text:
    The People of The State of Illinois ex rel. Bernard W. Snow, Bailiff of the Municipal Court of Chicago, Appellee, v. The City of Chicago et al., Appellants.
    Gen. No. 31,575.
    1. Pleading — necessity of special demurrer to question plaintiffs’ right to sue. An objection that the parties plaintiff were not proper parties must be made by special and not by general demurrer.
    2. Appeal and error — when' objection to capacity of plaintiff to sue too late. An objection that a plaintiff is not the proper party to maintain a suit is too late when first made on appeal.
    3. Municipal courts — control of number and. salaries of deputy bailiffs. The judges of the municipal court of the City of Chicago have paramount control of the number and salaries of the deputy bailiffs.
    4. Municipal courts — when city must malee appropriation for salaries of deputy bailiffs. After the municipal judges of Chicago have fixed the number and salaries of their deputy bailiffs under exclusive powers therefor, on proper request the city council has no discretion but must make appropriations to meet the expense of such salaries.
    5. Mandamus — when answer insufficient in proceeding to compel municipal appropriation for salaries. The city council's objection in mandamus proceedings to compel the council to appropriate for salaries of deputy bailiffs fixed by the municipal judges of Chicago, that no one is being deprived of salary or position, is without merit in view of the amended petition’s allegations that the deputy bailiffs have been duly appointed and are holding their positions.
    6. Appeal and error — when nonperformance within time set by mandamus does not render right to order moot question. That the Chicago city council has refused to do its duty to appropriate for deputy bailiffs ’ salaries, as fixed by the municipal court, within the time fixed in a mandamus to compel performance, does not make the granting of that order a moot question.
    Appeal by defendants from the Superior Court of Cook county; the Hon. Joseph B. David, Judge, presiding.
    Heard in the first division of this court for the first district at the October term, 1926.
    Affirmed.
    Opinion filed March 14, 1927.
    Francis X. Busch, Corporation Counsel, for appellants ; Leon Hornstein and Ruth C. Nelson, Assistant Corporation Counsel, of counsel.
    Robert P. Rollo, for appellee.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.

This is an appeal by respondents from an order granting a writ of mandamus directed to the City of Chicago, its mayor, the members of its city council, and the members of the finance committee, to pass on or before June 30, 1926, an additional appropriation of $17,560, to provide for additional salaries for certain deputy bailiffs already appropriated for. Petitioner’s amended petition was met by general and special demurrers, which were overruled, and respondents electing to abide by their demurrers, the writ of mandamus was ordered to issue providing for the salaries of certain specified deputy bailiffs, the order reciting “all of said bailiffs having been duly appointed and who are duly holding the positions to which they are assigned by the bailiff.”

The petitioner states that he is the bailiff of the municipal court of the City of Chicago, and for and on behalf of himself and the others therein named shows that the municipal court is vested with certain powers under the act creating it; that it consists of 37 judges, the bailiff, who is the relator, and a clerk; that upon him and his deputies rests the carrying out of processes issued by the court; that under section 17 of the Municipal Court Act, Cahill’s St. ch. 37, TI405, he is authorized and directed to appoint such number of deputies as may be determined from time to time by a majority of the judges of the municipal court by order signed by them and spread upon the court' records, and the salaries of such deputy bailiffs shall be fixed by similar order; that on November 25, 1925, 32 of the 37 judges entered an order fixing the number of deputy bailiffs and the rates of salaries per annum for the various positions thus named, and a certified copy of this order was served on the City of Chicago, the city council and the finance committee of the city council; that at a later date, to wit, on May 20, 1926, this order was amended by changing the salary of the chief deputy bailiff from $7,500 to $6,000, which was the amount of his salary specifically fixed by statute, and a certified copy of this order as amended was served on the city council; that the city council and the finance committee were repeatedly requested by the relator and by the judges to appropriate the sums of money set forth in the order of the judges; that under the order the relator was thereby authorized and directed to appoint the number of deputy bailiffs at the respective salaries set forth in said order for the fiscal year 1926. The relator further alleged that it was the duty of the city council within the first quarter of the fiscal year to pass an annual appropriation bill and that, the City of Chicago having a population of 100,000 or more, the city council was authorized to pass additional or supplemental appropriation ordi nances within the first half of the fiscal year which may relate back to the commencement of the fiscal year; that the city council wholly disregarded its positive duty in this respect to make the appropriations for the bailiffs of the municipal court as set forth in the order of the judges of said court, but caused to be passed a portion of the appropriation. Relator alleges that the city council thereby refused to perform the legal duty imposed upon it under the law; that the city council through its finance committee, in response to the requests of the relator, asserted that it had the right to supervise and make deductions from or restrictions on the order of the judges of the municipal court, and that such order is not binding on the city council and its finance committee.

The writ of mandamus was therefore prayed to compel the city council to pass such additional appropriations to enable the bailiff to carry out the duties of his office under the terms of said order of the judges of said court.

It is first argued by respondents that the bailiff is not the proper party to bring this suit. An objection to the parties bringing suit camiot be made by general demurrer, but only by a special demurrer, which was not so made. 6 Encyc. Pleading and Practice, 323; Liska v. Chicago Rys. Co., 318 Ill. 570: An objection to the parties must be made in the trial court. It comes too late when made for the first time in the Appellate Court. Mengelkamp v. Consolidated Coal Co., 259 Ill. 305; Board of Highway Com’rs v. City of Bloomington, 253 Ill. 164; Cox v. Commissioners of Highways of East Fork Tp., 194 Ill. 355; Irish v. Sharp, 89 Ill. 261.

Respondents next say that the making of appropriations is not a ministerial duty but one which involves discretion, and that the city council has exclusive jurisdiction in this respect. People ex rel. Egan v. City of Chicago, 310 Ill. 534, disposes of this contention. It was there held that the legislature had power to create a corporate authority and to endow it with all the attributes and facilities of other preexisting corporate authorities, and that: “The judges of the municipal court have by the consent of the people become corporate authorities, not with power to assess and collect taxes, but with control, so far as the law has confided it to them, of the expenses of the court and with power to incur indebtedness on the part of the city for that purpose, for which it is the duty of the city council to provide by the appropriation of money to pay it and the levy of taxes for that purpose.”

In the light of this decision, the conclusion is inevitable that the judges of the court have paramount control of the number of deputy bailiffs and the salaries for the same; that this power is lodged in them exclusively, and that the city council has no discretion in the matter but must make the appropriations, when properly requested, as ordered by the judges.

The amended petition alleged that the deputy bailiffs affected by the appropriation were duly appointed and were holding said positions, and the order awarding the writ so found. There is therefore no merit in the suggestion that no one is deprived of a salary or a position.

The fact that the time fixed in the judgment order has passed does not necessarily make the questions involved moot questions. We are asked to pass upon the propriety of the order and for us to refuse to do this, because of the lapse of time, would be to lend the aid of this court to the respondents in their refusal to perform the duty imposed upon them by law.

The city council, where an appropriation is by statute mandatory, cannot neglect or refuse to make such an appropriation and by such refusal permit its failure to perform its express duty to nullify the statute imposing that duty. City of Cairo v. Campbell, 116 Ill. 305.

We hold that the trial court was right in overruling the demurrers and that the order awarding the writ properly followed, and it is affirmed.

Affirmed.

Matchett and Johnston, JJ., concur.


source: Caselaw Access Project

author: Mr. Justice Johnston

license: Public Domain

text:
    Antillia Protective Association of Chicago, Appellee, v. Maurice E. Wolfsohn, Appellant.
    Gen. No. 31,279.
    1. Injunctions — when, right to remedy not barred by laches. A complainant for a mandatory injunction to restrain an encroachment on his land by defendant’s building, and for removal of the encroachment made, who objected to the encroachment within four months after the building was begun and sent three letters to defendant further protesting, is not guilty of such laches as to compel him to seek his remedy at law.
    2. Injunctions — when action at law inadequate as remedy for building encroachment. Encroachments by building over on his building which complainant seeks to enjoin cannot be compensated by repairs or money damages such as could be obtained in an action at law.
    3. Injunctions — when evidence of encroachment warrants order for removal of building. With the evidence showing that defendant’s encroachment by building over onto complainant’s building was wilful, the slightness of the encroachment and the expense of its removal to defendant, will not bar complainant from his right to a mandatory injunction for removal thereof and against further encroachment.
    Appeal by defendant from the Superior Court of Cook county; the Hon. Oscar Hebel, Judge, presiding.
    Heard in the first division of this court for the first district at the October term, 1926.
    Affirmed.
    Opinion filed March 14, 1927.
    Charles V. Falkenberg, for appellant.
    Benjamin G. Pollard, for appellee.
   Mr. Justice Johnston

delivered the opinion of the court.

This is an appeal by Maurice E. Wolfsohn, the defendant, from a decree against him in a suit in equity brought by the Antiilia Protective Association of Chicago, the complainant, to restrain the defendant from encroaching on the complainant’s property, and to compel the defendant to remove certain encroachments on the complainant’s property.

