author: Mr. Justice Hall

text:
    Henrietta Raphael, Appellee, v. Chicago and West Towns Railways, Inc., Appellant.
    Gen. No. 39,406.
    Opinion filed December 15, 1937.
    Rehearing denied December 28, 1937.
    Berthold L. Goldberg, of Chicago, for appellant; Irwin S. Bashes, of Chicago, of counsel.
    Boyal W. Irwin, of Chicago, for appellee.
   Mr. Justice Hall

delivered the opinion of the court.

Defendant appeals from a judgment entered against it in the circuit court of Cook county for the sum of $3,000 and costs, in an action brought by plaintiff against defendant by which she seeks to recover for a personal injury alleged to have been sustained through the negligence of the defendant. The complaint filed in the cause does not appear in the abstract.

Plaintiff’s testimony is to the effect that on August 14, 1933, about 7:30 p. m., she became a passenger on a street car at Ridgeland avenue and 26th street in Berwyn, and that the car upon which she became a passenger, was northbound, and was then standing just south of the corner at the intersection of the streets named; that Ridgeland avenue runs north and south and 26th street runs east and west; that she got on the car by the front door, paid her fare to the motorman, that he then closed the door after her; that after entering the car vestibule, plaintiff walked forward and that as the car was making the turn around the corner from Ridgeland avenue into 26th street, it made a sudden lurch and threw her forward and off her feet, and that at this time, the car was “right in the middle of the curve”; that she had no idea of its speed, and that her fall was stopped by a rod which she fell over, and that this rod struck her on the right side above her breast; that she then walked into the car and took a seat and “had an awful pain,” and that when she gets a cold, it settles in her chest and she has a hard time talking; that she had no doctor the night of the accident, but that she called on Dr. Ashworth the next day at his office; that her chest was discolored, and that the discoloration was of the size of a quarter or half dollar, about one inch, black and blue, and that it was swollen; that she saw Dr. Ashworth about a week after the first visit, and that she continued to have pains, but that at first she was not confined to bed; that thereafter she contracted a cold and went to bed, and was confined quite a while; that she weighed about 125 pounds before she was hurt, and that her weight dropped down to about 103 pounds, and that she was confined to her bed for a few weeks after the accident; that before the accident, she did all her housework, but that after the accident, she was unable to do her work; that she continued to be treated by the doctor that winter; that Dr. Ashworth gave her heat treatments, and that she made about 35 visits to this doctor, including the calls he made to her home; that thereafter she was treated by a Dr. Penchina, but that she did not recall the number of times; that she made between 18 and 20 visits to a chiropractor and paid him $2.50 a visit; that Dr. Penchina gave her medicine and light treatments to the right side of her chest; that she “merely went to Dr. Penchina for his opinion as to what he thought was the trouble, because I could not get any relief from Dr. Ashworth”; that after taking these light treatments, she felt better; that about April 1, 1935, she went to California and was treated by a doctor out there, who gave her heat treatments and inoculated her against colds; that she stayed in California about a year and came back to Chicago in April, 1936, and that she still has pains in her chest. On cross-examination, plaintiff was asked if she spoke to the motorman about the accident at the time, and she stated she spoke to no one but a young lady who was in the car; that about two weeks after the accident, she wrote a letter to Mr. Collett of the defendant company; that in 1930 plaintiff had another accident for which she brought suit, but that the injuries she received and sued for at that time, are not identical.

Elsie Neboda, a witness for plaintiff, testified to the effect that she was riding* on the street car at the time of plaintiff’s alleged injury on August 14, 1933; that the motorman acted as conductor and sat on the front platform of the car; that the car came to a stop at Rddgeland avenue and 26th street, and that plaintiff got on the car; that the witness was then sitting on the front seat of the car; that the car was standing still when plaintiff got on; that there were lights at the intersection and the lights were “Stop” at the time plaintiff got on, but that after plaintiff got through paying her fare the lights changed and that the car made a sudden jerk around the curve there; that after plaintiff paid her fare, the lights changed to “G-o” and the car started off so all of a sudden, it just knocked plaintiff against the rail; that “the way it started off, it made that curve there, it went around so fast, I don’t know — it was just around the curve there.” This question was asked of the witness: “Q. Just before she [plaintiff] fell down, you said something, that the car did something, what did you see the car do or what did you feel it do, or what did the car do?” “A. It was sort of an unusual jerk, I don’t know.” A motion was made to strike this answer, but the motion was overruled. This witness testified further to the effect that the plaintiff was knocked against the rail, which is right behind the motorman, and is made of iron pipe, that the rail just about reached to the chest of the plaintiff; that the car g*ave a jerk and plaintiff fell over and her chest came in contact with the rail or pipe, and that plaintiff then walked into the car and sat next to the witness and held her hands to her chest and said: “Did you see the way it knocked me against the rail?” and the witness answered, “Yes,” and that both the witness and plaintiff got off the car at 46th and 22nd streets. This witness further testified that plaintiff called on her a couple of weeks after that. On cross-examination the witness stated that at the time the plaintiff fell against the rod or bar, the car was just going around the curve, and was about half way around, and that there were six or seven other people on the car at the time.

Charles Sampson, the motorman in charge of the car at the time and place in question, was produced as a witness by both plaintiff and defendant. He stated certain facts as to the operation of his car at the time and place in question, and as to his experience as a motorman, and that passengers enter the front door at his rig’ht as he faced forward; that at the time in question, he was operating the car involved, but that he had no recollection of plaintiff getting on the car at the time and place in question, and that he had no recollection of having* ever seen her before; that at the time and place in question, nobody spoke to him concerning any fall or bump, and that “there was no accident at all on my platform on that evening.” He further stated that he had had occasion to start the car in question a great many times, and that at the time in question, the car was in good condition and that it did not jerk or spring forward any more than any other car, that “they all have a little jerk starting up, that is, when you give them the first point. No car will start away smoothly.” On cross-examination, he testified to the effect that the curve in question is a sharp curve, and that “you daresn’t go around that curve over two points,” that “I know how we make that curve and I know what the required speed is in making that curve, and I make it a great number of times.”

Dr. Wease L. Ashworth, the witness to whom plaintiff refers, stated that he first treated plaintiff in August, 1930, for a cyst on her lip, which he removed, and in July, 1931, he treated her for an infected foot; that on August 15, 1933, plaintiff came to the office of the witness and complained of an injury to her chest, and stated to the witness that she had fallen in the street car and bumped her rib, and indicated the place of the alleged injury; that at that time, there was a small swelling which was discolored, probably one inch in diameter, and soft, and that she probably had a small hemorrhage underneath the skin, that the color was bluish-black, and that at that time, plaintiff complained of pains in the swelling; that plaintiff came to his office about a week after the first visit, and that the discoloration was practically gone, but that the swelling was still present; that the first time he saw plaintiff, he put some tape on her chest and gave her the usual treatment; that at the end of the week, she still complained of pains, and that at the end of two weeks thereafter, she called ag'ain and still had a small swelling at the place indicated, but that it was firm and hard, and that at that time, she made no other complaint of pain except as to the point indicated; that he advised the plaintiff to have an X-ray picture made, which she did, but that it did not show anything. Objection was made to the doctor’s testifying as to what the X-ray showed, that the X-rays taken should be produced. The objections were overruled, and the witness continued and stated that X-ray pictures show only an opaque material, such as bone or calcium; that soft tissues such as blood vessels and the nerves and flesh do not show, because the lig’ht goes right through them, and that the picture he saw showed no injury to the bone; that the witness saw plaintiff again on October 2nd, following, at her home, and that she then had a cold in her chest; that she stated to the witness that the pain still persisted, and that there was a swelling at that, time; that he made 23 visits to her home over a period extending from October to February, and that there was a change in her general condition at that time; that she lost about 20 pounds in weight and developed night sweats and temperature, which was intermittent; that he saw her again in August, 1934, with a physician from the street car company, and that at that examination she still had a small swelling over the third rib, but that otherwise she was essentially negative, and that he never treated her again until April, 1936; that in March, 1935, she went to California on his advice, and that he treated her on May 25, 1936, after she had returned, and that at that time, she had a deep chest cold, congestion in the chest and quite a bit of expectoration of mucous and phlegm. He stated that he had no opinion as to what the congestion of the chest and the conditions to which he referred, resulted from; that at the time of the first examination, she weighed about 120 or 125 pounds, and that she lost 20 pounds in weight between the time he first saw her and the last time; that the defendant paid him for 11 calls at the rate of $2 per call. On cross-examination this witness stated that when he said that plaintiff had a small hematoma, he meant that she had a hemorrhage under the skin that developed into the form of a tumor, and he further testified that “it is not a bruise, it is a hemorrhage under the skin,” and that “I could not see any bruises or wounds or lacerations of any other kind. ’ ’

Dr. H. E. Jenkins, the physician who examined the plaintiff together with Dr. Ashworth, testified, in substance, that he was not employed by the defendant company, but that the defendant company called him twice or three times a month on cases; that on June 28, 1934, together with Dr. Ashworth, he called on plaintiff at her home, and together with Dr. Ashworth, examined her, and found no evidence of injury that she claimed to have, received. On cross-examination, he testified to the effect that he found no evidence of swelling and no evidence of any injury of any kind to the ribs; that the plaintiff told the witness she had an aching pain, said nothing about her general physical condition, or that she had lost weight. He further stated that he could tell that she had lost weight by looking* at her, and that she was not in good physical condition, and that he found no evidence of any injury to her chest, or in front of her body.

