author: Mr. Justice Soanlan

text:
    The People of the State of Illinois ex rel. Edward J. Barrett, Plaintiff, v. Central Republic Trust Company, Defendant; Dominick Giganti, Administrator of the Estate of Frank Montelbano, Deceased, Appellee, v. R. G. Wrightson et al., Appellants.
    Gen. No. 38,948.
    Opinion filed May 4, 1937.
    Lord, Lloyd & Bissell, of Chicago, for appellants; A. C. Wetterstorm and Gordon R. Close, both of Chicago, of counsel.
    Francis E. Cash, of Chicago, for appellee.
   Mr. Justice Soanlan

delivered the opinion of the court.

From a judgment entered in favor of Dominick Giganti, administrator of the estate of Frank Montelbano, deceased (hereinafter called appellee), against R. G. Wrightson et al. (hereinafter called appellants), in the sum of $1,922.25 with interest from April 26, 1935, the latter appeal.

The auditor of public accounts, Edward J. Barrett, filed a bill of complaint to dissolve Central Republic Trust Company, a corporation, charging that it was insolvent and praying' for its dissolution and the settlement of its affairs. The complaint alleges, inter alia, that the organization of the bank resulted from a consolidation of Chicago Trust Company, a corporation, and Central Trust Company of Illinois, a corporation, on July 25,1931; that on November 20,1934, the auditor appointed William L. O’Connell receiver of the bank and the latter had taken possession of the books, records and assets of the bank and was performing the duties incidental to such receivership.

“That in order to protect the interests of said bank and all persons interested therein, it will be necessary for said Receiver to compromise or compound some of the debts due and owing or to become due and owing to said bank and any claim or claims which said bank now has or may have against any person or persons about which claims there may be any controversy; to sell the personal property and real estate, if any, owned by said bank and to take such steps as may be necessary on behalf of said defendant bank within a reasonable time to resign all trusts, guardianships, conservator-ships and all appointments as Executor, Administrator or Receiver, making in each case a proper accounting on behalf of said defendant bank; and that said Receiver should be permitted by this Court to file with this Court, from time to time, as the interests of the bank may require, petitions asking the Court to hear such petitions and grant such orders thereon as will properly authorize and empower said Receiver to compromise or compound debts or claims or to make such sale or sales of personal property or real estate, or either, upon such terms and conditions and at such times as the Court shall order and that said Receiver should promptly make a report to the Court of all such sales of real or personal property and such report, when approved by the Court, shall be binding upon all persons interested in such property and that said Receiver should be permitted to present to this Court, from time to time, petitions seeking its aid and direction relative to various other problems which may arise in the course of said receivership and that upon the settlement of the affairs of said bank and the disposition of its assets, the corporate existence of said bank should be terminated by decree of this Court. <<

“That said Receiver may, upon the filing of proper petitions, be authorized and directed by this Court, by orders to be entered herein from time to time, to sell or compound all bad or doubtful debts due and owing said bank and to sell all the real estate, if any, and personal property belonging to it on such terms and in such manner as such orders may provide; that said Receiver may be authorized and directed to make compromises of claims and debts due and owing said bank when the best interests of the creditors require that compromises be made, on condition that all such compromises, adjustments and settlements shall be made subject to the approval of this Court.

“That said Receiver may be authorized to present, from time to time, petitions to this Court seeking its aid and direction with reference to various problems which may arise in the administration of the assets, property and estate of said bank. ’ ’

The complaint prays, inter alia, that plaintiff and receiver may have such other and further relief in the premises as equity may require and to the court shall seem meet, and that all orders, steps and proceedings necessary or proper in the premises may be had and taken, as equity may require.

On October 9,1935, appellee filed a verified intervening petition in the cause, in which he alleges, inter alia, that on May 8, 1934, he filed, in the superior court of Cook county, a suit at law against Central Republic Bank & Trust Company, a corporation, subsequently known as Central Republic Trust Company, a corporation ; that the suit was based upon the forgery of the signatures of appellee and two other parties to a check dated March 7,1930, drawn by Public Service Company of Northern Illinois on Central Trust Company of Illinois, a banking corporation, in the sum of $1,500, payable to Joseph Barbera, Marie Rosa Giganti, Dominick Giganti and R. R. Covello; that appellee sustained loss by the forgery of the check and the payment thereof by said Central Trust Company of Illinois, which was engaged in the banking business in Chicago for many years and was subsequently consolidated or merged into Central Republic Bank & Trust Company, a banking corporation, which corporation was on November 6, 1932, and thereafter known as Central Republic Trust Company, a corporation; that on June 14, 1935, a judgment was entered in said suit in appellee’s favor as administrator of the estate of Frank Montelbano, deceased, and against defendant Central Republic Trust Company in the sum of $1,922.25 and interest; that said defendant bank and William L. O’Connell, receiver, were represented in the cause; that the judgment is still in full force and effect and has not been reversed, modified nor appealed; that Central Republic Trust Company was and is insured against loss by means of forged or altered indorsements; that it is the assured under policy D-59792, issued on March 13, 1934, by Lloyds London in the sum of $894,555, and policy D-59792-A, issued on the same date by Lloyds London in the sum of $105,445; that said policies were in the form of a blanket bond and covered losses such as the present one sustained by appellee; that appellee has made demand on Lloyds London for the amount of the judgment heretofore entered and has not received the amount of the judgment nor any part of it; that “it would be to the best interests of the creditors of said Central Republic Trust Company, a banking corporation, that said judgment be paid to your petitioner either by said Receiver paying out of funds in his hands, the sum specified, or to avoid circuity of action' that an order be entered herein upon said Lloyds London to pay, or cause to be paid, said judgment, either by paying the full amount thereof to William L. O’Connell, Receiver, for the use and benefit of your petitioner, or directly to your petitioner, or his solicitor of record for him.” Appellee prays “that an order be entered in this cause directing William L. O’Connell, Receiver, to pay in full said judgment, interest and costs, out of funds in his hands as such Receiver, or in the alternative that the court order Lloyds London to pay said amount to said Receiver for the sole use and benefit of petitioner, or that the court order that Lloyds London pay said sums direct to your petitioner”; that upon such payment appellee file his satisfaction of the said judgment; that the receiver answer the petition within five days from the date of the petition; “that this court order that the writ of summons of this court issue to the sheriff of Cook County, to summon defendant, Lloyds London in this cause to make full and complete answer to this petition.” By order of court a summons issued, which summoned Lloyds London to answer the said petition. The receiver answered the petition but it is unnecessary to state the nature of the answer. On November 8, 1935, appellants filed the following:

“Amended Special Appearance and Motion to Dismiss

“R. Gr. Wrights on and Others, being certain Underwriters at Lloyd’s, London, named in a certain ‘Lloyd’s Banks’ and Trust. Companies’ Policy’ No. D59792A, expiring December 1, 1934, and W. E. Hargreaves and Others, being certain Underwriters at Lloyd’s, London, named in a certain ‘Lloyd’s Banks’ and Trust Companies’ Policy’ No. D59792, expiring December 1, 1934, both said B. G. Wrightson and Others and said W. E. Hargreaves and Others being heretofore referred to in the above entitled cause by the misnomer, ‘Lloyds London’ appear specially solely and for the purpose of objecting, as hereinafter indicated, to the jurisdiction of this court, and move the court for the entry of an order dismissing, as to said R. G. Wrightson and Others and as to said W. E. Hargreaves and Others, the petition heretofore filed herein of Dominick Giganti, Administrator of the Estate of Frank Montelbano, deceased, for the reason that there is a want of jurisdiction in this court in the above entitled cause over said R. G. Wrightson and Others and over said W. E. Hargreaves and Others, and for the further reason that there is want of jurisdiction in this court in the above entitled cause over the subject matter of said petition of said Giganti. ’ ’

In support of the foregoing appellants filed the following affidavit:

“Burnham M. Fisk, being duly sworn on oath deposes and says that he is one of the solicitors for and is the duly authorized agent in this behalf of R. G. Wrightson and Others, being certain Underwriters at Lloyd’s, London, named in a certain ‘Lloyd’s Banks’ and Trust Companies’ Policy’ No. D59792A, expiring December 1, 1934, and W. E. Hargreaves and Others, being certain Underwriters at Lloyd’s, London, named in a certain ‘Lloyd’s Bank’ and Trust Companies’ Policy’ No. D59792, expiring December 1, 1934; that none of said Underwriters named in either of said policies is a party to, nor the agent of a party to, nor in any way interested in the above entitled cause or the subject matter thereof; that the petition of Dominick Griganti heretofore filed herein relates to a purported liability on the part of ft. Gr. Wrightson and Others and W. E. Hargreaves and Others to the Central Republic Trust Company or to the receiver thereof ; but that said R. 0. Wrightson and Others and said W. E. Hargreaves and Others are not indebted in any amount to William L. O’Connell, Receiver, or the Central Republic Trust Company, defendant herein.” Thereafter an order was entered striking the special appearance of appellants, overruling their motion to dismiss the petition, and ordering them to answer the petition. Appellants then filed a verified answer, which contains the following:

“Now come R. Gr. Wrightson and Others, being certain Underwriters at Lloyd’s, London named in a certain Lloyd’s Banks’ and Trust Companies’ Policy No. D59792A, and W. E. Hargreaves and Others being certain Underwriters at Lloyd’s, London named in a certain Lloyd’s Banks’ and Trust Companies’ Policy No. D59792, by Lord, Lloyd & Bissell, their attorneys.”

The answer admits the judgment in favor of appellee. It then recites:

“These respondents admit that the Central Trust Company of Illinois was a banking corporation and was engag*ed in said banking business for a long time prior to July 25, 1931; admit that on to-wit, July 25, 1931 the said Central Trust Company of Illinois consolidated with the Chicago Trust Company, forming the Central Republic Bank and Trust Company; admit that on to-wit, October 6, 1932 the deposit liability of the Central Republic Bank and Trust Company was assumed by The City National Bank and Trust Company of Chicago, and that subsequently on, to-wit, November 26, 1932 the name of the Central Republic Bank and Trust Company was changed to Central Bepublic Trust Company; admit that on to-wit, November 20, 1934, the said Edward J. Barrett, as Auditor of Public Accounts of the State of Illinois, appointed William L. O’Connell as receiver of said Central Be-public Trust Company, and that thereafter on to-wit, November 21, 1934 said appointment was confirmed by this honorable court.”

The answer admits that appellants issued the two policies in question, but denies that they covered losses such as the one described in the petition of appellee, denies that they are indebted to Central Bepublic Trust Company, or' any one else, by reason of the payment of the forged check.

Appellants contend that “the trial court did not have jurisdiction in this proceeding over the intervening petitioner, the respondents or of the subject matter of the intervening petition, because the intervening petitioner is. a mere stranger bringing in other strangers, the respondents, for the purpose of litigating matters foreign to the issues of this proceeding,” and that the court erred in not sustaining their motion to dismiss the intervening petition for want of jurisdiction. We may say, at this point, that under the record no contention could be made that the court was without jurisdiction of the persons of appellants; and it would be a sufficient answer to the instant contention to say that when the motion to dismiss for want of jurisdiction “over the subject matter of said petition of said G-iganti” is considered in the light of the affidavit in support of it, it would seem that the real ground of the motion, in so far as it applies to the subject matter of the petition, is that appellants were not indebted to the receiver nor the Central Bepublic Trust Company. Such an averment amounts to no more than an imperfect plea of non assumpsit. But assuming that the motion to dismiss for want of jurisdiction of the subject matter is sufficient, we find no real merit in appellants’ argument in support of the instant contention. The major point made by appellants is “that even the receiver who is a party to the instant suit could not bring in the respondents who are strangers for the purpose of adjudicating a claim which he might make against them upon the policies issued to the Central Republic Trust Company. But he would have to bring an independent suit.” That the jurisdiction of the court in a dissolution proceeding is not as limited as appellants argue, see People v. West Side Trust & Sav. Bank, 362 Ill. 607, wherein the court held (pp. 617 & 618):

1‘ The primary purpose of the suit instituted by the Auditor was the ultimate dissolution of the bank and the settlement of its affairs. ... We find no language in section 11 [Banking Act] which can be distorted to mean that the orderly dispatch of the business of courts should be upset by requiring the services of other courts for purposes that can be performed by the one. The court in charge of the liquidation of a bank is not a mere conduit for the benefit of the receiver. ’ ’

The court also calls attention to the fact that the bill contained a prayer for general relief. See also People ex rel. Nelson v. Citizens Trust & Sav. Bank, 273 Ill. App. 128, wherein the facts are very similar to those in the instant case, and where the court stated that it was to the interest of the receiver, as well as of the creditors of the bank, to have the claim of the petitioner satisfied out of the fund created by the policy and not out of the general assets, and that if the United States Fidelity and Guaranty Company was liable to the bank under its policy it was a debtor to the bank; that it was proper for the chancellor, in order to avoid waste of time and expense, to order the Guaranty Company to pay the amount due directly to petitioner. It is true, as appellants point out, that in that case no point was made that United States Fidelity and Guaranty Company was not rightfully brought into the proceedings, but from the reasoning of the chancellor it would seem likely that the point would not have been sustained had it been made. As indicated by the opinion in People v. West Side Trust & Sav. Bank, supra, if appellants were indebted under their policies to the receiver, why should the orderly business of dissolving the affairs of the bank be upset by requiring the receiver to sue appellants in another court for purposes that could well be performed by the court before whom the dissolution proceedings were pending ? The trial court had the undoubted right to decide whether it would itself adjudicate upon claims against the receiver or would allow them to be liquidated elsewhere. To send the receiver to other courts to enforce the collection of debts due the bank might prolong indefinitely the dissolution proceedings and bring about an intolerable situation. Appellants failed to show that they were injured in any way by reason of the procedure followed. The cases cited by them in support of their contention are inapplicable to the instant situation. The further contention of appellants that appellee did not have the necessary interest in the suit to permit his intervention is sufficiently answered by People ex rel. Nelson v. Citizens Trust & Sav. Bank, supra. The trial court and the receiver were willing- to have appellee proceed directly against appellants, and the latter were not injured by the procedure followed. What real difference did it make to appellants that appellee, instead of the receiver, was the intervening petitioner in the proceeding? The real question in the case, viz., Are appellants liable under their policies? is presented in the instant proceeding as fully as if the receiver had sued appellants under the policies by a separate action. The trial court, as well as the receiver, was, of course, willing to have appellee assume the burden and expense of the proceeding against appellants.

Appellants contend that “the intervening petitioner as judgment creditor of the Central Republic Trust Company cannot recover from the respondents on the insurance policies issued by them to that bank because the policies insured that bank against losses it sustained by the payment of checks bearing forged endorsements, whereas the intervening petitioner’s judgment against that bank is based on resolutions of consolidation whereby that bank became liable for a loss sustained by another bank, the Central Trust Company of Illinois, which is not named as an assured. ’ ’ From the record it appears' that Central Trust Company of Illinois consolidated with Chicago Trust Company to form Central Republic Bank & Trust Company. Subsequently the latter company changed its name to Central Republic Trust Company. The consolidation agreement between Central Trust Company of Illinois and Chicago Trust Company provides:

“The consolidated corporation shall possess and be vested with all of the rights, privileges, powers, franchises, licenses, estate, effects, things in action, moneys, debts due upon whatever account, trusts, and property, real, personal and mixed, of every kind and character of said Chicago Trust Company and said Central Trust Company of Illinois, and shall be subject to all of their respective debts, liabilities and duties. ’ ’

The policies provide that appellants “agree to pay and make good to the said Assured all such losses as they the said Assured . . . may during the space of Twelve Calendar Months from 7:00 a. m., of the First day of December, 1933 to 7:00 a. m., of the First day of December, 1934 sustain or discover that they have sustained in manner hereinafter mentioned . . . 3. By Reason of the acceptance, encashment or payment, whether received over the counter or through the clearing house or by mail, of forged or altered cheques or of cheques bearing forged endorsements or certifications. . . .” The policies further provide: “Warranted Free op All Claim — 1. For losses not discovered within the said period of twelve calendar months and for losses sustained prior to 7:00 a. m., of the First day of December, 1933; but with the understanding* that the Assured shall have the twelve calendar months following the date of termination or expiration of this Policy, in which to discover losses sustained between the date named in this Warranty and the date of such termination or expiration. . . . Forgery Limit. It is agreed that losses hereunder in respect of Forgery (Article No. 3 of the printed conditions of this Policy) are limited to $500,000. . . . ” Attached to each policy is the following:

“6. Special Forgery Rider in respect of Central Republic Trust Company.

