text:
    Alice Scanlan, Appellee, v. Board of Directors, District No. 39, Appellant.

    1. Schools — essentials to contract hiring teacher. To make a valid contract employing a teacher, the board of directors can only act on a yea and nay vote taken and entered on the records of the board’s proceedings, without which contract there is no cause of action for salary.
    2. Saving questions for review — motion for new trial as preserving sufficiency of evidence. If a defendant names as one of the grounds in his motion for new trial that the verdict was contrary to law and evidence, the question of the sufficiency of the evidence to support the verdict is preserved for review.
    3. Schools — sleeping of teacher during school hours as showing vii-competency. A verdict in favor of a discharged school teacher for unpaid salary during the unexpired term was against the great weight of the evidence which showed that she slept during school hours.
    Appeal by defendant from the Circuit Court of Jasper county; the Hon. F. R. Dove, Judge, presiding. Heard in this court at the March term, 1925.
    Reversed and remanded.
    Opinion filed August 5, 1925.
    C. D. Fithian and Verne C. Chapman, for appellant.
    Kasserman & Kasserman, for appellee.

       Received from clerk of Appellate Court, August 8, 1927,

   Mr. Justice Barry

delivered the opinion of the court.

Appellee had a written contract with the school directors to teach their school for seven months. They discharged her at the end of four months and she sued to recover salary for the balance of the term. The trial resulted in a verdict and judgment for $195.

The statute provides that no official business shall be transacted by the directors except at a regular or special meeting; that the clerk shall keep a record of the official acts of the board and on all questions involving the expenditure of money the yeas and nays shall be taken and entered, upon the records of the proceedings of the board. Cahill’s St. ch. 122, 119-120.

There is nothing upon the records of the proceed-. ings of the board to indicate that appellee was employed as a teacher. The directors were D. L. Adkins, Bruce Ellis and Lawrence Britton. The clerk of the board was D. L. Adkins. School opened for the term on the morning of September 4, 1922. On that day Mr. Adkins and Mr. Ellis were working at a neighbor’s and after dinner Mr. Ellis said they had better write a contract for the teacher. Mr. Adkins then wrote the contract and about that time Mr. Britton came along and the three directors signed it.

The record of a regular meeting of a board of education with reference to the employment of a teacher was as follows:

“Motion by Johnson & sec. by Davis to employ J. W. Crawford as our next Principal of Schools at $125 per Mo. Votes 3 Yes & 1 No.” Some time after that meeting a contract was signed by four members of the board at their several places of abode or business and we said that to hold the alleged contract valid Avould do violence to the provisions of the statute. Crawford v. Board of Education Dist. No. 88, 215 Ill. App. 198.

The employment of appellee necessarily involved the expenditure of money and under the statute the directors could only act in that regard by a yea and nay vote taken and entered upon the records of the proceedings of the board. The statute is mandatory and cannot be disregarded. People ex rel. Ballance v. Chicago & E. I. Ry. Co., 314 Ill. 352. The intention of the legislature is clear and explicit and we hold that the directors had no authority to execute the contract in question in the absence of a shoiving that the board had complied with the .statute.

Appellee insists that the validity of the contract is not properly before us because it was admitted in evidence without objection. The contention is not sound. One of the grounds relied upon by appellant for a new trial was that the verdict was contrary to the law and the evidence. The question as to the sufficiency of the evidence to sustain the verdict was thereby preserved and it is our duty to consider it. Yarber v. Chicago & A. Ry. Co., 235 Ill. 589; Anderson v. Karstens, 297 Ill. 76.

Six of the pupils testified on behalf of appellant. One was 15 years old, three were 13, one was 12 and another 11 at the time in question. Marion Adkins says that appellee was asleep from one to three times most every day during school hours and slept from 2 to 10 or 12 minutes on those occasions. He says that he and others threw many paper wads and corn cobs at such times; that they would crawl around on their hands and knees; that some would walk around the room; that some would leave their seats and get in the seats of others and would whisper and talk aloud. Raymond Mulvy’s testimony was much the same and also that he crawled around on the floor. That of Lloyd Adkins was to the same effect. He says he crawled on the floor and threw paper wads; that appellee called some of the children liars, fools, blockheads and wretches.

The testimony of Millard Bixler was much the same in regard to the sleeping, throwing paper wads and crawling on the floor. He says he threw wads and crawled every day and that he heard appellee call one of the boys a liar. His sister testified to the same effect and in addition that sometimes the children would holler “wake up” and appellee was asleep and did not hear them. She says she threw paper wads and that she heard appellee call some little silly fools, blockheads and wretches. Belva Adkins’ testimony was to the same effect and in addition thereto that one of the boys struck matches and some of the children left school and went home while appellee was asleep. She says she threw wads; that appellee - called her a wretch while in class.

Three pupils testified on behalf of appellee. One was 9 and the others 11 years old at the time in question. Clois Britton testified that he never saw appellee asleep during school hours; that he never saw anyone throw paper wads or corn cobs; that he never saw any of the children crawl on the floor or strike matches and never heard appellee call them names. He said he wouldn’t say that the pupils didn’t do those things. He was contradicted by Robert Bean who testified that Britton told him appellee slept in school, and Wood7 row Mulvy testified that Britton told him that he would testify in favor of appellant but his folks wouldn’t- let him.

Eunice Eveland says that she didn’t see or hear any of the things testified to by appellant’s witnesses but said she wouldn’t testify that they didn’t do those things. She didn’t know whether the teacher slept in school and would not say she didn’t. She could not remember what did take place but did remember that she saw some one striking matches. Sybil Eveland said she didn’t see appellee sleeping, but doesn’t know whether she was asleep. She saw some of the children throwing paper wads and saw some on their knees and saw a boy striking matches on the floor.

Appellee testified that she never slept during school hours; that she never saw any of the children throw cobs and didn’t remember seeing Marion Adkins throw paper wads to any extent; that she never saw any of the children crawling on the floor; that she never called a pupil a liar, but admits that she told one of the boys that it looked like he was telling a lie; that she never called one of the girls a wretch and didn’t remember calling one of them a blockhead. The great weight of the evidence is to the effect that she frequently slept in school. If she slept it would not be strange if she failed to see and hear what was going on at such times. We are constrained to hold that the verdict is manifestly against the weight of the evidence. The judgment is reversed and the cause remanded.

Reversed and remanded.


source: Caselaw Access Project

author: Mb. Justice Barry

license: Public Domain

text:
    Mike Murgic, Appellee, v. Fort Dearborn Casualty Underwriters, Appellant.

    1. Appeal and error — waiver of error. Alleged errors not argued are waived and will not be considered.
    2. Pleading — effect of failure to demur to replication. If a defendant fails to demur to replications to Ms pleas and issue is joined thereon, he cannot be heard to say that the replications did not constitute a legal answer to his pleas.
    3. Former adjudication — eonclusweness of facts in different causes of action. Whether the cause of action is the same in two suits between the same parties or not, there is an estoppel by verdict upon the parties to the later suit as to facts properly presented which were determined in the former suit.
    4. Former adjudication — to whom available. Determination as to certain facts in a prior suit is available to either of the parties to a later suit, as circumstances warrant.
    5. Former adjudication — construction of automobile indemnity policy ruled by. The insurer having adopted in a former smt a certain construction of a clause insuring against automobile damage or payment of damages to others for operation of the car, will be bound thereby and by the decision thereon in a later action to recover under the policy for a different cause springing from the same accident.
    6. Insurance — payment of judgment as not precedent to recovering indemnity therefor. Under a policy insuring against payment of damages to" one injured by the insured's automobile, it is not necessary for the insured to prove payment of a judgment recovered against him before starting suit against the insurer for recovery therefor.

      Appeal by defendant from the City Court of East St. Louis; the Hon. W. P. Borders, Judge, presiding. Heard in this court at the March term, 1925.
    Affirmed.
    Opinion filed August 5, 1925.
    Geers & Geers, for appellant.
    Beasley & Zulley, for appellee.

       Received from clerk of Appellate Court, August 8, 1927.

   Mb. Justice Barry

delivered the opinion of the court.

Appellant insured appellee against damage to his car occasioned by a collision with any object and also against any loss by reason of the liability imposed by law upon him for damages on account of bodily injuries accidentally suffered by any person or persons by reason of his ownership or use of said car, but not to exceed $5,000 for injury to or the death of any one person.

By the terms of the policy appellant was not to be liable for loss or damage occurring while the car was used in any race or speed test, or by any person under the age of 16 years, or by any person while under the influence of intoxicating liquor, or while being operated in any manner prohibited by law.

While appellee was driving on June 20, 1922, with Ross Mitchell as his guest the car collided with the railing of a bridge on the public highway and was totally demolished. Mr. Mitchell sustained a broken leg and other personal injuries. Appellee" sued for the loss of his car and recovered a judgment which was affirmed by this court. In that case appellant filed the general issue and special pleas to the effect that appellee was operating his car in a manner prohibited by law and while under the influence of intoxicating liquor; that he was operating his car in a race or speed contest and that the damage thereto was proximately caused thereby; that he did not give appellant immediate notice of the accident.

In that case the court instructed the jury, at appellant’s request, that if they believed from the evidence that appellee was driving his car upon the highway at a greater rate of speed than 30 miles per hour and that said speed was the direct or proximate cause of the accident he could not recover and their verdict should be for appellant; that if they believed from the evidence that appellee was driving his car in any manner prohibited by law which directly or proximately contributed to the accident they should find the issues in favor of appellant.