From the testimony of the plaintiff and her occurrence witness, we can arrive at no other conclusion than that the accident to plaintiff, from which she received the alleged injury, occurred while the car was in the act of going around a curve, which both witnesses testified, was attended by a “lurch or jerk.” Plaintiff testified that she had no opinion as to the speed of the car, and her witness says nothing on the subject. “Lurch” is defined by Standard Dictionary to mean “a sudden swing or rolling to one side, as of a ship; hence any irregular or loose swinging movement. ’ ’

Defendant cites the case of Beatty v. Metropolitan West Side El. R. Co., 141 Ill.App. 92. In that case the charge in the declaration was that the defendant suffered injury because defendant, “by its divers then servants, so suddenly and violently started or jerked forward the said train of cars on which the plaintiff was then and there a passenger, that notwithstanding the fact that she was a woman of great age and in the exercise of such care and caution, which could be reasonably required of her, Mary C. Beatty, the plaintiff herein, was, before she had time to gain a seat, with great violence, thrown or hurled to the floor over an obstruction in the aisle of defendant’s said car.” In that case plaintiff testified as follows: “I took about two steps and the car gave a very swift jerk and started me to fall; before I could catch myself, it gave another very heavy jerk, very heavy, and by that time it threw me and I fell across a suit, case and hurt my right arm.” Her daughter who accompanied her, testified that plaintiff was about one step inside the door when “the car gave a very sudden jerk, sort of halted, then very sudden, that threw her. I was looking in the direction in which my mother was going. There was a very sudden jerk and then there was a sort of halt and then a still more sudden jerk that threw mother.” The cause was submitted to a jury, which returned a verdict for defendant, and plaintiff appealed. The court affirmed the judgment of the trial court, and in its opinion, said: “Whether in a particular case proof that an accident happened to a passeng’er will be of such legal value as to make out a prima facie case of negligence against the carrier, depends on whether the accident is of a kind which does not ordinarily occur if due care has been exercised. A prima facie case is made out and a presumption of negligence on the part of the carrier arises from proof that a passenger was injured by derailment, collision with a train, or an object on the track, the breaking of a wheel, an explosion, and many other causes. . . . All that was proved in this case was that the car jerked or lurched, and thereby the plaintiff was thrown down and injured. She was in the car next behind the motor car. The train could not be started without causing that car to jerk or lurch to some extent. It is quite possible that from only the ordinary and unavoidable jerking or lurching of a car caused by starting a train, a passenger might, without negligence on his part, lose his balance and fall. The question is not, whether the jury might from the evidence as to the jerking of the car, have found as a fact that the defendant negligently operated the train, but is, whether from the fact that the plaintiff, a passenger, without negligence on her part, lost her balance and fell, because of the jerking or lurching of the car, and was injured, the law presumes that the defendant negligently started the train. We think that under the evidence in this case the question whether the defendant was or was not guilty of negligence in starting the train, was a question of fact for the jury. ’ ’

In the instant case we are not prepared to say that the jury was not justified in finding that the defendant was guilty of the negligence charged.

Defendant contends that there is no causal connection between the alleged occurrence and plaintiff’s alleged ailments.

In Ivanhoe v. Buda Co., 247 Ill. App. 336, plaintiff claimed to have been operating under the provisions of the Illinois Workmen’s Compensation Act, and that he was entitled to compensation under such Act for certain injuries received while in the employ of the Buda Company, resulting from an electric shock. It was the contention of defendant that the damages alleged to have been sustained were not supported by the evidence, for the reason that there was no medical testimony to the effect that plaintiff’s alleged disability resulted from electric shock. In holding that there was not sufficient proof to sustain the claim, this court said:

“While it has been held that where it appears from the evidence that the plaintiff, in a personal injury case, was in good health before he was injured but in bad health afterwards, this may be sufficient to submit the case to the jury as to whether the disabilities complained of resulted from the injuries received (Chicago Union Traction Co. v. May, 221 Ill. 530; Rehthaler v. Crane Co., 218 Ill. App. 267), yet we are of the opinion that in the instant case, where the evidence shows that a considerable period after plaintiff was injured he began to have fits and fainting spells, some expert evidence ought to be adduced on the question as to whether his condition resulted from the injury. Rose v. Chicago City Ry. Co., 207 Ill. App. 345.”

In Rose v. Chicago City Ry. Co., 207 Ill. App. 345, (Abstract Opinion) plaintiff claimed to have been injured while alighting from a car, by reason of which it was charged that her daughter, who was alighting from the car at the same time, was thrown against plaintiff as a result of a “tremendous jerk” of the car. There, as here, the question arose as to whether certain physical conditions and disease from which plaintiff was alleged to have suffered, could properly be attributed to the accident. It was shown by the testimony that the plaintiff in that case had been injured before. In commenting upon the question as to what evidence should be produced in order to show a causal connection between the happening and the physical condition of the plaintiff, it was stated by this court that it was necessary for the trial court to receive opinions from physicians as to whether or not the alleg’ed condition could be said to be a result of the injury complained of; that “of necessity laymen must be guided as to infections, their causes and progress by the opinion of experts; to leave these things to the guesses of the uninformed would make possible damages based solely on speculation and not upon evidence.”

In the case at bar, while the evidence indicates that plaintiff received an injury which caused her considerable suffering, there is no evidence to sustain her claim that her colds, loss of weight and certain other conditions testified about, had any relationship to the injury received, through the alleged negligence of defendant. The attending physician definitely stated that he would not testify that such conditions did result from such injury. Under these circumstances, we are of the opinion that the verdict is excessive. If, within 10 days of the filing of this opinion, plaintiff will file a remit-titur of $2,000, then it is ordered that judgment be entered here for $1,000 and costs of suit. Otherwise, the cause is reversed and remanded for a new trial.

Judgment entered here for $1,000 upon filing of re-mittitur of $2,000, otherwise reversed and remanded for a new trial.

Hebel, P. J., and Denis E. Sullivan, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    Alta M. Bogle, Appellant, v. Charles H. Albers, Receiver of Lake View State Bank, Appellee.
    Gen. No, 39,428.
    Opinion filed December 15, 1937.
    J. Kentner Elliott, of Chicago, for appellant; Edward T. Heineman, of Chicago, of counsel.
    Kirkland, Fleming, Green, Martin & Ellis, of Chicago, for appellee; Joseph B. Fleming and Thomas Martineau, of Chicago, of counsel.
   Mr. Justice Hall

delivered the opinion of the court.

This is an appeal from an order of the superior court of Cook county, sustaining a general and special demurrer to plaintiff’s declaration and dismissing the suit. The declaration consists of two counts, as follows :

“Count I. For That Whereas, on, to-wit, the 11th day of August, 1928, and on each of the divers days and times hereinafter mentioned, Lake View State Bank was a banking corporation, organized and doing-business as such, under and by virtue of the laws of the State of Illinois, at the City of Chicago, therein, and on said day and at all times hereinafter mentioned, was qualified to accept and execute trusts, pursuant to the laws of the State of Illinois in that behalf made and provided, and that on said day plaintiff had on deposit or to her credit with said bank, funds and credit in the name Alta M. Melvin, her maiden name, in an amount of, to-wit, Twenty-four Thousand Dollars ($24,000.00) and upwards;

“And plaintiff avers that thereafter and pursuant to her request said bank cashed her certain check upon her aforesaid bank account, in the sum of, to-wit, Sixteen Thousand Five Hundred Dolla-rs ($16,500.00), and charged the same against her said deposit, her said request in that behalf being in the words and figures following, to-wit:

“ ‘#331 So. Pixley St.

Orange, Calif.

August 11, 1928.

‘ ‘ ‘ The Lake View State Bank Chicago, 111.

“ ‘Dear Sirs:

“ ‘Mr. Hickey or Mr. Hattstaedt.

“ ‘I have this day sent to my brother Mr. W. L. Melvin, a check on your bank for $16,500 — to cover real estate deal on the purchase of property at Wilson & Western and this in turn to be traded for an equity in property at 5417-19 Kenmore Ave., Chicago. This property to be held in trust at your bank.

“ ‘I am enclosing* my savings account book #80268. You will kindly credit my account with my time certificate of deposit #1742 dated June 27, 1928 for $8,209.61 and interest according to my understanding with Mr. Hattstaedt, and after cashing check mailed to my brother mail the savings bank book back to me here.

“ ‘Tours very truly,

Mrs. Alta M. Melvin Mrs. Alta M. Bogle

“ ‘#331 So. Pixley St.’

