author: Mr. Presiding Justice Niehaus

text:
    Mary E. Huffer, Appellee, v. First National Bank of Shelbyville, Appellant.
    Gen. No. 7,925.
    1. Agency — when general agency of son for mother not shown. The fact that a bank depositor, on removing to another city, had left to her son the matter of taking care of the deposit account and of looking after a loan she had made on a note secured by a mortgage, and in connection therewith had authorized the bank to pay checks signed by the son for her, did not constitute such son her general agent.
    2. Banking — limitations upon authority of bank authorised to honor checks signed for depositor by her son. Where a depositor, in connection with leaving with her son the matter of taking care of her deposit account and looking after a loan she had made upon a note secured by a mortgage, authorized the bank to pay checks signed for her by the son, the bank did not, from such facts alone, have authority to honor checks upon her account drawn for the personal use and benefit of the son, nor for the joint use and purposes of the son and the bank.
    3. Banking — authorisation of bank to honor checks signed for depositor by her agent as conferring authority to pay over, without check, portions of funds accepted as deposits on her account. Authority given by a depositor to the bank to pay checks signed for the depositor by her son did not authorize the bank to turn over to such son, without check, funds accepted by the bank for deposit to the credit of the depositor, nor to use such funds for the purpose of liquidating an obligation of the son to the bank.
    4. Banking — Authorisation of agent of depositor to sign checks for her as conferring authority to indorse such instruments. The fact that a depositor had authorized the bank to honor checks signed for her by her son conferred no authority upon the son to indorse checks or other negotiable instruments payable to the depositor.
    5. Banking — burden of proof as to authority of agent of depositor to indorse checks, etc., payable to her, in action against bank upon deposit. In an action by a depositor against a bank to recover the balance alleged due on the deposit account, the burden rested upon the bank to establish the authority of the depositor’s son to indorse the depositor’s name upon checks payable to her and accepted by it for deposit to the credit of her account, a part of the proceeds of which it had paid over to the son without check.
    6. Banking — Sufficiency, of evidence, in depositor’s action against bank, to show authority of bank to apply deposit to liquidate indebtedness of depositor’s agent. Evidence, in an action by a depositor to recover the balance alleged due to her on the deposit account, held insufficient to show that the depositor had authorized the bank to apply any portion of the deposited funds, or of funds accepted by it for deposit to her account, to liquidate an indebtedness of the depositor’s son to the bank.
    7. Agency — right of principal to recover back money paid to " agent unauthorised to receive same, upon his appropriation thereof. Where the money of a principal is paid to an agent who has no authority to collect or to receive the same, and is appropriated by the agent, the principal has a right to recover back the amount so paid.
    8. Agency — notice of limitations of powers of agent. One dealing with an agent is chargeable with notice of the limitations of his agency.
    9. Banking — liability of bank to depositor for funds improperly permitted to be withdrawn or diverted, from account by agent. Where a bank, without the knowledge or authority of its depositor, permitted her son to withdraw from the account parts of such deposit and to divert to his own use such funds and parts of other funds accepted by the bank for deposit to the credit of the depositor’s account, the bank was liable to the depositor for the funds so improperly withdrawn or diverted.
    10. Banking — when instruction, in depositor’s action against bank, not erroneous because including assumption of misappropriation of funds of account. Where the evidence, in a depositor’s action against the bank to recover the balance alleged due upon such account, showed that the depositor’s son, in withdrawing and diverting a part of the funds of such account, did so as a means of using such funds for his own purposes and in connection with his own financial transactions with the bank, and further showed that the bank aided and permitted such transactions when chargeable with notice of the purpose thereof and with the fact that they were beyond the scope of the son’s agency for his mother, an instruction assuming that such transactions amounted to a misappropriation of the depositor’s fund was not erroneous.
    11. Harmless and prejudicial error — instruction correct in law but without bearing on issues of case. The fact that an instruction was improperly given because covering a matter not in issue in the case does not render the giving thereof prejudicial error where the instruction was not erroneous as a statement of the law pertaining to the facts therein stated and could not have misled the jury as to the real issues of the case.
    12. Appeal and error — affirmance of judgment where error in instruction inconsequential. Where the evidence in an action warranted the verdict returned therein, and substantial justice was done by the verdict and judgment, the judgment will not be reversed because of inconsequential errors in the instructions.
    Appeal by defendant from the Circuit Court of Shelby county; the Hon. Harry C. Shuttle, Judge, presiding. Heard in this court at the October term, 1925.
    Affirmed.
    Opinion filed July 1, 1926.
    Rehearing denied October 28, 1926.

      George D. Chafee, J. J. Baker and George B. Rhoads, for appellant.
    Ward & Pugh and J. N. Moore, for appellee.
   Mr. Presiding Justice Niehaus

delivered the opinion of the court.