There is no substantial dispute as to the facts. The defendant is the legal owner, of premises improved by a three-story building, situated at 3522 South Michigan Avenue, a public thoroughfare in the city of Chicago. The defendant holds the premises as trustee for the Real Estate Mortgage and Bond Corporation. The front of the defendant’s building sets back 20 feet from the sidewalk. The complainant is the owner of premises at 3524 South Michigan Avenue, adjoining the premises of the defendant. The property of the complainant is improved by a three-story building, the front of which also sets back 20 feet from the sidewalk. In March, 1925, the defendant began the erection of an additional building, three stories in height, to occupy the 20 feet of space in front of the building already on the premises. The plans for the additional building originally were drawn for a building 25 feet wide, and to cost over $25,000, but the plans were subsequently changed for a building 8% inches wider. When the construction of the additional building was commenced it was found that the buildings of the defendant and the complainant were joined by a party wall. The defendant instructed William Macintyre, attorney and president of the Real Estate Mortgage and Bond Corporation, and William H. Montgomery, sales manager of the Real Estate Mortgage and Bond Corporation, to negotiate with the complainant with the view to obtaining from the complainant a party wall agreement. As a result of the negotiations the complainant agreed to enter into a written contract in regard to a party wall, and Percival Eugene Fray, a director and manager of the complainant, said to Macintyre and Montgomery, “It is perfectly satisfactory and agreeable; you can go ahead and build.” Thereafter Macintyre submitted a party wall agreement to Fray, who objected to certain provisions in the agreement. The complainant did not sign the agreement. Macintyre prepared another agreement and submitted it to Fray, who presented it to the legal advisor of the complainant, who said it was not satisfactory. The complainant did not sign the agreement. Macintyre then stated that the complainant should prepare an agreement that the complainant considered satisfactory. Such an agreement was prepared but was never submitted to the defendant. While the negotiations in regard to the agreement were pending the defendant was proceeding with the erection of the party wall and the additional building, and was leasing office space in the additional building. The negotiations in regard to the agreement extended over a period of time beginning April, 1925, and ending August 1, 1925. Fray testified that while the party wall was being constructed he first objected to the wall in August or September, 1925; that he stated to the architect of the defendant that the terra cotta was not in accordance with the surveyor’s line; that it encroached about 8 inches on the wall; that at the time of the conversation the terra cotta work had progressed about half way. An architect employed by the complainant to make a survey of the wall testified that in August, 1925, he told representatives of the defendant that they were encroaching 8% inches on the complainant’s property; that the wall was about two-thirds completed at that time.

The complainant wrote three letters addressed to the president of the Real Estate Mortgage and Bond Corporation suggesting that an appointment be made to discuss the question of the encroachments on the property of the complainant made by the defendant. These letters were received by Montgomery in October, 1925, and were mailed by him to Macintyre. At the time the letters were received by Macintyre, all of the brick work on the additional building had been completed and the entire front of the building had been faced with terra cotta except three or four pieces near the cornice or gables. The cost of removing the encroachment would be approximately $2,500, and the removal of the encroachment without shifting the entire facing of the additional building would leave it unsymm’etrical and unsightly.

There is no evidence from which it may be inferred that when Fray stated that the defendant could “go ahead and build,” Fray meant that the defendant could build or use the wall so that there would be an encroachment on the property of the complainant.

In his decree the chancellor found as follows:

“That in the month of June, A. D. 1925, defendant built a wall 28 feet 4% inches long, 42 feet high, and 17% inches in width. That said defendant built said wall on and over the North boundary line of complainant’s property and the South boundary line of defendant’s property. That said wall extends 28 feet 4% inches in length, 42 feet in height and 8% inches in width on the North side of complainant’s property and that said defendant faced the frontage of said wall with terra cotta over the said 8% inches of width and about 42 feet in height on complainant’s property.
“That the defendant built said party wall with the consent of complainant and faced said wall with terra cotta without the consent and over the objection of the Antillia Protective Association of Chicago, a corporation, complainant.
“That the complainant corporation and the defendant orally agreed that the said complainant corporation was and is to have full use of said wall, both on the south side of said wall and on the frontage of said wall to the extent of 8% inches, measuring from the south end of the frontage of said wall without cost to said complainant corporation.
“That the defendant, Maurice E. Wolfsohn, by the facing of said wall intentionally encroached on complainant’s property to the extent of 8% inches in width and about 42 feet in height on its frontage without complainant’s consent and without any fault on behalf of complainant.
“That the defendant, Maurice E. Wolfsohn, had and has no right to encroach on the said 8% inches in width and 42 feet in height on complainant’s property and that complainant was and is entitled to a permanent and mandatory injunction against the defendant to prevent the defendant from continuing to place terra cotta or any other material on the frontage of said wall on complainant’s property, and to compel defendant to remove the said terra cotta now existing on said wall covering the said 8% inches of width and about 42 feet of height on complainant’s property.”

The order of the decree is as follows:

“It is therefore Ordered, Adjudged and Decreed that the defendant Maurice E. Wolfsohn, his agents, servants, solicitors, attorneys, lessees, representatives and assigns be and they, and each of them, are hereby permanently restrained from in any manner or way building or placing the said terra cotta facing or any other material on or against the said 8% inches of width and about 42 feet in height on the frontage of said wall so that the same may in any manner or way encroach upon or extend into the property of complainant, and he or they, and each of them, are hereby ordered to remove the said terra cotta now existing on face of complainant’s property, which extends over and constitutes the encroachment on said complainant’s property.
“That such removal is to be made when and only when the complainant, the Antiilia Protective Association, Chicago, a corporation, erects, constructs and builds a permanent brick extension to its present building and on the aforesaid lot four, etc., and provided the said extension shall be extended to a point in alignment with the defendant’s front or east wall and not before, and provided further, construction of complainant’s extension shall be deemed to have been commenced when complainant has submitted plans for said extension, to the proper officer of the City of Chicago, and a foundation wall has been constructed, and provided further, that said terra cotta facing shall be removed by defendant as the complainant’s said extension is erected and constructed and only to a point in height on which said extension is erected.”

We are of the opinion that the decree of the chancellor is correct. In our view, the defendant proceeded with the construction of the party wall and the terra cotta work at his peril.

Counsel for the defendant contends that it is the rule that “where a party wall encroaches on the property of an adjoining owner, but the owner allows the building to be completed without complaint, he is guilty of laches and an injunction will not lie in his favor, but he will be left to his remedy at law.” We do not thing that this rule is applicable to the facts in the case at bar.

Counsel for the defendant further contends that the facts do not justify the interposition of a court of equity; that the complainant has not been irreparably damaged in the sense that the injury complained of cannot be repaired or restored or adequately compensated for in money; that, therefore, the remedy of the complainant is at law. We do not think that the contentions are correct. In our view, it is manifest that the complainant would not have an adequate remedy at law.

Counsel for the defendant further contends that in view of the facts that the encroachment was slight and “unintentional”; that no appreciable damage has been sustained by the complainant; that the removal of the encroachments would be difficult and expensive, it would be inequitable to allow a mandatory injunction requiring the defendant to remove the encroachment. In support of his contention counsel cites the following cases: Lynch v. Union Institution for Savings, 159 Mass. 306, 310; Methodist Episcopal Soc. in Charlton City v. Akers, 167 Mass. 560, 564.

The answer to the contention of counsel is that in the case at bar, according to the undisputed evidence, the encroachment was not an “unintentional” one. On the contrary, it was an intentional and wilful encroachment. We are of the opinion that the mandatory injunction was proper. The rule is that a mandatory injunction ordinarily will issue against the maintenance by a landowner of an encroachment on the land of an adjoining owner to compel the removal of such encroachment; and if the encroachment was intentional, the absence of present damage to the owner of the land encroached on will not defeat his right to an injunction. Pradelt v. Lewis, 297 Ill. 374, 377. In the circumstances the defendant could not, by constructing the party wall and the building, deprive the court of the'right to compel the restoration of the status of the parties. The duty of the courts is to protect rights, and innocent complainants cannot be required to suffer loss of their rights because of the expense to the wrongdoer. Gulick v. Hamilton, 287 Ill. 367, 374.

For the reasons stated the decree of the chancellor is affirmed.

Affirmed.