“And plaintiff avers that the above described property in said writing described as ‘property at Wilson and Western’ was and is more particularly described as follows, to-wit: [Description of real estate] which was then and there known to said bank;

“And plaintiff avers that with the knowledge of said bank, the proceeds of said check were paid out and used for the plaintiff on account of the purchase for her of the above described real estate ;L

“And plaintiff avers that although said bank then and there had no right, title, or interest, in or to such real estate, and well knew, or by the exercise of ordinary care and foresight would have known, that the same was the property of its depositor, the plaintiff, nevertheless, without her knowledge, either upon its own responsibility, or at the instance and request of some unauthorized person who was unknown to plaintiff, took title thereto in its corporate name, to-wit: Lake View State Bank;

“And plaintiff avers that said bank, having so taken title to such real estate, thereafter did not hold or deal with the same for plaintiff’s use and benefit, but, on the contrary, on, to-wit, December 4, 1928, either upon its own responsibility, or at the instance and request of some unauthorized person who was unknown to plaintiff, without her knowledge, conveyed and transferred said real estate to one Martha Melvin;

“And plaintiff avers that by means of its aforesaid acts and doings said Bank prevented her from carrying out her avowed intention of exchanging her said above described real estate for the premises at, to-wit, 5417-19 Kenmore Avenue, Chicago, Illinois, as she had theretofore advised said Bank she intended to do;

“And plaintiff avers that as the direct consequence of said acts and doings of said Bank her said real estate was, without her knowledge or consent, mortgaged and permitted to become otherwise encumbered by the parties who have thereafter acquired title thereto, by or through the aforesaid unauthorized conveyance by said Bank, and that said mortgage and other liens have since been foreclosed or are in process of foreclosure so that plaintiff has lost or is about to lose her said property, and all her interest therein; to the damage of the plaintiff in the sum of Twenty Thousand Dollars ($20,000.00), and therefore she brings her suit, etc. ’ ’

“Count II. For That Whereas, Also, the plaintiff hereby adopts the first, second, third, fourth and fifth paragraphs of the First Count as the same paragraphs of this Count, and then proceeds as follows:

“And plaintiff avers that it then and there became the duty of said Bank to refrain from dealing with said real estate, or disposing of the same, except at the direction of, or with the knowledge of plaintiff ;

“But plaintiff avers said Bank nevertheless, without the direction of, and without the knowledge of plaintiff, on, to-wit, December 4, 1928, conveyed and transferred said premises out of its control and away from plaintiff, to one Martha Melvin;

“And plaintiff avers that by means of its aforesaid acts and doing said Bank prevented her from carrying out her avowed intention of exchanging her said above described real estate for the premises at, to-wit, 5417-19 Kenmore Avenue, Chicago, Illinois, as she had theretofore advised said Bank she intended to do;

“And plaintiff avers that as the direct consequence of said acts and doings of said Bank her said real estate was, without her knowledge or consent, mortgaged and permitted to become otherwise encumbered by the parties who have thereafter acquired title thereto, by or through the aforesaid unauthorized conveyance by said Bank, and that said mortgage and other liens have since been foreclosed or are in process of foreclosure so that plaintiff has lost or is about to lose her said property, and all her interest therein; to the damage of the plaintiff in the sum of Twenty Thousand Dollars ($20,000.00), and therefore she brings her suit, etc. ’ ’

The abstract states that the general and special demurrer filed by the defendant alleges plaintiff’s declaration fails to state a cause of action; that no duty or obligation rested upon the Lake View State Bank to plaintiff other than to cash her check and pay the proceeds to W. L. Melvin, which duty it performed; that said bank was under no. duty to deal for purchase or acquire or hold the real estate referred to in the said declaration for plaintiff’s benefit as agent or in trust; that plaintiff’s injury, if any, was inflicted by W. L. Melvin and not by said bank; that no duty rested upon' said bank to refrain from dealing with the real estate in question or from disposing- of the same without the direction or knowledge of this plaintiff; that said declaration is uncertain, informal and insufficient, fails to set out the facts upon which she based her cause of action, is but the conclusion of the pleader,, is duplicitous in that it alleges in the same count several injuries to have been sustained.

§ 166, sec. 42, ch. 110, Ill. Rev. Stat. 1937; Jones Ill. Stats. Ann. 104.042, provides that “no pleading shall be deemed bad in substance which shall contain such information as shall reasonably inform the opposite party of the nature of the claim . . . which he is called upon to meet.”

We are of the opinion that the complaint filed here meets the requirement of the statute. The order sustaining the demurrer is reversed and the cause remanded.

Reversed and remanded.

Hebel, P. J. and Denis E. Sullivan, J., concur.


text:
    Louis D. Glanz, Plaintiff below, Appellee, v. Bernard Taken et al., Defendants below, Appellees. Eleanor Ritz et al., Appellants.
    Gen. No. 39,440.
    Opinion filed December 15, 1937.
    Rehearing denied December 28, 1937.
    Marston, Friedlund & Friedlund, of Chicago, for appellants; Emil N. Levin, of Chicago, of counsel.

      A. Henry Goldstein and Shulman, Shulman & Abrams, both of Chicago, for appellee; Meyer Abrams, of counsel.
   Mr. Justice Hall

delivered the opinion of the court.

This is an appeal by Edwin L. Read, Paul C. Mel-lander, Charles Wadsworth and Louis D. Glanz, as a bondholders’ protective committee, and Eleanor Ritz, purchaser at a master’s sale, held in a foreclosure proceeding, from the following* order of the superior court of Cook county, entered on January 24, 1937:

This cause having* heretofore come on to be heard upon the progress call of this court for the approval of the Report of Sale and Distribution of Harry Smitz, Master in Chancery, and upon petitions of Edwin L. Read, Paul C. Mellander, Chaifl.es Wadsworth and Louis D. Glanz, and having heretofore been continued to this date, and it having been represented to the court by counsel for the owner of the equity of redemption that upon a resale of the premises involved herein, said premises would bring a sum of not less than $14,000.00 and one Joseph Homan having agreed to deposit with said Harry Smitz, Master in Chancery, the sum of $1,000.00 as earnest money to insure a bid of not less than $14,000.00 upon a resale of said premises,

“It Is Theretofore Ordered, Adjudged And Decreed that the sale and the Report of Sale of Harry Smitz, Master in Chancery, be and the same is hereby disapproved and said Master is authorized and directed to proceed to a resale of said premises,

“It Is Further Ordered that Joseph Homan forthwith deposit the sum of $1,000.00 with said Master in Chancery as earnest money to insure a bid of not less than $14,000.00 upon said resale and that in the event said premises bring* the sum of $14,000.00 or more upon said resale, the said Master in Chancery shall forthwith return the said sum of $1,000:00 to him. In event, upon resale of premises, the mortgaged property is not sold for $14,000.00 or more, said earnest money for $1,000.00 shall be forfeited and distributed by Master in Chancery to first mortgage bondholders.”

It is to be noted that the order was entered upon the sole ground, as found by the court, that it had been represented to the court by counsel for the owner of the equity of redemption, that upon a resale of the premises involved, such premises would bring a sum of not less than $14,000, and that one Joseph Homan had agreed to deposit with Harry Smitz, master in chancery, the sum of $1,000 as earnest money, to insure a bid of not less than $14,000 upon a resale of the premises.

The foreclosure decree in which the sale was made was entered on September 22, 1932. It was in the usual form and found that the principal sum of $62,500 secured by mortgage on the premises involved, was due and unpaid, together with interest' fees and costs of suit. The decree further provided that unless the indebtedness be paid within three days, the master should sell the mortgaged premises, or so much thereof as might be necessary to satisfy the indebtedness; that the master should give public notice of the time, place and terms of the sale by advertising, and that the complainant, or any bondholder or group of bondholders, might become the purchaser or purchasers at such sale, and that the master should issue a certificate of sale, as required by law, and report such sale to the court, together with a statement as to the distribution of the proceeds, and his acts and doings in connection therewith. The decree of sale further provided that the court should retain jurisdiction for various purposes, including the right to determine all controversies between two or more persons claiming to be bondholders. The record indicates, as shown by the master’s report presented to the court on November 11, 1936, that on September 17, 1935, the master offered the mortgaged property for sale in accordance with the terms of the decree, and that no offer being made for any part less than the whole and Eleanor Ritz having bid the sum of $12,000 for the property this sum being the highest and best bid offered, the master struck off and sold the mortgaged premises described to Eleanor Ritz. The record further indicates that thereafter on January 4, 1937, an appraisal made by the Chicago Real Estate Board was filed, indicating that the property as of October 23, 1936, was valued at $39,212. Why this appraisal was filed, we are unable to understand, because there is no indication in the record that any objections were made to the sale, or report of sale. This order for the appraisal was entered on November 11, 1936, the date on which the master’s report was presented to the court for confirmation. Thereafter, a bondholders’ protective committee, consisting of Edwin L. Read, Paul C. Mellander, Charles Wadsworth and Louis D. Grlanz, by leave of court, filed an intervening petition, in which it is represented that this bondholders’ committee was constituted under an agreement dated September 29,1930. The abstract states that a copy of the agreement was attadhed to the petition. In this intervening petition, it is alleged that the committee “are the owners and holders of bonds aggregating $39,500 of outstanding issue of $62,500; that the mortaged premises are subject to unpaid general and special taxes of $13,000; that Eleanor Ritz, the purchaser at the Master’s sale, made bid as agent for and nominee of the committee; that the committee offers and agrees to release all persons personally liable on any deficiency for the pro rata share of such deficiency due petitioners as the owners of $39,500 in bonds; that on-the Master’s sale no objection was made by any person or persons as to the amount of the bid or the manner in which the sale was conducted, and the prayer is that the sale and the report of sale of Harry Smitz, Master in Chancery, be approved and confirmed and that the Master be directed to make distribution in accordance with the terms of sale and decree.” None of these representations are denied, and it was not suggested that the report of the master should have been passed upon sooner.

As already stated, the only reason the court gave for disapproving the master’s report of sale and directing a resale of the premises, was that it had “been represented to the court by counsel for the owner of the equity of redemption that upon a resale of the premises involved herein, said premises would bring not less than $14,000.00.” There is nothing in the record to indicate that any other question was raised.

In Chicago Title & Trust Co. v. Robin, 361 Ill. 261, the Supreme Court said: “Public policy and the interests of debtors require that stability be given to judicial sales, and they should not be disturbed unless there has been some fraud, mistake or violation of duty by the officer making the sale or by the purchaser, none of which is shown here. Mere inadequacy of price, alone, is not cause for setting aside a judicial sale. Worden v. Rayburn, 313 Ill. 495; Skakel v. Cycle Trade Pub. Co., 237 id. 482.”

There is no showing that there was any fraud or mistake.

We are of the opinion that the court was in error in entering the order appealed from. It is, therefore, ordered that the orders of the superior court of Cook county disapproving the master’s sale, the master’s report of sale, and directing a resale, be and the same are hereby reversed.