After the judgment had been affirmed by this court Boss Mitchell sued appellee for the injuries received by him in the same collision and recovered a judgment for $5,000. He charged in his declaration that he was riding with appellee as an invited guest and that appellee so carelessly, negligently and improperly drove his car as to cause the same to collide with the railing of the bridge by means whereof he was violently thrown from the car upon the concrete road, thereby breaking the bones of his left leg near the anide and the same became permanently crippled and injured; that he was otherwise seriously bruised and injured and there was a severe shock to his nervous system.

Appellant, agreed in its policy to defend any suit brought against appellee to enforce a claim, whether groundless or not, for damages suffered, or alleged to have been suffered, on account of bodily injuries or death. . When the summons in the Mitchell suit was served upon appellee he sent it to appellant with a request that.it should look after his defense. Appellant declined to do so, denied liability and informed appellee that it would be necessary for him to look after the ease.

After appellee paid the Mitchell judgment he brought the present suit to recover the amount thereof under the indemnity clause of the insurance poliey.Appellant filed the general issue and three special pleas, the first being that at the time of the accident and injury to Mitchell appellee was operating his car at a greater rate of speed than was reasonable and proper, to wit, at more than 30 miles per hour contrary to the statute; the second, that appellee did not give immediate notice of the accident and injury as required by the policy, and the third, that appellee had not sustained any loss because he had not paid the judgment recovered by Mitchell.

Appellant filed replications in which it averred facts showing that the matters set up as a defense in the first and second special pleas were put in issue in the prior suit between the same parties and determined in favor of appellee and that by reason thereof appellant is es-topped to again relitigate those questions. He also replied that when sued by Mitchell he sent the summons to appellant and requested it to defend him but appellant refused to do so and that by reason thereof it is now estopped to make the defense set up in said pleas. To the third special plea appellee replied that he had satisfied the Mitchell judgment. Appellant filed no demurrer or rejoinder to the replications and the case went to trial without formal issues having been joined.

Upon the trial appellee offered the insurance policy and proved the recovery of the Mitchell judgment and the satisfaction thereof. He also put in evidence the declaration, special pleas, instructions, judgment of the trial and Appellate Courts in the prior suit between the same parties to recover for the loss of appellee’s car. At the close of all the evidence the court directed a verdict in favor of appellee for $5,000' and rendered judgment thereon. While appellant assigned numerous errors upon the record it has argued but two points, viz, that there is no estoppel by verdict and that appellee failed to 'prove that he had paid the Mitchell judgment. Alleged errors not argued are waived and will not be considered.

In the state of the pleadings appellant is in the same position as if it had joined issue on the facts averred in the replications thereby admitting their sufficiency as a legal answer to its pleas. When issue is joined upon replications and decided against a defendant he will not be heard to say that such replications were demurrable and did not constitute a legal answer to his pleas. Raymer v. Modern Brotherhood of America, 157 Ill. App. 510; Chicago G. W. Ry. Co. v. People, 179 Ill. 441-446. Appellant is in the position of having admitted that if the facts averred in the replications are true there is an estoppel by verdict. Those facts were fully established by the evidence.

Appellant contends, in effect, that even though those facts are true yet they are insufficient to constitute an estoppel by verdict. In other words that the replications were demurrable and not a legal answer to the pleas. Under the authorities above cited appellant cannot be heard to say that such is the case. But if the contention were open for our consideration it could not be sustained.

When some specific fact or question has been adjudicated and determined in a former suit, and the same fact or question is again put in issue in a subsequent suit between the same parties, its determination in the former suit, if properly presented and relied on, will be held conclusive upon the parties in the latter suit, without' regard to whether the cause of action is the same in both suits or not. This is known as an estoppel by verdict, and is equally available to a plaintiff in support of his action, when the circumstances ivarrant it, as when offered by a defendant as a matter of defense. Hanna v. Read, 102 Ill. 596; Chicago Title & Trust Co. v. National Storage Co., 260 Ill. 485-493.

Appellant concedes that such is the Iuav but insists that the question at issue and determined in the former suit was whether the unlawful manner in which appellee operated his car, if he did so operate it, was the direct or proximate cause of the accident and injury to the car, while in the suit at bar the question presented by its first special plea is whether' appellee was driving his car at the time in question in a manner prohibited by law. The only law alleged to have been violated by appellee in either case was that in regard to speed. In the suit to recover for the loss of the car appellant conceded by the instructions given at its request that even if appellee was driving his car at an unlawful rate of speed that, of itself, would not bar a recovery by him unless such unlawful speed was the cause of or contributed to the injury.

Appellant now seeks to have the language' of the policy so construed as to relieve it from liability upon proof of the mere fact that the car was being operated at an unlawful rate of speed, even though such speed was not the proximate cause of and did not contribute to the injury of Mr. Mitchell. Having placed the other construction upon the policy in the prior suit appellant should be bound by it in the case at bar. It would be highly unreasonable to hold that the language has an entirely different meaning simply because this suit is brought under the indemnity clause of the insurance contract.

If it had been determined in the former suit that appellee was operating his car in a manner prohibited by law at the time of the collision appellant could have successfully pleaded an estoppel by verdict in the case at bar. That being true we know of no reason why appellant is not estopped to relitigate the same question, especially in view of the construction of the insurance contract adopted by it in the prior suit.

Appellee was insured against any loss by reason of the liability imposed by law upon him for damages on account of bodily injuries accidentally suffered by any person by reason of his ownership or use of his car to the extent of $5,000. Where a policy insured “against loss from liability imposed by law for damages on account of injury or death sustained by a patient while under treatment,” the court said; “When Mrs. Appel was injured the liability was incurred and when the court entered judgment against it (the hospital) the loss on account of such liability was sustained.” Ravenswood Hospital v. Maryland Casualty Co., 280 Ill. 103-111. Under a somewhat similar provision the same conclusion was reached in Nolan v. Illinois Automobile Ins. Exch., 219 Ill. App. 531. We are of the opinion that it was not incumbent upon appellee to prove payment of the Mitchell judgment before this suit was begun. He averred in his declaration and his replication to the third special plea that he had paid the Mitchell judgment on October 30, 1924. The clerk of the city court testified, without objection, that the judgment had been satisfied and that the record showed that it was satisfied on October 30, 1924. This suit was begun on the following day.

As appellant has failed to point out any reversible error the judgment is affirmed.

Affirmed.


author: Mr. Justice Boggs

text:
    County Ditch Drainage and Levee District, Appellee, v. East Side Levee and Sanitary District et al., Appellants.

    1. Drainage — necessity of specific contract to hind district to maintain ditch. A resolution passed by a sanitary drainage district while a Farm Drainage Act district including part of it was being formed,. that the latter would be of benefit to the former and should have a certain outlet, does not constitute the necessary clear contract to bind the sanitary district to construct and maintain such outlet ditch, in view of its taxes being raised for sanitary drainage and not farm drainage and of only about half of the district benefited paying therefor.

      2. Estoppel — applicability to drainage district. Estoppel does not ordinarily apply to municipal corporations of the character of drainage districts for which funds must be raised by general taxation on the real and personal property within its boundaries.
    3. Drainage — resolution favoring ditch as not estopping district. A resolution passed by a sanitary drainage district while part of it with other land was being organized into a Farm Drainage Act district, that the latter should have an outlet ditch, does not estop the former from refusing to expend for the maintenance of such ditch taxes to benefit those in nowise contributing thereto.
    4. Drainage — mandatory injunction as means to compel drainage ditch maintenance. A mandatory injunction cannot be asked to compel a sanitary drainage district to remove growths from the outlet ditch of another district for which obstructions it was in no way responsible as an intentional act.

      5. Drainage — propriety of ordering district without funds to clear ditch in a fixed time. A mandate requiring a sanitary drainage district to clear the outlet ditch of another district within a limited time cannot be sustained where it is neither alleged in the bill nor shown by the proof that the sanitary district has funds for the work.
    Appeal by defendants from the Circuit Court of Madison county; the Hon. Louis Bernreuter, Judge, presiding. Heard in this court at the March term, 1925.,
    Beversed and remanded with directions.
    Opinion filed August 5, 1925.
    Faulkner & Morse, for appellants.
    C. W. Burton, for appellee.

       Received from cleric of Appellate Court, August 8, 1927.

   Mr. Justice Boggs

delivered the opinion of the court.

Appellee, County Ditch Drainage and Levee District of Madison county, filed its bill in the circuit court of said county against appellant, East Side Levee and Sanitary District, and its trustees, praying a mandatory injunction to compel appellants to clean out and place in repair a certain outlet ditch used by appellee. A demurrer filed to said bill was overruled by the court. Appellants electing to stand by their demurrer, a special master was appointed to whom said cause was referred to take the evidence in proof of the allegations of said bill. Said evidence was taken and reported by said special master, and on consideration of the same, the court entered a decree granting the relief prayed. To reverse said decree, this appeal is prosecuted.

Appellee district was organized in 1913 under the Farm Drainage Act, Cahill’s St. ch. 42, 120 et seq. Appellant district was organized in 1908, under an act entitled. “An act to create sanitary districts in certain localities and to drain and protect the same from overflow for sanitary purposes,” in force July 1,1907. Appellee district lies wholly within Madison county, and consists of about 5,100 acres. Appellant district lies within Madison and St. Clair counties, and consists of something over 60,000 acres. About one-half of the acreage of appellee district is included within and forms a part of appellant district.