McSurely, P. J., and Matchett, J., concur.


text:
    Anthony J. Greenys et al., Appellees, v. John Jonalis, Appellant.
    Gen. No. 31,370.
    1. Pleading — motion to strike not a substitute for general demurrer. A motion to strike a special plea on the ground it was filed without the court’s consent and while the general issue was yet on file does not present the matter of a general demurrer nor can it properly do so, for only by the general demurrer itself can advantage be taken of defects of substance in a pleading.
    2. Pleading — when motions dilatory in character. A motion to strike a plea on the ground of an irregularity in the order of pleading is a dilatory motion, and, hence, must be made in apt time and in the appropriate order of the proceedings.
    3. Pleading — when motion to strike not made in proper order of proceedings. A motion to strike a special plea as having been filed while the general issue was yet on file, and made after general demurrer to such plea, is not made in the proper order, which requires that motions that are dilatory in merely attacking irregularities must be made before there is an attack upon the substance of the pleading by demurrer.
    4. Pleading — when right to move to strike plea wawed. By filing a demurrer to a special plea while the general issue was still on file, plaintiff admitted that the special plea was properly filed and waived any right to move to strike the plea for being filed in the wrong order.
    5. Pleading — when motion to strike inconsistent with general demurrer. Plaintiff could not at the same time move that his general demurrer which admitted that the special plea was properly filed be sustained thereto, and also move to strike the special plea on the ground that it was filed improperly while the general issue was yet on file.
    6. Judgment — default improper where general demurrer not disposed of. The trial court improperly entered a judgment as in default against the defendant after sustaining plaintiff’s motion to strike the special plea as improperly filed while the general issue was on file, in the absence of any record showing that a general demurrer to said special plea had been disposed of.
    Appeal by defendant from the Superior Court of Cook county; the Hon. Jesse Holdom, Judge, presiding.
    Heard in the first division of this court for the first district at the October term, 1926.
    Reversed and remanded.
    Opinion filed March 14, 1927.

      Kasimir P. Gugis, for appellant; P. B. Smith, of counsel.
    Matthias Concannon, for appellees; Charles Goodman, of counsel.
   Mr. Justice Johnston

delivered the opinion of the court.

This is an appeal by John Jonalis, the defendant, from a judgment in favor of Anthony J. Greenys, in an action of trespass on the case on promises brought by the plaintiffs.

The declaration consisted of the common counts. An affidavit of claim was attached to the declaration. To the declaration the defendant filed the plea of the general issue, but did not file an affidavit of merits.

On July 16, 1926, the plaintiffs made a motion before Judge Hurley to strike the plea of the defendant from the files for want of an affidavit of merits, and the plaintiffs also "moved for a judgment on the affidavit of claim of the plaintiffs. Judge Hurley did not grant the plaintiffs’ motion but entered an order giving the defendant 10 days within which to file an affidavit of merits. The defendant did not file an affidavit of merits to the plea of the general issue, but filed a special plea in which it was alleged that a former action was pending involving the same demand sued on by the plaintiffs in the present action. The special plea was verified by an affidavit. To the special plea the plaintiffs filed a general demurrer. Thereafter the case came on for hearing before another judge on motions of the plaintiffs presented simultaneously: (1) that the demurrer of the plaintiffs to the special plea be sustained; (2) that the special plea be stricken from the files on two grounds — first, that the special plea was filed without leave of court, and second, that it was filed after the plea of the general issue had been filed and while the plea of general issue was on file. The plaintiffs also made a motion at the same time to strike the affidavit attached to the special plea from the files, and for a judgment on the plaintiffs ’ affidavit of claim. On the hearing of these motions the following colloquy took place between the court and counsel:

‘ ‘ Trial attorney for the defendant: I did not understand the general issue was still on file. When the general issue was filed there was no affidavit of merits attached thereto and plaintiffs’ attorney made a motion before Judge Hurley to strike the general issue. Because of another case I had in another court room at that time, I agreed with counsel that my general issue might be stricken and that I might be given leave to plead' over within ten days.
“The Court: • Records show the general issue still on file.
“Trial attorney for the plaintiffs: Judge Hurley refused to strike the general issue but ordered defendant to file an affidavit of merits in ten days.
1‘Trial attorney for the defendant: Then I' ask leave at this time to withdraw my general issue. •
“The Court: You are too late. The general issue is still on file and you cannot- file a plea in abatement. * * *
‘ ‘ Trial attorney for the defendant: Counsel has filed a demurrer to my special plea, and I, therefore, ask leave for further time to plead over.
“The Court: You’re too late.”

• The court thereupon ordered-that the special plea and the affidavit attached thereto be stricken from the files, and entered judgment for the plaintiffs in the sum of $2,765.83, -the amount -alleged to be due in the plaintiffs’ affidavit of claim.

Numerous- errors for reversal of the -judgment are assigned by counsel for the defendant. In the view we take of the case, however, it will be necessary to consider only one assignment of error, and that is the contention that by filing a general demurrer to the special plea before filing their motion to strike the plea from the files, the plaintiffs waived their right to file the motion to strike the special plea from the files. The ground of the demurrer was that the special plea of the defendant was not sufficient in law. The record does not show any order disposing of the demurrer.

We are of the opinion that by filing a general demurrer to test the sufficiency of the special plea, the plaintiffs waived the right to move that the plea be stricken from the files on the ground that it was filed by the defendant without leave of court, and after the defendant had filed the plea of the general issue. It is obvious from the grounds stated in the motion that the motion was not intended to perform the function of a general demurrer. Moreover, properly it could not have been so intended, as the rule at common law is that if a plea is insufficient in substance, the only mode of taking advantage of the defect is by demurrer, and that it is improper to strike the plea from the files. Consolidated Coal Co. of St. Louis v. Peers, 166 Ill. 361, 365; Firestone Tire & Rubber Co. v. Ginsburg, 285 Ill. 132, 134.

The general rule is that a motion to strike a pleading from the files after the pleadings are at issue usually will be overruled. 31 Cyc. 659. It is also a rule of general application that motions must be made in apt time, and that this requirement embraces within its meaning promptness as well as the appropriate order of proceeding. 14 Eneyc. of Pleading and Practice, pp. 99, 100. This rule is especially true of dilatory motions and motions to set aside proceedings for mere irregularities. 14 Encyc. of Pleading and Practice, p. 101; Clifford v. Town of Eagle, 35 Ill. 444, 450; Grand Lodge Independent Order of Free Sons of Israel v. Ohnstein, 110 Ill. App. 312, 329, 330; Miller v. Metzger, 16 Ill. 390, 392; Kinney v. Bauer, 6 Ill. App. 267, 271, 272; Persse & Brooks Paper Works v. Willet, 14 Abb. Pr. (N. Y.) 119, 120, 121; Lawrence v. Jones, 15 Abb. Pr. (N. Y.) 110, 113. Since the purpose of the motion of the plaintiffs to strike the special plea from the files was to take advantage of an irregularity in the order of pleading, the motion was a dilatory motion, and according to the rule should have been filed before the general demurrer. By filing the general demurrer to the special plea, the plaintiff admitted that the plea was properly filed. Therefore the right to file the motion to strike the plea from the files was waived. It will be observed that the very rule on which counsel for the plaintiffs rely to support their contention that the special plea of the defendant was not filed in the appropriate order of pleading,, applies by analogy to the order in which the motion of the plaintiff to strike the special plea of the defendant was filed.

In the case of Kinney v. Bauer, supra, the court said (pp. 271, 272): “It is a rule founded in good sense, and recognized by the courts in almost daily practice, that if a party voluntarily take issue of fact upon the pleading of his adversary, he thereby admits such pleading to be properly filed.”

In the case of Howe v. Fraser, 17 Ill. App. 219, it was held (p. 221) that a motion by the plaintiff to strike from' the files the defendant’s plea of set-off came too late, after the plaintiff had replied in bar to the defendant’s plea.

In the case of Sheehan & Loler Transp. Co. v. Sims, 36 Mo. App. 224, a motion was made to strike out the first count of the amended petition. The court said (p. 229): “The motion to strike should have been made before the defendant answered, and came too late when the case was called for trial.”

It follows from the conclusions we have expressed that the plaintiffs assumed an inconsistent position in presenting to the trial court, simultaneously, the motion to sustain the plaintiffs’ general demurrer to the defendant’s special plea, and the motion to strike the special plea from the files. Since the filing of the demurrer admitted that the special plea was properly filed, the motion of the plaintiff to strike the plea from the files on the ground that it was not filed in proper order involved a direct contradiction. The motion to strike the special plea from the files should not have been considered by the trial court while the general demurrer was still pending.

We further are of the opinion that since* the record does .not show an order disposing of the plaintiffs’ demurrer, it was not proper for the court to enter a judgment as in case of default against the defendant. Mason v. Abbott, 83 Ill. 445, 446; Wells v. Mathews, 70 Ill. App. 504, 506; Parrott v. Goss, 17 Ill. App. 110, 111.

For the reasons stated the judgment is reversed and the cause remanded.

It is true that we are reversing the judgment on technical grounds of pleading and practice; but it will be observed, that the plaintiffs are seeking to maintain the judgment on purely technical grounds of pleading and practice.

jReversed and remanded.

McSurely, P. J., and Matchett, J., concur.


author: Mr. Justice Matchett

text:
    City of Chicago, Appellee, v. Joseph Siebert, Jr., and United States Fidelity & Guaranty Company, Defendants. United States Fidelity & Guaranty Company, Appellant.
    Gen. No. 31,551.
    1. Suretyship — retroactive liability. Except for special language in a public servant’s bond to the contrary, the surety thereon is not bound for defaults or breaches by his principal which occurred before the bond’s date.

