text:
    Zella Koch, Appellant, v. Robert McClugage, Appellee.
    Gen. No. 8,787.
    Opinion filed August 24, 1934.
    Rot P. Hull and George W. Hunt, for appellant.
    Weil & Weil, for appellee.
   Mr. Justice Dove

delivered the opinion of the court.

Appellant, the plaintiff below, in her amended and supplemental bill, hereinafter referred to as the complaint, alleged that in October, 1922, she was married to Edward J. Koch and has lived and cohabited with bim as his wife from that time and that they are the parents of two minor children, aged 10 and 8 years respectively, and that she and her children are wholly dependent upon Edward J. Koch for their support, shelter, maintenance and sustenance. The complaint then particularly described certain premises located in the City of Peoria and charged that appellee, defendant below, conducted, operated and maintained therein and had for more than 10 years last past, a gambling house called “The Windsor,’’ which was equipped with roulette wheels, slot machines, punch boards, poker chips, playing cards, dice, dice tables, lotteries, lottery tickets and divers and sundry other gambling devices, and that these various gambling devices are now and have been kept and used by appellee solely for gambling purposes. It is then charged that appellee, with the help of his employees and servants, maintains, conducts and operates said gambling devices for the purpose of gambling for money or other things of value, with persons frequenting The Windsor, and suffers and allows gambling for money to be carried on in said establishment by any and all persons who frequent and have frequented the same, and who desire or have desired to gamble for money, either by playing said roulette wheels, slot machines, punch boards, lotteries and other gambling games or by playing poker or shooting craps, upon all of which said devices and games money may be and is paid to appellee or played or hazarded with him in the form of gambling.

The complaint then charged that appellant’s husband, Edward J. Koch, shortly after their marriage, began gambling and wagering money in The Windsor, and that during the past years his visits thereto for the purpose of gambling have increased to such an extent that he has been spending approximately three-fourths of his time therein, gambling and wagering his money; that during said period of time, he lost many thousands of dollars in gambling and paid the same to appellee; that in December, 1932, he borrowed $300 from appellee, evidencing the same by his promissory note, and at that time he, the said Edward J. Koch, endeavored to break his pernicious habit of gambling, but shortly thereafter appellee invited him to again gamble and wager money at The Windsor and destroyed said promissory note. The complaint then charges that appellee then and there well knew that the sight of gambling paraphernalia and the click of dice to the said Edward J. Koch made it impossible for him to resist participating in such gambling, and that Koch could not and did not resist the allure of gambling, and since said time has continued his gambling at The Windsor to such an extent that he is now fast losing all desire to engage in legitimate employment and is acquiring an attitude of contempt for the small gains of honest pursuits; that he is and has been, as a result of said gambling, disregarding the maintenance of the home of himself, his wife arid children and the payment of their necessary household, medical and hospital expenses and instead of discharging these moral and legal obligations, the said Koch is and has been spending his earnings at The Windsor, by means whereof appellant has suffered and sustained a special damage distinct from that done to the community at large to the extent of $10,000 and the ties of her.home and her domestic life will be completely annihilated and she will suffer great damage and irreparable injury unless the public and common nuisance now maintained by appellee is not immediately abated and its operation restrained by an injunction.

The prayer of the complaint is that the premises therein described, so long as they shall be used and operated as in the complaint set forth, be declared a common nuisance and that appellee be enjoined from using, occupying, operating and maintaining the same for gambling and wagering purposes and from engaging in the operation of conducting and maintaining any games of chance therein where money or anything of value may be hazarded or wagered. The chancellor sustained a general demurrer to this complaint and appellant electing to abide thereby, her suit was dismissed for want of equity and from that decree she has perfected this appeal.

Hoyt v. McLaughlin, 250 Ill. 442, was a suit brought by a property owner to restrain the defendants from running an illegal dramshop. The bill alleged that the complainant owned a four-story building about 200 feet distant from the dramshop, but in the same block; that the lower rooms of complainant’s property were leased for merchandise purposes and that on the second, third and fourth floors were 18 flats or living apartments occupied as dwellings; that the operation of the dramshop denied to complainant and his tenants the peace and quiet to which they were entitled and that the inherent nature of defendant’s business was such that complainant could not rent his premises advantageously, but he is forced to accept greatly reduced rent and an inferior class of tenants. In reversing the decree of the trial court, which sustained a demurrer to this bill, the Supreme Court held that the allegations of the bill made a case of special injury, which entitled complainant to maintain the suit; that an unlicensed dramshop is a nuisance; that such a nuisance will be enjoined at the suit of a private person where the nuisance caused such person a special and particular injury distinct from that suffered by him in common with the public at large, but that in cases where no private or special injury is caused to an individual an action to abate the nuisance must be instituted by or in the name of the public.

Cahill’s Illinois Revised Statutes, 1933, ch. 38, fl 303, provides that all places where slot machines and other gambling devices are held and operated shall be taken and declared to be common and public nuisances and subjects the keeper thereof to a fine and imprisonment. Under the allegations of this complaint, appellee is maintaining a nuisance and the question then arises: Can this nuisance be abated at the suit of appellant, a private person? As said in Hoyt v. McLaughlin, supra, the answer to this question depends upon whether appellant has suffered special damage different from that suffered by her in common with the public. It is conceded by appellant that as a general proposition, equity has no jurisdiction to enjoin the commission of crimes and that injury to property is the foundation upon which injunctive jurisdiction rests, but appellant insists that destruction of her means of subsistence is such a property right as courts of equity, in the furtherance of justice, will protect, and cites, in support of her contention, Wahle v. Reinbach, 76 Ill. 322; Barrett v. Mt. Greenwood Cemetery Ass’n, 159 Ill. 385; Cope v. District Fair Ass’n, 99 Ill. 489; Meidel v. Anthis, 71 Ill. 241; Herald v. Glendale Lodge, 46 Cal. App. 325, 189 Pac. 329; Glover v. Malloska, 238 Mich. 216, 213 N. W. 107, and Pomeroy’s Equity Jurisprudence, 2nd Ed., Vol. 5, sec. 1892.

