text:
    State Bank of Blue Island, Appellant, v. Joseph Benzing et al., Appellees.
    Gen. No. 40,621.
    Opinion filed October 3, 1939.
    Scott, MacLeish & Falk, Yowell & Langdon and W. Otto Wielgorecki, all of Chicago, for appellant ; John J. Yowell, of counsel.
    Ward- H. Harris, Klenk & Klein and Bathje & Connor, all of Chicago, for appellees; Ward H. Harris, Franklin W. Klein and Marion Bathje, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court. .

Plaintiff brought an action against defendants to enforce their guaranty under the terms of a contract entered into between it and the Blue Island Trust & Savings Bank. The contract was severally guaranteed by the defendants who are stockholders and directors of the Blue Island Trust & Savings Bank, and one of them, Fordtran, was an officer. The court sustained defendants’ motion to strike, dismissed the suit, and plaintiff appeals.

The record discloses that the Blue Island Trust & Savings Bank was conducting a banking business in Blue Island, was in failing circumstances, and it was decided to reorganize the bank. The method adopted was to organize a new bank, viz., the State Bank of Blue Island, plaintiff, which was to take over the old bank’s live assets and assume the deposit liabilities. A new bank was organized; it assumed the deposit liabilities of the old bank amounting to $1,415,203.92, took over the old bank’s liquid or bankable assets of the face value of $1,231,366.32, and to meet the requirements of the auditor of public accounts $183,837.60 of new money was put into the new bank by the directors of the old bank individually, including some of defendants. All this is shown by the written contract entered into by the two banks February 27, 1930. That agreement provides, “The party of the first part [old bank] hereby agrees that at any time within six months from the date hereof it will repurchase for cash or liquid securities any part of the assets shown upon Exhibit A hereto attached which the party of the second part [new bank] may find are not properly bankable securities.” At the same time and as a part of the same agreement, defendants being directors of the old bank, executed an agreement which recited that, “In consideration of the making of the foregoing agreement by the State Bank of Blue Island [new bank] we the undersigned, being directors of the said Blue Island Trust and Savings Bank [old bank] do hereby jointly and severally guarantee the full performance of all the terms and conditions therein contained on the part of said Blue Island Trust and Savings Bank to be performed, and do further agree that in the liquidation of the assets of said Blue Island Trust and Savings Bank . . .” Then follow further provisions not important here. Afterward a further written agreement was entered into extending six months the time within which the repurchase might be made. The auditor of public accounts was consulted and he approved the contract of reorganization entered into February 27, 1930.

January 14,1930, which was about six weeks prior to the execution of the agreement above mentioned, the old bank closed its doors and a week later its stockholders directed the sale of its liquid assets to plaintiff.

The new bank tendered to the old bank securities, requesting that they be repurchased by the old bank in accordance with the terms of the written agreement. The repurchase not being made, the instant suit was brought, plaintiff claiming $154,371.25.

The auditor of public accounts appointed a receiver of the old bank, later filed his bill to liquidate the old bank and thereafter plaintiff filed its claim with the receiver, based on the fact that the old bank had failed to carry out its agreement to repurchase. The receiver contended that the agreement entered into between the two banks was ultra vires and void. The claim was referred to a master in chancery who found the contract valid, plaintiff’s claim for $145,310.87 was allowed, and a decree was entered in accordance with the master’s report in the liquidation suit.

It is further alleged in the complaint that on May 31, 1929, at a meeting of the directors of the old bank, which was attended by all defendants, a letter was read from the auditor of public accounts calling the attention of the directors to the fact that the bank had extended credit in excess of the “statutory loaning limit” and that this must be corrected. The letter also called attention of the directors “to the large amount of the funds of your bank which are used by ‘the management in financing their operations and their interests’ and further called attention to specific officers of the bank who had borrowed large sums of money contrary to the statute. About eight months thereafter one of ‘ the officers who was chairman of the board, it is alleged committed suicide. He was one of the persons mentioned in the auditor’s letter who had borrowed heavily from the bank contrary to the law. Two days after the suicide the auditor closed the bank pursuant to a resolution passed at a meeting of the board of directors of the old bank, which all .of the defendants attended. Thereafter it was alleged the plan of reorganization by creating a new bank was conceived and carried out, as above stated.

The learned trial judge in sustaining defendants’ motion to strike held that the contract was ultra vires and void. He further held that the allowance of plaintiff’s claim by the court in the receivership proceeding was not res adjudicata as against the defendants in the instant case.

Counsel for defendants contend that the contract entered into between the two banks was void because section 15 of the Banking Act [Ill. Rev. Stat. 1937, ch. 16½, par. 15; Jones Ill. Stats. Ann. 10.16] of this State provided the only method for voluntary dissolution of the bank and that this method was not followed. We are unable to agree with this contention. In the instant case the old bank was in failing circumstances and all parties, including defendants, were trying to protect the depositors. They worked with the auditor of public accounts. He approved what they did, and it has been held that the method of voluntarily dissolving a bank, as pointed out in the statute at the time the contract was made, was not the only method. We hold that the contract was valid and binding. Sherrard State Bank v. Vernon, 243 Ill. App. 122; Groves v. Farmers State Bank, 368 Ill. 35; People v. Halsted St. State Bank, 295 Ill. App. 193.

The instant case is not like Knass v. Madison & Kedzie Bank, 354 Ill. 554, cited by counsel for defendants. In that case, while the bank was conducting its business in the usual way, its officers in selling mortgage bonds agreed to repurchase the bonds under certain conditions, and it was held that such practice might jeopardize the interest of depositors of the bank. Such is not the case here. On the contrary, what was done, among other things, was in the interest of the depositors and apparently saved them.

We. are further of opinion that the allowance of plaintiff’s claim in the liquidation proceeding (where plaintiff was seeking to enforce the contract involved in this case, and where the receiver interposed the defense that the contract was ultra vires and such contention was overruled and the claim allowed) was res adjudieata as to the validity of the contract, and binding on these defendants. Groves v. Farmers State Bank, 368 Ill. 35; Smith v. United States Express Co., 135 Ill. 279. In the Groves case the Farmers State Bank of Woodlawn entered into a contract October 4, 1930, whereby the State Bank transferred to the National Bank all its assets. The National Bank assumed the liabilities of the State Bank and agreed to liquidate its business. The State Bank agreed to save the National Bank harmless from all losses that might ensue. The contract recites that it was made for the purpose of liquidating* the State Bank. It was not submitted to nor approved by the auditor of public accounts. Afterward Groves, a creditor of the State Bank, filed his bill on behalf of all creditors to enforce the superadded constitutional liability of the stockholders of the State Bank. A decree was entered fixing the liability of the stockholders and finding that the National Bank was a creditor to the extent of $40,000. Afterward the National Bank filed its intervening petition to enforce the contract of October 4th. The receiver of the State Bank, which was then being liquidated, contended that the contract was ultra vires. Afterward certain stockholders and creditors of the State Bank filed a motion to vacate the decree on the ground that they were not made parties defendant to the intervening petition and also contending* that the contract was ultra vires and void. The Supreme Court held the contract was valid and referred to and quoted with approval from Sherrard State Bank v. Vernon, 243 Ill. App. 122, and pointed out that the bank was in failing circumstances at the time the contract was entered into; that the decree finding the contract valid and allowing* the claims as stated was final, from which no appeal was taken and therefore the decree was binding on all parties, the suit being a representative suit by a creditor of the bank. The court held that the creditors are deemed parties to the cause. It was there said (p. 48): “The stockholders, the State bank and its receiver were named defendants. Not only the stockholders but the other creditors of the State bank were also adequately represented. The circuit court, it is settled, has jurisdiction to entertain a representative suit in equity in which a remedy is furnished to a class of individuals who have common rights and who need protection, and where the remedy is pursued by a complainant who has the right to represent the class to which he belongs, other members of the class are bound by the results in the case until the decree rendered is reversed on appeal. ’ ’

The judgment of the circuit court of Cook county is reversed and the cause remanded for further proceedings not inconsistent with the views expressed in this opinion.

Reversed and remanded.

Matchett, P. J., and McStjrely, J., concur.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    John Lenkutis, Sr., Appellant, v. New York Life Insurance Company, Appellee.
    Opinion filed August 3, 1939.
    Rehearing denied October 24, 1939.
    A. D. Morgan, of Herrin, Frank E. Trobaugh, of West Frankfort, and E. E. Denison, of Marion, for appellant.

      Kramer, Campbell, Costello & Wiechert and Norman J. Gundlach, all of East St. Louis, for appellee; Hosea V. Ferrell, of Marion, of counsel.
   Per Curiam.

On August 10, 1934, defendant issued a policy of insurance to John Lenkutis, Jr., for $2,500, in which his father, plaintiff herein, was named beneficiary. The first semiannual premium of $33.45 was paid. On February 28, 1935, the insured became ill with appendicitis, was taken to a hospital, underwent an operation on March 2, became wholly delirious shortly thereafter, and on March 7 died from the effects of the operation, at the age of 29 years. From the date he was so taken ill until his death he was totally disabled physically, and from March 2, the date of the operation, until he died, he was totally disabled both mentally and physically, in such condition that he could not make any report to defendant concerning same or give the latter any notice of his infirmity. On April 10, plaintiff presented to defendant proofs of the death of insured and his own claim of loss. The defendant refused to acknowledge any liability and plaintiff brought suit, which was heard by the court without a jury, judgment was given for defendant, and plaintiff has appealed.

