was not filed within 20 days, as required by statute. This motion was overruled, we think erroneously, but the claimant proceeded to trial by introducing evidence and therefore waived the question of the irregularity with reference to filing the bond and submitted himself to the jurisdiction of the court. Ladies of Maccabees v. Harrington, 227 Ill. 511; Mix v. People ex rel. Shaw, 106 Ill. 425; Abbott v. Semple, 25 Ill. 107; City of Chicago v. Tearney, 187 Ill. App. 441; Wolf v. Timmons, 192 Ill. App. 121; Hotchkiss v. Vanderpoel Co., 139 Ill. App. 325; Clark v. Evans, 138 Ill. App. 56.

Executing and filing the appeal bond is the means provided by law for transferring the cause from the probate to the circuit court and is in the nature of process to remove the cause to the circuit court. When the process is irregular the irregularity may be waived, for the circuit court has jurisdiction over the subject matter and may obtain jurisdiction of the person by his appearance and participation in the proceedings. Pearce v. Swan, 1 Scam. (Ill.) 266; Mitchell v. Jacobs, 17 Ill. 235; Kemper v. Town of Waverly, 81 Ill. 278.

Where a party takes steps, either as plaintiff or defendant, which could only be sustained by the exercise of jurisdiction, the appearance is general although he may have filed a limited special appearance. People v. Southern Gem Co., 332 Ill. 370; Nicholes v. People ex rel. Kochersperger, 165 Ill. 502.

At the conclusion of the evidence presented by claimant the attorney for the executor moved for a finding for the estate, which motion was allowed. It follows, therefore, that the evidence presented by claimant, with all reasonable inferences therefrom, must be taken as true. Libby, McNeill & Libby v. Cook, 222 Ill. 206.

The basis of the claim was a loan of $1,000 alleged to have been made by claimant to Peter Voislowsky in his lifetime. To support this, claimant introduced his check signed by himself, to the order of Peter Voislowsky for $1,000. This was indorsed by Voislowsky and paid by the bank. A witness, Louis Burch-wood, testified that the deceased could not write and his custom was to bring checks to the witness, who would sign Voislowsky’s name and his own on the check; that he remembered at the time this check was made that deceased made the remark that he was “busted” and that he received the check from claimant and wanted to get money on it. The secretary of the company with which claimant was connected testified that she was acquainted with the deceased in his lifetime; that she was present at a conversation between deceased and claimant; that deceased said he needed some money and that claimant said he would make a loan to him. Another witness testified that the deceased inquired for the.address of the claimant, saying he owed him some money and that he wanted to pay him the interest. The books of account kept by claimant show a large number of transactions, including the entry of a loan of $1,000 to deceased. Claimant testified that he was a publisher of magazines and newspapers, and the books show the investment account of his wife and himself and are kept in claimant’s handwriting; they also show records of the account kept in claimant’s bank.

When claimant’s account book was offered, the attorney for the executor made a general objection to it. It was admitted by the court, subject to objection. No other ruling was asked for or made as to its admissibility. It has been held that under such circumstances an objection is waived. Cassell v. First Nat. Bank of Vincennes, 169 Ill. 380.

Any party may testify to his account book and the items therein contained although they may be self-serving. Chapter 51, U3, Illinois Statutes (Cahill).

The trial court apparently was of the opinion that the giving of a check to another is presumed to be in payment of a loan. This may be true, but this presumption may be rebutted by evidence, and we are of the opinion that in this case the evidence shows that a loan of $1,000 was made by claimant to the deceased by giving the check in evidence.

For the reasons indicated the judgment is reversed and the cause remanded.

Reversed and remanded.

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


text:
    P. J. Kelly, Appellee, v. Louis L. Marks et al., Appellants.
    Gen. No. 35,555.

      Opinion filed January 25, 1932.
    Rosenberg, Corlett & Toomin, for appellants; Milton M. Hermann, of counsel.
    Lord, Lloyd & Bissell, for appellee; Cushman B. Bissell and A. C. Wetterstorm, of counsel.
   Mr. Justice McSurely

delivered the opinion of the court.

This case presents a question of practice in garnishment proceedings which arises on the appeal of the defendants from an order denying their petition to vacate judgments rendered against certain garnishee defendants.

June 26, 1931, judgment by confession was entered against defendants in the sum of $28,300.99, based upon a promissory note secured by a trust deed conveying real estate in Chicago. July 1, a writ of execution was issued on the judgment and returned the same day with the following indorsement by the sheriff:

“The within named defendants not found and no property of the within named defendants found in my county on which to levy this writ, I therefore return the same no property found and no part satisfied, this 1st day of July, A. D. 1931.”

On the same day an affidavit was filed with the clerk of the court for the issuance of a garnishee summons as required by section 1 of the Garnishment Act, Cahill’s St ch. 62, If 1, and on the same day garnishment summons was issued directing the sheriff to summon the First Union Trust and Savings Bank, a corporation, and the First National Bank of Chicago, a corporation, as garnishees. Their answers were filed July 17, and on August 3, -judgments were entered against the First Union Trust and Savings Bank in the sum of $3,351.18 and against the First National Bank for $270.35. Executions were issued and served on these judgments.

August 7, defendants moved the court to vacate these judgments against the garnishees and to dismiss the garnishment proceedings. The' motion was supported by a verified petition alleging, among other things, that the writ of execution issued July 1 against these defendants was delivered to the sheriff with di-' rections to return the same nulla bona, without any attempt to serve the defendants with the writ or to levy on any of their property; that thereupon, on the same day, a writ of garnishment was issued which directed the sheriff to summon the garnishees, which was served. Petitioners denied the validity of the judgment against them and alleged that they were about to file a bill in equity to set the same aside, but that if it should be determined that said judgment was valid a levy can be made upon certain real estate owned by defendants, which is known and described as 1650 West Roosevelt Road, Chicago; that title to the same is vested in defendants Louis L. Marks and Meyer S. Marks, and that a levy can be made upon said premises in the event the judgment is found to be valid. The defendants asked for an order vacating the judgment rendered against the garnishees.

Upon hearing the court evidently was of the opinion that the petition was vague and uncertain' in its allegations as to whether the defendants owned the property on the day the execution was issued, and also in its allegations as to the value of the real property, or whether there were any incumbrances. Thereupon the petitioners asked that the motion to vacate the garnishee judgments and to dismiss the garnishment proceedings be entered of record and continued for hearing to the following day in order that they might present an amended verified petition setting forth the matters which were not included in the petition presented. This motion was overruled by the court, and also the prayer of the petition to vacate the garnishment judgments was denied.

The defendants argue that a garnishment proceeding is invalid which is founded upon a return of an execution nulla bona on the day it is issued, pursuant to directions of the plaintiff or his attorney and without any attempt to serve the same, when the defendants are the owners of property within the jurisdiction which is subject to execution and levy.

By our statute on Judgments, Cahill’s St. ch. 77, a judgment debtor may demand that his real estate be levied on first to satisfy a judgment and he may have one year from sale to redeem.

Plaintiff argues that the return of the sheriff cannot be questioned in this manner, citing Boksa v. Buchaniec, 245 Ill. App. 602. The principal point involved in that case was whether a creditor had the right to garnishee a bank which had a deposit of only one of several of the judgment debtors.

