author: Mr. Presiding Justice Wolfe

text:
    In re Estate of Peter L. Brady, Deceased. Thelma Brady, Appellant, v. Jeanne M. Furst and Charles F. Borchers, Appellees.
    Gen. No. 9,453.
    Heard in this court at the May term, 1939.
    Opinion filed January 8, 1940.
    Green & Wheat, of Freeport, and Robert J. Schmelzle, for appellant.
    Burrell & Burrell, of Freeport, for appellees.
   Mr. Presiding Justice Wolfe

delivered the opinion of the court.

Peter L. Brady was a resident of the State of Missouri. For many years prior to his death, he was in the habit of driving his automobile from his home into the State of Wisconsin, and in doing so, drove through the State of Illinois. On September 7, 1936, while passing through Stephenson county, Illinois, he was in an automobile accident, which caused his death. His automobile collided with the automobile owned and driven by Frank E. Furst of Freeport, Illinois. Frank E. Furst was killed and Jeanne M. Furst and Eleanor McNary, the occupants of his car, were injured. Shortly after the accident (in September 1936), Vincel A. Brady, the son of Peter L. Brady, sold the automobile, which had belonged to his father, for junk, for which he received the sum of $50. He used all of the sale price of said automobile to pay doctor bills in Freeport. These bills were also paid in the month of September 1936. Shortly after the bills were paid in Illinois, the Brady heirs took out letters of administration on the estate of Peter L. Brady in St. Louis, Missouri. So far as the record shows, there was no personal property of any kind upon the body of Peter L. Brady, at the time of his death.

Peter L. Brady died leaving no heirs in the State of Illinois, but had two heirs, one a son Vincel Brady, who lived in Wyoming, and another an adopted daughter, Thelma Brady, in the State of Missouri. No administration was taken out in Illinois, on the estate of Peter L. Brady, until February 1, 1937, when Charles F. Borchers, public administrator of Stephenson county, filed his petition in the county court of said county, requesting his appointment as administrator of the estate of Peter L. Brady, and on the same day, the said Charles F. Borchers was appointed such administrator. On the same day that Charles F. Borchers was so appointed as administrator, three actions ex clelicto were filed in the circuit court of Stephenson county, Illinois, by Florence E. Furst, executrix of the will of Frank E. Furst, deceased, Jeanne M. Furst and Eleanor Mc-Nary, respectively, each of which actions named as a defendant, Charles F. Borchers, administrator of the estate of Peter L. Brady, deceased. These actions were all filed by the law firm of Burrell & Burrell of Free-port, Illinois, who had also counseled and advised Bor-chers in Ms petition for letters in the Brady estate, wMch petition was drawn in the Burrell office and notarized by Carrie G. Niles, a notary public employed by Burrell & Burrell as a stenographer. The suits have all been prosecuted to judgments.

On the 17th day of March, 1937, Thelma Brady, the adopted daughter and one of the heirs of the deceased, filed her petition in said Stephenson county, county court praying that the appointment of Charles F. Bor-chers as such administrator, be vacated and set aside and the letters so issued to him, be revoked. On the 27th day of September, 1937, Orion M. Grove, acting county judge of Stephenson county, Illinois, ordered that the appointment of Charles F. Borchers as such administrator of the estate of Peter L. Brady, be vacated and set aside and that the letters of admiMstration be revoked. On the same day, Jeanne M. Furst who claimed to have an action for damages for personal injuries against the estate of Peter L. Brady, deceased, appealed from the order of the county court, revoking the letters of admimstration issued to Charles F. Bor-chers, to the circuit court of Stephenson county. On January 5,1939, the circuit court ordered and decreed that the order of the county court revoking the appointment of Charles F. Borchers, be overruled and that said appointment be in all respects affirmed. It is from the order of reinstatement of Charles F. Borchers as such admiMstrator, that the appellant herein, perfected an appeal to tMs court.

The appellees have heretofore filed a motion to dismiss the appeal, stating numerous grounds to sustain their motion. The motion was taken with the case and the same is hereby overruled. The appellees state in their printed brief (and the appellants concur in the statement), “The sole question in this case is the legality of the appointment of the public admimstrator.” TMs, we take it, is the only issue involved in this case. The learned counsel, either for the appellant or ap-pellee, has been unable to find any case, either in our own State, or other States, where this precise question has ever been passed upon. The most recent expression of either our Supreme or Appellate Courts, which have passed upon similar questions, is the case of In re Estate of Trost, 292 Ill. App. 60. There are several cases, both in our own State and other States, which have sustained the propositions of law, as laid down by the Appellate Court in that decision. In all of the cases which have been called to our attention, the party was a nonresident, but killed in the State of Illinois, leaving a small amount of personal property. The public administrator was appointed to administer the estate and would then sue someone for the wrongful death of the decedent. The person sued attempted to have the suit dismissed because there was no necessity for the administration of the estate. The courts have uniformly held that this is a collateral attack upon the order of the probate court in granting letters of administration and such appointment cannot be so attacked. Our attention has not been called to any case where there has been a direct attack on such administration where the courts have held that it was valid.