We have examined each of these cases and the text of Pomeroy. In Wahle v. Reinbach, supra, the Supreme Court sustained a decree rendered in favor of a property owner which restrained an adjoining property owner from constructing a privy within 20 feet of a well of water from which complainant and his family were supplied with water for drinking, cooking and domestic purposes. In Barrett v. Mt. Greenwood Cemetery Ass’n, supra, the court said that drainage from a cemetery into a flowing stream, thereby rendering the waters therein unfit for domestic purposes, constituted a nuisance which a court of equity would enjoin at the instance of the owners of the land through which such a stream flows. In Cope v. District Fair Ass’n, supra, it was held that a stockholder of an incorporated fair association could not maintain a suit to enjoin the association and its officers from permitting gambling on the grounds of the association. Meidel v. Anthis, supra, was an action brought to recover damages from one who had furnished her husband with intoxicating liquor and it was held that the plaintiff must allege and prove that she was injured in her person, in her property or in her means of support before a recovery could be had. The court interpreted the phrase, “Means of support,” as used in the statute, to embrace all those resources from which the necessaries and comforts of life are or may be supplied, such as lands, goods, salaries, wages or other sources of income. In Herald v. Glendale Lodge, supra, the complainant, as a member of the defendant lodge of Elks, brought an action to enjoin it from serving beer to its members at luncheons and banquets in violation of the city ordinance of the City of Glendale, and the Appellate Court, in reversing the decree of the lower court, which sustained a demurrer to the bill, held that an individual member of the defendant had a right to enjoin the harmful consequences which the bill disclosed would result to the defendant if it was permitted to continue to violate the ordinance. In its opinion the court cited Klein v. Livingston Club, 177 Pa. 224, 35 Atl. 606, 34 L. R. A. 94, 55 Am. St. Rep. 717, where it is said: “A bill having for its sole purpose an injunction against crime or misdemeanor, it is .well settled, does not lie; but it is just as well settled that equity will interfere if the alleged criminal acts go further and operate to the destruction of or diminution of value of property.” The opinion then refers to the case of Manderson v. Commercial Bank, 28 Pa. 379, which held that an injunction should issue at the instance of a stockholder to prohibit the practice of the directors in discounting notes at a rate of interest in excess of that allowed by its charter, on the ground that such a practice jeopardized the rights of the stockholders. The opinion then points out that the plaintiff in the Herald case bases his claim to relief on the fact that he is a member of the Elks lodge and as such is directly and financially interested in its affairs and that as a result of its unlawful conduct, the lodge will subject itself to prosecutions and losses incident thereto. The court in its opinion then says: “Why, then, should not the individual members of the lodge be entitled to enjoin such harmful consequences as would thus result? This procedure is not against the infraction of law in itself, but against the infliction upon the club and its members of the pecuniary loss, as well, perhaps, as social odium affecting the material prosperity of the club growing out of the ‘unlawful method adopted by the managers in carrying on its business. ’ ’

In Glover v. Malloska, supra, the defendant, doing a wholesale business as the Lincoln Petroleum Products Company, sold lottery tickets to his retail customers at one cent each, who in turn gave them away to purchasers at their retail oil stations. These tickets gave the holder a chance upon an automobile which was raffled off at least once each month. In sustaining a bill to enjoin the conducting of such a lottery, brought by a.competitor in the oil business, on the ground that the illegal scheme attracted business to the injury of plaintiff’s property rights, the court said: “No one should be permitted to employ criminal means in trade rivalry. The law proscribes a lottery and those injured thereby m their rights of property are not required to suffer successive inflictions of pecuniary injury until a criminal prosecution is launched. Courts do not depart from the rule that equity may not interfere, except to protect property rights of a pecuniary nature, in enjoining criminal acts exercised by one dealer to enhance his sales to the calculated pecuniary injury of a law abiding competitor. Defendant Malloska adopted the lottery scheme for profit, admits its employment increased his sales, and plaintiffs established the fact that such increase was directly traceable to their loss of customers. We think plaintiffs entitled to an injunction.”

In Pomeroy’s Equity Jurisprudence, supra, the author states that where the injury resulting from the nuisance is irreparable as when destruction of the means of subsistence will ensue from the wrongful act, then courts of equity will interfere by injunction in furtherance of justice and the violated rights of property, and in Wahle v. Reinbach, supra, the court in its opinion used substantially the same words, but in support of the text in Pomeroy, no cases are cited, nor do any of the cases relied upon by appellant hold that the wife of a confirmed gambler who spends some of his earnings and three-fourths of his time at an illegal place of business and as a result thereof disregards his moral and legal duty to maintain his home and support his wife and children, is entitled to have such illegal business abated. The California case, supra, is distinguishable because there the proceeding was brought by a member of the lodge which was engaged in an illegal act, and the relief was granted because a continuance thereof would inflict a pecuniary loss upon the plaintiff member and in the Michigan case, supra, it was also held that a continuance of the illegal act of the defendant inflicted a pecuniary loss to the plaintiff’s business.

In the instant suit, it cannot be said that the conduct of appellee in maintaining a nuisance affects in the least appellant in her enjoyment of her property or inflicts pecuniary loss on her in the sense that term is used in the cited cases. The most that can be said is that appellee, by affording appellant’s husband a place to gamble, thereby causes him to squander his time and money, which results in his failure to perform his duty to properly support and maintain appellant and their children. The right which appellant has to have her husband support and maintain her and her children is not, in our opinion, such a property right, or property, in the sense that the same may be preserved to her by enjoining the maintenance of a nuisance.

Counsel for appellant have failed to furnish us with a precedent where such a bill has been sustained, and our own research fails to find any. Our sympathies are with appellant, but courts of equity are not authorized to grant injunctions for moral reasons nor restrain an illegal act simply because it is illegal or because the law enforcement officers of a community refuse or neglect to do their duty, but as frequently pointed out by the decisions, it is elementary law that the subject matter of the jurisdiction of a court of chancery is civil property. Equity is conversant only with questions of property, and the maintenance of civil rights. Injury to property, whether actual or prospective, is the foundation upon which the jurisdiction of a court of chancery rests, and it has no jurisdiction in matters merely criminal or merely immoral, which do not affect any right of property. Sheridan v. Colvin, 78 Ill. 237.