      2. Suretyship — construption of bond as to liability. The obligations of a surety on a public servant’s bond must be strictly construed in the surety’s favor in deciding whether the bond is only prospective or also retrospective so that it will cover defaults of the principal before the bond is entered into.
    3. Indemnity — when bond, constitutes contract of. A bond of a public servant securing the city against loss by the principal’s default or breach of duty is technically a contract of indemnity on which a cause of action does not arise until the loss sustained has been definitely ascertained.
    4. Indemnity — when contract retroactive. The indemnity bond of a public servant which recites that his appointment was several days before the date of giving the bond is retroactive and fixes the date when the surety’s liability begins as the day of appointment.
    5. Indeminity — when liability accrues. Where the bond of a bridge tender to the city was entered into after an act of negligence "on his part, for which the person injured thereby thereafter recovered judgment against the city, the sureties on the bond were liable in an action by the city as even if the bond were not retroactive in operation, the liability covered by the bond did not accrue until the entry of judgment against the city, after the execution of the bond.
    Appeal by defendant from the Municipal Court of Chicago; the Hon. Edgar A. Jonas, Judge, presiding.
    Heard in the first division of this court for the first district at the October term, 1926.
    Affirmed.
    Opinion filed March 14, 1927.
    Eugene P. Kealy, for appellant.
    Francis X. Busch, Corporation Counsel, and John J. Kelly, City Attorney, for appellee; Charles W. Stiefel, Jr., Assistant City Attorney, of counsel.
   Mr. Justice Matchett

delivered the opinion of the court.

The appeal of the defendant surety company is from a judgment of $1,500 entered upon the finding of the court. The defendants made a motion to strike the statement of claim, which was denied, and defendants electing to stand by their motion, their default was entered for want of an affidavit of merits. The.court heard evidence in support of the statement, a finding was made and judgment' entered as above set forth.

The facts are not in dispute. The statement of claim alleged and the proof tended to show that on July 19,1923, defendant Joseph Siebert, Jr., as principal, and the surety corporation as surety, entered into a written obligation or bond to the City of Chicago in the sum of $1,500. The bond recited:

“The Condition Of The Above Obligation Is Such: That whereas, the above bounden Joseph C. Siebert, Jr., was on the first day of July, 1923, appointed to the office or position of Bridgetender in the Department of Public Works of the City of Chicago.
“Now, Therefore, if the said Joseph C. Siebert, Jr., shall well and faithfully perform and discharge the duties of said office or position as prescribed and required by law, by the orders and ordinances of said city, or by the orders of the Commissioner of Public Works, and shall pay to said City all loss, damages and expense of every kind accruing to said City on account of any injury sustained or otherwise resulting from or caused by any misconduct, breach of duty, failure or neglect on the part of said Joseph C; Siebert, Jr., and shall at any time on demand forthwith, account for and pay over all moneys received by him as such Bridgetender in accordance with the law and with orders and ordinances heretofore passed or hereafter to be passed by the City Council of said City in conformity with law, and shall likewise on demand deliver to said Commissioner of Public Works all books, papers and all other property in his possession, care, custody or control as such Bridgetender, then this obligation to be void; otherwise to remain in full force and effect.”

It was also alleged and proved that on July 14,1923, the defendant Joseph C. Siebert, Jr., while acting as bridgtender at the Archer Avenue Bridge, within the City of Chicago, negligently and carelessly released the locks and brakes of said bridge while one Robert Stift was still upon said bridge driving a team of horses and a wagon, so that the said bridge was lifted and the said Robert Stift was thrown to the ground, sustaining severe personal injuries. Said Robert Stift on July 22, 1924, filed suit against the City of Chicago in the circuit court of Cook county, and on December 24, 1925, a judgment was entered against the City of Chicago in the sum of $4,000, which judgment the City of Chicago 'Ms paid.

The evidence tended to show that Siebert, Jr., entered the service of the City of Chicago on June 11, 1923, as a civil service employee, and that at the time of the trial he was still working for the city as such civil service employee.

The surety company says that the sole point in the case is whether the bond given is retroactive. It takes the position that it is not retroactive, but prospective, and that no liability can possibly attach to the surety on account of breaches or defaults of the principal prior to July 19, the day upon which the bond was executed.

It must be conceded that in the absence of language compelling a contrary construction, the general rule is as the surety company contends. It has been so held in Bartlett v. Wheeler, 195 Ill. 445, where the court said: “A surety on a bond given to secure the faithful performance of a contract is not liable for defaults of his principal previous to the transaction wherein the bond and contract were executed, unless the contract is retrospective in terms.”

It is also the law, as the surety company contends, that the obligations of a surety are to be strictly construed. Baker v. Peterson, 300 Ill. 526.

To these contentions the plaintiff makes a twofold reply. It says, in the first place, that, conceding the obligation of the bond to be prospective only, the right of action thereon did not accrue or arise at the time of Siebert’s neglect, but only when the judgment was entered against the city in the case brought by Stift, which was long after the delivery of the bond. In the second place, the plaintiff says that if it be assumed that the negligent act of Siebert, rather than the loss sustained by the city, constitutes the breach of the bond, then the bond properly construed is by its terms retroactive.

There seems to be a clear distinction made in the cases (we think, reasonably) between an agreement to do a particular thing and an agreement to pay a loss which results by reason of a' third party doing or refraining from doing a particular thing. In the first class of cases the right of action arises immediately upon the happening or nonhappening of the particular thing. In the latter case, the contract is technically one of indemnity, and the breach or cause of action does not arise until it has been definitely ascertained that damage or loss has been sustained. Power v. Munger, 52 Fed. 705; Trinity Church v. Higgins, 48 N. Y. 532; Furnas v. Durgin, 119 Mass. 500, are a few of the many cases which might be cited to this point.

This distinction becomes important in determining the controlling question here, which, after all, is, What was the intention of the parties to the contract of suretyship? That intention must be determined from the written contract, strictly construed as to the defendant’s obligation.

Cases have been cited by both parties, plaintiff relying on Hatch v. Inhabitants of Attleborough, 97 Mass. 533; Baker City v. Murphy, 30 Ore. 405, 42 Pac. 133, 35 L. R. A. 88; McMullen v. Winfield Building & Loan Ass’n, 64 Kan. 298, 56 L. R. A. 924; while defendant relies on Bartlett v. Wheeler, supra; Coons v. People, 76 Ill. 383, 385; Schoeneman v. Martyn, 68 Ill. App. 412; United States v. Boyd, 5 How. (U. S.) 29, and very many other cases. It would not be a difficult matter to distinguish any or all of these cases. They all resemble, but not one is similar in facts to, the case we must now decide.

The defendant argues it is unreasonable to suppose that, if the surety company had notice of a default by the principal prior to the time that the bond was executed, it would have made a bond retroactive in its terms and that it would be foolish to assume that any surety would knowingly assume a default existing at the time of the execution of the bond, wherein the surety would be obligated to expend the penal sum of the bond. The answer to this, in the first place, is that, so construing the bond, the principal was not in default at the time of the execution of it. He had been negligent at that time, but whether this negligence would or would not result in loss to the city had not been determined.

In the second place, the language of the bond (which at any rate must be controlling) recites that Siebert was appointed to his position on July 1, 1923. It is impossible to conceive of any purpose the parties could have had in mind in using this language or reciting this date, other than to fix the time on which the obligation of the surety should begin.

The defendant also argues that the obligations of the surety were prospective only from the fact that the condition of the bond is, if Siebert “shall” perform the duties of the office or position, and, again, “shall” pay to the city all loss, damage and expense of every kind. The answer to this contention is that the liability was future and did not in fact arise until December 24, 1925, which was ■ over two years after the execution of the bond.

Our conclusion is, first, that by its express language the bond executed is retroactive; but, second, assuming that it is not, defendant is nevertheless liable for the loss, damage and expense sustained by the city in the suit brought against it by Stift after the bond was executed,- We think this is the only fair interpretation of the intention of the parties gathered from the whole instrument. Any other construction would require us to discard as meaningless the recital of the bond as to the date upon which Siebert was appointed.

The judgment is affirmed.

Affirmed.

McSturely, P. J., and Johnstoh, J., concur.

       As to the rule in the case of bonds of surety companies, see post, p. 204.


author: Mr. Presiding Justice Gridley

text:
    Mary B. Eichin, Administratrix of the Estate of Charles L. Eichin, Deceased, Defendant in Error, v. John F. Eichin et al., Plaintiffs in Error.
    Gen. No. 31,217.
    1. Equity — when subject matter within equity jurisdiction. A bill praying for discovery, accounting and a receiver, because of the alleged fraudulent retention by the brother of plaintiff’s decedent of bonds belonging to decedent for whom the brother acted as fiduciary, which allegations the evidence supported, even though asking possession of the bonds, properly was cognizable in equity.
    2. Judgments and decrees — when not at variance with bill. A decree that plaintiff should have bonds prayed for, and that defendant wrongly claimed them as a gift inter vivos from his brother, plaintiff’s deceased husband, is not at variance with the bill which did not allege anything about defendant’s claim, which it was his duty, and not complainant’s, to assert.
    3. Gifts — claim of gift as dispensing with allegation of antecedent ownership. The defendant’s claim that bonds were a gift inter vivos to him from his brother made it unnecessary for plaintiff in her bill for recovery of tho bonds to allege that they were the property of the said brother, who was her deceased husband, prior to the date of the alleged gift.
    4. Gifts — burden of proving. One who did not claim that bonds were given him by his brother before the latter’s death until his brother’s widow made claim thereto, by a bill for recovery, has the burden of proving that claim by clear and convincing evidence.
    5. Gifts — when not shown inter vivos. Defendant, a brother of decedent and his assistant in business, held to have failed to sustain the burden of proving a gift inter vivos of certain bonds, all knowledge of which he disclaimed and ownership of which he did not assert until long after decedent’s death.