Reversed.

Hebel, P. J., and Denis E. Sullivan, J., concur.


text:
    In re Estate of Horace B. Parker, Deceased. Department of Financial Institutions of the State of Indiana, Appellant, v. Clara M. Parker, Executrix of the Estate of Horace B. Parker, Deceased, Ap-pellee.
    Gen. No. 39,453.
    Opinion filed December 15, 1937.
    Baker, Holder, Kolb & Hagstrom, of Chicago, for appellant; Earl J. Kolb, of counsel.
    Pope & Ballard, of Chicago, for appellee; L. J. West, of Chicago, of counsel.
   Mr. Justice Hall

delivered the opinion of the court.

This is an appeal from an order of the circuit court of Cook county dismissing the claim of the Department of Financial Institutions of the State of Indiana against Clara M. Parker, executrix of the estate of Horace B. Parker, deceased. The claim was originally filed in the probate court of Cook county, where it was disallowed, and on appeal, a hearing was had in the circuit court.

The affidavit of claim filed in the probate court alleges that the Second Mid-City State Bank was organized under the laws of the State of Indiana to do a general banking business on January 16, 1924, and that on May 14, 1928, the name of the bank was changed to Fifth Avenue Bank; that the Fifth Avenue Bank continued to do a general banking business until August 16, 1930, when by a vote of its stockholders, it closed its doors and ceased to operate, and that on June 29, 1933, the Department of Financial Institutions of the State of Indiana took charge of the property and affairs of the Fifth Avenue Bank and filed its notice of liquidation in the clerk’s office of the Lake superior court, Lake county, Indiana, in cause No. 30,922, for the reason that said bank was insolvent and in imminent danger of insolvency, and further it appeared to be in the best interests of depositors, stockholders and creditors for the Department of Financial Institutions of the State of Indiana to take possession of said bank; that the Department of Financial Institutions of the State of Indiana is now liquidating the said Fifth Avenue Bank under authority of art. 2, ch. 40, Acts of the General Assembly, 1933, being an Act Concerning Financial Institutions; that the Department of Financial Institutions after investigation and appraisement had determined that the true cash value of the assets of the Fifth Avenue Bank was not more than the sum of $16,544.78; that the total liabilities on said Fifth Avenue Bank were not less than $47,193.66; and that the true cash value of the assets was not sufficient to pay the creditors of said bank in full; that the authorized capital stock of said Fifth Avenue Bank was $50,000; that the department had determined that $50,000 or more would be necessary to pay the debts and obligations of the said Fifth Avenue Bank in full over and above the cash value of said assets; that Horace B. Parker, deceased, was a shareholder during the operation of said bank and immediately prior to the closing date, and was the holder of 12% shares of the par value of $100 each of the Fifth Avenue Bank; that the Department of Financial Institutions on March 19, 1934, in accordance with sec. 63 of an Act Concerning Financial Institutions made a demand in writing upon decedent, Horace B. Parker, for payment of his assessment, and mailed said demand to the decedent according to law; that by authority of said demand, said stockholder’s liability became due on April 28, 1934, and that there is now due the Department of Financial Institutions of the State of Indiana from the estate of Horace B. Parker, deceased, the sum of $1,250.

The laws of the State of Indiana, Acts of the General Assembly, 1933, ch. 40, concerning financial institutions, was introduced in evidence. Sec. 63 of this Act is as follows:

“Sec. 63. If, at any time after the department has taken possession of the business and property of any financial institution, pursuant to the provisions of this act, it shall appear to the department that such financial institution is insolvent or that the cash value of its assets is not sufficient to pay its creditors in full, the department may enforce the individual liability imposed by law upon the shareholders of such financial institution, and for that purpose shall mahe demand in writing upon each shareholder for the payment of his proportionate part of the amount necessary to pay the creditors of such financial institution in full, and shall mail such demand to each of the shareholders, at their last known address, setting forth in such demand, the total amount required for such purpose from all shareholders, and the proportionate amount required from the shareholder to whom such demand is addressed. The demand shall also fix a date, not earlier than thirty days from the date thereof, upon which the shareholders shall be required to pay such amount to the department. If any shareholder shall fail, neglect or refuse to pay the amount so demanded from him, within the time fixed by such demand, the department shall have a cause of action, and may proceed, in the name of the state of Indiana, on the relation of the department, in the circuit or superior court of the county in which the principal office of such financial institution is located, and/or in any other court of competent jurisdiction in this state or in any other state, against any shareholders, for the collection of such unpaid demands, with interest thereon at the rate of six per cent per annum from the date when the same became due and payable, together with the cost of such action. If any such action the written statement of the department reciting its determination to enforce the individual liability of such shareholders, or any part thereof, and setting forth the value of the assets of such financial institution, and the liabilities thereof, as determined by the department, after examination and investigation, shall be conclusive evidence of the facts therein stated. If the amount so collected by the department from the shareholders of such financial institution is not sufficient to pay the creditors in full, and the full liability of such shareholders for the payment of the indebtedness of the financial institution has not been exhausted, the department, may, by subsequent and successive demands and actions, collect from each shareholder his proportionate part of the amounts required for such purpose until the full liability of each shareholder has been exhausted. Any amount collected by the department from the shareholders, as provided in this section, and remaining after the payment of the costs and expenses of making such collection, the payment in full of the debts and liabilities of such financial institution, and the costs and expenses of liquidating such financial institution, including attorneys fees, shall be returned pro rata to the shareholders from whom such collection was made, but the costs and expenses of liquidating such financial institution and/or its assets shall not be paid out of such amount unless and until all creditors have been paid in full. The term shareholder, ’ as used in this section, means and includes a shareholder, partner or owner.” (Italics ours.)

Horace B. Parker, a resident of La Grange, Illinois, died on December 30, 1933. On March 2, 1934, letters testamentary were issued out of the probate court of Cook county to Clara M. Parker, as executrix of the last will and testament of Horace B. Parker, deceased. At the hearing in the instant proceeding and before any evidence was offered, the attorneys for the claimant served a demand on the attorneys for the executrix to produce the original of an alleged notice provided for by sec. 63 of the Indiana statute, which it is claimed was mailed to Parker. A copy of this alleged notice is hereinafter set forth. In reply to this demand, Louis J. West, one of the attorneys for the executrix, defendant, stated that he had personally handled all of the legal matters with reference to the probate of decedent’s estate, and that he at no time had seen or had heard of the notice described in the demand, that the notice had not been received by counsel for the executrix, and that there is no claim made that the letter or notice referred to in the demand was ever in the possession of the executrix or of her attorney. It is not claimed that she did not receive it. The original of such notice was not produced. Thereupon the court admitted the following testimony:

Over the objections of defendant, Jack Lazerwitz, a witness for claimant, identified what he claimed to be a carbon copy of a letter addressed to Horace B. Parker, Fifth Avenue, La Grange, Illinois, on March 19, 1934, consisting of two pages signed by Richard McKinley, director, Department of Financial Institutions of the State of Indiana, attested by H. B. Wells, secretary of such commission for financial institutions, and further testified that this letter was, under the jurisdiction and supervision of the witness, placed in an envelope, bearing a return address, which envelope was addressed to Mr. Horace B. Parker, Fifth Avenue, La Grange, Illinois, and that the envelope containing the original letter was delivered to the United States post office in Gary, Indiana, and postage of 18 cents was placed on the envelope and registered, with the request for a return receipt, and was then and there deposited with the United States Postal Department for delivery. This copy was offered and received in evidence over the objections of defendant. On cross-examination, this witness stated that the letter was neither drafted by him nor by his office; that all letters of demand on stockholders had been drafted by the Department of Financial Institutions in Indianapolis, with the exception of addressing and mailing of notices, but that such notices were sent from Indianapolis to Gary for addressing and mailing to the stockholders of record of the Fifth Avenue Bank; that all notices of demand were mailed at the same time; that he saw some envelopes containing notices ready for mailing, but did not personally know whether any of .such notices included a notice addressed to the decedent or whether any such notice was received by the decedent or anyone acting as his agent, and that he did not personally mail such notice, nor did he know that such notices were actually mailed. The document referred to by this witness is as follows:

“Demand por Shareholders’ Liability Fifth Avenue Bank,

Gary, Indiana “Mr. Horace B. Parker,

Fifth Avenue,

La Grange, Illinois

“March 19, 1934

“You are hereby notified that the Department of Financial Institutions of the State of Indiana has taken possession of the business, property, and assets of the Fifth Avenue Bank, for the purpose of liquidating the same pursuant to the provisions of the Indiana Financial Institutions Act, approved February 24, 1933.

“You are hereby further notified that the Department acting by and through the Commission for Financial Institutions of the State of Indiana finds that the bank is insolvent and has determined that the cash value of the assets of said Fifth Avenue Bank are not sufficient to pay all of the debts and liabilities thereof in full; that the liabilities of said Fifth Avenue Bank are more than $26,588.84 in excess of the cash value of all of its assets; that the total amount required to pay all creditors of said Fifth Avenue Bank in full is not less than $43,133.62; that the total amount of the par value of the common capital stock of said Fifth Avenue Bank issued and outstanding is $50,-000.00; that by virtue of section 6 of article 11 of the Constitution of the State of Indiana and section 240 of the Indiana Financial Institutions Act, you are individually responsible as a shareholder of said Fifth Avenue Bank to an amount over and above your stock, equal to the respective shares of stock owned by you for all debts and liabilities of said Fifth Avenue Bank. That twelve and one-half shares of the common capital stock of said bank of the par value of $100.00 per share stand in your name on the books of said bank; that the full amount of your individual liability is required to pay all creditors of said bank in full and you are individually responsible for the amount of Twelve hundred fifty ($1,250.00) dollars; that demand is hereby made for the payment of said sum on or before 40 days from the date of this notice, said payment to be made to Jack Lazerwitz, Special Representative of the Department of Financial Institutions, in charge of the liquidation of said Fifth Avenue Bank.

