text:
    The People of the State of Illinois, Defendant in Error, v. William G. Anderson, Plaintiff in Error.
    Gen. No. 36,482.
    Opinion filed October 10, 1933.
    F. L. Barnett and Richard E. Westbrooks, for plaintiff in error.

      Thomas J. Courtney, State’s Attorney, for defendant in error; Edward E. Wilson, Grenville Beardsley and Albert Woll, Assistant State’s Attorneys, of counsel.
   Mr. Justice Scanlan

delivered the opinion of the court.

Defendant, William G. Anderson, was found guilty of an alleged direct contempt of court, and was sentenced to serve a term of imprisonment of six months in the county jail.

The judgment order finds that on February 23,1932, the case of People v. Hall came on for hearing before the court on an amended information filed on January 21, 1932, which charged the defendant with infractions of sections 41 and 41a of the Motor Vehicles Law of the State, Cahill’s St. ch. 95a, |fíf 42 and 42(1); that on February 23, 1932, the court, after hearing the testimony of witnesses, found the defendant guilty as charged in the information, and sentenced him to ninety days in the Bridewell; that the amended information charged the defendant with infractions of sections 41 and 41a, but the original information filed in the cause did not so charge; that a writ of error was sued out of the Appellate Court by the defendant and that a transcript of the record in the cause was procured from the clerk of said municipal court “by, or on behalf of said Hall, and delivered to the defendant William G. Anderson-, . . . about April 5, 1932, which said transcript was thereafter filed in the said Appellate Court ... by said Anderson . . . acting as the attorney for the said Hall .... That Anderson . . . is an attorney . . . and an officer of this Court. That subsequent to the delivery of said transcript . . . to Anderson and prior to the time the same was filed in the Appellate Court Anderson altered or caused said transcript to be altered and changed, by transposing the original and the amended informations in said cause so that said transcript did not speak the truth but was false and fraudulent in that by said transcript it was thereby represented that the defendant . . . had been tried ... on the original information .... That said Anderson knowingly, wilfully and fraudulently presented said forged and altered transcript to the said Appellate Court ... on April 11, 1932, and then and thereby falsely represented to said Court that said transcript so presented by him to said Court was a true and correct transcript of the proceedings in said cause in this Court. That when Anderson procured said transcript from the Clerk of this Court and . . . fraudulently changed or caused to be changed from their proper places in said transcript the original and amended informations . . . and presented the said transcript to the said Appellate Court as so altered and changed Anderson was then and thereby guilty of direct contempt of this Court. And the Court doth .find that the said Anderson . . . did in the manner aforesaid, contemptuously impede, interrupt, harass, obstruct and interfere with this Court in the due administration of justice. And it further appearing to the Court that on November 11, 1932, while this Court was in session, and had under investigation the conduct of the said Anderson in changing the records as aforesaid in said cause, the said Anderson was called and sworn and testified as a witness in his own behalf and as such witness stated that he did not order said transcript in said criminal proceeding from the Cleric of this Court, but that the same was delivered to him by the defendant, Hall, and thereafter and on November 17, 1932, to which time said investigation was continued by this Court, said Anderson again being called as a ivitness, under oath stated in open Court while said Court was in session that he went with other persons to the Cleric’s office of the Municipal Court and there ordered said transcript and that the same was afterwards delivered to him by one Kelly in the presence of said Hall, and the said Anderson thereby admitted to the Court that he, said Anderson, had been guilty of deceiving the Court by making the statement hereinbefore mentioned on November 11, 1932, that he did not order said record in said criminal .proceeding from the Clerk of this Court as aforesaid, and that the transcript was delivered to him by said Hall. The Court finds that .said Anderson did thereby by the deceit contemptuously impede, interrupt, harass, obstruct and interfere with this Court in the due administration of justice. And the Court further finds that on November 11, 1932, Anderson, under oath, during said hearing before this Court did testify that said transcript in said case of Hall was in his, said Anderson’s, possession for about a week or ten days immediately prior to April 11, 1932, at which date the same was filed in the Appellate Court . . . by him, said Anderson, and that he examined every word in the said transcript at said time, and Anderson then and there on said, November 11th, falsely stated under oath as aforesaid to this Court that when he received said transcript from Hall that the copies of the original and amended informations were in the same place in said transcript at the time he, said Anderson, received it as they were when he filed the same in said Appellate Court; and further then and there falsely stated, under oath, as aforesaid to this Court that he did not know at the time he filed the same in said Appellate Court that the two informations were displaced in said transcript so that the amended information appeared therein as the original information and the original Information appeared therein as the amended information; and the Court further finds that Anderson did then know that the said informations were so displaced in said transcript. That it was then and there the duty of Anderson as an officer of this Court to call the attention of this Court thereto to the end that a truthful record might be presented to said Appellate Court in said cause; that Anderson .wholly failed so to do, but on the contrary concealed from it the fact that a false transcript of the record in said cause was so presented to said Appellate Court; and on said false transcript of said record Anderson secured a reversal of said judgment of this Court in said cause of People of the State of Illinois against said Hall. That upon an examination of said false transcript similar to the one Anderson admits having made as aforesaid at the time the same was in his possession as aforesaid (which examination has been made by this Court) it is apparent that the two informations are displaced as aforesaid and said transcript could not have been examined by Anderson without his becoming aware thereof. Both the original and amended informations appear therein to have been filed on January 21, 1932, while the cause was pending before another branch of said Municipal Court than the one presided over by this Court; the case did not come before this Court until February 23, 1932; at that time this Court signed the statement attached to the amended information that he had examined the same and found it sufficient and fixed bail therein at the sum of $1,000, and while it is not stamped or marked as the amended information such endorsement by the Court is sufficient to identify it as the information upon which Hall was tried on February 23, 1932, before this Court; and said transcript of record has other unmistakable evidence therein by which it would be apparent to Anderson that the said informations were displaced in said transcript which would not appear in a printed abstract thereof.” (Italics ours.) The order then recites that the court finds Anderson “guilty of direct and criminal contempt of this Court in open Court and it is adjudged by the Court that the said William Gr. Anderson ... is guilty of direct contempt of this Court in open Court,” and then follows the sentence.

Counsel for defendant, in support of their contention that the order is void, argue, inter alia, that “the alleged ‘direct contempt’ charged against defendant in the order of commitment, is predicated on testimony given by him before Judge Creen on November 11 and 17, 1932, at a hearing held by Judge Creen, concerning the correctness of the common, law record prepared by the clerk of the Municipal Court and by him certified to be ‘full, true, complete and correct.’ Even assuming that defendant gave false testimony in answer to questions propounded to him (which we deny), Judge Creen could not say that such answers were untrue and false, unless Judge Creen had personal knowledge of the subject matter, or unless defendant admitted in open court, that his testimony was false, and it was error to hear oral testimony contradictory of testimony offered by defendant, denying under oath that he had changed, or caused to be changed, the common law record delivered to him, as charged in the order of commitment.”

“A direct contempt consists of something done or omitted to be done in the presence of the court tending to impede or interrupt its proceedings or lessen its dignity. In such case the contempt may be punished summarily and' without any preliminary affidavit, process or interrogatory. (Tolman v. Jones, 114 Ill. 147; People v. Gard, 259 id. 238; People v. Cochrane, supra [307 Ill. 126].) Constructive contempt consists of an act done, not in the presence of the court but at a distance, which tends to obstruct, interrupt, prevent oembarrass the administration of justice. (People v. Wilson, 64 Ill. 195.) In such case the contempt must be brought to the attention of the court by preliminary petition supported by affidavit, notice given to the party accused, and an opportunity given him to answer the charge. People v. McDonald, 314 Ill. 548.” (People v. Sherwin, 334 Ill. 609, 616.)

The sentence in the order was based upon the theory that the defendant was guilty of a direct contempt, and the question before us is, Do the facts, as found, constitute such an offense? In People ex rel. Bain v. Feinberg, 266 Ill. App. 306, the court held that a bill of exceptions has no proper place in a record brought to review a sentence imposed for a direct contempt, criminal in its nature, committed in the presence of the court; that the only matter that can properly be considered on such review is the order of the court adjudging the party to be in contempt, and that because of this rule the law requires that the contempt order set out all the facts constituting the alleged contempt, so that the reviewing court may see whether or not such facts constitute a direct contempt. (See also People v. Hogan, 256 Ill. 496, 499.) In People v. Bain, 268 Ill. App. 192, the court, after stating the rule announced in the Feinberg case, said: “It follows that the order of commitment must be scrutinized carefully in order to determine whether it sets out the facts constituting the offense so fully and certainly as to show that the court was authorized to make the order.” Counsel for The People concede, as they must, that most of the findings contained in the order could not be made the basis of a judgment for direct contempt, but they insist, however, that certain of the findings were sufficient to justify the judgment for direct contempt, and in our recital of the order we have italicized the findings upon which The People rely. The People argue that these findings evidence two contradictory statements upon a material matter made by the defendant in the presence and hearing of the court and which warrant a further finding, from defendant’s own testimony, that he committed perjury in the testimony that he gave on November 11, 1932. The People insist, and rightfully, that the trial court had an inherent power to inquire into the matter of the alleged transposing of the informations in the transcript filed in this court in the Hall case, and we feel impelled to say that the trial court cannot justly be criticized for his zeal in the premises. That he had the right and power to examine the defendant, an officer of the court, in reference to the very serious charge made against the latter, cannot be seriously questioned.

“The rule is well settled that perjury or false swearing may, at least under some circumstances, be punished as a contempt of court.” (11 A. L. R. 343, and cases therein cited. Italics ours.) Section 225 of the Criminal Code of this State, Cahill’s St. ch. 38, ¶ 482, provides that “every person, having taken a lawful oath ... in any judicial proceeding, . . . who shall swear or affirm wilfully, corruptly and falsely, in a matter material to the issue or point in question, . . . shall be deemed guilty of perjury . . . .” “Perjury is wilfully, corruptly and falsely testifying in a matter material to the issue or point in question. The testimony must be known to the witness to be false and must be intended to mislead the court or jury. (2 Wharton on Grim. Law — 9th ed. — 1244.)” (People v. Glenn, 294 Ill. 333, 336.)