The premium was to be paid semiannually in instalments of $33.45. The first instalment was paid, the second fell due on February 2,1935, but was never paid.

The policy contained, among other provisions, one relative to grace: “If any premium is not paid on or before the day it falls due the policy holder is in default; but a grace of thirty-one days will be allowed for the payment of every premium after the first, during which time the insurance continues in force. If death occurs within the period of grace the overdue premium will be deducted from the amount payable hereunder. ’ ’ The period of grace expired on March 5, 1935.

It is further provided in the policy: “Written notice of claim hereunder must be received by the Company at its Home Office during the lifetime and during the continuance, of total disability of the Insured. Failure to give such notice within such times shall not invalidate any such claim if it shall be shown not to have been reasonably possible to give such notice within such times, and that notice was given as soon as was reasonably possible.”

Further, “In consideration of the payment in advance of an additional semiannual premium of $1.30, which is included in and payable with the premium stated in said policy, and of the payment of a like sum with each premium after the first payable under said policy, New York Life Insurance Company agrees to waive payment of premiums under said Policy upon receipt of due proof that the Insured is totally and presumably permanently disabled before . . . age 60, as hereinafter provided. Upon receipt by the Company at its home office of due proof, as hereinafter provided, that the insured has become totally disabled by bodily injury or disease so that he is and will be thereby wholly prevented from performing any work following any occupation or engaging in any business for remuneration or profit, and that such disability has already continued uninterruptedly for a period of at least six months (such total disability of such duration being presumed to be permanent only for the purpose of determining liability hereunder), . . . the Company will waive the payment of each premium under said Policy falling due after the commencement of such total disability and during its continuance.”

The question at issue is the construction of the clause last quoted; that is, whether or not when the insured becomes totally disabled during the period of grace, and continues so until his death, such total disability must continue for six months before the insured is entitled to the benefits of the total and permanent disability provision and to the waiver of the premiums reserved in the policy. This question does not appear to have been passed upon by the courts of this State; it has, however, been considered in other jurisdictions.

While there appears to be some difference of judicial opinion, we think the rule announced by the better reasoned decisions is that where the insured becomes totally disabled and unable to furnish the insurer with notice of his condition and dies before the expiration of the period fixed by the policy as determining his presumptive permanent disability (which in this case is six months) while still totally disabled, his death will be held to be the event which determines the permanency of his condition, so far as the insured is concerned.

It is further declared that the total disability is permanent notwithstanding the fact that it results in the death of the insured within a short time after he becomes so afflicted, when it continues until the time of his death, and that to fix the liability of the insurer under such circumstances it is not required that the total disability continue for the arbitrary period fixed by the policy as declarative of presumptive permanent disability. The rule thus announced is affirmed in Bank of Commerce & Trust Co. v. Northwestern Nat. Life Ins. Co., 160 Tenn. 551, 26 S. W. (2d) 135; National Standard Life Ins. Co. v. Smith (Tex. Civ. App.), 75 S. W. (2d) 1102; Home Life Ins. Co. v. Keys, 187 Ark. 796, 62 S. W. (2d) 950; Mutual Life Ins. Co. v. Morris, 191 Ark. 88, 83 S. W. (2d) 842; Minnesota Mut. Life Ins. Co. v. Marshall, 29 F. (2d) 977.

In the construction of life insurance contracts, the policy of the law is to so interpret the policy as to sustain the claim for indemnity if it can be reasonably done, and not to defeat same without a plain necessity, and equivocal provisions in the policy, wherein it is sought to narrow the range of the insurer’s obligation, are to be most strongly construed in favor of the insured; Kaplan v. United States Fidelity & Guaranty Co., 343 Ill. 44; Morris v. Central West Casualty Co., 351 Ill. 40.

Applying the primary rule of interpretation in force in this State, in the light of the construction placed upon similar provisions by courts of high respectability, we are constrained to hold that the insured became totally disabled within the period of grace allowed for the payment of the second semiannual premium; that he was wholly unable to furnish the insurer with notice of his condition, and that death resultant while in such state of total disability fixed the permanency of the character of such disability, even though it did not continue for six months.

We think the plaintiff, upon this record, was entitled to recover. The judgment is reversed and the cause remanded, with directions to the trial court to render judgment for the plaintiff.

Reversed and remanded with directions.


author: Mr. Justice Edwards

text:
    Ralph Cook, Appellee, v. East Shore Newspapers, Inc. et al., Appellants.

      Opinion filed August 14, 1939.
    Rehearing denied August 29, 1939.
    C. O. Le Forges, of Decatur, and Pope & Driemeyer, of East St. Louis, for appellants; Frank Thayer, of counsel.
    Farmer, Klingel & Baltz, of Belleville, Felsen & MoMurdo and Beasley & Zulley, all of East St. Louis, for appellee.
   Mr. Justice Edwards

delivered the opinion of the court.

Plaintiff brought suit against the defendants and one it. A. Barracks in an action for libel. The cause was heard by a jury who rendered a verdict for plaintiff, and a motion in arrest of judgment, on behalf of defendants, was sustained. Thereafter sundry motions were filed by both parties. On behalf of defendants there was a motion for judgment on the pleadings, it being alleged therein that their answer set up new affirmative matter which plaintiff failed to deny, and that such defense was thereby confessed under section 40 of the Civil Practice Act. The motion filed by plaintiff was for leave to file an amended complaint and to dismiss as to defendant Barracks.

On October 3,1938, the court ruled upon the motions by the entry of the following order:

“Oct. 3, 1938. Parties plaintiff and defendant having duly furnished Court and opposing counsel with briefs supplementing oral argument pursuant to leave of Court and the Court having duly considered all motions heretofore heard and taken under advisement and briefs of respective counsel and being* fully advised, doth hereby deny motion of defendant for judgment in favor of defendant, doth overrule defendant’s objections to granting* motion of plaintiff for leave to file amended complaint or strike same, and for leave to dismiss party, etc., and said amended complaint is by leave of court duly filed and cause dismissed as to defendant R. A. Barracks, to which orders and rulings defendants except. All defendants named in the amended complaint on file herein are ruled to answer said amended complaint or object thereto by written motion on or before October 24, 1938.”

On October 22, 1938, defendants filed in the office of the circuit clerk notice of appeal from so much of said order as adjudges that defendants shall not have judgment against plaintiff, and on October 24, 1938, as required by said judgment order, defendants filed their motion attacking the amended complaint for various reasons; which motion, so far as disclosed by the record, has never been determined by the trial court.

Plaintiff has moved to dismiss the appeal for numerous reasons, among* which is that the order appealed from is not final and hence is not the subject of review. Defendants move to strike such motion, claiming that plaintiff did not comply with the rules of this court when it filed same.

The record shows that defendants received copies of such motion several weeks before the convening* of this court, and that such was properly entitled and directed to the present term of this court. We think plaintiff complied with the rule and that defendants were bound to take notice of such motion, being* served with copies thereof, and were charged with the duty of ascertaining whether it was duly filed with the clerk of this court.

We do not think that the portion of the order from which defendants seek to appeal is one which is final. However, whether it is or not, defendants are in no position to appeal therefrom.

The amended complaint states the same cause of action set out in the original complaint, based upon the same grounds, and seeks the same redress. Defendants, by moving to dismiss the same, thereby confess the pendency of the action stated in both the original and amended complaints and acknowledge that the suit has not been determined on its merits.

By the appeal defendants seek to secure an adjudication that the cause of action set out in the original complaint, upon the record, should be determined in their favor upon the theory that in the state of the pleadings they were entitled to a judgment upon the merits against the plaintiff. By their motion of October 24, 1938, attacking the amended complaint which sets out the same cause of action as the original complaint, they admit that such cause is still pending and undetermined. They cannot well insist in the reviewing court that the cause of action has been finally determined, while they are still litigating, in the trial court, the question of whether plaintiff shall further prosecute his suit.

In our opinion the cause is still pending in the trial court, and the appeal should be dismissed.

Appeal dismissed.


author: Mr. Presiding Justice Dove

text:
    Maud Kirchoff et al., Appellees, v. Rose Van Scoy, Appellant.
    Gen. No. 9,371.
    Opinion filed October 11, 1939.
    Adsit, Thompson So Herr, of Pontiac, for appellant.
    Baker, Niven So Crabtree, of Pontiac, for appellees; Stevens R. Baker, of counsel.
   Mr. Presiding Justice Dove

delivered the opinion of the court.

