source: Caselaw Access Project

author: Mr.- Justice Shurtleff

license: Public Domain

text:
    William Perry Stephens, Surviving Executor of the Last Will and Testament of Nancy Stephens, Deceased, Appellee, v. Illinois Central Railroad Company, Appellant.
    Gen. No. 8,351.

      Opinion filed February 3, 1930.
    Vernon W. Foster and Green, Palmer & Jones, for appellant; Edward C. Craig, William G. Palmer and Oris Barth, of counsel.
    Dobbins & Dobbins, for appellee.
   Mr.- Justice Shurtleff

delivered the opinion of the court.

This was an action of trespass on the case originally brought by Charles H. Stephens and William Perry Stephens as executors of the last will and testament of Nancy Stephens, deceased, plaintiffs, against the Illinois Central Railroad Company and the City of Paxton, Illinois, as defendants, claiming damages on account of the death of Nancy Stephens. The Illinois Central Railroad Company was served with summons in the cause but the City of Paxton, the other defendant, was never served with summons, nor did it appear in the case. The ease was therefore tried against the railroad company as the sole defendant. During the pendency of the case Charles H. Stephens, one of the executors of the will of Nancy Stephens, and one of the plaintiffs in the case as such executor, died. The death of Charles H. Stephens was suggested and the case was thereupon prosecuted and tried in the name of William Perry Stephens as surviving executor of the last will of the deceased, Nancy Stephens.

The declaration consisted of three counts, in the first two of which it was charged that the defendant, Illinois Central Railroad Company, had prior to July 6, 1927, by and with the consent of the City of Paxton, excavated a passage way for its tracks across a street known as Patton Street in said city, at a depth of 20 feet below the grade of Patton Street; that prior to said excavation the tracks of the railroad company had crossed said Patton Street at grade; that the defendant railroad company at the time of said excavation had constructed a bridge along the center of Patton Street over said excavation, but that the bridge was not as wide as the width of Patton Street. There was no evidence offered in the case to show that the railroad company constructed the bridge or to show by whom it was constructed. The declaration further charged that the railroad company in the City of Paxton carelessly and negligently left the said excavation across Patton Street on either side of said bridge exposed and unprotected; that on July 2, 1927, the deceased, Nancy Stephens, was riding in an automobile upon Patton Street and that the automobile ran into the excavation north of the bridge on Patton Street and as a result thereof she was injured and died, leaving her surviving her husband, Thomas Stephens, also known as Thomas Jefferson Stephens, and her sons, Charles H. Stephens and William Perry Stephens. The right of way of the railroad company and the excavation referred to ran north and south through the City of Paxton, while Patton Street and the bridge along the same over the excavation ran in an easterly and westerly direction. The sole negligence charged in the declaration against the defendant railroad company was the alleged failure to guard the excavation, north and south of the bridge, by fence or rails, etc.

The third count of the declaration recited the same alleged facts as in the first two counts and charged by reason of the same wilful and wanton conduct on the part of the defendant. To each of the three counts of the declaration the defendant, Illinois Central Railroad Company, demurred generally and specially, and the demurrer was sustained as to the third count and overruled as to the first and second counts. The plaintiff did not amend the third count, the defendant railroad company pleaded the general issue to the first two counts and the case was tried upon the first and second counts.

In both the first and second counts it was merely alleged that the deceased Nancy Stephens was riding in an automobile upon Patton Street and was at the time in the exercise of due care for her own safety; it developed in the evidence that the automobile in which she was riding at the time of the accident was being driven by her husband, Thomas Jefferson Stephens, who was one of the next of kin for whose benefit the action was brought. There was no allegation in either of the counts as to who was driving the automobile at the time and there was no allegation, either direct or indirect, that the driver of the automobile, being the husband of the deceased, was in the exercise of due care at any time.

We have gone into brief detail as to the declaration for the reason that several questions arising from the same are important in the review of this case and will be discussed later.

The evidence shows that the railroad company’s right of way, 200 feet wide, and its tracks had been laid out and established in the place in question prior to the time the City of Paxton, formerly known as Prospect City, was laid out and platted in the year 1857. The railroad company was the owner of the 200 foot right of way. No evidence was offered as to any dedication or platting of Patton Street across the railroad company’s right of way in the City of Paxton, but the plaintiff called several witnesses who testified that prior to the making of the excavation, which occurred several years before the date of the accident, July 6, 1927, vehicles and pedestrians had crossed the railroad right of way at this point and that there were planks laid between the rails to the width of from 32 to 36 feet; that there was a sidewalk about "five feet north of the end of the planks, but no sidewalk on the south side of the planks. It was not solidly planked between the rails and there was nothing but the ground between the planks and the sidewalk referred to. There was no pavement on Patton Street prior to the time of the excavation of the railroad right of way. Any use of a passageway by vehicles or pedestrians over the -railroad right of way began long after the railroad'company acquired the ownership of the land occupied by its right of way.

The accident resulting in the death of Nancy Stephens happened on July 6, 1927. The deceased at the time was riding in an automobile driven by her husband, Thomas Jefferson Stephens. The automobile was being driven north on Railroad Avenue, a paved street running north and south in the City of Paxton, situated a short distance east of the railroad excavation and the Patton Street bridge. The automobile came up to the street intersection of Railroad Avenue and Patton Street and turned west on Patton Street and as it made the turn was driven off of the north side of Patton Street pavement across a concrete sidewalk and for a considerable distance over the earth surface within the railroad right of way and then into the railroad excavation north of the bridge in question. The automobile then overturned and the deceased received the injuries from which she died.

Several years prior to the date of the accident the railroad excavation was made and the Patton Street bridge constructed over the excavation. To the east of the Patton Street bridge there was a paved street known as Railroad Avenue, running north and south through the City of Paxton, and over which State Highway No. 25 was routed. Patton Street at the time of this accident was a paved street running east and west and the intersection of Patton Street and Railroad Avenue was east of the Patton Street bridge. The defendant’s witness Kromeenes had made accurate measurements with a Lufkin metallic tape of the conditions and objects there at the street intersection and at Patton Street bridge and had prepared a plat showing these measurements and the conditions there at the scene of the accident.

The width of the pavement on Railroad Avenue from face to face of curb just south of the street in-, tersection with Patton Street is 25 feet. The pavement on Patton Street, going west $i‘ter it leaves the street intersection, and as' it crosses the Patton Street bridge, is 24 feet wide. On each of these two pavements there is a 6-inch concrete curb except for a short distance on the Patton Street pavement on the west side of the street intersection.

The Patton Street bridge was constructed of concrete and carried a pavement across it of the width of 24 feet from face to face of curb,.then a 6-inch concrete curb on each side of the pavement and then on each side of the pavement and clear across the bridge a concrete sidewalk of the width of 5 feet. Along' the bridge and on the outside of each sidewalk was a concrete railing extending the entire length of the bridge and east to a point 14% feet east of the east abutment of the bridge and 7% feet east of the east edge of the railway excavation. The Patton Street bridge was 34 feet wide between the concrete railings.

The distance from the center line of Railroad Avenue directly west to the east end of the bridge was 57 feet and 6 inches and the distance from the center line of Railroad Avenue to the east edge of the railway excavation was 65 feet and 3 inches. The Patton Street pavement at the street intersection was brick pavement extending from the center' line of Railroad Avenue west 19 feet and 8 inches. Continuing the brick pavement on Patton Street to the west, there was a strip of macadam pavement 11 feet 4 inches wide. Along the north side of that macadam strip in Patton Street there was no curb, being the point where an interurban railway track formerly crossed. From the west edge of that opening in the curb on Patton Street to the east end of the bridge was a distance of 26 feet and 4 inches. The four corners of the pavement at the street intersection of these two streets were rounded out as shown on the plat and the photographs, which have been certified to this court. In going from Patton Street at its intersection with Railroad Avenue toward the railroad excavation north of the Patton Street bridge the slope of the land and of the pavement was upward. The east line of the railroad right of way was 35 feet east of the east edge of the excavation.

There was a verdict and judgment in the sum of $4,036.12 and appellant has brought the record to this court for review.