Said bill, among other things, averred that one of the objects of appellant sanitary district “was and is to straighten, deepen, widen and improve the channel of Caholda Creek through the district, and many miles of said work has been done in the lower and central portion of said district in the vicinity of East St. Louis and south and easterly of Horse Shoe Lake to a point some miles south of the southern limits of the said County Ditch Drainage and Levee District; and the upper part of said Cahokia Creek was turned into the Mississippi River through a diversion channel about two miles north of the Round Pond. '* * * that about one-half of the lands in the said County Ditch Drainage and Levee District are also in the East Side Levee and Sanitary District and from the organization of said Sanitary District have been and are now taxed for the purposes of said district and will continue to be taxed for the purposes of said Sanitary District as well as for the uses and purposes of said County Ditch Drainage and Levee District. * * * that when the petition of the land owners in said drainage district was pending and undetermined in the County Court of Madison county the said East Side Levee and Sanitary District, in order to furnish an outlet for the discharge of the water through the County Ditch from and out of the said drainage district and in order to procure the formation and the order of said court establishing said drainage district, passed certain resolutions and made certain undertakings in and by which it agreed to straighten the- channel of Cahokia Creek, dig a new channel to connect with the southerly end of the County Ditch on the south side of the Toledo, St. Louis & "Western Railroad, commonly known as the Cloverleaf, which resolutions, orders, agreements, plats and plans for said outlet were then and there on, to wit, March 29, duly filed and presented to the County Court, a copy of which are hereto attached and marked ‘Exhibit A,’ and in consideration thereof and the other matters and things then and there presented to said Court, an order was thereafter duly entered on May 19, 1913, organizing said County Ditch Drainage and Levee District.”

Said bill further averred that appellee district was thereupon organized and proceeded at once to dig and construct its main drainage channel for a length of about five miles, said work being completed during the year 1914; that for several years said County Ditch channel operated satisfactorily as a drainage project, but for the five years last preceding the filing of said bill, appellant suffered and permitted said outlet channel to become grown up with weeds and willows and to fill up with sand, debris and silt to such an extent that appellee district had no sufficient outlet for the waters flowing in its said ditch, and that same became filled up by back waters, and its value as a drainage ditch and project was wholly destroyed. Said bill further alleged that from time to time appellee notified appellant district, its trustees and attorneys, of the condition of said outlet, and requested said trustees to clean out and repair said outlet so as to take care of the waters flowing from appellee district, and that they had failed and refused so to do.

The resolution made a part of said bill is as follows:

“Whereas, Various property owners and taxpayers owning land within the East Side Levee and Sanitary District have filed a petition in the County Court of Madison County, Illinois, praying for the origination of a drainage district under the name of the County Ditch Levee and Drainage District; and

“Whereas, It is proposed by the plans of said proposed drainage district, among other things, to dredge a portion of Caholda Creek from the north in the vicinity of the present outlet of the County Ditch to the south right-of-way line of the Toledo, St. Louis & Western Railway; and

“Whereas, It is a part of the general plan of sanitation and drainage of the East Side Levee and Sanitary District to straighten and deepen the said Cahokia Creek wherever necessary; and

“Whereas, The work of the proposed drainage district above mentioned is in accord with the general scheme of sanitation and drainage of said sanitary district, and will relieve said sanitary district from a large expense; and

“Whereas, The work of the said proposed drainage district will be unavailing for the purposes intended unless additional work is done from the point where the said drainage district and at the said south right-of-way of said Toledo, St. Louis & Western Railroad; and

“Whereas, The chief engineer of the said East Side Levee and Sanitary District has heretofore prepared plans showing the work necessary to be done at said place; now,

“Therefore, it is hereby ordered: That when the County Court of Madison County enters an order completing the organization of the said County Ditch Levee and Drainage District, that the president and attorneys of the East Side Levee and Sanitary District proceed at once to secure the necessary right-of-way for the work shown on the plans of the said chief engineer above referred to, copy of which said plans are hereto attached, and marked “Exhibit A,” and made a part hereof, and that the said chief engineer, upon the securing of said right-of-way, employ a sufficient force to do the work necessary to be done according to said plans and immediately proceed with said work.

“This order shall be in full force and effect from and after its passage and approval.”

The court on the hearing on said bill, after making certain findings, entered an order requiring appellant district, “within one hundred and twenty days from the date of this decree, to remove from said outlet channel from the southern end of the ditch of the County Ditch Drainage and Levee District at the Toledo, St. Louis & Western Railroad tracks for a distance, of 2,284 feet south from the said point all the silt, dirt, weeds, willows and bushes deposited or growing therein since its construction down to a level of 419 Memphis datum, and to maintain the same in accordance with the original resolution and plan, and to keep the same in reasonable repair and condition as originally constructed as an outlet channel for the waters of said County Ditch, and to restore said outlet channel to its condition, as originally dug and constructed.”

The position taken by counsel for appellee, as we understand it, is that appellant district, through its trustees, having passed said resolution pending the .organization of appellee district, in and by which said resolution it was recited that the construction of appellee drainage district would be of benefit to appellant district and a saving to said district of certain of its funds, and that the work of appellee district would not be effective without the construction of the outlet in question, that therefore appellant district bound itself to construct said outlet and to maintain the same.

We are of the opinion and hold that the position of counsel for appellee in this connection is not sound. The taxes raised for the construction and maintenance of appellant district’s levees and ditches are levied and extended as general taxes are levied and extended, while it is conceded and the record discloses that only about one-half of the lands in appellee district are included within appellant sanitary district. It therefore follows that only those lands in appellee district which are included within appellant district are taxed in any way for the work in said sanitary district. In other words, if the decree of the trial court should stand, it would compel the expenditure of the funds of the sanitary district, raised by general taxes levied on all of the lands included within the boundaries of said district, to clean out and repair said outlet for the benefit of appellee district, when only about one-half of such lands were being in any way taxed therefor. It also appears from the record that the taxes raised by appellant district are for sanitary and levee purposes, whereas appellee district was organized for drainage purposes under the Farm Drainage Act, Cahill’s St. ch. 42, ft 120 et seq. So far as the record discloses, the benefits to be derived from the cleaning out and repairing of said outlet may be largely confined to the lands included in appellee district, while the expense for such work would be paid wholly out of the funds of said sanitary district.

It would appear from the authorities that before appellee district could compel the construction or the maintenance of an outlet ditch by appellant, that it must have entered into a definite and specific contract to that effect. (Clear Creek Drainage & Levee Dist. v. St. Louis, I. M. & S. R. Co., 264 Ill. 640; Harmon v. Village of Arthur, 309 Ill. 95.)

In Harmon v. Village of Arthur, supra, there was a contract of some character between said village and the drainage commissioners of the drainage district into which the sewers of said village emptied. The court at page 101 in discussing this question says:

“It is clear from the written agreement between the village authorities and the drainage commissioners for making this local improvement, that no definite agreement in this proceeding, and possibly not in any legal proceeding in any court, can be enforced requiring action as to the deepening and widening of the ditches of the drainage district for the purpose of giving an outlet for this storm-sewer system.”

While said bill alleges an agreement on the part of appellant district to construct said outlet, no proof was made in support of said allegation, and the resolution attached to said bill clearly discloses that no such agreement was made. From the argument of counsel for appellee, both in his written brief and his oral argument, it would appear, inferentially at least, that he is insisting that appellant district and its trustees, by reason of the passage of said resolution during the pendency of the proceeding had in the county court for the organization of appellee district, are estopped from denying the relief prayed for in appellee’s bill.

Appellant district is a municipal corporation, a creature of a statute which governs its formation and proceedings. The law of estoppel does not ordinarily apply to corporations of this character where the funds for its operation must be raised by general taxation on the real and personal property included within its boundaries. (Washingtonian Home of Chicago v. City of Chicago, 157 Ill. 414, 10 R. C. L. p. 706, sec. 34.) Certainly it must be held that appellant district is not estopped by the resolution in question, where the record shows that it would be expending the funds of said district for the benefit of parties and lands that were in no wise being taxed for said benefits, and that were in no way contributing toward the expense of such improvement.

Lastly it is contended by counsel for appellant that a mandatory injunction will not lie in this character of case, even though appellee were entitled to the relief prayed.

In answer to this contention and in support of their theory that a mandatory injunction will lie, counsel for appellee cite Town of Nameoki v. Buenger, 275 Ill. 423, and Pradelt v. Lewis, 297 Ill. 374. Neither of these cases in our judgment, sustains the contention of appellee. In Town of Nameoki v. Buenger, supra, the question passed on and determined by the court was with reference to whether or not a mandatory injunction would lie to compel the removal of an embankment constructed by a party to hinder or obstruct the natural flow of water from the dominant to the servient heritage, and the court held that in such a case a mandatory injunction would lie. That is an entirely different situation from the one here involved. It is not here contended that the trustees of appellant district have wrongfully done any overt act obstructing the natural flow of water from the dominant to the servient heritage notwithstanding they are ordered to clean out and repair an outlet ditch which has become filled up by natural accretions, the growth of tree, etc. These are matters with which appellant district had nothing whatever to do, as an overt or intentional act. In the case of Pradelt v. Lewis, supra, the court had before it the matter of compelling an adjoining landowner to straighten or remove a certain wall which was leaning over and endangering the property of the adjacent landowner. There is no question but that in a case of that character a mandatory injunction would lie.

It should be further observed in this case that it is not alleged in said bill, nor does it appear in the proofs, that said sanitary district has funds with which to perform this work, or to make these repairs, yet the mandate of the court is that said work be done and performed within 120 days from, the date of said writ. Certainly an order of this kind cannot be sustained on the record.

The judgment and decree of the trial court will therefore be reversed and the cause will be remanded, with directions to dismiss said bill for want of equity.

Reversed and remanded with directions.


text:
    J. R. Kessinger (Wood River Sand Company), Appellee, v. Standard Oil Company, Indiana, Appellant.