About 8:30 o’clock on the morning of September 8, 1937 the plaintiff, Maud Kirchoff was riding in her Plymouth sedan which was being driven by her son Duane, then 19 years of age, the other plaintiff herein. They were proceeding west on brick-paved Madison street toward the business section of Pontiac. The pavement was dry and the day was clear and the sun was shining. Walnut street is a gravel street and runs north and south and intersects Madison street and the intersection is in the residential district of the city. As the plaintiffs approached, entered and traversed this intersection, they were going about 15 or 20 miles an hour, and Mrs. Kirchoff’s attention was directed toward a house at the northeast corner of the intersection that was being painted and she did not look to see whether there was any car approaching the intersection on Walnut street. Duane testified that as he approached the intersection he was driving at the rate of about 17 miles per hour, that he looked north and no car was approaching the intersection on Walnut street from the north, that there was a car, however, coming toward him west of the intersection on Madison street, that he did not look toward the south until he was going across the intersection and when he was in the center of the intersection he saw a car driven by Bose Van Scoy just as the front of the Van Scoy car hit the left-rear wheel and fender of the car he was driving. On November 23, 1937 this suit was instituted by Maud Kirchoff and Duane Kirchoff against Bose Van Scoy to recover for personal injuries and property damage sustained by them as a result of this collision. The trial resulted in a verdict in favor of the plaintiff Maud Kirchoff for $190.22 and for the plaintiff Duane Kirchoff for $5.10. After overruling defendant’s motions for judgment non obstante veredicto and for a new trial, judgment was rendered for the plaintiffs in accordance with the verdict and the defendant appeals.

Counsel for the respective parties agree that there is only one question presented to this court for determination by this appeal and that question is whether appellees were in the exercise of ordinary care for their own safety at and before the time of the collision? It is conceded by counsel for appellees that the evidence is that neither appellee looked toward their left as they approached, entered and proceeded across the Madison-Walnut street intersection and neither of them were aware of the presence of appellant’s car until the instant it came in contact with the car in which appellees were riding about the center of the intersection. Counsel for appellant insist that in this state of the record, appellees were guilty, as a matter of law, of contributory negligence which precludes them from recovering and that therefore the trial court erred in not directing a verdict for appellant at the close of plaintiffs’ case. Counsel for appellees insist that the evidence discloses that the collision would have occurred just as it did occur even though appellees had looked to the left and had observed appellant’s car during the few seconds immediately preceding the collision.

Appellant testified that she was driving north on Walnut street, intending to cross the Madison street intersection and proceed north to Howard street; that she was proceeding between 10 and 15 miles per hour and looked to her right and left as she approached the intersection and before she entered the intersection she observed that appellees’ car was at least a half of a block east on Madison street and she thought she had plenty of time to pass through the intersection and entered the intersection and had traversed about one-half the way across, going straight ahead and looking straight ahead, and then observed appellees’ car in front of her car about the middle of the intersection and she became panic-stricken, lost control of her car and the front fender of her car struck the left-front fender of appellees’ car.

From this evidence counsel for appellees argue that had appellees looked they would have seen appellant’s car approaching at a speed of 10 or 15 miles per hour, that appellant apparently had her car under perfect control and there was nothing to indicate that its driver intended to proceed through the intersection in disregard of appellees’ right of way. The trouble with this argument is that it omits the fact that appellant’s car had arrived at the intersection first and when it entered the intersection appellees’ car was some distance away. Appellant’s car was proceeding at a slower rate of speed than appellees.’ Had appellees looked a few moments before they entered the intersection, they would have seen the intersection occupied by appellant’s car and certainly they can not now be heard to say that if they had looked and had seen appellant’s car, they would have observed that it was going slower than they were traveling and from those facts they would have been justified in concluding that appellant’s car would stop and yield the right of way to them.

Section 68 of the Uniform Act Regulating Traffic on Highways, ¶ 165, ch. 95½, Ill. Rev. Stat. 1937 [Jones Ill. Stats. Ann. 85.197] provides: “Except as hereinafter provided motor vehicles traveling' upon public highways shall give the right-of-way to vehicles approaching along intersecting highways from the right and shall have the right-of-way over those approaching from the left.” Section 691 of 42 Corpus Juris, p. 962 says: “It is the duty of the operator of a motor vehicle approaching a crossing or intersection to keep a lookout ahead of him and also to look for approaching vehicles on the intersecting street or highway; and although the latter duty is particularly imperative with respect to the direction from which vehicles having the right of way over him would approach, full performance of the driver’s duty requires that he look in both directions. Where the view of the driver along intersecting streets is in any way obstructed, he must be especially vigilant with respect to a lookout on such streets, and the duty of special vigilance also applies with respect to observation of the crossing itself where the driver’s view is obstructed by other vehicles.” In Crowe Name Plate & Manufacturing Co. v. Dammerich, 279 Ill. App. 103, the court after citing this statement from Corpus Juris and cases sustaining the text with approval said:

“Aside from the legal force of the rule as stated in the foregoing authorities, the dictates of common prudence require that a motor vehicle driver, approaching a street intersection, shall be observant to determine the presence of other vehicles at or near to the intersection. All reasonable minds will agree that a driver thus approaching such an intersection, especially where it is known to him to be a busy corner, who fails to look as he approaches to ascertain whether there are other cars in proximity, is guilty of a want of ordinary care. ’ ’

In Wodecki v. Harold M. Pitman Co., 286 Ill. App. 610 (Abst.), it appeared that the plaintiff was driving his Plymouth automobile east in West 29th place and was struck by a car belonging to the defendant company and being driven by Adolph Mlyniec south in 51st avenue. The cars collided in the southeast part of the intersection of these streets; the plaintiff’s car being struck on its north side by the defendant’s car. The evidence disclosed that the accident occurred in June, 1934 and that the day was bright and clear and the pavement dry. The plaintiff testified that he was familiar with the neighborhood, having passed the street intersection for 15 years, that on the late afternoon of the day of the accident, he was driving east on the south or right-hand side of 29th place at about 25 miles per hour and as he approached the 51st avenue intersection he didn’t see the defendant’s car and never looked to the north or his left until he entered the intersection and just as he did look to the north, defendant’s car crashed into him. In its opinion the court stated that the statute hereinbefore cited is applicable only to automobiles approaching the intersection at about the same time, that the law is that the plaintiff could not recover unless he is in the exercise of due care for his own safety, that it was the duty of both drivers to proceed with due circumspection so as not to come into collision with other vehicles and that where both drivers fail in this respect and there is a collision resulting in damage, neither can recover, citing Heidler Hardwood Lumber Co. v. Wilson & Bennett Mfg. Co., 243 Ill. App. 89; Hilton v. Iseman, 212 Ill. App. 255 and Rupp v. Keebler, 175 Ill. 619. The court reversed the judgment for the plaintiff, holding that the evidence disclosed he was guilty of contributory negligence and in the course of its opinion said: “In the instant case, plaintiff’s testimony (and there is none to the contrary) is that upon entering the intersection he looked to his right or to the south, but did not look toward the north until he was near the middle of the intersection, when defendant’s automobile was just colliding with plaintiff’s car. He testified, ‘I say I did not see him until I got struck. ’ We think this shows that plaintiff was not in the exercise of due care for his own safety, but on the contrary affirmatively shows that he was guilty of negligence which contributed to the injury. The Court should have found in favor of the defendant. ’ ’

So in this case appellee, Maud Kirchoff, testified she did not see appellant’s car until after the collision and appellee, Duane Kirchoff, testified that he had net looked to the left until just as appellant’s car struck him, and at that time appellees’ car was in the center of the intersection. The question who, under our statute, is entitled to the right of way always involves a determination as to the relative speeds and distances from the intersection and the law is that a driver approaching an intersection from the left of a car approaching the same intersection must decide, as a reasonably prudent person, whether these relative distances and speeds are such that he may safely cross, or whether they are such that it is his duty to yield the right of way. The law is further that no reasonably prudent person, approaching an intersection from the right, proceeds upon the conclusive presumption that the driver approaching from the left will make no error in weighing* the relative distances and speeds but such a person must keep a lookout for traffic approaching from the direction over which he has the right of way and if he fails to do so, he is not as a matter of law in the exercise of reasonable care for his own safety.

Since all the evidence discloses that appellees were not in the exercise of reasonable care as the law required, the trial court erred in refusing to sustain appellant’s motion for judgment non obstante veredicto and the judgment will therefore be reversed.

Judgment reversed.


text:
    Arthur L. Farwell, Appellee, v. Herbert Horton, Appellant.
    Gen. No. 9,380.

      Opinion filed October 11, 1939.

      Run yard & Behanna, of Waukegan, for appellant; William R. Behanna and Fred B. Meyer, both of Waukegan, and V. William Briddle, of Highland Park, of counsel.
    Tenney, Harding, Sherman & Rogers, of Chicago, for appellee; George T. Rogers and George B. Rogers, both of Chicago, of counsel.
   Mr. Presiding Justice Dove

delivered the opinion of the court.