In People v. Stone, 181 Ill. App. 475, the court, after stating that it must presume from the record that the trial court treated the alleged contempt as a direct contempt, said:

“But there is nothing in the record to disclose that the court knew that the testimony was false. In a case of direct contempt, it may act upon that of which it may take judicial notice, but it cannot judicially know that evidence is false unless at the trial it i» so made to appear by the witness’ own admission or perhaps by unquestioned or incontrovertible evidence. Otherwise the court would act merely upon its belief or conclusions derived from evidence heard, and not upon matters of fact of which it had judicial cognizance, which is essential to the summary proceeding for direct contempt. ... If false swearing in the presence of the court constitutes direct contempt, then judicial knowledge of its falsity is, in our opinion, indispensable to the right of the court to exercise authority to commit therefor, and there is nothing in the record to disclose that the court knew or could know that the testimony was false.”

In Riley v. Wallace, 188 Ky. 471, 475-6; Bowles v. United States, 44 Fed. (2d) 115, 118; People v. Berrell, 216 Ill. App. 341, 343, and People v. Richman, 222 Ill. App. 147, 148, 149, that opinion has been cited with approval. We are in accord with it.

When the findings of fact in the order are tested by the rules laid down in the Stone case, supra, it seems plain that the trial court could not judicially know that the alleged evidence given by the defendant on November 11, 1932, was false swearing or perjury. The order does not show, save by mere conclusions, that the defendant admitted that he had testified falsely on that date, nor does it show, “by unquestioned or incontrovertible evidence,” that is, by findings of that character, that he testified falsely. The most that can be determined from the findings is that the trial court believed the testimony was false or perjured. It is a matter of common knowledge that honest witnesses frequently change their testimony and it would be a dangerous doctrine to hold that merely because a witness changed his testimony upon a material point during a trial or proceeding, a trial court could determine therefrom that he had committed perjury in the first instance and adjudge him guilty of direct contempt. The trial court in the instant case could not, by merely weighing the evidence of the defendant or by passing on his credibility, make his conclusions in reference thereto the basis of an order for direct contempt against him; nor could the court find him guilty of such offense solely because of evidence given by other witnesses in- the investigation.

Certain well known Illinois cases bearing upon direct contempt are readily distinguishable from the instant one: In People v. Hadesman, 223 Ill. App. 219, the defendant, a venireman, admitted in open court that the answers he had made to counsel touching his qualifications to serve as a juror in the cause were false. In People v. Freeman, 256 Ill. App. 233, the defendant, Freeman, admitted that certain answers previously given by him as a witness were false. In People v. Gard, 259 Ill. 238, the defendant admitted, in open court, that he had deliberately deceived the court when he was questioned by the court in the matter of a writ of habeas corpus. In People v. Sherwin, supra, it was held that the filing of a petition by the defendant to have expunged from the records of a proceeding still before the court (but before another judge) certain findings of the judge to whom the case was originally assigned, is a direct contempt, where the petition reflects upon the honesty and integrity of the court in its findings. In People v. Cochrane, 307 Ill. 126, the order recited that the defendant was guilty of direct contempt of the court in refusing to answer questions during an investigation by the grand jury and in again refusing to answer the same questions in open court. In People v. Andalman, 346 Ill. 149, 153, the trial judge, in open court, denied Andalman leave to file certain papers and ordered his minute clerk not to file them, and later, when the matter again came up in open court, Andalman announced to the judge that he had filed the papers. In Ex Parte Hudgings, 249 U. S. 378, Chief Justice White; while conceding that perjury may be the subject matter of punishment for contempt “when exceptional conditions so justify,” states that if perjury could be made the subject of a punishment for contempt merely because the court entertained the opinion that a witness had testified untruthfully, “a potentiality of oppression and wrong would result and the freedom of the citizen when called as a witness in a court would be gravely imperiled.”

The charge made against the defendant is a most serious one. As has been often stated, the administration of justice depends upon the integrity of judicial proceedings and records, and falsification of either obstructs and defeats justice. If the defendant is guilty of the charge he should be disbarred and prosecuted criminally. In the present case, however, we must hold that the trial judge, under the findings in question, could not judicially know that the testimony given by the defendant on November 11 was false or perjured, and that therefore the finding that the defendant was guilty of direct' contempt was unwarranted.

The judgment order of the municipal court of Chicago is reversed.

Reversed.

Sullivan, P. J., and Gridley, J., concur.


source: Caselaw Access Project

author: Mr. Presiding Justice Hall

license: Public Domain

text:
    Henry Reitinger, Appellee, v. Carl G. Carlson et al., Defendants. Appeal of Helge Erickson, Appellant.
    Gen. No. 36,214.
    Opinion filed October 25, 1933.
    Rehearing denied November 7, 1933.
    Ernest A. Eklund and Frederick J. Bertram, for appellant.
    Monahan & Monahan, for appellee.
   Mr. Presiding Justice Hall

delivered the opinion of the court.

This is an appeal by Helge Erickson from a judgment of the municipal court of Chicago for $1,500 and costs of suit against Carl Gr. Carlson, Karl Walden and Helge Erickson, appellant. The judgment was entered by confession on December 30, 1931, for $1,666.50, and was subsequently reduced after a hearing and upon the verdict of a jury. The suit is upon a-promissory judgment note, of which the following is a copy:

“Installment Note

“$1500.00 Chicago, Ill. July 19th, 1929

“At the dates hereinafter mentioned, for value received, I or we jointly and severally promise to pay to the order of Henry Reitinger at his office in Chicago, Cook County, Illinois, or at such other place as the legal holder hereof may in writing appoint, the sum of Fifteen Hundred Dollars in the following installments, and agree that on default in the payment of any installment the whole amount of this note shall then and there become due at the election of the legal holder hereof:

$75.00 on Oct. 1, ¡1929 $75.00 on Apr. 1, 1930

$75.00 on Nov. 1, 1929 $75.00 on May 1, 1930

$75.00 on Dec. 1, 1929 $75.00 on June 1, 1930

$75.00 on Jan. 1, 1930 $75.00 on July 1, 1930

$75.00 on Feb. 1, 1930 $75.00 on Aug. 1, 1930

$75.00 on Mar. 1, 1930 $75.00 on Sept. 1, 1930

with interest at 6% monthly on the whole sum from time to time remaining unpaid.

“With interest at seven per cent per annum after maturity. If this note is not paid when due, I or we agree to pay an attorney’s fee of Twenty-Five Dollars if placed in the hands of an Attorney for collection. We and each of us jointly and severally, do hereby waive presentment for payment, notice of’ dishonor, and protest this note, and hereby consent to the extension of this note from time to time without notice to us, and hereby waive any and all notice of whatsoever kind or nature and waive the exhaustion of all legal remedies hereon.

“In Consideration Whereof, and to secure the payment of said amount, I or we hereby authorize, irrevocably, any attorney of any court of record, to appear in such court, in term time or vacation, at any . time hereafter, and confess a judgment without process in favor of the holder of this note for such amount as may appear to be unpaid thereon, together with costs and an attorney’s fee of 10 per cent of such amount but not less than $10.00; to consent to immediate issue of execution, to waive and release all errors and irregularities that may occur in entering up judgment hereon, and further to agree that no appeal or writ of error shall be prosecuted on the judgment entered by virtue hereof, nor any bill in equity filed to interfere in any manner with the operation of said judgment or execution issued thereon. . . .

‘ ‘ This note may be paid on or before maturity. “Nils Peterson Carl Gr. Carlson

Sigrid B. Peterson Karl Walden

Helge Erickson. ’ ’

The judgment by confession which was entered on this note against Carl Gr. Carlson, Karl Walden and Helge Erickson, included $135 attorney’s fees.

On January 25, 1932, subsequent to the entry of the judgment, Helge Erickson, the appellant, filed his appearance and moved the court to set the judgment aside, and as a reason for such motion, alleged that appellant had received no consideration for the note; that he never delivered the note to the payee, nor did he ever authorize anyone to deliver the note; that Nils Peterson, one of the signers of the note, represented to defendant, appellant, that he, Peterson, was indebted to plaintiff in the sum of $1,500, and that hé, Peterson, had an agreement with plaintiff to the effect that plaintiff would accept as security for such indebtedness the note of Peterson, if Peterson would secure the signatures of five responsible persons as surety, and that the liability of each surety would be only $300; that Peterson requested defendant to sign the note as one of the five sureties; that defendant agreed to sign the note only upon the condition that Peterson would procure the signatures of four other responsible sureties in addition to defendant; that Peterson agreed with defendant before and at the time defendant signed the note, that he, Peterson, would not deliver the note to plaintiff until and unless Peterson procured four other responsible cosureties, and had secured an agreement from plaintiff that defendant would not be liable for more than $300, and that in no event was the note to be delivered to plaintiff until the four additional sureties were secured.

On February 11, 1932, the trial court entered as order giving defendants leave to appear and make a defense, that a trial be had notwithstanding the judgment by confession, that the judgment stand as security, that the execution be stayed until the further order of the court, and that the affidavit filed on the motion to vacate the judgment stand as the affidavit of merits. Thereafter the cause was submitted to a jury, which returned a verdict in which the jury found “that at the date of the rendition of the judgment by confession in this cause there was due from defendants, Carl 0. Carlson, Karl Walden and Helge Erickson, to the plaintiff, the sum of Fifteen Hundred ($1,500.00) Dollars.”