In the case of Cotterell v. Coen, 246 Ill. 410, our Supreme Court in discussing the purpose and object of requiring administration, use this language: ‘1 The purpose and object of requiring administration to be had upon the estates of persons dying intestate is to provide fqr and insure, first, the conservation of all the personal assets of the estate, including the collection of all debts due the decedent; second, the payment of all the debts of the decedent; and third, the proper distribution of the residue among the heirs-at-law, according to the Statute of Descent. Administration is not necessary in every estate, and the statute applies only to those cases where it is necessary. No administration is necessary if the property of the estate is of less value than the cost of administration. We have held that administration is not necessary in the estate of a minor who died intestate at an age when incapable, in law, of contracting any indebtedness, and that in snch case the personal estate of the deceased minor vested immediately in the heirs-at-law. (Lynch v. Rotan, 39 Ill. 14; McCleary v. Menke, 109 id. 294.) And we have also held that where there are no unpaid debts and no claims or demands due the estate, and one person is the sole' heir, no administration is necessary, but the heir is entitled to the immediate possession of the assets of the estate. Lewis v. Lyons, 13 Ill. 117.”

In the case of Dupee v. Follett, 304 Ill. 166, p. 168, we find this language: “We cannot agree that the statute is mandatory in all cases where the heirs have not exercised their right within sixty days. It was decided by this court in Cotterell v. Coen, 246 Ill. 410, that the public administrator had no right to be appointed administrator of Cotterell’s estate although more than sixty days had elapsed since the death of the intestate, and his children and grandchildren, his only heirs, had not exercised their right to nominate an administrator. In that case the adult heirs and guardian of the minors had agreed to settle the estate without administration and never at any time requested the appointment of an administrator. This court said they might do that; that the statute did not contemplate that all estates must be administered, and that the public administrator had no right to the appointment.”

Later in Martin v. Central Trust Co., 327 Ill. 622 at 633, the court in discussing the purpose of the administration act have this to say: “Although the purpose of our Administration act is to facilitate the early settlement of estates, it is not always necessary. It is competent for all the heirs of the deceased person, if they are of age, to settle and pay the debts of the deceased and divide the property among themselves without the intervention of any administration whatever, and neither a debtor nor a creditor has a right to complain.” Following this is a number of Illinois citations, among them being Cotterell v. Coen, 246 Ill. 410.

In the case of People v. Abbott, 105 Ill. 588, the court in discussing administration, of estates says, that the probate court in allowing claims against the estate, is not limited to the technical legal rights of the parties, but should act upon their equities also, and that in granting administration in an estate, it should also exercise equitable power in so acting. On page 593 of the opinion, we find this language: “ £We concur fully with the Supreme Court of Pennsylvania, in Walworth v. Able, 52 Penn. 370, and with the Supreme Court of Missouri, in Farrar v. Dean, 24 Mo. 16, that where there are no debts at the time letters of administration are granted, and no question of distribution requiring the intervention of an administrator, the expenses of administering, — the result of unnecessary interference, — can not be regarded such a debt as would justify a proceeding to sell the lands. Such costs and expenses are not due by the deceased, and only arise from the officious and unnecessary intermeddling of the administrator.’ ” If this be sound, it must necessarily rest upon the principle that in such case there was no legal necessity for the appointment of the administrator, for if there was a legal necessity for his appointment, the consequent costs would, manifestly, be a legal charge against his estate; but there being no debts to pay, and no personal estate to distribute, there was nothing for an administrator to do. Under the facts found, there was as little here for an administrator to do, as there. The debts were all paid by the husband, and he was the sole heir of the personal property. Being in possession, there was no need of an administrator to obtain possession. It is true an administrator is the proper party to sue upon notes payable to the intestate, as held in Leamon v. McCubbin, 82 Ill. 263; but where no such suits are to be brought, there can, of course, be no necessity for an administrator for that purpose,. Other cases of like effect are VanMeter v. Illinois Merchants Trust Co., 239 Ill. App. 618; Bremer v. Lake Erie & Western R. Co., 234 Ill. App. 105. One of the cases relied upon by the appellees, the late case of In re Estate of Trost, 292 Ill. App. 60, recognizes this principle of law, for on page 68 of the opinion we find the following: “Administration is not necessary in

every estate, and the Statute applies only. to those cases where it is necessary; the necessity therefore being dependent upon the particular facts of each case, unless and until the contrary appears in a direct proceeding upon an objection by a party or parties interested in the administration or disposition of the estate, as heir, 'creditor or otherwise, the probate court making the appointment will, in the absence of fraud, be presumed to have acted within its jurisdictional power. ’ ’