In Bruhl v. Anderson, 207 Ill. App. 169, cited by plaintiff, it was held that while the return of an execution, under like circumstances as are present here, is only prima facie evidence, yet there was not “the slightest suggestion” that the defendant had any property within the county subject to execution, hence the garnishment proceeding was sustained. In Reinhardt v. Kennedy, 106 Ill. App. 96, also cited by plaintiff, it was held that if the return of the execution no property found had been made by direction of the plaintiff, it would have been insufficient to have warranted the justice in certifying the judgment to' the clerk of the circuit court, the opinion saying that “no presumption is to be indulged in favor of a sheriff when he acts, not of his own volition, but in obedience to the direction of the plaintiff in the writ.”

We are of the opinion that the return of the sheriff is only prima facie evidence in a garnishment proceeding and may be questioned by the execution debtor. The statute requires, in addition to a return of nulla bona, an affidavit of no property within plaintiff’s knowledge subject to execution. In Chanute v. Martin, 25 Ill. 63, the court construed the statute to authorize garnishment proceedings only upon the failure after a reasonable attempt has been made to collect the money by the ordinary processes of the law; that “it was not the design of the general assembly that the proceeding might be resorted to when execution had been returned no property found” only, but that the affidavit must be filed before the garnishment process can be invoked. The opinion points out the hardship of permitting a plaintiff to resort to garnishment' especially where the debtor has property liable to execution “simply because the plaintiff in execution could make his money sooner by this process than by the sale of real estate. To tolerate such a practice would be to permit the law to be perverted to the oppression of defendants.” In Michigan Cent. B. Co. v. Keohane, 31 Ill. 144, 145, the return showed that the execution was returned not satisfied, by order of the plaintiff’s attorney. It was held that this was not a compliance with the statute. In this case the execution was actually served on the judgment debtor, but it was held that reasonable and diligent efforts must be made to discover property before garnishment proceedings could be instituted. It was also so held in Clark v. First Nat. Banle of Earlville, 71 Ill. App. 601. In Dunderdale v. Westinghouse Electric Co., 51 Ill. App. 407, it was held that the practice concerning the issuance of garnishment process was like that in the filing of a creditor’s bill and that where the return nulla bona of an execution is by order of á plaintiff’s attorney where it does not appear that any demand was made upon the execution debtor or any effort made to find property, garnishment proceedings will not be sustained. This has been the ruling in cases involving creditor’s bills, where it is held that before a creditor’s bill can be maintained it must appear that the creditor has exhausted his legal remedies and that the sheriff has made proper efforts to collect the judgment, which have been unavailing. Scheubert v. Honel, 50 Ill. App. 597; Pecos Irrigation & Improvement Co. v. Olson, 63 Ill. App. 313, 315. In Gordon v. Great Lakes Fruit Co., 240 Ill. App. 46, the decision was based upon the conclusion that whether the sheriff had made a reasonable effort to find property out of which to satisfy the execution could be determined by evidence, the court holding that the plaintiff should have been given an opportunity to show this. In Horrall v. Brassie, 158 Ill. App. 526, it was held that where the execution was returned nulla bona by order of plaintiff’s attorney and no effort made to find property, there was no basis for the garnishment suit.

The case before us presents an instance which illustrates the hardship upon the defendants of the practice followed by the plaintiff. Judgment by confession is entered against defendants without any notice to them upon their note which is secured by a trust deed conveying real estate in Cook county. Plaintiff, instead of attempting to collect on his security by foreclosure or otherwise, seeks by a short cut to levy on defendants’ personal property, thus depriving them of their statutory right to have their real estate taken first before their personal property is taken.

Although plaintiff attempts to distinguish Chanute v. Martin, supra, and this may be done in certain particulars, yet we are of the opinion that this case in principle points out the proper practice to be followed : That in a garnishment proceeding, where it can be shown that the return of the sheriff is made pursuant to directions from plaintiff or his counsel and it can also be shown that the execution debtor has real estate out of which the judgment may be satisfied, the execution debtor has the right to have the real estate first taken before his personal property is subjected to levy, and that to avail himself of such right he may, upon a proper showing, have the judgment in the garnishment proceeding vacated and set aside and the garnishment proceeding dismissed.

We do not agree that the garnishee, only, has the right to present the claim that the judgment' debtor has real property upon which the execution should be levied. The garnishee in most cases would not know this and such knowledge would be peculiarly in the possession of the execution debtor.

The petition was deficient in the respects indicated, but we think the petitioners should have been' permitted to file an amended petition. While the garnishment proceeding is a statutory action at law, yet the court in such proceedings exercises an equitable jurisdiction and may make such orders as may be necessary or equitable between the parties. LaSalle Opera House Co. v. LaSalle Amusement Co., 289 Ill. 194.

If it should develop that the real estate is the same as that conveyed by the trust deed as security for the note upon which judgment has been entered, it should be kept in mind that the trust deed no longer stands as security for the note but for the judgment on the note. Jocelyn v. White, 201 Ill. 16.

For the reasons indicated the order appealed from is reversed, with directions to permit the defendants to file an amended petition, and for further proceedings consistent with what we have said in this opinion.

Reversed and remanded with directions.

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


author: Mr. Justice Matchett Mr. Justice McSurely

text:
    Walter F. Scholz, Appellee, v. The Commissioners of Lincoln Park et al., Appellants.
    Gen. No. 35,488.
    McSurblt, J., dissenting.

      Opinion filed January 25, 1932.
    Rehearing denied February 8, 1932.
    William H. Beckman, for appellants; George E. Woods, of counsel.
    Alfred Beck and Joseph M. ICoTz, for appellee.
   Mr. Justice Matchett

delivered the opinion of the court.

Plaintiff is a lessee of certain premises situated on the west side of Sheridan road, a public highway in the City of Chicago. Defendant, the Lincoln Park Commissioners,' a municipal corporation, by virtue of a statute of the State and an ordinance of the City of Chicago is vested with jurisdiction over this street. It adopted an ordinance which provides:

“No private driveways shall be laid without a special permit issued therefor by the Commissioners. All such driveways shall be built from curb to lot line and shall be of the width and thickness and of the material and upon the grade and constructed in the manner specified in the permit issued therefor.”

Plaintiff applied for a permit to widen the driveway upon his premises and to construct a new one, but this application was denied by the defendant board. He thereupon filed his verified petition praying for a mandamus, to which defendants filed a plea. The ■ cause was heard by the court without a jury, and there was a fiudiug for plaintiff and judgment that the writ be awarded was entered. By this appeal the commissioners seek to reverse this judgment.

There is practically no dispute as to the facts. Plaintiff is in possession of the premises under a lease which will expire February 28, 1933.' He is operating upon the premises an open air garage and parking station where gasoline and oil are sold. The premises have been so used by him for the past three years. There is 90 feet frontage of the premises on Sheridan road and the traffic on that road is heavy. Both sides of Sheridan road in the vicinity of the premises in question are improved with business and commercial property and are zoned for business. Plaintiff has a license from the City of Chicago to use the property as an open air garage, and this license was granted with the consent of a majority of the owners of frontage on Sheridan road in the vicinity of these premises. In improving the premises plaintiff engaged an architect and has spent about $20,000 in addition to his rental. There is a driveway seven and a half feet wide leading from the premises in question to Sheridan road, and this driveway is at right angles with that street. In his petition plaintiff avers that the driveway is inadequate for motor traffic and difficult for motorists to turn into; that the driveway’s narrowness handicaps the business of plaintiff and inconveniences the public; that the widening of the driveway to a width of 16 feet and the building of another driveway at the south side of the premises are necessary to remedy the situation.

The plea of defendants sets up the statute of the State creating the board as a municipal corporation, the ordinance of the City of Chicago granting the right of control and regulation of Sheridan road in front of these premises to defendant, and also the ordinance adopted by the board in pursuance thereof, and admits' that plaintiff made application which was denied because, as the plea says, defendants “thought such denial to be for the best interests of Lincoln Park and of the public.”