On and for several years prior to January 30, 1937, A. L. Farwell was engaged in the production, sale and distribution of milk and dairy products, conducting his business under the name of Spinney Run Farms near Libertyville, Illinois. On that day he and Herbert Horton entered into a written contract by the provisions of which Horton became an employee of Farwell as a milk driver and route salesman for one year at a weekly salary of $26 and 5 per cent commission on retail sales and 3 per cent commission on wholesale collections made by him. The contract of employment contained the following provisions: “It is understood that the employment includes (among other things) the distributing of dairy products and the soliciting of customers for the sale thereof; and in consideration of such employment, the employee agrees that for a period of six months after the termination of this employment, he will not for himself or for any other employer distribute any dairy products or solicit any customer .. . for the sale of any dairy products in any part of any town or city within which in the course of this employment he shall have distributed any dairy products or solicited any customer for the sale thereof.” On Sunday morning, shortly after midnight, of April 24, 1938, Horton left Harwell’s employment and on April 28, 1938 Farwell filed the instant complaint in the circuit court of Lake county to enjoin and restrain Horton from persuading or inducing other milk drivers to break their contracts of employment with him and from, in violation of his contract with Harwell, selling or offering for sale milk or other dairy products within the territory mentioned in the contract. Upon notice to defendant, a hearing was had and on the same day a preliminary injunction was awarded as prayed without requiring a bond from the plaintiff. Among other things the order found that the plaintiff, at the time the complaint was filed, had more than one thousand regular milk customers, that the provisions of the contract of January 30, 1937 were valid and enforcible, that Horton, in violation of the provisions of that contract, had discontinued his employment with the plaintiff and had entered into the employment of another who was engaged in the milk and dairy business in competition with the plaintiff and that while so employed by the competitor of the plaintiff the defendant had solicited several of plaintiff’s customers and had induced or attempted to induce several other drivers of the plaintiff to violate their employment contracts with the plaintiff.

On the same day counsel for Horton entered his appearance as defendant’s attorney and filed a motion to vacate the order awarding a preliminary injunction on the ground that defendant was unable to obtain counsel and did not have sufficient notice of the hearing. On April 28, 1938 this motion was continued for hearing until the next day and after two other continuances the motion was heard and on May 4, 1938 denied. At that time the chancellor directed the plaintiff to file a bond in the penal sum of $1,000 to be approved by the clerk within three days thereafter, which was done on May 7, 1938 with the New Amsterdam Casualty Company as surety, which was duly approved by the circuit clerk.

On May 28,1938 the plaintiff filed his sworn petition, accompanied by several affidavits, praying for a rule to show cause why the defendant should not be held in contempt of court for violating the terms of the preliminary injunction. To this petition the respondent filed an answer, in which he admitted the issuance and service of the writ of injunction but denied disobeying that order or that he has been guilty of contempt as in the petition charged. On June 2, 1938 an amended and supplemental petition was filed, a hearing was had and on the following day the chancellor entered an order finding that respondent, since the issuance and service of the preliminary injunction had continued in wrongfully and unlawfully soliciting the customers of the plaintiff for the purpose of inducing them to cease using and purchasing milk and dairy products of the plaintiff and to use and purchase the dairy products furnished by respondent or the dairy represented by him, within the cities and towns specified in the writ of injunction. The chancellor thereupon sentenced the defendant to the Lake county jail for 120 days and imposed upon him a fine of $500. On the same day, on defendant’s motion, the amount of the appeal bond in case of an appeal was fixed at $2,000.

On June 22, 1939 the present counsel for defendant entered their appearance in this cause and filed two motions in this cause, one to vacate and set aside the order of June 3, 1938 finding the defendant guilty of contempt and the other motion for a new trial.' On June 22,1938 both motions were heard and denied and this appeal followed.

Counsel for appellant contends that in this case the statute required the plaintiff to give a bond preliminary to the issuance of the injunction unless for good cause shown the court was of the opinion that the injunction ought to be granted without bond. Such are the provisions of the statute (Ill. Rev. Stat. 1937, ch. 69, §§ 9, 10 [Jones Ill. Stats. Ann. 109.357, 109.358]). Thé record in this case discloses what transpired at the time the preliminary writ was ordered to issue and the court stated that he would not require a bond of the plaintiff at that time. The issuance of the writ was not conditioned upon the plaintiff giving a bond and when appellee did file a bond on May 7, 1938 and it was approved by the clerk, the filing and approval thereof was in strict compliance with the order of the court entered on May 4, 1938. Counsel for appellant argue, however, that the clerk had no authority under the statute to approve the security on the injunction bond and cite Rutan v. Lagonda Nat. Bank, 72 Ill. App. 35. Under section 10 of said ch. 69 of the statutes [Jones Ill. Stats. Ann. 109.358], the court should have approved the security and in Rutan v. Lagonda Nat. Bank, supra, it appeared that the order directing the clerk to issue the preliminary writ of injunction provided that it should issue upon complainant giving a bond conditioned as provided by law in the sum of $500 with surety to be approved by the clerk of the circuit court and the court held that the clerk was not authorized by statute to approve the security, that the bond was therefore defective and insufficient to support the issuance of the injunction. Silver v. Smith, 106 Ill. App. 411 was an action upon an injunction bond given in pursuance of an order by a judge of the circuit court of Champaign ■ county, directing that a preliminary injunction issue conditioned that the complainant file a bond in the sum of $300. There was no reference in the order as to who should approve the bond and the bond was accepted by the clerk without the approval of the judge and the clerk issued the writ. In sustaining the judgment of the trial court, the court held that the complainant obtained the injunction upon the faith of the bond and in a proceeding to recover on that bond the parties who executed it ought to be estopped from setting up their own dereliction. In the instant case the injunction was not conditioned upon the giving of a bond. The purpose of course in requiring a bond at a later date was for the protection of the defendant if he should suffer damage by reason of its obedience not if he violated it and the bond under the holding of the Silver case afforded him that protection. Furthermore in this proceeding appellant cannot raise this question. Where an injunction has been issued and contempt proceedings follow, the only questions for determination are whether the court had jurisdiction to issue the order and if it did whether that order has been violated. Court Rose No. 12 F. of A. v. Corna, 279 Ill. 605. Of course a party cannot be guilty of contempt of court for disobeying an order which the court had no authority of law to make but if a court has jurisdiction of the parties and legal authority to render the order, then it must be obeyed even though it was erroneous or improvidently entered. Leopold v. People, 140 Ill. 552. In Armour Grain Co. v. Pittsburgh, C., C. & St. L. R. Co., 320 Ill. 156, cited and relied upon by appellant, it was held that a party charged with contempt for violation of a judgment, order or decree may acquit himself by showing that such judgment, order or decree is a nullity: that the municipal court was not authorized by law to compel the defendant to answer certain interrogations which the court ruled the defendant to answer and therefore the defendant was not in contempt for refusing to comply with the order of the municipal court.

There is no merit in appellant’s contention that appellant was convicted upon affidavits where the oath was administered in Cook county by notaries who resided in Lake county. Section 10 of ch. 99, Ill. Rev. Stat. 1937 [Jones Ill. Stats. Ann. 90.11] expressly authorizes a notary to execute the duties of his office throughout the State, as long as he resides in the county in which he was appointed. Furthermore the record discloses that upon the hearing ten witnesses testified in open court and the finding of the court was warranted by their evidence, irrespective of the contents of the several affidavits which were submitted. Nor is there any merit in appellant’s contention that this cause was heard by two of the circuit judges instead of one. The record discloses that there was a full hearing before Judge Pierce, acquiesced in and participated in by counsel for appellant, who examined and cross-examined witnesses and it was at the conclusion of this hearing that Judge Pierce found appellant in contempt and rendered the judgment from which this appeal has been prosecuted.

It is finally insisted that the jail sentence and fine imposed are harsh and excessive and that the portion of the judgment imposing the fine is defective and incapable of performance inasmuch as it fails to designate the person to whom the fine is to be paid.

We have examined this record with care. The evidence discloses that appellant, at the time of the hearing, was 26 years of age and had attended Purdue University and knowingly executed the contract of employment with appellee, obligating himself not only to deliver dairy products to the customers of appellee but also to solicit new customers for him and to refrain from distributing dairy products or solicit customers for himself or for any other employer within the district of his employment for a period of six months after his employment with appellee terminated. Upon this hearing appellant admitted that for almost a month prior to the time he ceased to work for appellee, he violated the provisions of this contract and solicited appellee’s customers on behalf of Cream Crest Farms, another dairy that had just been organized, and in whose success he was interested. While therefore appellant was ostensibly in the employ of appellee, he was deliberately engaged in destroying his business. On April 24, 1938 appellant resigned his employment but continued to solicit the customers of appellee and completely ignored and disregarded the injunctional order long after it was issued and appellant had notice thereof. The injunction was issued on April 28, 1938 and on that day appellant moved to set it aside. The affidavits of Katherine Gordon and Martha Fisher are to the effect that on April 29, 1938 appellant called at the home of Fred Fairman, where they were employed, and requested affiant to assist him in persuading Mrs. Fairman to cease doing business with appellee and to patronize the Cream Crest Farms. Florence Herían executed an affidavit to the effect that during the week of May 18, 1938 appellant called at her home and requested her to cease using milk furnished by appellee and instead use milk which he would furnish. She also testified in open court upon the hearing, as did also Ralph I. Farwell, John Jashelski, William Kleinschmidt, Harold Menefee and others and from all the testimony and the statements contained in the affidavits found in this record, no other conclusion can be arrived at than that appellant wilfully and deliberately disregarded the injunction issued on April 28, 1938, and the chancellor was justified in finding appellant guilty and imposing either a jail sentence, fine or both.