In the present case, the petition filed by the public administrator for letters of administration on the Peter L. Brady estate was in the proper form and the court properly appointed the public administrator in said estate. The adopted daughter of Peter L. Brady, deceased, came into the county court of Stephenson county and made a direct attack upon the legality of such administrator, claiming at the time, that Charles F. Borchers was appointed administrator of the estate, that there was no property whatsoever, in the State of Illinois, to be administered upon; that the automobile belonging to Peter L. Brady at the time of his death, had been sold and that the proceeds had been used by the heirs to pay the debts of the estate of Peter L. Brady, and at the time the letters were granted, there were no debts whatsoever, of the estate of Peter L. Brady in the State of Illinois. The proof upon the hearing before the circuit court sustained all the allegations of the appellant’s petition. The evidence shows without any question, that the insurance policy mentioned in the petition for administration at the time the petition was filed for letters of administration, was not in the State of Illinois, and so far as the records show, never had been and it was not upon the person of Brady at the time he was killed. There was no personal property in the State of Illinois, and no debts of the decedent at the time the petition was filed for letters of administration.

It is our conclusion that the circuit court erred, in reversing the order of the county court of Stephenson county vacating and setting aside the appointment of Charles F. Borchers as administrator of the estate of Peter L. Brady, deceased, and revoking said letters of administration.

The judgment of the circuit court of Stephenson county is hereby reversed.

Reversed.


source: Caselaw Access Project

author: Mr. Presiding Justice Matchett

license: Public Domain

text:
    Home Life Insurance Company, Appellant, v. Charles H. Franklin, Appellee.
    Gen. No. 40,744.

      Heard in the first division of this court for the first district at the June term, 1939.
    Opinion filed January 22, 1940.
    Rehearing denied February 5, 1940.
    Burke, Jackson & Burke, of Chicago, for appellant; Edmund W. Burke and Richard G. Finn, both of Chicago, of counsel.
    Lambert Kaspers, of Chicago, for appellee.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.

In an action to recover rent, interest and attorneys ’ fees under written lease, upon trial by jury there was a verdict for defendant with judgment. The defenses interposed were that at the time of the leasing the heating plant was known by plaintiff to be defective and that this was concealed from defendant; further, that an oral release, followed by surrender of the premises, had been given.

On trial the lease was introduced with prima facie proof of the amount due. The lease appears to have been executed on July 25, 1936, demised a two-story brick residence and garage at 445 Creen Bay road in Glencoe for use as a private residence, for,rent of $125 per month, payable in advance at the offices of Quinlan and Tyson, Inc. in Evanston. The lease was for a term of two years beginning October 1, 1936. Defendant went into possession and paid rent until May 1, 1937. He moved and refused to make further payments.

It was stipulated that plaintiff had been the owner of the premises since December, 1932; that Quinlan and Tyson, Inc. was plaintiff’s agent, and that Mr. Gibson, an employee of the agent, was authorized to deal with defendant.

John T. Henry, a former tenant, occupied the premises from April 19, 1933 to March, 1934. While such tenant he informed plaintiff that the heating plant was defective. Plaintiff investigated and found the complaints of Henry justified. As a consequence, a new oil burner was installed about April 30, 1934, and a new combustion chamber was installed also and the plant scientifically tested. It is stipulated three other tenants occupied the premises prior to the lease made to defendant. No one of these tenants at any time complained of any defect in the heating plant.

Defendant caused the deposition of Henry to be taken and on the trial offered it in evidence. It purported to describe the imperfect manner in which the heating plant functioned during Henry’s tenancy. Plaintiff objected unless the conditions as described by the witness were connected up with the condition of the premises at the time of the lease, namely, July 25, 1936. Defendant promised to connect it up but did not do so. Plaintiff made a motion to strike this evidence, which was denied. This was reversible error. Willson v. Logan, 139 Ill. 204; Rotche v. Buick Motor Co., 358 Ill. 507; Merchants’ Loan & Trust Co. v. Boucher, 115 Ill. App. 101; Swift & Co. v. Rennard, 119 Ill. App. 173; Streeter v. Humrichouse, 261 Ill. App. 556.