It is urged that the court erred in admitting evidence offered by plaintiff over the objection of defendants, but as the trial was by the court without a jury, this error, if conceded, would not require a reversal if there is competent evidence in the record sufficient to support the finding of the court. It is also urged, on the authority of People v. Dunne, 219 Ill. 346, and People v. Busse, 238 Ill. 593, that the judgment should be reversed because the writ as prayed for in the petition is vague and indefinite. We do not think those cases, which considered certain petitions to compel the mayor of Chicago to enforce the public laws of the State, are at all applicable to a situation such as here appears.

Defendants also urge on the authority of People v. Lindblom, 215 Ill. 58, and City of Chicago v. People, 114 Ill. App. 145, that since no replication was filed by plaintiff, the allegations in defendants’ plea must be taken as admitted. As already stated, we think there is no substantial conflict in the evidence as to material matters. Moreover, we think the decisions cited show that rule is not regarded as applicable where, as here, the replication is waived by submitting evidence upon the issues of fact. That point was not raised in the trial court and cannot, we think, be urged upon this record. Chicago G. W. Ry. Co. v. People, 79 Ill. App. 529; Varney v. Ajax Forge Co., 204 Ill. App. 208.

The controlling question in the case is therefore whether defendant abused the discretion vested in it by refusing to grant a permit to plaintiff as requested by him. In determining that question we may not overlook the legal rights with which plaintiff is vested as a matter of law as the lessee of these premises. The rights of owners in these respects are clearly set forth in Barnard v. City of Chicago, 270 Ill. 27, and Fleming v. Elgin, J. & E. R. Co., 275 Ill. 486. In the former case the Supreme Court said:

“Owners of property bordering upon a street, in addition to the public right of travel which they enjoy in common with all citizens, have certain private rights incidental to their ownership of abutting property. Among these is the right of access to and egress from the property by way of the street, and this right cannot now be taken away or materially impaired without compensation to the extent of the damages suffered.” Such also seem to be the rights of owners as stated in the decisions of courts of other States, the general rule being that the right of access and egress is appurtenant to the land and is private property and gives to the owner, or lessee, who may be in lawful possession under him, an easement over the adjacent street and rights therein which, if denied, will be protected by the issuance of a writ of mandamus. In re Singer-Kaufman Realty Co., 196 N. Y. S. 480; Brownlow v. O’Donoghue Bros., 276 Fed. 636. In other cases it has been held that a petitioner vested with such right of access and egress is entitled to a permit for the construction of driveways, subject only to reasonable regulations as to location, width, materials and other matters. Goodfellow Tire Co. v. Commissioner of Parks and Boulevards of City of Detroit, 163 Mich. 249, 30 L. R. A. (N. S.) 1074, 128 N. W. 410; Anzalone v. Metropolitan District Comm., 257 Mass. 32, 153 N. E. 325, 47 A. L. R. 897; City of Shawnee v. Robbins Bros. Tire Co., 134 Okla. 142, 66 A. L. R. 1047. Extensive notes discussing the right of owners or occupants to have convenient access to abutting streets are found in 22 A. L. R. 942; 47 A. L. R. 902; 66 A. L. R. 1052. In 13 R. C. L., p. 142, par. 125, the law is stated to be:
“Regardless of whether the fee of the street or highway is in the abutting owners or in the public, such an owner, has a special easement therein for the purposes of ingress and egress, which is property as much as the abutting lot itself, and which cannot be taken away or materially impaired or interfered with even under legislative authority without compensation to him therefor.”

The necessity and convenience of this improvement so far as plaintiff is concerned is not denied by the plea nor is it contradicted by evidence submitted in behalf of defendants. It is averred, however (and defendants offered evidence for the purpose of showing), that the proposed improvement would result in detriment to the public in that (as the director of traffic for Lincoln Park testified) it “would cause more vehicles to turn on and off Sheridan road, slowing up traffic and increasing accidents,” and (as the captain of the department of police of Lincoln Park testified for defendants) “motorists using parking stations, particularly at night, disturb the residents by blowing their horns, racing their motors and opening cut-outs.” The undisputed evidence shows, however, that the city has issued to plaintiff a license for his business after the consent of the owners of property in the neighborhood had been obtained. It is difficult to see just how this improvement would have any tendency either to increase or diminish the propensity of motorists as described by the captain of police. Neither are we impressed with the conclusion of the director of traffic that the improvement would increase the heavy traffic on Sheridan road. It is perfectly apparent that it would have, little, if any, effect in that regard. On the other hand, the director is clearly wrong in his statement that the effect of the improvement would tend towards more accidents. The proposed improvement, on the contrary, would to some extent do away with the necessity of motorists turning at right angles on the street, which would have the effect of accelerating the movement of traffic and of decreasing the risk of accidents. This seems to have been the view of the Supreme Court of the State in Department of Public Works and Buildings v. McCaughey, 332 Ill. 416, where the court said:

“It is a well known fact that it is much safer for one going from a hard road to a side road or for one coming from a side road onto a hard road to do so upon a curve rather than at right angles ■. . . .” Competent evidence was also* introduced by plaintiff to this effect.

We are satisfied from an examination of the whole record that the refusal of the permit indicated a zeal which was not according to knowledge and was an abuse by defendant of the powers conferred upon it by the statute of the State and the ordinance of the city.

The judgment of the trial court is therefore affirmed.

Affirmed.

O’Connor, P. J., concurs.

McSurely, J., dissents.

Mr. Justice McSurely

dissenting: I suggest that the foregoing opinion is contrary to Edwards v. Thompson, 262 Ill. App. 520; where we said that the court should not substitute its opinion for that of the municipal officers, but should determine only whether the withholding of the permit was arbitrary and capricious.

The opinion makes no reference to the serious increase in danger to pedestrians on the sidewalk which would follow the construction of two wide driveways across the sidewalk. This feature, it seems to me, ■ entirely negatives any quality of capriciousness or unreasonableness in the action of the Lincoln Park Commissioners in refusing the permit. I must therefore respectfully dissent from the majority opinion.


text:
    A. Solomon, Appellee, v. Harry Dunne et al., Appellants.
    Gen. No. 35,552.

      Opinion filed January 25, 1932.
    Samuel E. Davidson, for appellants.
    Kessler, Tobin & Miller, for appellee; Ben H. Kessler, of counsel.
   Mr. Justice Matchett

delivered the opinion of the court.

Defendants have appealed from an order which denied their motion to set aside a judgment entered against them on a promissory note purporting to grant such authority. The judgment was entered December 9, 1930. The document sued on was executed September 30, 1929, was made to the order of Economy Finance Association and was for the sum of $300, payable in 50 equal instalments of $6 a week with interest at the rate of six per cent per annum. On the hack of this writing appears the purported indorsement of the Economy Finance Association by its president, J. Wainer.

On June 5, 1931, defendants made a motion to set aside the judgment and on June 8 presented their verified petition in which it was in substance alleged that the finance corporation was not registered with the secretary of state as required under the Small Loans Act, Cahill’s St. ch. 74, If 27 et seq., and that there was no authorization for it to do. business on record in the recorder’s office of Cook county, as required by that act; that at the time the loan was made the association charged defendants $24; that the net amount paid on the loan to the borrowers was $276; that the loan was in violation of paragraph 28, ch. 74 of Cahill’s Revised Statutes (see Laws of Illinois, 1917, p. 553, approved June 14, 1917); further, that at the time of the confession of judgment there was due a balance of only $120; that nevertheless contrary to the statute, attorney’s fees to the amount of $30 were allowed; that the entire transaction was null and void under the Small Loans Act, and that the plaintiff was not an innocent holder for value, but that the note was indorsed to him for the purpose of avoiding the statutory liability.