Various assignments of error are made, but in the view of this court it will be necessary to consider only two. At the close of plaintiff’s testimony and again at the close of all the testimony, the defendant, appellant, moved the court to instruct the jury to find a verdict for the defendant, which was denied. This motion was based upon the ground that appellee not only had not shown that the driver of the car, husband of deceased, exercised any care and caution in the management of the machine, but that the proofs showed that Thomas Jefferson Stephens, driver of the car and one of the beneficiaries, was absolutely negligent at the time and place in question, and that his negligence contributed to the injury.

As to the proofs: Just four eyewitnesses to this accident testified in this case. The driver of the automobile, Thomas Jefferson Stephens, who was also the husband of the deceased, and Raymond Stephens, a grandson of the deceased, were witnesses called by the plaintiff. The other two eyewitnesses were Leonard Carroll and Walter Darnell, who were called by the defendant.

The husband, Thomas Jefferson Stephens, did not testify before the jury but his deposition was taken at the instance of the plaintiff and read to the jury. He testified that he -was 79 years of age at the time of the accident and that his wife was 72 years old; that on the day of the accident and shortly prior to the same he had been in Champaign, Illinois, where he purchased a second-hand Packard automobile and that he was driving the same from Champaign to his home in Paxton, his wife riding on the rear seat when the accident occurred, and that this was the first time he had ever driven this Packard car; that he and his wife had lived in Paxton for 14 years prior to the time of the accident and were living there 'when the railroad company excavation was made and the Patton Street bridge constructed, his home being within a few blocks of the bridge in question; that he knew before the time of the accident that the excavation was there and had driven over the Patton Street bridge several times.

The driver further testified that the accident happened about noon. It was a bright, clear, sunny day, the pavement was dry and his brakes worked alright. The pavement was clear of traffic. Mr. Stephens said that he was driving north on Railroad Avenue, or route 25, at the rate of about 25 or 30 miles an hour until he got close to the Patton Street intersection, when he slowed down to 8 to 10 miles an hour, and that Mr. Clucas was riding on the front seat with him, the deceased and her grandson, Raymond Stephens, being on the rear seat; that as he started to turn west onto Patton Street the left front wheels of his car were a foot east of the center line of Railroad Avenue, and the automobile was 15 or 20 feet south of the south line of Patton Street; that as he made the turn he saw he might miss his aim getting on the bridge and put his foot on the brake and the other on the clutch and turned the wheel as far around as it would go “and it would not go any further—seeming to lock or something”; that the steering wheel seemed to lock just before he hit the curb and he couldn’t get the car turned far enough to get on the bridge and that he put his foot on the brake as soon as he saw he might miss getting on the bridge.

Mr. Stephens further testified that the automobile struck the concrete curb on the north side of Patton Street and left the pavement just as it got across where the interurban used to be, the former interurban having crossed where the macadam strip of pavement on Patton Street above referred to, was laid. According to Mr. Stephens, his automobile went over the north curb of the Patton Street pavement at this point. His automobile then crossed the concrete sidewalk on the north side of Patton Street, then toward the west over the earth surface, between the sidewalk and the east edge of the railroad excavation and then into the excavation itself. In Mr. Stephens’ opinion it might have been 20 or 30 or 40 feet from the place where he started to make the turn to the place where his automobile struck the north curb on Patton Street, then his car crossed over the sidewalk and, in his opinion, traveled a distance of about 10 feet or less than two car lengths from the sidewalk until it struck the east edge of the cut.

Shortly after the accident and on the same day Mr. Stephens stated to Emil Thompson, a witness in the case, who is a State highway traffic officer, in explanation of the accident, that “I must have gotten my foot on the gas feed instead of on the brake.” On December 24,1927, a few months after the accident, Mr. Stephens stated to Mr. Sawin, a witness called by the defendant, that as he went to make the turn he probably did not make the turn quite fast enough and struck the end of the curb and that threw him out of gear. He further stated to Mr. Sawin:

“I think I did not take it (the turn) fast enough, it was a new car, the other I could have turned shorter with it, this one was the first I made the turn with.” Mr. Stephens did not deny making these statements to Mr. Sawin.

Raymond Stephens, a grandson of the deceased, and the other eyewitness called by the plaintiff, testified that he was sitting in the back seat of the automobile; that when his grandfather got to the place where the interurban tracks used to be, he slowed down to 8 to 10 miles an hour and that when he got to the curb on Patton Street he was going about 5 miles an hour. On cross examination this witness first testified that he, the witness, did not observe anything about the way the car was driven as he came up to Patton Street; that the witness was looking out of the window and watching some boys roller skating. Then this witness changed his testimony and denied that he was looking out of the window or that he was watching boys roller skating. This witness further testified that he attended the subnormal room at the Yale School in Chicago. Prior to his testifying in this law suit the boy Raymond, who was 13 years of age at the time of the accident, stated to the witness Sawin that at the time of the accident “I was looking out of the window and I saw some kids roller skating and I was watching them. I didn’t know anything, the car just went down, that is all I know.” Raymond Stephens did not deny making this statement.

Leonard Carroll, a witness called by the defendant, testified that just prior to the accident he was driving an automobile north on Railroad Avenue up toward the Patton Street intersection; that about a block south of Patton Street the Stephens car passed the witness traveling at a rate of 35 miles an hour, and that the Stephens car was going around 20 or 25 miles an hour when Mr. Stephens started to turn onto Patton Street, and that it was traveling at the same rate of speed when it hit the curb on the north side of Patton Street and after it hit the curb the Stephens automobile picked up more speed.

Defendant’s witness Walter Darnell testified that at the time of the accident he was on the Patton Street bridge walking east within 20 feet of the east end of the bridge, and that he saw the Stephens automobile when it was about 50 feet south of the Patton Street intersection with Railroad Avenue and at that time the Stephens car was running at about the rate of 20 miles an hour; that as the Stephens car started to make the turn onto Patton Street and as it was making the turn it was traveling at the rate of about 20 miles an hour and the wheels began to shimmy. This witness testified that the car was going about 20 miles an hour when it struck the curb and when it struck the curb the witness was right at the east end of the bridge and about 25 feet from the Stephens car. As the car struck the curb it bounced up off the ground, made a lunge forward, picked up speed and turned directly north for a distance and then turned in a northwesterly direction over toward the railway cut, traveling at that time at about 22 miles an hour. Mr. Darnell said that the left wheel of the Stephens, car struck the curb just a few inches west of the opening in the curb on Patton Street and that the right wheel went through the opening; that following the course of the automobile from the point where the left wheel struck the curb to the point where the automobile reached the east edge of the railway cut was a distance of about 60 feet.

This witness was within a few feet of the Stephens car during all the time from when it started to make the turn onto Patton Street down to the time it plunged into the railway cut. Immediately after the car ran into the cut the witness went down the embankment to the automobile. He testified that the point where the Stephens automobile went down the embankment was a distance of about 45 feet north of the north side of the Patton Street bridge.

Both of the witnesses Carroll and Darnell were residents of Paxton at the time and were entirely disinterested witnesses, being neither related nor connected in any way with either of the parties "to this lawsuit.

There is some conflict in the testimony as to how far north of the Patton Street bridge the automobile plunged into the cut. Mr. Stephens, the driver, claimed that the left side of his car was about a couple of feet from the east end of the bridge.

The plaintiff, William Perry Stephens, testified that he examined the scene of the. accident about six hours after it happened and after the automobile had been removed from the excavation, and that he saw some tracks on the east edge of the railway cut a foot and a half north of the bridge.

The eyewitness Darnell, who observed the automobile during the whole course from the time it turned west onto Patton Street to the time it plunged down into the cut, testified that the automobile went down the cut about 45 feet north of the Patton Street bridge.

From all of this testimony' all reasonable minds would agree that the driver of the automobile was negligent in driving at so great á rate of speed at and just before he was about to make a left-hand turn across a State highway, and in driving too far into Patton Street before he commenced to make a right angle turn upon a pavement .24 feet in width. And the driver was especially negligent in driving a Packard car, one which he had not driven before and of a kind which he had not driven, at the rate of speed as stated. If the driver stepped upon the gas instead of the brake, as he must have done, he was negligent. No explanation is made as to the condition of the car,' the steering wheel or the brake or as to what caused the wheel to become locked when turned part way around. This could not have been caused by defendant’s embankment or the failure to fence the same. If the driver put one foot on the brake and the other on the clutch, as he states he did, the car would have stopped if the car had brakes, and the driver was bound to know whether the car was equipped with brakes, a proper clutch and a steering wheel that would turn a car around a circle and would not ‘dock.” No testimony was offered by plaintiff or otherwise as to the former use or operation of the car in question, or what care had been given to its mechanical parts. All that Stephens knew about the car he was driving was that he had traded a Velie for it that morning and that it was a secondhand car; he did not know how old it was.