“In consideration of an additional premium of $200.00 (included in the premium paid on this Policy) it is agreed that notwithstanding anything contained herein to the contrary, this policy is also extended to cover losses by reason of Forgery (in accordance with Article No. 3 of the printed conditions of this policy) which were sustained by the Central Eepublic Trust Company prior to the 1st December 1933, but which were discovered subsequent to the 15th February 1934; the liability of Underwriters in respect of any such losses being limited to $50,000. Subject in all other respects to the terms and conditions of this Policy.” The gist of the argument advanced in support of the instant contention is not that Central Eepublic Trust Company did not sustain a loss by reason of the forgery in question, but that the loss was not occasioned by a transaction of Central Eepublic Trust Company; that under the terms of the policies Central Eepublic Trust Company is insured only against losses it sustained by itself paying checks bearing forged indorsements, but that it is not insured against the instant forgery because Central Trust Company of Illinois, which paid the forged check, is not named in the policies as an assured. The Special Forgery Eiders, for each of which Central Republic Trust Company paid an additional premium of $200, not only do not support appellants’ position but run counter to it. It seems reasonably clear from the language of the riders and from the circumstances surrounding the parties at the time the riders were executed, that the officials of Central Republic Trust Company had in mind that the company was obligated to pay all of the “debts, liabilities and duties” of Chicago Trust Company and Central Trust Company of Illinois, and that they paid $200 additional premium on each rider to guard against such a contingency. Appellants concede, as they must, that Central Republic Trust Company sustained a loss by reason of the forgery in question, but they make the strained argument that the loss was sustained solely by reason of the conditions of consolidation and that the policy is not broad enough to provide for such a loss. We cannot sustain the argument. The policies, the addenda and the Special Forgery Riders were drawn by appellants, and if there is anything ambiguous about the provisions of the policies they must be construed against appellants.

“The original policy and rider were the creation of the defendant. In the policy and rider it calls Morris an employer. Since it had control in phrasing the policy and rider, any ambiguities, doubts or inconsistencies must be construed against it. (Budelman v. American Ins. Co., 297 Ill. 222; Monahan v. Metropolitan Life Ins. Co., 283 id. 136; Treolo v. Auto Insurance Underwriters, 348 id. 93.) ” (Morris v. Central West Casualty Co., 351 Ill. 40, 45.) Appellants are presumed to have known of the consolidation. Indeed, in their amended answer they admit the facts in reference to the consolidation, and if they intended that the special riders should insure only transactions of Central Republic Trust Company it would have been a very simple matter for them to insert apt words of limitation, instead of the words “losses by reason of Forgery . . . which were sustained by the Central Republic Trust Company . . .,” which appear in the riders. In legal effect Central Republic Trust Company was but a continuation of Central Trust Company of Illinois and Chicago Trust Company. As to the instant loss it stood in the shoes of Central Trust Company of Illinois, and appellee had the right to sue it directly.

Appellants have had a fair trial and the judgment of the circuit court of Cook county is affirmed.

. Judgment affirmed.

John J. Sullivan, P. J., and Friend, J., concur.


source: Caselaw Access Project

author: Mr. Justice Scanlan

license: Public Domain

text:
    The People of the State of Illinois ex rel. Otto F. Aken, Appellant, v. Noble J. Puffer, Appellee.
    Gen. No. 38,959.

      Opinion filed May 4, 1937.
    Rehearing denied May 18, 1937.
    Thomas J. Courtney, State’s Attorney, and Opal Leon Bunn, of- Chicago, for appellant.
    Harris F. Williams, of Chicago, for appellee; Sydney L. Blanicstein, of Chicago, of counsel.
   Mr. Justice Scanlan

delivered the opinion of the court.

After leave granted, an information in the nature of quo warranto was filed. It charges that defendant, since December 1, 1934, has attempted to assume supreme authority over the office of county superintendent of schools of Cook county, Illinois; that he claims the right to enter upon the duties of that office on the first Monday in August, 1935, to execute its duties for the ensuing term and receive the salaries and benefits thereof; that the office was established under “An Act to Establish and Maintain a System of Free Schools,” approved and in force June 12, 1909. The information recites the death of the former superintendent of schools, Edward J. Tobin, and alleges that relator was appointed his successor, by the board of commissioners of Cook county, to serve for the remainder of the term for which Tobin was elected, and until relator’s successor should be duly elected and qualified; that relator entered upon the duties of the office; that he is the exclusive holder of the right to hold the office; that he is entitled to the salaries and benefits thereof until his successor is duly elected and qualified; that such right is a personal, private, and an exclusive one, possessed by no other person, and distinct from the rights of the public at large; that relator has always been a person of good character within the meaning of the statutes; that he was in all respects qualified and eligible, within the meaning of the statutes, to hold the office and to continue to hold it until his successor is duly elected and qualified; that during all of the time relator has been the holder of the office he has properly performed all of the duties thereof provided by law; that defendant was not, at the time of the primary election held in Cook county on April 10, 1934, a person of good character within the meaning of section 5, chapter 122, of the statutes of this State, because of certain derelictions of duty and violations of rules and regulations of the office of county superintendent of schools; also because of violations of certain orders of the board of commissioners of Cook county, and also because of certain acts committed by defendant while he was acting as a director of education in the office of the county superintendent of schools of Cook county; that defendant was not eligible to be a candidate for the nomination to the office of county superintendent of schools at said primary election, was not eligible to have his name placed on the ballot as such candidate at the general election held on November 6,1934, and was not eligible to enter upon the duties of the office or to hold the office because he did not have four years’ experience in teaching, as required by said section 5; that defendant usurps and intrudes into the office, perforins duties and receives salaries and benefits thereof without warrant or right whatsoever, and the information prays process of law and to make defendant answer to the People “by what warrant, title or right he usurps, intrudes into and holds or claims to hold and execute the said office and the aforesaid rights of Relator,” and that if defendant does not "justify or disclaim, he be ousted and expelled from the office by the judgment of the court, “and that the respective rights of the defendant herein may be determined and adjudged.”

In substance, defendant’s pleas state that he did not usurp or claim any right to the office in question from December 1, 1934, to August 5, 1935; that on April 10, 1934, a primary election was held in Cook county for the nomination of candidates for various offices to be voted on at a general election to be held on November 6, 1934; that defendant submitted his name as a candidate, of the Democratic party, for the office of county superintendent of schools at that election and received the greater number of votes cast for the office, was declared nominated, and his name was placed on the official ballot as candidate of the Democratic party for the said office at the election held November 6, 1934; that defendant at that election received the greater number of votes east for said office and was declared elected; that before entering upon the duties of the office he qualified by taking the oath of office prescribed by the constitution and executing the bond required by law; that he was duly commissioned by the governor of Illinois as county superintendent of schools of Cook county; that he took office on August 5, 1935, and still holds it; that when he filed his petition at the primary election, and when he entered upon the duties of the office on August 5, 1935, he was a man of good character; that he has always been a man of good character; defendant denies that he has been guilty of any of the alleged derelictions of duty or violations of rules and regulations of the office, or violations of orders of the board of county commissioners, and avers that he has never been guilty of any of the alleged wrongful acts or misconduct as a director of education in the office of the county superintendent of schools of Cook county; that defendant, at the time of the primary election, held a valid county supervisory certificate and a State life supervisory certificate granted by the superintendent of public instruction, the latter certificate being in full force and effect when defendant entered upon the duties of the office; that at the time of the primary election and the general election and when he entered upon the duties of the office he had more than four years ’ experience in teaching, as required by section 5; that defendant did not usurp the office in question. The pleas set up in detail the facts pertaining to the primary election and the general election. Relator filed replications reaffirming the alleged usurpation.