In Hake v. People, 230 Ill. 174, 82 N. E. 561, our Supreme Court stated: ‘ ‘ The law is well settled that a court of chancery may impose a fine alone for the violation of an injunction and commit the party until the fine and costs are paid, or, in its discretion, may fix a definite period of imprisonment, either with or without a fine. The court granting the injunction is necessarily invested with large discretion in enforcing obedience to its mandate, and upon proceedings for attachment for its violation the extent of the fine and imprisonment to be inflicted as a punishment for the contempt rests in the sound legal discretion of the court itself. Courts of appellate jurisdiction are exceedingly averse to interfering with the exercise of such discretion, and will not ordinarily reverse the action of the inferior courts in such matters. High on Injunctions, sec. 1458, and cases there cited.” In the instant case it appears from the order entered that the chancellor sentenced appellant to the common jail of Lake county for a period of 120 days and directed the jailer to receive him and safely keep him in custody “until the expiration of the period of one hundred twenty days from the date of his commitment or until sooner discharged in due course of law, and that he pay a fine of five hundred dollars ($500.00).” Under the authority of McDonald v. People, 86 Ill. App. 558, and People v. Saylor, 238 Ill. App. 142, the latter portion of the order is defective in not stating to whom the fine was payable. The judgment order is severable and that portion of the order imposing a fine on appellant of $500 is reversed and in all other respects the order appealed from is affirmed.

Order affirmed in part and reversed in part.


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    The People of the State of Illinois ex rel. Oscar Nelson, Plaintiff, v. Ottawa Banking and Trust Company of Ottawa, Illinois, Defendant. In re Petition of Edward T. Ryan, Clerk of Circuit Court of La Salle County, Appellee, v. Charles H. Albers, Receiver of Ottawa Banking and Trust Company of Ottawa, Appellant.
    Gen. No. 9,459.

      Opinion filed October 11, 1939.
    George-Y. B. Weeks, of Ottawa, for appellant.
    Taylor E. Wilhelm and O. A. Helffrich, both of Ottawa, for appellee.
   Mr. Presiding Justice Dove

delivered the opinion of the court.

The Ottawa Banking and Trust Company of Ottawa, Illinois suspended business on September 28, 1931. Subsequently this proceeding was instituted in the circuit court of La Salle county to liquidate said institution and on January 21, 1932 a decree was rendered finding that the auditor of public accounts had taken possession of all of the assets of the bank, that an examination of its assets disclosed it to be insolvent and that Joseph H. Standart had been appointed, by the auditor, the receiver of said institution. The decree authorized the receiver to seek the aid and direction of the court in the various problems that might arise in the liquidation of said bank and that he be authorized and directed to file proper petitions in all cases where it might be necessary to sell or compromise bad or doubtful debts and in the sale of all real or personal property belonging to the bank, such sales or compromises to be made only upon the order of the court and subject to its approval. The court expressly reserved jurisdiction of the parties and the subject matter of the cause and directed that it should stand upon the docket of the court until all matters in connection with the liquidation of the bank were disposed of by the decree of the court. In pursuance to the provisions of this decree and section 11 of ch. 16½, Ill. Rev. Stat. 1937 [Jones Ill. Stats. Ann. 10.11], the circuit court of La Salle county, between January 21, 1932 and April 18, 1938 entered and rendered 292 separate orders and decrees, containing 393,160 words. From this total of 393,160 words the clerk deducted 1,500 words and presented a claim to the receiver, as such circuit clerk, for recording in the amount of $580.49, having credited the receiver with $7.00 theretofore paid by the receiver to the clerk. The receiver refused to pay the amount, whereupon the clerk filed, in the original liquidation proceeding, his intervening petition, and upon a hearing before the chancellor, an order was entered finding that the amount due the clerk was $580.49 for recording orders and decrees in this cause and directing the receiver to pay said sum to the clerk in due course of administration of said receivership. From this order the receiver appeals.

Section 14 of the Act of 1872, being present section 31, of chapter 53 of the Ill. Rev. Stat. 1937 [Jones Ill. Stats. Ann. 48.013], provides, among other things, that the fees of the clerk of the circuit court in counties of the first and second class shall be paid in advance and shall be as follows: “For recording decrees, reports of a master, receivers, trustees, commissioners or a commissioner, or other like officers fifteen cents for each one hundred words: Provided, however, there shall be no charge for recording the first 1,500 words of any decree.” La Salle county is a second class county and the foregoing section of the statute is therefore applicable. It is the contention of appellant in this proceeding that this statute exempts him from paying any fee for recording the first 1,500 words of each and every order or decree entered in this cause; that of the 292 orders and decrees recorded by the clerk, 189 of them contained 1,500 words or less, and that under the provisions of the statute, the recorder was obliged to record each of these 189 orders and decrees without charge. Counsel for appellant argue that this suit is not a continuous proceeding so far as the recording of orders and decrees is concerned but that each order and decree entered is a separate order and decree and must be so considered under the statute. Counsel for the circuit clerk insists that the statute entitles the clerk to collect recording fees for recording all orders and decrees at the statutory rate, deducting, however, the first 1,500 words of recording. And counsel for appellee argue that this is but one continuous suit and must be so regarded, irrespective of the number of words entered and recorded.

In our opinion there is no merit in appellant’s contention. It is only fair and reasonable to assume that the purpose of the statute in providing that circuit clerks should charge certain fees for their services is to enable the clerks to collect a fair and reasonable amount for the services rendered by their offices so that those offices may be to a greater or less extent self-sustaining. Statutes must be interpreted according to the legislative intent and as frequently stated, “A thing within the intention of the statute is within the statute ‘though not within the letter of the statute, and a thing within the letter is not within the statute unless within the intention of the law makers.” Cohen v. Cohen, 287 Ill. 269. We are of the opinion that for the purpose of taxing costs the word decree in this statute is synonymous with the word order. It is true that every order and decree entered by the court in this liquidation suit is a separate order and decree but there is only one suit or proceeding and that is the original suit of the People of the State of Illinois instituted on the relation of and in the name of the auditor of public accounts and instituted by the People against the Ottawa Banking and Trust Company, a banking corporation. Upon that suit being instituted against the Ottawa Banking and Trust Company, a hearing was had and the original decree rendered, which specifically provided that the bank should be liquidated under the orders of the circuit court and it was these orders and decrees subsequently rendered by the circuit court and which in many instances have to do with the title to real estate which were recorded.

In this argument counsel for appellant state that circuit clerks are paid a salary and that while the recording of a large number of orders and decrees in a particular case may affect the earnings of a clerk’s office, it does not affect his salary. Counsel further suggest that it is common knowledge that depositors seldom receive through liquidation of a closed bank the full amount of their deposits and suggest that it would be more equitable for the taxpayers to pay the clerk the cost of recording rather than to compel the receiver to pay it and thereby reduce the amount which the depositors might receive in the way of dividends. Of course with this argument we have nothing to do. The only question presented for us is the construction of the applicable provision of the statute and in our opinion the statute requires appellant, as all other individuals, to pay the circuit clerk for the services rendered by his office. It is conceded that if appellee is entitled to anything, he isQentitled to the amount which the chancellor directed the receiver to pay him in the administration of his trust. The order is clearly right and will be affirmed.

Order affirmed.


author: Mr. Justice O’Connor

text:
    Edward M. Miller, Guardian of Samuel Letizia, Minor, Plaintiff in Error, v. Chicago and North Western Railway Company et al. Pennsylvania Railroad Company and Pittsburgh, Cincinnati, Chicago and St. Louis Railroad Company, Defendants in Error.
    Gen. No. 40,592.
    Opinion filed October 23, 1939.
    John B. King and Edwabd H. S. Martin, both of Chicago, for plaintiff in error.
    Loesch, Scofield, Loesch & Burke, of Chicago, for defendants in error; David L. Dickson, of Chicago, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.

May 19, 1928, plaintiff filed an amended declaration against the three railroad companies for personal injuries claimed to have been sustained by Samuel Letizia through the negligence of the defendants. The accident occurred September 2,1926, at which time Letizia was about 10 years of age. The basis of plaintiff’s claim is that the defendant railroads had failed to comply with the provisions of a fencing ordinance and an elevation ordinance requiring defendants to protect their railroad tracks in Chicago by erecting fences, retaining walls or embankments. It further appears from the record that the railroad companies elevated their tracks at the place in question and erected retaining walls which, after years, were allowed to be out of repair, and that plaintiff with other boys on the day of the accident walked across the east retaining wall, which was out of repair, across the tracks of the Pennsylvania and the Pittsburgh onto the tracks of the Forth Western railway company, and in attempting to hitch onto one of the North Western trains plaintiff was injured. There was a jury trial and at the close of plaintiff’s case the court sustained the motion of the Pennsylvania and Pittsburgh railroad companies for a directed verdict and overruled the motion of the North Western. The case went to the jury, which returned a verdict against the North Western for $25,000, which on appeal to this court was affirmed, 254 Ill. App. 615. The case was taken to the Supreme Court by certiorari by the North Western, where the judgment of this court was reversed, the court holding there was error in not sustaining the North Western’s motion for a directed verdict. Miller v. Chicago & North Western Ry. Co., 347 Ill. 487. The opinion was handed down by the Supreme Court February 19,1932. December 30,1938, plaintiff filed a praecipe for writ of error in this court, in which Samuel Letizia is named as plaintiff in error and the Pennsylvania railroad company and the Pittsburgh, Cincinnati, Chicago & St. Louis railroad company are named as defendants in error. Neither Miller, the guardian of Letizia, the minor, when the suit was brought, nor the North Western railway company was made a party to the writ of error.