In this case an appeal is prosecuted hy the First National Bank of Shelbyville, from a judgment rendered against the bank in the circuit court of Shelby county, in favor of the appellee, Mary E. Buffer, for the sum of $3,208.83. Mary E. Buffer was a depositor in the appellant bank, and on January 7, 1919, had a balance to her credit, in the account, of $33.40. Ber claim in this case is for the balance referred to, and additional deposits and credits, amounting in all to the sum of $6,693.81. It is admitted that her account should be charged with the sum of $872.50, which is the sum total of checks drawn by her on the account, which leaves the sum of $5,821.31 as the subject of the controversy in this suit. There is little dispute about the main facts, about the figures, or about the summaries and calculations relating to the items embraced in the deposit account. The proofs show that the appellee in January, 1913, when she was living at Shelby-ville, came into possession of $4,700, realized from the sale of a farm of her deceased husband, which was located near Shelbyville, and this money was loaned by her to Morris T. Robison, upon a note secured by mortgage on January 18, 1913. It was ai three-year loan, but afterwards extended to five years, and it finally matured January 18, 1921. Shortly after the loan; had been made, appellee removed from Shelby-ville to Danville, and thereafter made her home at the latter place with her daughter, Mrs. B. B. Martin. Upon her removal to Danville, she left the matter of looking after the Robison loan and taking care of her deposit account in the appellant bank to her son, Lewis J. Buffer, who was a resident of Shelbyville. And the evidence shows that in connection with her deposit account she signed a signatured card for the appellant bank, by which she authorized the bank to pay checks signed for her by her son Lewis. It also appears from the evidence that her son Lewis was also a depositor in the appellant bank, and had various and continued financial transactions of his own with the bank during the entire period in which he acted for his mother. The evidence also discloses that during the period of the agency referred to, the appellee at various times became indebted to the bank on notes which she signed at the instance of her son Lewis for various amounts, and that the notes so given were renewed and sometimes increased; and that in this way, at one time, she was indebted to the bank in the sum of $701.90. It also appears that her son Lewis during the period of his agency, in connection with his own financial transactions, also became indebted to the bank in various amounts, and at different times, and that this indebtedness on April 25, 1922, amounted to the sum of $2,276.83, and was represented in the amount of the principal of promissory notes held by the bank, and accrued interest. The evidence also shows that the appellant bank, under the authority given it on the signature card, to pay checks signed for her by her son Lewis, had honored a large number of checks drawn by Lewis, by signing his mother’s name, which were payable to himself; and by this means transferred at different times various amounts of the funds standing to the credit of his mother in her account, to his account; and these amounts were made use of for his own purposes in his own business transactions, and to pay his own debts and obligations. The amount withdrawn by Lewis from his mother’s account in this manner was $1,642.25. The evidence also shows that on several occasions, when Lewis brought in checks belonging to his mother, and payable to her order, which represented payments of interest or part payment of the principal of the Eobison loan, the appellant bank accepted these checks for deposit for her account on Lewis’ indorsement of his mother’s name, and made out a deposit slip showing the deposit and amount thereof, and thereupon allowed Lewis to withdraw a part of such deposits in currency or cash, which cash or currency was turned over to Lewis without any checks drawn therefor; and that then the mother’s deposit account was credited only with the difference between the amount of the deposit according to the deposit slip and the amount of currency or cash turned over to Lewis. Thus on January 19, 1920, Lewis brought to the bank a check for $282 payable to the mother for deposit, and indorsed the mother’s name thereon; and the check was received by the appellant ' bank for deposit in the way referred to, and then $65 of the deposit was returned to Lewis in currency, and the balance of $217 was credited to the mother’s account. In the same way Lewis brought to the appellant bank for deposit at another time a check for $1,282, payable to the order of the mother, which was for part payment of principal, and interest due on the Eobison note. This check was accepted in the same way by the bank for deposit to the credit, of the mother’s account, with Lewis’ indorsement of the mother’s name thereon ; and then the appellant bank allowed Lewis to withdraw from this deposit before it was entered in the account, and without any check being drawn therefor, the sum of $417, and the mother’s account was given credit for the balance of $865. On another occasion when the balance of the Eobison loan was paid off, April 25, 1922, a check was given in payment, amounting to $4,027.32 which was made payable to the order of the appellant bank, and was received by the bank. After the appellant bank had received the same on the mother’s account, there was deducted from the amount of the deposit, without any check being drawn therefor, not only the amount of a note which the mother had signed, upon which she was apparently indebted to the bank, and amounting to the sum of $450, but also the amount of Lewis’ indebtedness to the bank, amounting to the sum of $2,276.83; then after deducting the latter amount, which the bank received the benefit of, the balance of $1,300.49 remaining was credited in the mother’s deposit account as the correct amount of her deposit on that day. There is no proof in the record to show that the mother ever at any time gave her son Lewis authority to indorse her name upon any checks payable to her, which he had collected for her. But it is contended by the appellant bank that Lewis had such authority because he must be regarded as her general agent, and that therefore the bank had the right to deal with him as a general agent, and that the indorsements of the mother’s name made by Lewis on the checks mentioned came within the scope of a general agency. We cannot agree with this contention. The appellee was not engaged in any business requiring the services of a general agent, and moreover the evidence clearly shows that the appellant bank was fully cognizant of the purpose and scope of Lewis’ agency and familiar with the matters pertaining thereto. It is true, the mother had authorized the appellant bank to pay checks signed for her by her son Lewis, but this authority had reference to the mother’s business matters which involved her deposit account, and cannot properly be considered as including authority to honor checks drawn for the personal use and benefit of Lewis, or the joint purpose and use of Lewis and the appellant bank. McAllister v. Oberne, Hick & Co., 42 Ill. App. 287; Merchants & Manufacturers Nat. Bank v. Ohio Valley Furniture Co., 57 W. Va. 625, 70 L. R. A. 312; Rochester & C. Turnpike Road Co. v. Paviour, 164 N. Y. 281, 52 L. R. A. 790. Nor would the authority given the appellant bank to pay checks signed for her by Lewis justify the inference that she would consent to have it extended, to be used by the bank or Lewis, to pay over to her son, without a check being drawn therefor, parts of funds accepted by the bank for deposit for her account; nor would it justify the use of the mother’s funds, received by the bank for deposit, for the purpose of paying Lewis’ indebtedness to the appellant bank; nor would it be authority to Lewis to indorse checks, or other commercial paper of the mother. Crahe v. Mercantile Trust & Savings Bank, 295 Ill. 375. “An agent’s acts in making or transferring a negotiable paper (especially if by indorsement) are much restrained. It seems that they can be authorized only by some express and direct authority, or by some express power which necessarily implies these acts.” Parsons on Contracts, vol. 1, p. 62; Jackson Paper Mfg. Co. v. Commercial Nat. Bank, 199 Ill. 156. The appellant bank took the risk on the question of the authority of appellee’s agent to indorse the check and appropriate the proceeds. Gustin-Bacon Mfg. Co. v. First Nat. Bank of Englewood, 306 Ill. 179. It is well settled that “authority to collect debts and give discharges carries no implication of authority to endorse a negotiable note.” 1 Daniel on Neg. last. (4th Ed.), sec. 293; Jackson Paper Mfg. Co. v. Commercial Nat. Bank, 199 Ill. 151. In this case, the burden rested on the appellant bank to prove the authority of the mother’s agent to indorse the checks referred to. Foster v. Graf, 287 Ill. 559; Independent Oil Men’s Ass’n v. Fort Dearborn Nat. Bank, 311 Ill. 278. It is contended, however, by the appellant bank, that inasmuch as the mother in the course of her business transactions with the bank had signed a note for $1,000 for her son Lewis, which was payable to his order, and which he gave, to the bank as collateral security for his indebtedness, and because thereafter the mother had indorsed the Robison note, which her son Lewis thereupon put up as collateral security, for her indebtedness to the bank, as well as for his own in-

debtedness to the bank, that authority could be inferred, from this transaction, to legally justify the use of the funds in the mother’s deposit account, as well as the funds accepted by the appellant bank for deposit in her account, for liquidating the indebtedness of Lewis to the bank. The record does not disclose any evidence from which authority can be inferred that appellee indorsed the Robison note for the purpose of having it used as collateral security for her son’s indebtedness to the bank. The mere fact that she may have indorsed the note would not justify such an inference; nor is there any evidence from which the legal inference can be drawn that she consented to or authorized in any way the use of the proceeds realized from the payment of the Robison note, to pay the indebtedness of her son Lewis, to the appellant bank. “The nature and extent of an implied authority are deemed to be limited to acts of a like nature with those from which it is implied.” 1 Amer. & Eng. Encyc. of Law (2nd Ed.), p. 1002; Jackson Paper Mfg. Co. v. Commercial Nat. Bank, supra. In this case there is no evidence showing the assent on the part of the mother to the transactions between appellant bank and her son Lewis, but all the evidence is to the effect that appellee had no knowledge whatever concerning the matters referred to. It is well settled by the authorities cited that where the money of a principal is paid to an agent, who has no authority to collect or receive the same, and is appropriated by the agent, the principal has the right to recover back the amount paid in that way. And the general rule pertaining to agency is, that a person dealing with an agent is charged with notice of the limitations of his agency. Madison Coal Corporation v. Pittsburgh Coal Co., 222 Ill. App. 237; Randolph Commercial Paper, sec. 388 ; Merchants & Manufacturers Nat. Bank v. Ohio Valley Furniture Co., 57 W. Va. 625, 70 L. R. A. 312; Rochester & C. Turnpike Road Co. v. Paviour, 164 N. Y. 281, 52 L. R. A. 790. In this state of the record, and in view of the authorities cited, we conclude that the appellee had the right to recover from the appellant bank the amount of her funds on deposit or received by the appellant bank for deposit which were diverted from her deposit account by her son Lewis, with the knowledge or acquiescence of the bank. Also to recover the amount of such funds which were used by Lewis and the appellant bank for the purpose of liquidating the indebtedness of Lewis to the bank.

Complaint is made by the appellant bank concerning the giving of several instructions for the appellee. Instruction A is criticised because it assumes that by the transfer of appellee’s funds from her account in the bank to the account of her son, there was a misappropriation of appellee’s funds. The evidence shows that the transfer of the funds was made by appellee’s son as a means of using the funds for his own purposes and ends, and in connection with his own financial transactions with the appellant bank. The act of transferring the funds from appellee’s account to his own account under these circumstances was' in itself a misappropriation of the funds involved, and there is no evidence tending to show that the transfer was made for the purpose of the son’s agency. All the vouchers and book entries by means of which the transfer was effectuated, and the transactions pertaining thereto, were handled by the appellant bank, and the appellant bank under these circumstances is charged with notice and the purpose of these transactions. Rothstein v. Grossberg, 303 Ill. 619. For the reason stated, the assumption in the instruction was not erroneous. Instruction B aims to define what the jury must find from the evidence before they can regard the appellant bank as an innocent holder of the Robison note for value and in due course. Inasmuch as the rights of the appellant bank as an innocent holder for value of the Robison note were not involved a,s an issue in the case, the instruction referred to should not have been given; but the instruction did not direct a verdict, and the matters contained therein could not have misled the jury concerning the real issues in the case. The giving of this instruction is therefore not regarded as reversible error. Bromley v. Goodwin, 95 Ill. 118. It is contended that instruction C is erroneous because the phrase in the instruction “that Lewis Huffer was the agent of the plaintiff for the collection of the interest due her on said note,” omitted a word which would fix more definitely that he was agent only for collection of interest. It is hardly conceivable, however, that the jury would have drawn any conclusion from the instruction, other than that the collection of interest was the subject matter of the agency referred to in the instruction. We are of opinion that the instruction was not erroneous as a statement of the law pertaining to the facts stated in this instruction. The jury were warranted from the evidence in finding in favor of the appellee, and in finding that she was entitled to recover the amount found by the verdict, and are of opinion, therefore, that substantial justice is done by the verdict and judgment. In this state of the record the judgment should not be reversed for inconsequential errors in instructions, or slight errors in the admission or rejection of evidence. Bromley v. Goodwin, supra; Beifeld v. Pease, 101 Ill. App. 539. The judgment is therefore affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Shurtleff