Plaintiff caused the depositions of defendant and Mrs. Franklin to be taken under rule 135a of the municipal court, providing for discovery upon oral interrogatories. Plaintiff did not file the depositions in court. Defendant obtained a rule upon plaintiff to do so. At the trial Mr. and Mrs. Franklin were both present and testified. Plaintiff did not offer these depositions in evidence. Defendant offered them and they were received over plaintiff’s objection not only to the depositions as a whole but as to specific answers to particular questions. All objections were overruled, the court holding plaintiff might not object to any question or answer unless objection was made thereto upon the taking of the deposition. Buie 135a of the municipal court is found in Part XI, entitled “Discovery by Deposition and Interrogatories.” The rule is in four paragraphs. The first provides the deposition may be taken in the manner provided by law for taking chancery depositions; paragraph three, that the party taking the deposition on demand of the opposing party shall cause it to be filed; paragraph four, that the party taking the deposition without justification shall pay the costs. The use which may be made of such depositions is authorized by rule 149, which provides that any party may use in evidence any one or more of the answers or any part of an answer of any other party or person “to interrogatories propounded by Mm,” as provided by rules 131 and 135a, without putting in the others or the whole of such answer. Plaintiff argues it was improper to permit the whole deposition to be put in evidence by defendant while defendant himself and Mrs. Franklin were present and testified on the trial that the effect of this was to permit the testimony of defendant and Mrs. Franklin to be given twice to the jury. These rules of the municipal court are intended (substantially) to perform the same functions as Supreme Court Bules 17, 18 and 19, adopted in conformity with section 58 of the Civil Practice Act (Smith-Hurd Ill. Ann. Stats., ch. 110, par. 182, p. 502, sec. 259.19 [Jones Ill. Stats. Ann. 104.058, 105.19]; Revised Rules of the Municipal Court, p. 108). The general rule is that depositions are taken de bene esse, subject to the contingency of the witness not being able to attend the trial. R. C. L., vol. 8, p. 1136. Many cases, none of which are in Illinois, so hold. Cote v. Sears, Roebuck & Co., 86 N. H. 238, 166 Atl. 279; Dailey v. Lexington & E. R. Co., 180 Ky. 668, 203 S. W. 569; Schmitz v. St. Louis I. M. & S. Ry. Co., 119 Mo. 256, 24 S. W. 472; Beem v. Farrell, 135 Iowa 670, 113 N. W. 509; Nauts v. Stahl, 128 Ohio St. (Nisi Prius) 115. These decisions seem to be based upon the theory that the depositions are only secondary evidence. There are Illinois decisions which seem to hold, however, that depositions are original evidence. Frink v. Potter, 17 Ill. 406; Bradley v. Geiselman, 17 Ill. 571; Illinois & Mich. Canal v. Adler, 49 Ill. 311; Kristel v. Michigan Cent. R. Co., 213 Ill. App. 518; and section 34 of the Evidence Act (Smith-Hurd Ill. Ann. Stats., ch. 51, p. 831 [Jones Ill. Stats. Ann. 107.099]) would seem to sustain this view. It has, however, been suggested that the Supreme Court might possibly hold that section 34 of the Evidence Act applies only to the taking of depositions for discovery and not to their use at the trial. Ill. Law Rev., vol. 28, 1933-34, p. 184. These depositions were taken pursuant to rules of the municipal court. In Ptacek v. Coleman, 364 Ill. 618, the Supreme Court held that the municipal court of Chicago under sections 19 and 20 of the Municipal Court Act has power to make its own rules, and that those prescribed under the Civil Practice Act are not applicable except when adopted by the municipal court. While the depositions were filed in court and could be used for proper purposes, such as impeachment, or possibly admissions, we think it was not proper practice to permit the defendant to introduce and read the whole of them to the jury and at the same time testify orally. In using these depositions defendant was not attempting to put in evidence the “answer of any other party.” He was offering his own answers. He was not putting in answers to interrogatories propounded “by him” but interrogatories propounded by the opposite party. Such practice, if adopted, would make the taking of the evidence of the opposite party upon oral interrogatories prior to the trial and for purposes of discovery extremely hazardous. We are disposed to hold the court erred in this ruling also.