Stephens, the driver, was negligent in driving the car at all under the circumstances. He was 79 years of age. and whether or not the defendant was negligent as charged in the declaration Stephens, the driver, a beneficiary of the deceased, was guilty of negligence in the operation of the automobile which contributed to, at least, if it did not in fact cause the injury.

Appellant moved after verdict in arrest of judgment on the ground that no count in the declaration stated a cause of action, inasmuch as the declaration did not allege the due care and caution of the driver, Thomas Jefferson Stephens, a beneficiary of deceased. It has been held that it was a material part of the plaintiff’s case that the driver of the automobile, being a beneficiary, was in the exercise of due care and caution and the burden of proof to show due care and caution on the part of the driver was on the plaintiff and without that showing there could be no right of action. (Hazel v. Hoopeston-Danville Motor Bus Co., 310 Ill. 38; Follett v. Illinois Cent. R. Co., 288 Ill. 506, 513; Ohnesorge v. Chicago City R. Co., 259 Ill. 424; Chicago City Railway Co. v. Wilcox, 138 Ill. 370.)

In Follett v. Illinois Cent. R. Co., supra, the court instructed the jury that the burden of proof to show such want of care was on the defendant. This the court held was error and held:

“The defendant had a right to have the law given to the jury that the burden was on the plaintiff to prove the exercise of .ordinary care on the part of the parents, who were to participate in any recovery, and the instruction was changed by the court so as to place that burden upon the defendant, and require it to prove, by a preponderance of the evidence, that the parents did not exercise the required degree of care.”

A declaration must allege all the circumstances necessary for the support of the action. A declaration which fails to allege a fact without the existence of which the plaintiff is not entitled to recover, does not state a cause of action and the defect in such declaration is not cured by verdict. (Walters v. City of Ottawa, 240 Ill. 259; McAndrews v. Chicago, L. S. & E. R. Co., 222 Ill. 232; Volluz v. East St. L. Light & Power Co., 210 Ill. App. 565; Means v. Terminal R. Ass’n, 202 Ill. App. 591.)

A declaration in an action to recover for injury received through negligence, which does not aver due care on the part of the plaintiff when he was injured and does not contain any averment in regard to his conduct or the circumstances surrounding him from which due care on his part may be reasonably inferred, does not state a cause of action. Walters v. City of Ottaiva, 240 Ill. 259.

If the declaration omits to allege any substantial fact which is essential to a right of action and which is not implied in or inferable from the facts which are alleged, a verdict for the plaintiff does not cure the omission. (Hartray v. Chicago Rys. Co., 290 Ill. 85; Foster v. St. Luke’s Hospital, 191 Ill. 94.)

In Bowman v. People, 114 Ill. 474, the court held: “The rule is, if the declaration omits to allege any substantial fact which is essential to a right of action, and which is not implied in or inferable from the finding of those which are alleged, a verdict for the plaintiff does not cure the defect. Chitty, in his work on Pleadings, says: ‘The expression, cured by verdict, signifies that the court will, after a verdict, presume or intend that the particular thing which appears to be defectively or imperfectly stated or omitted in the pleadings, was duly proved at the trial. And such intendment must arise, not merely from the verdict, but from the united effect of the verdict, and the issue upon which such verdict was given. On the one hand, the particular thing which is presumed to have been proved must always be such as can be implied from the allegations in the record, by fair and reasonable intendment; and on the ‘ other hand, a verdict for the party in whose favor such intendment is made is indispensably necessary.’ ”

To meet this conclusion, appellee contends that the averment that the deceased was in the exercise of due care is broad enough to include due care on the part of the next of kin, who was driving the car, but no cases are cited to support this view. Appellee argues that want of care on the part of the next of kin will be attributed or imputed to the deceased and that, there fore, the averment as to due care on. the part of the deceased is sufficient. But in Hazel v. Hoopeston-Danville Bus. Co., supra, it is expressly held that want of due care on the part of the next of kin in cases of this character will not be imputed or attributed to the deceased but that such want of care on the part of the next of kin is in and of itself a complete defense to the action. -In that case the Supreme Court said, on page 42:

“If the deceased was guilty of no personal negligence which would have barred her from maintaining the action, the negligence of her husband could not have been imputed to her for that purpose, and the question presented is whether the right of action created by the statute in favor of her personal representatives is barred by the contributory negligence of her surviving husband.”

Again in the same case the Supreme Court, after stating that in cases of this character negligence on the part of the next of kin will not be imputed to the deceased, said, on page 45:

“The reason that the negligence of the parent of an infant decedent, or of any beneficiary, is a bar to the action of the administrator is, that, the action being for damages caused to the beneficiary by the negligence of the defendant, it has been the theory of the common law in every such case that the contributory negligence of the person suffering the damages is a complete defense to the person negligently causing the injury. In every such case the party who by his own negligence has contributed materially to his injury is left remediless by the common law, for the reason, universally recognized where that system of law prevails, that no man may recover damages for an injury to himself or his property which he himself was a material instrument in causing. The principle applies not only to suits for damages for the death of minor children caused by negligence where the parent has himself been negligent, but to every case under the act authorizing the recovery of damages for death caused by a wrongful act, whether the relation of the deceased and the next of kin was that of parent and child, husband and wife, brother and sister or other relation, whether the deceased was in the care of the next of kin or not, and whether the deceased was an adult or minor.”

It follows that in this cause the allegation that the deceased was in the exercise of due care and caution did not supply the defect in the declaration in failing to allege that the driver, a beneficiary, was also at the time and place in question, in the exercise of due care and caution for the safety of the deceased, and no other fact proven, as alleged, warrants any such inference or conclusion or cures the defect by verdict.

It is the conclusion of this court on both questions that the verdict and judgment should be reversed, with a finding of fact and that the motion in arrest of judgment should have been granted. Accordingly, it is ordered that said judgment be arrested for want of a sufficient narr, and that the verdict and judgment of the circuit court of Champaign county be and it is reversed.

Reversed with a finding of fact.

The clerk will enter the finding as a part of the judgment:

We find as a fact that Thomas Jefferson Stephens, driver of the car and a beneficiary, was guilty of negligence that contributed to the injury and death of the deceased.


author: Mr. Justice Shurtleff

text:
    George R. McComb, as Receiver of Illinois Trust & Savings Bank of Champaign, Appellant, v. Frank B. Meade, Appellee.
    Gen. No. 8,352.

      Opinion filed February 3, 1930.
    Green & Parmer, for appellant; Homer Shepherd, George E. Martin and Oris Barth, of counsel.
    Boyer & Leonard and W. F. Simonson, for appellee.
   Mr. Justice Shurtleff

delivered the opinion of the court.

This suit arises upon three promissory notes executed by appellee to the Illinois Trust & Savings Bank of Champaign, in the month of November, 1927. We shall denominate the parties as plaintiff and defendant and by their individual names. Later, in vacation, after the adjournment of the January term, A. D. 1929, George R. McComb as receiver for the insolvent Illinois Trust & Savings Bank of Champaign, Illinois, took judgment by confession against Frank B. Meade, trustee, upon three notes for $9,013.22 and costs of suit. Afterwards, at the April term, A. D. 1929, the defendant entered a motion to vacate and set aside the judgment, to stay the execution and for leave to plead. The court granted leave to plead and three pleas were filed. The first was the plea of general issue. The second and third were pleas of want of consideration; and it was also claimed upon the trial that the third plea made the defense that the notes were conditionally delivered. None of the pleas were verified.