“You are hereby notified that unless payment of the amount hereby demanded is made on or before 40 days from the date of this notice, interest upon the amount due will accrue at the rate of 6% per annum from the date the same is due and payable, and may be recovered together with the principal amount in a civil action instituted by the Department; that unless payment is made on or before the due date, the Department will institute such action or actions as it may deem necessary to enforce the collection of the liability imposed upon by law.

“(Sgd.) Richard McKinley,

Director, Department of Financial Institutions

“Attest:

(Sgd.) H. B. Wells,

Secretary, Commission for Financial Institutions.” This witness also identified the following document:

“Postmark of G-ary, Ind., Mar. 19, 1934. “Receipt for Registered Article No. 10426 Registered at the Post Office indicated in Postmark. Fee paid 15 cents Class — postage 1 Return Receipt fee 3 Spl. Del’y fee—

Delivery restricted to Addressee: in person......

or order ......

“Accepting employee will place his initials in space indicating restricted delivery.

Postmaster, per H. A.- (Mailing Office)

“The sender should write the name of the addressee on back hereof as an identification. Preserve and submit this receipt in case of inquiry or application for indemnity.

“Registry Fees and Indemnity. — Domestic registry fees range from 15 cents for indemnity not exceeding $50 up to $1 for indemnity not exceeding $1,000. The fee on domestic registered matter without intrinsic value and for which indemnity is not paid is 15 cents. Consult postmaster as to the specific domestic registry fees and as to the registry fees chargeable on registered parcel-post packages for foreign countries. Fees on domestic registered C. O. D. mail range from 25 cents to $1.20. Indemnity claims must be filed within one year (C. O. D. six months) from date of mailing.

“Form 3806 (Rev. 7-1-29) C5-6852 II. S. Government

Printing Office”

He further identified registry return receipt No. 10426, received March 22, 1934, by plaintiff, issued by the Post Office Department of the United States addressed to Fifth Avenue Bank, 115 West 5th Avenue, Gary, Indiana, signed “H. B. Parker, by Alice Broddy,” dated March 21, 1934. This document was also received in evidence over the objections of the defendant, and is as follows:

“Return Receipt

“Received from the Postmaster the Registered or Insured Article, the original number of which appears on the face of this Card.

“H. B. Parker,

(Name of addressee)

Alice Broddy,

(Signature of addressee’s agent)

“Date of delivery 3-21, 1934 Post Office Department, Official Buisness Registered Article No. 10426 Return to Fifth Avenue Bank

Street and number or Post Office Box 115 W. 5th

Post Office at Gary

State Ind.”

For claimant, Walter O’Brien testified that he was a postal carrier out of the post office at La Grange, Illinois, on and about March 21, 1934, and that he delivered a registered letter' to the residence of the late Horace B. Parker at 300 South Stone avenue in La Grange, Illinois, by handing the same to one Alice Broddy. The witness stated that Alice Broddy was a maid in the home of Horace B. Parker for more than two years prior to the death of Parker, and that she accepted the registered letter, and in his presence, signed the receipt therefor, the same being the document hereinbefore mentioned. This witness also testified that on March 20, 1934, and for some months previous thereto, and for two or three months thereafter, Clara M. Parker resided at 300 South Stone avenue, La Grange, Illinois, and that mail matter given to the witness for delivery, addressed to Horace B. Parker, H. B. Parker and Mr. Parker, were delivered by him to the address given. On cross-examination, after examining the receipt before referred to, issued by the United States Postal Department, he testified that he did recall that he delivered the envelope in question to Alice Broddy, as shown by the receipt.

We are of the opinion that the record indicates that there is sufficient proof that demand was made as provided by the Indiana statute. What the statute requires is that the notice be mailed to the last known address of the stockholder. The record indicates that this was done, and that such notice was delivered at the last residence of Parker.

It seems to be admitted by defendant that under the constitution and the statute of Indiana, Horace B. Parker, in his lifetime and his estate after his death, would be liable to an amount over and above their stock equal to their respective shares of stock for all debts and liabilities of the bank, but it is insisted that there must be an adjudication by an Indiana court as to just what this liability amounts to, before an action can be brought to recover therefor in Illinois or elsewhere. We again call attention to the following paragraphs of sec. 63 of the Indiana Act already quoted:

“If, at any time after the department has taken possession of the business and property of any financial institution, pursuant to the provisions of this act, it shall appear to the department that such financial institution is insolvent or that the cash value of its assets is not sufficient to pay its creditors in full, the department may enforce the individual liability imposed by law upon the shareholders of such financial institution. . . .

“In any such action the written statement of the department reciting its determination to enforce the individual liability of such shareholders, or any part thereof, and setting forth the value of the assets of such financial institution, and the liabilities thereof, as determined by the department, after examination and investigation, shall be conclusive evidence of the facts therein stated.”

In the case of Kingston v. Old Nat. Bank of Centralia, 359 Ill. 192, suit was brought in the circuit court of Marion county by the commissioner of banking of the State of Wisconsin against the defendant, as executor, to collect a superimposed liability of defendant’s decedent as a stockholder of the Merchants Exchange Bank of Door county, Wisconsin. Judgment was rendered for plaintiff. Except as to the question of notice, the same issues were presented there as are presented here, the Wisconsin statute being similar to the Indiana statute, and in sustaining the judgment, the Supreme Court said: ‘ The liability here sought to be enforced against the decedent’s estate is not in the nature of a penalty but is a statutory and contractual provision imposed by our national laws as to stockholders of national banks, as well as by practically all, if not all, of the States of the Union as to stockholders of State banks. Such liability is known to the public generally, and our legislative bodies, both State and national, have enacted legislation for the purpose of affording security to the depositors of a bank by indemnifying, to the extent of a superadded stockholders’ liability, creditors of any banking institution which fails. In our own State, as well as other States, the superimposed liability is written into the constitution. As a general rule it is only where the liability charg’ed is of a penal nature or its enforcement confined by statute to the laws of the State wherein the liability is incurred that the courts for foreign States refuse to enforce such liability. Here the liability is several and independent, with the express provision made by the statute for its collection from non-residents of the State. It is not a special remedy nor a penalty but is a contractual obligation, suits for the collection of which may be maintained in Illinois.” Citing Bell v. Farwell, 176 Ill. 489; Edwards v. Schillinger, 245 Department of Financial Institutions of the State of Indiana, Appellant, v. Clara M. Parker 231.

It seems not to be disputed that under the Federal Banking Act, the Federal comptroller is given practically the same powers as are given to the Department of Financial Institutions of the State of Indiana, and in a similar case, Kennedy v. Gibson, 8 Wall. (U. S.) 498, the Supreme Court of the United States said:

“The receiver is the instrument of the comptroller. . . . It is for the comptroller to decide when it is necessary to institute proceedings against the stockholders to enforce their personal liability, and whether the whole or a part, and if only a part, how much, shall be collected. These questions are referred to his judgment and discretion, and his determination is conclusive. The stockholders cannot controvert it. It is not to be questioned in the litigation that may ensue. He may take it at such time as he may deem proper, and upon such date as shall be satisfactory to him. This action on his part is indispensable, whenever the personal liability of the stockholders is sought to be enforced, and must precede the institution of suit by the receiver. ... It would be attended with injurious consequences to forbid action ag*ainst the stockholders until the precise amount necessary to be collected shall be formally ascertained. This would greatly protract the final settlement, and might be attended with large losses by insolvency and otherwise, in the intervening time. The amount must depend in part upon the solvency of the debtors and the validity of the claims. Time will be consumed in the application of these tests, and the results in many cases cannot be foreseen. The same remarks apply to the enforced collection from the stockholders. A speedy adjustment is necessary to the efficiency and utility of the law; the interests of the creditors require it, and it was the obvious policy and purpose of Congress to give it. If too much be collected, it is provided by the statute, that any surplus which may remain after satisfying* all demands against the association, shall be paid over to the stockholders. It is better they should pay more than may prove to be needed than that the evils of delay should be encountered.” It is here to be noted that sec. 63 of the Indiana statute already referred to, contains a provision similar to the Federal statute with regard to the return of any overplus which might be collected.

We are of the opinion that the court was in error in dismissing the claim. The judgment of the circuit court of Cook county is, therefore, reversed, and the cause is remanded to the circuit court.

Reversed and remanded.

Hebel, P. J., and Denis E. Sullivan, J., concur.


author: Mr. Justice Hall,

text:
    The People of the State of Illinois, Appellant, v. Elizabeth Williams, Appellee.
    Gen. No. 39,560.
    Opinion filed December 15, 1937.
    Thomas J. Courtney, State’s Attorney, for appellant ; Edward E. Wilson and Amos P.’ Scruggs, Assistant State’s Attorney, of counsel.

      No appearance for appellee.
   Mr. Justice Hall,

delivered the opinion of the court.

By this appeal the People of the State of Illinois, complainant, seek to have reviewed a judgment of the municipal court of Chicago, rendered December 23, 1936. Nothing is here but the common law record, no bill of exceptions having been preserved.