Defendant offered in evidence and the court, over objection of plaintiff, received a series of letters written by defendant concerning the matters in controversy between them. The letters were not part of a mutual correspondence and contained many self-serving declarations. The first of these letters was written on October 5, 1936, and the last after defendant had moved out of the property and this controversy between the parties was under way. In a letter dated April 15, 1937, defendant said in part:

“Our position is that it is not possible .to live in the house when the furnace is on, that the house should not have been rented to us in the condition it was and is now in, and finally we could not conscientiously rent the house in its present condition to anyone else. The responsibility for renting the house without making the necessary changes in the heating plant must rest on the landlord and the renting agents. We refuse to accept any responsibility for what may happen nor for rent after May 1, 1937, and as stated before will not sublease the house. In conclusion, it was our understanding* that the Home Life Insurance Company had left the matter entirely in your hands to do as you pleased under all the circumstances. As you know, we have been inconvenienced and have suffered enough in health last winter until we were really driven out of the house. The effect of the oil fumes is apparently cumulative and without we had left when we did the results might have been very serious. If you had put in a new furnace and done any other necessary things in connection therewith, we would have gladly stayed in the house.

‘ ‘If you insist upon your present position, we shall have to place the matter in the hands of a lawyer to defend our just interests.” This letter was purely self-serving and inadmissible. Of the many cases which might be cited are City of Chicago v. McKechney, 205 Ill. 372; George J. Cooke Co. v. Fred Miller Brewing Co., 316 Ill. 46; Schwarzschild & Sulzberger Co. v. Pfaelzer, 133 Ill. App. 346; Illinois Tuberculosis Ass’n v. Springfield Marine Bank, 282 Ill. App. 14. In the Schwarzschild case Judge Baker said that there was no just distinction between oral conversation and written correspondence in this respect; that the question of whether certain letters werei admissible in favor of plaintiff turned upon the question whether such letter was helpful or necessary to the understanding of the answer thereto. If it was helpful or necessary or useful in ascertaining or completing the sense of the answer, then it was admissible, but if not, it was inadmissible. These letters, the record indicates, were admitted without even undertaking to ascertain the contents of them, and their admission must be held to be reversible error.

Plaintiff also contends the court erred in instructing the jury that as a matter of law the burden of proof was on the plaintiff to prove his case by a preponderance of the evidence, etc. The instruction directed a verdict and plaintiff says since the only defenses offered by defendant were affirmative in their nature this was erroneous, citing Rich v. Naffziger, 248 Ill. 455; Cutler v. Pardridge, 182 Ill. App. 350; Burns v. Landrum, 238 Ill. App. 191. However, rule 171 of the municipal court provides that objections to the instructions must be made before the jury retires and the objector must specifically point out wherein the part objected to is erroneous and must indicate clearly the correction desired to be made. No such objection was made to this instruction and in view of the rule of court the instruction cannot now be urged here. Greenburg v. S. D. Childs & Co., 242 Ill. 110; Zeman v. North American Union, 263 Ill. 304; Illinois Tuberculosis Ass'n v. Springfield Marine Bank, 282 Ill. App. 14; Zorger v. Prudential Ins. Co. of America, 282 Ill. App. 444.

It appears from the foregoing that this judgment must be reversed. Plaintiff, however, contends as a matter of law that it is entitled on this record to judgment in this court for the amount of its claim. It says in the first place there was no evidence from which the jury could reasonably find for defendant on the issue as to whether there was fraud on the part of plaintiff in concealing from defendant alleged defects in the heating plant. It argues that in leasing the premises the rule of caveat emptor was strictly applicable, citing the general rule as stated in the American English Encyclopedia, 2d Ed., vol. 18, p. 613, et seq. and Illinois cases following that rule. Russell v. Clark, 173 Ill. App. 461; Cromwell v. Allen, 151 Ill. App. 404; Lazarus & Cohen v. Parmly, 113 Ill. App. 624; Carpenter v. Stone, 112 Ill. App. 155; Soibel v. Oconto Co., 299 Ill. App. 518. The written lease is under seal and recites that the lessee has examined and knows the condition of the premises and has received them in good condition except as specified and there are no specifications. By the terms of the lease the lessee agrees to keep the premises in repair. Mr. Franklin testified that he read this clause of the lease before he signed it and knew what it meant. He also said that no representations were made as to the condition of the heating equipment by plaintiff or its agents. He said., “They took me down and showed it to me, and I suppose we had some chatter, and I assumed it was all right. ... I don’t remember any specific conversation or any representations about the heating equipment.” Clearly there is no proof of fraudulent concealment, and there is an absence of evidence tending to show plaintiff or its agents had any reason to believe the heating equipment was defective at the time the lease was executed. Defendant says, however, that the jury could reasonably find in its favor on the theory that the actual condition of the heating plant amounted to constructive eviction. He says that the theory of caveat emptor is not applicable and that Gibbons v. Hoefeld, 299 Ill. 455; Kinsey v. Zimmerman, 329 Ill. 75; Automobile Supply Co. v. Scene-In-Action Corp., 340 Ill. 196, have in effect overruled prior cases holding the rule of caveat emptor applicable. Scudder v. Marsh, 224 Ill. App. 355; Allmon v. Davis, 248 Ill. App. 350, are also relied on. All these cases follow the rule stated in Gibbons v. Hoefeld, a case where the plaintiff landlord demised premises for use in carrying on a retail clothing business, the lessee covenanting the lessor would have the right to enter in to make repairs and alterations as stipulated in the lease, and that the lessee could not make repairs without the lessor’s written consent. At the time the lease was executed the building was in process of construction. Before it was ready for occupancy water began to come into the basement to an extent which made it impossible to carry on the business for which the premises were demised. Defendant lessee refused to go into possession. Whereupon, the lessor promised to repair and put the walls in a satisfactory condition and make them watertight. Relying on this promise defendant took possession and paid rent. The lessor did not make the walls watertight. The water came in to such an extent that the lessee was compelled to remove from the premises. The court held this amounted to constructive eviction and that the lessor could not collect rent. In Automobile Supply Co. v. Scene-In-Action Corp., the lessor covenanted to furnish heat, which he failed to do. There is no covenant of that kind in this lease. In Scudder v. Marsh the evidence showed the lessor knew the premises had a defective furnace, and the lessee did not and could not know of the defect. What the lessor knew in that case the lessor here did not know. It had every reason to believe the heating plant was adequate. In Allmon v. Davis the demise was of a two-apartment building in Chicago. The lessor covenanted to repair and remodel the building and exterminate rodents. The lease provided the premises were to be used as a dwelling. The evidence showed it was impossible at any time to get water for the use of the occupants either for drinking or bathing. Following, the case of Gibbons v. Hoefeld and these other cases, we held this amounted to a constructive eviction. All these cases are distinguishable. As a matter of fact, this defendant occupied the premises during the winter and moved out only upon the coming of the milder season of the year. Three prior tenants, after the premises had been repaired, occupied the building without complaint. We must hold as a matter of law there was no fraud and no constructive eviction. The lessor by this lease did not covenant or agree to furnish heat.