Cahill’s Illinois Revised Statutes, 1933, ch. 38, ÍI1Í148, 149, impresses all places, which are used for the purposes of lewdness, assignation or prostitution, as public nuisances and authorizes not only the State’s attorney, but any citizen, to institute a suit in the name of the People of the State of Illinois and abate such nuisance, restrain its maintenance and enjoin the use of the premises for any purpose for one year. In the absence of any like statutory enactment by the general assembly authorizing any citizen to institute a suit to abate a gambling den and restrain its maintenance and enjoin the use of the premises for that purpose, this court is of the opinion that to grant appellant the relief sought, in view of the repeated holdings of our courts, would be to extend into new fields the jurisdiction of equity as heretofore recognized.

There was no error, in our opinion, in sustaining the demurrer to the amended and supplemental bill, and the decree of the lower court is therefore affirmed.

Decree affirmed.


source: Caselaw Access Project

author: Mr. Justice Huffman

license: Public Domain

text:
    Zechariah Cooke, Appellee, v. Groveland Coal Mining Company et al., Appellants.
    Gen. No. 8,565.
    Opinion filed August 28, 1934.
    Bartley & Younge, for appellants.
    Herget & Hoffman, for appellee.
   Mr. Justice Huffman

delivered the opinion of the court.

Appellee filed his petition for compensation under the Workmen’s Compensation Act, Cahill’s St. ch. 48, If 201 et seq., on account of injuries alleged to have been received while in the employ of the Gfroveland Coal Mining Company. There was a hearing before an arbitrator, which resulted in an award in favor of appellee for the sum of $17 per week for a period of 382 5/7 weeks. Appellant company filed its petition with the industrial commission for a review of the award, which petition was dismissed by said commission on the ground that it was not filed within 15 days of the receipt of the copy of the award, as provided by statute. The appellant company thereafter sued out a writ of certiorari from the circuit court of Peoria county, and the appellant company together with Charles I). Off and Walter Off, filed a bond in the sum of $6,500, which bond recited the fact of the award in favor of appellee herein and against the appellant company as above set out, and containing the condition as provided by statute, that if they should not successfully prosecute said writ, they would pay the award and the costs of the proceedings in said court. The circuit court remanded the case to the industrial commission to take further evidence. The commission thereafter entered its order reducing the amount of compensation awarded, whereupon appellee herein by due legal steps prosecuted the case to the Supreme Court of Illinois, which court in the case of Cooke v. Industrial Commission, 340 Ill. 309, confirmed the award of the arbitrator for the sum of $17 per week for 382 5/7 weeks.'

The award not being paid, appellee brought this suit in the circuit court of Peoria county, upon the above bond as given by the appellants. This cause was heard by the court and judgment was rendered against appellants for the sum of $6,500, from which judgment they prosecute this appeal.

It is urged by appellants as their sole contention for reversal that the condition of the bond in question was satisfied by the successful prosecution of the certiorari proceedings instituted by them in the circuit court of Peoria county, as aforesaid. That proceeding in nowise was terminated by a final judgment. The circuit court remanded the cause to the industrial commission for the taking of additional testimony. That court did not change the award in any way. Such order was merely interlocutory and not subject to review by the Supreme Court. Dunavan v. Industrial Commission, 355 Ill. 444.

The • statute provides that such bond shall operate as a stay of the judgment or order of the circuit court until the time shall have passed within which an application for a writ of error can be made and until the Supreme Court has acted upon the application for a writ of error, if such application is made. And further, that if the Supreme Court grants a writ of error, then until the matter is finally determined by that court. (Part 2 of par. f. of sec. 19, of the Act, Cahill’s St. ch. 48, H 219.)

It has been expressly held that an employer’s bond given upon suing out a writ of certiorari is security for the award until the case is finally determined. Giertz v. Snyder, 302 Ill. 618. The bond which the employer is required to give under the Compensation Act before prosecuting a writ of certiorari to review an award in the circuit court is to protect the employee until the final adjudication of the rights of the parties, and although the writ of certiorari is prosecuted successfully in the circuit court, the bond remains security for the payment of the award until the expiration of the time for application for a writ of error to the Supreme Court, or, if such application is made, until after the Supreme Court has decided the case. Giertz v. Snyder, supra.

The contention made herein by appellants that their writ of certiorari was successfully prosecuted in the circuit court of Peoria county is without merit. As seen above, the order made therein by the circuit court was interlocutory. The rights of the parties were in no way determined thereby and the outcome of such writ of certiorari was in nowise a final adjudication of the matter. The bond given by appellants was conditioned upon the successful prosecution of their writ, which meant a final judicial determination favorable to them. The cause might not have been prosecuted to final determination in the Supreme Court, and in such instance, a judgment in favor of appellants by an inferior tribunal would have become final. However, this cause was prosecuted to the Supreme Court, and by it decided in favor of the plaintiff in error therein, who is appellee in this case.

Only one injury was involved in this action and but one claim therefor made by appellee. Only one hearing was had upon appellee’s petition before the arbitrator. The sum of money in dispute between the parties was the award of the arbitrator. The employer on the one hand was endeavoring to defeat this award in part or in toto, and the petitioner therein was endeavoring to sustain the award. It is true that after the cause was remanded to the industrial commission by the circuit court for further evidence, the commission thereafter rendered its decision reducing the amount awarded by the arbitrator, but this action of the commission was resisted by appellee, and he was successful in setting aside such reduced award and having the award as originally "fixed by the arbitrator confirmed by the Supreme Court. Bach legal act taken after the award of the arbitrator herein was either to defeat the award or to sustain it. The appellants gave bond conditioned upon the successful prosecution of their proceedings to resist such award. The injured employee had the same right to appeal to the courts to sustain his award, as the employer had to resist it.

The bond given in this case is intended under the statute to remain in full force and effect until the final determination of the litigation between the parties over the matter involved. The matter involved was the award of the arbitrator and it was upon that award that the bond was given. As seen above, it was effective .and operative under the statute as a stay of the judgment or order of the circuit court, until expiration of the time within which an application for writ of error could be made in the Supreme Court, and if such application was filed, then as a stay of judgment until such court should act thereon. It is apparent that it is not only the legislative intent that such bond shall remain in force and effect until writ of error can be prosecuted by either party to the Supreme Court, but such has been the holding of that court, as evidenced from the above authorities.