Motions for a new trial and in arrest of judgment were denied, and on June 11, 1932, the court entered an order in which it is recited 1 ‘ that the judgment rendered herein against the defendants, Carl Gr. Carlson, Karl Walden and Helge Erickson, by confession on December 30, 1931, amounting to $1,666.50, be and the same is hereby reduced to the sum of $1,500.00, for which amount said judgment is confirmed and ordered to stand in full force and effect as the judgment of this court as of the date of rendition thereof, and that said judgment, together with plaintiff’s costs, in this as well as in that behalf expended, be paid by the defendants in due course of administration.”

On the trial before the jury, Helge Erickson, appellant, testified that Nils Peterson, one of the signers of the note, told the witness that he, Peterson, desired to buy the interest of his partner, the plaintiff, in their business for $1,500, and that plaintiff would accept a note for that amount payable in instalments, provided Peterson could obtain the signatures of five responsible persons to the note; that the witness knew Elmer Johnson and Ivan Lindgren, and that he agreed that lie would sign the note, provided these last mentioned persons would sign it, and that Peterson agreed with the witness that he would procure the signatures of these persons to such note, and that thereupon the witness signed it.

Nils 'Peterson testified that he took the note as executed to the plaintiff and that plaintiff remarked that he would prefer to have the five signatures as suggested, but that he would accept the note as it was, which he did.

There seems to be little dispute as to.the material facts in this case. Nils Peterson desired to purchase from plaintiff an interest in a business in which he and Peterson were partners, at the agreed price of $1,500, and plaintiff agreed to accept a note signed by certain persons in consideration therefor. Peterson presented the note to these various persons and succeeded in procuring only the signatures of the defendants. The note was submitted to plaintiff in this condition and was accepted by him. There is nothing in the record to show that plaintiff was informed by Peterson or by anyone that the note was signed by the defendants or either of them with any understanding that the note was not to be delivered to plaintiff unless they all signed it. The evidence shows that the note in question was signed by defendant as an accommodation note, which is defined in the Negotiable Instruments Act, Cahill’s Illinois Rev. St. 1931, ch. 98, ¶ 49, page 1953, as follows:

“An accommodation party is one who has signed the instrument as maker, drawer, acceptor, or indorser, for the purpose of lending his name to some other person. Such a person is liable on the instrument to a holder for value, notwithstanding such holder at the time of taking the instrument knew him to be only an accommodation party and in case a transfer after maturity was intended by the accommodating party notwithstanding such holder acquired title after maturity. ’ ’

It is urged that while the note in question is joint and several, the power of attorney to confess judgment is .joint, and that, therefore, judgment by confession could be entered against all or none of the signatories, and the case of Mayer v. Pick, 192 Ill. 561, is cited among other cases as authority. In that case, while the note was by its terms joint and several, the power of attorney signed by the two makers of the note provided that “we hereby authorize, irrevocably any attorney of any court of record to appear for us in such court, in term time or vacation at any time after date hereof and confess judgment, etc.” In passing upon the question as to whether or not, under this warrant of attorney, judgment could be entered against one, the court in that case, quoting from and adopting an opinion of this court by Mr. Justice Adams, said, page 564:

“ ‘It was admitted, on the motion to vacate the judgment, that Simon Pick, whose name is signed to theo note and warrant of attorney, died January 3, 1900. While the note is, in terms, the joint and several note of the makers, the warrant of attorney is clearly joint. ... We are of opinion that the warrant of attorney, being joint, does not authorize a several judgment against one of the makers. Gee v. Lane, 15 East, 592; Man. and Mech. Bank v. St. John, 5 Hill, 497; Hunt v. Chamberlain, 8 N. J. L. 336; Kahn v. Lesser, 97 Wis. 217; Frye v. Jones, 78 Ill. 627; Whitney v. Bohlen, 157 id. 571; Blake v. State Bank of Freeport, 178 id. 182.

‘Gee v. Lane seems to be the leading case on the subject. In that case there was. a joint and several bond. The warrant of attorney was executed by the obligors, John Lane and William Gee, and was as follows : “To appear for us, John Lane and William Gee, and to receive a declaration for us in an action of debt for 2400 pounds upon a certain bond bearing even date herewith, whereby the said John Lane and William Glee are jointly and severally become bound to the said Thomas Glee in the penal sum of 2400 pounds and thereupon to confess the same action, or else to suffer judgment by nil dicit to pass against us in the said action,” etc. William Glee having died, the obligee moved for leave to enter up judgment against Lane, the survivor, but the court denied the motion, Lord Ellenborough, C. J., saying: “An action to be brought against us must mean a joint action. In the case cited, the warrant of attorney executed by the two was to enter judgment against me, which, construed severally, might serve the purpose; but I am afraid that an authority by two to enter judgment in an action against us will not warrant a judgment against one alone. The authority must be pursued; we cannot violate it. ’ ’

“ ‘In Hunt v. Chamberlain, supra, the bond was executed by two obligors and was joint and several. The warrant of attorney was to any attorney to appear to an action to be brought against %is. After the death of one of the obligors judgment by confession was entered against the other. The court, following Gee v. Lane, supra, reversed the judgment, and say, in substance, that the King’s Bench has uniformly adhered to the decision in Gee v. Lane, and that the court of common pleas has followed that decision since the year 1751. The court further say: “The present warrant empowers an attorney to appear in an action against Daniel Hunt and Ralph Hunt both, and extends no further. Its language is, ‘to an action to be brought against us, and confess judgment against us.’ They were willing to stand together in judgment and to meet an execution by their joint means and exertions, but it gives no authority for placing one of them in judgment by himself, and leaving him all alone to breast an execution for the whole sum, while the means and estate of the other remain untouched and undisturbed. ’ ’

“ ‘In Man. and Mech. Bank v. St. John, 5 Hill, 497, the warrant was signed by three persons, and the power was “to appear for us and each of us,” in an action of debt “to be brought against us and each of us,” and to confess judgment “against us and each of us,” and the court, Bronson, J., delivering the opinion, says: “I am strongly inclined to the opinion that the "warrant will only authorize a joint judgment against all the obligors.”

“ ‘In Kahn v. Lesser, supra, the promissory note and warrant of attorney were executed by Lesser and another, and were both joint, the power being “to enter our appearance before any court of record, in term time or in vacation, in any of the States or territories of the United States, at any time after the said note becomes due, to waive the service of process and confess judgment in favor of the said Simon Kahn or his assigns.” It will be observed that the warrant was substantially the same as in the present case. The Supreme Court of Wisconsin held that a judgment against Lesser alone was not authorized by the warrant, and was void, citing numerous cases, and say: “It is well settled that the authority to confess a judgment under a warrant or power of attorney must be strictly construed. An instrument delegating such power is ordinarily subjected to a strict interpretation, and the authority will not be extended beyond that given in terms, or which is necessary to carry into effect what is expressly given,” citing numerous authorities.

“ ‘In Frye v. Jones, 78 Ill. 627, the court say: “The authority to confess a judgment must be clear and explicit and must be strictly pursued,” citing Man. and Mech. Bank v. St. John, 5 Hill, 497, and Chase v. Dana, 44 Ill. 262.

“ ‘In Whitney v. Bohlen, 157 Ill. 571, the power granted was “to appear for me and confess judgment against me as of any term,” etc.. Judgment was entered by confession in vacation, and the court held the judgment unwarranted, saying among other things: “It is conceded the power to confess a judgment must be clearly given and strictly pursued, or the judgment will be void,” — citing prior Illinois decisions. See, also, Blake v. State Bank of Freeport, 178 Ill. 182, in which this language was used: “If a judgment so entered was not confessed by authority of the defendant it will be void for want of power to confess it, and a defendant who is injured by it may have it set aside upon motion.”

u ‘ Other cases might be cited to the same effect, but it is sufficient to say that the great preponderance of authority, English and American, is opposed to the proposition that a judgment may be confessed against one of two or more persons by virtue of a joint warrant of attorney authorizing, in terms, a judgment only against all executing the warrant. ’ ”

It will be noted that in the instant case, the warrant of attorney provides that “1 or we hereby authorize irrevocably any attorney of any court of record to appear in court . . . and confess judgment without process in favor of the holder of this note,” etc. We hold that the power of attorney in this case is joint and several, and that the court was not in error in entering the judgment on such warrant. The trial court allowed the original judgment to stand, and permitted defendant to submit his entire defense to the jury and upon the verdict of the jury thé original judgment by the order of the court was reduced from $1,666.50 to $1,500. We see nothing in the record to justify a reversal, or to which defendant has any just complaint.

Affirmed.

Wilson and Hebel, JJ., concur.


text:
    Harrisburg Coal Mining Company, Appellee, v. Ender Coal and Coke Company. Thomas H. Cochran and John H. Evans, Respondents in the Contempt Proceedings, Appellants.
    Gen. No. 36,264.
    Opinion filed October 25, 1933.
    Rehearing denied November 7, 1933.
    William A. Rogan, for appellants.
    Kirkland, Fleming, Green & Martin, for appellee; Howard Ellis, William H. Symmes and J. B. Martineau, Jr., of counsel.
   Mr. Presiding Justice Hall

delivered the opinion of the court.

On April 13,1931, the Harrisburg Coal Mining Company, complainant, filed its sworn bill in chancery in the superior court of Cook bounty in which it is alleged that the defendant, Ender Coal & Coke Company, is indebted to it, complainant, in a large sum of money, and complainant prayed that an accounting be had and that defendant be decreed to pay to complainant whatever sum the court might find to be due.

By this appeal, Thomas H. Cochran seeks the reversal of an order of the superior court of Cook county entered June 16, 1932, as amended June 28, 1932, in a proceeding against Thomas H. Cochran and John H. Evans, respondents, finding each of them guilty of contempt of court for wilfully refusing to produce for examination and inspection in the hearing of said cause, and for destroying certain books and documents of defendant company, ordered to be produced by the court. Separate appeals were taken and perfected by each of these respondents, and filed in this court as cases No. 36,264 and 36,265, which appeals, by order of the court, have been consolidated for hearing as case No. 36,264.