The Small Loans Act has been held constitutional in People v. Stokes, 281 Ill. 159, and it seems to be conceded that the affidavit stated a good defense upon the merits within the terms of that act, but plaintiff contends that the affidavit is insufficient and that the court did not abuse its discretion in denying the motion, for the reason that the affidavit failed to allege that defendants exercised diligence in presenting their defense. Plaintiff cites a large number of cases, some of which, such as Hitchcock v. Herzer, 90 Ill. 543, are not applicable for the reason that the question which the court was there called upon to decide was whether the court had abused its discretion, in refusing to grant a new trial where the defendant, although served, had failed for some reason to interpose a defense. There is no question that in such case a defendant is required to make a showing not only to the effect that he has a meritorious defense but also that he was not guilty of negligence in permitting a judgment to be entered against him. The distinction has not always been observed.

Thus, in Sternberger v. Wright, 239 Ill. App. 490, where a judgment had been entered by confession on' April 14, 1925, which defendant made a motion to set aside on May 19, 1925, the Appellate Court for the Fourth District said:

“A motion to open a judgment by confession and for leave to plead is analogous to a motion to vacate a judgment obtained by default, and the rule as to laches in default cases is applicable.” The opinion cites, Kesner v. Truax, 195 Ill. App. 285, and Freeman v. Counsell, 203 Ill. App. 333, as authority for this statement, and Mendell v. Kimball, 85 Ill. 582, as authority for the further statement that a default will not be set aside, although the defendant may show that he has' a good defense, when it does not appear that he exercised proper diligence.

An examination discloses that Mendell v. Kimball was a case where a judgment was taken by default in the absence of the defendant, and not, as here, a case where judgment was entered by confession.

Kesner v. Truax is a case where judgment was entered by confession on a lease and there was an appeal from an order denying a motion of the defendant to open up the judgment. The order denying the motion to vacate was sustained, the court citing and quoting with approval from Kloepher v. Osborne, 177 Ill. App. 384, which again was not a case where there was a .confession of judgment at all, but one where a defendant duly summoned failed to present his defense.

Tyler v. Ross, 215 Ill. App. 502, is also cited, but while the question there arose out of a confession of judgment, it does not appear that the question of whether reasonable diligence was necessary received consideration. Jones Foundry & Machinery Co. v. Aurora, Elgin & Chicago Ry. Co., 166 Ill. App. 166, is another case cited which did not involve a motion to set aside the judgment by confession but, on the contrary, was a proceeding under section 89 of the Practice Act, Cahill’s St. ch. 110, ¶ 89. Hartford Life & Annuity Ins. Co. v. Rossiter, 196 Ill. 277, is another case relied on, which does not involve a confession of judgment.

Thurn v. Schwartz, 197 Ill. App. 359, is not cited but involves a confession of judgment entered July 23, 1910, and a motion to vacate and set aside made March 20, 1914. As a matter of fact, the judgment was set aside and a trial had before a jury and there was a finding for plaintiff. The opinion of this court there states that the laches attributable to defendants in waiting nearly four years was a bar to the granting of the motion, citing as authority Schultz v. Meiselbar, 144 Ill. 26, and Barrett v. Queen City Cycle Co., 179 Ill. 68, where the question considered was the action of the court in vacating a default where a defendant summoned had failed to present his defense. Austin v. Lott, 28 Ill. 519, is cited. It was there held on appeal that a motion to set aside a judgment which had been entered four terms before the motion was made came too late, the precise facts, however, not appearing.

The law applicable in this State to the exercise of the equitable jurisdiction of courts over judgments entered by confession upon warrants of attorney is set forth in the early case of Lake v. Cook, 15 Ill. 353. In that case a confession of judgment was entered upon a promissory note at the November term, 1852, of the Kane county circuit court. At the February term, 1853, defendant entered a motion to set aside the judgment which was continued to the next term. At that term the motion was heard upon affidavits and an order was entered denying the motion. Upon appeal the Supreme Court pointed out that courts of law exercise equitable jurisdiction over judgments entered by confession upon bonds and warrants of attorney, citing Frasier v. Frasier, 9 Johns. (N. Y.) 80; Wintringham v. Wintringham, 20 Johns. (N. Y.) 296; Barrow v. Bispham, 6 Halsted (N. J. L.) 110, and quoting with approval the observations of the chancellor in Brinkerhoff v. Marvin, 5 Johns. C. R. 320, where it was said:

“And it is necessary to justice that courts of law should possess, and liberally exercise that jurisdiction. ’ ’

Our Supreme Court said, after reviewing these authorities:

“We think the court should so far have opened the case as to allow the defendant a trial on the merits. He had no notice of the entering of the judgment, and therefore could not have interposed his defense at that time. He made this application at the earliest opportunity, and was not justly chargeable with any laches in the assertion of his rights.”

In the comparatively recent case of Lathrop-Paulson Co. v. Perksen, 229 Ill. App. 400, this, court had occasion to consider the rule applicable to a motion to set aside a judgment by confession after the term at which the judgment was entered, and summarized the law as follows:

“It has long been the rule that courts of law exercise an equitable jurisdiction over judgments entered by confession on warrants of attorney. Diligence must be shown by defendant in making a motion for leave to defend and equitable grounds must be presented clearly showing that plaintiff was not entitled to the judgment on the power of attorney. This has been the approved practice since the early case of Lake v. Cook, 15 Ill. 353, where the reasons therefor are clearly stated. The propriety of this has been recognized in numerous reported cases. Cases like Chapman v. North American Life Ins. Co., 292 Ill. 179, holding that the court cannot, at a subsequent term, set aside a judgment for error committed in the entry of the judgment, are not in point. The defendant in the case at bar made his motion within apt time and presented equitable grounds which clearly entitled him to present his defense and have the same heard upon trial in the usual way, and the order of the court in this respect was proper.” In that case judgment was entered March 17,1922, and a motion to vacate and for leave to defend was made March 28 thereafter.

Other cases might be cited, but what we have already stated is sufficient to show that the proper rule in this State is that where a judgment has been confessed the defendant is entitled to have it set aside at a subsequent term upon showing a meritorious defense, and that he has not been guilty of laches. We have not been cited by either of the parties to any case nor have we found one in which any general rule as to what constitutes laches in such a case is stated. The doctrine is an equitable one based upon the maxim that equity aids the vigilant and not those who slumber on their rights. It appears therefrom that the basis of the doctrine of laches is found in an equitable estoppel. The defendants here contend (if we understand them aright) that there is no basis for laches because the writing which purported to create the debt and the power of attorney is void as being contrary to the statute. It is apparent (assuming as we must that the affidavit is true) that the power of attorney and the note are both void ab initio because contrary to the statute. People v. Stokes, 281 Ill. 159; Raming v. Peyser, 259 Ill. App. 152. That being true, it is difficult to understand how laches could be based upon such an illegal transaction or how the acquiescence of defendants in the judgment could validate an agreement which is illegal and contrary to public policy. Evans v. American Strawboard Co., 114 Ill. App. 450. If the power to confess judgment was illegal and void on this record, we must then hold that the execution of the power did not confer jurisdiction upon the court to enter the judgment, and it could be set aside at any time thereafter. McInness v. Wilson Printing Co., 258 Ill. App. 161; Brown v. Atwood, 200 Ill. App. 210, and cases there cited.