The defendant, Elizabeth.Williams, was tried on an information charging that on September 28, 1936, she committed an assault upon one Hollis Keeton with a knife, the same being a deadly weapon, with intent to inflict upon the person of Keeton, a bodily injury. Defendant was convicted and sentenced to the house of .correction for six months and to pay a fine of $1 and costs. After defendant had served approximately 10 days of her sentence, notice was served upon the People, represented by the State’s attorney, that defendant would present to the court a petition in the nature of a writ of error coram nobis. On October 15, 1936, this petition was presented to the court, and in it, it is alleged that upon the hearing upon the charge, upon which defendant was found guilty, she was not represented by counsel; that she was not guilty of the charge made in the complaint, because she acted in self defense; that a witness who saw and knew all of the facts with reference to the alleged assault, was present in court and ready to testify, but was not called, and that if such witness were permitted to testify, it would be shown by such testimony that defendant was justi-fled in committing the alleged assault, because, as stated, it was made in an effort to defend the defendant from an assault made by Keeton upon her. The prayer of the petition is that the judgment be opened and the order vacated and that defendant be permitted to appear and make a defense. The People presented a motion to dismiss the petition, which was overruled. After a hearing on the petition, the abstract indicates that the court directed that defendant be brought into court, and then entered an order as follows: “On December 23, 1936, defendant given a new trial except as to time served. Defendant arraigned, plead not guilty. . . . Defendant duly advised as to her right to trial by jury elects to waive jury. By agreement cause is submitted to the court for hearing. ‘The court finds the defendant g*uilty in manner and form as charged in the information herein. "Wherefore, it is ordered that the same be entered of record herein. ’ Defendant admitted to probation on application previously filed and released for parole six months from this date, December 23, A. D. 1936, in the care of the chief probation officer. ’ ’ There is no appearance here for defendant. .

As to the charge in the petition that defendant in the first trial was not represented by counsel, our attention is directed to the order entered by the court at that time, and upon that hearing and the finding of the court made at that time, which is as follows :

“The People are represented by the State’s Attorney and the defendant being- present in her own proper person as well as represented by counsel, testimony of witnesses heard, arguments of counsel and the court being fully advised in the premises renders the following finding, to-wit: ‘The Court finds the defendant guilty in manner and form as charged in the information herein. Wherefore, it is ordered that the same be entered of record herein.’ ” The finding of the court negatives the suggestion that defendant was not represented by counsel at the original trial. See People v. Parcora, 358 Ill. 448.

As to the propriety and purpose of the proceeding-in the nature of a writ of coram nobis, the Supreme Court in the case of Jacobson v. Ashkinaze, 337 Ill. 141, said:

“The purpose of the writ coram nobis at common law, and of the statutory motion substituted for it in this State, is to bring before the court rendering the judgment matters of fact not appearing of record, which, if known at the time the judgment was rendered, would have prevented its rendition. Illustrations of such matters are the disability of the parties to sue or defend, the failure of the clerk to file a plea or answer, and the omission to interpose, through fraud, duress or excusable mistake and without negligence on the part of the defendant, a valid defense existing in the facts in the case. The motion is not available to review questions of fact which arise upon the pleadings or to correct errors of the court upon questions of law.”

In People v. Bruno, 346 Ill. 449, a petition of the same character, for the same purpose, and under similar circumstances, was presented to the criminal court of Cook county after the petitioner in that case had been found guilty of a felony. The court denied the petition, the petitioner took an appeal, and in affirming the judgment of the criminal court of Cook county in denying the petition, the Supreme Court said:

“While the writ of error coram nobis has been abolished, the same errors which at the common law could have been corrected by that writ may now be corrected under section 89 of the Practice act, upon motion in writing, by the court in which the error was committed. The office of the writ of coram nobis was to bring the attention of the court to and obtain relief from errors of fact, such as the death of either party pending the suit and before judgment therein; or infancy, where the party was not properly represented by guardian; or coverture, where the common law disability still exists; or insanity, it seems, at the time of the trial; or a valid defense existing in the facts of the case but which, without negligence on the part of the defendant, was not made, either through duress or fraud or excusable mistake, these facts not appearing on the face of the record and being such as, if known in season, would have prevented-the rendition and entry of the judgment questioned. (People v. Noonan, 276 Ill. 430.) The motion, however, is not available to review questions of fact which arise upon the pleadings or to correct errors of the court upon questions of law. (Jacobson v. Ashkinaze, 337 Ill. 141.) The motion under section 89 is an appropriate remedy in criminal cases to set aside a conviction if obtained by duress or fraud, or where by some excusable mistake or ignorance of the accused, and without negligence on his part, he has been deprived of a defense which he could have made at his trial, and which, if known to the court, would have prevented a conviction. (People v. Moran, 342 Ill. 478; People v. Crooks, 326 id. 266.) While the motion provided for in section 89 of the Practice act to correct errors of fact may be availed of by a party who without fault or negligence has been prevented from making a defense, yet the motion is not intended to relieve a party from the consequences of his own negligence. (McCord v. Briggs & Turivas, 338 Ill. 158; Cramer v. Commercial Men’s Ass’n, 260 id. 516.) All of the facts stated as grounds for relief in plaintiff in error’s petition or motion were facts which were known to him at the time of his trial in the criminal court on the charg*e of robbery and they were not brought to the attention of the court by reason of his negligence. Plaintiff in error, therefore, could not obtain this relief by his petition or motion under section 89 of the Practice act, and the criminal court properly sustained the demurrer filed by the State’s attorney to the petition. ’ ’

As shown by the record, upon the second hearing there was not one scintilla of evidence offered by the defendant to sustain any of the allegations made in the petition filed and the court again found her guilty, apparently upon the evidence offered at the first hearing. We are of the opinion that the court was in error in granting the prayer of the petitioner, in granting a new trial, in vacating the judgment entered September 29, 1936, finding defendant guilty, as charged, and in discharging the defendant. It is, therefore, ordered that the order discharging" the defendant be reversed and that the cause be remanded with the direction that the trial court order her remandment to the house of correction to serve the remainder of the sentence already imposed.

Reversed and remanded.

Hebel, P. J., and Denis E. Sullivan, J., concur.


author: Mr. Justice Denis E. Sullivan

text:
    Marvin Jefson for Use of Elaine Alber, Administratrix of the Estate of Walter Alber, Deceased, Appellee, v. London Guarantee and Accident Company, Ltd., Appellant.
    Gen. No. 39,445.

      Opinion filed December 15, 1937.
    Rehearing denied December 28, 1937.
    Miller, Gorham, Wales & Adams, for appellant; Edward B. Adams and Herbert C. De Young, of Chicago, of counsel.
    Alfred Boy Hulbert, of Chicago, for appellee.
   Mr. Justice Denis E. Sullivan

delivered the opinion of the court.

This is an appeal taken from a judgment entered in the circuit court in favor of Marvin Jefson for use of Elaine Alber, administratrix of the estate of Walter Alber, deceased, and against the garnishee, London Guarantee and Accident Company, Limited, a corporation, in the sum of $10,457.66. The cause was tried before the court without a jury.

The evidence shows that the London Guarantee and Accident Company had issued a policy of liability insurance to Louisa B. Jackson. The question arising on this appeal is whether Marvin Jef son, who was employed by Mrs. Jackson as a chauffeur and houseman and who was driving Mrs. Jackson’s automobile at the time of the accident, was an additional assured under the policy aforesaid.

Plaintiff contends that Jefson was an additional assured under the policy, while the garnishee denies that Jefson was driving the automobile with the consent of the assured and argues that there is no liability whatsoever under paragraph 9 of its policy, commonly referred to as the omnibus clause.

A stipulation of facts was entered into between the parties hereto, upon which the case will be considered. The stipulation reads as follows:

“Stipulation of Facts:

“1. That on June 23, 1934, the garnishee insurance company issued to Mrs. Louisa B. Jackson, who is one and the same person as Mrs. Arthur S. Jackson, a certain policy of automobile public liability insurance No. KD 776656, an exact copy of which policy is attached hereto as Exhibit ‘A’ and made a part hereof. The policy was in full force and effect on August 11, 1934.

“2. At that time Mrs. Jackson lived on her estate on Waukegan Boad in Lake Forest, Illinois, somewhat northwest of the city of Lake Forest, Illinois.

“3. Waukegan Boad is a road which runs in a generally northerly and southerly direction somewhat west of the city of Lake Forest, Illinois.

“4. Milwaukee Avenue is a road which, starting in the city limits of Chicago, runs therefrom in a northwesterly direction to Wheeling, Illinois, and thence almost due north. That at the latitude of Lake Forest and of the home of Mrs. Jackson on Waukeg'an Boad, Milwaukee Avenue and Waukegan Boad run substantially parallel in a north and south direction at a distance in excess of three and one-half (3%) miles apart.

“5. That the map attached hereto as Exhibit ‘B’ is hereby made a part hereof and incorporated herein by express reference and shall be considered as having been introduced in evidence and as accurate.

“6. Prior to this date Mrs. Jackson applied to the Secretary of State of Illinois and there was issued to her, an automobile license for the year 1934, No. 1282 for a Chrysler coupe, year 1933, Factory No. 7532094, Engine No. C. Q. 4246. This automobile was described in statement 4 of the above mentioned policy of insurance.

‘ ‘ 7. Marvin J ef son was, on August 11, 1934, in the employ of the defendant, Mrs. Jackson, as a chauffeur and houseman. About six o’clock on the evening of August 11,1934, he asked Mrs. Jackson for permission to take the above mentioned Chrysler coupe to g*o and have a hair-cut in Lake Forest. The other male employee of Mrs. Jackson was taking* his evening* off and Mrs. Jackson replied that it was impossible that Mr. Jefson should go. He said it would only take half an hour, and she replied, ‘Do you think in half an hour you can get a hair-cut? You know the rule is, there must be one driver on the grounds.’ He said he could do it. Whereupon Mrs. Jackson said that if he would be back in half an hour he could take it.