license: Public Domain

text:
    Simon J. Straus, Appellee, v. William T. Bracken and John E. McCarty et al. John E. McCarty, Appellant.
    Gen. No. 7,978.
    1. Appeal and error — when failure to appeal from, decree in foreclosure will not preclude appeal from, subsequent order directing disposition of rents and profits during period for redemption. The owner of the equity of redemption is not precluded to appeal from a judgment directing application of the rents, issues and profits of the premises to a deficiency judgment against the mortgagor by reason of the fact that no appeal was taken from the decree of foreclosure which approved the master’s report containing a finding that a lien was created against such rents, etc., where the decree expressly reserved for later disposition the question as to the disposition of such rents, etc.
    2. Foreclosure of mortgages — right of owner of equity of redemption to rents and profits during period for redemption. The owner of the equity of redemption is entitled to the rents and profits of the premises, until expiration of the time for redemption, unless there is a deficiency in the judgment of the mortgage debt and the mortgagee has and takes steps to enforce á right to subject such rents, etc., to the payment of his indebtedness.
    3. Mortgages — when provisions construed as equivalent to pledge of rents and profits to payment <of mortgage debt. Where a mortgage provides that in case the mortgagors shall violate any of the agreements the indebtedness shall become due and payable at the option of the mortgagee or his assigns, and he or they from that date shall have the right to take possession of the premises and collect the rents and profits thereof and apply the same upon the indebtedness secured until it is fully paid, without prejudice to the right to foreclose, and further provides, upon a decree of foreclosure, for the appointment of a receiver to take charge of the real estate and collect the rents and profits thereof, the effect of such provisions is to pledge the rents, etc., to the payment of the mortgage debt.
    4. Mortgages — effect of invalidity of provision declaring rents and profits during period of redemption to be property of purchaser on foreclosure sale. A provision in a mortgage that during the period of redemption the rents, issues and profits of the premises shall be the property of the purchaser of the property at the sale on foreclosure thereof, while inoperative and void, does not affect the validity of the other provisions of the mortgage.

      5. Foreclosure of mortgages — when mortgagee holding deficiency judgment had superior right to rents and profits of premises during period for redemption. Where premises are sold on foreclosure of a mortgage containing provisions the effect of which is to pledge the rents, issues and profits of the premises to the payment of the mortgage debt, and the mortgagee recovers a deficiency judgment against the mortgagor, such mortgagee has a right to the rents, issues and profits aforesaid superior to that of the owner of the equity of redemption of the premises, during the period of redemption, notwithstanding the deficiency judgment is not binding upon such owner of the equity of redemption, since his rights spring from, and can be no greater than, the rights of the mortgagor.
    Appeal, by defendant from the Circuit Court of Hancock county; the Hon. George C. Hillyer, Judge, presiding. Heard in this court at the April term, 1926.
    Affirmed.
    Opinion filed July 1, 1926.
    Rehearing denied October 28, 1926.
    Hartzell, Cavanagh & Martin, for appellant.
    O ’Harra, O ’Harra & 0 ’Harra, for appellee.
   Mr. Justice Shurtleff

delivered the opinion of the court.

The question is raised in this case as to the right of the mortgagee or the owner of the equity of redemption in lands, not liable personally for the mortgage debt, to the rents, issues and profits from the lands during the redemption period. William T. Bracken and Lillie Bracken, his wife, executed their notes and two mortgages upon the lands in question on March 1, 1918. On August 8, 1919, William T. Bracken, then a widower, conveyed the lands to Judson W. Byers, who assumed and agreed to pay the mortgage debts as a part of the purchase price. William T. Bracken and Judson W. Byers, at the time of foreclosure, were nonresidents of the State of Illinois and could not be made parties to the deficiency judgment. On February 11, 1922, Judson W. Byers and his wife conveyed the lands to Walter Lung and his wife, who assumed and agreed to pay the mortgage debts, by the terms of the deed, as a part of the purchase price. On May 22, 1923, Walter Lung and his wife conveyed the lands to appellant, John E. McCarty, subject to the mortgages, but appellant did not assume the payment of the mortgages and appellant is now the owner of record of the equity of redemption in said lands. There being a default in the payment of said mortgage indebtedness, appellee filed his bill to foreclose on September 12, 1923. Answers were filed by said Walter Lung and Marie Lung, his wife, and by appellant McCarty. There was a decree of foreclosure entered in said cause on October 23, 1923, finding the amount of the indebtedness; that the land was scant security for the amount of the indebtedness and decreeing foreclosure.

Appellant McCarty had leased the lands to Walter Lung, the former owner, on shares and there was corn growing upon the lands at the time of foreclosure. The decree provided for the appointment of a receiver to collect the rents, issues and profits and the disposition of all moneys received by the receiver was reserved by the court for a hearing under the terms of the mortgages on the coming in of the receiver’s report. Certificates were issued and the lands not having been redeemed a sale was had, in accordance with the terms of the decree, on February 14, 1925, which was approved and a deficiency judgment entered against the defendant, said Walter Lung, on the 18th day of March, 1925, for the sum of $1,279.39, the complainant, appellee, having become the purchaser of said lands at the sale. On October 15, 1925, the receiver filed his report in court showing the receipt of $602.80 for one-half of the crop of com growing upon said lands in September and October, 1923, at the time the bill was filed and decree entered, and further sums for rent of the lands during 1924 under a lease he had made with the defendant Lung. The receiver had paid the taxes and insurance, leaving a balance in his hands of $1,212.89, out of which it was stipulated that the receiver should pay certain hills for repairs, amounting to $192.01, and his commissions, $100, leaving a balance of $920.88 in controversy in this case.

It was further stipulated that the defendant Walter Lung, against whom the deficiency judgment was entered, was at the time and had continued to be insolvent. Neither of said mortgages in so many words pledged the rents, issues and profits as security, but each mortgage contained the following provision: “That if the mortgagors shall violate any of the agreements herein contained, or if any representation made by the mortgagors is untrue, then, or in either event, all of the indebtedness herein secured shall thereupon, or at any time thereafter, become due and payable at the option of the mortgagee or his assigns, and this mortgage may be foreclosed accordingly; and the mortgagee or his assigns shall, from the date of any such default, have the right to take possession of said premises and collect the rents and profits thereof and apply the same to the indebtedness hereby secured until the same is fully paid, without prejudice to its or their right to foreclose this mortgage; and the court awarding the decree of foreclosure is authorized and empowered to appoint a receiver to take charge of said real estate, and to receive and collect the rents and profits thereof, and if said real estate be not redeemed, then such rents and profits shall be paid to the holder of the certificate of purchase on the sale made under the decree of foreclosure of this mortgage.”

Appellee moved the court to distribute the fund in the receiver’s hands to apply upon appellee’s deficiency judgment. Appellant, upon the theory that the latter part of said clause in the mortgages providing that the rents and profits shall be paid to “the holder of the certificate of purchase on the sale made under the decree of foreclosure” is inoperative, moved the court to distribute said fund to appellant as the owner of the equity of redemption, entitled to the rents, issues and profits during the period of redemption. The court ordered the fund distributed to appellee and appellant has appealed.