      6. Equity — when demurrer to oross-hill setting up disclaimer properly sustained. The court did not err in sustaining demurrers to cross-bills merely containing disclaimers which could have been, and were, msde otherwise.
    7. Costs — when may he taxed against, disclaiming trustee. Costs may be taxed against all the defendants in an action to recover bonds wrongly retained from the estate of plaintiff’s decedent, although one defendant was a mere stakeholder of the bonds who disclaimed, but did take active part in helping the other defendants at the trial.
    Error by defendants to the Superior Court of Cook county; the Hon. Denis E. Sullivan, Judge, presiding.
    Heard in the second division of this court for the first district at the October term, 1926.
    Affirmed.
    Opinion filed March 29, 1927.
    Jess S. Raban, for plaintiffs in error.
    Parley H. Bishop, for defendant in error.
   Mr. Presiding Justice Gridley

delivered the opinion of the court.

This writ of error was sued out by all three defendants to reverse a decree of the superior court of Cook county, entered November 5, 1925, wherein the court, after making numerous findings, overruled all exceptions to the master’s report, confirmed the report, and decreed in substance (a) that the receiver, Q-reenebaum Sons Bank and Trust Company, pay and deliver to complainant certain money and bonds in its possession and that, upon doing so, it be discharged as receiver; (b) that the defendant, John F. Eichin, pay to complainant $1,267.08, together with interest thereon at 5 per cent per annum from date of decree; and (c) that the fees of the master, including stenographer’s fees, be fixed at $556.80, and the receiver’s fees, including those of its attorney, at $400, and that all fees be taxed as costs against all the defendants.

From this decree John F. Eichin prayed a separate appeal to this Appellate Court, but did not perfect it. From that part of the decree, adjudging the payment of costs by them, Fred C. Eichin and Bnresh prayed and perfected here their appeal (case No. 31,080), which has been consolidated for hearing with the present writ of error cause.

In the decree the court found inter alia that Charles L. Eichin died intestate at Chicago on December 13, 1920, leaving him surviving Mary B. Eichin, his widow, and two adopted minor children; that on December 23, 1920, complainant was appointed administratrix, etc.; that prior to January 8, 1920, Charles Eichin purchased and until his death continued to be the owner of fifteen $1,000 bonds, six being bonds of the Chicago Sanitary District, eight of the City of Milwaukee, and one of the Milwaukee County Hospital for the Insane; that on October 4, 1920, John Eichin (brother of Charles) was possessed of the bonds, and “claims to have theretofore become the owner thereof by gift from Charles Eichin”; that on said day John delivered them to Buresh, as trustee for the use of John and his son, Fred C., under a certain trust agreement then executed by John and Buresh; that Buresh, as such trustee, thereafter retained possession of the bonds until July 13,1922, when by order of court he delivered them to the receiver theretofore appointed in the present cause; that Buresh, since having possession of the bonds, has collected and paid over to John the matured interest thereon up to July 13, 1922, amounting to $1,045; that neither Buresh nor Fred Eichin ever acquired or claimed to have any interest in the bonds other than as trustee and cestui que trust respectively; that the trust agreement expired by its terms on July 1, 1923, at which date Buresh and Fred Eichin ceased to have any right or interest in the bonds or any claim thereon; that Charles Eichin, during his lifetime, “did not make a gift” of them to John, and the latter “never was the owner of the bonds nor any part thereof”; that, upon Charles’ death in December, 1920, said bonds, and all interest thereon collected by Buresh after October 4,1920, became a part of Charles’ estate, and complainant, as administratrix, is entitled to recover said interest, and to get possession of the bonds; that after the receiver’s appointment certain bonds matured and it collected their face value, as well as instalments of interest due on all bonds; that -by order of court the receiver invested a portion of the moneys so received in the purchase of other bonds, and retained $400, in payment of its fees, including those of its attorney; that it now has in its possession $637.03 in money and bonds as follows: Two U. S. Third Liberty Loan bonds of the aggregate face value of $10,000; one $1,000 bond of the Milwaukee County Hospital; and five $1,000 bonds of the Milwaukee Permanent Harbor Improvement; and that said money and bonds are a part of Charles’ estate, and complainant, as administratrix, is entitled to the possession of the same, and is also entitled to collect from John Bichin said sum of $1,045, which with accrued interest now amounts to $1,267.08.

On December 10, 1925, the court entered an order directing the receiver to deliver to complainant said money and bonds. In the .order are recitals to the effect that John Eichin did not within the required time perfect his appeal from the decree, and that the perfected appeal of Fred Bichin and Buresh “did not have the effect of suspending the operation of the decree except so much and such parts thereof as relate to the taxing of costs against them.” Subsequently the receiver filed its final report and was discharged, it appearing that it had turned over said money and bonds to complainant.

In the bill, filed June 23, 1922, complainant alleged, inter alia, that prior to Charles’ death he had purchased the fifteen bonds in question and at his death he was the owner thereof; that John Bichin and Buresh, confederating together, “now make the false and fraudulent claim and pretense” that John lawfully obtained possession of the bonds prior to Charles ’ death and became the owner thereof and delivered them to Buresh, who now holds them under the terms of said trust agreement, which provides that the bonds thereby were transferred to Buresh, as trustee, for the use of John and his son, Fred; that prior to Charles ’ death he was engaged in the shoe business in Chicago, invested his savings in bonds and other securities, employed John (his brother) as an assistant in the business and placed great confidence in him; that, “by means of such confidential and fiduciary relationship, ’ ’ and while acting as Charles’ agent, John “obtained possession of said bonds as such agent and received them for the use of Charles”; that neither John nor Buresh paid any consideration for them; that their claims thereto “are mere shams and pretenses” and made for the purpose and with the intention of defrauding the beneficiaries of Charles’ estate, and preventing complainant from obtaining possession; that since Charles ’ death complainant asked John repeatedly if he knew anything about them, and on each occasion he denied knowing where they were or anything about any such bonds; and that complainant fears defendants will dispose of them unless a receiver be appointed, etc. The bill prays for a discovery, an accounting, an injunction, a receiver, that the bonds be delivered to complainant, as well as the collected interest, and for such further relief as equity may require.

In their joint and several answer the defendants denied many of the material allegations of the bill. They alleged that they were “not informed” as to whether Charles purchased the bonds prior to his death; that Buresh had possession of them, as trustee, under the terms of said trust agreement (copy attached and made a part of the answer), and is the legal owner and John and Fred the equitable owners; and that Charles “disposed of them and dispossessed himself” of all right or title thereto or interest therein long prior to his death. They denied that any fiduciary relationship existed between John and Charles prior to the latter’s death, or that John obtained possession of the bonds as agent for Charles, or that he received them for Charles’ use and benefit, or that John did not pay any consideration for them, or that complainant was entitled to the possession of them, or to recover said interest collected by Buresh. They further denied the right of a court of equity to take jurisdiction of the cause, and alleged that complainant had a full and adequate remedy at law and that defendants had a right to a jury trial as to the question of ownership of the bonds. The answer is noticeable for what it does not state. It does not allege when, how or from whom John received the bonds, or set forth any facts upon which the several claims of the defendants are based. In the trust agreement it is provided that Buresh, as trustee, shall collect all maturing interest on the bonds and pay the same to John during his lifetime, and that the agreement shall terminate on July 1, 1923, when, if John be living, Buresh shall deliver the bonds to John, and, if John be not living, to Fred.

After replication filed, the cause was referred in March, 1923, to a master in chancery. Much evidence, oral and documentary, was introduced before the master, and on March 21, 1925, he filed his report, in which, after mailing findings, he recommended the entry of a decree that defendants had no legal or equitable right, title or interest in and to the bonds, and that the receiver deliver the bonds, or the proceeds thereof, to complainant. Defendants’ overruled objections to the report were ordered to stand as exceptions.