Another case dealing with this question is that of Nierman v. Industrial Commission, 329 Ill. 623, wherein the court on page 626 of its opinion, with reference to the question of the bond given by the employer continuing until the final determination of the case, states: “The legislative intention is that the employee shall be protected by the bond. ’ ’ This being the law, the employee could not be protected by the bond if the same became satisfied by an erroneous judgment of the circuit court. It is thus manifest that under the contention urged by appellants, an erroneous decision by the circuit court in favor of the employer would defeat the purpose and effect of a bond, even though the employee should by subsequent proceedings in the Supreme Court secure a confirmation of the award as originally made.

Neither the award of the arbitrator, the decision of the industrial commission, nor the judgment of a circuit court in certiorari proceedings, are final adjudications, unless permitted to become so by the parties. When either party prosecutes the case to the Supreme Court, then and not until then, can it be said that the case has been finally determined. The bond to be given by the employer upon instituting certiorari proceedings in the circuit court being intended to protect the employee, therefore it must remain in full force and effect until the final adjudication of the cause by the Supreme Court, or until the time provided for a submission thereof has elapsed. To hold otherwise would be to destroy the very purpose for the giving of such bond.

Two conditions exist in this case to defeat the contention made by appellants. First, they obtained no final adjudication of this matter upon their certiorari proceeding before the circuit court of Peoria county. Second, the bond given by appellants in this proceeding is held to be security for the award resisted by the employer, until the case is finally determined. This case was finally determined by the Supreme Court in confirming the award of the arbitrator, as originally made.

The judgment of the circuit court of Peoria county is affirmed.

Judgment affirmed.


author: Mr. Presiding Justice Gtridley

text:
    Isadore Wolf, Defendant in Error, v. Schiff Trust and Savings Bank, as Trustee, etc., Plaintiff in Error.
    Gen. No. 37,223.
    Opinion filed July 6, 1934.
    Arkin, Berman & Marks, for plaintiff in error; Francis J. Higgins, of counsel.
    Irving Gr. Zazove, for defendant in error.
   Mr. Presiding Justice Gtridley

delivered the opinion of the court.

On May 25, 1933, Isadore Wolf commenced in the municipal court a fourth class action in contract against defendant, Schiff Trust & Savings Bank, as trustee, etc., based upon three bonds of $100 each. On July 14, 1933, after defendant’s motion to strike from the files plaintiff’s statement of claim had been overruled by the court, and after defendant had filed an affidavit of merits to the statement of claim, the cause came on for trial without a jury, resulting in the court finding the issues against defendant, as such trustee, and assessing plaintiff’s damages at the sum of $352.26. On the same day the court entered the following judgment:

“That it is considered by the court that plaintiff have judgment on the finding herein, and that plaintiff have and recover of and from the defendant, Schiff Trust & Savings Bank, a corporation, Trustee under the provisions of a deed or deeds in trust under certain trust agreement, dated September 15, 1925, and known as Trust No. 28, his damages amounting to the sum of $352.26, in form as aforesaid assessed, together with his costs herein expended, and that execution issue therefor.”

By the present writ of error defendant seeks to reverse the judgment. No bill of exceptions is contained in the transcript of the record. In plaintiff’s statement of claim it is alleged in substance :

“That on or about June 5, 1926, defendant executed and delivered 113 bonds, Nos. 1 to 113, inclusive, in the aggregate principal sum of $50,000, wherein it undertook and agreed to pay to the bearer, or registered owner, of any of the bonds the face value thereof, plus interest; that plaintiff is the owner and holder of three (3) of said bonds, each for the sum of $100, or a total of $300, plus interest coupons each for $3, or a total of $9 ”; that ‘ ‘ photostatic copies of said bonds are hereto attached and made a part of this statement of. claim”; that the bonds provided among other things that they would pay interest at the rate of 7 per cent per annum after maturity and until fully paid; that they became due and payable on June 5, 1931, and thereby plaintiff became entitled to receive 7% interest from said date on said $309 (amounting to $43.26), or a total sum of $352.26; that plaintiff has demanded of defendant that it pay said sum, but it has refused and still refuses so to do. To plaintiff’s damage, etc.

From the photostatic copies of the three bonds, made a part of plaintiff’s statement of claim, it appears that they are each for the sum of $100, are numbered respectively Nos. 96,108 and 109, and are signed “Schiff Trust and Savings Bank, as Trustee as aforesaid and not personally,” by its president and assistant cashier. On the face of the bonds there are inter alia the following provisions (italics ours):

“The undersigned, Schiff Trust and Savings Bank, a corporation duly organized and existing under and by virtue of the laws of the State of Illinois, not personally but as Trustee under the provisions of a deed or deeds in trust duly recorded and delivered to said Company in pursuance of a Trust Agreement dated Septeimber 15, 1925, and known as Trust Number Twenty-eight (28), hereby promises, out of that portion of the Trust Estate, subject to said Trust Agreement specifically described in the Trust Deed given to secure the payment hereof, to pay to bearer (or registered owner hereof) in the manner hereinafter and in said Trust Deed provided, on the fifth day of June, 1931, the principal sum of One Hundred Dollars ($100.00)” ...

“This bond is executed by Schiff Trust and Savings Bank, not personally but as Trustee as aforesaid, and is payable only out of the property specifically described in said Trust Deed, securing the payment hereof, by the enforcement of the provisions contained in said Trust Deed. No personal liability shall be asserted or be enforceable against the promissor or any person interested beneficially or otherwise in said property specifically described in said Trust Deed given to secure the payment hereof, or in the property or funds at any time subject to said Trust Agreement, because or in respect of this bond or the making, issue or transfer thereof, all such liability, if any, being expressly toaived by each taker and holder hereof and each original and successive holder of this bond accepts the same upon the express conditions that no duty shall rest upon the undersigned to sequester the rents, issues and profits arising from the property described in said Trust Deed, or the proceeds arising from the sale or disposition thereof, but that in case of default in the payment of this note, or any installment of interest, the sole remedy of the holder hereof or of any of the interest coupons attached hereto shall be by foreclosure of the said Trust Deed given to secure the indebtedness evidenced by this principal bond and the interest notes hereto attached, in accordance with the terms and provisions in said Trust Deed set forth. . . .