It is insisted by appellee that in the decree, the master’s report, which contained a finding that a lien was created on the rents, issues and profits by the terms of the mortgages was approved, and that there has been no appeal from the decree and for that reason it is too late for appellant to raise the question as to his rights under the decree. The answer to that contention is that the decree specially provided that the receiver should hold the funds acquired by him after the payment of taxes and any ordinary repairs until the further order of the court, and that the disposition of such moneys, under the terms of said mortgages, was reserved for further determination. Appellant contends that the provision in the mortgages does not amount to a pledge or mortgage of the rents, issues and profits of the land, and we shall discuss that question in the opinion. Appellant further contends that when there is no deficiency judgment against the owner of the equity of redemption and the mortgage does not pledge or mortgage the rents, issues and profits for the payment of the indebtedness, the owner of the equity of redemption is entitled to the possession of the lands and rents, issues and profits thereof during the period of redemption. Appellant cites a case, Cram v. Waddell, 167 Ill. App. 44, where upon a sale there was a surplus and not a deficiency, and two parties were claiming to be the .owner of the equity of redemption, and the court held: “That the owner of the equity of redemption is entitled to the rents and profits of the premises, until the expiration of the time of redemption, admits of no doubt. Davis v. Dale, 150 Ill. 239; Stevens v. Hadfield, 178 Ill. 532; Standish v. Musgrove, 223 Ill. 500; Ruprecht v. Muhlke, 225 Ill. 188.”

Of course, that is the general rule unless there is a deficiency in the judgment of the mortgage debt and the mortgagee is entitled to and takes steps to subject the rents to the payment of his indebtedness.

In Standish v. Musgrove, supra, and also in Schaeppi v. Bartholomae, 217 Ill. 105, the court had before it the disposition of the funds in a receiver’s hands from rents, issues and profits where the contention was between the purchaser at the foreclosure sale and the owner of the equity of redemption, and in both cases the court held that the provisions of the mortgage that the rents, issues and profits during the period of redemption should be turned over to the holder of the certificate, or purchaser, at the sale was inoperative and void. In Schaeppi v. Bartholomae, supra, it appears affirmatively that the holder of the deficiency judgment waived his claim, and in Standish v. Musgrove, supra, it appears that! the holder of the deficiency judgment made no claim. Haigh v. Carroll, 209 Ill. 580, is cited, but in that case on the foreclosure sale the lands brought the full amount of the mortgage debt, interest and costs, and it throws no light upon the question before us. We fail to find any case where the Supreme Court has had before it the issues and equities between the holder of the mortgage indebtedness merged in a deficiency judgment on the one hand and the owner of the equity of redemption upon the other. But from the discussions in Schaeppi v. Bartholomae, supra, and Standish v. Musgrove, supra, there have arisen a variety of opinions in the Appellate Courts. In Baldwin v. Tuttle, 215 Ill. App. 57, upon a state of facts very similar to the case at bar, the court held that the holder of the deficiency judgment was not entitled to the rents and profits, and that similar language used in the mortgage, except as to payment to the purchaser, did not effect a pledge or mortgage of the rents and profits. In Wright v. Matters, 220 Ill. App. 131, on the authority of First Nat. Bank of Joliet v. Illinois Steel Co., 174 Ill. 140; Prussing v. Lancaster, 234 Ill. 462; Townsend v. Wilson, 155 Ill. App. 303, and Ellison v. Miller, 137 Ill. App. 208, held that the deficiency decree, as against any claims of the owner of the equity of redemption, should be satisfied out of the funds in the receiver’s hands. In Wright v. Matters, supra, the owner of the equity of redemption did not acquire his conveyance until after the institution of the foreclosure suit. The same case had been before the same court in a former hearing (204 Ill. App. 398) in which the court had held: “That in a mortgage providing that a receiver might be appointed upon bill to foreclose to collect rents, issues and profits and pay the proceeds thereof to the person entitled toi a deed under the certificate of sale, that the fact that such person has no right to such money during the redemption period would affect the disposition of only such surplus proceeds and would not impair the validity of such provision as to a receiver.”

It was also held that the provisions of the mortgage effected a pledge or mortgage of the rents, issues and profits. It was further held that the provision to pay the proceeds to the person entitled to a deed was inoperative and void in line with the cases cited.

In Cowell v. Gnatzig, 178 Ill. App. 486, it is held that it is proper to apply for a receiver to satisfy a deficiency judgment and that it may be done in equity, although the trust deed is silent upon the subject of the application of the rents to the payment of any deficiency that may remain after the sale of the land covered by the trust deed. Citing Haas v. Chicago Building Society, 89 Ill. 498.

In Bothman v. Lindstrom, 221 Ill. App. 262, the rights of the owner of the equity of redemption were denied, inasmuch as he had not acquired title until eight months after the decree of foreclosure. In Stevens v. Pearson, 202 Ill. App. 22, the court had practically the same question before it that is raised in the case at bar, and held the owner of the equity of redemption was entitled to the fund. In Bishop v. Prudential Ins. Co. of America, 217 Ill. App. 112, the question arose in a case between the purchaser of the certificate and a second encumbrance and various phases of the question have been discussed in: Longley v. Wilk, 171 Ill. App. 419; Nixon v. Unity Co., 176 Ill. App. 12; Owsley v. Neeves, 179 Ill. App. 61; Continental & Commercial Trust & Savings Bank v. Leven, 213 Ill. App, 310; Bolton v. Starr, 223 Ill. App. 42, and Walenti v. Krolik, 234 Ill. App. 407. From these and from the cases cited it is apparent that there is not unanimity of opinion, but in the cases cited much stress is laid upon the question as to whether the mortgage or trust deed pledged or mortgaged the rents, issues and profits, and in all cases it is conceded that where the rents, issues and profits are pledged or conveyed, the mortgagee’s rights are superior to those of the owner of the equity of redemption. In Ball v. Marske, 202 Ill. 33, the trust deed provided that in default of payment it should be lawful for the trustee to enter into and take possession of the premises and should collect and receive all rents, issues and profits thereof. The bill alleged that the real estate was scant security. There was a deficiency and the court held that the trust deed pledged the rents, issues and profits as security for the payment of the amount due. It was further held that the appointment of a receiver was proper, without regard to the solvency of the mortgagor.

In Bagley v. Illinois Trust & Savings Bank, 199 Ill. 77, the trust deed provided that the makers waived all right to retain possession of said premises after any default in payment or a breach of any of the covenants or agreements contained in the deed, and it was provided that in case of a default in payment of the indebtedness or any part thereof, at the option of the legal holders thereof, said indebtedness should become immediately due and payable, “and on application of the legal holder of said promissory notes, or either of them, it shall be lawful for the said grantee or his successor in trust to enter into and upon and take possession of the premises hereby granted, or any part thereof, and such legal holder, in his own name or otherwise, may file a bill in any court having jurisdiction thereof, against the said party of the first part, their heirs, executors, administrators and assigns, to obtain a decree for the sale of the whole or any part of said premises for the purposes herein specified, and the court may then appoint a receiver to collect the rents during the pendency of the suit. ’ ’

The court held that the effect of the deed was to pledge the rents for the payment of the debt as fully as the property itself, and to make the pledge effectual, the appointment of a receiver to collect them was stipulated for. The court held that such a provision in the mortgage created a valid lien on the rents which equity would enforce without regard to the question of insolvency of the moitgagors. (Citing First Nat. Bank of Joliet v. Illinois Steel Co., supra; American Bridge Co. v. Heidlebach, 94 U. S. 798; Freedman’s Saving & Trust Co. v. Shepherd, 127 U. S. 494; 1 Jones on Mortgages [5th Ed.], sec. 771.)

The mortgages, in the case at bar provide that in case the mortgagors shall violate any of the agreements, the indebtedness shall become due and payable, at the option of the mortgagee or his assigns and he or they from that date shall have the right to take possession of the premises and collect the rents and profits thereof and apply the same upon the indebtedness secured until the same is fully paid, without prejudice to the right to foreclose. It further provides, upon a decree of foreclosure, for the appointment of a receiver to take charge of said real estate and to collect the rents, issues and profits thereof. There can be no question but that the above provisions constitute a pledge and mortgage of the rents, issues and profits, under the authority of the cases cited.