The statute in question was enacted for the purpose of protecting the weak and the oppressed from the strong and the powerful, and the public policy of the State as expressed in the statute may not be disregarded nor its protection denied to those for whose benefit it was enacted because of their acquiescence for a few months in the wrong which the statute was enacted to prevent.

For the reasons indicated the judgment is reversed and the cause remanded with directions to set aside the judgment confessed and allow a trial upon the merits.

Reversed and remanded with directions.

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


author: Mr. Justice Matchett

text:
    Margaret M. McCarthy, Appellant, v. Chicago Title & Trust Company, Appellee.
    Gen. No. 35,598.

      Opinion filed January 25, 1932.
    George A. Lane and George A. Rooney, for appellant.
    George Gillette arid Norbert Tyrrell, for appellee.
   Mr. Justice Matchett

delivered the-opinion of the court.

Margaret M. McCarthy filed her bill in equity in the nature of a creditor’s bill in the superior court of Cook county based on certain unsatisfied decrees in her favor against her husband, William J. McCarthy, which had been recovered in a proceeding by her against him for separate maintenance. The Chicago Title & Trust Co. was named as one of numerous defendants who, it was alleged, in the bill, held in its possession property belonging to the judgment debtor and which should be subjected to the satisfaction of the decrees in favor of complainant. To this bill the Chicago Title & Trust Co. filed a general demurrer which was sustained, and complainant electing to stand by her bill the same was dismissed for want of equity and the cause remained undisposed of as to other numerous defendants. Mrs. McCarthy has perfected this appeal from that decree, and the Title & Trust Co. has made a motion to dismiss the appeal on the ground that the order appealed from was not final and reviewable in this court, in that it was dismissed as to one of many defendants and remained pending as to others. Suggestions in support of the motion and counter-suggestions in opposition thereto have been filed, and the disposition of the same was reserved to the hearing.

In support of its motion to dismiss the Title & Trust Co. cites two cases — People v. Banks, 285 Ill. 137, and Chicago & W. I. R. Co. v. City of Chicago, 294 Ill. 257. In People v. Banks, a writ of error was sued out to review a decree entered by the circuit court of Adams county. It appears that a suit was brought by the People for the purpose of foreclosing certain tax liens against the defendant Banks. One Welch and other holders of certain bonds issued by a drainage district were interested because Banks had failed to pay certain assessments levied against his lands in that district for the purpose of paying these bonds. The bondholders filed an intervening petition making defendants thereto.the county collector of Adams county and one F. B. McKennan, and thereafter Della M. Armstrong was permitted to become a party defendant. The defendants to the intervening petition filed demurrers which the court sustained, and on appeal to the Supreme Court the decree of the circuit court was affirmed. The opinion in that case is reported in People v. Banks, 272 Ill. 502. After the case had been affirmed, Welch filed a new intervening petition in the foreclosure suit in which he sought to remedy defects in the former petition by further and other averments, and he made McKennan, the county collector, and Della M. Armstrong parties defendant thereto. The petition prayed that the county collector might be directed to execute and deliver to Welch a proper deed of conveyance to land and for general relief. Two of the defendants filed separate general and special demurrers to the petition which were sustained by the court. The other defendant filed an answer denying that Welch was entitled to the relief prayed and denying that Della M. Armstrong held title to the land in trust for him. On motion of Della M. Armstrong the intervening petition was dismissed for want of equity, Welch having elected to stand by his petition. Welch sued out a writ of error to reverse the decree. There was no trial of the issues made on the answer of McKennan to the petition, and the record showed that those issues were still pending for trial and decision in the circuit court. The court said:

“The decree in this case that we are asked to reverse on this writ of error is not a final decree. This court has frequently held that if a bill is dismissed as to one or more parties for want of equity and the case still remains pending as to other parties, the complainant cannot prosecute a writ of error until there has been a final decree or disposition of the case as to all the other parties. The reason is that such a decree is not a final decree within the meaning of our Practice Act, and this court has therefore no jurisdiction to review it. Under such circumstances this court will dismiss the writ of its own motion. (Bucklen v. City of Chicago, 166 Ill. 451; Thompson v. Follansbee, 55 id. 427; Dreyer v. Goldy, 171 id. 434; Pain v. Kinney, 175 id. 264.)” The court stated, however, that there were exceptions to the rule, but that the circumstances there appearing did not bring the case within such exceptions.

In Chicago & W. I. R. Co. v. City of Chicago, 294 Ill. 257, complainants filed three separate bills to remove alleged clouds from and quiet title to certain specific real estate described in each bill. The City of Chicago was made the only party defendant in each of the bills. It filed a general and special demurrer. Certain other persons filed an intervening petition asking to be made defendants on the ground that they were interested and over the objection of complainant were made defendants. The Calumet & South Chicago Railway Co. was also permitted to intervene and be made a defendant, and its petition was ordered to stand as its answer to the bill. Thereafter, the demurrer of the City of Chicago to the bills was sustained, and complainants electing to abide by their bills they were dismissed for want of equity. Each of the complainants prosecuted an appeal to the Supreme Court. A motion was made by the Calumet & South Chicago Railway Co. to dismiss the appeals upon the ground that the order appealed from was not final. The court stated the general rule that the dismissal of a bill as to one party could not be appealed from until the case was disposed of as to all of the parties and that a judgment or decree was final only when it terminated the litigation between the parties. The court, however, further stated that the demurrer of the City of Chicago was sustained on the ground that the suits were barred by the statute of limitations or laches and it was apparent that the bills could not be amended in that respect; that the intervening defendants sought no affirmative relief but only asked the dismissal of the bills for want of equity; that the decree entered by the chancellor it seemed plain was intended to make a final order ending the litigation as to all the parties; that such was the effect of the decree, and that it was therefore a final and appealable order.

In Peoria, D. & E. Ry. Co. v. Pixley, 15 Ill. App. 283, it appeared that an appeal was prosecuted from a decree dismissing a cross-bill and dismissing the appellant as a party to the original bill. It-was suggested that the decree was not final because the original bill was still retained as to the other defendants, and that no appeal would lie from it. The court, however, stated: ■

“Owing to particular circumstances and hardships, the courts have refused to dismiss appeals from some judgments which did not completely dispose of the cases in which they were entered. Freeman on Judgments, Ch. 1, Sec. 35.” On the authority of Western Union Tel. Co. v. Pacific & Atlantic Tel. Co., 49 Ill. 90, the appeal was sustained.

In Thompson v. Follansbee, 55 Ill. 427, it is stated to be a well settled rule that a writ of error will not lie except to a final order of court; that if the bill is dismissed as to one or more parties, the complainant cannot prosecute a writ of error until there has been a-final disposition of the case as to all other parties; and that a cause cannot be reviewed as to one party at one time and as to another party at another time.

This case was followed in Bucklen v. City of Chicago, 166 Ill. 451, where a bill for an injunction against two defendants was filed, the City demurred to the bill, the other defendant answered, the demurrer was sustained, and complainants electing to stand by their bill it was ordered that the same be dismissed as to the City of Chicago at complainants’ costs. The court cites Thompson v. Follansbee, and says:

“To the same effect is International Bank v. Jenkins, 109 Ill. 219, and Farson v. Gorham, 117 id. 137. And in Chicago Steel Works v. Illinois Steel Co., 153 Ill. 9, we again said (p. 16): ‘This court has often decided- that a case cannot be heard here by piecemeal. (Farson v. Gorham, supra.) A cause cannot be reviewed as to one party at one time and as to another party at another'time, ’ citing authorities. In the case of Hutchinson v. Ayres, 117 Ill. 558, a bill was filed against three different persons, all of whom the court held to be necessary parties. Subsequently the circuit court dismissed the bill as to two of the parties and entered a decree against the third. The court, in its opinion, says (p.- 567): ‘Mrs. Hutchinson being a necessary party, no appeal or writ of error lies upon the decree until there is a final decree as to her, ’ citing the Jenkins and Follcmsbee cases, supra. ‘The case is not analogous to those wherein it has been held that a party may, by a voluntary dismissal, cause a preliminary and interlocutory decision to become final.’ Other decisions of this court to the same effect might be cited.”