    1. Navigable waters — right to. take sand from. No one has a right to take sand from a navigable stream without first having obtained the consent of the Secretary of War.
    2. Actions and suits — illegal act as basis of. Public policy demands that no court lend its aid to one who founds his cause of action upon an immoral or illegal act.
    3. Navigable waters — illegal acts by both parties to action. The defendant to an action for ruining plaintiff’s business of taking sand from a navigable river is not prevented from taking advantage of the fact that the taking, by plaintiff was illegal by the fact that defendant violated the same law by throwing silt and sand into the river.
    4. Estoppel — purchase of commodity illegally obtained. Defendant to an action for ruining plaintiff’s business of taking sand from a navigable river without consent of the Secretary of War is not estopped from asserting such illegality by his purchase of sand from the plaintiff.
    5. Navigable waters — rights of public and of riparian owners. Riparian proprietors on a navigable stream own the land to the center thereof and the only right of the public therein is an easement for navigation purposes.
    6. Navigable waters — right of riparian to enjoin trespass on bed of. As against one other than the Federal government a bill by riparian owner will lie to enjoin the making of excavations and removal of sand from the bed of a navigable stream adjoining his premises.

      7. Navigable waters — right of riparian owner to take sand from. A riparian owner has no property right to take sand from the bed of a navigable stream adjoining his premises which, in the absence of permission from the Secretary of War, will allow him to recover damages from one who interferes with his taking the sand.
    Appeal by defendant from the Circuit Court of Madison county; the Hon. George A. Crow, Judge, presiding. Heard in this court at the March term, 1925.
    Reversed.
    Opinion filed August 5, 1925.
    Thos. Williamson, for appellant.
    C. W. Burton, for appellee.

       Received from clerk of Appellate Court, August 8, 1927.

   Mr. Justice Boggs

delivered the opinion of the court.

Appellee occupied a tract of land on the banks of the Mississippi River, as tenant from month to month under a lease from the Roxana Oil Company, and was engaged in excavating and removing sand from the Mississippi River. The sand was brought in in barges, and was unloaded by means of a clamshell bucket operated by a derrick and hoist, and dumped into a chute, from which it was loaded into wagons and delivered for commercial purposes. For some three years prior to the filing of this suit herein, appellee had been conducting an apparently profitable business, numbering among his customers appellant oil company.

Appellant owns land on both sides of Wood River, a stream emptying into the Mississippi River about three-fourths of a mile above appellee’s plant. In the summer of 1922, appellant dredged and cleaned out the channel of this stream, and it is claimed by appellee that in so doing large quantities of sand, mud, silt and rock were discharged into the Mississippi River, and flowed downstream, filling up the river above appellee’s plant so as to shut off access thereto, rendering the same useless, and that, by reason thereof, he was, on August 27, 1922, forced to close his plant and thereby suffered heavy damages by reason of the loss of profits from said business. Appellee filed suit in the circuit court of'Madison county against appellant to recover for the damages so claimed to have been sustained by him.

The declaration consisted of one count which averred, among other things, the renting of said premises,-the construction of said plant, the size and profitable character of the business built up and carried on by appellee, and the destruction of said business as above set forth, alleging damages, etc.

To said declaration, appellant filed a plea of the general issue and five special pleas. The first special plea denied lawful possession of said harbor on the part of appellee; the second denied that appellee possessed or had any riparian rights in the Mississippi River; the third denied that appellee owned, possessed or controlled any riparian rights in the Mississippi River; the fourth denied appellee’s right to remove sand or gravel from said river; while the fifth averred that appellee did not have permission from the Secretary of War, or any other legal authority, to make such removal.11

A demurrer was sustained to the fourth and fifth pleas, and the cause went to trial upon the issues made by the first, second and third pleas. A verdict was rendered in favor of appellee for the sum of $6,000, and judgment having been rendered thereon, appellant prosecutes this appeal to reverse the same.

The only evidence offered by appellee on the question of his alleged damages was based on his charge that his business of taking sand from the Mississippi River for commercial purposes had been practically destroyed by the action of the appellant as above set forth. For the purposes of this opinion, it will be assumed that the evidence supports the contention of appellee as to the alleged destruction of his business. Therefore, the principal question arising on this record is as to whether a recovery can he had upon an action so grounded.

It is first contended by appellant that appellee had no riparian rights by virtue of his lease; that the owner of the fee alone has such rights. In the view we hold of this case on the merits, it will not be necessary for us to pass on this question.

The record discloses that appellee did not limit the taking of sand to that part of the river adjoining the land covered by his lease, but took the same from various points in the river, both on the Illinois and the Missouri side. The Mississippi River being a navigable stream, appellee had no right to excavate or take sand therefrom, without first having obtained the consent of the Secretary of War so to do. 30 U. S. Statutes at Large, page 1151, provides, among other things:

“It shall not be lawful to excavate or fill, or in any manner to alter, or modify, the course, location, condition, or capacity of any port, roadstead, haveii, harbor, canal, lake, harbor of refuge, or enclosure within the limits of any backwater, or of the channel of any navigable river of the United States unless the work has been recommended by the Chief of Engineers and authorized by the Secretary of War prior to beginning the same.”

Appellee practically concedes that if the question were being raised by the Federal government that this would be true, but insists that appellant is in no position to raise the question; that it can only be raised by the government. The Federal statutes provide a penalty for the violation of the foregoing provision. 30 U. S. Statutes at Large, page 1153. Appellee was clearly violating the law in excavating and taking sand from said river, as it is conceded in the record that he did not have the consent of the Secretary of War so to do.

It is a well-established principle of public policy that no court will lend its aid to a man who founds his cause of action upon an immoral or illegal act. Harris v. Hatfield, 71 Ill. 298; Fry v. Chicago, B. & Q. R. Co., 73 Ill. 399; Gilmore v. Fuller, 198 Ill. 130-139; Haumesser v. Central Brewing Co., 158 Ill. App. 648-651; Fristoe v. Boedeker, 194 Ill. App. 52; Fogelsong v. Peoria Ry. Terminal Co., 203 Ill. App. 546-553; Hall v. Corcoran, 107 Mass. 253. See also Chicago W. D. R. Co. v. Lambert, 119 Ill. 255.

In Hall v. Corcoran, supra, the Supreme Court of Massachusetts, in discussing this question, says:

“The general principle is undoubted, that courts of justice will not assist a person who has participated in a transaction forbidden by statute to assert rights growing out of it, or to relieve himself from the consequences of his own illegal act. Whether the form of the action is in contract or in tort, the test in each case is, whether, when all the facts are disclosed, the antion appears to be founded in a violation of law, in which the plaintiff has taken part.” Citing Way v. Foster, 1 Allen (Mass.) 408; Smith v. Boston & M. R., 120 Mass. 490; Wallace v. Cannon, 39 Ga. 199; Scott v. Duffy, 2 Harr. (Pa.) 20; Devor v. Knauer, 84 Ill. App. 184; Holt v. Green, 73 Pa. St. 198; Degroot v. VanDuzer, 20 Wend. (N. Y.) 406; Coppell v. Hall, 7 Wall. (U. S.) 558.

The same doctrine is laid down in Beach on Contributory Negligence (3d. Ed.) sec. 47, where the author says: “When the plaintiff is obliged to lay the foundation of his action in his own violation of the law, he cannot recover. And when his illegal act also contributes to produce the injury of which he complains, he has no action, unless the defendant acted wantonly.”

It is contended, by appellee that appellant is not in a position to take advantage of the fact that appellee may have violated the law in taking sand from said river without having obtained the required consent, for the reason that appellant also violated the same law by throwing silt, sand, etc., into said river. There is no merit in this contention, as appellant is not suing. If appellant were bringing suit, such defense would be good, but in this case it does not avail appellee when, as plaintiff, he is founding his action upon a violation of the law. Gilmore v. Fuller, supra.

It is further contended by counsel for appellee that appellant is not in a position to make the defense that appellee did not have an enforceable right to take sand from said river for commercial purposes, for the reason that appellant was a customer of appellee, and had contracted with him from time to time for large quantities of such sand — in other words, that the making of such purchases by appellant would work an estoppel. No authority was cited by appellee sustaining this contention, and it would follow from the reasoning of the authorities above cited that no such estoppel could arise in a case where the alleged causp of action was grounded upon the doing of an illegal act.

It is the law of this State that riparian proprietors on a navigable stream own the lands to the center thereof, and the only right the public has therein is an easement for the purpose of navigation. Washington Ioe Co. v. Shortall, 101 Ill. 46-52. See also Middleton v. Pritchard, 3 Scam. (Ill.) 510; City of Chicago v. Laflin, 49 Ill. 172; City of Chicago v. McGinn, 51 Ill. 266; Braxon v. Bressler, 64 Ill. 488; Houck v. Yates, 82 Ill. 179; Revell v. People, 177 Ill. 468-488; Cobb v. Commissioners of Lincoln Park, 202 Ill. 427; Albany R. Bridge Co. v. People ex rel. Matthews, 197 Ill. 199-204; Archer v. Greenville Sand & Gravel Co., 233 U. S. 60, 58 L. Ed. 850.

The law further is that while a riparian owner may not have a right as against the Federal government to make excavations and remove sand from the bed of the stream adjoining his premises, yet as against a third party, a bill will lie in his favor against such third party, enjoining the making of such excavations. Archer v. Greenville Sand & Gravel Co., supra. In discussing this question the court at page 69 says:

“Plaintiff owning the land to the middle of the stream, it would seem to follow that she must have such property in its soil as to resist a trespasser upon it, such as the bill alleges the Gravel Company to be. The right, however, is denied, and it is said that she is powerless to prevent the Gravel Company from dredging in front of her land because, under the laws of the United States, she herself could not do so without permission from the Secretary of War. (Citing statute requiring such permission from the Secretary of War.) Whether if she took gravel from the front of her land she would incur the condemnation of this act it is not necessary to decide. She certainly had such an interest in the conditions to prevent one without right from disturbing them. We cannot help observing that the Gravel Company by its conduct has given an interpretation of the act against its contention, unless, indeed, it wishes to confess itself a violator of public law in order to escape responsibility for a private injury.