Attached to the motion to vacate the judgment was the affidavit of Frank B. Meade, which recites that the judgment by confession was the result of the giving of the three notes set forth in the plaintiff’s declaration; one for $3,500, dated October 17, 1927, due one year after date; one for $2,000, dated October 18,1927, due six months after date; and one for $2,000, dated November 23, 1927, due six months after date, all payable to the order of Illinois Trust & Savings Bank of Champaign, and all signed by affiant as trustee; that shortly prior to October 17, 1927, Schuler Bros. Confectionery Company, a corporation, was indebted to the Illinois Trust & Savings Bank, the payee in said notes, in the sum of $3,500; that the confectionery company went into bankruptcy, and that to avoid a loss on said indebtedness Edwin Filson, president of the Illinois Trust & Savings Bank, conceived the plan of buying the physical assets of the confectionery company at bankruptcy sale in conjunction with other of the creditors of Schuler Bros. Confectionery Company, and to put additional capital into the business and reorganize the same as a new corporation under the name of Nine Main Confectionery Company; that Edwin Filson, acting for and on behalf of said bank, asked affiant to put $1,000 into the enterprise and to assume the management thereof, and that pursuant thereto, the affiant, together with the said Edwin Filson, acting for the Illinois Trust & Savings Bank and other creditors of the Schuler Bros. Confectionery Company, entered into a contract, also attached to said affidavit and marked “Exhibit A”; that pursuant to said contract the Nine Main Confectionery Company was organized as an Illinois corporation in the early part of October, 1927, and that the creditors of the concern, including the Illinois Trust & Savings Bank, not desiring their names to be known, paid in some $7,500 in cash referred to in said contract, “Exhibit A,” and that all of the stock of said corporation belonging to the various parties who had signed said agreement was assigned to the affiant as trustee until the business could be developed and the stock sold; that Edwin Filson, acting as president for the Illinois Trust & Savings Bank at the time said bank furnished $4,000 in cash, which it was obligated to furnish under said contract, asked affiant to sign the notes of $2,000 each, dated October 18, 1927, and November 23, 1927, attached to the declaration; that there was an agreement and understanding that affiant would not be liable personally upon the notes, and that his liability for the payment of the notes would be limited to whatever could be realized from the sale of stock of the Nine Main Confectionery Company, when, as and if the said stock was sold and disposed of; that the $3,500 note, dated October 17, 1927, on which judgment was confessed, was represented to affiant to be the amount of the old Schuler Bros. Confectionery Company notes due the bank, and was executed by affiant as trustee at the request of the said Edwin Filson as president of the bank; that there was an agreement with respect to this note that affiant would not be personally liable for the same, but that the same should be paid for out of the sale or disposition of stock of the Nine Main Confectionery Company; that affiant derived no personal benefit from the execution of the notes; that the only money paid by the bank as the result of the execution of any of said notes was the sum of $4,000, subscribed for by Edwin Filson on behalf of the bank under the contract, “Exhibit A,” and that said sum of $4,000, together with the other contributions by parties to the. contract, “Exhibit A,” were deposited to the credit of the Nine Main Confectionery Company, a corporation, in the Illinois Trust & Savings Bank, and were checked out and disbursed on the corporate obligations of said corporation; that George B. McComb, receiver for the bank, was furnished with a copy of the agreement, “Exhibit A,” shortly after his appointment; that he was charged with knowledge that the defendant assumed no personal responsibility and that the notes were without consideration and were accommodation notes.

After the issues were made up the cause was submitted to a jury and the defendant proved substantially such of the matters as were set forth in said affidavit as are above recited, excepting that the plaintiff contended throughout the trial and upon the introduction of evidence that it was not competent or proper for the defendant to attempt to show or prove that there was an oral agreement that he was not to be personally responsible on the notes, it being the claim and contention of the plaintiff that the language in the notes was the measure of liability of the defendant.

By the terms of the written agreement attached to and made a part of the affidavit, the defendant Meade covenanted and agreed to purchase the personal property and fixtures of the old Schuler Bros. Confectionery Company for the benefit of the new corporation, and to secure a lease on the property at 9 Main Street, Champaign, Illinois, for the conduct of said business and to hold the said property and lease for the benefit of himself and other parties to the agreement, the costs and expenses of securing the lease and purchasing the property to be paid out of the common fund of $7,500 subscribed for and listed in said agreement; that he would cause the new corporation to be organized, and shares of stock to be issued as provided by said agreement, including the payment of attorney’s fees, and that he would serve the said corporation for a term of 4 years, unless said business was transferred or sold, and for his services as manager he should receive the sum of $150 per month and in addition thereto 20 per cent of the net profits earned by said corporation in excess of $1,000.

The jury found a verdict for the defendant and the court entered judgment against the plaintiff in bar of the action and for costs and plaintiff has appealed.

Upon the trial of the cause defendant introduced the contract, “Exhibit A,” which is as follows:

“It Is Hereby Agreed between Frank Meade, first party; and Edwin Filson, D. E. Harris, D. L. Huxtable, Carl Meneely and E. I. Burke (who are referred to by their last names when mentioned individually hereafter), hereinafter collectively referred to as second parties, as follows:
“Whereas, Schuler Bros., and Schuler Bros. Confectionery Co., who are in bankruptcy, are indebted to the Illinois Trust & Savings Bank of Champaign, Illinois, whose interests are represented by the said Filson, and said bankrupts are also indebted to the said Harris, Huxtable, Meneely and to the Citizens State Bank of Champaign, whose interests are represented by the said Burke, in approximately the same proportions as the amounts hereinafter stated bear to each other.
“Aun Whereas, second parties desire to recoup their losses in said bankruptcy, if possible, by arranging for the reorganization and continuation of the confectionery business run by said Schuler Bros., the individual second parties contributing additional capital to the said enterprise in approximately the same proportion as the total amount of the indebtedness of the said Schuler Bros, and Schuler Bros. Confectionery Co. to them.
“And Whereas, first party is willing to contribute capital towards said enterprise and to assume for four (4) years the management of the said business as reorganized.
“Now Therefore, It Is Hereby Agreed that first party and second parties will furnish in cash, as capital towards said enterprise, the following amounts:
Filson .......................$4000.00
Harris 200.00
Huxtable ..................... 500.00
Meneely..................... 500.00
Burke........................ 1300.00
Frank Meade (first party)...... 1000.00
Total $7500.00
“It Is Understood that approximately fifty per cent of said contributions will be called for and paid at once, and that the balance may be called for at any time within the next thirty or sixty days, but that no amounts beyond the total contributions of Seventy-Five .Hundred ($7500) Dollars above referred to shall be called for from the parties to this agreement, without the unanimous consent of all of them.
“First party covenants and agrees to purchase the personal property and fixtures of the said bankrupts above named for,such price as they can be obtained at bankrupt- sale, and also agrees to secure a lease on the property at 9 Main Street in Champaign, Illinois, and that said lease and said property purchased at said bankrupt sale shall be held by him for the benefit of himself and second parties, under this agreement, and the costs and expenses of securing said lease and of purchasing said property shall be paid for out of the common fund of Seventy-Five Hundred ($7500) Dollars aforesaid.
“First party further covenants and agrees to cause a Corporation to be organized with a capital stock of Twenty Thousand ($20,000) Dollars, which shall be paid for by the cash contributions of Seventy-Five Hundred ($7500) Dollars aforesaid, and the lease and personal property purchased as aforesaid, and upon the complete organization of said corporation, to transfer to the individual second parties, shares of the capital stock thereof, in the proportion of these contributions to the said fund of Seventy-Five Hundred ($7500) Dollars. If attorneys fees are not paid in cash, the amount of said fees shall be added to said sum of Seventy-Five Hundred ($7500) Dollars and stock issued for said fees in the same proportion.
“The names of the individual second parties shall not be mentioned or made known in the organization and carrying on of the business aforesaid, and they shall incur no liability in any way beyond the contribution of the said fund of Seventy-Five Hundred Dollars aforesaid.
“First party covenants and agrees to serve said corporation as manager, for the term of four (4) years, unless, with the consent of at least two-thirds of the owners of the stock of said corporation, said business is transferred or sold to other parties within that period.
“First party covenants and agrees that his salary, as manager, shall be the sum of One Hundred Fifty ($150) Dollars a month, and in addition thereto, twenty per cent of the net profits earned by said corporation in excess of One Thousand Dollars, said net profits to be determined as return for income tax by said corporation, and to be paid within one month after the close of the calendar year ending December 31st each year, which shall be the fiscal year for said corporation.
“It is further understood and agreed that the wife of first party shall assist him in the conduct and management of the said store, at a salary of Twenty-Five ($25) Dollars per week.
“It is understood and agreed that D. E. Harris, as long as he shall serve said corporation as President, and shall assist in the management and advice in the conduct of said business, shall receive a salary of Twenty-Five ($25) Dollars per month. All salaries are to commence on the opening of said place for business.
“Should the said business prove unprofitable, upon the request of the holders of two-thirds in amount of the capital stock of said corporation, the business shall be liquidated and closed up.
“It Is Expressly Understood and Agreed that first party in buying the assets of the bankrupts, Schuler Bros., and Schuler Bros. Confectionery Co., and also in taking the lease on the said building at 9 Main Street, in Champaign, Illinois, and also in assuming the active control and management of the said business, shall be acting as Trustee for the individual second parties, and that he will account faithfully to them at all times for the conduct and management of said business, and at their request, will render true accounts of the financial condition of said business and will not incur obligations and expenditures, beyond current expenses, for said business without the consent of at least a majority in amount of the capital stock of said corporation.
“In Witness Whereof, the parties have hereunto set their hands and seals this 14th day of October, A. D. 1927.”