In Crouch v. First Nat. Bank of Chicago, 47 Ill. App. 574, the court stated that authority required the allowance of a motion by the appellee to dismiss the appeal because the suit was Still pending below against the other defendants, and that the cases were collected in Packer v. Roberts, 44 Ill. App. 232. The court however added that it would be a great hardship upon, if not a denial of justice to, the appellant to dismiss the appeal if he were entitled to relief upon the merits; that no decree against any of the other defendants which he could have would be of value to him, and that it would therefore act upon the considerations that moved the Appellate Court of the Fourth District in Peoria, D. & E. Ry. Co. v. Pixley, 15 Ill. App. 283, and refuse to dismiss the appeal.

The same case reached the Supreme Court and is reported in Crouch v. First Nat. Bank of Chicago, 156 Ill. 342, where the facts are stated at great length. It appears therefrom that the bill in that case alleged that certain members of a limited partnership which was insolvent, with the intent to hinder and defraud creditors, confessed judgments upon certain notes to numerous parties, some of whom were residents of other States, and the bill prayed that these judgments should be decreed to be illegal and void and that the property which had been levied upon under executions based on the confessed judgments should be subjected to the lien of the payment of debts- of the partnership. The cause was removed to the circuit court of the United States, 18 Fed. 3, and a decree in favor of complainants was entered (34 Fed. 692), which upon appeal to the Supreme Court of the United States was reversed and the cause remanded to the circuit court of Cook county. Intervening petitions were filed by numerous creditors, and complainants obtained leave to file an amended and supplemental bill, to which two of the defendants filed demurrers. The demurrer of the bank was sustained, and as to it the bill was dismissed at complainants’ costs. The other demurrer was overruled. Discussing the point made that the appeal should have been dismissed by the Appellate Court, the Supreme Court said:

“It is undoubtedly true that, under the general rule, an appeal, as against the bank, would not lie until the cause was finally disposed of in the circuit court; but we think the Appellate Court properly held this case within an exception to the general rule, and we are not disposed to disturb its decision on that question.”

In Hoier v. Kaplan, 313 Ill. 448, the complainant filed a bill to foreclose a mechanic’s lien. The defendants filed a general and special demurrer, which was sustained and the petition dismissed as to certain items named. As to the rest of the petition the demurrer was overruled. The complainant appealed from the order of dismissal to this court where the defendants moved to dismiss the appeal, for the reason that it had not been taken from a final order. The motion was denied, the decree of the circuit court upon review affirmed, and a certificate of importance granted to the Supreme Court. The opinion states that one of the questions was whether the order of dismissal by the circuit court was appealable and says:

“A judgment at law is a unit. A decree in equity may have the effect of several separate decrees. (Walker v. Montgomery, 236 Ill. 244.) An appeal may be taken from that part of a» decree which deals with a particular subject, and such an appeal operates as a severance in the trial court of the parties and questions not concerned in the appeal. (Mussey v. Shaw, 274 Ill. 351.) The test is whether the decree or order appealed from determines the ultimate rights of the parties with respect to distinct matters which have no bearing on other matters left for further consideration. (Sebree v. Sebree, 293 Ill. 228; City of Park Ridge v. Murphy, 258 id. 365; People v. Vogt, 262 id. 170.) The circuit court by its order of dismissal determined finally the rights of the parties with reference to a definite and separate portion of the subject matter of the controversy, hence the order was appealable, and the Appellate Court properly denied the motion to dismiss the appeal. ’ ’

It appears, we think, from this hasty review of the cases that under the general rule the decree here entered would be held to be interlocutory unless the facts of the case bring it within one of two exceptions — (1) that the rule is not applicable to cases where its enforcement would result in a great hardship or injustice to any one of the parties, and (2) that the rule is not applicable where the decree as entered finally and completely disposes of a particular subject matter of the litigation as between the particular parties.

The bill filed by Mrs. McCarthy is a creditor’s bill based upon section 49 of the chancery code. It is based upon unsatisfied decrees where executions have been issued and returned unsatisfied, thus leaving her without remedy except in a court of chancery. A bill of this kind qualitatively and usually quantitatively differs from other proceedings in chancery. It is in the nature of an inquisition, the purpose of which is to discover property of the debtor which may be applied to the satisfaction of his debts. Indeed, it is not altogether unlike the case of Crouch v. First Nat. Bank of Chicago, above cited. There are a large number of defondants, and the bill describes a large number of transactions (which it challenges) with these different persons and which are entirely distinct, the one from the other, in their nature. Only one item of the bill concerns the defendant Chicago Title & Trust Co. The bill in substance alleges that the Trust Co. has in its possession six bonds in the sum of $1,000 issued by the Public Service Co. of Northern Illinois. It describes these bonds by number and says that they were deposited by the Chicago Title & Trust Co., and that the company is now holding these bonds which have become, by means described in the bill, the property of the judgment debtor. The decree, which sustains the demurrer of defendant and dismisses the bill of complaint as to this charge, finally disposes of the issue with reference to this property. It is separate and distinct from other items held (as alleged) by other defendants named, and the decree therefore finally disposes of the cause as between these parties upon the merits.

We think that to hold otherwise would inflict a hardship upon complainant. The records of this court show that from November 15, 1917, until now, Mrs. McCarthy has been compelled to carry on constant litigation for the purpose of compelling a reluctant husband to comply with the elementary duty of providing the necessary sustenance for his family. Her bill, if true (and the general demurrer admits the facts well pleaded therein to be true), shows that in numerous ways and with numerous persons throughout the years he has succeeded in putting his property, means and income out of the reach of the law. Further delay would work hardship and should not be encouraged by this court. The motion to dismiss will be denied.

The appellee, Chicago Title & Trust Co., has not filed any brief or assisted the court by-making any suggestions in favor of the decree which was entered. We assume that it was not aware of any suggestions which would be helpful to this court upon that part of the case. The bill,- as already stated, alleges that the Chicago Title' & Trust Co. has in its possession property which belongs to McCarthy. If this is true, complainant has the right to have it applied to the satisfaction of her decree against him. Clearly, the court erred in sustaining the general demurrer and dismiss- i ing the bill of complaint for want of equity, and the decree will therefore be reversed and the cause remanded with directions to the trial court to enter an order requiring defendant to answer the bill.

Motion to dismiss denied and the decree reversed and remanded with directions.

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


author: Mr. Presiding Justice Jett

text:
    John C. Wendt and Josephine Wendt, Appellants, v. City of Elgin et al., Appellees.
    Gen. No. 8,175.

      Opinion filed January 27, 1932.
    McCarthy & McCarthy, for appellants; Frank A. McCarthy and Theodore N. Schnell, of counsel.

      P. C. Tyrrell and Healy, Beverly & Funk, for appellees ; P. C. Tyrrell, Glenn R. Beverly and Paul G. Funk, of counsel.
   Mr. Presiding Justice Jett

delivered the opinion of the court.