Edward J. Tobin was elected to the office of county superintendent of schools of Cook county, Illinois, for the statutory term of four years commencing the first Monday in August, 1931. He died on March 2, 1933, and on March 20, 1933, relator, Otto F. Aken, was appointed, by the board of commissioners of Cook county, to fill the vacancy. On April 10, 1934, a primary election was held for the nomination of candidates for certain offices in Cook county, at which election the candidates on the Democratic ticket for the office of county superintendent of schools received the following votes: Noble J. Puffer (defendant), 263,761; William J. Cooney, 109,356; Otto F. Aken (relator), 46,981. At the general election held on November 6, 1934, the candidates for the same office received the following votes: Noble J. Puffer, 802,402; George A. Schwebel, 489,199; Elmer L. Kletzing, 2,566. On December 11, 1934, a commission, signed by the governor and the secretary of state, issued to defendant. The latter’s oath of office and his official bond were filed with the county clerk of Cook county. Defendant is now serving his term of office.

The case was tried by the court, without a jury. When it was called for trial the State’s attorney informed the court that he had no interest in the subject matter of the suit; that he signed the petition because he felt that, if he refused to do so mandamus would lie; that the relator’s personal counsel would represent relator, as the State’s attorney felt that it was the relator’s matter. The State’s attorney was not represented during the trial nor in this court. When defendant concluded his evidence, the trial court denied a motion by relator for a judgment of ouster, and relator rested, without introducing any evidence.

The material parts of defendant’s testimony are as follows: He is serving his term of office as county superintendent of schools of Cook county. He was born at Cameron, Illinois, May 5, 1901, and had lived in Cook county since August, 1924. In June, 1923, he graduated from Illinois Wesleyan University, at Bloomington, with the degree of Bachelor of Science, and since then has been engaged in educational work exclusively, either as a teacher or as a supervisor. Between his sophomore and junior years at the university he taught at the DeLong High School in Knox county, and also served as principal, for a time. In September, 1923, he became athletic director at the Hartsburg Community High School, and also taught mathematics and physics, for a period of nine months. He then went to Arlington Heights Township High School, where he taught algebra, geometry and general science for the first year, and algebra and geometry for the second six months’ period of the second year. He was also connected with the athletic work. In his second year at the Arlington Heights High School he was appointed assistant principal by the board of education. In March, 1926, he entered the office of the county superintendent of schools of Cook county as an assistant or director of education, or country life director, as it is sometimes called, and in that position he' supervised teachers, directed courses of study to be prepared, instructed teachers, demonstrated teaching before classes of children in the various schools in the county, conferred with teachers upon the promotion of pupils, directed the giving of tests and gave tests to determine whether certain pupils in the eighth grade were eligible for promotion, conferred with boards of directors in regard to the selection and employment of teachers, planned and prepared eighth grade graduation exercises in the various township centers, awarded diplomas, performed the functions of a city or village superintendent of schools, and assisted teachers in preparing their annual reports, and boards of directors and teachers in the preparation of their blanks for the State distributive fund. He took' graduate work in the field of supervision and administration at Northwestern University in the graduate school in the department of education and was awarded the degree of Master of Arts, in June, 1932. During his direct examination various exhibits pertaining to his nomination, election, commission and qualifications were introduced. Defendant was not cross-examined.

It is conceded that defendant was legally and fairly nominated and elected to the office in question, and this appeal presents an unusual quo warranto case. Counsel for relator stated in the trial court that the sole question in the case related to the eligibility of defendant to be a candidate for the office, or to fill it if elected. Delator contended in the trial court, and contends here, that defendant was not eligible as a candidate for the office and “was not eligible to enter upon the duties of the office” because “he did not have four years’ experience in teaching and for the reason that at those dates he was not a man of good character within the meaning of the Statute.” Delator relies upon sec. 5, ch. 122, Ill. State Bar Stats. 1935, j[ 5; Jones Ill. Stats. Ann. 123.005, — known as the “Schools” Act — which provides:

“No one shall be eligible to file his petition at any primary election for the nomination as candidate for the office of county superintendent of schools nor to enter upon the duties of such office, who is not of good character, actually engaged in educational work and who does not hold a valid county supervisory certificate or a State certificate granted by the Superintendent of Public Instruction and who has not had at least four years’ experience in teaching.”

Delator contends: The information charges usurpation of the office, defendant’s pleas allege facts showing his purported right to exercise the office and conclude with a traverse under the absque hoe, plaintiff reaffirms the usurpation in his replications and joins in the traverse, and upon that state of the pleadings it was incumbent upon defendant to prove all of the facts alleged in his pleas, and he failed in that regard.

Delator argues that “the four years’ experience in teaching required by section 5 . . . before a person is eligible to file his petition as a candidate for the nomination to office of County Superintendent of Schools means four years’ experience in actual teaching as a teacher in schools where there exists the relationship of teacher and pupil” that “the four years’ experience in teaching required . . . means four ‘calendar’ years of twelve months each”; that “teaching, within the contemplation of the act is for the purpose of including teachers who come under the provisions of the Schools act.” Relator concedes that defendant, at the time of the primary election, had 33% months’ experience in teaching, but contends that none of defendant’s work since he entered the office of the county superintendent of schools, in March, 1926, can be considered in determining whether he had “at least four years’ experience in teaching.” Counsel for relator states that he has been unable to find a decision by any of the courts of this State that directly applies to the facts involved in the instant contention. In passing upon the instant contention the trial court said: “Educational work may mean more than merely experience in teaching. It may cover a wider field. ... It doesn’t mean he must have four years as a teacher . . . the Statute doesn’t say that he must have been ... an actual teacher for four years so long as he has experience in teaching for four years. A man may have experience in teaching by actually supervising the teaching work, directing what it should be, by watching that the directions are carried out and by watching how the teaching is being done. There is nothing in the Statute . . . that in order to qualify a man for the position, he actually have a school room and pupils and for four years be engaged in actual teaching of children or pupils personally. All it requires is four years’ experience in teaching. How that experience is gained is not limited to his daily performance of duties as an instructor. . . . It is rather peculiar language the Legislature uses. If it meant that he should, in fact, have been for four years a teacher, it would have said so. . . . It said four years’ experience in teaching. . . . And the work of teaching contemplates having schools; . . . having somebody in charge of that school, someone to lay out the work of the teachers and to see that the teachers are there on time and to watch their work and see that they perform it properly. All those so engaged are having experience in teaching.” The trial court held that in determining whether defendant had had four years ’ experience in teaching, his work and duties after he entered the office, of the county superintendent of schools must be considered. The attorney general of this State, Otto Kerner, was for several years a member of this division of the Appellate Court. In June, 1935, the State superintendent of public instruction wrote him asking his opinion as to whether defendant had had at least four years’ experience in teaching within the meaning of the statute. In view of the legal ability of the attorney general and the absence of any decision bearing upon the instant question by the courts of this State, we deem it appropriate to refer to the opinion he gave the superintendent. We quote from his letter:

“In reply I beg to advise that no court, so far as I can find, has passed upon this particular qualification, and it, therefore, becomes necessary to consider this as an original question.
“Mr. Puffer has had three years and six months of actual teaching, classroom work, and had he continued to do this work until the end of his fourth year, there could have been no question raised concerning his eligibility, provided he possessed all the other necessary requirements.-
“However, instead of actual classroom teaching, after this three and one-half year period, he was promoted, as I understand it, to supervisory work in the public schools of Chicago. In other words, instead of teaching students in classroom work, he was instructing teachers in their duties, which incidentally included teaching students parts of two or three days per week.
“The statute requires ‘four years’ experience in teaching,’ not ‘four years’ experience in classroom work’ or ‘four years’ experience in teaching pupils attending schools.’
“I assume that if Mr. Puffer had taught four years in a Normal School, where among other things, teachers are taught how and what to teach, there would be no complaint. I can see little or no difference in that sort of teaching and the supervisory work done by him in the public schools of Cook County. His duties during that time included among other things, just such work as he will be called upon to perform as county superintendent of schools. < Í
“The statute must be given a reasonable construction, and, in my opinion, any person who has taught in classrooms for three and one-half years and has performed satisfactory supervisory work over teachers for nearly eight years, which work included actual classroom teaching as well as instructing teachers in their work of instructing pupils, is amply qualified under the statute, provided he possesses all the other requirements thereof. ’ ’

After a careful consideration of the instant contention we are satisfied that the trial court ruled correctly in refusing to sustain relator’s position.