From complainant’s evidence the following facts in substance are disclosed: She and Charles Eichin were married in November, 1898. They had no children of their own and their married life was not harmonious. About 1915 he adopted two minor children (aged respectively about 12 and 10 years at the time of his death), and after said adoption he and complainant lived more harmoniously together. Up to the time he died he manifested great affection for the children and treated them as though they were his own. From the time of the marriage until his death he conducted a shoe store at No. 3042 Wentworth Avenue, Chicago, He accumulated an estate of about $35,000, consisting of the real estate where the store was located, stock on hand, $22,550 in bonds at par value (including the $15,000 bonds in question), and about $2,000 in cash on hand. The bonds in question amount to over 40 per cent of his estate. Charles’ brother, John, about two years younger, had been employed by him in the store for the greater portion of 10 years. While away John had charge of the store. Charles was close in money matters and confided little in his wife as to his business and financial matters. About Thanksgiving Day, 1920, he became ill and John had full charge of the store until his death in the following month, at the age of 59 years. Shortly before his death complainant asked John if he knew anything about the bonds which her husband had raved about, and if Charles had left any bonds in the store or in John’s possession, and the latter replied that he knew nothing about any bonds and that Charles “was crazy and didn’t know what he was talking about.” After his death complainant and her brother, Horace Marshall, changed the locks on the store, and John turned over to complainant certain moneys received from sales made during Charles ’ illness. After complainant was appointed administratrix, late in December, 1920, she and her brother made an inventory of the stock on hand and also made searches for papers, etc., in the store, in which John at times assisted. John suggested that they be thorough “because of Charles ’ peculiar habit of hiding things.” At one time, during John’s absence, she and her brother discovered certain check books and canceled checks in Charles’ handwriting in a shoe box on one of the shelves, which complainant removed, and, upon John’s return, asked him if the contents of the box belonged to him and he replied in the affirmative. At another time they discovered a “Yukon” bond or certificate, which John stated Charles had given to him and that it was “the only thing he ever gave me, and he wouldn’t have given me that, only he knew it was of no value.” About a week after the searches, complainant, in the presence of her attorney and her brother and an inheritance tax attorney, opened Charles’ safety deposit box in the vaults of a Chicago Safe Deposit Company, and there found a certain memorandum (introduced in evidence) in his handwriting, which apparently is a list of bonds, giving the name and par value of each, the date of maturity, the rate of interest, the days of interest payments, the serial numbers, and the prices paid therefor. The aggregate par value of these bonds, appearing on the memorandum, is $22,550. There also was found in the box original bonds of the aggregate par value of $7,550, and all of these are mentioned in the memorandum. There also was found three envelopes, on which is printed the name of the Northern Trust Company and certain writings are indorsed thereon, giving descriptions of bonds which conform, as far as they go, to descriptions of bonds in the memorandum. Certain bonds described were not found in the box, and these, according to the description, are the bonds in question. On the memorandum appear the names of bonds of the Chicago Sanitary District, City of Milwaukee and Milwaukee County Hospital. On several occasions, after the contents of the box had been examined, both complainant and her brother asked John if he knew anything about Charles ever owning or having possession of, or if he knew anything about, bonds of the Chicago Sanitary District, City of Milwaukee, etc., and on each occasion John said he “knew nothing” about any such bonds. After the inventory of the store had been completed, John was employed by complainant to keep the store open and sell the stock, was given complete charge, and from time to time turned over to complainant receipts from sales from the stock. During June, 1922, citation proceedings were instituted in the probate court of Cook county against John Eichin, and on that heating Buresh was a witness. Shortly thereafter the present bill was filed.

On the hearing before the master, complainant also showed by the testimony of the witnesses, Fosdick, Brooks and Behrens, employees of the Northern Trust Company, supplemented by certain writings introduced in evidence, that, during the period from February, 1919, to and including January, 1920, Charles purchased the bonds in question from the bond department of the trust company, and that some of the canceled checks which had been found in the store in the shoe box (the contents of which John claimed was his property) were checks which had been given by Charles to the trust company in payment of some of the bonds. Buresh, an attorney practicing in Chicago, was called as complainant’s witness as to details concerning the execution of the trust agreement of October 4, 1920, and his receipt of the bonds in trust, and on cross-examination he testified to conversations had with John, at the time the bonds were delivered to the witness, to the effect that John said they had been given to John by Charles. Although much testimony had been taken by complainant up to this time, large portions of which being directed to the claimed purchase and ownership of the bonds by Charles, this was the first time it appeared from the testimony that John claimed Charles had made a gift of the bonds to him.

In October and November, 1923, while defendants were introducing evidence before the master, Buresh and Fred Eichin filed separate cross-bills, in which each alleged that the trust, created by said trust agreement, had expired by its terms on July 1, 1923, and that their respective interests in the bonds mentioned therein had terminated, and they “now” disclaimed having any further interest in the bonds or the litigation. The court sustained demurrers to these cross-bills. After these disclaimers, and after it transpired that John claimed the bonds by gift from Charles, practically the only ultimate question of fact to be determined was: Did Charles in his lifetime make a gift of the bonds to John?

On this issue several witnesses for defendants testified, to the effect that, commencing shortly after Charles’ marriage and continuing nearly up to the time of his death, Charles frequently had stated that his home life was unpleasant (as one witness put it— “a hell on earth”); that his wife was extravagant and did not perform her household duties as to cooking meals, etc., and that she was quarrelsome, etc. On objection to this line of testimony Buresh, taking an active part in the hearings notwithstanding his disclaimer, argued that such testimony was competent “to show the motive of Charles in getting rid of these bonds.” William Eichin, another brother of Charles, testified that several times during the year 1920, Charles had offered to give him certain bonds, but that he had refused to accept them. Fred Eichin testified that in October, 1920, Charles stated to him that he had better be good to his father (John) because the latter was going to have a lot of money some day. Other testimony of witnesses for defendants was introduced showing other claimed declarations of Charles made within a few months prior to his death, which testimony was afterwards stricken from the record as being incompetent. John Eichin on cross-examination admitted that, shortly after Charles’ death, complainant, as well as her brother and her attorney, had several times asked him about bonds belonging to Charles, and if he knew anything about any Sanitary District and City of Milwaukee bonds, and that he had replied that he did not; and further testified that he repeatedly had stated to them that he had no knowledge of any bonds; and that when the inquiries were made he did not know what bonds they referred to. Buresh also testified for defendant to the effect that because of the termination of the trust agreement by its terms on July 1, 1923, he had no interest whatever in the bonds mentioned therein, and that on October 7, 1920 (three days after said agreement had been executed and after he, as trustee named therein, had received them from John) he had a conversation with Charles, at the latter’s store, at which John also was present. He was asked to state what that conversation was, and over complainant’s objection, . was allowed by the master to do so, as follows: “We were talking about other matters, that is, I had other business of John F. Bichin’s, and when I got through with that Charles Eichin spoke to me and said, ‘You have taken care of John on that other matter, haven’t you?’ I hesitated for a moment, and he said, ‘On those bonds that I have given him.’ And I said ‘Yes.’ * * * There was something more said, and, as I recall, Charles said that he wanted John taken care of. ’ ’ Buresh further testified that on October 4, 1920, when he received the bonds from John, he had a conversation with him. On objection being made the witness was not allowed by the master to state what that conversation was, whereupon defendants’ solicitor made an offer to prove by the witness the following: That at the time that John Eichin brought the bonds over to the office of the witness, October 4, 1920, he stated to the witness: “Mr. Buresh, I have here these bonds that were given to me by my brother, Charles Eichin, for services that I have given him in the many years, and that at the time that he gave me the bonds, he said to me, ‘John, here are these bonds, I promised to make it up to you and here I am giving you these bonds. You have been faithful and worked for me for a good many years for very little money, and I hope you will enjoy them and take it easier for the rest of your life, and in about two or three years if you see business conditions better, it would please me if you took two or three thousand dollars of this money and started Fred out in business because I like the boy and I promised to help him. ’ ’ ’ The master ruled that only that portion of said statement of John Eiehin to the witness, viz, “I have here these bonds that were given to me by my brother, Charles Eiehin,” would be received in evidence, and that the remaining portion, being incompetent, should not be admitted. The witness further testified: “He (John) told me how he got them and for what. He also said, ‘They are mine.’ ” A similar ruling was made by the master as to similar testimony offered by the witness John Eiehin.

Counsel for defendants contends that the decree should be reversed and the bill dismissed for want of equity because neither the allegations of the bill nor the proof disclose a case for equitable cognizance and complainant has a complete remedy at law. In our opinion the contention is without' merit. It is well' settled that if a court of equity acquires jurisdiction on any equitable ground it will retain the cause and afford complete relief, although it becomes necessary to enforce purely legal rights. (County of Cook v. Davis, 143 Ill. 151, 155; Fleming v. Reheis, 275 Ill. 132, 137.) The bill prayed for a discovery, an accounting and a receiver, as well as for the possession of the bonds. Sufficient facts were alleged and proven showing the necessity for a discovery and an accounting and for a receiver. A fiducial relationship also was alleged to have existed between Charles Eiehin, before his death, and his brother, John, and also fraud on the part of the defendants. And the proof sufficiently showed that such a relationship existed; that Buresh was a mere trustee or stakeholder of the bonds for the use of John, and that John was guilty of fraud towards complainant, as administratrix, particularly in concealing the fact that over two months before Charles’ death he had become possessed of the bonds and claimed them as his own, and, in response to inquiries made by complainant and others after Charles’ death, stated that he knew nothing about any such bonds. We think that, under the facts as alleged and proved, the cause was a proper one for equitable cognizance. (Moore v. Brandenburg, 248 Ill. 232, 241; Grimes v. Hilliary, 38 Ill. App. 246, 247; Winona & St. P. R. Co. v. St. Paul & S. C. R. Co., 26 Minn. 179, 182; Eisentraut v. Cornelius, 134 Wis. 532, 537.)