“8. The servants of Mrs. Jackson did not have standing permission to use cars. When they went on errands for her that was a different thing, but for their personal use they were never permitted to use the cars without coming to her. On one occasion she had loaned a car to one of the servants to drive into Chicago to go to a funeral.

“9. Mr. Jefson, immediately after the above conversation, took the automobile. He did not go to any barber shop in Lake Forest. Mr. Jefson drove south on Waukegan Road to the Half Day Road. He drove west on the Half Day Road to Milwaukee Avenue; then south on Milwaukee Avenue to the home of his sister, who was absent, the location of which home is marked on the map by the letter ‘A.’ This home was south of the village of Half Day. Then he drove southeastward on Milwaukee Avenue to Chicago, and into the neighborhood of North Avenue and Sedgwick Street, to an address at 434 Sullivan Street, the location of which on the map is marked by the letter ‘B.’ Later in the night he was driving northwestward on Milwaukee Avenue and south of the village of Wheeling, and at a point on the map marked with the letter ‘ C’ he collided with a motorcycle and another automobile parked on the east side of the pavement, causing the death of the plaintiff’s intestate. At this time he was on his way to his sister’s home. Her name was and is Mrs. Alice Weber. The location upon the map of Louisa B. Jackson’s home is marked with the letter ‘D.’ The route taken by Mr. Jefson after he left her home to the address at 434 Sullivan Street is marked on the map with a green crayon. The route taken by Mr. J ef son after he left 434 Sullivan Street and to the point of the accident was the same route reversed to the point of the accident.

“10. Elaine Alber is the duly appointed, qualified and acting administratrix of the estate of Walter Al-ber, deceased, by appointment of the Probate Court of Cook County, Illinois.

“11. As such administratrix she brought suit against Louisa B. Jackson and Marvin Jefson in the Circuit Court of Cook County, Illinois, case No. 35C 3454 and recovered a judgment in the sum of Ten Thousand Dollars ($10,000) and costs against Marvin Jefson. Upon the trial of that case there was a finding in favor of Louisa B. Jackson, and the case was dismissed as to her.”

The facts have been presented by stipulation so apparently no controversy exists as to them. As we view this case the only question to be determined is one of law, namely, “What is the -legal meaning of the additional assured clause as contained in the automobile insurance policy? ” The insurance policy in this case contains the following clause: “Sec. 9. Additional Assured. The term ‘Named Assured’ shall mean only the Assured specified in Statement 1, but the term ‘Assured’ shall include the named Assured and any other person while riding- in or legally operating such automobile, and any other person ... legally responsible for its operation, provided: (a) it is being used with the permission of the named assured . . .; (b) such other person or organization is not covered by any valid and collectible insurance against a loss covered thereby; ...”

From the facts as stipulated, Mrs. Jackson gave permission to her chauffeur and houseman Jefson to drive her automobile on the evening* of August 11, 1934; that this permission was given to him about 6 o ’clock in the evening as he said he wished to take the Chrysler coupe and go to Lake Forest to get a haircut; that Jefson told Mrs. Jackson that it would only take him, a half hour; that Mrs. Jackson asked him if he thought he could get a haircut in a half hour and reminded him of the rule that there had to be one driver on the grounds; that the other male employee of Mrs. Jackson’s was taking the evening* off; that Jefson said he could get a haircut in that time, whereupon Mrs. Jackson said that if he could be back in a half hour he could take the car, whereupon he took the car and drove away and according* to the stipulation of facts he was gone several hours; that during that period of time the automobile accident occurred, resulting* in the death of Walter Alber.

The first question confronting us is: Was Jefson made another assured by the permission given by Mrs. Jackson for him to use the automobile? We think from the facts stipulated there can be no doubt that immediately upon the permission being* given, Jefson was am, additional assured in accordance with section 9 of the insurance policy.

That brings ns to another question: Could a limitation be placed upon that permission by the statement of Mrs. Jackson, that if he could get his haircut in a half hour he could take the automobile, when there is no'such limitation as to permission expressed in the language used in the policy?

Counsel for defendant argues that the clause in the policy is subject to a reasonable limitation applying' to the time when the permission was given and also as to where the driver should go after the permission was granted. In support of his contention the defendant recites some authorities outside this jurisdiction. Frederiksen v. Employers’ Liability Assur. Corp., Ltd., of London, England (1928), 26 F. (2d) 76; Trotter v. Union Indemnity Co. (1929), 35 F. (2d) 104; Johnson v. American Automobile Ins. Co. (1932), 161 Atl. 496.

The questions here involved have heretofore been considered by this court in two cases in which the construction of the clause of the policy relating to additional assureds was considered. The case of Jackson for Use of Schaer v. Bankers Indem. Ins. Co. (1934), 277 Ill. App. 140, leave to appeal was denied by the Supreme Court. The facts in that case were that Fisher, a friend of Jackson’s, obtained the latter’s permission to use his automobile for the purpose of doing an errand and after having performed the errand Fisher went on a “joy ride” which resulted in an accident. The insurance company in that case contended that at the time of the accident the driver was not operating the automobile with the permission of the named assured. The company contended that at the time and place of the accident the driver was no longer using the automobile with permission, and in the Jackson case, supra, the court in quoting from the case of Stovall v. New York Indemnity Co., 157 Tenn. 301, said:

“It is our opinion that the words ‘providing such use or operation is with the permission of the named assured, ’ were intended to exclude from the protection of the policy a person who should take the automobile and use it without permission or authority in the first instance. If, however, the automobile covered by the policy is delivered to another for use with the permission of the owner or insured, his subsequent use of it is with the permission of the insured, within the meaning of the policy, regardless of whether the automobile is driven to a place or for a purpose not within the contemplation of the insured when he parted with possession.” That court further held that the use of the car was subsequent to permission and that the coverage in the policy applied.

In the case of Karton v. New Amsterdam Cas. Co., 280 Ill. App. 201, the insurance policy therein involved contained the following* clause:

“To Extend the insurance provided by this Policy, so as to be available, in the same manner and under the same conditions as it is available to the named Assured, to any person or persons while riding* in or legally operating any of the automobiles described in the Schedule, . . . provided such use or operation is with the permission of the named Assured.”

The facts in the case from which we have just quoted, were that a Mrs. Shepard owned a certain automobile which was covered by a policy of insurance issued by the New Amsterdam Casualty Co.; that she and a police officer, who was a friend of hers, had been riding and returned to her home about 12:30 in the morning; that the police officer lived four or five blocks from her home and she told him that he could take the automobile to g*o to his home and to bring it back the next morning; that Weiss, the police officer, drove away in the automobile of the assured, but did not go to his home; that he drove arofind Chicago, got drunk, and about 5:30 o’clock in the morning was driving the car about five miles from Mrs. Shepard’s home at a speed of between 70 and 90 miles an hour; that he ran head on into a truck, killing himself and injuring two other men. Suit was brought against his estate and judgment obtained. The insurance company contended that the police officer was not using the automobile at the time of the accident with the permission of the owner within the meaning of the policy; that the owner did not give the police officer permission to drive the automobile to other places around Chicago as he was doing at the time of the accident. The plaintiff contended that since the police officer was permitted to take the automobile in the first instance, there was a liability although he did not drive to his home, but many miles distant. The court quoted with approval from Dickinson v. Maryland Casualty Co., 101 Conn. 369, where that court held on a similar statement of facts that the insurance company’s position could not be maintained in the absence of an express provision in the policy. Also, that the policy could not be narrowly construed in its favor to limit its liability to such injuries only as might occur during the use of the automobile for the specified purpose and in the specified manner for which the permission was granted.

In the Karton case, supra, the court at page 206, in quoting from the Dickinson v. Maryland Casualty Co., 101 Conn. 369, said:

“The fact that the insurer in this case did not so restrict the term ‘permission’ is strong evidence that it did not by this provision intend this. To justify the strict construction claimed by the insurer, the terms of the policy prepared by the defendant ought to specifically so provide. The construction claimed by the defendant would convert all cases of this character into a contest as to the exact words spoken when permission was secured, and to an attempt upon the trial to convert by refinement any use of the car into a departure sufficient to annul the permission granted. ’ ’.

Continuing our reference to the Karton case, supra, this court in that case upheld the decision in the case of Stovall v. New York Indem. Co., 157 Tenn. 301. In the Stovall case the driver got permission to use an automobile ■ covered by a policy of insurance, for the purpose of driving persons around the City of Memphis, Tenn. After having secured permission, he drove the car on a special trip of his own, a considerable distance into Mississippi and while in Mississippi injured a person with the automobile. The court held that “permission” bound the insurance company, citing Drewek v. Milwaukee Auto. Ins. Co., 207 Wis. 445. In the latter case it is contended that the term “permission of the named insured” was intended to cover persons using the automobile with the insured’s consent in the first instance, regardless of the use such person thereafter made of the automobile.

It appears to us that if the assured in an automobile policy were able to limit the meaning of the word “permission,” both as to the length of time the permission be granted, as well as to where such automobile should be driven, and any nonobservance of such restrictions would relieve the insurance company of any liability, this would result in some absurd situations. If, for example in the instant case, at the expiration of one-half hour, Jefson was unable to have his haircut and reach home within that period of time, then somewhere en route the permission would expire and he would become a trespasser and would be guilty of a misdemeanor under- the laws of the State as driving without the consent of the owner. We are inclined to believe that such restriction and limitation could not be placed on the permission given under the terms of the policy. Permission to use an automobile is either granted or it is not granted and we do not believe the assured can limit the scope of such permission either as to time or place. We do not think the language of the policy admits of any such construction.