Defendant contends that section 5 should not be construed as requiring four calendar years’ experience; that the statute contemplates four school years’ experience and that defendant had more than four years ’ experience. in teaching in certain designated schools within the meaning of the statute, independently of his work and duties as assistant county superintendent of schools for a period of more than seven years. Relator argues that if a school year covers only a period of eight months it would require six school years to comply with the provisions of section 5. While there is considerable force in defendant’s contention, we do not deem it necessary to pass upon it.

Defendant did not testify in respect to the alleged derelictions of duty, and relator, basing his argument upon that fact, contends that the good character of defendant cannot be presumed to exist; that the burden was upon him to prove his good character by competent evidence and that he failed to sustain the burden; that the evidence offered by defendant did not prove nor tend to prove good character and therefore the trial court erred in refusing to enter a judgment of ouster against him. In support of the contention relator cites People ex rel. Odell v. Flaningam, 347 Ill. 328. That case, in our opinion, is not applicable to the instant record. The information in the Flaningam case charged, inter alia, the commission of forgery by the defendant, and the latter, in his pleas, admitted the charge but averred that no wrong or injury was intended in the commission of the act. A demurrer to the pleas was sustained and Flaningam electing to stand by his pleas, a judgment of ouster and a fine was entered against him. In the instant case defendant denies, in his pleas, the charge that he was not of good character and avers that he was always a man of good character. He further denies that he has ever been guilty of any dereliction of duty or that he has ever violated any rules of the county board, as alleged in the information. There is no allegation in the information that the alleged “derelictions of duty” on the part of defendant were ever judicially or officially established, or that defendant was guilty of any offense which would work a forfeiture of the office.

Character, strictly speaking, is that which a person really is. Deputation is that which a person is thought to be, or is supposed to be, in the minds of others. A man of very good character might have a bad reputation, and a man of good reputation might have a very evil character. Defendant had the right to prove that he was a man of good character by direct or circumstantial evidence. The trial court held that defendant made out a prima facie showing that he was a man of good character, independently of the rule of law that presumes that a man is of good character where there is no proof to the contrary, and we are satisfied that the trial court was fully justified in so holding. There was introduced in evidence by defendant the State life supervisory certificate issued on September 9, 1933, under authority of the statute, by the State superintendent of public instruction, which reads as follows:

“This is to Certify that Noble J. Puffer, having complied with the requirements of the law and the regulations prescribed by the Superintendent of Public Instruction and having furnished satisfactory testimonials as to character, preparation and successful teaching, has been awarded this State Life Supervisory Certificate, valid for supervision and teaching in any school district in the state during the good behavior of the holder.” (Italics ours.)

A fortiori, relator, as county superintendent of schools, issued, on July 1, 1933, to his subordinate, the defendant, a Cook county supervisory renewal teacher’s certificate, signed by relator, which reads as follows:

“The undersigned, having examined Noble J. Puffer in the subjects required by law, and being satisfied that he is of good moral character, hereby Certifies that his qualifications are such as to entitle him to this Certificate, which is valid in this County for One Tear from the date hereof, unless sooner revoked, and is renewable at the option of the County Superintendent.” (Italics ours.)

As bearing upon the charge made in the information that defendant was not a man of good character, it is significant that in his affidavit in support of the petition for leave to file the information relator states that the “derelictions of duty, violations of the rules and regulations of the office of County Superintendent of Schools” by defendant were committed on March 4, 1933; and in this connection we note that relator does not base his charges in the affidavit upon information and belief. March 4, 1933, was approximately four months before relator issued the certificate to defendant. During all of this period of time relator was the superior officer of defendant. This last mentioned certificate not only tends to prove that defendant was a man of good character, but it very seriously reflects upon the truth of the charge made in the information. Out of relator’s own mouth came an answer to the charge. It is a familiar rule of law that good character once proved is presumed to continue, in the absence of countervailing evidence. (United States v. Deans, 230 Fed. 957, 959.) In People v. Board of Pharmacy, 275 Ill. 236, it was held that under the Pharmacy Act, when a certificate issued by the State board of pharmacy certifies that a pharmacist is of good moral character the presumption of good character continues until the contrary is made to appear. The nomination of defendant at the primary election and his election at the general election by overwhelming pluralities show very conclusively that the voters of the district judged him to be a man of good character. After the trial court advised relator that defendant had made out a prima facie showing that he was a man of good character, relator refused to offer evidence to prove the charge he had made, and he now seeks to have defendant ousted from the office to which he was legally elected by the people, upon technical rules of pleading not applicable to the instant case. We must presume that the State’s attorney would not have withdrawn from the case had he believed there was merit in the charge of alleged derelictions of duty, and that prosecutions would have followed the charge had the facts submitted by relator to that official warranted such action. It is a reasonable assumption that if there had been any basis for the charge in the information the State’s attorney would not have withdrawn from the proceedings. If the charge was made in good faith and upon personal knowledge, why did not relator present proof to the trial court in support of it? He failed to do so, although the court reflected upon his conduct in that regard and charged him with deliberately attempting to usurp an office to which the people had elected defendant.

As we have heretofore stated, relator, as county superintendent of schools, had the power, under the statutes, to prefer charges against defendant for the alleged derelictions of duty, or to discharge him. If he knew that defendant had been guilty of serious derelictions of duty, his duty was plain. But he seems to have taken no action of any kind in the matter until the instant proceeding was commenced, on August 6, 1935, exactly nine months after the election. At the time the trial court found for defendant the latter had made out a prima facie showing as to his good character, and the charge of relator had been so discredited that, apparently, he considered it useless to offer evidence to sustain it. The introduction of the certificate he issued to defendant on July 1, 1933, completely answered the charge.

But there is a paramount reason why the purely technical contention of relator should not prevail. .Neither the legality nor the fairness of the primary election or the general election is questioned. Relator concedes that defendant received an overwhelming plurality of votes at both elections. As we have heretofore stated, the voters are presumed to have known that the law requires that a county superintendent of schools shall he a man of good character, and they have recorded their judgment that on the day of the primary election and on the day of the general election defendant was a man of good character. In view of the entire record in this case, what right has a court to set aside the judgment of the people twice recorded? We refuse to sustain the bold contention of relator that the result of the two elections does not even tend to prove that the defendant was a man of good character.

Defendant complains bitterly of the attitude of relator in the present proceeding. Undoubtedly, relator has taken with poor grace the election of defendant to an office which the former once held and still desires, and it is regrettable that after the decisive vote in the primary election that manifested an overwhelming preference of the voters of the district for defendant over relator, the latter did not see fit to abide by the will of the people.

We have not deemed it necessary to pass upon a contention of defendant that the allegations as to derelictions of duty in a former office by defendant do not make out a prima facie showing that he was not a man of good character at the time of the primary election and at the time of the general election.

The judgment of the circuit court of Cook county is a just one and it is affirmed.

Judgment affirmed.

John J. Sullivan, P. J., and Friend, J., concur.


text:
    Arthur Barnett, Appellee, v. Morris Gitlitz et al., Appellants.
    Gen. No. 39,103.
    Opinion filed May 4, 1937.
    Rehearing denied May 18, 1937.
    Abrams, Sherman & Lewis, of Chicago, for appellants ; Irving S. Abrams and Louis A. Sherman, of counsel.
    Samuel E. Davidson, of Chicago, for appellee.
   Mr. Justice Scanlan

delivered the opinion of the court.