And in our opinion there is no merit in counsel’s further contention that there is such a variance between the allegations of the bill, the evidence and the decree, as requires a reversal of the decree. Counsel argues that the allegations of fraud on the part of John Eichin and of the confidential relations existing between him and Charles were not sufficiently established. We think that they were. Counsel further argues, as we understand the argument, that, inasmuch as the decree finds that John Eichin claims to have become the owner of the bonds by gift from Charles prior to October 4, 1920, and that Charles did not make a gift of the bonds to John and that John never was the owner of them, and inasmuch as John’s claim of having received them as a gift is not mentioned in the bill, the decree is at variance with both the allegations of the bill and the evidence. Even if complainant knew, at the time she filed her bill, of John’s claim of ownership by gift from Charles, it was not necessary for her to mention that claim in her bill. (Morgan v. Smith, 11 Ill. 194, 200.) This was for him to set up in his answer, which he did not do, and' it was not until complainant had introduced much evidence showing Charles’ original ownership of the bonds that John’s claim of ownership by gift from Charles was made.

And we think that complainant sufficiently showed by competent evidence that Charles purchased the bonds of the Northern Trust Company, and had possession of them prior to October 4, 1920. This issue, however, was eliminated from the case when John’s claim (that he received them from Charles as a gift prior to said date) was first made during the hearing before the master, for, as said in Dickeschied v. Exchange Bank, 28 W. Va. 340, 360, “every person claiming title by gift necessarily admits that, up to the time when the gift was alleged to have been made, the chattel was the property of the donor.” And, John having made the claim, the burden was upon him to prove it by clear and convincing evidence. In 28 C. J. p. 660, § 61, it is said: “The actual delivery of negotiable bonds, with words or acts indicating a present absolute gift, constitutes a valid gift inter vivos.” In 28 C. J. p. 670, § 71, it is said: “The burden of proof is on one claiming to be the donee of property to establish all facts essential to the validity of such gift.” (See also Merchants’ Loan & Trust Co. v. Egan, 222 Ill. 494, 497; Gano v. McCarthy’s Adm’r, 79 Ky. 409, 411; Duckworth v. Orr, 126 N. C. 674, 676.) In Dickeschied v. Exchange Bank, supra, it is said: “The mere possession of the chattel, unaccompanied by proof of its delivery by the donor to the donee, is insufficient to establish a gift either inter vivos or causa mortis.” In 28 C. J. p. 682, §87, it is said: “Where the proof of an alleged gift rests upon the declarations of the donor; those declarations must be unequivocal, especially where the surroundings favor the wrongful acquisition of the property.” And on page 681, §86, it is said: ‘6 Gifts first asserted after the death of the donor are regarded with suspicion by the courts, and the rule requiring gifts to-be established by clear and convincing evidence is especially applicable in such cases, particularly where a confidential relation existed between the parties.” (See Humble v. Gay, 168 Cal. 516, 520; In re Estate of Turner, 244 Pa. 568, 572.) And, under all the facts and circumstances in evidence, as above outlined, we think that John Eichin did not sustain the burden of showing a valid gift of the bonds to him, and that the chancellor was fully warranted in finding in the decree that Charles before his death did not give the bonds to John, and that the latter never was the owner of them.

Complaint is made of certain rulings as to the admission and rejection of evidence. We have considered counsel’s arguments and are of the opinion that, if there were any errors as urged, they were not such as require a reversal of the decree. Complaint also is made of the action of the court in sustaining complainant’s demurrers to the cross-bills of Buresh and Fred Eichin, filed several months after July 1, 1923, wherein they disclaimed having any further interest in the bonds or in the litigation. It is argued that these cross-bills were proper as they presented a “defense” which arose after the issues, made by the bill and answer, had been formed. The “defense” was merely that, because July 1, 1923, had passed, they now disclaimed as stated. The disclaimers could have been made otherwise, and in fact were made otherwise, and the cross-bills were not necessary, and we do not think that the court erred in sustaining demurrers thereto.

Counsel makes the further contention, particularly on behalf of Buresh, that the court erred in taxing the costs against all the defendants. It is argued that, because Buresh was a trustee of the bonds for John under the trust agreement, it was his duty to “protect” his trust, but, even so, it was no part of his duty to actively assist, as he did, John and Fred in their attempt to establish John’s claims of ownership to the bonds, or in endeavoring to prevent complainant from establishing the fact that Charles had purchased the bonds and was the lawful owner of them prior to October 4, 1920, as Buresh did prior to the time that the claim wks first made on the trial that John had received the bonds from Charles as a gift. We do not think, under all the facts and circumstances, that the court abused its discretions in taxing the costs against all defendants. In 39 Cyc. 462, it is said: “A trustee stands in the same position as any other litigant with respect to costs; the general rule being that if trustees bring suits against strangers, or strangers bring suits against the trustees, respecting the trust funds, costs will be awarded against the losing party as in other suits.” And in 15 C. J. p. 101, § 198, it is said: “Costs on the trial should not be allowed against a defendant who is a mere stakeholder of the fund in controversy between plaintiff and the other defendant, at least, where he has acted throughout the transaction without any neglect or default of any sort; but where he wrongfully retains the funds, or actively defends the suit, he may be condemned for costs.” (See Knowles v. Knowles, 86 Ill. 1, 11; Waterman v. Alden, 144 Ill. 90, 107.)

Our conclusion is that the decree of the superior court of November 5, 1925, should be affirmed, and such will be the order.

Affirmed.

Fitch and Barnes, JJ., concur.


author: Mr. Justice Barnes

text:
    James Leber, Defendant in Error, v. Theodore A. Lindenberg and Lydia Lindenberg, Plaintiffs in Error.
    Gen. No. 31,231.
    1. Appeal and error — when judgment must he reversed as to all defendants. A judgment against a husband and wife for damages from personal injuries due to their negligent operation of their automobile, going to the jury on the first count of the declaration only as to the wife, if reversed as to the husband, must as a unit judgment be reversed as to both.

      2. Negligence — when husband, not liable for wife’s negligent operation of automobile. For personal injuries due solely to a wife’s operation negligently of an automobile owned by her husband and her, in his absence and without participation by him, the husband could not be held guilty on the ground of joint negligence with his wife.
    3. Negligence — when husband’s liability for wife’s negligence cannot be asserted on doctrine of respondeat superior. Without allegations in the declaration of an action for personal injuries from negligent operation of an automobile, showing the defendant husband should be liable for his wife’s negligence under the doctrine of respondeat superior but claiming their relationship that of joint tort-feasors, plaintiff cannot claim on the husband’s appeal that he was liable as a superior.
    Error by defendants to the Circuit Court of Cook county; the Hon. David M. Brothers, Judge, presiding.
    Heard in the second division of this court for the first district at the October term, 1926.
    Reversed as to both plaintiffs in error, remanded as to one only.
    Opinion filed March 29, 1927.
    Green, Brown & Rice, for plaintiffs in error; Charles E. Green, of counsel.
    Lewis, Adler, Lederer & Kahn, for defendant in error.
   Mr. Justice Barnes

delivered the opinion of the court.

The judgment under review was rendered for the plaintiff in a personal injury suit brought against a husband and wife as joint tort-feasors.

The case went to the jury as to the wife only on the first count of the declaration, and as to both defendants on the second count, the other counts having been dismissed out of the case. "

Both counts charged that the defendants controlled and owned an automobile and so negligently and carelessly operated it that it ran into an automobile in which plaintiff was riding, causing the injuries complained of. The second count differs from the first merely in the additional allegation that defendants operated their car at an excessive and dangerous rate of speed.

Each of the defendants filed a plea of general issue, and the husband a special plea of nonoperation of the automobile by him or his servant or agent.

The real and only issue thus presented was whether there was a joint act of negligence in the operation of the car. As at the close of plaintiff’s case the court denied the husband’s motion for a directed verdict finding him not guilty, and he stood by his motion and refused to put in any evidence, the first question for consideration is whether there was any evidence tending to prove a joint act of negligence, or any actual negligence by the husband. If not, there must necessarily be a reversal of the judgment as to the husband, and, as a consequence, also as to the wife, the judgment being a unit. (West Chicago St. R. Co. v. Morrison, Adams & Allen Co., 160 Ill. 288, 295; Supreme Lodge Knights of Honor v. Goldberger, 175 Ill. 19.)

The evidence adduced shows that defendants’ car was, on the occasion in question, driven and operated solely by the wife, in the absence of the husband, without any concert of action between them in its operation. On such a state of facts he could not be held guilty of a joint act of negligence in operating the car. (Mulchey v. Methodist Religious Soc., 125 Mass. 487; Warax v. Cincinnati, N. O. & T. P. Ry. Co., 72 Fed. 637; Helms v. Northern Pac. Ry. Co., 120 Fed. 389; Shaffer v. Union Brick Co., 128 Fed. 97; McIntyre v. Southern Ry. Co., 131 Fed. 985.)