This contract was signed by all of the parties to the same.

Plaintiff further offered in evidence a written guaranty signed by Filson, the president, and McNevin, the cashier of the Illinois Trust & Savings Bank of Champaign, which was in the following terms:

“Guarantee.
“We hereby guarantee Frank B. Meade against any loss whatever on account of any notes signed by him to the Illinois Trust & Savings Bank signed as Trustee, it being understood that the said notes so signed are all for the benefit of the undersigned.
“This agreement shall extend to notes signed this date or renewals thereof or notes signed hereafter, but the total amount shall not exceed Eight Thousand Dollars.
“Witness our hands and seal this 17th day of October, A. D. 1927.
Edwin Filson. (Seal)
H. E. McNevin. (Seal)
“At the bottom of said guarantee appears the following, which was crossed out: ‘Illinois Trust & Savings Bank of Champaign, Illinois. By ......................i.......President.’ ”

Defendant paid in the $1,000 which he subscribed to the new business and the creditors respectively paid in the several amounts subscribed by them. This was substantially the testimony submitted to the jury.

It is contended by appellant that there was some consideration for said notes accruing to the defendant, aftd that oral testimony tending to show an agreement that the payee would not look to the maker for payment is an attempt to contradict the terms of a written instrument and that the testimony was not admissible, citing Farmers State Bank & Trust Co. v. Parr, 234 Ill. App. 78, 86. The defendant had testified as to his talk with Filson in regard to the $3,500 note: “He told me this $3,500 note represented the Trust & Savings Bank loss in the Schuler Brothers Confectionery, and that it was to be placed along with the stock of the new corporation, and the other $2,000 was the money that the Trust & Savings Bank was now putting in the new organization.” There was nothing in the proofs to show that the defendant knew anything about the affairs of the bank other than that it was sound and solvent. The entire action on the part of the bank and its officers was shown to be a move to recoup its losses and collect its debt, or a portion of the same, out of the assets of its debtor. There was no fraud shown or any action taken other than to aid and enhance the interests of the bank, its stockholders and creditors. There is no contradiction as to any of the testimony. The defendant signed the notes as “Trustee” and otherwise in all matters acted as a trustee. What 'consideration for these notes could have accrued to the defendant? The defendant, by the contract, had agreed to contribute his services as manager for the sum of $150 a month, and in addition thereto for his services was to receive 20 per cent of the net profits over and above the sum of $1,000. The giving of these notes neither added to nor detracted from defondant’s salary. Under the terms of the contract, the first party (defendant) and the second parties, including Filson for the bank, had agreed to furnish in cash as capital towards said enterprise, the following amounts:

“Filson for the bank, $4,000.
“Frank Meade (first party) $1,000.”

Each party put in these respective amounts; this each was required to do under the terms of the contract and not by reason of the obligation of any note. If by putting in these respective amounts there were accruing net profits over and above the 20 per cent, then the accruing net profits on the $4,000 put in by the bank accrued to the bank and not to the defendant, the same as the net profits on the $1,000 put in by the defendant accrued to the defendant and did not accrue to the bank. Appellee (defendant) had no interest in the sums of money put into the new business venture corporation, whether such sums were paid in under the contract or the note. Neither can it be said that oral testimony was necessary to establish the true facts in this case. Filson was president of the bank and had authority to act for the bank. The bank was a party to all of the written agreements in evidence, including the notes. The contract, Exhibit A, recites that the interests of the bank in the entire matter are - to be represented by its president, Filson, and the bank was a party to that contract and it was especially recited that the “Names of the individual second parties shall not be mentioned or made known in the organization and carrying on of the business aforesaid.” Filson’s name was mentioned as representing the bank and as to the “names of the individual second parties” not mentioned, the whole contract showed them to be the two banks. The guaranty signed in writing by Filson, the president, and by H. E. Mc-Nevin, the cashier of the bank, on the day the first note was given was signed in pursuance of and by the authority given in the contract, “Exhibit A,” and is, in this suit, the guaranty and the covenant of the bank and shows plainly why defendant signed the notes as trustee. He was merely acting for the bank and would not have signed the notes if the written guaranty and covenant of the bank “not to sue” had not been given. This contract, guaranty and the notes must all be construed as parts of one transaction. Gould v. Magnolia Metal Co., 207 Ill. 172,175, in which it is held: “It is the rule that testimony is inadmissible to contradict or vary the terms of a contract which purports to contain the whole agreement of the parties and shows no uncertainty as to the object or extent of such agreement. In such a case it is conclusively presumed that all previous and contemporaneous engagements by which the parties intend to be bound are contained in the writing. On the other hand, it is equally well established that where the agreement is evidenced by-more than one writing, all of them are to be read together and construed as one contract, and all the writings executed at the same time and relating to the same subject matter are admissible in evidence. (Stacey v. Randall, 17 Ill. 467; Gardt v. Brown, 113 Ill. 475; Crandall v. Sorg, 198 Ill. 48; 1 Greenleaf on Evidence, sec. 283.) In this case the writings were executed as different parts of the same agreement and related to the same subject matter.” There was no consideration for the notes in this case and under sections 16 and 58 of the Negotiable Instruments Act, Cahill’s St. ch. 98, THT 36 and 78 (Straus v. Citizens State Bank, 164 Ill. App. 420; Straus v. Citizens State Bank, 254 Ill. 185; First Nat. Bank of Harvey v. Trott, 236 Ill. App. 412), plaintiff had no cause of action upon which suit could be brought.

It is contended by appellant that the pleas of the defendant should have been verified in order to deny the delivery, which is a part of the execution of the note. That rule does not apply to the facts in this case. It is not claimed that the delivery of the note was conditional. (Gould v. Magnolia Metal Co., 207 Ill. 172; Great Western Tel. Co. v. Loewenthal, 154 Ill. 261, 266; Frankland v. Johnson, 147 Ill. 520.)

In Gould v. Magnolia Metal Co., supra, the court held on page 175: “The first objection to the letter is, that it was not admissible, under the pleadings, because the contract was set <put in haec verba in the declaration and its execution was not denied under oath, as provided by section 34 of the Practice Act. It is argued that by failing to deny the execution of the contract as set out, defendant admitted that it constituted the whole contract and agreement between the parties, and that if defendant claimed it was not the whole contract it should deny its execution. That section of the Practice Act establishes a rule of evidence, and dispenses with proof of the execution of a written instrument declared upon unless the execution is denied by a verified plea. The execution of the contract as set out in the declaration was not, and could not truthfully be, denied by the defendant, and the letter did not tend to make a new or different contract or substitute another one. The only effect of failing to deny the execution of the contract was to make it admissible in evidence without proof of its execution. A verified plea was not necessary to permit the introduction of evidence explanatory of its meaning.”

Finding no error in the record, the judgment of the circuit court of Champaign county is affirmed.

Affirmed,


text:
    George R. McComb, as Receiver for Illinois Trust & Savings Bank of Champaign, Appellant, v. Leland R. Jacobs, Appellee.
    Gen. No. 8,353.
    Opinion filed February 3, 1930.
    Green & Pabmer, for appellant; Homer Shepherd, George E. Martin and Oris Barth, of counsel.
    Campbell & Graham, for appellee.
   Mr. Justice Shurtleff

delivered, the opinion of the court.