The bill is predicated upon various contracts alleged to have been entered into between the Harrisburg Coal Mining Company, complainant, the owner and operator of coal mines in southern Illinois, on the' one part, and the Ender Coal & Coke Company of Chicago, defendant, on the other part, by the terms of which it is alleged defendant agreed to and did become sales agent for complainant. The respondents, Thomas H. Cochran and John H. Evans, are and were during the pendency of the proceeding and on the date of the order appealed from, the president and secretary, respectively, of the Ender Coal & Coke Company, defendant. These contracts provided for the inspection of the books of the respective parties, by either of them.

It is charged in the bill, inter alia, that by the contracts between the parties, defendant, as sales agent, agreed to sell complainant’s product only, and after retaining its, defendant’s, commissions, to accouht to complainant for all such sales, and to pay complainant such sums as might be found to be due it; that large shipments of coal were made by complainant under said contracts and that defendant has failed to account to complainant as agreed, and that because of this fact and because of false statements made by defendant as to shipments of coal, complainant has been defrauded out of large sums of money, the recovery of which it seeks the aid of the court. Among other charges in the bill is one to the effect that in violation of defendant’s agreement with complainant, defendant sold and shipped coal coining from mines other than the mines of complainant, and represented to consumers that the coal shipped by defendant came from complainant’s mines, and further that defendant made false and fraudulent statements to complainant as to shipments of coal and of prices received therefor.

Defendant filed its answer in which it denies the charges of fraud, denies that it has failed to account to complainant, and denies that it is indebted to complainant in any amount whatever.

The bill prays a discovery from the records of defendant of the amounts out of which complainant alleges it has been defrauded; also of the details of shipments of coal alleged to have been made by defendant from mines other than the mines of complainant as follows:

“ (1) Whether the Sales Co., defendant, had shipped any No. 5 vein coal from said Counties other than that of complainant; and

(2) If so, the following details in respect of each transaction during said period:

(a) Date of purchase.

(b) ■ Name and address of seller.

(c) Location of mine from which coal was shipped.

(d) Amount. and kind of coal and purchase price paid per- ton.

(e) Name and address of person to whom coal was sold.

(f) Amount and kind of coal and sales price.

(g) Date of sale and terms of sale.”

The cause was referred to a master in chancery to take evidence and report, and on November 4, 1931, the master issued a subpoena duces tecum, which was served upon the defendant and the two respondents, directing them to appear before the master on Novem-, ber 5, 1931, and produce certain documents and records. The parties appeared before the master on November 5, 1931, when the master suggested that complainant proceed under section 9 of the Evidence Act, Cahill’s St. ch. 51, U 9, and on November 10, 1931, the solicitor for defendant in the cause and the attorney for respondents in the instant proceeding was served with a notice to produce the following:

“(a) All car records of Ender Coal & Coke Company from February 25, 1928, down to and including February 18, 1931;
“(b) All control accounts in the general ledger of Ender Coal & Coke Company from February 25, 1928, down to and including February 18, 1931;
“(c) All accounts receivable of Ender Coal & Coke Company from February 25, 1928, down to and including February 18, 1931; and
“ (d) All accounts payable of Ender Coal & Coke Company from February 25, 1928, down to and including February 18, 1931.”

It is claimed by complainant and it seems to be not disputed, that the books and records of defendant company contain the only evidence of coal shipments, sales, prices and other data required by complainant for the purpose of presenting its- case, and various notices were served upon the defendant and respondents to produce such documents and'books. On January 4,1932, by consent of the parties, the court entered the following order:

‘ ‘ This cause coming on to be heard upon the affidavit of William Roy Carney, filed in support of a motion by complainant under Section 9, Chapter 51 of Cahill’s Illinois Revised Statutes, to permit the agents, auditors and attorneys of complainant herein to examine and inspect before trial certain books, papers, records, documents, memoranda, etc., in the possession of defendant; and upon the affidavit of Raymond L. Boyle, likewise filed in support of said motion; and upon the counter-affidavit of Thomas H. Cochran, filed in opposition to said motion; and the court having heard the arguments of counsel, and being duly advised in the premises,

“Ordered, that the accountant, Raymond L. Boyle, retained by complainant, be permitted to make an inspection and examination of the following books, papers, records, documents, memoranda, etc., of the defendant, now in the possession of the defendant:

“(a) All car records of Ender Coal & Coke Company pertaining to sales of coal from Saline and Williamson Counties, Illinois, from February 25, 1928, down to and including February 18, 1931; &
“(b) All control accounts in the general ledger of Ender Coal & Coke Company pertaining to sales of coal from Saline and Williamson Counties, Illinois, from February 25, 1928, down to and including February 18, 1931;
“(c) All accounts receivable of Ender Coal & Coke Company pertaining to sales of coal from Saline and Williamson Counties, Illinois, from February 25,1928, down to and including February 18, 1931; and
“(d) All accounts payable of Ender Coal & Coke Company concerning purchases of coal from Saline and Williamson Counties, Illinois, from February 25,1928, down to and including February 18, 1931 ;

“Together with all detailed records and records of original entry of sales and purchases of coal from Saline and Williamson Counties, Illinois, from which said four above described types of records are made up.

“Said inspection and examination tp be made solely for the purpose of securing evidence to be used only in the above entitled cause (and not to be used in any other proceeding, either legal or equitable, in which the complainant, or any of its officers, directors or stockholders, are or may be interested) in accordance with the representations in the affidavits of William Roy Carney and Raymond L. Boyle, heretofore filed herein, and the said Raymond L. Boyle is to be permitted upon furnishing defendant with copies thereof, to take memoranda from the above mentioned records, said memoranda to be used solely in the trial of the above entitled cause; and it is

“Further' Ordered, that the said examination and inspection by the said Raymond L. Boyle of said abovementioned records be made in the office of Ender Coal & Coke Company, 343 South Dearborn Street, Chicago, Illinois, at reasonable times during the business hours of the day; and it is

“Further Ordered, that said examination and inspection by said Raymond L. Boyle commence upon Monday, January 11, 1932, and continue from day to day thereafter, until completed; and it is

•' “Further Ordered, that in the event that the said Raymond L. Boyle is for any reason unable either to commence or to finish the said examination and inspection, that some other public accountant, retained by the complainant for said purpose, and approved by order of this court, on notice to said defendant, may either commence or complete the said examination.

“The court reserves jurisdiction of this matter for the purpose of changing, modifying or enlarging the scope of examination, upon proper showing made to the court.

“Enter: Denis E. Sullivan.’’

None of these documents was produced as ordered, and it is charged that certain employees and agents of the defendant company under the direction of respondents, after the defendant had consented to the order of January 4, 1932, made alleged and what are claimed to Be spurious copies of the originals of such documents called for and ordered to be produced.

The trial court considered the oral testimony together with an affidavit filed in the case of one James H. Bowden, who, during the period involved in the Bill of complainant, was a salesman employed by the defendant company, and whose testimony was to the effect that shortly after the bill was filed in the cause, and after notice had been served upon the defendant company to produce the books and documents called for, the respondent, Evans, in the office of defendant company and in the hearing of Bowden, stated in substance that the complainant, characterizing the officers of the complainant company by an epithet, desired to look at the books of the defendant company, but that they would not be allowed to do so. Bowden’s testimony further is to the effect that shortly thereafter the defendant company, through various of its employees, at the direction of respondents, began in great haste to make what was purported to be but were not, copies of such alleged documents, which these respondents subsequently attempted to impose upon the court as the originals of such books and documents, with the representation that the originals of the books and documents called for had been destroyed prior to the filing of the bill in this cause.

On April 29, 1931, within a month after the bill of complaint had been filed, complainant took the deposition of the respondent, Thomas H. Cochran, and at that time, Cochran testified as follows:

“Q. Have the books of the Ender Coal & Coke Company showing orders received by them and filled by them been destroyed, or are they still in existence?

“A. Still in existence.

“Q. Still in existence ?

“A. Yes.”

We have examined the record, and this court is satisfied from the evidence and is of the opinion that the trial court was abundantly justified in concluding that its order of January 4, 1932, to produce such documents, had been wilfully violated, and that respondents, as officers of the defendant company, were responsible for such violation, and that respondents had defied and .flaunted the order of the court in the manner described in its order of January 28, 1932, hereinafter set forth in full. The record discloses that the documents called for are material to the issues in the cause for the reason that they contain all the facts, information and data upon which the complainant’s claim in its bill is predicated.

On January 22, 1932, the trial court entered a rule on the respondents to show cause why they should not be punished for contempt of court for violation of and failure to comply with the order of January 4, 1932. Various proceedings were had in connection with the matter and upon the issue as to whether or not respondents should be punished for such alleged contempt, which matter was before the trial court on many occasions. On May 2, 1932, the defendant, Ender Coal & Coke Company, and the respondents presented and filed separate petitions for change of venue. The petition of respondents was continued until May 10, 1932, and then denied. The petition of the defendant, Ender Coal & Coke Company, for change of venue was continued until June 16,1932, and then allowed.

On June 28, 1932, the order from which this appeal is taken, was entered as follows:

“This day coming on to be heard the motion of Harrisburg Coal Mining Company, a corporation, complainant in the above entitled cause for a rule on •the respondent, Thomas H. Cochran, President of Ender Coal & Coke Company, defendant, and the respondent, John H. Evans, Secretary of said defendant corporation, to show cause why said respondents should not be attached and punished for contempt of court for failure and refusal to obey the order of this court entered in the above entitled cause on the 4th day of January, 1932, requiring the defendant, Ender Coal & Coke Company, to produce for the examination, inspection and taking of memoranda certain books, papers, records, documents, memoranda, etc., as directed by said order of January 4, 1932, as modified by a certain order of this court entered March 21, 1932.