“The Gravel Company tries to avoid this situation, saying that a violation of the law cannot be imputed to it because it cannot be assumed that the ‘extensive and continued dredging, as alleged in the bill, affecting necessarily the channel of the river, would be undertaken without proper authorization and authority, or that the proper officers of the government would have allowed these operations to continue.’ The supposition is easily answered. There is no scheme of improvement of navigation suggested by the bill, and it cannot be supposed that the Secretary of War would authorize the Gravel Company to take material from the river for commercial purpose, and the bill alleges such to be the purpose. Besides, if the Gravel Company had authority from the Secretary of War, it is a matter of defense to be pleaded.”

This language certainly seems very apt and appropriate in connection with the case at bar. In Braxon v. Bressler, supra, suit was instituted by appellant against appellees to recover for stone taken from the bed of the river adjoining appellee’s premises. The court held that Rock River was a navigable stream; that appellee as riparian owner had the title to the center of the stream, and was entitled to recover in an action of trespass against appellant for the stone taken therefrom.

In view of the holdings of the above-mentioned authorities, it follows as a matter of law that appellee cannot recover substantial damages against appellant, when as a part of his case he makes proof that he was taking sand from the bed of the Mississippi River without the consent of the Secretary of War, thereby violating a Federal statute. Appellee had no property right in the taking of sand from the Mississippi River, and it therefore follows that the trial court erred in sustaining the demurrer to appellant’s fourth and fifth special pleas.

Other errors were assigned on the record, but in our view of the case as herein expressed, it will not be necessary to discuss the same. Appellee having failed to establish a right to substantial damages, the judgment must be reversed.

Reversed.


author: Mr. Justice Barry

text:
    James Higler, Appellee, v. City of Cairo, Appellant.

    1. Municipal corporations — term of office of chief of police. A chief of police of a, city under a commission form of government holds office at the pleasure of the appointing power and is subject to removal at any time although he is appointed annually and presumably for a period of one year.

      2. Municipal corporations — salary of chief of police. The salary of a chief of police of a city under a commission form of government can be raised, lowered or entirely revoked at any time.
    3. Municipal corporations — effect of acquiescence of chief of police in nonpayment for service in collecting tax. A chief of police of a city under a commission form of government who has been given the duty by ordinance to collect a dog tax and to receive a percentage of the amount collected, will not be permitted to recover any part of the amount collected unless the law clearly gives him the right, where the city council in the year following the dog tax ordinance refused to allow him any part of the tax and be acquiesced in that decision for six years until he was about to resign.
    4. Municipal corporations — right of chief of police to payment for collecting tax. A chief of police of a city under a commission form of "government who has been given the duty by ordinance to collect a dog tax and to receive a percentage of the amount collected, is not entitled to recover any part of the tax collected where no annual appropriation ordinance has made any provision for payment.
    Appeal by defendant from the Circuit Court of Alexander county; the Hon. William N. Butler, Judge, presiding. Heard in this court at the March term, 1925.
    Reversed.
    Opinion filed August 15, 1925.
    Dewey & Cummins and W. B. Warder, for appellant.
    James Lingle, for appellee.

       Received from clerk of Appellate Court, August 8, 1927.

   Mr. Justice Barry

delivered the opinion of the court.

Appellant adopted the commission form of government in 1913, and Walter H. Wood has been its mayor from thence hitherto. Appellee served as chief of police from May 1,1916, until he resigned on April 28, 1923, having been reappointed every year. When first appointed his salary was fixed by ordinance at $100 per month and the same ivas afterwards increased to $115. An ordinance ivas adopted in October, 1916, which made it the duty of the chief of police to collect the dog tax and gave him 25 per cent of the amount collected and paid into the city treasury. Since he resigned he brought this suit to recover 25 per cent of the dog tax and upon a trial before the court, without a jury, recovered a judgment for $1,130.50.

Mayor Wood says that soon after the passage of said ordinance he and appellee agreed that the latter should be reimbursed for all expenses incurred by him in collecting and killing dogs, but that he was not to receive any portion of the dog tax. Appellee admits .that in 1917 the Mayor gave him to understand that he1 would not be paid any part of the said tax, but he says that he never agreed to waive his claim thereto. During his service as chief of police appellee was paid his regular salary and was fully reimbursed for all of the expenses incurred in catching and killing dogs.

In January, 1917, appellee presented a bill of $13.50 for a portion of the dog tax and the same was allowed by the city council on February 5, 1917, while the mayor was absent from the city. Appellee presented another bill in March, 1917, and when the same came up for consideration Mayor Wood informed the council of the arrangement he had made with appellee and the bill was disallowed. The bill was then returned to appellee with an explanation as to why payment was refused. Appellee made no further claim for any portion of the dog tax until he presented a bill on February 21, 1923. The mayor then talked to him about that bill and it was withdrawn.

The term of the office of chief of police-of a city under a commission form of government is not fixed by the constitution or by any statute. The chief of police may be removed from office at any time. Cahill’s St. ch. 24, fifí 348-352. While appellee was appointed annually and presumably for a period of one year, yet, he simply held the office during the pleasure of the appointing power and his salary could be raised, lowered or entirely revoked at any time without violating any constitutional provision. Quernheim v. Asselmeier, 296 Ill. 494. In fact the statute provides that the council may, by resolution or otherwise, prescribe, limit or change the compensation of the chief of police. Cahill’s St. ch. 24, fl 348.

Appellee held the office during the pleasure of the appointing power and was subject to removal at anytime. The city council was expressly authorized to limit or change his compensation by resolution, or otherwise. It limited and changed his compensation in 1917 when it refused to allow him any part of the dog tax and he admits that Mayor Wood then gave him to understand that he would not be paid any part of that tax. Appellee acquiesced in that decision and for six years thereafter accepted his regular monthly salary without making any further claim to the dog tax. He did not bring the question up again until he was about ready to resign. ■ It would be highly unjust to allow him to recover under the circumstances, and he should not be permitted to do so unless the law clearly gives him the right.

A county superintendent of schools was entitled, under the law, to $5 per day, but presented his claim for $4 per day, and the same was paid. He after-wards sued for the balance but the court held that he was not entitled thereto. McHaney v. County of Marion, 77 Ill. 488. A man was appointed by a city council as pond master at a fixed salary. He was also appointed a special policeman as an incident to the first office- and was given to understand that he would receive no pay in the latter capacity. It was held that he was not entitled to recover for services as a policeman. City of Decatur v. Vermillion, 77 Ill. 315. Cahill’s St. ch. 24, If 92, requires city councils, within the first quarter of each fiscal year, to pass an ordinance, terméd the annual appropriation bill, appropriating such sums as may be deemed necessary to defray all necessary expenses and liabilities of the corporation for the year. That ordinance is required to specify the object and purposes for which the appropriations are made and the amount appropriated for each object or purposes “No further appropriations shall be made at any other time within such fiscal year,” unless under conditions not here involved. Paragraph 94, Cahill’s St. ch. 24, of the said act prohibits the council, or any officer, or department of a corporation, from adding to the corporate expenditures, in any one year, anything above the amount provided for in the annual appropriation bill of that year, except as is therein specially provided. Paragraph 95, Cahill’s St. ch. 24, of the said act provides that no expenses shall be incurred by any officer or department of the corporation unless an appropriation shall have been previously, made concerning such expenses. Paragraph 102, Cahill’s St. ch. 24, requires that all warrants drawn upon the city treasurer shall state the particular fund or appropriation to which the same is chargeable.

If appellant had desired to appropriate 25 per cent of the dog tax as a part payment of appellee’s compensation as chief of police, it had the power and authority to do so. McGovern v. City of Chicago, 281 Ill. 264. It could only do so, however, by inserting a provision to that effect in the annual appropriation ordinance. People v. Sergel, 269 Ill. 619. So far as the record shows there was no appropriation made at any time for the payment of appellee’s compensation other than his regular monthly salary. That being true, he failed to show that he was entitled to recover. Fitzsimmons v. O’Neill, 214 Ill. 494; May v. City of Chicago, 222 Ill. 595; Gathemann v. City of Chicago, 263 Ill. 292; De Kam v. City of Streator, 316 Ill. 123. Appellee was not entitled to recover, as a matter of law, under the undisputed facts, and the judgment is reversed.

Reversed.


author: Mr. Presiding Justice Barry

text:
    The People of the State of Illinois, Defendant in Error, v. George Mosley, Plaintiff in Error.