This is a suit upon a promissory note given by appellee to the Illinois Trust & Savings Bank of Champaign on August 15, 1927. The record in this case discloses that the defendant, Jacobs, on or about June 10, 1927, gave to the defunct Illinois Trust & Savings Bank an accommodation note, which note was due 60 days after date. At the time of the giving of this note the testimony shows that there was some conversation had between H. E. McNevins, the cashier of the bank, and the defendant in which conversation Jacobs, on his direct examination, said that at the time he gave this note H. E. McNevins, the cashier, told him he wanted it for a few days “to bolster up the credit of the bank.”

On August 15,1927, the defendant, Jacobs, was again in the Illinois. Trust & Savings Bank, and on this date, McNevins, the cashier, gave back to Jacobs the note Jacobs had given to him about June 10, stating at the time he gave it to him that the note was of no further use to the bank, that it was overdue. Jacobs took this note, tore it to pieces and dropped it in the waste paper basket. At this time the cashier, McNevins, asked if he would not give him another note for $6,000, at the same time telling Jacobs that his bank had some paper in transit; that the bank would need the note for a few days only and that he, McNevins, would either return the note to Jacobs or tear it up, just as Jacobs said. This last note is the note sued upon. It is a demand note and the bank did not close its doors until December, 1927.

The substance of the exact testimony given by appellee as to the transaction is as" follows: “McNevin, after he closed the door, gave me a note for $6,000, signed in June of the same year as that one, and told me the use for it had ceased; that it was overdue. I tore it up and put in the waste basket. We talked on various matter not pertaining to this case for some time, and he said, ‘Leland, by the way we have got some papers in transit that ought to be here today, tomorrow or the next day, will you give me a like note for $6,000 for a few days and if you will do that I will either call up or tear it up, just as you say?’ I replied to him and said, ‘What if something happens to you, Harry, where will I be? Will you promise me not to let this note out of the bank, that you won’t sell it to a third party?’ He said, ‘No, assuredly not. We will not sell this note nor otherwise dispose of it until we return it to you or destroy it.’ McNevin was cashier of the bank at the time. I signed the note three hours after this conversation. At the time I signed the note, I received no money from the bank, and have not received any money since that time on account of the signing of the note. The face value of the note McNevin gave back to me was $6,000. At the time I signed the note McNevin returned to me, I had a conversation with McNevin about the signing of that note. Mr. McNevin asked me to give the Illinois Trust & Savings Bank a note to bolster their credit for a few days and I gave it to him.”

There was no further testimony except that the receiver was appointed in January, 1928, and that the receiver had paid, in dividends, to the depositors 45 per cent of their claims.

There was a verdict and judgment for appellee (defendant)" and the plaintiff has appealed.

It is contended by appellant that the facts in this case bring the case within the rule laid down in Golden v. Cervenka, 278 Ill. 409, page 427, where it is held: Where notes or other securities have been executed to a bank for the purpose of making an appearance of assets, so as to deceive the examiner and enable the bank to continue business, although the circumstances may have been such that the bank itself could not have collected the securities, it has been held that the receiver, representing the creditors, could maintain the action, and the makers were estopped, upon the insolvency of the bank, to allege want of consideration. (Hurd v. Kelly, 78 N. Y. 588; Best v. Thiel, 79 id. 15; Sickles v. Herold, 149 id. 332, affirming 36 N. Y. Supp. 488; State Bank of Pittsburg v. Kirk, 216 Pa. 452; People’s Bank v. Stroud, 223 id. 33; Dominion Trust Co. v. Ridall, 249 id. 122; Lyons v. Benney, 230 id. 117.) In one such case (Lyons v. Benney, supra,) the defense was set up by an affidavit which the court held insufficient, saying: ‘The substance of this affidavit of defense is that the appellant made and delivered his note to the bank in furtherance of a scheme to deceive the bank examiner, under a promise made to him by the bank that he would riot be held liable upon the obligation. He agreed that it should appear as one of the assets of the institution for the purpose of deceiving those whose duty it was to examine them, and he now sets up the defense that as it was to serve no other purpose it was to be regarded as a worthless piece of paper under this agreement with the bank. ... So this appellant was a party to a scheme of the officers of the bank to enable them to make a deceptive and fraudulent showing of assets, and as the fraud was perpetrated upon the creditors, now represented by the bank’s receiver, he can maintain an action on the note for their benefit. . . . Neither the law nor good conscience can sanction the contention of the defendant that he ought to be permitted to take advantage of the fraudulent agreement between him and the bank, to which its creditors were not parties and for whom the receiver sues. ’ ’ ’

The rule in this case was again laid down in Niblack v. Farley, 286 Ill. 536, as a basis for the holding in Golden v. Gervenka, supra. The court said: “All persons giving credit to the bank were entitled to rely upon the Auditor’s certificate, and it is in accordance with the plainest principles of equity that no person who procured that certificate to be made could afterward be permitted to deny its truth, or the truth of his representation on which it was based, as against a subsequent creditor of the bank who was injured by reason of its falsity. It is immaterial whether such subsequent creditor knew of the previous representation or not. If he was injured by reason of the false certificate he has a right to seek redress against those who caused it to be made. It is also immaterial whether the Central Trust Company or Dawes had any fraudulent intention, knew anything about the condition of the national bank or made any profit out of the transaction. The trust company is estopped, as against creditors who had a right to rely upon the Auditor’s certificate, to deny that the cash exhibited was the property of the trust and savings bank, for which the trust company must account as a part of the bank’s capital. The receiver, who represents the creditors as well as the stockholders of the bank, may in equity require the restoration of the fund for the benefit of the creditors. ’ ’

The language of the opinion in Golden v. Cervenka, supra, is to be noted carefully—“as against a"subsequent creditor of the bank who was injured by reason of its falsity. . . . If he was injured by reason of the false certificate he has a right to seek redress against those who caused it to be made;” and again on page 430:

“The Central Trust Company having represented that the $1,250,000 exhibited to the Auditor’s agent was the property of the LaSalle Street Trust and Savings Bank, and having immediately taken and retained possession of it to the exclusion of the bank, in an action for an accounting for the benefit of the creditors of the trust and savings bank it must make good its representation and must account for the money so wrongfully taken by it. It was only obliged, however, to account to the creditors. There was no liability to the stockholders. The bank having by an evasion obtained the certificate authorizing it to commence business, did so by purchasing the assets of the national bank in consideration of the assumption of all its liabilities. It was thus provided with a capital stock, and if the value thereof was equal to the $1,250,-000, which was the amount of its capital stock and surplus represented to be paid in, its creditors cannot complain. If it fell short of that amount its creditors have the right to that extent to complain of the persons who were responsible for the making of the false certificate and to require them to make good the deficiency.”

Golden v. Cervenka, supra, involved the affairs of the LaSalle Street National Bank which was changed over to a State bank under the title of the LaSalle Street Trust and Savings Bank. In the suit in question all of the affairs, assets, resources and liabilities of the bank were gone into as bf the time of the transfer, and later, and it was shown how and in what manner the creditors were injured. In the case at bar nothing is shown as to the existence, duration or condition of the bank at any time, or how or in what manner any creditor or stockholder was or might have been injured. It is not plain to be seen how any stockholder of the bank could have been injured. There is nothing in this record to show but' that the receiver holds ample assets to pay all of the creditors. If such be the case, no one could be injured by the giving of the note in question. In other words, the proofs must show that the giving of the note or the acceptance of it by the bank was to accomplish in some manner a fraud. The purpose of the giving of the note in question was “to take the place of some papers in transit,” possibly for the protection of McNevins. It may have been for the protection of some other officer of the bank or for the bank’s protection. It is not shown. The falsity of any statement made is not shown. For anything that appears the bank did have papers and securities in transit which took the place of and relieved the necessity of the use of appellee’s note. Counsel, upon the trial, did not even inquire. No proof was offered tending to show that the note was given for any fraudulent purpose. In First Nat. Bank of Harvey v. Trott, 236 Ill. App. 412, 420, it was held? “Whether the note of the defendants was to be used fraudulently to impose upon the bank examiners does not appear from the affidavits; and we cannot presume that the transaction was fraudulent. ’ ’

There was no consideration for the note and it not appearing that the note was given for any illegal or fraudulent purpose, the judgment of the circuit court of Champaign county is affirmed.