“And it appearing to the court that the respondents, Thomas H. Cochran and John H. Evans, had notice of said order of January 4, 1932, and it further appearing to the court that the petition of Harrisburg Coal Mining Company, the complainant, for a rule on said respondents to show cause why they should not be punished for contempt of court, which petition was supported by the affidavit and supplemental affidavit of Raymond L. Boyle and filed on January 22, 1932; that said respondents, Thomas H. Cochran and John H. Evans, did on the 25th day of January, 1932, file their sworn joint and several answer to said petition.

“And it further appearing to the court that on March 7,1932, another petition was filed by the Harrisburg Coal Mining Company for a rule on said respondent, John H. Evans, and one Ralph 0. Groltra, to show cause why they should not be punished for contempt of court, which said last mentioned petition said Evans and said Groltra were ordered to answer; and

“It further appearing to the court that said Groltra and said Evans did on the 12th day of March, 1932, file their sworn joint and several answer to said last mentioned petition; and

“It further appearing to the court that the affidavit of one James H. Bowden, upon due notice to the solicitors for said respondents, Thomas H. Cochran and John H. Evans, was filed herein by the complainant, Harrisburg Coal Mining Company on the 19th day of April, 1932, upon leave of court first had and obtained and that said respondents were ordered to, and did, file counter-affidavits thereto by April 23, 1932; and

“It further appearing to the court that on the 19th day of April, 1932, the hearing- of said petitions for rule to show cause heretofore filed herein on January 22, 1932, and March 7,1932, respectively, and said affidavit, of James H. Bowden, filed on April 19, 1932, together with the respective joint and several sworn answers to said petitions and counter-affidavits to said affidavit of said James H. Bowden, was set for hearing on the 25th day of April, 1932; and

“It further appearing to the court that said matter came on for hearing April 25, 1932, and was thereafter adjourned from day to day until the 14th day of June, 1932, upon which day said petitions, affidavit, sworn answers and counter-affidavits again came on for hearing, together with evidence adduced by the petitioner, Harrisburg Coal Mining Company, and the respondents, Thomas H. Cochran and John H. Evans.

“And the court having heard and considered said rule to show cause, said petitions, said affidavit of said James H. Bowden, said several joint and sworn an- ■ swers to said petitions, and said counter-affidavits to said affidavit of James H. Bowden and the evidence offered by the petitioner, Harrisburg Coal Mining Company, and the respondents, Thomas H. Cochran and John H. Evans, including the testimony of James H. Bowden, Raymond L. Boyle, Ethel Gfeilhuff, Quintín Johnstone, Jr., Thomas H. Cochran and John H. Evans, and the documentary evidence offered by said petitioner and said respondents, Thomas H. Cochran and John H. Evans, respectively, and received in evidence by the court, and being fully advised in the premises, finds:

“(1) That it has jurisdiction of said respondents, Thomas H. Cochran and John H. Evans, and of the subject-matter hereof;

“(2) That the respondents, Thomas H. Cochran and John H. Evans, President and Secretary, respectively of the defendant, Ender Coal & Coke Company, a corporation, did knowingly, wilfully and intentionally refuse to and did not produce for examination and inspection and the taking of memoranda by complainant’s auditor, Raymond L. Boyle, and did knowingly, wilfully and intentionally destroy or secrete for the purpose of preventing their inspection, examination, taking of memoranda, and introduction into evidence by complainant, and for the purpose of obstructing, impeding and thwarting the administration of justice and defying the process of this court, the books, papers, records, documents and memoranda, as follows :

“Original car record sheets between the dates of February 25, 1928, and February 18, 1931, showing and recording transactions concerning the shipment of coal by the Blue Bird Coal Mining Company, a corporation, upon the orders of the defendant, Ender Coal & Coke Company, a corporation:

“Detailed record and records of original entry of sales and purchases of coal from Saline and Williamson Counties^ Illinois, from which said original car record sheets, hereinabove described, are made up, as directed in the said order of January 4, 1932, to be examined in the office of Ender Coal & Coke Company, a Corporation, at 343 South Dearborn Street, Chicago, at reasonable times during the business hours of the day, said examination to commence on January 11,. 1932, and to continue from day to day thereafter until completed, as directed by the order of this court entered herein on January 4,1932.

“(3) That said respondents, Thomas H. Cochran and John H. Evans, have failed to show cause why they should not be attached and punished as and for contempt of this court for knowingly, wilfully and intentionally violating the order of this court entered herein on January 4, 1932.

“(4) That said contempt has tended to defeat and impair the rights and interest of said Harrisburg Coal Mining Company, a Corporation, complainant in said suit, wherefore, the premises considered:

“(5) That said contempt was calculated to and did have the effect of obstructing, impeding and thwarting the administration of justice and defying the process of this court.

“It' is ordered and adjudged by this court that the said respondent, Thomas H. Cochran, President of the defendant, Ender Coal & Coke Company, a Corporation, was and is and hereby is adjudicated guilty of and in contempt of this court.

“It is further hereby ordered and adjudged by this, court that the said respondent, John H. Evans, Secretary of defendant, Ender Coal & Coke Company, a Corporation, was and is and hereby is adjudicated guilty of and in contempt of this court.

“It is further ordered and adjudged that the said rule to show cause by, and the same hereby is made absolute.

“It is further hereby ordered and adjudged that the respondent, Thomas H. Cochran, be fined the sum of one thousand dollars ($1,000.00) to be paid to the Clerk of the Court.

“It is further hereby ordered and adjudged that the respondent, John H. Evans, be fined the sum of one thousand dollars ($1,000.00) to be paid to the Clerk of the Court.

“It is further hereby ordered and adjudged that the said Thomas H. Cochran, President of the defendant, Ender Coal & Coke Company, stand committed to and be confined and imprisoned in the county jail in said County of Cook, and State of Illinois^ for thirty (30) days and until said fine is paid.

“It is further hereby ordered and adjudged that the said Thomas H. Cochran, President of the defendant, Ender Coal & Coke Company, stand thereafter committed to and be confined and imprisoned in the county jail in the said County of Cook and State of Illinois, until he shall show this Court that he stands ready to produce for examination and inspection by complainant’s auditor, Raymond L. Boyle, the original car record sheets hereinabove set forth, and said detailed records and records of original entry of sales and purchases of coal from Saline and Williamson Counties, Illinois, from which said original car record sheets hereinabove described, are made up (as directed by said order of January 4, 1932) upon such date as shall be fixed by this Court or until he shall be otherwise discharged from said imprisonment by due process of law.

“It is further hereby ordered and adjudged that the said John H. Evans, Secretary of the defendant, Ender Coal & Coke Company, stand committed to and be confined and imprisoned in the county jail in said County of Cook and State of Illinois, for thirty (30) days and until said fine is paid.

“It is further hereby ordered and adjudged that the said John H. Evans, Secretary of the defendant, Ender Coal & Coke Company, stand thereafter committed to and be confined and imprisoned in the county jail in the said County of Cook and State of Illinois, until he shall show to this Court that he stands ready to produce for examination and inspection by complainant’s auditor, Raymond L. Boyle, the original car record sheets hereinabove set forth, and detailed records and records of original entry of sales and purchases of coal from Saline and Williamson Counties, Illinois, from which said original car record sheets, hereinabove described, are made up (as directed by said order of January 4, 1932), upon such date as shall be fixed by this Court, or until he shall be otherwise discharged from said imprisonment by due process of law.

‘ ‘ The court further hereby orders and adjudges that a warrant of commitment do now issue in due form for the arrest of said Thomas H. Cochran, directed to the sheriff of Cook County, in the State of Illinois, and that when arrested by said sheriff said Thomas H. Cochran be committed to said jail and that he be there held for thirty (30) days and until said fine.is paid or until he shall be otherwise discharged from said imprisonment by due process of law, and further that said Thomas H. Cochran be committed thereafter to said jail and that he be there held until he shall show the court that he stands ready to and will produce for examination and inspection and the taking- of memoranda by complainant’s auditor, Raymond L. Boyle, the original car record sheets hereinabove set forth, and said detailed records and records of original entry of sales and purchases of coal from Saline and Williamson Counties, Illinois, from which said original car record sheets hereinabove described, are made up (as directed by said order of January 4, 1932) upon such date as shall be fixed by this court or until he shall be otherwise discharged from said imprisonment by due process of law.

“The court further hereby orders and adjudges that a warrant of commitment do now issue in due form for the arrest forthwith of said John H. Evans, directed to the sheriff of Cook County, in the State of Illinois, and that when arrested by said sheriff, said John H. Evans be committed to said jail and that he be there held for thirty (30) days and until said fine is paid or until he shall be otherwise discharged from said imprisonment by due process of law, and further that said John H. Evans be committed thereafter to said jail and that he be there held until he shall show to the court that he stands ready to and will produce for examination and inspection and the taking of memoranda by complainant’s auditor, Raymond L. Boyle, the original car record sheets hereinabove set forth, and said detailed records and records of original entry of sales and purchases of coal from Saline and Williamson Counties, Illinois, from which said original car record sheets hereinabove described are made up (as directed by order of January 4, 1932) upon such date as shall be fixed by this court, or until he shall be otherwise discharged from said imprisonment by due process of law.

“These respondents, Thomas H. Cochran and John H. Evans jointly and severally object and except to the order of this court, this day entered herein holding the respondents, Thomas H. Cochran and John H. Evans, to be guilty of and in contempt of this court, and upon their said objections being overruled said respondents, Thomas H. Cochran and John H. Evans, jointly and severally except to the entry of said order and severally pray appeals therefrom to the Appellate Court of the State óf Illinois, First District, and appeals are allowed to them severally at their request, by the court and the amount of each several appeal bond is fixed at the sum of five thousand dollars ($5,000.00) to be filed within twenty (20) days from the date hereof, each of said respondents to stand committed to the county jail of Cook County until the filing of his said appeal bond and the approval thereof by the court.