“In Witness Whereof, said Schiff Trust-and Savings Bank, not personally but as Trustee as aforesaid, has caused these presents to be signed by its President and Assistant Cashier, and has also caused the interest coupons hereto attached to be executed with their lithographed signatures at Chicago, Illinois, this Fifth day of June, 1926.”

In defendant’s affidavit of merits, made by a duly authorized agent having knowledge of the facts, it is stated that each of the bonds sued upon have certain provisions (here are specified the provisions above set forth), and it is further stated:

“Affiant further states that the trust estate subject to said trust agreement referred to consisted merely of title to the real estate described in said bonds, and has heretofore been conveyed by defendant at the direction of the holder of the certificate of beneficial interest under said trust, and that defendant has no property or real estate which he holds as Trustee under said trust, and that the same has been closed:

“Wherefore, affiant denies that defendant is indebted to plaintiff in the amount sued for herein, or in any other amount.”

Considering the provisions in the bonds sued upon (particularly those italicized above) and plaintiff’s statement of claim, we are of the opinion that the trial court erred in entering the judgment in question. It is well settled that ‘ ‘ an action against a trustee in his representative capacity is unknown to a court of law, for the law takes no cognizance of the trust relation or' the trust estate.” (Wahl v. Schmidt, 307 Ill. 331, 341; Duvall v. Craig, 2 Wheat. [U. S.] 45, 57.) And it is also well settled that‘ ‘ a guardian, executor, administrator, trustee, or other person acting in such relation, in a contract with third persons binds himself personally, unless he exacts an agreement from the person with whom he contracts to look to the funds of the estate exclusively.” (Austin v. Parker, 317 Ill. 348, 354; Bradner Smith & Co. v. Williams, 178 Ill. 420, 425; Schumann-Heink v. Folsom, 328 Ill. 321, 329.) In the case last cited it is said (italics ours):

“When a trustee contracts he does so for himself. He has no principal. The contract is the personal undertaking of the trustee, and if he wants to protect himself from individual liability on the contract he must stipulate that he is not to be personally responsible and that the other party is to look solely to the trust estate. (Citing cases.) In the case at bar the trustees did limit their liability by specifically stating that the contract was executed ‘not individually but as such trustees to bind the trust estate.’ Under the authorities this was sufficient. A covenant by trustees, ‘as such trustees but not otherwise,’ to repay a loan is a covenant to repay the money out of the trust fund, only, and does not impose any personal liability upon the trustees. (Citing cases.) . . . It is not against public policy to make an agreement with a creditor that he shall, in case of default in payment, look exclusively to a particular fund for his reimbursement.” (Citing-cases.)

From the provisions in the bonds sued upon in the present case, and in view of the above authorities, it is clear to us that defendant bank cannot, in an action at law upon these bonds, be held liable. In each of them defendant bank, “not personally but as Trustee,” etc., promised, “out of that portion of the Trust Estate, subject to said Trust Agreement specifically described in the Trust Deed given to secure the payment hereof,” to pay to bearer, “in the manner hereinafter and in said Trust Deed provided,” the principal sum of $100. And on the face of each bond it is further provided that the bond is executed by defendant bank “not personally but as Trustee as aforesaid”; that the bond “is payable only out of the property specifically described in said Trust Deed, securing the payment hereof, by the enforcement of the provisions contained in said Trust Deed”; that “no personal liability shall be asserted or be enforceable against the promissor . . . , all such liability, if any, being expressly waived by each taker and holder hereof”; and that “in case of default in the payment of this note, or any installment of interest, the sole remedy of the holder hereof . . . shall be by foreclosure of the said Trust Deed,” etc.

The judgment of the municipal court of Chicago of July 14,1933, against defendant bank should be and is reversed.

Reversed.,

Scanlan and Sullivan, JJ., concur.


author: Mr. Justice Scanlan Gridlby, P. J.,

text:
    The People of the State of Illinois, Defendant in Error, v. James Mirbelle, Alias Eugene Belmonte, Plaintiff in Error.
    Gen. No. 36,916.

      Gridley, P. J., dissenting.
    Opinion filed July 6, 1934.
    Francis X. Busch and Martin C. Weisbeod, for plaintiff in error.
    Thomas J. Courtney, State’s Attorney, for defendant in error; Edward E. Wilson, J. Albert Woll and Henry E. Seyparth, Assistant State’s Attorneys, of counsel.
   Mr. Justice Scanlan

delivered the opinion of the court.

An information was filed which charged that defendant, on March 5, 1932, “did then and there unlawfully carry concealed on or about the person of him . . . a certain firearm, ...” etc. Upon a trial by the court he was found guilty and sentenced to confinement in the house of correction for the term of one year and to pay a fine of $300.