There remains, however, the second question as to whether the jury could on the facts find that plaintiff released defendant from the obligations of the lease upon his surrender of the premises. As to this plaintiff contends that as the lease was under seal it could not be released by parol agreement except by another agreement based on a valuable consideration and the cases cited so hold. It is equally well settled that such a lease may be discharged or released by parol agreement for a valuable consideration and that the surrender of the premises may be such a consideration. Plaintiff questions the authority of Quinlan & Tyson to release defendant and accept the surrender of the premises. It cites Scanlan v. Hoerth, 151 Ill. App. 582, where the evidence showed the agent had only authority to collect. Here the agents were not only agents to collect but also to manage the property. It is stipulated their employee, Gibson, was duly authorized to act in their behalf during defendant’s occupancy. Moreover, plaintiff wrote defendant: “We must rely on our managing agents when we are so far removed from the scene of action.” We think the jury could reasonably find that there was sufficient authority. Northern Ill. Coal Corp. v. Cryder, 361 Ill. 274; McNeill v. Harrison & Son, Inc., 286 Ill. App. 120.

As the case must be tried another time we shall not discuss the weight of the evidence as to whether there was an agreement to release defendant from his obligations under the lease. Both Mr. and Mrs. Franklin testified positively to such an agreement which is denied by witnesses for plaintiff.

For the errors indicated the judgment will be reversed and the cause remanded.

Reversed and remanded.

O’Connor and McSurely, JJ., concur.


text:
    I. Peterson and Paul Peterson, Trading as I. Peterson and Son, v. Angela Minnec et al. Herman C. Sievers, Appellee, v. John Minnec and Josephine Minnec, Appellants.
    Gen. No. 40,754.
    Heard in the first division of this court for the first district at the June term, 1939.
    Opinion filed January 22, 1940.
    Arthur H. Jones, of Chicago, for appellants.
    Markman, Donovan & Sullivan, of Chicago, for appellee; John A. O’Neil, of Chicago, of counsel.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.

This appeal is by John M. Minnee and Josephine Minnee, husband and wife, from an order of the circuit court directing a writ of assistance to issue to the sheriff for eviction from the premises located at 2721 Wesley avenue, Berwyn, Illinois, of John Minnee, Angela Minnec, Josephine Minnec, Elena Salerno, Francisco Salerno, with other parties now occupying the premises. The order was entered upon the petition of Herman Sievers. Sievers held a mortgage on the premises. He and John M. Minnec were made defendants to a bill to foreclose a mechanics’ lien against it, brought by I. Peterson and Son. Sievers answered the bill and filed a cross-bill to foreclose his mortgage. At that time John M. Minnec and Angela Minnec (his then wife) were in possession of the premises and were made defendants to the cross-bill. A receiver was appointed, and a decree of foreclosure was entered on March 29, 1929. The premises were sold on April 23, 1937, to Sievers, and at the expiration of the period of redemption he received a deed from the master. O. B. Johnson, the receiver, remained in possession pending the period of redemption and by order of court John M. Minnec paid rent to the receiver at the rate of $30 per month. Angela Minnec died pending the litigation. Defendant John M. Minnec thereafter married Josephine Salerno, his present wife and co-appellant.