“Leave is hereby granted to said respondents, Thomas H. Cochran and John H. Evans, or either of them, to present and file a certificate of evidence herein within forty-five (45) days from the date hereof.

Enter:

Denis E. Sullivan, Judge. ’ ’

One of the main contentions of respondents is that the court erred in refusing to grant a change of venue in the contempt proceeding. In Ossey v. Retail Clerks’ Union, 326 Ill. 405, the Supreme Court said, page 412:

“Complaint is made that a change of venue was denied. The rule to show cause was entered on October 19,1925, and it was made returnable six days later. Service of the rule was had on five of the appellants on October 20 and on the remaining four on the following day. The hearing began on the return day. Three days later the petition for a change of venue was presented. The prayer of that petition was for a change of venue of the cause itself and not merely of the proceeding to punish for contempt. While the appellants were not made defendants to the bill for injunction by name, they were the agents of the defendants named in the bill and as such were included as parties thereto. The application for a change of venue came too late, for it must be made at the earliest practicable moment. (McClelland v. McClelland, 176 Ill. 83; Haley v. City of Alton, 152 id. 113; Crane v. Crane, 81 id. 165; Richards v. Greene, 78 id. 525; Hudson v. Hanson, 75 id. 198.) Moreover, all of the defendants to the bill of complaint did not seek a change of venue. Hence there was no compliance with the statute in that respect. (Sec. 9 of the act entitled, ‘An act to revise the law in relation to change of venue,’ Cahill’s Stat. 1925, p.-2380.) ”

Upon the authority of this case, we are of the opinion that the point that the court erred in refusing to grant the change of venue in the contempt matter is not well taken. The order of June 28,1932, in Harrisburg Coal Mining Company v. Ender Coal & Coke Company, holding respondents guilty of contempt, is affirmed.

Affirmed.

Wilson and Hebel, JJ., concur.


author: Mr. Justice Hebel Hall, P. J., and Wilson, J.,

text:
    Sugar Supply Corporation, Appellant, v. Great Lakes Transit Corporation, Appellee.
    Gen. No. 35,900.
    Opinion filed October 25, 1933.

      O’Shaughnessy, O’Shaughnessy & Cunningham, for appellant; Walter F. Cunningham and Joseph S. Sullivan, of counsel.
    Frank W. Sullivan, for appellee.
   Mr. Justice Hebel

delivered the opinion of the court.

This action was one in replevin. The plaintiff is a wholesale dealer in sugar. The defendant is a common carrier on the Great Lakes, and maintains a warehouse at its Chicago terminal, in which it stores goods as an incident to the transportation thereof.

On February 7, 1928, a statement of claim in trover was filed. No question was raised upon the pleadings by either party to this action, and the case was tried by the court without a jury, and resulted in a finding and judgment for the defendant. The plaintiff seeks to review the judgment upon an appeal to this court.

The facts are to this effect: On December 12, 1927, the Chicago Grocery Company, a corporation, entered into a contract with W. J. McCahan Sugar Defining & Molasses Company, a corporation, through Kenneth L. Fox & Company, McCahan’s Chicago representative, for the purchase of 600 bags of refined sugar of 100 pounds each. The written contract provided that the terms of payment were “Cash less 2% seven days from date of invoice, or cash less 2% before delivery at seller’s option.” Among other provisions were the following: “Seller reserves the right to cancel this contract in the event of any change in the buyer’s credit rating with seller, or in the event of the buyer failing to perform any of the terms of this or any other existing contract,” and “If the Seller has suitable available consigned stocks, withdrawal against this contract in whole or in part may be made therefrom subject to seller’s approval.”

The McCahan Company kept a consigned stock of sugar on hand in the defendant’s warehouse at Chicago, and on the date the contract was entered into, Kenneth L. Fox & Company delivered to the Chicago Grocery Company, on a form furnished by the Mc-Cahan Company to be used by its agent for that purpose, called, 11 Consigned Sugar Withdrawal Order No. 1044,” wherein the defendant was to deliver to the Chicago Grocery Company from its stock of sugar, at the defendant’s warehouse, the 600 bags of sugar covered by the contract, the same bearing car and initial numbers PRR-41597. On the same day, the plaintiff purchased the sugar from the Chicago Grocery Company and received the consigned sugar order referred to, which was indorsed as follows: “Please deliver to bearer, Chicago Grocery Company by M. E. Palman, Sec. ’ ’ The same consigned withdrawal order was then indorsed by the plaintiff, and by it on the same date surrendered to the defendant. The defendant thereupon issued and delivered to plaintiff a letter dated December 12, 1927, addressed to the plaintiff, wherein it was stated:

“We have on hand in our warehouse, 600 bags Mc-Cahan fine granulated sugar Ex Car PRR 41597, on which we hold order from the Chicago Grocery Company to deliver to your account. This sugar will only be delivered on the surrender of this letter or order from the bank.”

The records of the defendant disclose that the sugar in question was held by the defendant for the plaintiff. On the same day, plaintiff paid to the Chicago Grocery Company the sum of $3,353.36, being the purchase price agreed upon between the Chicago Grocery Company and the plaintiff for the 600 bags of sugar referred to in the contract.

Subsequently, the plaintiff surrendered to the defendant the letter of December 12, 1927, and received from the defendant 475 bags of the sugar in question, leaving 125 bags still held by the defendant in its warehouse.

On December 15, 1927, the Chicago Grocery Company entered into a second contract with the McCahan Company through Kenneth L. Fox & Company, for the purchase of 1,800 bags of sugar. This contract is exactly the same in form as the first contract herein mentioned. '

On the following day, December 16, 1927, Kenneth L. Fox & Company, the McCahan Company’s Chicago agent, delivered to the Chicago Grocery Company, “Consigned Sugar Withdrawal Order No. 1057,” in and by which order the- defendant was directed to deliver to the Chicago Grocery Company from the consigned stock of the McCahan Company at the defendant’s warehouse, 600 bags of sugar,, bearing car initials and number PER 569718.

On this date the plaintiff purchased said 600 bags of the sugar from the Chicago Grocery Company and paid therefor $3,382.76, and procured the said Withdrawal Order No. 1057, indorsed by the Chicago Grocery Company, which the plaintiff in turn indorsed and delivered to the defendant. Whereupon the defendant issued a second letter, dated December 16, 1927, addressed to the plaintiff, identical with the first letter, but referring to the sugar as Ex Car PER 569718. The records of the defendant were thereupon changed to show that the sugar referred to in said letter was held by the defendant in the name of the plaintiff.

Subsequently, the plaintiff surrendered and delivered to the defendant the letter of December 16, 1927. None of the sugar covered by the letter of December 16, 1927, was delivered by the defendant, so that the defendant was holding in its warehouse 725 bags of sugar in the name of the plaintiff.

On December 20, 1927, the McCahan Company-mailed to the Chicago Grocery Company an invoice for $3,571.80, covering the purchase price of 600 bags of sugar covered by the contract between these companies of December 12, 1927. On this date the McCahan Company also mailed to the Chicago Grocery Company an invoice for $3,571.80, covering 600 bags of the 1,800 bags of sugar covered by the contract dated December 15, 1927.

On December 27, 1927, Chicago Grocery Company paid to the McCahan Company the sum of $1,750.18, said payment being one-half of the purchase price of the 600 bags of sugar covered by the contract of December 12, 1927, less a discount of 2 per cent. This 2 per cent discount, $35.72, was credited on the Mc-Cahan Company books as of February 28, 1928.

On December 28, 1927, the Chicago Grocery Company issued a second check to the McCahan Company for $1,750.18, being the balance of the purchase price of the sugar covered by the contract of December 12, 1927, less a discount of 2 per cent. Pursuant to telegraphic instructions from the Chicago Grocery Company this latter check was not deposited by the McCahan Company until January 9, 1928, and was protested for nonpayment on January 11, 1928.

On January 13, 1928, Kenneth L. Fox & Company, the McCahan Company’s agent, wrote a letter to the defendant requesting the defendant not to deliver the remaining 725 bags of sugar and on January 14, 1928, Kenneth L. Fox & Company wrote another letter to the defendant requesting the defendant to deliver the sugar remaining on hand covered by the Withdrawal Orders of December 12, 1927, and December 16, 1927, to the Siewert Teaming Company. The defendant delivered the sugar pursuant to said directions.

On January 16, 1928, the plaintiff made a written demand on the defendant for the delivery to it of the 725 bags of sugar, with which demand the defendant failed and refused to comply.

The plaintiff’s contention is that the defendant was in possession of the sugar in question as bailee for the plaintiff. This court is in accord with the contention of the plaintiff that the acceptance by the defendant from the plaintiff of the withdrawal orders, issued by the McCahan Company and indorsed by the Chicago Grocery Company, and delivery by the defendant to the plaintiff of the letters of December 12, 1927, and December 16, 1927, constituted contracts of bailment, and in and by such contracts the plaintiff became the bailor and the defendant the bailee respecting the sugar referred to in said withdrawal orders and the letters signed by this defendant. The Supreme Court of this State in the case of Union Stock Yard & Transit Co. v. Mallory, Son & Zimmerman Co., 157 Ill. 554, announced a rule of importance, which has a material bearing upon the question involved in the instant case. The court in announcing the rule said:

“When the vendor delivers to the purchaser, or to the purchaser’s authorized agent, an order upon the vendor’s bailee to deliver the goods sold to such purchaser or agent, there is a constructive delivery of the property; and the delivery of the order vests the purchaser with the indicia of ownership, and has the same effect in transferring the title to the property as the delivery of the property.”