On January 30, 1936, plaintiff recovered a judgment by confession in the sum of $823.51. The judgment was based upon two bonds signed by defendants. The latter, in apt time, filed a motion to vacate the judgment, or in the alternative that the court satisfy of record the judgment, and a verified petition in support of the motion. Plaintiff filed a motion to strike defendants’ amended petition from the files. The court entered an order “overruling motion of defendants to vacate the judgment” and sustaining plaintiff’s motion to strike defendants’ petition from the files. Defendants appeal.

The following is the verified amended petition of defendants:

“Your Petitioners, Morris Gitlitz, Mary Gitlitz, his wife, Gus Bagan, Sadie Bagan, his wife, and Dora Gitlitz, a widow,- respectfully represent to the Court that they are the defendants in this cause; that they heretofore filed a petition to vacate the judgment entered by confession, which motion and petition was ordered filed and set for argument for May 4, 1936.

“Your Petitioners further represent that they show to the Court that the judgment rendered herein is a confession on certain real estate bonds secured by trust deed to the Independence State Bank, as Trustee, dated October 15, 1928, and recorded as Document No. 10183360; that the Independence State Bank ceased doing business and it was succeeded to its trust powers under the trust deed aforesaid by the Chicago Title & Trust Company as successor trustee; that subsequent to the execution of the trust deed, aforesaid, and the bonds secured thereby, of which the bond of the plaintiff is one, a certain proceeding was instituted in the Superior Court of Cook County, Illinois, Case No. 567515, entitled ‘ Chicago Title & Trust Company, a corporation, as Successor Trustee vs. Morris Gitlitz, et al.,’ which was a foreclosure of the trust deed and all of the bonds secured thereby, aggregating $120,000.00, and that the proceedings were prosecuted to such an extent that on July 14, 1934, a Decree of Foreclosure was entered therein and a decretal judgment executed against all of the defendants herein for the sum of $130,258.81 and cost of suit in favor of said Chicago Title & Trust Company, as successor trustee, for the use and benefit of all the owners and holders of the bonds secured by the trust deed aforesaid of which the bond upon which this judgment is predicated is one.

“3. Tour Petitioners further represent that after the rendition of said decree in the Superior Court, aforesaid, the De Luxe Court Apartments, Inc., a corporation, being then and there the owner of the title to the premises securing the trust deed and the bonds aforesaid, of which the bond of plaintiff herein is one, did file its petition for reorganization under Sections 77A and 77B of the Bankruptcy Act, as amended, in the District Court of the United States for the Northern District of Illinois, Eastern Division, which cause was docketed and entitled ‘In the Matter of the De Luxe Court Apartments, Inc., a corporation, No. 61705,’ and proceedings were had thereunder to the extent that on March 2,1936, a decree was entered in the United States District Court approving the plan of reorganization provided in said Decree, and ordering that the Decree entered in the Superior Court of Cook County in the foreclosure proceeding be satisfied in full, and that the trust deed securing the bonds, of which the bond of plaintiff is one, be released and declared cancelled and null and void, and that the bonds secured thereby be cancelled and exchanged for the new certificates of the De Luxe Court Apartments, Inc., a corporation, as provided in said plan.

“4. Tour petitioners further represent that in pursuance to said Decree entered in the United States District Court for the Northern District of Illinois, Eastern Division, the Honorable Carl B. Chindblom, who is a duly appointed Special Master of said Court, did on April 7, 1936, execute a satisfaction of judgment, satisfying in full the decree entered in the Supe- . rior Court of Cook County, No. 567515, on July 14, 1934, for $130,258.81, which satisfaction was filed for record in the Office of the Clerk of the Superior Court of Cook County, and the said Special Master did execute a release of the trust deed recorded as Document No. 10183360, which release was filed for record in the office of the Recorder of Deeds of Cook County, Illinois, on March 31, 1936, as Document No. 11784498.

“5. Tour Petitioners further represent that the judgment herein has been fully satisfied by the filing of the satisfaction of judgment in the Superior Court of Cook County, proceedings No. 567515, and the bonds secured by said Trust Deed, of which the bond of plaintiff is one, has been fully satisfied, paid and discharged, and rendered null and void.

“6. Tour Petitioners further represent that it was further provided in the Decree entered in the United States District Court for the Northern District of Illinois, Eastern Division, that all persons are restrained and enjoined from instituting or maintaining any suits or proceedings for the collection of any of the bonds secured by the trust deed, and from doing anything to hinder or delay the reorganization as provided by the Decree of the Federal Court.

“7. Tour Petitioners therefore pray the court to enter an order herein vacating the judgment heretofore entered by confession, or in the alternative, that the court satisfy of record said judgment entered herein.”

When the matter came on for hearing defendants offered in evidence the following documents:

(1) Certified copy of schedule of secured creditors in bankruptcy proceeding, which shows Morris Barnett as the holder of bonds Nos. 107 and 270, in the amount of $600.
(2) Certified copy of the order of confirmation of Plan of Reorganization of De Luxe Court Apartments, Inc. entered in the United States District court in the bankruptcy proceeding involving the premises in question.
(3) The original trust deed executed by defendants to Independence State Bank, securing the payment of bonds involved in the proceeding.
(4) Certified copy of decree of sale in the superior court of Cook county in case No. 567515, entitled “Chicago Title and Trust Company, a corporation, as Successor Trustee vs. Morris Gritlitz et al.,” ordering the sale of the property to satisfy the bonds secured by the trust deed.
(5) Certified copy of satisfaction of decree entered in the superior court of Cook county in case No. 567515, executed by Carl R. Chindblom, Special Master, satisfying the entire indebtedness found due under and by virtue of the decree of sale in the superior court case.
(6) Certified copy of a release deed executed by the same special master releasing the lien of the trust deed recorded as document No. 10226861, securing the payment of the bonds involved.
(7) Certificate of stock No. 2, issued by De Luxe Court Apartments, Inc., to Arthur Barnett, for six shares, dated April 8, 1936.

Defendants contend:

“I. The jurisdiction in the United States District Court is paramount, superior and exclusive of all other Courts, and in reorganizations under section 77B of the U. S. Bankruptcy Act includes jurisdiction over the bonds as well as the holders thereof.
“II. The satisfaction of the decree executed by Carl R. Chindbolm, Special Master, in accordance with the decree of confirmation entered in v the United States District Court satisfying the decree of sale in the Superior Court Case No. 567515, satisfied the entire indebtedness including the bonds owned by the Plaintiff herein and did not merely release the lien against the property.
“III. Where a judgment is in fact paid and satisfied, the Court on motion may compel the entry of a Satisfaction of Record.
“IV. The Court erred in refusing to admit in evidence Defendants’ Exhibits 1 to 6 inclusive, which were pertinent to the issues herein.”

Plaintiff’s motion to strike was in effect a demurrer to the amended petition and all the facts well pleaded in the petition were admitted by the motion. There are no controverted facts, as plaintiff offered no evidence upon the hearing.

Plaintiff states: “The question involved in the instant cause, is whether or not the bonds or notes are an integral part of the trust deed and cannot be severed, or whether or not the trust deed and the bonds and notes secured by them are separate and distinct instruments,” and cites Oswiansa v. Wengler & Mandell, Inc., 273 Ill. App. 239', and Sturgis Nat. Bank v. Harris Trust & Sav. Bank, 351 Ill. 465, which he contends determine the instant appeal. It is hardly necessary to state that this contention is without merit.

The defendants in the municipal court case were defendants in the foreclosure proceeding in the superior court as the signers of all the bonds secured by the trust deed.