Affirmed.


text:
    Petition Filed with City Clerk by Earl V. Smith and Objections to said Petition Filed by Illinois Power & Light Corporation and W. C. Murray and Mrs. W. C. Murray as to the Validity of the Said Petition, Earl V. Smith, Appellant.
    Gen. No. 8,364.

      Opinion filed February 3, 1930.
    Redmon & Redmon, Denz & Buckner, Hayes & Downing and Emanuel Rosenberg, for appellant; Russell R. Reno, of counsel.
    LeForgee, Black & Samuels, for appellee.
   Mr. Justice Shurtleff

delivered the opinion of the court.

This is a proceeding had under the provisions of section 47 of article XIII of the act for the incorporation of cities and villages, Cahill’s St. ch. 24, ¶ 370. This section of the statute provides for initiative legislation of any ordinance of any city or village incorporated under this act.

The original initiation petition was filed with the city clerk of the City of Decatur on April 2, 1929. It consisted of 231 pages, each sheet of which contains a heading setting out the proposed ordinance, providing for the enlargement, extension, and improvement of the existing municipal electric light and power plant and system for the purpose of furnishing the city and its inhabitants with electric light, heat and power, and for the issuance of bonds of the city in the sum of $150,000, to pay the cost thereof, and for operating the municipal electric light and power plant and system thus enlarged, extended and improved. There are a total of 7,123 signatures contained in the various sheets constituting this petition, as claimed in appellant’s brief, exclusive of certain signatures which have been crossed out on the various sheets of the petition. These signatures, it is claimed, consist of the name, house number, street address and date of signing. The dates of signing range from December 15,1928, up to April 2, 1929.

On April 6, 1929, the Illinois Power and Light Corporation filed 26 written objections to this petition with the city clerk of the City of Decatur.” W. C. Murray and Mrs. W. C. Murray likewise filed an objection to this petition with the city clerk of the City of Decatur. Objections 1 to 10 and 24 to 26, inclusive, of the Illinois Power and Light Corporation relate to. the question as to whether the petition conforms with the requirements and provisions of section 47 of article XIII of the Cities and Villages Act, Cahill’s St. ch. 24, j[ 370. The balance of the objections, numbers 11 to 23, inclusive, relate to the question of the validity of the proposed ordinance, as set out in the petition. The objections of W. C. Murray and Mrs. W. C. Murray consist merely of a letter generally objecting to the passage of the ordinance on the grounds that it will increase the tax burden of the city.

On April 8,1929, the city clerk of the City of Decatur filed this initiative petition and the objections of the Illinois Power and Light Corporation and the objections of W. C. Murray and Mrs. W. C. Murray in the office of the circuit clerk of Macon county, Illinois. The circuit clerk on the same day presented the petition, with the objections thereto, to the Honorable James S. Baldwin, presiding judge of the circuit court of Macon county, who then noted the date of the presentment of this petition upon the docket and ordered the cause set for hearing on April 15, 1929, and directed the circuit clerk to give notice by publication for 5 successive days in both the Decatur Herald and the Decatur. Review, daily newspapers published in the City of Decatur. This notice by publication was made in both newspapers for 5 successive days, commencing April 9, 1929', to and including April 13.

On April 15, 1929, a hearing was had upon the petition and objections. On that date the petitioner, Earl V. Smith,.through his attorneys, filed a plea to the jurisdiction of the court, inquiring as to its jurisdiction. After argument of counsel the court overruled this plea and directed the continuance of the proceedings under the provisions of section 42 of article XIII of the Cities and Villages Act, Cahill’s St. ch. 24, ft 365.

There was a hearing upon this petition, proofs submitted in a summary manner, and the court entered a decree as in chancery and after reciting and finding as to the preliminary matters, decreed:’ “That the said petition is insufficient and does not meet the requirements of the statute of the State of Illinois in such case made and provided, and that the same should not be submitted to the voters of the City of Decatur, County of Macon and State of Illinois, as an initiative petition under the provisions of the statute of the State of Illinois in such case made and provided.”

It was further decreed that the number of votes cast for all candidates for mayor at the last preceding general municipal election in the City of Decatur was 21,543.

The petitioner, Earl V. Smith, prayed for and was allowed and has perfected an appeal from said decree to this court, and the record is before us. We are met at the outset by a motion, on the part of appellees, to dismiss the appeal, based upon two grounds:

First, That there is no appeal from the order and decree in this cause; and

Second, That the abstract does not comply with the rules of this court.

It is further objected that the original initiative petition was improperly certified to this court by the trial court below. This motion has been taken with the case and should receive first consideration.

The initiative and referendum provisions of the commission form of government act for cities is found in article XIII of chapter 24, “Cities and Villages,” and sections 42 to 49 c of that act are the sections particularly governing the cause in question for the disposition of the motion in this cause. Sections 42 to 46 relate to and govern petitions for a recall of a public or municipal officer under the commission form of government. Sections 47 and 48 relate to petitions for the initiation and repeal of ordinances and legislation in such cities. Section 49 relates to petitions for the abandonment of the commission form of government, and sections 49 a, 49 b and 49 c relate to appeals. In section 42 full provision is made for the presentations of petitions for recall of an officer and the form and sufficiency of the petitions are fully pointed out; clause F of section 42 provides for objections to these petitions. The second provision of clause F provides: “Authority and jurisdiction are hereby conferred upon and vested in the county court or in the judge thereof in vacation, or in the circuit court or the judge or judges thereof in vacation, to determine in a summary manner the sufficiency of such petition, and the decision, decree or judgment thereon of any such court or judge as aforesaid shall become immediately effective and no appeal or writ of error shall in any manner stáy or prevent the immediate operation of such decision, decree or judgment.”

Section 47 of the act relating to the initiation of ordinances and legislation provides: “Any proposed ordinance may be submitted to the council by petition signed by electors of the city or village, equal in number to the percentage hereinafter required. The signature, verification, authentication, inspection, certification and submission of such petition shall be the same as provided for petitions under- section 42 hereof: Provided, such petition shall be filed with the city or village clerk.”

There is a similar provision as to petitions under section 49. Under section 49 a, the legislature passed an act providing for appeals as follows: “Appeals shall lie to, and writs of error from, the Appellate Court, to review the final orders, decisions, judgments, or decrees of any County Court or any Circuit Court, entered in any proceeding under or pursuant to the provisions of section 42 or section 49, or both of said sections of article XIII of this Act,” and by an emergency clause this provision of the statute became effective June 27, 1927. The original act was passed in 1910.

Under these provisions of the statute, in cases where objections are made, the county or circuit courts or the judges thereof, in vacation, have jurisdiction to pass summarily upon the signatures, verification, authentication, inspection, certification and submission of these petitions under the various sections of the statutes. Neither such courts nor the judges thereof have any jurisdiction, under section 47, to pass upon the policy or the constitutionality of any ordinance or legislation proposed. In the court below appellee filed certain objections to the sufficiency and constitutionality of the ordinance sought to be submitted, and much space is taken in the briefs of the cause upon that question. We mention this as. we think it has a bearing upon the proper construction to be given to section 49 a, providing for appeals. It is to be noted that section 49 a provides for appeals to the Appellate Courts only, and there is no direct appeal to the Supreme Court mentioned or provided for. It is the rule by statute in this State that the Appellate Courts have no jurisdiction to pass upon or review the judgments of an inferior court, determining the validity or constitutionality of a legislative act or ordinance. (Cahill’s St. ch. 37, ¶ 40; sec. 32 of chapter 37, Smith-Hurd’s Rev. Stat.; Kowalczyk v. Swift & Co., 317 Ill. 312.)

The court held in Spies v. Byers, 287 Ill. 627, 631: ‘ ‘ Courts are endowed by the constitution with judicial power, only, and are prohibited from interfering with other branches of the government in the exercise of their powers. They cannot obstruct the exercise of legislative functions, and have no more right to interfere in the process of legislation where the final act is the exercise of legislative power at an election than there would be at any other stage of the process. No one would contend that a court could enjoin either branch of the General Assembly from passing a bill, or the Governor from acting upon it, on the ground that the completed legislative act would be invalid, and the same rule necessarily applies to any interference with the electors in the final act of legislation. Courts have no general power to consider proposed and uncompleted legislation to determine whether an act will be valid or invalid if enacted into law. After legislation has been completed, the courts, in determining the rights of litigants respecting personal, civil or property rights, may, and it is their duty to, refuse to enforce a statute which is invalid, but their jurisdiction is limited to the determination of such rights. They can neither direct the enactment of a law nor prevent its enactment on any ground whatever, and that being so, a court of equity would have no power to entertain a bill of a tax-payer on account of the expense of the legislation.”