Counsel for the Pennsylvania railroad company and for the Pittsburgh railroad company filed their motion to dismiss the writ of error because (1) all parties in the trial court were not made parties to the writ of error ; (2) because the case has previously been reviewed by this court and by the Supreme Court, and Letizia, who has since become of age, is not entitled to have the case again reviewed.

The record discloses that the three railroad companies occupied and operated over separate rights-of-way a number of railroad tracks immediately adjacent to each other, extending north and south in Chicago. The fencing ordinance and the track elevation ordinance required the railroad companies to fence or otherwise protect their rights-of-way with retaining walls or embankments at the place in question. Apparently there was no space between the rights-of-way and the tracks, but there was a retaining wall on the east and another on the west of the two rights-of-way. There was some arrangement between the different railroad companies about constructing the embankments or retaining walls and subways under the tracks at certain street intersections.

It is not pointed out in the record before us what such arrangements or agreements were; but we are unable to say that any judgment entered in the case before us against the Pennsylvania and the Pittsburgh railroad companies might not affect the North Western railway company. We are therefore of opinion the North Western should have been made a party to the writ of error. Scott v. Great Western Coal & Coke Co., 220 Ill. 42. In that ease the court said (p. 44): “It is necessary, before this court will review the record of an inferior court upon writ of error, to have all parties to the record of the inferior court to which the writ issues, made parties, either plaintiff or defendant, so that one judgment of this court will determine the rights of all parties interested; and if a party to the record refuses to join the other plaintiffs in error in the court below, any person having the right to a writ of error may sue out the writ and use the names of all his co-plaintiffs or co-defendants, and if co-plaintiffs or co-defendants choose to abide an erroneous judgment and refuse to appear and assign errors they must be summoned and severed, and after the severance the writ may then be prosecuted in the name of such co-plaintiffs or co-defendants, so that one writ and one judgment will answer as to all.” In that case all the parties were not named in the writ of error, and the writ was dismissed.

We are also of opinion that Letizia is barred from further attempting to have the judgment of the trial court reviewed for the reason that on the trial the able and experienced counsel representing plaintiff at that time acquiesced, in effect, in the ruling of the trial court in sustaining the motion of the Pennsylvania and the Pittsburgh railroad companies for a directed verdict at the close of the plaintiff’s case. The record discloses counsel for plaintiff thought the motion would have to be sustained under the holding of the Supreme Court in Livak v. Chicago & Erie R. R. Co., 299 Ill. 218. The plaintiff, who was then a minor, was represented by his guardian and counsel and obviously is now bound by what was done on the trial of the case. Furthermore, courts will not permit a review of a case by piecemeal. If on the trial of the case the guardian and his counsel had not acquiesced in the ruling of the trial court in sustaining the motion for a directed verdict and desired to review the question of the action of the court in this respect, that question should have been presented when the case was brought to this court and later to the Supreme Court of this State. Kingsbury v. Buckner, 134 U. S. 650, 33 L. Ed. 1047, 10 Sup. Ct. 638.

The motion of the Pennsylvania and Pittsburgh railroad companies to dismiss the writ of error is allowed and the writ is dismissed.

Writ dismissed.

Hatchett, P. J., and HcSurely, J., concur.


text:
    John A. Meaden v. W. J. Anderson Corporation et al. Marie F. Cullerton, Administratrix of Estate of John F. Cullerton, Deceased, Appellee, v. W. J. Anderson Corporation et al. Appeal of Dillwyn M. Bell, Appellant.
    Gen. No. 40,640.

      Opinion filed October 23, 1939.
    Rehearing denied November 6, 1939.
    Joseph S. Grant, of Chicago, for appellant; Henry W. Kenoe, of Chicago, of counsel. .
    Harry A. Biossat, of Chicago, for appellee.
   Mr. Justice O’Connor

delivered the opinion of the court.

By this appeal Dillwyn M. Bell seeks to reverse an order entered November 17, 1938, committing him to the county jail of Cook county until he pays $24,500 to Marie F. Cullerton, administratrix of the estate of John F. Cullerton, deceased, or until he be otherwise discharged.

The record discloses that February 2, 1937, a decree was entered in two causes that had been consolidated. In one of the suits John A. Meaden sought by means of a creditor’s bill to enforce a judgment against W. J. Anderson Corporation, Dillwyn M. Bell, and others. The other suit was brought by John F. Cullerton, who subsequently died intestate, and his administratrix was substituted as plaintiff.

By a decree the suit brought by Meaden was dismissed for want of equity and in the suit brought by Cullerton it was decreed that Bell “deliver and turn over to the plaintiff, John F. Cullerton” $24,500 “within thirty days . . . and in default of the payment” Bell was ordered to “show cause to this Court why he should not be attached for contempt of this Court for failure to turn over and deliver ’ ’ the $24,500. The court reserved jurisdiction to enforce its order against Bell.

May 4,1938,15 months after the decree was entered, the administratrix filed her verified petition for a rule on Bell to show cause why he should not be attached “for failure to turn over and deliver” the $24,500. The petition set up the entry of the decree during the lifetime of John F. Cullerton, and alleged that the “decree provides that certain property described in said decree was in the possession” of Bell, that Bell wrongfully disposed óf it and that his conduct in this respect was intentional and wilfully fraudulent, in that Bell intended to cheat and defraud Cullerton of his interest in the property described in the decree; that in the decree it was ordered that Bell “deliver and turn over” to Cullerton $24,500 within 30 days, and should he default that he show cause why he should not be attached for contempt.

The administratrix further alleged in her petition that Bell failed and refused to. turn over the $24,500 or any-part thereof, and prayed that an order be entered requiring Bell to show cause why he should not be attached for contempt. Afterward Bell filed his amended verified answer in which he admitted the entry of the decree of February 2, 1937, and denied that the property described in the decree and mentioned in the petition of the administratrix was in his possession and denied that he wrongfully disposed of it; denied that he wrongfully and intentionally defrauded Cullerton; averred he had no knowledge that the decree had been entered against him until he was served with a copy of the petition of the administratrix.

It is further alleged in the answer that while the principal case was on hearing before the master to whom it had been referred, defendant’s counsel withdrew from the case by order of court and thereafter defendant was not represented by counsel and that he was never served with any notice after the withdrawal of his counsel and did not know that proof was being taken before the master; that he did not know that the decree had been presented to court and had no knowledge of any steps taken in the case after the withdrawal of his counsel; that the subject matter of the cause was also involved in a suit then pending in the United States District Court and that defendant was under the impression the two suits which had been consolidated in the superior court had ended by virtue of what took place in the federal court, and he therefore took no steps to engage counsel; that in the decree entered in the consolidated cause the court found that defendant used the money to pay off the debts of the corporation mentioned in that proceeding, and that the money was not used by defendant for his own personal use or invested in any other enterprise other than that which had been agreed upon by the parties; that at the time of the entry of the decree, and since, defendant did not have the $24,500 or any part thereof, nor did he have any means whatever with which to pay the $24,500 and had no money or property of any kind with which to pay any part of that amount; that the only property he had was certain personal property such as clothes and a few other items of personal property; that he had a contract whereby he was to be paid a commission for selling certain property but was unable to earn any substantial sum from this contract.

The court heard the matter on the petition and answer, found that Bell had not shown cause why he should not be attached for contempt, and he was committed to jail, as above stated.

Although no evidence was taken on the hearing, there was a colloquy between court and counsel and defendant Bell said: “I proceeded as far as I could in the case. [The business deal involved between Cullerton, Bell and others in regard to property located in Indiana.] I didn’t have a dollar in the world and every dollar I received from Mr. Cullerton I paid into the company. I didn’t take one penny of it. On the transactions they are talking about, I didn’t appropriate one penny of it. This is the case, your Honor, that because I didn’t discover my rights I couldn’t go any further.” The court took the position that all matters had been adjudicated by the decree, and that Bell having failed to comply with its terms and having failed to show any cause- why he did not so comply, there was nothing to do but commit him to jail. _

_ Neither the pleadings nor the evidence in the consolidated cause is in the record, but the decree entered in that cause is before us; from the decree it appears that Bell was interested in a corporation at LaPorte, Indiana, which was engaged in the business of manufacturing locks, etc.; there were two chattel mortgages on the property, one for $20,000 and one for $21,500, held by two different concerns; that negotiations were had between the company and its creditors in an endeavor to induce them to accept and apply payments out of the profits toward payment of such indebtedness.