This appeal raises the following question: Where the United States District court, under its bankruptcy powers, and particularly under section 77B of the Bankruptcy Act, has, in a reorganization proceeding pending in that court, ordered a satisfaction of the decree entered in the superior court case (which decree found that there was due complainant in that case as successor trustee, for and on behalf of all of the bondholders, the sum of $118,628.19, and that the defendants Morris Gitlitz and Mary Gitlitz, his wife, Grus Bagan and Sadie Bagan, Ms wife, and Dora Gritlitz, a widow, were personally liable for that amount), and also ordered the release of the trust deed securing the bonds, and the decree of the superior court has been satisfied and released in accordance with said order, is plaintiff, who confessed judgment in the municipal court while the proceedings in the United States District court were pending, entitled to have his judgment in the municipal court remain in full force and effect, where the amount of the stock he is entitled to under the decree of the United States District court is tendered to him? It is unnecessary for us to state the scope and purpose of section 77B of the Bankruptcy Act. By an order of the United States District court the debt due on all of the bonds secured by the trust deed was satisfied. To sustain the position of plaintiff it would be necessary to ignore the provisions of a law of the United States and the orders and decree of the United States District court. If plaintiff is right, a minority of the bondholders can prevent the United States District court from functiomng under section 77B. It is our duty and desire to give full force and effect to the laws of the United States and the orders and decree of the United States District court. Defendants’ motion in the municipal court, in the alternative, was in the nature of a writ of audita querela, and under the admitted facts the trial court should have compelled an entry of satisfaction of the judgment in the municipal court. (See Harding v. Hawkins, 141 Ill. 572.)

“The writ of audita querela has also long been recogmzed as the proper remedy to avoid an execution which has been sued out after the judgment has been released, paid, or satisfied on a prior execution, or where any other matter has occurred which operated as a discharge of the judgment. Even the tender of the amount due upon an execution and a refusal to receive it may entitle the debtor to relief by audita querela, when the tender is kept good and is properly pleaded.” (6 C. J. 853.)

The judgment order of the municipal court of Chicago appealed from is reversed, and the cause is remanded with directions to the trial court to cause a satisfaction of the original judgment to be entered. Should plaintiff refuse to accept the stock tendered, the court may order it deposited with the clerk of the court, and with the right in plaintiff to claim it.

Judgment order appealed from reversed,-and cause remanded with directions to the trial court to cause a satisfaction of the original judgment to be entered; and with further directions.

J ohn J. Sullivan, P. J., and Friend, J., concur.


text:
    Frank Biller et al., Appellees, v. Arthur Egan et al., Defendants. J. Arthur Evensen, Appellant.
    Gen. No. 39,345.

      Opinion filed May 4, 1937.
    Harry H. Buskin and Harold Stern, both of Chicago, for appellant; Herbert L. Hart and Abraham J. Harris, both of Chicago, of counsel.
    Stebbins, McKinley & Price, of Chicago, for appellees ; William McKinley and Paul E. Price, of counsel.
   Mr. Justice Scanlan

delivered the opinion of the court.

Plaintiffs, as officers and members of Machinery-Safe Movers and Biggers Union, Local 136, a voluntary association, filed their verified complaint, in their own behalf and on behalf of all of the members of said Local, against certain of the defendants, individually and as members of the International Association of Bridge Structural and Ornamental Iron Workers, a voluntary association, and also against J. Arthur Evensen, general vice president of the association, praying that an injunction issue restraining all of the members of the said association, its officers, agents and attorneys from forfeiting or attempting to forfeit the rights and priviléges of members of Local 136 as members of the International Association; from suspending or attempting to suspend Local 136 from membership .in the association; from interfering or attempting to interfere in the management and affairs of Local 136 or the rights of the members thereof; from carrying out or attempting to carry out an order of suspension of the Local, and from penalizing or discriminating against it or any of its officers or members because of the filing of this complaint against it. All of the defendants were served with a written notice that plaintiffs would move for a temporary injunction. Defendant Evensen filed a special appearance for the sole purpose of making á motion to dismiss him and the membership of the International Association, its officers, agents and attorneys from the cause, on the ground that the court had no jurisdiction of him nor of the members of the association. The motion to dismiss was overruled and thereafter an order for a preliminary injunction, in accordance with the prayer of the complaint, was entered, from which Evensen, alone, files this “interlocutory” appeal.

The complaint states, in substance, that the International Association is a voluntary association of bridge structural and ornamental iron workers, shopmen riggers, machinery movers, stone derrickmen’s and pile drivers’ local unions; that Local 136 is a voluntary association of machinery and safe movers and riggers; that its members are members of the International Association; that the General President of the International Association, P. J. Morrin, dominates and controls the policy of the Executive Committee of the association; that he has, without just cause, “commenced and pursued a course of conduct evincing a definite hostile feeling toward the officers and members of Local 136,” and during the year 1932, over the protest of the officers of the Local, took away from the Local certain jurisdiction; that he caused charges to be preferred against the Local and certain members thereof, and caused to be sent to the officers of the Local a letter informing them that charges had been filed against it; that after consideration of the charges the General Executive Board of the association, so controlled by Morrin, suspended the Local, and that a copy of the charges and notification of the time and place for the trial of the charges has been sent to the officers of the Local union; that Morrin is prejudiced against the Local and by reason of his power and influence it would be impossible for the Local to obtain a fair trial; that by reason of the suspension of the Local, it and the members theréof have been and will be damaged and deprived of valuable rights; that plaintiffs represent all of the members of the Local; that said members are so numerous that it is impractical to join all in the prosecution of the instant suit; that the . persons named as defendants “are made defendants herein as representatives of the membership of said International Association, the members of which are so numerous that it is impractical to include all of said members as defendants.”

The affidavit of Evens en, attached to the motion to dismiss, states, in substance, that he is a resident of Chicago and a citizen of Illinois;

“That he is first General Vice President of the International Association of Bridge Structural and Ornamental Iron Workers (referred to as the International Association); that said International Association is a voluntary labor association whose affairs are governed by a constitution and made up of affiliated and chartered local bodies throughout the United States and Canada; that these local bodies are governed in turn by their several local constitutions and by-laws, which are adopted by the local membership and approved by the General Executive Board of International Association, in conformity with certain requirements of the said International Association constitution; their membership in said International Association is maintained by the payment of certain fees and assessments; otherwise they possess complete autonomy in themselves, and locally their business is conducted by their officers, duly elected from the body of their membership, and they continue as such local autonomous bodies as long as they conform to and do not violate any of the requirements of the constitution of said International Association; that on October 26, 1936, the affiant was served with a notice, a copy of which is annexed hereto, marked Exhibit ‘A,’ and made a part of this affidavit.

“That as first General Vice President of the said International Association the affiant’s duties are prescribed by Article XI of the constitution of the International Association, which provides as follows:

“ ‘General Vice Presidents.

“ ‘Section 1. It shall be the duty of the first Vice President to assist the General President in conducting the conventions of the International Association. In the absence of the General President he shall preside at conventions and discharge the duties of the General President at such conventions. The duties of the other Vice Presidents shall be the same in their respective numerical order.

“ ‘The General President shall assign to any of the General Vice Presidents any particular duty to assist him which in his judgment they are best able to perform in the interests of the Association regardless of their respective order of title. ’

“Under said provision of the constitution of the International Association affiant has no authority to transact any . business on behalf of said International Association; the work performed by the affiant for the International Association is under the specific direction of the General President thereof, and any authority of the affiant in connection therewith is limited to the instructions given; that the affiant has never been designated, nor has he any authority to receive service of any process on behalf of the International Association.

“That the International Association has its principal and only place of business in Suite 1615, Syndicate Trust Building, St. Louis, Missouri; it does not have any regular or any place for the transaction of business in the State of Illinois, the reason for this being that it does not conduct any business in the State of Illinois; that upon receipt of the notice, Exhibit ‘A,’ and the complaint in this cause, attached thereto, affiant forthwith mailed the same to the General President of the International Association, and thereafter conferred with said General President in St. Louis, Missouri, where said General President instructed affiant to appear in this case specially for the purpose of filing the motion to which this affidavit is attached, and for no other purpose whatsoever.”