Neither can there be any question as to the construction of the last clause, providing that the rents and profits shall be paid to the holder of the certificate. It is inoperative and void, as held in the cases cited, but in equity it does not vitiate or render inoperative the valid clauses in the mortgage. Wright v. Matters, supra.

The contention that in any case where the lands are scant security and the mortgage debtors insolvent the mortgagee may not pursue the rents, issues and profits during the period of redemption is not justified by the course of decisions in this State. A strict foreclosure is recognized in such a case. It is contrary to the construction of mortgages as given by the courts through the entire history of the State.

At common law the mortgagee was held to be the owner of the fee and could bring ejectment against the mortgagor, or his assignee, before or after condition broken. In Barrett v. Hinckley, 124 Ill. 42, the court stated the doctrine:

“In Carroll v. Ballance, 26 Ill. 9, which was ejectment by the mortgagee against the assignee of the mortgagor, to recover the mortgaged premises, this court thus states the English rule on the subject: ‘In England, and in many of the American States, it is understood that the ordinary mortgage deed conveys the fee in the land to the mortgagee, and under it he may oust the mortgagor immediately on the execution and delivery of the mortgage, without waiting for the period fixed for the performance of the condition, — citing Coot on Mortgages 339; Blaney v. Bearce, 2 Greenlf. [Me.] 132; Brown v. Cram, 1 N. H. 169; Hobart v. Sanborn, 13 N. H. 226; Northampton Paper Mills v. Ames, 8 Metc. [Mass.] 1. And this right is fully recognized by courts of equity, although liable to be defeated at any moment, in those courts, by the payment of the debt. ’ Again, in Nelson v. Pinegar, 30 Ill. 481, which was a bill by a mortgagee to restrain waste, it is said: ‘ The complainant, as mortgagee of the land, was the owner in fee, as against the mortgagor and all claiming under him. He had the jus in re as well as ad rem, and being so, is entitled to all the rights and remedies which the law gives to such an owner.’ So, in Oldham v. Pfleger, 84 Ill. 102, which was ejectment by the heirs of the mortgagor against the grantee of the mortgagor, this court, in holding the action could not be maintained, said: ‘Under the rulings of this court, the mortgagee is held, as in England, in law, the owner of the fee, having the jus in, re as well as the jus ad rem.’ In Finlon v. Clark, 118 Ill. 32, the same doctrine is announced, and the cases above cited are referred to with approval. Taylor v. Adams, 115 Ill. 574.”

In Lane v. King, 8 Wend. 584 (11 N. Y. Com. Law Rep.), the law is aptly stated: “In Keech v. Hall, Doug. 21, already referred to, the mortgagee brought an action of ejectment against a tenant who claimed under a lease from the mortgagor, given after the mortgage, without the privity of the mortgagee. Lord Mansfield, in delivering the opinion of the court, said: ‘On full consideration, we are all clearly of opinion that there is no inference of fraud or concert against the mortgagee to prevent him from considering the lessee of the mortgagor as a wrongdoer. ’ The question turns upon the agreement between the mortgagor and mortgagee; when the mortgagor is left in possession, the true inference to be drawn is an agreement that he shall possess the premises at will in the strictest sense, and therefore no notice is ever given to quit, and he is not even entitled to reap the crop as other tenants at will are, because all are liable to the debt, on payment of which the mortgagee’s title ceases. The mortgagor has no power, express or implied, to let leases not subject to every circumstance of the mortgage; the tenant stands exactly in the situation of the mortgagor.”

The statutory provision permitting a redemption from the mortgage sale, and the tendency of court decisions in this and other states, has been to limit somewhat the rule of the common law, and it was held in Kransz v. Uedelhofen, 193 Ill. 485: “The doctrine is still maintained, that the mortgagee can bring ejectment against the mortgagor, but “the tendency of the later decisions has been to hold that this right has been so far limited, as to confine the bringing of the action to cases where the condition of the mortgage has been broken, or where there has been failure to make payment of principal or interest according to the terms of the mortgage. The more reasonable rule is that the title exists for the benefit of the holder of the mortgage indebtedness, and as a means of coercing payment of that indebtedness. (Barrett v. Hinckley, supra.) The general doctrine on the subject is thus stated in Esker v. Heffernan, 159 Ill. 38: ‘Our present statutory form of mortgage, containing, as it does, the word “warrant,” and carrying with it all covenants of title, does not materially differ from the common law form of mortgage, and it follows, therefore, that the mortgagee may maintain an action of ejectment, after condition broken, against the mortgagor or any other person in possession of the mortgaged premises. ’ The rule that the mortgagee can only bring ejectment against the mortgagor after condition broken1 seems to be sustained by the following authorities in this State: Vansant v. Allmon, 23 Ill. 30; Kilgour v. Gockley, 83 Ill. 109; Oldham v. Pfleger, 84 Ill. 102; Mester v. Hauser, 94 Ill. 433; Anderson v. Strauss, 98 Ill. 485; Taylor v. Adams, 115 Ill. 570; Davis v. Dale, 150 Ill. 239; Esker v. Heffernan, supra.The same rule is laid down in Esker v. Heffernan, 159 Ill. 38; Lightcap v. Bradley, 186 Ill. 520, and Ladd v. Ladd, 252 Ill. 48. In the last case cited it is held that the burden of proof •is upon the mortgagor to show that there is no breach of condition. (Citing Kales on Future Interests, sec. 15.) It was held in our earlier cases that, upon mortgage foreclosure, even where the mortgage does not, by express words, give a lien upon the income derived from the property, the court may appoint a receiver to take charge of it and collect the rents, issues and profits arising therefrom, but such action will not be taken, however, unless it be made to appear the mortgaged premises are an insuEcient security for the debt and the person liable personally for the debt is insolvent. (Haas v. Chicago Building Society, 89 Ill. 502.)

In Anderson v. Strauss, 98 Ill. 490, the court held that, “the clause in the deed of trust permitting the grantor to enjoy the rents, profits and issues until default, was merely declaratory. Such was the legal effect of the deed, independent of the clause. As soon as default occurred, the permission ended.” In this case counsel had cited Lane v. King, supra, which the court apparently followed. The mortgage, as provided by statute, and the trust deed are treated as identical, qualified conveyances. (Lightcap v. Bradley, supra, p. 518; Ryan v. Illinois Trust & Savings Bank, 100 Ill. App. 252.)

G-rowing out of these rights it has been held that courts of chancery may enforce them through a receiver for the benefit of the mortgagee. (Haas v. Chicago Building Society, supra; First Nat. Bank of Joliet v. Illinois Steel Co., supra; Cross v. Will County Nat. Bank, 177 Ill. 39; Prussing v. Lancaster, 234 Ill. 467.)

Appellant, the owner of the equity of redemption, who claims through and under the mortgagors, stands in the place of his grantor, Lung, and is charged with notice of the mortgages and their legal effect and can have no greater rights. (Medley v. Elliott, 62 Ill. 534; Alsup v. Stewart, 194 Ill. 598; Niccolls v. Peninsular Stove Co., 48 Ill. App. 321; Townsend v. Wilson, 155 Ill. App. 303; Owsley v. Neeves, 179 Ill. 64; Howard v. Burns, 201 Ill. App. 582; Bolton v. Starr, 223 Ill. App. 44.)

It follows that the judgment of the circuit court of Hancock county should be and is affirmed.

Affirmed.


text:
    S. T. Orr, Appellee, v. Farmers Automobile Insurance Association, Pekin, Illinois, Appellant.
    Gen. No. 8,000.

      Insurance — impact of automobile wheels with shoulder of concrete highway as collision within terms of policy. Where an automobile steering wheel was broken as the result of the impact of the front wheels against the shoulder of a concrete highway while the driver was turning back upon the highway after inadvertently driving off the edge while meeting another car, such damage was one covered by a policy insuring against “actual loss or damage * * * caused by collision with any object, movable or immovable.”
    Appeal by defendant from the Circuit Court of Tazewell county; the Hon. Frank Lindley, Judge, presiding. Heard in this court at the April term, 1926.
    Affirmed.
    Opinion filed July 1, 1926.
    Rehearing denied October 28, 1926.
    R. L. Russell, Ralph Dempsey and P. A. D’Arcy, for appellant.
    J. M. Powers, for appellee.
   Mr. Justice Shurtleff

delivered the opinion of the court.