Plaintiff asks that this case be dismissed or affirmed with an assessment of 10 per cent damages, as provided by ch. 110, 1i 215, sec. 87, Ill. State Bar Stats. 1935; Jones Ill. Stats. Ann. 104.087, known as the Practice Act. This suit was fully prosecuted and the appeal was not dismissed. Consequently, the said section does not apply.

For the reasons herein given the judgment of the circuit court is affirmed.

Judgment affirmed.

Hebel, P. J., and Hall, J., concur.


text:
    Fred F. Gardner et al, Appellants, v. Auburn Park Trust and Savings Bank et al., Appellees.
    Gen. No. 39,499.
    Opinion filed December 15, 1937.

      Leonard & Leonard and Seyfarth & Atwood, of Chicago, for appellants; Cordon McLeish Leonard and Don H. McLucas, of counsel.
    Thomas C. Peering, of Chicago, for appellees.
   Mr. Justice Denis E. Sullivan

delivered the opinion of the court.

This is an appeal from an order entered in the superior court on October 23, 1936, changing and reducing the liability of certain stockholders of the Auburn Park Trust and Savings Bank, which was in the hands of a receiver, and whose liability as such stockholders had been determined and fixed by orders entered respectively on December 21, 1934 and January 13, 1936.

The action in which their liability had been fixed was a representative suit instituted in the superior court for the benefit of all the creditors of the Auburn Park Trust and Savings Bank against the stockholders of said bank to enforce their superadded constitutional liabilities under sec. 6 of art. XI of the Constitution of the State of Illinois. A default decree was entered in' said cause against certain of such stockholders on December 21, 1934, and as to the remaining stockholders the matter was referred to a master in chancery who heard the evidence relative to the liability of the remaining stockholders and made a report to the court and on January 13, 1936, a final decree based on said master’s report was entered against the remaining defendant stockholders adjudicating the liabilities of the stockholders of said bank to its creditors. It is from a subsequent order entered October 23, 1936, that this appeal is perfected.

The order entered October 23, 1936, authorized and directed the receiver to collect stockholders ’ liabilities herein, to accept from any defendant stockholder of the Auburn Park Trust and Savings Bank 70 per cent of the principal amount of his decreed liability at any time within 120 days, 72% per cent at any time within 6 months from and after 120 days and 75 per cent at any time within 1 year from and after 120 days, in full settlement, satisfaction and discharge of the decreed liabilities of the defendant stockholders. The order from which this appeal was taken was entered upon the petition of certain defendants against whom the decree had theretofore fixed their liabilities. The order was entered over the objection of certain creditor plaintiffs and also the objections of the receiver appointed to collect stockholders ’ liabilities herein, and without the introduction of any evidence.

Plaintiffs’ theory is that the court was without jurisdiction to alter or amend the decrees of December 21, 1934 and January 13, 1936, 30 days after their entry; that the order was erroneous in that it deprives creditors of their vested rights as established by said decrees; that there is no competent evidence to support said order and that there is no justification in the fact or law of the case for the entry of said order.

Defendants’ theory is that the court had jurisdiction to alter and amend its decrees more than 30 days after the entry thereof based upon the “broad equitable powers” of the court.

It appears from the abstract before us that certain of the petitioners were desirous that a reduction be made in the amounts they were to pay as ordered by the decree of December 21, 1934, and the decree entered January 13, 1936, and appealed from the order fixing their liability and that the same is now pending in the Supreme Court. The pending of such appeal and the uncertainty regarding the same is one of the reasons, petitioners allege, why the trial court should enter into a compromise with them for the purpose of settling the litigation.

It further appears that a payment of 17% per cent had been made to the creditors of this bank from various sums that had been paid either voluntarily or collected by the receiver.

In answer to the petition for a reduction of the assessment, the plaintiffs appellants point out that said petition did not offer to pay any part of the costs assessed or interest accrued upon said decrees; that said petitioners were highly solvent and that none of said petitioners had asserted an inability to pay as directed in said decree theretofore entered; that the petitioners made no affirmative undertaking to pay the amount proposed in compromise.

The power under the statute relating to the compromise of liability is expressed in the Illinois Banking Act, Ill. State Bar Stats. 1935, ch. 16a, 1i 11; Jones Ill. Stats. Ann. 10.11, which reads in part as follows: “Said receiver shall have authority upon the order of the court appointing him to employ such auditors and assistants as may be necessary to establish and recover the liabilities of the stockholders, and may, with the approval of the court, enter into compositions with insolvent stockholders, if any.”

There was no allegation of insolvency made by the petitioning stockholders wherein they asked to compromise their liability. The receiver did not petition the court to compromise the liability, in fact, he objected to it. The petitioners admit that the decrees of the court of December 21, 1934, and January 13, 1936, fixing their liability were final orders as evidenced by their action in praying and perfecting an appeal to the Supreme Court.

Counsel for appellees suggests that the court entered the order because the court w¡as of the opinion that the many years’ delay in collecting the assets could be speeded up and that it would be better that the creditors receive their money at this time, even. though it would be for a lesser sum than that to which they were entitled under the law, rather than wait for several years to receive a larger payment and that the court was able to do this under the “broad equity powers” of the court.

As before stated, the record in this case discloses that no allegation as to the insolvency of these petitioning stockholders was filed in this case. No notice was given to the remaining stockholders or creditors who would be affected by this decree and no sworn evidence was heard to prove any of the allegations of the petition.

In the recent case of Burket v. Reliance Bank & Trust Co., 367 Ill. 196, wherein the facts are almost identical with the facts in the instant case, the court at page 201, said: “The suit to establish the liability of the individual stockholder is a suit of the creditors and theirs alone, and they have a right to pursue their own remedies in regard to their own individual property. After the liability of each individual stockholder is established by a decree entered in the suit, the money which is collected belongs to the creditors. (Golden v. Cervenka, 278 Ill. 409.) The stockholders’ liability is not one to the bank but to the creditors and the creditors, either alone or by representative suit, are the only ones who can enforce the liability by such remedies as the law affords. (Golden v. Cervenka, supra; Wincock v. Tiorpin, 96 Ill. 135; Runner v. Dwiggins, 147 Ind. 238; 46 N. E. 580; Colton v. Mayer, 90 Md. 711.) Regardless of whether the clause here under consideration grants to the receiver and courts power to control the property rights of the individual creditors which transcends constitutional limitations, it is evident that any proceeding by which approval of an official act is sought, contemplates notice to the parties in interest, a hearing of evidence and a determination of the essential facts upon which the exercise of the power rests. These are essential to due process of law. Here nothing of that sort was done. In the Rappeport matter the petition contained no allegation that the petitioner was insolvent. No attempt was made to determine that question and no hearing was had. While in the Corbly petition there was an allegation of insolvency, the petition was not under oath and a verified answer of the plaintiffs thereto, calling for strict proof of the fact of the insolvency of Corbly, was filed. Yet, in this condition of the record, the court entered the orders complained of without requiring the production of any evidence or the testimony of any witness to justify a finding of fact that either of the petitioners was insolvent.

“Due process contemplates, as an essential, not only notice but an opportunity to be heard and to give evidence. It is of no avail if one be summoned to a court and the issues determined against him without the hearing and determination of questions of fact. (Hultberg v. Anderson, 252 Ill. 607; Fayerweather v. Ritch, 195 U. S. 276, 49 L. ed. 193.) Here the orders were entered on the petitions of the defendants, stockholders, without evidence. The record does not support the orders of the trial court. The issue of insolvency of Corbly and Rappeport was a matter lying at the bottom of any power of the court to approve a compromise of their liability found by the decree, yet no evidence was heard on that matter. The burden of proving insolvency rested upon Corbly and Rappeport, and, in the absence of consent of plaintiffs, it was incumbent upon petitioners to substantiate the allegations of the petitions by proof. This is elemental. (Hooper v. Talbot, 343 Ill. 590; Abhau v. Grassie, 262 id. 636.) A judgment entered without a hearing of the basic issues of fact is in reality only an arbitrary declaration of the judge, having no reference to the liability involved, and this is true though it purports to be a judicial determination of those rights. In the Rappeport matter, as we have seen, there was not even an allegation of Rappeport’s insolvency, though such allegation is essential to bring the petition within the provisions of the Banking act here under consideration. (Day v. Talcott, 361 Ill. 437.) Nor does the fact that a decree had been entered against Corbly and Rappeport aid appellees. The money decree against Corbly and Rappeport was quite as much a property right of the creditors as the original contract of the stockholders to pay the liabilities of the bank. The decree afforded appropriate means of enforcing those contractual obligations, (Worthen Co. v. Thomas, 292 U. S. 426, 78 L. ed. 1344,) and even though it be held that this clause of section 11 of the Banking act is a constitutional enactment, yet appellants had a right to a judicial hearing before their rights arising under the decree were modified.”

Evidently the court in the instant case was desirous of bringing to a close, litigation which had been pending for years and was also attempting to benefit the creditors of this bank by expediting payment from the stockholders under the double liability clause of the constitution, thereby permitting an early distribution of the money due such creditors, even though the amount to be paid would be somewhat less than that to which they were entitled under the law. However, this cannot be done in contravention of the rights of the creditors and without notice and hearing of evidence, regardless of how desirable the result to be obtained might be. The court had no power to change its former decrees, except upon proper allegations, notice to all concerned and sworn evidence in court.

We do not think it is necessary to pass upon the other points raised by appellant.

For the reasons herein given the order of October 23,1936, reducing the amount of the liability of the petitioning stockholders, is hereby reversed.

Order reversed.

Hebel, P. J., and Hall, J., concur.