Defendant Evensen (hereinafter called appellant) contends that the trial court erred in finding that it had jurisdiction over the membership of the International Association and in entering the preliminary injunction against the members of the association, its officers, agents and attorneys. Appellant first argues that defendants who are members of Local 136 are not representatives of the other members of the International Association and, therefore, making them defendants did not give the court jurisdiction over the members of the association. The equity of this contention must be conceded. In fact, plaintiffs, upon the oral argument, did not insist that defendants who are members of Local 136 fairly represent the rights and interests of the members of the International Association.

The real question in the case turns upon the further contention of appellant that naming him as a defendant was not sufficient to give the court jurisdiction over the members of the International Association; that “the equity rule permitting the adjudication of the rights of all members of an association, although less than all are sued of record, requires that more than one member be a record defendant.” Appellant cites, in support of this contention, Story’s Equity Pleadings (9th ed.), wherein the author, in explaining the exceptions to the general rule that all parties whose rights are to be adjudicated must be before the court, states:

“The most usual cases arranging themselves under this head of exceptions are, (1) where the question is one of a common or general interest, and one or more sue, or defend for the benefit of the whole; (2) where the parties form a voluntary association for public or private purposes, and those, who sue, or defend, may fairly be presumed to represent the rights and interests of the whole; (3) where the parties are very numerous, and although they have, or may have separate, distinct interests; yet it is impracticable to bring them all before the court.” (Sec. 97, p. 95.)

“The second class of cases, constituting an exception to the general rule, and already alluded to, is, where the parties form a voluntary association for public or private purposes, and those who sue or defend, may fairly be presumed to represent the rights and interests' of the whole.. In cases of this sort the persons interested are commonly numerous, and any attempt to unite them all in the suit would be, even if practicable, exceedingly inconvenient, and would subject the proceedings to the danger of perpetual abatements, and other impediments, arising from intermediate deaths, or other accidents, or changes of interest. Under such circumstances, as there is a privity of interest, the court will allow a bill to be brought by some of the parties on behalf of themselves and all the others, taking care, that there shall be a due representation of all substantial interests before the court. And such a bill must be brought on behalf of all the parties in interest; for if it be brought for the plaintiffs alone, it will not be sustained by the court for want of proper parties.” (Sec. 107, pp. 107 and 108.) Appellant also cites Martin v. Dryden, 6 Ill. 187, 209-210, and Guilfoil v. Arthur, 158 Ill. 600, 605, where the above quotations from Story are cited with approval. Appellant argues that in view of the rule laid down by Story, “since this suit involves an association class suit, jurisdiction over the membership of the International Association cannot be obtained through jurisdiction over one member thereof.” Counsel has not cited to us any case in which it has been directly held that in a suit like the instant one jurisdiction over the membership of the voluntary association cannot be obtained through jurisdiction over one member of the same. In Fitzpatrick v. Rutter, 160 Ill. 282, it was held that service upon the secretary of a voluntary association composed of many members, scattered throughout the United States and Canada, was sufficient to give jurisdiction of a suit in equity against the association. That case grew out of an indemnity claim of one of the members of the Switchmen’s Mutual Aid Association of North America against the association. The appellant contended that it was a voluntary association and that to bring it within the jurisdiction of the court it was necessary to serve each of its members. Wliile the court held that the facts showed that the association was a de facto corporation, nevertheless, it further held that if it were assumed that the association was a voluntary one, the service upon the secretary “was a sufficient notice to the association, and adequate service to give the circuit court jurisdiction.” In War-field-Howell Co. v. Williamson, 233 Ill. 487, a bill was filed against the manager of an insurance exchange and it was contended that complainant should have brought a suit against each of the five or six hundred subscribers of the exchange for the pro rata share which each subscriber was liable to contribute to pay the loss. While the Supreme Court held that the evidence showed that the subscribers, by the express terms of their agreement, had constituted the manager of the association to be their agent and representative in actions or proceedings,, nevertheless, the court. further held that regardless of the agreement, and assuming the exchange to be a voluntary, unincorporated association, service upon the manager alone was sufficient to bind the entire membership. In support of its conclusion the court said (p. 496):

“If there were no express clause in the agreement authorizing the manager to appear for and represent all the subscribers in litigation against the members, it would still not be necessary, in an equitable proceeding against the association, to make all of its members parties and serve them with process. In such case the rule that all persons interested in the subject matter in controversy should be made parties would not apply, but the case would be controlled by an exception to that rule, that where the parties are numerous and it is impracticable to bring them all before the court, service upon a part, to act for the other members of the association as well as for themselves, will be a sufficient service upon the whole. (Guilfoil v. Arthur, 158 Ill. 600; Fitzpatrick v. Rutter, 160 id. 282; Story’s Eq. Pl., sec. 111.) There are many cases tobe found where suits in equity have been sustained against voluntary unincorporated associations where service was had upon some agent, committee, manager or trustee, who in some sense might be said to represent the body of the membership ” (Italics ours.)

In United Mine Workers v. Coronado Co., 259 U. S. 344, Mr. Justice Taft recognizes a growing liberality of equity, adapting itself to modern needs, to permit representation by one person of many, too numerous to be sued.

Story states (supra, sec. 97, p. 95) that the purpose of the rule is that “those who sue, or defend, may fairly be presumed to represent the rights and interests of the whole.” In the instant case the real test in determining whether the rule has been observed is not the number of persons who have been named as defendants, but the nature of the relationship of appellant to the parent body. Making the 150 or more members of Local 136 defendants would not comply with the rule, whereas the naming of appellant, alone, would seem to fully comply with the spirit and purpose of the rule. From the record the following facts appear: Appellant is a member of the International Association and its first general vice president. He is also a member of the executive council of the association. When he received a copy of the complaint and the notice that plaintiffs would ask for the issuance of a temporary injunction as prayed in the verified complaint, he “mailed the same to the General President of the International Association, and thereafter conferred with said General President in St. Louis, Missouri, where said General President instructed affiant to appear in this case specially for the purpose of filing the motion to which this affidavit is attached,, and for no other purpose whatsoever.” Appellant thereafter complied with the instructions. Upon the oral argument in this court the general counsel for the International Association made the argument for appellant, wherein he conceded that the International Association had notice of the instant action and a full opportunity to defend in the trial court, and that the sole purpose of invoking the jurisdictional question was the desire of the association to have the matter litigated in St. Louis, Missouri, where the association “had its principal and only place of business.” When it is borne in mind that the object of the representative rule, in actions of this kind, is that service must be had upon some one who fairly represents the rights and interests of the whole, and who will bring knowledge of the pendency of the action home to those responsible for the management of the affairs of the parent association, it seems idle to argue that the representative rule has not been fairly complied with in this case. Appellant is forced to contend that if, instead of appellant, the General President of the association had been made a defendant and served, the court would not have acquired jurisdiction of the association. The position of appellant is devoid of real merit and cannot be sustained.

We have considered the further contention of appellant that he “is not a ‘representative’ member within the meaning of the rule that the persons before the court may fairly be presumed to represent the rights and interests of all others over whom jurisdiction is sought, ’ ’ and find it without merit. The point made by appellant is that since no action or threatened action on his part is alleged in the complaint he cannot be presumed to represent the rights and interests of the persons whose action or threatened action is complained of. This contention overlooks the fact that the complaint alleges that appellant is made defendant “as representative of the membership of said International Association.” If we are correct in our conclusion that he fairly represents the rights and interests of the association, relief may be granted against the association even though no action or threatened action on the part of appellant is alleged in the complaint.

Plaintiffs strenuously argue that no appeal lies from the order granting the temporary injunction because the only ground urged for reversal of the order is lack of jurisdiction of the membership of the International Association; that where a trial court, lacking jurisdiction over the person of a defendant, erroneously proceeds, the remedy of the objecting party is by appeal after a final judgment is rendered. This contention has been elaborately argued by both sides, but in the view that we have taken of this appeal it is unnecessary for us to pass upon its merits.

The order of the superior court of Cook county appealed from, is affirmed.

Order affirmed.

•John J. Sullivan, P. J., and Friend, J., concur.