    1. Intoxicating liquors — necessity for negative averments in information. It is not necessary that an information charging unlawful possession of liquor in violation of the statute should aver such a state of facts as will negative a lawful possession.
    2. Jury — waiver of objections to drawing or selecting. Objection that the jury in a criminal case was not drawn or selected in the statutory manner will not be considered where the jury was secured before the accused had exhausted his peremptory challenges.
    3. Criminal procedure — conflict between placita and bill of exceptions. A judgment of conviction will not be reversed because the placita shows one judge presided at the opening day of the term while the bill of exceptions recites that the case was tried before another judge.
    4. Criminal procedure — judicial notice as to who is county judge. The Appellate Division will take judicial notice that the judge trying a prosecution for illegal possession of intoxicating liquor was the county judge of a certain county.
    5. Criminal procedure — failure to object to testimony of officers making illegal search and seizure. Objection to the testimony of officers who searched the premises of one accused of unlawful possession of intoxicating liquor, on the ground that the search and seizure was without a search warrant, should be raised before the trial to be available on review.
    6. Intoxicating liquors — sufficiency of evidence of illegal possession. A verdict of conviction for illegal possession of intoxicating liquor will not be disturbed on review as not being supported by the evidence that the liquor was found in the accused’s possession in fruit jars, that it was “white mule” and that it contained more than 21 per cent of grain alcohol by volume, although the accused testified that he purchased several gallons of whisky shortly before the saloons went out of business, that the same had been used only by himself and family and bona fide guests, and that the liquor was put in fruit jars because the original jugs were too tall for the shelf.
    Error by defendant to the County Court of Saline county; the Hon. A. D. Morgan, Judge, presiding. Heard in this court at the October term, 1923.
    Affirmed.
    Opinion filed November 9, 1923.

      Oral P. Tuttle, for plaintiff in error.
    Charles H. Thompson, State’s Attorney, for defendant in error.

       Received from clerk of Appellate Court, September 8, 1927.

   Mr. Presiding Justice Barry

delivered the opinion of the court.

Plaintiff in error was tried and convicted under an information which charged that on March 31, 1923, at and within the county of Saline in the State of Illinois, he ‘ ‘ unlawfully did then and there possess intoxicating liquors in violation of the Illinois Prohibition Act, contrary to the statute in such case made and provided, and against the peace and dignity of the same People of the State of Illinois.”

It is earnestly insisted that as the information does not aver that possession of the liquor was not intended for use in violation of the act, Cahill’s St. ch. 43, or that it was unlawfully acquired or was held in violation of some express provision of the statute, no criminal offense is charged and the court should have sustained the motion to quash. In other words it is contended that inasmuch as the possession of liquor may be lawful it is incumbent on the prosecutor to aver, in his information, such a state of facts as will negative a lawful possession on the part of the defendant ; that it is not sufficient to aver that the defendant unlawfully possessed the liquor in violation of the act.

Section 3 of the act, Cahill’s St. ch. 43, if 3, provides that no person shall possess any intoxicating liquor except as authorized in the act. Section 39, Cahill’s St. ch. 43, if 40, expressly provides that it shall not be necessary in any information or indictment to include any defensive negative averments, but it shall be sufficient to state that the act complained of was then and there prohibited and unlawful. The act complained of in this case is the possession of intoxicating liquor in violation of the statute. Every possession of such liquor is prohibited except it be authorized by the act. The information charges that the possession was unlawful and in violation of the act and meets the requirements of said section 39.

Sections 3 and 39 of the Illinois Prohibition Act are the same as sections 3 and 32 of the National Act. The Federal Courts are almost unanimous in holding that it is not necessary to include defensive negative averments in an indictment or information. The following are decisions of the Circuit Court of Appeals. Cabiale v. United States, 276 Fed. 769; Herine v. United States, 276 Fed. 806; Massey v. United States, 281 Fed. 293; Millich v. United States, 282 Fed. 604; Rulovitch v. United States, 286 Fed. 315. In the Rulovitch case, supra, the Supreme Court denied a writ of certiorari. There are other cases both State and Federal to the same effect.

It is argued that the jury was not drawn or selected in the manner required by the statute and that the cause should be reversed because the court overruled a motion to quash the venire and the return thereon. The record shows that a jury was secured to try the case before the plaintiff in error had exhausted his peremptory challenges. That being true he has no ground for complaint in that regard. People v. Gray, 251 Ill. 431; People v. Brown, 150 Ill. App. 365. We would not be warranted in assuming that he was compelled to accept any juror who was not fair and impartial. The fair inference is that the jury was satisfactory or he would not have accepted them so long as he had not exhausted his challenges.

Plaintiff in error contends that the judgment should be reversed because the placita shows that Judge Abney presided at the opening of the May term of court, whereas the bill of exceptions recites that the case was tried before Judge Morgan. This contention is based upon Stubbings v. City of Evanston, 156 Ill. 338, where it appeared from the records that one person was sole presiding judge of the court and that another person presided during the trial. We will take judicial notice that Judge Morgan is the judge of the county court of Williamson county. The ease clearly falls within Fisher v. City of Chicago, 213 Ill. 268, and is not controlled by the Stubbings case, supra.

It is argued that the officers searched the premises of plaintiff in error and seized the liquor in question without a search warrant and that by reason thereof the court should have excluded the testimony of the officers who made the search. No such objection was raised in the trial court. To be of any avail objections of that character must he raised before the trial. People v. Brocamp, 307 Ill. 448.

It is finally contended that the verdict is not supported by the evidence. Plaintiff in error admitted that the liquor was found in his possession. The witness described it as “white mule” and a chemist testified that it contained more than 21 per cent of grain alcohol by volume. When found, the liquor was in fruit jars. Plaintiff in error testified that he purchased several gallons of whisky at a saloon in Herrin, Illinois, a day or two before saloons went out of business ; that the same had been used only by himself and family and bona fide guests; that the original jugs in which he bought the whisky were too tall for the cupboard shelf and he had put the liquor in fruit jars. Under the evidence and section 40 of the act, Cahill’s St. ch. 43, If 41, it was clearly a question of fact for the jury. People v. Beck, 305 Ill. 593. The jury saw and heard the witnesses and was in a much better position to judge the credit to he given their testimony than we are. We are not able to say, from a consideration of all the evidence, that there is clearly a reasonable and well-founded doubt of the guilt of the accused, and so we are not warranted to interfere with the verdict of the jury on the ground that the evidence does not support it. People v. McCabe, 306 Ill. 183. The judgment is affirmed.

Affirmed.


author: Mr. Presiding Justice Jett

text:
    Edwin Fromm, Appellee, v. Herman Seyller, Appellant.
    Gen. No. 7,717.
    1. Executions — what insolvent debtor must show to secure release from body execution. A person in custody upon a writ of capias ad satisfaciendum after judgment in a tort action who petitions for release under the Insolvent Debtors’ Act must show that malice was not the gist of the action.

      •2. Executions — determination whether malice was gist of action m seeking release from body execution. In determining whether or not malice was the gist of an action for tort in which judgment was entered against the defendant and from custody under which he seeks release through the Insolvent Debtors’ Act, the charge as laid in the declaration; the construction placed on the language thereof, and the finding of the jury thereon, must necessarily be considered.
    3. Executions — what constitutes malicious injury within the meaning of the Insolvent Debtors’ Act, An injury, made the basis of a tort action, is malicious in the sense that one held as liable on judgment therein and attempting to secure release through the Insolvent Debtors’ Act has committed it wantonly, wilfully, without cause, with knowledge and consciousness that injury must follow the act done.
    4. Executions — declaration and verdict im tort action for personal injury showing malice as the gist of the action. Under a declaration which charges a defendant with wilfully and wantonly driving his automobile to plaintiff’s injury, and a verdict thereon which finds him liable for wanton and wilful negligence, held malice was the gist of the action, so that defendant could not secure release through the Insolvent Debtors’ Act from imprisonment under the judgment.
    5. ' Executions — what intent is not essential to show malice that will forbid release under the Insolvent Debtors’ Act. The malice which is meant by Cahill’s St. eh. 72, If 5, providing an insolvent debtor may secure release from imprisonment on a judgment in an action of which malice was not the gist, does not necessarily include the intent to malignantly produce an evil on a certain party, but signifies only the doing of an act which defendant knew was liable to injure others, regardless of consequence.
    Appeal by defendant from the County Court of Peoria county; the Hon. Glen J. Cameron, Judge, presiding. Heard in this court at the October term, 1926.
    Reversed and remanded.
    Opinion filed August 8, 1927.

      Wallace J. Black, E. E. G-ale and Clyde M. West, for appellant.
    Victor P. Michel, for appellee.
   Mr. Presiding Justice Jett

delivered the opinion of the court.

This is an appeal prosecuted by Herman Seyller, appellant, from an order in a proceeding in the county court of Peoria county under the Insolvent Debtors’ Act, Cahill’s St. ch. 72, discharging Edwin Fromm, the petitioner. Herman Seyller, the respondent, obtained a judgment in the circuit court of Peoria county against the petitioner in the sum of $5,000, in an action for damages in which the respondent alleged in the third count of his declaration that the plaintiff on, to wit, the 16th day of February, A. D. 1925, at the hour of, to wit, 12.05 a. m., in the city of Peoria, county of Peoria and State of Illinois, was lawfully traversing and walking across a certain street or public thoroughfare in the city of Peoria aforesaid, to wit, a certain street known as South Adams Street, which extends from Main Street in a southerly direction past Oregon Street. And the defendant was then and there possessed of a certain automobile, to wit, a Studebaker, operated by him upon said South Adams Street and being driven by him in a southerly direction. And the plaintiff avers that while he was so traversing and walking across the said South Adams Street, at or near where the same intersects with one Garden Street in said city, and was using due care and caution and observing a proper regard for his own safety, the defendant did then and there wantonly, carelessly and negligently, and in utter disregard for the safety of others, drive and operate his automobile along and upon said street at the place aforesaid at a high and dangerous rate of speed, to wit, 40 to 50 miles per hour, in violation of the law of Illinois, and that said defendant then and there wantonly and wilfully operated said car at such high and dangerous rate of speed and wantonly and wilfully disregarded the safety of the plaintiff and others using said street, and by reason of the wilful, careless and wanton negligence of the said defendant, the automobile operated by him struck the plaintiff and threw him with great force upon the street, and by means thereof the plaintiff was then and there bruised, hurt, wounded and became and was sick, sore, lame and disordered and so remained and continued for a long space of time, to wit, hitherto, during all of which time the plaintiff has undergone great pain and suffering, and because and by reason of said injury the plaintiff became and is permanently injured and maimed, etc.