Appellee was a member of the Farmers Automobile Insurance Association of Pekin and on August 11, 1923, purchased an automobile and two days thereafter obtained a policy of insurance from appellant against actual loss or damage, including operating equipment, but excluding damages to tires caused by collision with any object, movable or immovable, providing the operator of said car at the time of the accident was not intoxicated and was not operating said car in a negligent manner and also providing said accident was not caused by the wilful act of the owner or done with his knowledge or consent.

On February 19, 1924, appellee was traveling north on the concrete highway south of Henry, Illinois. The territory was deeply covered with snow, except the pavement, where the most of it had been scraped off to the sides where it was piled. Because of the snow the edge of the pavement was not visible and the pavement and dirt- embankment seemed level. The collision and the subsequent examination showed that the edge of the concrete pavement was four or five inches higher than the general level of the dirt embankment to the east. It was snowing at the time. On meeting a car, which was approaching from the north, appellee turned to the right, and the right wheels of his car went off the pavement with a jar. The car was equipped with steel disc wheels. When he steered back upon the payement, the right front wheel collided with the shoulder of the concrete road, hitting it so hard that it. broke the steering gear of the new car. The momentum carried the car back on the concrete, but it was uncontrollable. The front wheels were twisted at an angle of about forty-five degrees to: the right — as far as they could turn. Because of the collision appellee had no control over the ear. The car slid forward about fifty feet, and when the momentum was reduced enough for the front wheels to take a purchase on the highway they threw the car into the ditch, upsetting it. The damages sued for, it was claimed, were caused directly and proximately by the- collision with the five-inch concrete shoulder at the side of the traveled roadway. The ear was in good condition prior to the accident and appellee was not intoxicated. The jury has passed upon all questions of fact in the case and the only question remaining is, whether the accident was caused by a collision as contemplated by the terms of said policy. There was á verdict and judgment for appellee and appellant has appealed.

The general rule is that insurance contracts should be construed most strongly against the insurer. Forest City Ins. Co. v. Hardesty, 182 Ill. 39; Terwilliger v. National Masonic Acc. Ass’n, 197 Ill. 9. There have been rulings in the Appellate Courts of this State applied to the particular facts of each case upon this subject, but we do not find that the Supreme Court has passed upon the question. In Lepman v. Employers Liability Assur. Corp., Ltd., of London, 170 Ill. App. 379, it was held that the meaning of the word “collision” was not confined to the meeting of two or more moving bodies. It was further held in that case that the words “collision with” as used in the policy should be construed as striking against, citing South Chicago City Ry. Co. v. Kinnare, 216 Ill. 451. In the Lepman case the automobile was injured by collision with a “brick, stone or other solid substance,” and it was held that the insured could recover under a similar policy.

In Bromberg v. Fort Dearborn Casualty Underwriters, 231 Ill. App. 323, it appears that the driver of plaintiff’s automobile in turning around on a slippery pavement backed the hind wheels over the edge of the road upon an embankment and down an incline against a water main. It was held plaintiff could recover.

In Garford Motor Truck Co. v. Miller’s Nat. Ins. Co., 230 Ill. App. 622, a truck had been driven over a bridge and just beyond the bridge there was “a hole in the road” where the trucks had worn down the pavement. The hole was about ten inches deep and about eighteen inches wide. The bottom surface of the hole was a “conglomeration of stone, brick and dirt,” and plaintiff’s truck was injured. It was held that it could not be reasonably said that in going into the hole described by the witnesses the violent jerk of the wheels as the truck reached the far side of the hole, causing the steering wheel to get out of control of the driver, the truck was “in accidental collision with an object.” The same court held, however, in Schussler v. Fort Dearborn Casualty Underwriters, 230 Ill. App. 581, where the automobile skidded while going down hill and struck a ridge of gravel, sand and clay about twelve inches high alongside the roadway but not in the beaten wheel path, thereby causing a wheel to collapse and overturn the car, that plaintiff could recover.

In Great American Mut. Indemnity Co. v. Jones, 111 Ohio St. 84, 144 N. E. 596, where many of the cases from other states were collected, it was held that plaintiff could recover where the accident occurred while plaintiff was driving his automobile on a brick road and just after crossing a bridge the road curved sharply, which curve the driver could not see because of darkness and had no knowledge thereof, and in attempting to make the curve the automobile turned over. It was held that the injury resulted from an accidental collision with another object. In Fireman’s Ins. Co. v. Savery, — Ind. App. —, 143 N. E. 612, the automobile involved, while being driven at a reasonable rate of speed, skidded and collided and came in contact with the bottom of a ditch, “thereby accidentally colliding with the ground at said bottom” in which injury was caused. It was held that plaintiff could recover. In the last two cases practically all of the cases in the books are collected and discussed and it is held from the meaning of the words “collision” and “object” under the rules of construction and where the occurrence is not excluded by particular exceptions, that in' all cases of an accidental collision with any object where injury is caused plaintiff may recover.

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

Affirmed.


text:
    Mackinaw Drainage District, Appellant, v. Joseph Martin et al., Appellees.
    Gen. No. 7,861.

      Courts — jurisdiction of circuit court of appeal from order of county court in proceedings under the Levee Act. Under Cahill’s St. ch. 37, Jf 151, the circuit court is without jurisdiction to entertain an appeal from an order of the county court sustaining legal objections to a petition under Cahill’s St. ch. 42, ff 56, to annex outside territory to a drainage district.
    Appeal by plaintiff from the Circuit Court of McLean county; the Hon. Edward Barry, Judge, presiding. Heard in this court at the April term, 1925.
    Affirmed.
    Opinion filed July 13, 1926.
    A M. Hester and W. W. Whitmore, for appellant; Stella E. Whitmore, of counsel.
    Charles M. Peirce, Kennedy & Kennedy, Miles K. Young and Hall, Martin, Hoose & De Pew, for appellees ; Thomas Kennedy, of counsel.
   Mr. Justice Shurtleff

delivered the opinion of the court.

This is an appeal from a judgment of the circuit court of McLean county dismissing for want of jurisdiction an appeal to that court taken by appellant drainage district from an, order of the county court sustaining legal objections to appellant’s petition under section 58 of the Levee Act [Cahill’s St. ch. 42, [¶] 56] to annex outside territory to its district.

The only question presented by this record is the construction of section 3 of the Act of 1909 [Cahill’s St. ch. 37,1Í1Í149-153], entitled “An Act to give circuit courts of this State, and the superior courts of Cook county, in term time, and judges thereof in vacation, concurrent jurisdiction with the county courts, in all matters pertaining to the organization of farm drainage districts, and farm drainage and levee districts, and the operation thereof, and to [repeal] all Acts in conflict herewith.” Section 3 [Cahill’s St. ch. 37, [¶] 151] provides: “Appeals may be taken from the final orders, judgments and decrees from either of the county or circuit courts to the Supreme Court.”

Appellant does not question in any manner the constitutionality of the Concurrent Jurisdiction Act, or any part thereof, but does challenge the interpretation given to section 3 of the Act, by the court below, in construing said section as applying to appeals from final judgments arising under the Levee Act and particularly under section 58 of the Act, providing for the annexation of outside territory, and in construing said section as applying to appeals other than those provided for in section 16 [Cahill’s St. ch. 42, [¶] 17], relating to the organization of districts, and section 17b [Cahill’s St. ch. 42, IT 20], relating to the assessment of benefits and damages by a jury.

In 1907 the legislature first passed the act providing for the concurrent jurisdiction of the circuit courts with the county courts in all matters pertaining to the organization of farm drainage districts and farm drainage and levee districts and the operation thereof (Session Laws 1907, p. 220), but in said act there was no provision made as to appeals. Originally, the only provision for an appeal in the Levee Act was contained in section 25, providing that the assessment roll, when corrected upon objections or otherwise, and confirmed and spread upon the records, should be subject to appeal, and that appeals and writs of error should be allowed therefrom, as in cases of appeal from or writs of error to the county courts in proceedings for the sale of lands for taxes or special assessments. In 1907, section 25 of the Levee Act was repealed and under section 16 of the Act, as revised in 1907, it was provided that the organization of a drainage district should not be attacked in any collateral proceeding or any assessment for benefits or damages except by a quo warranto proceeding.