The decree further found that there was an agreement between the Anderson corporation and the Automatic company, which was involved in a suit in the United States District Court, and under a decree of that court the property was sold by the sheriff to the Automatic company and the proceeds applied toward the indebtedness to the Finance company. It was further found by the decree that John F. Cullerton entered into negotiations with the defendant Bell; that Bell dominated the Indiana companies and represented to Cullerton that the company manufactured locks and had a valuable business but was in financial difficulty; that if Cullerton would advance approximately $25,000 to liquidate the obligations of the Lock company the basic patents under which the Lock company operated would be assigned to a holding company in which Bell would have 51 per cent and Cullerton 49 per cent of the stock; that pursuant to the agreement between Cullerton and Bell, Cullerton advanced “$24,500 which was used to pay the indebtedness of the Lock company ... so that the property of the Lock company could be turned over to the new corporation in which he was to hold stock”; that neither Bell, the Lock company nor the other corporation made any effort to comply with the agreement but entered into another agreement with another concern which prevented the performance of the agreement with Cullerton; “that the procuring of the money from Cullerton was fraudulent on the part of” Bell and the other two companies; “that they never intended to carry out the agreement. ’ ’

The decree further found that the contract could not be specifically performed; that “all of the property was held in trust by the defendant for the benefit of Cullerton to the extent of the money that he advanced; that the defendant represented to Cullerton that the sum of $24,500 would pay all the liabilities” of the two companies; that “the defendant became a trustee of the property as between himself and Cullerton,” and that the subsequent turning over of the property to one of the companies was a fraud upon the rights of Cullerton; “that said conduct was wilfully fraudulent and intended to cheat and defraud Cullerton. ’ ’ And it was decreed that Bell pay Cullerton $24,500 within 30 days, etc.

Imprisonment for contempt as in the instant case is civil in its nature. What Bell was ordered to do by the decree was for the benefit of Cullerton and the dignity of the court is only incidentally involved. Wilson v. Prochnow, 359 Ill. 148. Sec. 12 of article 2 of the constitution of this State provides that “No person shall be imprisoned for debt, unless upon refusal to deliver up his estate for the benefit of his creditors, in such manner as shall be prescribed by law, or in cases where there is a strong presumption of fraud.” And in Tudor v. Firebaugh, 364 Ill. 283, the court in construing this provision of our Constitution said (p. 288) : “In the enforcement of this constitutional provision every doubt should be resolved in favor of the liberty of the citizen. No one should be imprisoned for a failure to pay money unless the evidence clearly shows that the party charged has the money within his power to pay, or that he had the money and wrongfully disposed of it. Courts may imprison for willful defiance, but they will not imprison for a failure to comply with á decree where the disobedience is not willful.” Citing a number of Illinois cases.

In the instant case there is no finding in the decree, which is the basis' of the contempt proceeding, that Bell had the $24,500 or any part thereof in his possession, but on the contrary the decree specifically found that ‘ ‘ a large portion of the money advanced by Cullerton was used in paying the indebtedness of the Bell Lock Company and of W. J. Anderson Corporation, so that the property and patents owned by the Bell Lock Company and the said Anderson Corporation might be turned over to the reorganized corporation in which Cullerton was to have stock.” From'this it appears that Bell used a large portion of the money as authorized by Cullerton to do, and the fact that afterward the property was sold by the sheriff by virtue of one of the chattel mortgages indicates that Cullerton’s money was not lost through the fraud of Bell. At least the decree is subject to such construction, and therefore we would not be warranted in finding that Cullerton lost his $24,500 through fraud on the part of Bell. It must clearly appear from the decree that Bell was guilty of defrauding Cullerton before he could be committed to jail as for a contempt for failure to pay the $24,'500. As said in the Tudor case, “every doubt should be resolved in favor of the liberty of the citizen,” in the enforcement of our constitutional provision. Under such circumstances, inability to pay the amount mentioned in the decree is a good defense to a contempt proceeding brought for the benefit of one of the parties to the decree. People v. LaMothe, 331 Ill. 351; Tudor v. Firebaugh, 364 Ill. 283; Herrington v. Cassem, 82 Ill. App. 595; Littlefield v. Adel, 151 Ga. 684; Dodson v. Butler, 101 Ark. 416 (39 L. R. A. (N. S.) 1100); Adams v. Haskell & Woods, 6 Cal. 316 (65 Am. Dec. 517).

Moreover, we think the order appealed from is erroneous for the reason that defendant in his amended answer, which was verified, swears that while the case was on hearing before the master his attorney withdrew (as appeared from an order entered by the court) and that thereafter defendant was not represented by any counsel and was given no notice of any further hearing or other proceedings taken in the matter. Obviously, after his counsel withdrew of record defendant was entitled to be notified of any further steps taken. Defendant in his answer further swears that neither at the time of the entry of the decree in the consolidated cause nor at any time thereafter did he have any part of the $24,500 in his possession.

The order of the superior court appealed from is reversed.

Order reversed.

Matchett, P. J., and McSijrely, J., concur.


text:
    People of The State of Illinois ex rel. Edward J. Barrett. Charles H. Albers and State Bank of Blue Island, Appellees, v. Blue Island Trust and Savings Bank, Appellant.
    Gen. No. 40,669.
    Opinion filed October 23, 1939.
    Paul T. Klenk, of Chicago, for appellant; Franklin W. Klein, of Chicago, of counsel.
    Malato & Horrell, of Chicago, for certain appellee; Albert J. Horrell, of counsel.
    W. Otto Wielgorecki, Scott, MacLeish & Falk and Yowell & Langdon, all of Chicago, for certain other appellee; John J. Yowell, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.

By this appeal the Blue Island Trust and Savings Bank, a corporation, seeks to reverse an order or decree of the circuit court of Cook county dismissing its petition, whereby it sought to have vacated a decree of the circuit court of Cook county allowing the claim of the State Bank of Blue Island filed with the receiver of the Blue Island Trust and Savings Bank, which was in process of liquidation.

The Blue Island Trust and Savings Bank, which had been conducting a bank in Blue Island, closed and on January 13, 1930, the auditor of public accounts took possession and some time thereafter appointed a receiver and filed suit to liquidate the bank. As a part of the plan it was decided, by the proper parties, to organize a new bank and accordingly the State Bank of Blue Island was organized. Afterward the State Bank filed its claim against the receiver of the old bank. The claim was based on a contract entered into between the two banks. The receiver interposed a defense that the contract was ultra vires and void. The matter was referred to a master in chancery who recommended the allowance of the claim — $145,310.87. December 21, 1936, a decree was entered in accordance with the recommendation of the master.

July 3, 1937, Paul T. Klenk, solicitor for the Blue Island Trust and Savings Bank (old bank) asked leave of court to file the petition of the old bank, and the court entered an order continuing the matter to July 22nd. The next that appears from the record is that on October 28, 1937, the verified petition of the old bank was filed by Paul T. Klenk. It set up that on November 20, 1933, the appearance of the old bank and of Mr. Klenk, its solicitor, was filed; that on December 17, 1936, the State Bank (new bank) filed its claim against the receiver of the old bank to enforce the contract between the two banks; that on November 12, 1936, Charles H. Albers, receiver of the old bank, filed his petition setting up the facts of the new bank’s claim, contending that the contract was ultra vires and void as being against public policy, and requesting the court for instructions; that the matter was referred to a master; that the claim was afterward allowed and a decree entered; that no notice of the filing of the petition of November 12, 1936, nor of the hearing before the master, nor of the entry of the decree, was given to the old bank or its counsel. The petition further set up that the contract between the two banks was ultra vires and that even if it were not, there was no valid or proper demand made by the new bank for the repurchase of the securities, as the contract required. The prayer of the petition was that the allowance of the claim be vacated and that the old bank be given leave to file an answer to contest the claim. The receiver filed his motion to dismiss the petition. The matter was referred to the same master in chancery to whom the question of the allowance of the claim of the new bank against the receiver had theretofore been referred. The master found that no notice was given to the old bank or to its counsel, Mr. Klenk, of the various steps taken in the allowance of the new bank’s claim, etc., but found that on March 30, 1937, Mr. Klenk had been advised of the entry of the decree of December 21, 1936, allowing the new bank’s claim, but that he did not move to vacate it until July 3, 1937, and that this.delay showed a lack of diligence which barred any relief under the petition, and recommended its dismissal. September 22, 1938, an order was entered approving the master’s report and dismissing the petition of the old bank, and it appeals.

In this court the new bank and the receiver of the old bank, who are defending the decree of the trial court, contend that after the appointment of the receiver of the old bank, the receiver alone had the right to prosecute and defend any matter involving the old bank and therefore the old bank could not properly file its petition, and the court properly struck it. As the basis for this contention counsel cite section 11 of the Banking Act (sec. 11, ch. 16½, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 10.11]). The pertinent part of that section provides that, “If the Auditor determines that the bank cannot be reorganized and that the same should be liquidated through receivership he shall appoint a receiver, . . . Such receiver, under the direction of the Auditor, shall take possession of, and for the purpose of the receivership, the title to, the books, records and assets of every description of such bank, and shall proceed to collect all debts, dues and claims belonging to it, and, upon the order of a court of record . . . may sell or compound all bad or doubtful debts, and on a like order may sell the real and personal property of such bank, on such terms as the court shall direct. . . .