It is to be noted that the McCahan Company delivered the withdrawal orders to the Chicago Grocery Company, which company indorsed the same, and thereby the plaintiff was clothed with authority to demand delivery of the sugar from the defendant, and the defendant recognized plaintiff’s title to this property, as evidenced by the signed letters and the entries made upon defendant’s books.

The defendant was fully authorized in the acceptance of the withdrawal orders issued by the McCahan Company, the vendor, to the Chicago Grocery Company, and indorsed by it. The delivery of the withdrawal orders by the McCahan Company, through its agent, was constructive delivery of the property, and vested the purchaser with the indicia of ownership.

The rule as applied to the goods purchased in the instant case is that where there has been no waiver by the seller of the payments, still if he delivers the property to the purchaser, and vests him with indicia of ownership, and the purchaser pledges it to a bona fide purchaser without notice, the latter acquires rights which will be protected. Michigan Cent. R. Co. v. Phillips, 60 Ill. 190.

In the case before us, the contracts entered into by the McCahan Company and the Chicago Grocery Company were in full force and effect at the time the sugar in question was purchased by the plaintiff, and deliveries were made by the defendant to the plaintiff as late as January 11, 1928.

In construing the contracts and withdrawal orders, it is evident from the facts in evidence that the Mc-Cahan Company invested the Chicago Grocery Company with the indicia of ownership when the contracts were entered into and the withdrawal orders delivered to the Chicago Grocery Company, and by that act waived its right to withdraw the sugar from the warehouse as against the plaintiff, who was a purchaser from the Grocery Company without notice of any infirmity in the title of this "company; while in the case of fraud in the purchase of property, such purchase does not render the sale void, but it is voidable at the option of the party defrauded. However, when a persop purchases and acquires the possession of property by fraudulent means, and sells it to a bona fide purchaser without notice, the latter acquires title thereto before the. sale is avoided and the property is reclaimed after sale to a bona fide purchaser. Michigan Cent. R. Co. v. Phillips, supra.

No question is raised before this court as to whether or not the plaintiff was a bona fide purchaser for value of the sugar, but the defendant insists that the plaintiff is chargeable with knowledge of the terms of the contract between the McCahan Company and the Chicago Grocery Company. The answer to this contention is that the contracts were not canceled at the time the rights of the plaintiff intervened, nor were the goods reclaimed until the McCahan Company wrote a letter to the defendant not to deliver the remaining bags of sugar, and on January 14, 1928, again advised the defendant by letter to deliver the balance of the sugar to a teaming company, which was done under the direction of the McCahan Company by its cancellation order. The defendants in compliance with the sugar withdrawal orders delivered 475 bags of sugar to the plaintiff and thereby acknowledged the right of the plaintiff to the sugar, evidenced by the withdrawal orders and the notation upon the books of the defendant, together with an acknowledgment contained in a letter from the defendant to the plaintiff.

The notice of cancellation after the plaintiff had paid the price of the sugar to the Chicago Grocery Company, as evidenced by these withdrawal orders, comes too late to affect the plaintiff’s title. Notice should have been prior to the payment of the money by the plaintiff, or by such other act as the McCahan Company deemed advisable, to indicate its right in and to the property. But not having done so and no action having been taken until after the plaintiff had paid the consideration for the purchase of this sugar and received 475 bags of it, the McCahan Company was in no position to deprive the plaintiff of its right in and to the sugar, and under the circumstances, the plaintiff should have been protected against the W. J. McCahan Sugar Refining & Molasses Company’s claim to the property.

The plaintiff suggests that if the judgment is reversed the cause should be remanded with directions to permit the plaintiff to increase the ad damnum and the court below to enter judgment in favor of the plaintiff in the sum of $4,607.82, with interest at 5 per cent per annum from January 16, 1928, the date of the conversion, or the alternative that judgment be reversed and judgment entered in this court in favor of the plaintiff for the amount of the ad damnum, $4,500.

It appears that the parties stipulated that the value of 725 bags of sugar was $4,607.82, and that interest if recoverable on June 12, 1931, amounted to $784.41 at 5 per cent per annum, making a total of $5,392.23. The amount of the damages sustained by the plaintiff is more than the amount of $4,500, alleged in the declaration as the ad damnum, and as the plaintiff waived the excess amount due, this court will direct the clerk to enter an order that the judgment for the defendant is reversed, and that judgment for the sum of $4,500 be entered in favor of the plaintiff.

Judgment for the defendant will be reversed and judgment entered here for the plaintiff with a finding of fact.

Judgment for defendant reversed and judgment entered here for the plaintiff with a finding of fact.

Hall, P. J., and Wilson, J.,

concur.

Findings of fact: This court finds that the plaintiff bought the sugar in question from the Chicago Grocery Company, evidenced by two withdrawal orders for the sugar, issued by the W. J. McCahan Sugar Refining & Molasses Company, a corporation, and properly indorsed by the Chicago Grocery Company; that this sugar was stored with the defendant; that the plaintiff presented the indorsed withdrawal orders to the defendant for the delivery of the sugar so stored, and the defendant issued two letters acknowledging that the sugar was stored with the defendant, and that an order from the Chicago Grocery Company was held by the defendant to deliver the sugar to the plaintiff’s account, and that the sugar would be delivered on the surrender of the defendant’s letter or order from the bank, and the defendant refused to deliver the balance of 725 bags of sugar to the plaintiff upon demand, and that the defendant is liable as bailee for the conversion to the plaintiff for the value of the sugar.


author: Mr. Justice Hebel

text:
    Fitzgerald Furniture Company, Appellee, v. Metropolitan Life Insurance Company, Appellant.
    Gen. No. 36,271.
    Opinion filed October 25, 1933.

      Hoyne, O’Connor & Rubinkam, for appellant.
    Kern, Stiefel & Stiefel, for appellee; Jacob J. Kern and Charles W. Stiefel, Jr., of counsel.
   Mr. Justice Hebel

delivered the opinion of the court.

This action was brought by the plaintiff in the municipal court of Chicago upon an assignment wherein the plaintiff as assignee sued in its own name for wages and commissions earned and to be earned by the assignor Walter J. Bartlett while in the employ of the defendant.

The suit by the assignee was brought in its own name under the statutory provisions authorizing such suits, ch. 110, sec. 18 of the Practice Act (Cahill’s Ill. Rev. St. 1931).

After a hearing by the court without a jury, the court entered a judgment in favor of the plaintiff and against the defendant in the sum of $149.94. From this judgment the defendant appeals.

The plaintiff propounded certain interrogatories which were answered by the defendant, and from such answers it appears that Walter J. Bartlett was employed by tie defendant at its branch office located at Elkhart, Indiana, as an agent, and was in its employ on March 6,1931, and until July 4,1931; that there was due said Bartlett on March 6, 1931, $5.45; that after March 6, 1931, there became due to him for wages, salary, commissions, shares of premiums and other indebtedness, $377.60; and that there was paid to him by the defendant after March 6, 1931, $755.52.

There is evidence that the assignor, Walter J. Bartlett, entered into a conditional sales contract and assigned to the plaintiff, to secure certain payments, all wages and commissions earned or to be earned, or to become due from the defendant. A copy of this assignment from Walter J. Bartlett to the plaintiff was served on the defendant on March 6, 1931.

The defendant contends that the trial court erred in the disposition of this litigation for the following reasons : that

(1) The plaintiff’s affidavit of claim purporting to be made by an agent of the plaintiff corporation, is not in compliance with the provisions of sec. 18, chap. 110, of the Practice Act;

(2) The failure of the plaintiff to serve written notice of the pendency of suit on the assignor of such chose in action at least five days before the trial; and

(3) The plaintiff did not prove that after notice of the assignment was. served on the defendant there existed an indebtedness for wages or commissions due to Walter J. Bartlett from the defendant; but on the con-, trary it appears from the evidence that when Bartlett left the service of the defendant company on July 4, 1931, he was indebted to the defendant-in the sum of $377.92, and that this amount is still due the defendant.

Aside from the sufficiency of the plaintiff’s affidavit of claim, the question of sufficiency is raised for the first time in this court. The defendant having1 failed to call this question to the attention of the trial court by a proper motion, it cannot now for the first time raise the question.

The defendant, however, contends that the question of the sufficiency of the affidavit is saved by its motion in arrest of judgment, because the court lacked jurisdiction to enter the judgment appealed from.

As we have indicated, the question could have been raised by a motion to strike the affidavit attached to the plaintiff’s claim in the municipal court, and if this motion had been allowed, no doubt the .court would have permitted the filing of an amended affidavit. Lambert v. City Trust & Savings Bank, 252 Ill. App. 315; Gordon v. Current, 263 Ill. App. 435.

The second point brought to our attention by the defendant is that because of the failure of the plaintiff to give five days’ notice to the assignor of the suit, the plaintiff cannot maintain its action. The section of the statute relied upon by the defendant is, in part, as follows : “Provided, that in all cases in which the chose in action sued upon shall have been of an indebtedness from the assignor to the assignee thereof, and in which the chose in action so assigned consists of wages due or to become due to the assignor thereof from the defendant in such action, at least five days written notice of the pendency of such suit shall be served upon the assignor. ’ ’

It is admitted by the plaintiff that the notice provided for by the statute was not served on Walter J. Bartlett before the trial of the cause. The reason advanced to excuse such failure is that by section 18 of the Practice Act, Cahill’s St. 1931, ch. 110, ¶18, notice is required only when the assignment is of wages, and that where, as in this case, the assignment is of salary or commissions due or to become due, such assignment does not come within the meaning of the section in question, and therefore notice of the trial to the assignor was not required. The courts of this State in several of their opinions have answered this query. In Paisley v. Park Fireproof Storage Co., 222 Ill. App. 96, the court said: “Whether or not an employee is a wage earner depends upon the nature and character of his work. Sheehan v. Union Stock Yards & Transit Co., 172 Ill. App. 528. The term ‘wages’ as employed in another act has been held by the Supreme Court in Massie v. Cessna, 239 Ill. 352, as being restricted to sums paid as hire .to domestic or menial servants and to artisans, mechanics, laborers and others employed in various manual occupations, while the term ‘salary’ is held to mean the compensation of clerks, bookkeepers and other offices of a like character.”