The only evidence relied on to sustain the judgment as to him was to the effect that he was the actual owner of the car; that he bought it for the family use and convenience and that it was being used for that purpose with his knowledge and consent. On these facts counsel for plaintiff urges that the case comes "within the doctrine of respondeat superior and the rulings in Graham v. Page, 300 Ill. 40, and Gates v. Mader, 316 Ill. 313. The contention is based upon a misconception of the issues. The facts so relied on and the cases referred to involve only the doctrine of imputed negligence, and not the principle of liability in a case of joint tort-feasorship. The declaration here contains no allegations of any relationship to which the former doctrine is applicable. As it states a cause of action on the theory of joint tort-feasorship only, and not one on the doctrine of respondeat superior, neither the facts nor the authorities so relied on by defendant in error are pertinent to the issues raised by the pleadings. (McHale v. McQuigg, 236 Ill. App. 295; Van Meter v. Gurney, 240 Ill. App. 165.)

The court having erred in denying the husband’s motion, and the evidence having no tendency to establish his liability on the issues raised, it becomes necessary to reverse the judgment as to both defendants, and to remand the case only as to the wife, as to whom it was properly submitted to the jury.

This conclusion obviates the necessity of considering other alleged errors, and the weight of the evidence as to the liability of the wife.

Reversed as to both plaintiffs in error, remanded as to one only.

Gridley, P. J., and Fitch, J., concur.


author: Mr. Justice Pitch

text:
    Henry W. Fuchs et al., Plaintiffs in Error, v. David H. Daskal et al., Defendants in Error.
    Gen. No. 31,189.
    1. Corporations — when securities not within Class D. The court properly sustained defendants’ demurrer to a bill for the rescinding of a sale of securities alleged to belong to Class D under the Securities Act, Cahill’s St. eh. 32, UTf 262, 265, 289, which also alleged such sale was illegal thereunder, and that defendants made repeated sales of the securities, but which alleged facts showing only a single sale at one time by the bona fide owners of such securities, since the transaction was not within (Hass D, but Class B under Cahill’s St. ch. 32, If 258, which sale was legal without meeting the requirements for sales of Class D securities.
    2. Coepobations — when breach of escrow agreement does not furnish ground for relief under the Securities Law. An escrow agreement concerning securities classed as B under Cahill’s St. eh. 32, 258, and hence not requiring such an agreement, gives to one agreeing thereto no right to seek a remedy for a breach thereof by a bill to rescind a sale of the securities, joining with other purchasers therefor.
    Error by plaintiffs to the Circuit Court of Cook county; the Hon. Ira Ryner, Judge, presiding.
    Heard in the second division of this court for the first district at the October term, 1926.
    Affirmed.
    Opinion filed March 29, 1927.
    Harry A. Biossat, for plaintiffs in error.
    D ’Ancona & Pelaum, for David H. Daskal, George H. Daskal and David Davis, defendants in error.
   Mr. Justice Pitch

delivered the opinion of the court.

A general demurrer was sustained to complainants’ amended bill, filed under section 37 of the Illinois Se'curities Law, Cahill’s St. ch. 32, 270, and the complainants electing to stand by it, their amended bill was dismissed for want of equity. The question presented by this writ of error is whether the facts stated in the amended bill and admitted by the demurrer constitute a sale of securities in violation of that law.

It is alleged in the amended bill that the Bong Battery Corporation, a Delaware corporation, with á capital stock consisting of 100,000 shares of the par value of $10 each, issued 50,000 shares thereof in exchange for patent rights, good "will, promotion fees, and other intangible assets, and that on March 23, 1923, the owners of said 50,000 shares deposited the certificates representing the same in escrow with the Century Trust & Savings Bank, a depository designated by the secretary of state, as owners of such stock are required to do by section 12 of the Securities Act, Cahill’s St. ch. 32, jf 265; that the escrow agreement, a copy of which is attached to the bill as an exhibit, contains the provisions specified in section 12 of the Securities Act and the further provisions that said stock “will not participate in any dividends which may be declared or paid, unless and until such securities are qualified in Class ‘C’ under the Illinois Securities Law,” and that said securities “shall not be sold nor transferred directly or indirectly during the time said securities remain on deposit with the above named trustee, but that such deposit of such securities shall not affect the voting powers of the owners of such securities”; that the defendants David H. Daskal, George H. Daskal and David Davis each deposited 7,500 shares; that at the time of such deposit, they “were the owners of said 22,500 shares” and “continued to own same” until March 1, 1924, when they sold “their interest in and to said 22,500 shares” to the complainants for $13,000, of which sum five of the six complainants and eight of the thirteen defendants contributed specified amounts.

The bill further alleges that on April 12, 1923, the Bong Battery Corporation filed with the secretary of state a statement “in compliance with Paragraphs 1 and 13 of Section 9” of the Illinois Securities Law, signed by the defendant David H. Daskal as president, and David Davis as treasurer, in which it was stated “that it was proposed to issue and offer for sale a total of 40,000 shares” of the stock of that corporation, of which “it was proposed to offer for sale in the State of Illinois” 20,000 shares; that said stock was “then in the treasury” of said corporation, and that under the Illinois law “said 20,000 shares of said treasury stock of said Bong Battery Corporation was the only stock that said defendants or said corporation were legally entitled to sell in the State of Illinois under the statement and information filed” by them with the secretary of state; that the 22,500 shares of stock sold to complainants “was not Treasury Stock and was not the stock referred to in the statement and information filed” with the secretary of state, and it was therefore unlawful to sell “any part or portion of the stock deposited in escrow”; that the “sales” thereof to complainants “were a violation of section 36 of said act” and prima facie evidence of fraud; that complainants have elected to rescind the same, and therefore tender to the sellers “all interest in said escrow stock transferred” by them and demand the return of the consideration paid therefor. The bill prays that said “sales” be declared void and that defendants be required “to accept the assignments of interest in and to said escrow stock” and to pay back the sum paid therefor, together with reasonable attorneys’ fees.

Sections 9, 12 and 36 of the Securities Law, Cahill’s St. eh. 32, ¶¶ 262, 265, 289, mentioned in the bill and cited and relied on in complainants’ brief, refer in terms to Class D securities only. Section 9 forbids the sale of any security in Class D until certain “statements and documents” are filed in the office of the secretary of state. Section 12 provides that “If the statement as to securities in Glass ‘D’ shall disclose that any of such securities shall have been * * * issued for * * * intangible assets,” such securities shall be placed in escrow as therein provided. Section 36 provides that “It shall be unlawful for any officer, director, solicitor, broker or agent, to sell or offer for sale any securities in Glass ‘I),’ in any other manner or form than specifically set forth in * * * section 9 of this Act.”

As all these sections refer expressly and only to Class D securities, it is apparent that the legal conclusions alleged in the bill, as above stated, are correct only upon the theory or assumption that the transaction sought to be annulled was a sale of Class D securities, and this is the theory advanced by complainants’ counsel. If the transaction was one included in the statutory definition of securities in Class B, then the provisions of the statute relating only to sales of Class D securities have no application.

Section 5 of the Securities Act, Cahill’s St. ch. 32, ¶258, begins as follows: “Securities in Class ‘B’, being exempted sales, shall include: (1) An isolated sale of any security by a bona fide owner thereof, or his representative, for the owner’s account, such sale not being made in the course of repeated and successive transactions of a like character, and such owner not being a broker or dealer in securities or an underwriter of such securities; * * *.

“Securities when disposed of by the persons and in the manner provided by this section, shall not be subject to the provisions of this Act in such transactions.”

We think it affirmatively apear s' from the allegations of the bill above recited that the transaction in question was an isolated sale of securities made by bona fide owners, for their own account. There is no allegation that such owners were brokers or dealers in securities, or underwriters of such securities. There is an averment that they made “repeated sales” of their interest in the stock placed by them in escrow, but no facts are given supporting that statement. The facts which are given show a single transaction only— a sale made at one time (March 1,1924) of their whole interest in the escrowed stock to complainants for “the sum of $13000.” If the facts thus properly alleged are true, the sale was certainly not a sale “made in the course of repeated and successive transactions of a like character,” for, on the facts stated, there could be only one such sale, and the demurrer admits only such facts as are well pleaded. It follows, we think, that the transaction which the bill seeks to annul is by the terms of section 5 of the Securities Act expressly exempted from the provisions and penalties of that act.

While, by the terms of the escrow agreement, the owners of the stock in question agreed that it should not be sold or transferred directly or indirectly while it remained in escrow, the statute does not require such an agreement to be made. Only one of the complainants was a party to that agreement. His remedy, if any, is not in this proceeding. The bill is not drawn on that theory and states no ground for equitable relief on that score.

For the reasons stated, the decree is affirmed.

Affirmed.

Gridley, P. J., and Barnes, J., concur.