In 1909 the legislature revised the Levee Drainage Act and by section 16 of the Act provided that appeals might be taken to the Supreme Court from the judgment organizing the district, and by section 17b it was provided that appeals might be prosecuted to the Supreme Court from judgments entered upon the verdict of a jury, fixing and determining the assessments of benefits and damages, as in cases of appeals or writs of error to county courts in proceedings for the sale of lands for taxes or special assessments. This revision of the law contained an emergency clause and was approved and went into effect on May 29, 1909. At the same session the legislature rewrote the Concurrent Jurisdiction Act and included the superior court of Cook county with the circuit court and included section 3 providing:

“Appeals may be taken from the final orders, judgments and decrees from either of the county or circuit courts to the Supreme Court.”

This act contained an emergency clause and was passed, approved and went into effect June 5, 1909. While the Levee Drainage Act was silent upon the subject of appeals other than the provisions that have been set out, appeals have been recognized under the general statute allowing appeals from final orders of the county court to the circuit court (Rev. Stat. ch. 37, sec. 122, Cahill’s St. ch. 37, 321). Allman v. Lums den, 159 Ill. 219, affirming the same case 48 Ill. App. 17; Streuter v. Willow Creek Drain. Dist., 72 Ill. App. 561; and In re McCalib’s Petition, 105 Ill. App. 28. Appellant contends that the two acts having been passed at the same session of the legislature, sections 16 and 17b of the Revision Act providing for appeals to the Supreme Court, in two separate instances only, and the Concurrent Jurisdiction Act, clothing the circuit and superior courts with the same jurisdiction and power to hear and determine causes under the Drainage Act, as held and exercised by the county courts, that section 3 of the later act must be construed as authorizing appeals and writs of error from judgments in the circuit and superior courts only to the extent as authorized by sections 16 and 17b in the Revision Act from the judgments of the county courts; and appellant insists that that was the intent of the legislature in passing section 3 of the later act and that any other construction of section 3 renders the Concurrent Jurisdiction Act unconstitutional in that it provides for appeals and repeals by implication, provisions of the Levee Act, which are subjects rot within the title of the Act and contravenes section 13 of article 4 of the Constitution.

We cannot agree with appellant in placing this construction upon section 3. The constitutionality of the act in question has been passed upon and all phases of the subject covered in Kline v. Barnes, 250 Ill. 404, and the act, including section 3, declared valid, and with this holding appellant does not contend but raises the question as to the interpretation of the act.

Two acts passed at the same session of the legislature are not to be construed as inconsistent, if it is possible to construe them otherwise, but where it is impossible to give effect to both acts, the latest in point of time will prevail. The Concurrent Jurisdiction Act, including section 3, being the later act, if inconsistent with the Revision Act, will be held to have been intended to repeal the former act. (People v. Illinois Cent. R. Co., 295 Ill. 411.) Under this rule effect should he given to appellant’s interpretation of section 3, if it is possible to do so. Under the Concurrent Jurisdiction Act of 1909 the circuit and county courts have concurrent jurisdiction in the matter of organizing levee drainage districts, and the court first acquiring jurisdiction of particular territory will retain it to the end of the proceedings to the exclusion of the other. (Lingle v. Adams, 259 Ill. 522.) Concurrent jurisdiction is that jurisdiction exercised hy different courts at the same time, over the same subject matter and within the same territory and wherein litigants may, in the first instance, resort to either court indifferently. (Hercules Iron Works v. Elgin, J. & E. Ry. Co., 141 Ill. 498.) Since the county court and circuit court have concurrent jurisdiction in all matters pertaining to drainage districts, it would be improper to take an appeal from one court to the other on drainage matters, as a controversy once decided by a court having jurisdiction cannot he reviewed by another court of concurrent jurisdiction. (Mathias v. Mathias, 104 Ill. App. 344, affirmed in 202 Ill. 125; Parrish v. Ferris, 67 U. S. 606, 17 L. Ed. 317; Knudsen v. Houghton, 160 Ill. App. 440.) In Knudsen v. Houghton, supra, the question was squarely raised in a drainage case on a writ of certiorari from the circuit to the county court, and it was held that writs of certiorari only issued from a superior to an inferior tribunal and that, under the statute, the circuit and county court having concurrent jurisdiction of the subject matter, the circuit court had no jurisdiction to issue the writ. The same rule holds as to appeals. In the very nature of things, an appeal is only allowed from an inferior to a superior tribunal and, under this statute, an appeal from the circuit to the county court would be as fully justified as the rule contended for hy appellant. There can be no appeal from one court to another court of equal, co-ordinate and concurrent jurisdiction of the same subject matter.

While it may he that heretofore the particular question involved has not been precisely presented in the same manner, it is true that in a long line of cases including: Gar Creek Drain. Dist. v. Wagner, 256 Ill. 338; Sangamon & D. Drain. Dist. v. Eminger, 257 Ill. 281; Inlet Swamp Drain. Dist. Com’rs v. Gleim, 272 Ill. 551; Inlet Swamp Drain. Dist. Com’rs v. Cooper, 274 Ill. 77; Sangamon & D. Drain. Dist. Com’rs v. Houston, 284 Ill. 406; Inlet Swamp Drain. Dist. v. Mehlhausen, 291 Ill. 459; and Minnie Creek Drain. Dist. v.0 Nation, 315 Ill. 332, and other cases involving section 58 of the Levee Act, the Supreme Court of this State has recognized and granted appeals and writs of error directly from and to the various county courts of this State, so that we may fairly infer that the interpretation of this statute, contrary to appellant’s contention, has become the settled law of the State.

One of the appellees filed a plea as to the jurisdiction of the circuit court, to which appellant demurred and by the record the demurrer is shown to have been sustained, and this appellee has assigned cross error upon the ruling on the demurrer. The pleas amounted to no more than motion to dismiss the appeal and as the appeal was dismissed we see no occasion to consider this assignment of error. For the reasons stated, the judgment of the circuit court of McLean county is affirmed.

Affirmed.


author: Mr. Presiding Justice Taylor Mr. Justice Thomson,

text:
    Catherine Camerano, Plaintiff in Error, v. Maggie Gimino, Defendant in Error.
    Gen. No. 30,338.
    1. Appeal and error — when, legal sufficiency of pleading res adjudícala upon second appeal. Where the Appellate Court has reversed a judgment upon the ground that the defendant’s demurrer to the plaintiff’s replication should have been sustained, the sufficiency of such replication, as against demurrer, is res adjudícala upon a subsequent appeal of the case.
    2. Assault and battery — sufficiency of evidence to sustain verdict for defendant. Verdict for defendant, in action for damages for assault, held not so manifestly against the weight of the evidence as to warrant interference therewith by the Appellate Court.
    3. Assault and battery — admissibility of evidence of conviction in criminal court, in subsequent civil suit for damages. In an action for damages for assault it was not error to sustain an objection to a question asked of defendant on cross-examination: “What happened before Judge Gridley?” designed to bring out what took place at the trial of the defendant in the criminal case growing out of the same transaction, the question being too broad and too general.
    4. Assault and battery — admissibility of evidence as to prior ill-feeling between parties. In an action for damages for assault it was not error to admit evidence tending to show the existence of bad feeling between the parties prior to the time of the alleged assault.
    5. Assault and battery — instructions examined and held sufficient. Instructions in an action for damages for assault, taken as a whole and read as a series, held to have properly and fairly enlightened the jury as to the law applicable to the case.
    Thomson, J., dissenting.
    Error by plaintiff to the Superior Court of Cook county; the Hon. Hugo Pam, Judge, presiding. Heard in the third division of this court for the first district at the March term, 1926.
    Affirmed,
    Opinion filed October 13, 1926.
    Stough, Carolson & Loy, for plaintiff in error.
    Fruchtl & Busch, for defendant in error.
   Mr. Presiding Justice Taylor

delivered the opinion of the court.