For the People, O’Neal, a police officer, testified that he, with Officer Erickson, was “cruising” in a police ear in the vicinity of Barry avenue and Clark street when he heard someone “holler, ‘Hold up’ that they parked the car, got out, and started to 'cross the street, and when they reached the middle of the street they pulled their guns; that they then saw defendant “Walking east on Barry avenue in front of 732”; that behind defendant and walking in the same direction was one Kerbeck; that he and his partner “hollered” to defendant and Kerbeck, “Stick them up, we are police officers, stick them up,” and defendant “put his hands up” and as he did so the witness “saw the end of the revolver sticking up from underneath here. (Indicating the waist line)”; that “the handle was kinda sticking out”; that he observed the revolver without touching defendant; that, in the meantime, Officer Patterson had made Kerbeck put his hands up ; that he (the witness) and Patterson then “put the two of them against the wall” and then lined up two other men who were brought in; that the patrol wagon came and defendant and the other men were taken to the station, where defendant gave his name and address. Upon cross-examination the witness testified that there was a gambling house at 742 Barry avenue, near the corner of Clark. The following examination then took place: “Q. Now at the time you saw Mirabelle he was not committing any crime was he? A. Not at that time, no. Q. And he was going along in a peaceful manner is that right? A. Yes, sir. Q. At that time yon had no reason to believe he had committed a crime had you? A. Not at that time.” The officer further testified that he stopped defendant because he heard somebody “holler, ‘Stick up,’ ” and that he “figured that they may have something to do with it.” “Now when you approached them you say without searching them and going through his pockets you observed the gun is that right? A. Yes. Q. You knew he had a gun? A. When I told him to put his hands up I saw the handle of the gun here. (Indicating.) Q. How was he dressed? A. In an overcoat and a gray hat .... Q. When you heard the shout of the‘Stick up’did you see where it came from? A. It came from the direction of the corner. Q. Well you didn’t see the stick up on the corner? A. No, sir. The Court: You didn’t see any stick up? A. No, sir. . . . Q. Do you know whose voice it was? A. It sounded like a male voice. Q. Well do you know the person! A. I don’t know.” Officer Erickson testified, in substance, as follows: A man on the corner “hollered, ‘Hold up’ that he saw O’Neal and Patterson stop defendant and Kerbeck; that “about a minute later two other men came along, we were standing there and I stopped these two men and searched them. They had no weapons on them”; then two other men came along and he stopped them and searched them; that Kerbeck was about five feet behind defendant at the time that he first saw them; that he saw O’Neal take the gun “out of Mirabella’s trousers, no, in his belt”; that at the station defendant told him that just prior to his arrest he had taken a girl home, who lived on Barry avenue; that defendant gave him the girl’s name but that he had forgotten it; that defendant stated that he had just left the girl at her home and was on his way home when he was stopped; that he (the witness) never saw defendant before the time of the arrest. Upon, cross-examination he testified that at the time they stopped defendant and the other men there may have been five or six people at the corner; that “there is always a lot of people around there,” as it is “the intersection of Halsted and Clark”; that he did not then know who the defendant was or where he came from. “Q. As a matter of fact he acted the same as anybody else on the street! A. That’s right. Q. In a well behaved manner! A. Yes, sir. Q. You didn’t see him committing any offense or felony or crime of any kind, did you! A. No. Q. As a matter of fact he was submissive, was he not, in answers to your questions and did not give you any trouble! A. No, sir. The Court: Did you ask him any questions! A. I asked him his name and what he was doing. The Court: He answered you! A. Yes, sir. Q. He gave you an account of himself, didn’t he in a coherent manner and he told you who he took home? A. Yes, he said he took a girl home. Q. He gave you his address and he told you where he was going is that right? A. Yes, sir. Q. Did you go up into the gambling house there on Barry Avenue ? A. Later on. Q. Later on. Did you mention a shooting or say it is a stick up or there is a stick up? A. No. Q. You didn’t mention that? A. No, sir. Q. When was the first time you observed Belmonti and where was he? A. Well, he was just about in front of 742. Q. When you saw him (defendant) he was walking? A. Yes, he was walking. Q. You never saw him standing still? A. No, he was not standing when I saw him. He was walking East. ” On redirect he testified: “Q. When you first observed Mirabella or rather after the shooting or hold up did he walk any faster than he had been before, the same pace or any slower? A. No, he walked the same pace as far as I could observe. . . . Q. Did Kerbeck say anything about having been with Mirabella? A. No, he said he didn’t know him. Q. Did Mirabella say the same thing? A. He said the same thing, they denied it. Q. Did they at the time tell any different story? A. No, sir.” The foregoing is the entire direct testimony on behalf of the People. Defendant testified that he lived at 1330 Edgemont avenue, was a brick layer, and had worked for the Fullerton Structure Company for seven years; that on the day in question he had taken a girl to her home on Barry avenue and that he gave the officers her address; that after he had taken the girl home he was walking west on Barry avenue when he saw five or six men come out of the side door of a candy store on the left side of Barry avenue with their guns out; that they stopped everybody on the street; that they came across and searched him and then placed him in a hallway of a garage, and that about ten minutes later the police wagon came along and took him and others to the Sheffield avenue police station. Defendant denied that the officers- found a gun on his person and stated that at the police station the officers did not ask him any questions in reference to a gun nor did they show him a gun at any time; that he did not carry a gun that day nor did he ever carry a gun; that at the time the police had him lined up in the hallway they also had five other men lined up with him; that until the time of the arrest he had never seen Kerbeck. On rebuttal O’Neal testified that he had never seen defendant before the time in question and did not know “any past history he may have had”; that “there was nothing about him any different than anybody else on the street.” Upon cross-examination the officer stated that at the time there was a lot of confusion around the place, but that he was positive that he took the gun from defendant.

In deciding the case the trial court made the following-statement: “The Court: Well, the Court believes from the evidence shown beyond a reasonable doubt that the defendant carried the weapon that was introduced into evidence at the time he was arrested, and I think that the evidence was sufficient to show that the police had a right to stop him at that time. There was a commotion, a cry of a hold-up, they would not have been very good policemen if they did not stop people in the immediate vicinity at that time, so there will be a finding of guilty. ’ ’

Before the trial commenced defendant’s counsel orally moved the court to suppress the evidence of the search and seizure, on the ground that the arrest was illegal. The following then occurred: “The Court: All right, why not let the officers put in their testimony and I will consider your motion to suppress the evidence after your examination of the officers. Mr. Rosensweig (counsel for defendant): All right, your Honor. In other words you will reserve your decision on the motion to quash until after you have all the evidence in this case. The Court: That’s right. Mr. Rosensweig: In other words your Honor, I want it understood I have a motion to suppress the evidence pending and all rights that may come to my client by virtue of that motion are not waived. The Court: Tes, that’s the understanding. We will hear the evidence on the motion to quash on the case in general. Mr. Rosensweig: All right.” At the conclusion of the State’s evidence defendant’s counsel renewed his motion, which the court then overruled. Defendant contends that “the court erred in overruling plaintiff in error’s motion to suppress the evidence.” The People contend that as the motion to suppress was an oral one and no written petition or affidavit setting forth the grounds for the motion was filed or offered, the trial court was justified in overruling said motion. There is no merit in this contention. At the time the oral motion to suppress was made the People made no objection to the form or substance of the same and the trial court entertained the motion and stated that he would consider and determine it after the officers had been examined. When counsel for defendant, at the conclusion of the People’s evidence, renewed the motion, the People made no objection at that time to the form or substance of the motion and the trial court passed upon it and determined it adversely to defendant. While it is true that a verified petition or affidavit would have been the proper procedure, nevertheless, in view of the attitude of the trial court and counsel for the People, the latter are in no position to now raise the instant contention.