On March 17, 1938, Elena Salerno, a sister of the present wife, Josephine, obtained a quitclaim deed to the premises from one Harry Krauspe. The answer of Josephine says that Elena moved in immediately after receiving the deed. If she did so, it is apparent it must have been by permission from John M. Minnec, who was paying rent to the receiver up to the expiration of the period of redemption. Josephine Minnec claims that after receiving the deed from Krauspe, her sister, Elena Salerno, made a lease demising to her (Josephine) a portion of the premises and that she took possession of all of it except a portion received by Elena Salerno. Josephine, therefore, claims right to possession under a lease from her sister, Elena Salerno, and Elena claims to be in possession of the balance as owner.

The matter was heard upon the petition of Sievers and the answer of Josephine Minnec. The court also heard oral evidence. It is now contended that in the absence of a replication to the answer it was error to hear such oral evidence. No objection was made on this ground at the hearing, and the point was waived. Piot v. Davis, 241 Ill. 434, 439; Dempsey v. Burns, 281 Ill. 644, 652. It is urged that the court erred in ordering the writ of assistance to issue and authorities are cited to the effect that as grantee from Krauspe, who was the holder of a tax, deed, Elena Salerno took title in fee simple. Woitynek v. Franken, 300 Ill. 418; McConnell v. Jones, 332 Ill. 620. All this is beside the point. The proceeding was not one to try title but to determine summarily the right to possession. The court was justified in finding that Josephine and Elena, one the wife and the other the sister-in-law of defendant John M. Minnec, who had attorned to the receiver, were let into possession by him and took pendente lite while the foreclosure was as to them lis pendens. A defendant’s relatives cannot defeat a court proceeding-in this way. Goldstein v. Weisberg, 258 Ill. App. 228; First Nat. Bank v. Bryn Mawr Beach Bldg. Corp., 365 Ill. 409; Chicago Title & Trust Co. v. Maruszczak, 298 Ill. App. 283, 288. The order will be affirmed.

Affirmed.

O’Connor and McSurely, JJ., concur.


text:
    Eunice E. Erickson, Appellant, v. John Ginocchio et al., Appellees.
    Gen. No. 40,766.

      Heard in the first division of this court for the first district at the June term, 1939.
    Opinion filed January 22, 1940.
    Rehearing denied February 5, 1940.
    John E. Erickson, of Chicago, for appellant.
    Eugene C. O’Reilly, of Chicago, for appellees; Eugene F. Jewett, of Chicago, of counsel.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.

This is an appeal by the assignee of a mechanics’ lien claimant from an order entered December 19,1938, setting aside a 'decree of foreclosure entered in her favor on December 2, 1938. The facts will be best understood related in time sequence.

On November 17,1922, Ruth Elizabeth G-loor Wilson was the owner of premises in Cook county, and on that date executed a trust deed to the Chicago Title and Trust Company, as trustee, to secure an indebtedness represented by a note for $15,000, due in five years. A bill was brought in the circuit court of Cook county to foreclose this trust deed by the owner, Hannah Wertheimer. Ruth Elizabeth Gloor Wilson et al., were made defendants. On February 27, 1934, a decree of sale and foreclosure was entered and on June 5, 1934, the premises were sold pursuant to the decree. On September 5, 1935, John Ginocehio, a creditor of Ruth Elizabeth Gloor Wilson, redeemed the premises from the sale through the office of the sheriff of Cook county and received a deed from the sheriff pursuant to statute. On April 20, 1935, Ruth Elizabeth Gloor Wilson made an oral contract with the plaintiff’s assignor for painting, decorating and other work to be done upon the premises. In compliance with this contract the assignor completed the work on or about June 26,1935, and there is due to plaintiff, as assignee of the contract, the balance unpaid of $529.93. The assignor duly filed his claim for lien in the office of the clerk of the circuit court and upon default in payment, on March 9, 1937, complaint was filed by the assignee in the circuit court to foreclose the lien.