On June 13, 1921, Catherine Camerano began a suit of trespass on the case in the superior court against Maggie Gimino, the defendant. On the same day she filed a declaration charging that on October 23, 1919, without provocation, the defendant shot her with a revolver, struck her with a knife and fists and seriously injured her. On July 2, 1921, the defendant filed a plea of the general issue, and subsequently filed a plea of justification, alleging that the shooting and what was done by her, was done in self-defense. To that plea the plaintiff filed a replication, setting up that the defendant had been tried on an indictment for the same charges the declaration made, and that at a trial upon the indictment in the criminal court the defendant pleaded not guilty, and upon trial was convicted and fined $300 and costs; which amounts she had paid in full. To the replication, the defendant filed a demurrer. The trial judge overruled the demurrer, and directed a verdict in the sum of $1,000 in favor of the plaintiff. On appeal from that judgment this court reversed the case and remanded it with instructions to sustain the defendant’s demurrer to the replication —Cammarano v. Gimino, 234 Ill. App. 556 — and, upon the cause being reinstated in the superior court, the defendant’s demurrer to the replication was sustained. The plaintiff then filed a replication to the special plea, and a new trial was had, and a verdict and judgment rendered finding the defendant not guilty.

For reversal, four contentions are made: First, that sustaining the demurrer to the plaintiff’s replication was error; second, that the verdict is against the manifest weight of the evidence; third, that evidence of the conviction in the criminal court should have been admitted; fourth, that evidence of bad feeling between the parties was inadmissible, and, fifth, that error was committed in the giving and refusing of certain instructions.

First. As to sustaining the demurrer to the plaintiff’s replication, that matter is in this cause res adjudicator. Cammarano v. Gimino, supra.

Second. As to the verdict being against the manifest weight of the evidence. The plaintiff and defendant, two women, mothers of children, neighbors, the plaintiff living at 4900, and the defendant at 4848 Federal Street, Chicago, had a serious altercation, the result of which was that the plaintiff was shot in the right side of the chest, and severely injured by the defendant. The evidence of the details of what actually transpired is irreconcilably in conflict.

The story of the plaintiff is that on October 22,1919, she saw the defendant, three times; that on the first occasion the defendant came over to her house and called her ugly names and said she wanted to kill her; that on the second occasion about 2 or 2:30 p. m., the same day, the defendant came and called to her, the plaintiff, and asked her to come out on the street and said, “Come here, you big-, we want to kill you”; that she, the plaintiff, said she did not want to come down, that she was all right in front of her own door; that she was not going to leave her premises; that the defendant said, “You are not going to leave there because if you do we will kill you. We know the law of the United States, if you leave your place, we can kill you”; that about 5 p. m., when she, the plaintiff, was near the passageway, having gone out to get some fresh air, the defendant came a third time; that as soon as she arrived and while on the sidewalk, she pulled out a gun and shot at her, the plaintiff, three times; that she, the plaintiff, had not said anything and did not have a gun or knife at the time and did not strike her.

The plaintiff’s testimony was substantially corroborated by that of her daughter, Josephine Rich (nee Carnerario) who testified that at the time in question she was 10 years old. The only other witness for the plaintiff who testified to the occurrence was one Phelps, but he knew nothing of what transpired, until his attention was attracted by hearing the first shot.

The story of the defendant is that there had been trouble between her family and that of the plaintiff, and on the day before the shooting, as she, the defendant was going home, the plaintiff called out, “You come here, you dirty whore, and I am going to kill you”; that the plaintiff had a stick in her hands; that on the afternoon of October 22, a little after 5 o ’clock, while passing near the plaintiff’s house, in company with one Mary Caputo, the plaintiff ran after her with a stick, and after saying to her, “You are a whore, you want to live yet,” struck her, and as she, the defendant, turned around, pointed a gun at her, the defendant’s breast, and shot at her; that then she, the defendant, pulled her gun and shot the plaintiff.

The testimony of the defendant is corroborated by that of her niece, Mary Caputo, who was 13 years old at the time of the shooting. She testified that the plaintiff hit the defendant on the head with a stick, and while some one was trying to take the stick away, she took a gun out of her apron pocket and fired two shots; that, then, the defendant shot back, once; that at the time the plaintiff was shooting, she was three or four feet away from the defendant. The testimony of the defendant is also corroborated, as to the shooting, by Mabel Wilcox, who was 12 years old at the time; and also by Jennie G-allo.

It is urged for the plaintiff that from the evidence, no other conclusion can be reached than that the defendant was not justified, in shooting, on the ground of self-defense. As we have already said, the testimony is irreconcilable, and, as the jury saw all the witnesses, they were much better situated than we are to pass upon the all important questions of credibility. We have read and examined the evidence, and although there is much confusion of facts, and many discrepancies, contradictions, and although perjury was undoubtedly committed by some of the witnesses, with the record as it is, we do not feel justified in overriding the verdict.

Third. As to the admission of evidence of what transpired at the trial of the defendant in the criminal court. When the defendant was on the witness stand, and just after she had stated that she testified before Judge Grridley in the criminal case, she was asked, on cross-examination, by counsel for the plaintiff, “What happened before Judge Grridley?” That was objected to, the objection sustained, and exception taken. No reason was given for the objection, and taking the question as it appears, it was objectionable ; it was altogether too general and too broad. Further, taken to the full, it would have permitted even all that was ruled out of the case by sustaining the demurrer to the plaintiff’s replication.

Fourth. As to the inadmissibility of evidence of bad feeling between the parties. We think that was competent. Further, though the point is made in plaintiff’s brief, it is not argued.

Fifth. As to the instructions. The two instructions, numbered one and two, given for the defendant, and which are claimed by the plaintiff to constitute error, are as follows:

1. The court instructs the jury that if they believe from all the evidence the plaintiff assaulted the defendant with a deadly weapon, the defendant had the right, under the law of the land, to repel such an assault by the use of a deadly weapon; and if in repelling such assault, the defendant wounded the plaintiff by shooting her, then such shooting was justifiable and the jury should find the defendant not guilty.

2. The court instructs the jury that if they find from all of the evidence that the plaintiff first struck the defendant with a stick, and shot at her with a revolver, that thereupon the defendant acting as a reasonable and prudent person, drew a revolver for the purpose of defense, and thereby the plaintiff was injured, then the defendant would not be liable for damages so inflicted.

It must be borne in mind that the jury had already been instructed in instructions numbered one and two, given by the plaintiff, that they should “render a verdict for the plaintiff * * *, unless they further believe, from the evidence and nothing else, that such shooting was done by defendant in necessary self-defense of her person, and that such violence was no more than a reasonable man or woman would use in such self-defense,” and that, “the burden of proof is upon the defendant to establish, by a preponderance of the evidence, first, that the shooting of the plaintiff was made in necessary self-defense; second, that in doing the shooting, the defendant used no more force than was necessary to protect herself.”

Taking the instructions as a whole and read as a series, as they should be, we think they properly and fairly enlightened the jury as to the law that was apt. Drda v. Illinois Terminal R. Co., 210 Ill. App. 640.

For the reasons stated the judgment will be affirmed.

Affirmed.

O’Connor, J., concurs.

Mr. Justice Thomson,

dissenting: With the presentation of this appeal, we have a good illustration of the possible consequences of the decision which was rendered by the majority of this court, when this case first came before us. (234 Ill. App. 556.) There have now been two trials of the same issue of fact in separate cases, in both of which the same individuals were either the parties directly involved or privy thereto, and the verdict returned in the civil case is the direct opposite to the finding made in the criminal case. Our law should he so determined as to avoid any such situation.

In my opinion the giving of the instructions designated in the record as defendant’s given instructions 1 and 2, was error. They purported to give the jury a rule of law which was very material and pertinent to the issue of fact presented, and as given they were clearly wrong. They are peremptory instructions which may not be helped in anything the court may have said in some other instruction. In my opinion the judgment should not be permitted to stand.