Paragraph 681 of the Criminal Code, Cahill’s St. ch. 38, reads as follows:

“Arrests without warrant.) Sec. 4. An arrest may be made by an officer or by a private person without warrant, for a criminal offense committed or attempted in his presence, and by an officer, when a criminal offense has in fact been committed, and he has reasonable ground for believing that the person to be arrested has committed it.”

In the recent case of People v. Fischetti, 273 Ill. App. 215, we held that where a defendant is arrested and searched, while committing no offense, by police officers without a warrant, the People, upon defendant’s motion to suppress the admission of the weapon as evidence, were bound to prove that a criminal offense had been committed in fact and that the defendant was reasonably suspected of committing it. In that case we reviewed, at length, the authorities bearing upon the subject, and it is unnecessary for us to here repeat what we there said.

In the instant case the People contend that “defendant was not arrested until after officers viewed the concealed weapon on his person.” On the other hand, defendant strenuously contends that he was arrested when the officers, with drawn weapons, “hollered” to him to “stick them up, we are police officers, stick them up,” and he complied with that order.

“The word (arrest) is ‘derived from- the French, arreter, to stop or stay, and signifies a restraint of a mdn’s person; depriving him of his own will and liberty, and binding him to become obedient to the will of the law. It is called the beginning of imprisonment. ’ Legrand v. Bedinqer, 4 T. B. Mon. (Ky.) 539, 540.” (5 C. J. 385.)

“An arrest consists in taking, under real or assumed authority, custody of another person for the purpose of holding or detaining him to answer a criminal charge or civil demand. . . . The custody or control, the assumption of which is involved in an arrest, imports actual restraint or detention, the mere utterance of words indicative of an arrest being insufficient, except perhaps when followed by submission . . . . An arrest is not consummated until there has been a taking of possession of the person by manual caption or otherwise, but the requisite control may be assumed without force, and in any manner by which the subject of the arrest is brought within the power or control of the person making it. Nor is manual touching necessary, where the subject of the arrest submits thereto or is otherwise actually subjected to restraint. But, where the person resists arrest, some manual touching of the body has been held necessary to consummate the arrest.” (5 C. J. 385-6.)

“An arrest is the taking of a person into the custody of the law. It has also been judicially defined as the taking, seizing, or detaining the person of another; touching or putting hands upon him, in the execution of process, or any act, .indicating an intentixm to arrest. . . . An arrest, in the strict legal sense of the term, involves three elements: authority, intention, and a restraint of the person. . . . There must be an intention, understood by the one arrested, to accomplish the arrest. ... A restriction of the right of locomotion is the most characteristic element of the arrest. . . . An arrest is effected when the party is brought within the power of the officer, an actual manual touching not being essential.” (2 Am. & Eng. Ency. of Law [2d ed.] 834^6.)

“In order that submission may take the place of an actual touching and render the arrest complete, it must be real and made while the person arrested is in the power of the one arresting.” (2 Am. & Eng. Ency. of Law [2d ed.] 838.)

In Corpus Juris and American and English Encyclopedia of Law (above cited) will be found many cases supporting the principles of law stated therein, and to which we have just referred. Archbold, in his work on Criminal Practice and Pleading (8th ed.), vol. 1, p. 81, states:

“ (1) An arrest in criminal cases, is the apprehending or detaining of the person, in order to be forthcoming to answer an alleged or suspected crime. Burn Just. tit. Arrest. Hart v. Flyn, 8 Dana, 190; Lawson v. Buzines, 3 Harring. 416.”

“Acts which amount to a taking into custody are necessary to constitute an arrest; but there need be no actual force or manual touching the body; it is enough if the party be within the power of the officer and submit to the arrest; Cas. temp. Hardw. 301; 5 B. & P. 211; Huntington v. Blaisdell, 2 N. H. 318; Hart v. Flynn’s Ex’r, 8 Dana (Ky.) 190; Strout v. Gooch, 8 Me. 127; Bissel v. Gold, 1 Wend. (N. Y.) 215, 19 Am. Dec. 480; Field v. Ireland, 21 Ala. 240; Courtoy v. Dozier, 20 Ga. 369; Cooper v. Adams, 2 Blackf. (Ind.) 294; but mere words without submission are not sufficient; 2 Hale, Pl. Cr. 129; Jones v. Jones, 35 N. C. 448; State v. Buxton, 102 N. C. 129, 8 S. E. 774.” (Bouvier [8th ed.] vol. 1, p. 241.)

Formerly it was held that the word “arrest” was more properly used in civil cases and “apprehension” in criminal cases, but the words are now very generally used interchangeably, and in Divisions VI and VII of our Criminal Code, relating to “pursuit of felon,” “arrest of offenders,” etc., “arrest” and “apprehension” are so used.

In support of its contention that under the law and the facts the officers did not arrest defendant until they observed the revolver upon his person, the People cite the following cases: State v. Holmes, 4 Pennewill’s (Del.) 196, 55 Atl. 343, 345; State v. Gulczynski, 32 Del. 120, 120 Atl. 88; Williamson v. State, 140 Mass. 841, and Genner v. Sparks, 1 Salk. 79. State v. Holmes has no bearing upon the contention of the People. The case that 'follows it in the Reporter is Petit v. Colmary, p. 344, and we find from a reading of the same that the Reporter has seen fit to quote in full a charge to a jury made by a nisi prius judge in an action for alleged false imprisonment. In State v. Gulczynski the arresting officer had been told that the defendant was violating the liquor law and thereafter the officer found him on the street carrying a package which the former believed contained intoxicating liquor. Thereupon the officer asked the defendant what he had in the package and the defendant replied, “Liquor, two gallons.” The court held that:

“The possession constitutes the crime, and if the officer sees the liquor in the possession of the accused, or the accused admits he has it in his possession, the offense is committed in the presence of the officer in legal contemplation and an arrest can be made without a warrant. If the defendant’s arrest was legal the search of the prisoner after his arrest was also legal.” Williamson v. State, 140 Mass. 841, is another erroneous citation. We find, however, Williamson v. State in 140 Miss. 841. There a sheriff had probable cause to believe that an automobile was transporting intoxicating liquor in violation of the law, and he placed his car upon the highway in such a maipier as to cause persons traveling the highway to slow down, and the defendant, traveling the highway in an automobile, was thereby caused to slow down, and the sheriff, using a flashlight, saw kegs of liquor on the seat of the automobile and he asked the defendant what was in the kegs, and the defendant replied, “Whiskey,” and the court held that under such a state of facts the sheriff was then authorized to arrest without a warrant and to seize the intoxicating liquors without a warrant. The court stated that:

“Under the facts detailed in this record, nothing was done to coerce either Williamson or Roberts into making any statement. They made the statement of their own accord and without compulsion, and before either an arrest or a search had been made. It was no violation of the law for the officers to ask the question, or to look at the kegs in the car seat.”