The Supreme Court in the case of Massie v. Cessna, 239 Ill. 352, in passing upon the constitutionality of an act entitled, “An act in relation to the assignment of wages, income or salary” (Hurd’s Stat. 1908) said, in part: “ ‘Wages,’ in its ordinary acceptation, has a less extensive meaning than ‘salary.’ ‘Wages’ is usually restricted to sums paid as hire or reward to domestic or menial servants and to sums paid to artisans, mechanics, laborers and others employed in various manual occupations, while ‘salary’ has reference to the compensation of clerks, bookkeepers, other employees of like class, officers of corporations and public officers. (2 Standard Dic. p. 1573; In re Striker, 158 N. Y. 526.) ” See also Mid-West Collection Bureau v. Dietrich, 222 Ill. App. 43; Dickinson v. Rahn, 98 Ill. App. 245. Within the meaning of this act the assignor Walter J. Bartlett was not a wage earner. His employment was that of agent of the defendant to solicit insurance and to collect insurance premiums, and applying the construction hereinabove referred to, the assignor was not a wage earner in the sense that he was employed for hire as a mechanic or laborer, but as an agent for the defendant, whose duty it was to solicit and collect for the defendant, and being employed in that capacity, service of notice on the assignor of the pendency of the suit was not required.

The last and third reason relates to the weight of the evidence. It appears that the assignor Bartlett was employed by the defendant on the 6th day of March, 1931, the date on which a copy of the assignment was received by the defendant, and after receipt of this assignment moneys were paid to the assignor between the 6th day of March and the 4th day of July, 1931, amounting to $755.52; that the defendant seeks to overcome these payments by evidence that the assignor was indebted to the defendant in the sum of $377.60, and that this amount is still unpaid. The fact that payments were made to the assignor from time to time has no bearing on the plaintiff’s right to recover moneys due after service of the copy of the assignment. The evidence indicates that more than sufficient to satisfy plaintiff’s claim was paid to the assignor Bartlett, notwithstanding the service of a copy of this assignment by Bartlett on the defendant.

From the evidence in the record, the court was justified in entering judgment for the plaintiff. Accordingly the judgment is affirmed.

Judgment affirmed.

Hall, P. J., and Wilson, J., concur.


text:
    Village of Winnetka, Appellant, v. Walter Sinnett, Appellee.
    Gen. No. 36,366.
    Opinion filed October 25, 1933.

      Tolman, Chandler & Dickinson, for appellant; Howard B. Bryant and Walter V. Schaefer, of counsel.
    No appearance for appellee.
   Mr. Justice Hebel

delivered the opinion of the court.

This is an appeal by the Village of Winnetka from a judgment entered in the criminal court for the defendant in an action to recover the penalty provided for the violation by the defendant, in driving a vehicle while intoxicated, of section 736 of an ordinance entitled, “An ordinance amending, consolidating, revising and codifying the general ordinances of the Village of Winnetka,” passed and approved January 19, 1932, hereinafter referred to as the “Municipal Code.” The action was instituted before a justice of the peace of Cook county. The evidence was presented to the court by both parties, a jury having been waived. The defendant was found guilty and judgment was entered against him for $100 and costs. An appeal was taken by the defendant from the judgment of the justice of the peace to the criminal court of Cook county. The case came on for trial in that court, and upon motion of the defendant the court ordered that the complaint be quashed and the defendant discharged. No evidence was offered or heard upon this motion. Upon the entry of the judgment the Village of Winnetka prayed an appeal to this court. The defendant in the proceeding did not file an appearance in the Appellate Court and we are without aid of his position in the case.

It is contended by the village that the enactment by the General Assembly of section 41 of the Motor Vehicle Act, Cahill’s Rev. St. ch. 95a, 1Í 42, which prohibits any person from driving a motor vehicle while intoxicated, and prescribes a penalty for conviction thereof, did not deprive the village of the right to enforce section 736 of the Municipal Code, which makes it unlawful for any person while in an intoxicated condition to operate any vehicle, and upon conviction thereof imposes the penalty prescribed therefor by section 743 of said Municipal Code.

The question involved in this proceeding is: Did the enactment by the General Assembly of Illinois of section 41 of the Motor Vehicle Act, Cahill’s St. ch. 95a, ÍI42, which prescribed a penalty upon a person driving a vehicle while intoxicated, repeal by implication section 736 of the Municipal Code of the Village of Winnetka, which provides that it shall be unlawful for a person while in an intoxicated condition to operate any vehicle upon the streets of the village, and imposes a penalty upon conviction thereof 1

Section 41 of the Motor Vehicle Act is as follows :

“Any person who shall drive or operate a motor vehicle upon any public highway of this State while drunk or intoxicated, shall, upon conviction thereof, for each offense be punished by a fine of not less than one hundred ($100) dollars nor more than one thousand ($1,000) dollars and by imprisonment in the county jail for not less than ten (10) days nor more than six (6) months.” Cahill’s St. ch. 95a, fl"42.

Section 736 of chapter 15 of the Municipal Code of the Village of Winnetka is: “It shall be unlawful for any person while in an intoxicated condition, to operate, or attempt to operate, any vehicle. ’ ’

The penalty provided for violation of the ordinance is in these words: “Any person, firm or corporation violating any provision of this Chapter, shall, on conviction thereof, be fined not less than five ($5) dollars nor more than one hundred ($100) dollars; and each and every day upon which such violation shall occur, or upon which such violation shall continue, shall constitute a separate offense.”

It is suggested in the brief of the appellant that the complaint was quashed by the court upon the ground that section 41 of the Motor Vehicle Act, Cahill’s St. ch. 95a, If 42, suspended the operation of the municipal ordinances in question.

Upon a question of like import the Supreme Court of this State announced the rule, which is the law, that the legislature may confer police power upon municipalities to provide by ordinance that an act may be a violation of the municipal ordinances, notwithstanding the violation of the ordinance is also an offense under the laws of this State. This doctrine was announced by the Supreme Court in City of Chicago v. Union Ice Cream Mfg. Co., 252 Ill. 311. In this case the city recovered a judgment for the violation of a section of the Municipal Code which prohibited the sale of adulterated foods. The plaintiff in error contended that the Pure Food Law of 1907 was intended to repeal the provisions of the Cities and Villages Act, which gave the city authority to pass the ordinance, in question, and upon this contention the court said:

“We think it is clear that the Pure Food act was not intended to deprive cities and villages of the authority given by the provisions of article 5 of the City and Village act to regulate and control, by ordinances not in conflict with said Pure Food law, the sale of foods, including such regulation as provided in said section 1160 of the revised municipal code of Chicago. Municipal ordinances must be in harmony with the general laws of the State and with the municipal charter. In case of a conflict the ordinance must give way. The great weight of authority is to the effect that the legislature may confer police power upon a municipality over subjects within the provisions of existing State laws. An act may be a penal offense under the laws of the State, and further penalties, under proper legislative authority, may be imposed for its commission by municipal ordinances. The enforcement of one would not preclude the enforcement of the other.”

The Supreme Court again approved the doctrine, and applied it in the case of City of Decatur v. Schlick, 269 Ill. 181, that a municipal ordinance is not invalid which penalizes acts already prohibited by statute, and used this language:

“Appellants concede in their brief that a municipal ordinance is not invalid by reason of prohibiting and penalizing acts already prohibited by statute. That such is the law we have decided in numerous cases, among which we are referred to Wragg v. Penn Township, 94 Ill. 11, Hankins v. People, 106 id. 628, and City of Chicago v. Union Ice Cream Co., 252 id. 311.”

In the more recent case of City of Litchfield v. Thorworth, 337 Ill. 469, the court cited as authority the cases of City of Chicago v. Union Ice Cream Mfg. Co., supra and City of Decatur v. Schlick, supra, and said in sustaining the ordinance in question: ‘ ‘ The ordinance only undertakes to prohibit and penalize acts already prohibited by statute. A municipal ordinance passed under proper authority will not be declared invalid because it prohibits acts already prohibited by statute. ’ ’

This municipality no doubt had power under its charter to pass the ordinance in question. This delegation of power in the village charter together with the Cities and Villages Act, ch. 24, Cahill’s Revised Statutes, leaves no question in the opinion of the court that the powers granted by the General Assembly of the State of Illinois are ample to sustain the ordinance making it unlawful for any person while intoxicated to operate any vehicle, within the limits of the village, and the Motor Vehicle Act itself clearly indicates the intention of the General Assembly to leave the power of municipalities to make traffic regulations in full force except as to speed. Section 26 of this act is in part as follows:

“. . . Provided, that nothing in this Act contained shall be construed as affecting the power of municipal corporations to make and enforce ordinances, rules and regulations affecting motor trucks and motor driven commercial vehicles used within their limits for public hire, or from making and enforcing' reasonable traffic and other regulations except as to rates of speed not inconsistent with the provisions hereof.” Cahill’s St. ch. 95a, If 27.

The ordinance in question provides a less penalty for violation of its terms than that provided for a violation of the section of the Motor Vehicle Act. This, however, does not affect the validity of the ordinance. The Supreme Court in the case of City of Chicago v. Union Ice Cream Mfg. Co., supra, said this in passing upon a like question: “This ordinance does not prohibit what the statute permits. While the ordinance attaches a less penalty for its violation than does the statute, we find no repugnancy between them. The general policy under both is the same.”

We are of the opinion that the court below erred in quashing the complaint and in discharging the defendant, and the judgment and order of the criminal court will be reversed and the cause remanded.

Judgment reversed and cause remanded.

Hall, P. J., and Wilson, J., concur.