This is a bill for injunction filed on May 13, 1929, by John C. Wendt and Josephine Wendt, appellants, in the city court of the City of Elgin in Kane county, against the City of Elgin, J. 0. Myers, city collector of the City of Elgin, and E. M. Scheflow, appellees. The bill alleges that John C. Wendt and Josephine Wendt, the appellants, are the owners of two certain lots in the City of Elgin, Kane county, Illinois, and that on September 7, 1928, the City of Elgin filed a petition in the city court of said City of Elgin to levy a special assessment to pay the costs of constructing a local improvement as provided by an ordinance for the construction of a sewer system in certain streets and in parts of private property adjacent thereto in the .City of Elgin, and to ascertain the just compensation to be paid to the owners of the said private property ; that on October 26, 1928, an order of confirmation was entered in said assessment proceedings and an order was entered that a trial be had to ascertain the just compensation to be paid to all owners of property taken or damaged by virtue of said improvement.

It is further alleged by the appellants that they were not served with a summons and did not receive notice of any kind of the aforesaid proceedings; that they did not enter their appearance in court and have not had their day in court, and- that the verdict of the jury fixing the value of the appellants’ property in the sum of , $103.23, was not the correct or fair value of said property; that the property is worth considerably more and that they would be able to prove this fact if they had an opportunity to present their evidence to the court; that the said condemnation proceedings and the order and judgment therein confiscates appellants’ property without due process of law in violation of section 1, art. 14 and art. 7, of the amendments to the United States Constitution, and is contrary to and in violation of section 2, art. 2 of the Constitution of the State of Illinois; that the defendant, E. M. Scheflow, under a contract with the City of Elgin is now working and excavating for the purpose of laying said sewer and is about to reach appellants’ property and to take possession of said property and excavate the same immediately unless restrained by the court; thereby appellants’ property will be confiscated without due process of law and appellants will suffer irreparable injury and damages and their rights will be unduly prejudiced; that, if they give notice of this proceeding, defendants will take immediate possession of the property and thereby prevent them from enjoining the same.

The prayer of this bill is that the City of Elgin, J. 0. Myers, city collector of the City of Elgin, and E. M. Scheflow and their agents may be enjoined and restrained from taking possession, tearing up, excavating or in any manner entering into possession of the property of appellants; that it be decreed that said proceedings as to appellants were without due process of law; that appellants were never served with summons nor appeared therein and that they have not had their day in court and for other relief in the premises.

The said bill was verified by the appellants and a temporary injunction was issued thereon, enjoining said City of Elgin from taking possession, tearing up, excavating or in any manner entering into the possession of the property of appellants.

On May 15, 1929, in vacation, appellees filed their' answers denying the allegations of the bill and served notice that on May 20, 1929, they would appear in said court and move to dissolve the temporary injunction.

On May 20, 1929, when the motion to dissolve the injunction came on for hearing, the appellants filed their petition for a change of venue alleging that they feared and believed that they could not receive a fair hearing on account of the prejudice of the judge. The petition for change of venue was denied.

After the filing of the said answers by the appellees, a hearing was had on said motion to dissolve the injunction and the motion was allowed and the temporary injunction was dissolved.

After dissolving the injunction, appellants made a motion to dismiss their bill of complaint, which was denied. The motion to dismiss the bill of complaint by appellants was renewed and was again denied. Appellees made a motion to assess damages, the motion to assess damages was heard and the damages were assessed at $200. After the assessment of damages on motion of appellants, their bill was dismissed and an appeal to this court was prayed and allowed by the- judge of the said city court.

It is urged by the appellants for a reversal of said cause that the court erred in refusing to grant a change of venue from the trial judge on account of alleged prejudice, and also that the court erred in dissolving the said injunction.

In this court the appellees entered a motion to dismiss the appeal. The record discloses that the appellants dismissed' their own bill. It is the contention of the appellees that while there are circumstances under which a party may appeal, even though he has voluntarily dismissed his own bill, the facts in this case do not permit such a circumstance, and in support of that contention appellees rely upon Cahill v. Welch, 208 Ill. 57.

It was originally the belief that the Cahill case last above cited definitely decided that where a bill for injunction is dismissed by the complainants after answer filed, the suit was thereby voluntarily terminated and no appeal would lie. The language of the opinion in the Cahill case is susceptible of that interpretation, but it is not in harmony with the cases therein cited, nor with the facts of the particular case itself. This is due apparently to the use of the correlative “or” instead of the conjunctive “and” in the following sentence on page 59, ‘ ‘ That, however, is not the rule when other relief is sought by the bill, or when an answer has been filed and the court dissolves the injunction upon a consideration of the facts set up in the answer. ’ ’

Necessity has given rise to two different rules of procedure upon the dissolution of temporary writs of injunction. Which one of the rules should be applied in a given case depends upon circumstances in such case. The first rule is, that where the bill seeks no other relief than an injunction, the granting of a motion to dissolve the temporary writ should be followed by a dismissal of a bill.

The second rule is, that where the bill seeks for relief in addition to an injunction, the granting of a motion to dissolve a temporary writ should not be followed by a dismissal of the bill.

The first rule is predicated upon the fact that if it appears to the court there is no equity in the bill, the suit should be terminated upon the dissolution of the injunction. The second rule is imperative because, even though the temporary writ is dissolved, there are other matters to be determined from proofs, and therefore the suit should be continued and not dismissed.

When the first rule is- to be applied the question arises upon whose motion the dismissal must be made. We will all agree that it would be proper for the court to dismiss the bill upon its own motion. The defendant can properly make the motion; but the court having held there is no merit in the complainant’s case, the defendant need take no further notice of the case. If the complainant is desirous of taking an appeal he may move for a dismissal himself. He must be -permitted to pursue the only course which is charted for an appeal. If the word “and.” had been used instead of the word “or” in the Cahill case as above indicated, the rule then, in our opinion, would have been correctly stated. That the phraseology implied in the Cahill case was inaccurate was undoubtedly observed by the Supreme Court in Leonard v. Garland, 252 Ill. 300, on local page 302. The court held that the rule requiring the bill to be dismissed when an injunction is dissolved on the ground of want of equity on the face of the bill applies also to cases where the injunction is dissolved upon the full hearing of the bill, answer and affidavit.

Our conclusion, therefore, is that where an injunction is the only relief sought, and it appears either from the bill itself or from the proofs after answer filed, that the complainant is not entitled to the relief he seeks, the correct procedure is for the complainant to procure a dismissal of the bill to the end that he may perfect an appeal.

Beginning with Titus v. Mabee, 25 Ill. 257, and extending on through the Cahill case into later decisions, the complainant has been given the right to dismiss his bill where a temporary writ has been dissolved before answer filed. It seems to us that every reason which brought that rule into being will apply with equal force after answer has been filed and proofs taken.

The test is: Does the case present merit? If the bill has none on its face, or if the proofs show none, then. the bill must be dismissed and it makes no difference by whom. We conclude, therefore, that the motion of appellees to dismiss the appeal should be denied.

It is the contention of the appellants that the court erred in denying their application for a change of venue. It appears that the motion to dissolve the injunction was called up by appellees on a five-days’ notice to the appellants. The hearing was in vacation prior to the term to which the summons was returnable. On the day of the hearing appellants filed their petition for a change of venue. The petition is in due form as provided by the statute and was positively verified and alleged that the knowledge of the prejudice of said judge did not come to the knowledge of the appellants until May 20, 1929, the day of the hearing.

The court denied the application for change of venue for the reason that no notice was given to the appellees of said motion for a change of venue.