And in Roby v. City of Chicago, 215 Ill. 604, 608, the court held: “In People v. Suburban Railroad Co., 178 Ill. 594, on page 605, it is said: ‘The State does not, however, exercise directly that full paramount power which it possesses over streets, alleys, etc., but in the distribution of governmental powers the General Assembly adopted the policy of selecting the cities and villages of the State as governmental agencies and delegating to such municipalities the power to regulate and control the use of the streets, alleys, etc., within their respective limits. Such power thus delegated is exercised by the municipal authorities acting in behalf of the State for the benefit of the public.’ The general rule is, that a court of chancery will not enjoin the exercise by a city council of a legislative power, such as the granting of a street railway ordinance. (Stevens v. St. Mary’s Training School, 144 Ill. 336; Dickey v. Reed, 78 id. 261; State v. Superior Court of Milwaukee County, 48 L. R. A. 819.) Cases may be found where a county or city has been enjoined from wrongfully disposing of the property or funds of the municipality. Those cases, however, on examination will be found to be cases in which the municipality controlled the property or fund in its proprietary capacity, for the benefit of the citizen, (McCord v. Pike, 121 Ill. 288; City of Mt. Carmel v. Shaw, 155 id. 37;) and not in its governmental capacity as an agency for the State, under specific powers defined by the legislature, for the benefit of the public at large. The courts generally exercise their restraining power against the enforcement, rather than the passage, of unauthorized contracts, resolutions or ordinances by municipal corporations. Stevens v. St. Mary’s Training School, supra.

Under sections 42 and. 49 only the right of the citizen to hold office and the community to maintain the commission form of government are involved and are in the nature of personal and civil rights. In these cases the court can only in its judicial capacity determine the sufficiency of the signatures, the verification, authentication, inspection and certification of the petitions, and in such cases, involving the personal right to hold office and the civil right to maintain the commission form of government, appeals are allowed to the Appellate Courts. But under section 47 the city and its citizens exercise the right to pass and repeal legislation and are acting in their legislative capacity, and while the section may be construed to require a court or judge, in a quasi judicial capacity, to count the names in the petition, see to the verification and other formal parts of the petition, it in no manner constitutes him as an agent for the people to enact or repeal legislation, or to delay its proper enactment or repeal by an appeal. Under the proper construction of these sections, it is the opinion of this court that the legislature had ample and cogent reasons for not allowing appeals from the action of the court or judge on petitions presented under said section 47, if the courts have any jurisdiction over such petitions. It is more determinative that the language of the statute, section 49 a, does not provide for an appeal from petitions presented under section 47. (Lower Salt Fork Drain. Dist. v. Smith, 257 Ill. 52, 54; People v. McGoorty, 270 Ill. 610, .618; Patterson v. Denton, 201 Ill. App. 382.)

In People v. McGoorty, supra, the court held:

“There is no question but that the legislature has the power, in a purely statutory proceeding, to provide whether an appeal in such proceeding shall be taken to the Supreme Court or Appellate Court. (Allerton v. Hopkins, 160 Ill. 448.) In that case it is said, on page 453 of the-opinion, quoting from the case of Hall v. Thode, 75 Ill. 173: ‘These proceedings are purely statutory, having no vigor outside of the statute, and it is an unvarying principle that the requirements of the statute must govern and control them. By section 123 of chapter 46, title “Elections,” (Rev. Stat. 1874,) it is provided: “In all cases of contested elections in the circuit courts or county courts appeals may be taken to the Supreme Court in the same manner and upon like conditions as is provided by law for taking appeals in cases in chancery from the circuit courts.” Here is a specific remedy provided in a specific case—not one arising in the usual course of litigation, but exceptional. It is a familiar principle in such cases, where the organic or statute law has given a specific remedy that remedy must be pursued. In contested elections before a county court the remedy, and the only one, to correct a supposed error in the judgment is by appeal, and this remedy can alone be invoked. . . . This proceeding not being according to the course of the common law but statutory, merely, must be governed by the law prescribed for such proceedings.’ ”

The statute provides for appeals in causes arising “under or pursuant to section 42 or section 49 or both of said sections of article XIII.” This cause arises under neither of said sections and is not an action known at common law or in chancery," and there is, therefore, no appeal.

The only light thrown upon a proper construction of these acts is found in Melton v. City of Paris, 333 Ill. 190. This was an injunction suit to restrain the city from enforcing a wheel tax ordinance. The cause arose after July 1, 1927, and involved sections 47 and 48 of the act. The court held: “Authority and jurisdiction are conferred upon the county court or the judge thereof in vacation, or the circuit court or the judge thereof in vacation, to determine in' a summary manner the sufficiency of the petition, and the decision, decree or judgment thereon of any such court or judge as aforesaid shall become immediately effective, and no appeal or writ of error shall in any manner stay or prevent the immediate operation of such decision, decree or judgment. The clerk of the court with whom such petition is filed shall immediately upon filing of the same with him present the same to the judge thereof, who shall note thereon the day the same was presented and the day when he will hear the same, which shall not be less than five nor more than ten days thereafter, and he shall order five days ’ notice thereof to be given by publication in some newspaper published in the city. The court or judge shall ascertain and declare by a decree as in chancery, to be entered of record in the proper court, the sufficiency or insufficiency of such petition, and the clerk of the court shall immediately upon said decree being entered transmit to the clerk with whom the petition was originally filed, such petition and a certified copy of the decree and the order of the court or judge.

“It is not contended by appellants that these sections of the statute are unconstitutional. It is contended that section 48 is mandatory and fails to confer jurisdiction on the circuit judge to inspect the petition. Section 48 does not confer jurisdiction on the circuit judge to inspect the petition, but section 47 specifies the manner in which the petition shall be signed and verified, and section 42 provides a method for testing the validity of the same. The three sections are so connected by reference that each must be considered as part of the other. It is not contended that there was a failure to comply with the provisions of these sections. Even if there were such a contention, the record shows that the sections were complied with at the time and in the manner therein specified.”

Although the court has held as to sections 42, 47 and 48 that “The three sections are so connected by reference that each must be considered as part of the other, ” we do not consider that this statement has any reference to the right to appeal.

As to the criticism of the abstract, that becomes substantially a moot subject. If an appeal lies to this court in the case at bar, it comes to this court as it was presented, to the circuit court of Macon county to pass upon the signatures, verification, etc., and the form of the original petition, in the review of which this court should have the original petition before it. The impossibility of placing the nature of such a petition in print, by abstract, before the court and the extent of the abstract, should, of necessity argue somewhat a relaxation of the rule. The appeal should not be dismissed for an insufficient abstract.

We have given no consideration to the merits of the petition as to its substance or form, or as to whether it conformed to the provisions of the statutes cited. Neither do we find that the court below, by its decree, passed upon the validity or invalidity of the ordinance submitted. It is insisted by appellant that the court below passed upon the validity of the ordinance submitted and was without jurisdiction to pass upon that question, and that, to the extent stated, the order and decree was void from which an appeal would lie, citing People v. Coal Belt Electric Ry. Co., 311 Ill. 34. It is held in People v. Coal Belt Electric Ry. Co., supra: “A void judgment may be reviewed by an appellate tribunal by writ of error or appeal. (Goodsell v. Boynton, 1 Scam. 555; People v. Evans, 262 Ill. 235; 3 Corpus Juris, 467.)”

On an examination of the order and decree of the court below, which we have set out in this opinion, it is not made to appear that the court acted upon the validity or invalidity of the ordinance or upon any matters other than those properly submitted to the court under sections 42 and 47 of the articles cited. It does not follow that the court’s refusal to strike appellee’s objections numbered 11 to 23 to the petition, from the record renders the decree entered as void, or that the court entered a decree based upon those objections. It merely shows error in the court’s refusal to strike, from which error appellant has no relief. The decree entered is in proper form. For the reasons stated appellant’s appeal is dismissed.

Appeal dismissed.