There were three counts in the declaration. The first and second were withdrawn from the consideration of the jury and the case went to the jury upon the third count only. The jury found the defendant guilty and returned the following verdict: .

“We the jury find the defendant guilty and find the defendant guilty of wilful and wanton negligence and assess the plaintiff’s damages at $5,000.00.”

Judgment was rendered upon the verdict of the jury. The petitioner failed to pay the judgment and was arrested under a writ of capias ad satisfaciendum which was issued at the instance of the respondent. Thereupon the petitioner filed a petition in the county court asking to be discharged under section 2 of the Insolvent Debtors’ Act, Cahill’s St. ch. 72, If 5, on the ground that malice was not the gist of the action in which the judgment for damages was obtained in the circuit court.

On the hearing in the county court the court had before it the record of the circuit court consisting of the declaration, the pleas and the verdict of the jury together with the judgment thereon. The following stipulation was also before the court:

“It is further stipulated between parties as follows: That the defendant was served with summons to appear for trial, at the January Term, 1926, of the Circuit Court of Peoria County, and was tried before a court and jury; and he plead a plea of general issue and a special plea denying ownership of the car and denying agency and denied driving'the car at the time of this accident. That plea was filed by Edwin Fromm at the trial of the case, the special plea, filed January 19, 1926. And it is further stipulated that the suit was dismissed as to all defendants except Edwin Fromm.” It was also stipulated that no appeal was perfected and that the judgment is in full force and effect. The county court found that malice was not the gist of the action in the circuit court and discharged the petitioner.

The only question to be decided upon this appeal is whether malice was the gist of the action in the circuit court in the sense that the word malice is used in section 2 of the Insolvent Debtors’ Act. Section 2 of said act, Cahill’s St. ch. 72, ft5, provides as follows:

“When any person is arrested or imprisoned upon any process issued for the purpose of holding such person to bail upon any indebtedness, or in any civil action when malice is not the gist of the action, or when any debtor is surrendered or committed to custody by his bail in any such action, or is arrested or imprisoned upon execution in any such action, such person may be released from such arrest or imprisonment upon complying with the provisions of this Act.” On the hearing on the petition it was incumbent upon the judgment debtor, the petitioner, to show that malice was not the gist of the action.

Where a petitioner under the Insolvent Debtors* Act, having been taken into custody upon a writ of capias ad satisfaciendum based upon a judgment against him in an action for tort, fails to show that malice was not the gist of the tort action he is not entitled to the release prayed for. Fetz v. People, 239 Ill. App. 250.

In determining the question whether or not malice was the gist of the action in the circuit court, we necessarily must keep in mind the charge as laid in the third count of the declaration, and the construction placed upon the language found therein, together with the finding of the jury.

A malicious injury is defined to be an injury committed wantonly, wilfully or without cause. Rounds v. Detroit, L. & W. R. Co., 3 Hun (N. Y.) 329, 5 Thomp. & C. (N. Y.) 475-481; Words and Phrases, vol. 5, p. 4308.

In Brown v. Illinois Terminal Co., 319 Ill. 326, at page 331, the court said:

“Courts have recognized the difficulty of accurately stating under what circumstances a' defendant may be held guilty of wilful and wanton misconduct in causing an injury. Such conduct imports consciousness that an injury may probably result from the act done and a reckless disregard of the consequences. Ill-will is not a necessary element to establish the charge. Plaintiff and defendant had a legal right to pass over the highway crossing, and each was required, in doing so, to observe due regard for the legal right of the other. A wilful or wanton injury must have been intentional or the act must have been committed under circumstances exhibiting a reckless disregard for the safety of others, such as a failure, after knowledge of the impending danger, to exercise ordinary care to prevent it, or a failure to discover the danger through recklessness or carelessness when it could have been discovered by the exercise of ordinary care.”

Wilfulness and wantonness imports premeditation* or knowledge and consciousness that injury will result from the act done. Harris v. Piggly Wiggly Stores, Inc., 236 Ill. App. 392-396.

In discussing what constitutes malice in the case of the First Nat. Bank of Flora v. Burkett, 101 Ill. 391, the court at page 394 among other things said:

“In the case of Harpham v. Whitney, 77 Ill. 32, the case of Mitchell v. Jenkins, 5 B. & A. 594, was referred to as defining malice. It was there said by Parke, J., ‘that the term “malice” in this form of action, is not to be considered in the sense of spite or hatred against an individual, but of malms animus, and as denoting that the party is actuated by improper and indirect motives. ’ That definition was applied in a case of malicious prosecution. The term has been defined: ‘A formed design of doing mischief to another,’ — ‘a wicked intention to do an injury to another. ’ Thus, the forsaking of a husband or wife of the other, without sufficient cause, is said to be malicious abandonment. Malicious mischief is the wanton or reckless destruction of or injury to property. It in some cases implies a wrong inflicted on another with an evil intent or purpose, and this is the sense in which it is employed in this statute. It requires the intentional perpetration of an injury or wrong on another. The wrong and intention to commit the injury are necessary to deprive the party of the right to a discharge from arrest or imprisonment. In this case there was an intentional wrong, little, if anything, short of a criminal act, and it was malicious, in the statutory sense.”

The third count of the declaration charges a tort of greater culpability than what is known as common-law negligence. It charges a tort amounting to an assault to commit a bodily injury. It charges a wanton and wilful violation of the law.

In People v. Glasebrook, 320 Ill. 567, the defendant was convicted of manslaughter. The killing was caused by an automobile driven by the defendant on a public street in the city of Chicago. It was conceded by the defendant that he was guilty of negligence but that it was not such negligence as would make him criminally liable. In the decision of the case the court among other things said:

“Counsel for defendant do not deny negligence on his part, but their contention is that it was not such negligence as the law requires to make him criminally liable. The law upon this subject, as applied to drivers of automobiles, has been discussed in People v. Falkovitch, 280 Ill. 321, People v. Adams, 289 id. 339, People v. Camberis, 297 id. 455, People v. Schwartz, 298 id. 218, and People v. Anderson, 310 id. 389, and it is unnecessary to here enter upon a further discussion of the question. It is not. required that the driver of an automobile, to be held criminally liable, shall knowingly, intentionally and recklessly drive his car against the foot-passenger. It is his duty to regard safety regulations provided by law and also conditions existing at the place where the injury occurs. Others than the driver have a right to be on the street as well as he.”

In People v. Schwartz, 298 Ill. 218, the defendant was found guilty and sentenced to the penitentiary. He was indicted for manslaughter and was charged in the indictment with unlawfully, wilfully and feloniously running an automobile over the deceased at a crossing on a public street in Chicago. In its opinion at page 221 the court said:

“It is clear that upon this record it was a question of fact for the jury to determine whether the defendant was guilty of that wanton and wilful disregard of the safety of the public which amounts to criminal negligence. The Motor Vehicle act declares a greater rate of speed than fifteen miles an hour in a residence district prima facie evidence of negligence. The plaintiff in error himself estimates his speed at twenty miles an hour. This is thirty feet a second, and it was a question for the jury whether such a rate of speed, together with a failure to keep such a lookout as would enable the driver to see persons crossing the street lighted as was this street, was under all' the circumstances criminal. ” . ..

If the plaintiff proved his case as laid in the third count of the-declaration the defendant is guilty of a violation of the law. In view of the finding of the jury it is fair to presume that the plaintiff proved his ease as charged in the third count of the declaration.

From the pleadings and the finding of the jury, it is clear to our minds that the petitioner was guilty of such conduct as to make him criminally liable, and it necessarily follows that he was guilty of a tort of greater culpability than common-law negligence. Furthermore, since wantonness implies wilfulness, the verdict of the jury is equivalent to a finding that the petitioner was guilty of wilful misconduct and should be so interpreted.

In United States v. Reed, 86 Fed. 308, the court in discussing what constitutes malice, at page 312, said:

“By ‘malice’ is not necessarily meant in the law a malignant spirit, a malignant intention to produce a particular evil. If a man intentionally does a wrongful act, an act which he knows is likely to injure another, that in law is malice; it is the wilful purpose, the wilful doing of an act which he knows is liable to injure another, regardless of the consequences.. That is maEce, although the man may not have had a specific intention to hurt a particular individual, or crew. So, if a man wilfully neglects a known obligation, with the same reckless disregard of the consequences, that is malicious conduct in the sense of the law.”

We conclude, therefore, that the petitioner failed to show that malice was not the gist of the tort action.

The order and judgment of the county court releas-. ing and discharging the petitioner is reversed and the cause remanded.