“Such receiver shall have authority to sue and defend in his own name with respect to the affairs, assets, claims, debts and choses in action of such bank. . . . He shall have the power and authority to redeem or take down collateral hypothecated by said bank to secure its notes or other evidences of indebtedness whenever the Auditor deems it to the best interest of the creditors of said bank so to do, and to do such other things and take such other steps from time to time under the direction and approval of the Auditor as may reasonably appear to be necessary to conserve the trust estate and secure the best interests of the creditors of said bank. ’ ’ That section further provides that, “From time to time the Auditor of Public Accounts shall make a ratable dividend of the moneys collected by such receiver on all such claims as may have been proved to his satisfaction or adjudicated in a court of competent jurisdiction, and, as the proceeds of the assets of such bank are collected, shall make further dividends on all claims previously proven or adjudicated. . . . After one year from the final dissolution of the bank, the Auditor shall make a pro rata distribution thereof to those claimants who have accepted dividends until such claim or claims are paid in full, and if any of said moneys shall then remain in his hands, the Auditor shall distribute the same pro rata to the stockholders.”

We think this statute is clear and unambiguous. By virtue of the statute the property of the bank in liquidation is turned over to the receiver who is given authority to sue and defend in his own name any claim for or against such bank. He represents the bank.

In the instant case we think the old bank was not authorized to intervene and contest the claim of the State Bank. And therefore no notice was required to be given to the solicitor who entered its appearance and that of himself.

When the claim was filed, as above stated, the receiver contended that the contract between the two banks, upon which the new bank’s claim was predicated, was ultra vires and void. That question was there litigated and determined adversely to the receiver and the question cannot be relitigated, as is sought to be done in the matter before us. We might also add that in the case of State Bank of Blue Island v. Benzing, 301 Ill. App. 352, the validity of the same contract was involved. It was there contended that the contract was ultra vires and void. Upon a consideration of this question in an opinion filed October 3, 1939, we held that the contract was valid and binding.

And while the applicability of section 11 of the Banking Act above quoted from was in no way pleaded or involved in the hearing before the master or the chancellor, as counsel for the old bank points out, yet we are of opinion that since the matter had been judicially determined and under the law the old bank cannot be permitted to intervene, the decree of the circuit court of Cook county ought not to be disturbed.

The decree of the circuit court of Cook county is affirmed.

Decree affirmed.

Hatchett, P. J., and HcSurely, J., concur.


author: Mr. Presiding Justice Denis E. Sullivan

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    Louis M. Quitman, Plaintiff, v. Jeremiah W. Dowd et al., Defendants. Sara M. Dewey et al., Appellants, v. Charles E. Bartley et al., Appellees.
    Gen. No. 40,555.

      Opinion filed October 25, 1939.
    Peabody, Westbrook, Watson & Stephenson, of Chicago, for appellant Sara M. Dewey.
    Morris Blank, of Chicago, for appellant Sarah Mincer.
    Walter W. Baker, of Chicago, for appellant Harry Flynn.
    Kirkland, Fleming, Green, Martin & Ellis, of Chicago, for appellee Charles E. Bartley; Bartlett S. Marimon and Charles M. Rush, both of Chicago, of conns el.
    Sarsfield Collins, of Chicago, for appellee Louis M. Quitman.
   Mr. Presiding Justice Denis E. Sullivan

delivered the opinion of the court.

In this case a foreclosure proceeding was commenced on January 11,1933, and the property was sold on May 20, 1938, at a master’s sale, to Charles E. Bartley for $60,000 and at the time there was $25,000 unpaid taxes. Charles E. Bartley was the owner of $217,000 of the $271,000 bond issue secured by the trust deed on the premises. Louis M. Quitman, who since 1935 had been trustee in possession, under order of July 29, 1938, surrendered the premises to Bartley from whom he received the sum of $3,452.02 as the other bondholders’ share of the estimated rents during the period of redemption. On August 6, 1938, this last named order was vacated and a receiver appointed.

On August 27, 1938, on petition of Mary V. Bartley, the owner of the equity and the wife of Charles E. Bartley, and Charles E. Bartley, the court removed the receiver and put Mary V. Bartley in possession under bond. The order placing Mary V. Bartley in possession found that she was the owner of the equity and that she had redeemed from the foreclosure sale. It provided that she post a $20,000 bond and account quarterly to the court on the receipts and expenditures for the building; that an audit be made by certified public accountants at the end of the period of redemption; that the sum of $3,452.02 representing the other bondholders’ estimated share of the rents, previously advanced by Bartley to the trustee be retained by the trustee; that the court retain jurisdiction to require additional payments if the other bondholders’ share of the rents exceeded the sum advanced to the trustee.

Interveners Dewey, Mincer and Flynn, owners of $2,500 of the bonds, appeal from this order removing the receiver and the order approving the final account of Quitman as trustee. .

The interveners say that the only point raised in respect to the pleadings is that the petition upon which the order appealed from is based, was not verified. No objection was made in the trial court to this apparent oversight and the question is raised here for the first time and will not be considered.

Interveners call attention to the entry of an order on July 29, 1938, without notice. This order was later vacated by Judge Klarkowsiii and is not before us for review.

This cause, Appellate Court Gen. No. 40,555 and another cause, Gen. No. 40,556, were both filed in this court for review and both cases relate to the same property. An order of consolidation was entered so that one set of briefs could be used in considering each case, but as the cases deal with different parties and different issues, it will be necessary for the sake of clarity to consider them as separate appeals.

Objection is taken first to the removal of a trustee and the placing of the owner in possession under bond, according to the statute. It appears from the court’s order that Mary V. Bartley had redeemed the premises at the sale and thereupon became the owner of the equity. It is the contention of the appellants that inasmuch as" the receiver had not taken possession from the owner of the equity that, consequently, the receiver must remain until the period of redemption.

It is the further contention of the defendants appellants that where a mortgage pledges the rents and profits or the decree of foreclosure provides for their application on the debt, in the event of a deficiency, it is the court’s duty to appoint a receiver to collect the rents and apply them upon any deficiency resulting from a sale. This, we think, is only partially true, that is that the rents and profits of a building are conveyed with the real estate as security for a debt. It is a contract which the courts may enforce, but to assert that a receivership is the only method by which such a contract may or can be enforced is not altogether true. The court may, in its discretion, use whatever method seems best to it as the necessities and exigencies of the situation may require.

The Ill. Rev. Stat. 1937, ch. 22, par. 55, sec. 2 [Jones Ill. Stats. Ann. 106.20], provides that the owners may remain in possession, or possession may be taken from the receiver after appointment and given to the owner of the equity under a bond to account for the rents, issues and profits and be placed in possession instead of a receiver. First Nat. Bank of Joliet v. Illinois Steel Co., 174 Ill. 140; Chicago Title & Trust Co. v. Suter, 287 Ill. App. 162.

It is next contended by defendants appellants that a lien on the rents — a property right — having been obtained in this case by the appointment of a receiver, it was the court’s duty to permit the lien to remain. We do not understand that the removal of a receiver and the placing of one in possession under bond, in any way destroys the lien on the rents. Courts necessarily must have wide discretion in the method of handling property which comes under the court’s jurisdiction, particularly where the property is income producing. If an owner in possession can collect the rents at a lesser cost, so that a greater sum may be realized for the lien claimants, we cannot understand why the lien claimant should complain if that is done. Courts of equity possess broad, inherent and discretionary powers in the manner of granting relief. Although the trust deed may authorize that a receiver be appointed to collect the rents, it does not necessarily follow that a court of equity will enforce such provision by any particular method, simply because it was so stated in the trust deed. Bothman v. Lindstrom, 221 Ill. App. 262; Bagley v. Illinois Trust & Savings Bank, 199 Ill. 76.

In the instant case, it may well be that in making the change with reference to the receiver, the court did not intend to continue the expense of receivers’ and solicitors’ fees and the burden which would fall upon the property by further retaining the receiver in possession. As stated, the appointment of a receiver may have been suitable in the foreclosure of the original trust deed, yet it does not follow that the court is irrevocably bound to follow that method. Contracts specifying a particular remedy do not necessarily bind the court to follow such specification as the sole remedy.

Complaint is also made that the trial judges in vacating the order in appointing the receiver and substituting another method of collection, were reviewing the order of a former court of concurrent jurisdiction.

It must be remembered that in a court with as many judges sitting as there are in this jurisdiction, that frequently the individual judge is changed and, as in this case, such change occurred during a vacation period at which time the judges sit in what is known as emergency matters, for a week at a time. "When the trial calendars are made up, the chancellors are selected for the year following. In this case it so happened that the cause appeared on the trial calendar of Judge Prystalski. It is to be noted, however, that when the order was entered by Judge Klarkowski it was stated in the order that it was entered without prejudice to the making of a motion before Judge Prystalski to terminate the receivership. We do not think the record shows any attempt to review the order of a court of concurrent jurisdiction.

It has not been pointed out that any loss or damage will accrue to the complaining parties by reason of the action taken by the trial court.

•In view of the record, we do not think any injustice has been done and for that reason the order of the circuit court appealed from is hereby affirmed.

Order affirmed.

Hebel and Burke, JJ., concur.