It is also recited by the court that an application had been made for a continuance of said cause which the said court denied. The following announcement appears as the ruling of the court: ‘ ‘ This matter coming on to be heard on this date (meaning May 20,1929) pursuant to notices served under the statute, and the court having set this date .as a special date for the hearing of said matter, and having adjourned to this date for that purpose; and Mr. P. C. Tyrrell, a corporation counsel, being present, representing the City of Elgin and J., 0. Myers, city collector, and Mr. Paul Funk of the firm of Healy and Beverly, representing the defendant, E. M. Scheflow; and Mr. Schnell of the firm of McCarthy & McCarthy, representing the complainants; and afterwards the matter comes on for hearing upon motion of solicitor for complainants for a continuance of said cause until Friday next, the court denies said motion for continuance; thereupon complainants present petition and affidavit for change of venue sworn to on May 20, 1929, and it appearing that no notice has been given to any of the defendants or their respective counsel, of said application.

“The court is of the opinion that said application for change of venue comes too late and is denied, and the court is ready for a hearing upon the proceedings to dissolve said injunction.”

We have examined the record and notwithstanding the recital that the appellants made a motion for continuance, we fail to find any motion in the record.

In People v. Cohen, 268 Ill. 416, it was held: “That notice of an application for a change of venue on account of the prejudice of the judge, which is given on the day before the case is set for trial, is reasonable, notwithstanding several continuances have been granted, where it appears from the statements of the affidavits that knowledge of the prejudice of the judge did not come to the defendant until the morning of the day the notice was given.”

In Stauber v. Stauber, 200 Ill. App. 137, 139, it is said: “It is not questioned but that the petition is in due form. All the proceedings relating to the change of venue were at the first term, at the term to which the summons was returnable. The case was then pending on a demurrer to the declaration. The petition stated that the knowledge of the prejudice of the judges had come to the petitioner since December 20, 1913, and less than ten days before the filing of the petition. We fail to see why, under the statute referred to, the application was not in apt time. In that respect it contained more than the statute required. ’ ’

In Thompson v. Malmin, 204 Ill. App. 374, it was held that the court cannot arbitrarily deny a change of venue where one brings himself within the provisions of the statute, and there is no complaint of insufficient notice.

In Daniel Boone Woolen Mills v. Laedeke, 238 Ill. App. 92, 100, the court said: “The very motion of refusing to allow a change of venue, after the accused has made oath to his belief that the trial judge is biased and prejudiced against him, is repugnant to our system of jurisprudence. So ardent have the courts been in upholding the right of a party to a trial before an unprejudiced judge that it has been held that where a proper affidavit has been filed asking for a change of venue, because of the prejudice of a judge, such judge immediately loses all jurisdiction over the case, except to make the formal orders transferring the cause. This procedure is not only grounded upon the firmest principles underlying the administration of justice but is thoroughly consistent with the proper demeanor and dignity of a judge, whose mental attitude toward the accused, with respect to the particular proceeding, has been challenged.” . . . “It is unthinkable that under our system of laws a defendant may be required to submit his liberty and his estate to the disposal of a trial judge who is solemnly charged with prejudice against the accused.”

In Gregory Printing Co. v. DeVoney, 257 Ill. 399, it was held: “The statute concerning change of venue must receive such a reasonable construction as will promote justice and carry out the purpose of the statute. ’ ’

In People v. Scott, 326 Ill. 327 at 341, the court said: “The spirit of our laws demands that every case, whether a statutory proceeding or otherwise, shall be fairly and impartially tried, and no judge "should think of presiding in a case in which his good faith in so doing is open to such serious question as that presented by this record. These provisions of the statute should receive a broad and liberal, rather than a technical and strict, construction, and should be construed so as not to defeat the right attempted to be attained therein.” No denial appears of the matters and things set up in the petition. If the facts stated in the petition are true, then the change should have been granted.

In view of the state of the record, we are of the opinion that the application for a change of venue by the appellants should have been allowed.

It is next contended by the appellants that the court erred in dissolving the injunction in vacation on motion of appellees before the term to which the summons was returnable without affidavit being served or filed to support the motion, or sworn answers, or competent evidence under oath in open court. The only evidence that appellees claim to have offered was a summons in the special assessment case and the sheriff’s return thereon purporting to show service on the appellants. It is insisted that this was testimony in open court on the hearing in the motion to dissolve. The bill of complaint was verified by the appellants.

The statute provides: “Upon a motion to dissolve an injunction after answer, the court shall not be bound to take the answer as absolutely true, but shall decide the motion upon the weight of the testimony.” Cahill’s St. eh. 69, If 16.

The statute further provides: “The testimony of witnesses to be used upon such motion, except such as may be contained in the affidavits filed with the bill or answer, shall be depositions in writing, which shall be taken in the same manner as other testimony in cases in chancery.” Cahill’s St. ch. 69, ff 19.

• In Spiegler v. City of Chicago, 216 Ill. 114, at page 125, the court said: “In this case the preliminary injunction having been dissolved upon motion after the filing of an answer and replication, and the bill dismissed for want of equity, the motion to dissolve must be treated as a demurrer to the bill, and the case decided upon the face of the bill as though no answer or replication had been filed.”

In Hickey v. Stone, 60 Ill. 458, at page 461, it is said that the offer of a motion to dismiss is the same as a demurrer. “It admits the facts alleged in the bill and calls for the judgment of the court upon them. In this view, we are clear the motion to dismiss the bill should have been denied, for the allegations of the bill, on the admission they are true, make a strong case in favor of the complainant. The effect of the motion to dismiss was to admit that complainant was not served with process in the action at law; that he did not owe the plaintiff in that action; that the return of the officer on the summons, of service, if there be such, was untrue, and made through fraud or by mistake, . . . These facts present strong equities in favor of complainant, and being admitted, the bill should not have been dismissed. ’ ’

In the above case an injunction was granted enjoining proceedings under an execution on motion of the defendant. The injunction was dissolved, damages assessed and the bill dismissed. It has long been the law that the return of a sheriff is only prima facie evidence of the fact therein stated, and in a.proper case made equity will grant relief against the effects of it.

In the case of Sibert v. Thorp, 77 Ill. 43, it was held that, “The sheriff’s return on process does not import absolute verity, but is only prima facie evidence of the truth of the matters therein recited. ’ ’

In Wangelin v. Goe, 50 Ill. 459, the court had before it an injunction suit and said: “After answer filed denying the allegations of the bill upon motion to dissolve the injunction, it is allowed to either party to introduce testimony to support the bill and answer; in such case the motion is to be decided upon the weight of the testimony, without taking the answer as absolutely true.”

In Gray v. McCance, 11 Ill. 325, it was held: “An injunction should not be dissolved and a bill dismissed upon the filing of an answer not under oath or without evidence of the truth of the facts alleged in the answer.” The answer in this cause was not verified. '

The rule appears to be that the motion to dissolve an injunction operates as a demurrer to the bill and admits the facts therein stated"; in view of the fact that the bill is sworn to by appellants, these facts, it appears to us, would more than overcome a prima facie case made by the sheriff’s return.

It is also alleged in the bill that appellants’ property was being taken by appellees without due process of law. The order of confirmation of the special assessment proceedings "provide that upon proof of payment of the compensation named therein to the appellants then the petitioner (The City of Elgin) shall have the right to take possession of the premises of the appellants.

On the hearing of the motion to dissolve the injunction, the court found no proof of payment was ever made in said special assessment proceeding and no payment of said compensation was made to the appellants. There is nothing in the order to show that it provided that the compensation could be deposited as the court might order as provided by the provisions of the statute. The fact that the city had not paid the compensation to appellants for the property taken in the special assessment proceeding was sufficient to maintain the injunction.

In view of what is disclosed by this record, we are of the opinion that the decree should be reversed and the cause remanded with directions to the court to rescind all orders made after the petition for the change of venue was filed.

Reversed and remanded with directions.