Reversed and remanded.


text:
    Mary Bryers, Appellee, v. Highland Park Transfer & Storage Company et al., Appellants.
    Gen. No. 7,707.
    1. Pleading — purpose of notice of special defeme. The purpose of -a notice of special defense under the plea of general issue is to obviate the filing of special pleas and any matter included in the notice may be shown as fully as by special plea of such matter.
    2. Pleading — effect of notice of special defense on plea of general issue. The plea of the general issue, accompanied by a notice of special defense, is to be considered a consolidated plea setting forth every defense appearing in the notice.
    3. Pleading — special defense in trespass. In an action of trespass for the wrongful taking of personalty, a judgment for the same plaintiff in replevin for the identical goods can be shown as a defense by a notice of special defense given under the general issue.
    4. Replevin — effect of failure to seize property. Failure to seize property sought to be replevied does not deprive the court of jurisdiction to give judgment for the property, where both parties appear 'in court and submit to the judgment of the court.
    5. Judgments — who not entitled to make collateral attack. A party who causes a judgment to be rendered cannot collaterally attack it for want of jurisdiction, defect in procedure or for any other ground.
    6. Election and waiver — judgment in replevin as bar to actions in trespass. One who recovers in replevin possession of the goods cannot afterwards sue the same party and another in trespass for the same transaction whether or not the damages awarded in replevin were recovered.
    7. Damages — $600 as excessive for trespass. An award of $600 as damages for trespass by removing wrongfully plaintiff’s personalty held excessive in view of there being no actual breaking or entry.
    Appeal by defendants from the Circuit Court of Lake county; the Hon. Edward D. Shurtlepf, Judge, presiding. Heard in this court at the October term, 1926.
    Reversed and remanded.
    Opinion filed September 24, 1927.
    Albert L. Hall and Minard E. Hulse, for appellants.
    Ernest S. Gail, for appellee.
   Mr. Presiding Justice Jett

delivered the opinion of the court.

The record discloses that Mary Bryers, appellee, recovered a judgment in trespass on the case against Highland Park Transfer and Storage Company, a corporation, Alexander Rafferty, Jr., Carl Miller and Laura Webb, appellants, for $600. Motion for a new trial was overruled and judgment rendered on the verdict of the jury. This appeal followed.

For convenience the appellee will be called the plaintiff and the appellants defendants.

The declaration consists of two counts. The charge of each count in the declaration is that the defendants wrongfully broke into and entered the room of the plaintiff and took therefrom certain wearing apparel and other effects belonging to the plaintiff, and wrongfully detained the same. A plea of the general issue was filed by the defendants with a notice of special defense. The special defense relied upon is set out in certain proceedings in replevin, had before a justice of the peace in which the plaintiff recovered a judgment for the identical goods that are mentioned and described in the declaration. This replevin proceeding is set up as a bar to the present action.

Each of the counts of the declaration begin by charging that the defendants broke into and entered a certain room, the abode of the plaintiff, and then avers that the said defendants seized certain wearing apparel and other effects belonging to the plaintiff and refused to return the same upon demand. Notwithstanding the charge in the declaration and what is disclosed by the evidence, the defendants insist that the judgment entered in the justice court against the defendant, Highland Park Transfer and Storage Company, a corporation, is a bar to the present suit... It is the contention, however, of the plaintiff that the replevin proceeding should have been specially pleaded and that it could not be shown as a defense by a notice given under the general issue. We think there is no merit in this contention because it is well understood that the purpose. of a notice of special defense to be shown under a plea of the general issue is to obviate the filing of special pleas. We are further of . the opinion that any matter included within the notice can be as fully shown under it as if special pleas had been filed, setting up such specific matters.

Section 46 of the Practice Act, Cahill’s St. ch, 110, if 46, provides:

“The defendant may plead as many matters of fact in several pleas as he may deem necessary for his defense, or may plead the general issue, and give notice in writing under the same, of the special matters intended to be relied on for a defense on the trial; in which notice the special matters so intended to be relied on shall be clearly and explicitly stated; and under which notice, if adjudged by the court, to be sufficiently clear and explicit, the defendant shall be permitted to give evidence of the facts therein stated, as if the same had been specially pleaded and issue taken thereon.”

A plea of the general issue, accompanied with a notice of special defense, is equivalent to a plea of not guilty, plus as many additional pleas as would be necessary to set up the several defenses specified in the notice, and such a plea is to be considered as a consolidated plea setting forth every defense set forth in the notice. This rule is clearly announced in the case of Hunter v. Troup, 226 Ill. App. 343, where on page 347 the court said:

“The purpose of the enactment of said section 46 was to obviate the necessity for filing additional pleas setting up matters which under the rules of pleading must be specially pleaded. A plea of the general issue accompanied with a notice of special defenses is equivalent to a plea of nonassumpsit plus as many additional pleas as. would be necessary to set up the several defenses specified in the notice. Such plea, accompanied by notice of special matters intended to be relied on for a defense, is to be considered as a consolidated plea, presenting every defense set forth in the notice.”

In Bailey v. Valley Nat. Bank, 127 Ill. 332, at page 338, the court, in discussing the effect of the then section 28 of the Practice Act, which is now section 46, among other things, said:

“That by the provisions of section 28, matters of fact, constituting a legal defense to the action, instead of being set forth, as at common law, by special plea, may be stated in a notice under the general issue, and evidence of such facts given on the trial, with like effect as if the same had been specially pleaded.”'

It is the contention of the plaintiff that the replevin suit was necessarily at an end when the oEcers failed to find the property, and that consequently the judgment rendered in the justice court was of no effect for want of jurisdiction of the subject matter thereof. The record discloses that on January 16,1925, the case was tried and proof heard by the justice of the peace and that, after a hearing on said proofs and the admissions of the defendant, a judgment for the recovery of the property described in the replevin writ was rendered for the plaintiff with costs.

It is the contention of the. defendant that-.the failure of the oEcers to seize the property in the replevin proceedings did not deprive the court of jurisdiction for the reason that both parties being present at the' trial of the issues in the cause and submitting to ..the judgment of the court, impliedly if not expressly, stipulated that the right to the property described in the writ, of replevin should be determined by the justice, of the peace.

In Sanger v. Kinkade, 16 Ill. 44, an action bf replevin was brought and a horse, which' among other things was named in the writ, was. not taken by the sheriff. The parties expressly stipulated that the right to this horse should be one of the issues submitted to the jury, and the court, in holding that the lower court had jurisdiction to try the question of the right to immediate possession of the horse, on page 46 said:

“The fact that the horse was not taken under the writ of replevin, did not preclude the parties from having the question of ownership determined in this action. The pleadings embraced the horse, and the parties expressly stipulated that the right of property thereto should be one of the issues submitted to the jury. This gave the court full jurisdiction of the question.”

Furthermore, a party at whose instance a judgment is rendered is not entitled in a collateral proceeding to contend that the judgment is invalid. Neither want of jurisdiction, defect of procedure, nor any other ground of invalidity can be availed of collaterally by the party who is responsible for the existence of the judgment.

In Bates v. Williams, 43 Ill. 494, an action was brought upon a replevin bond and upon appeal the main objection taken to the declaration filed in the case was that it did not aver that the justice of the peace, before whom the action of replevin was tried, had jurisdiction of the cause. The court held, however, that when it was considered that the obligor himself sought that jurisdiction and executed the bond in the suit, in order to avail himself of it, he could not make such an objection, as he was estopped by his own act and admission.

The case of Bates v. Williams, supra, was followed in Fahnestock v. Gilham, 77 Ill. 637, where on page 639, the court, among other things, said:

“This identical question arose in the case of Bates v. Williams, 43 Ill. 494, which was an action on a replevin bond. There, as in this case, it was claimed that the court did not have jurisdiction, but the court said, when it is considered that appellant himself sought that jurisdiction, and executed the bond in question in order to avail of it, he cannot now make such an objection. He is estopped by his own act and admission. This principle is recognized in the case of Shaw v. Havekluft, 21 Ill. 127.”

We are of the opinion that the justice of the peace acquired jurisdiction of the subject matter of the replevin suit and also that the plaintiff is estopped from contending that the judgment is invalid, for the reasons indicated. The rule is, therefore, as we understand it, that where one recovers in replevin and gets a return of the goods from one party, he cannot after-wards sue the same and another party in trespass for the same transaction, no matter whether the damages awarded in replevin have been recovered or not. Karr v. Barstow, 24 Ill. 580.

Harris v. Nelson, 113 Ill. App. 487, was an action brought to recover from the defendant in error damages alleged to have been suffered by reason of a levy made by a constable under an execution against a third party upon property belonging to the plaintiff in error. Plaintiff recovered back the property under a writ of replevin and upon a trial of the issue in replevin, the right of property was found in plaintiff in error and judgment was rendered in his favor. Plaintiff in error sought to recover damages occasioned by the wrongful levy, notwithstanding his recovery in the replevin suit. At page 488, in a decision of the case, the court said:

“This he cannot do. If he selected the form of action in which he was not entitled to recover all the damages he claims to have suffered, he must be content with the remedy which that form of action has afforded him. Karr v. Barstow, 24 Ill. 581-582. Plaintiff had the option to bring trespass, in which, if the facts warranted, he might have recovered even vindietive. damages, or to bring trover or replevin, in which he could not. The controlling principles are stated in an opinion by McAllister, J., in Savage v. French, 13 Ill. App. 17-22-23, to which reference may be had. See, also, Presson v. Worthen, 66 Ill. App. 457, 458. Under the statute plaintiff was entitled to recover in the replevin suit ‘damages for the detention of the property while the same was wrongfully detained by the defendant. ’ R. S., chap. 119, sec. 23. It must be presumed he recovered in that action all damages growing out of the wrongful taking to which he was entitled. That judgment is a bar to an action to recover for taking the same goods, the original cause of action having been merged in the judgment. ’ ’

In addition to the conclusion we have reached that the replevin proceeding constitutes a bar to the present action, the evidence further discloses the fact that the verdict of the jury is excessive. There was no actual breaking or entering the room, where the plaintiff had her things. They were taken from a room of one of the defendants. They had been packed by the plaintiff for the purpose of removing them, and the larger portion of them were in cases and boxes which had been placed in the front part of the kitchen of one of the defendants. We conclude, therefore, that the judgment of the circuit court of Lake county should be reversed and remanded, which is accordingly done.

Reversed and remanded.