In Genner v. Sparks, an old case, a sheriff said to the defendant, in the latter’s yard, “I arrest you.” The defendant, in order to prevent the sheriff from touching him, held a pitchfork in front of the sheriff and in this way succeeded in retreating to his house without the sheriff touching him or reaching him. It was held that under these facts there had been no actual arrest. In that case there was not only no submission by the defendant to arrest but an armed resistance to it which enabled him to escape. None of the cases cited by the People is an authority in support of the instant contention. We are satisfied that under the facts of the instant case and the law, the arrest of defendant had been made before the officers observed the gun upon his person. The State’s evidence shows that police officers, armed with revolvers, approached defendant, announced that they were officers, and commanded, in effect, that defendant surrender, whereupon he immediately put up his hands, thereby plainly indicating that he complied with their command, and submitted to arrest. In view of the evidence, the argument of the People that we should hold that prior to the time the officers observed the gun they had merely “stopped the defendant for questioning,” is. an idle one. While a mere interrogation of a citizen by a police officer as to a criminal offense or a suspected criminal offense does not constitute an arrest, the practice of making an “arrest for questioning” was condemned in People v. Scalisi, 324 Ill. 131, 146.

The People contend that if we decide that there was an illegal arrest in the first instance we should also hold that the officers made a second arrest when they observed a concealed weapon upon defendant’s person, and it is argued that if we so hold, the illegal arrest may be ignored and the seizure justified upon the ground that the. second arrest was legal. It is a sufficient answer to this contention to say that the facts would not warrant us in so holding. The People cite McAdams v. State, 30 Okla. Crim. 207, 235 Pac. 241, in support of the instant contention. In that case, police officers, without a warrant, on suspicion merely, were attempting to arrest a person suspected of the commission of a misdemeanor (transporting whiskey). The officers, in a Ford automobile, pursued the defendant and two companions, who were in a Cadillac automobile, for the purpose of halting the car to search it for whiskey. The defendant and his companions refused to halt, although commanded to do so, and although the officers shot into their car. During the pursuit several packages were thrown from the Cadillac car to the roadside and after that car stopped and the defendant and his companions were placed under arrest, the car was searched and two empty whiskey bottles were found in one of its side pockets. An officer found one of the packages that had been thrown from the car and it was found to contain whiskey. Later, after the defendant and his companions were lodged in jail, and a further search along the roadside was made by the officers, they found two more half-gallon jars of whiskey. The Supreme Court of Oklahoma held that while the attempt to arrest the defendants on suspicion without a warrant was illegal, and should be severely condemned, that, nevertheless, after the officers saw packages of liquor thrown from the car the arrest of the defendant was then consummated legally, as the offense of transporting whiskey had been actually committed in the presence of the officers. The court said that “after the initial illegal attempt to arrest proved futile, and the officers, as found by the jury, saw the defendant in the act of violating the law, they then acquired the right to make the arrest without a warrant.” The Oklahoma court cites no authorities in support of its judgment, but whether the decision of the Oklahoma court is entirely in accord with the law of this State we need not decide, as the facts surrounding the McAdams case are entirely different from those here presented.

The People contend that the arrest of defendant might be justified upon the ground that the officers, in making the arrest, did so to prevent the commission of a threatened felony. As there is no evidence in the record to warrant the contention that a felony had been committed or attempted, the instant contention is without the slightest merit. Between the date of the arrest and the time of the trial over a year had elapsed. Three or four officers were present at the time of the alleged outcry, “Hold up,” and within a few minutes a number of other officers were upon the scene, but, nevertheless, not a single witness was produced to show that a holdup had been committed or attempted. Indeed, Officer O’Neal testified that he did not even then know who it was that “hollered, ‘Hold up.’ ”

The People further contend that in order to maintain a motion to suppress the evidence it was essential that defendant show that he was in possession of the property and that it was illegally taken from him, but that as he testified that the police officers did not take the gun from his person the motion to suppress was inconsistent with defendant’s own testimony and therefore the trial court was justified in overruling the said motion. A like contention was raised in the case of People v. Scalisi, supra, p. 145, but it was there held that “a defendant is entitled to the benefit of any defense shown by the entire evidence, even if the facts on which such defense is based are inconsistent with the defendant’s own testimony.” This is but a statement of the general law bearing upon the subject.

The People finally contend that “the defendant by his own action exposéd the concealed weapon and it was not necessary to, and the officers did not, make a search of his person,” and “there being no search, there could be no illegal search.”. Our bill of rights (section 6) forbids unreasonable searches and seizures. A search is one thing: a seizure is another.

Defendant strenuously contends that the court erred in not discharging defendant at the conclusion of the State’s case, since the evidence introduced by the People did not make out a case of carrying concealed weapons, and cites People v. Niemoth, 322 Ill. 51, and People v. Moch, 270 Ill. App. 621 (Abst.). While this contention is not without force, we deem it unnecessary to rule upon the same.

The judgment of the municipal court of Chicago is reversed, and as the People may be able to prove, upon a new trial, that a criminal offense had been committed, or attempted, just prior to the arrest in question, the cause is remanded.

Reversed and remanded.

Sullivan, J., concurs.

Gridlby, P. J.,

dissenting: On May 1, 1934, for reasons stated in an opinion then filed, this court ordered that the judgment of the municipal court be affirmed. Subsequently a rehearing was allowed. Under the present record, as I read it, I am unable to agree with the conclusions reached in the present majority opinion of this court, and am of the opinion that the judgment of the municipal court should be affirmed.