The cause was referred to a master, who reported in favor of the lien claimant. Objections were overruled and standing as exceptions before the chancellor were also overruled by him. On December 2, 1938, a decree of foreclosure and sale was entered. Pending the proceeding for the foreclosure of the lien a conservator was appointed for the estate of Ruth Elizabeth Gloor Wilson and she thereafter passed away. Her death was suggested and her personal representatives substituted. Prior to the entry of the decree of December 2, 1938, the suit was dismissed as against these representatives. Thereafter, Ginocehio petitioned the court for rehearing and that the decree might be set aside. His petition was granted. Evidence was taken, the substance of which is above recited. On December 19, 1938, the court entered an order finding that neither Ruth Elizabeth Gloor Wilson, deceased, nor her heirs or devisees, if any, were party or parties to the' proceeding; that they and each of them were necessary parties; that the court was without jurisdiction of the subject matter, and the decree of December 2, 1938, be set aside. This appeal followed.

The question is squarely raised whether the owner of a right of redemption may by contract of the kind disclosed here, made pending a foreclosure and after a sale as against the redeeming creditor, subject the premises to a lien under section 1 of the Mechanics’ Lien Act. Section 1 of the Mechanics’ Lien Act expressly provides that it shall “extend to an estate in fee, for life, for years, or any other estate or any right of redemption, or other interest which such owner may have in the lot or tract of land at the time of making such contract or may subsequently acquire therein.” Smith-Hurd Ill. Ann. Stats., ch. 82, sec. 1, p. 911 [Jones Ill. Stats. Ann. 74.01, 74.40]. The Mechanics’ Lien Act while construed liberally as a remedial act (see section 39 [Jones Ill. Stats Ann. 74.39]) being in derogation of the common law is strictly construed with reference to requirements upon which the right to a lien depends. North Side Sash & Door Co. v. Hecht, 295 Ill. 515, 519; Armstrong v. Obucino, 300 Ill. 140; Gottschalk Const. Co. v. Carlson, 253 Ill. App. 520. It has been held in conformity with this rule that notwithstanding the language of the statute a decree to. enforce a lien under it cannot be entered after the premises have been sold under a decree of foreclosure in a suit to foreclose a mortgage which is admitted to be a prior and superior lien. In Stone v. Tyler, 173 Ill. 147, 156, the court said: “after a decree of foreclosure of a mortgage, and a sale of the mortgaged premises under the circumstances here stated, the mortgagor has no such ownership in the premises, as will support a lien for labor done or materials furnished on the premises. ’ ’

Practically the same rule had been before announced in Davis v. Connecticut Mut. Life Ins. Co., 84 Ill. 508; Jackson v. Warren, 32 Ill. 331; and Green v. Sprague, 120 Ill. 416. These cases were decided under prior mechanic lien acts but the reasoning is applicable to the present statute.

In Love on Illinois Mechanics’ Liens, par. 11B, p. 16, the author, after citing these decisions, says: “The court held, in effect, that the lien could not attach to a mere right to redeem which came into existence upon the making of the sale in the mortgage foreclosure, that right not being an estate or interest in land, either legal or equitable, to which the lien could attach. While this case was decided under a prior statute, it would probably be followed to-day since the courts consistently recognize a difference between the equity of redemption which the mortgagor has before sale under decree of foreclosure (which equity is deemed an estate) and his mere right to redeem after a sale has occurred, which right is not considered a legal or equitable estate in land. ’ ’

Plaintiff cites Hack v. Snow, 338 Ill. 28; Williams v. Williston, 315 Ill. 178; Chicago Joint Stock Land Bank v. McCambridge, 343 Ill. 456; Crowder v. Scott State Bank of Bethany, 365 Ill. 88, and says that these “more recent” cases hold that “both before and after sale under a foreclosure the owner of the equity of redemption has the same estate in the land. ’ ’ The opinions in these cases say this, which is no doubt true under the circumstances appearing in each of them but not at all applicable here. The question here, however, becomes one of statutory construction. The real question is whether, after a sale has been made, the mortgagor has an interest in the land to which the right of a statutory lien claimant may attach. This question must be considered in connection with the provisions of chapter 77 on judgment decrees and executions and the provisions therein for redemption from sales under decrees and judgments.

In the early case of Merry v. Bostwick, 13 Ill. 399, the Supreme Court held that a mere right to redeem might not be sold on execution, and that to permit such a sale would defeat the whole policy of the law allowing redemptions. The court said (p. 412): “The right was designed as a favor to the debtor, to afford him an opportunity to save his real estate by the payment, at any time within twelve months, of the price for which it sold, . . . but it would be entirely cut off by allowing this right to redeem to be sold on a second judgment. Again, such a practice would interfere directly with the mode prescribed by the legislature for redemptions by judgment creditors. The law will not permit them to redeem till the expiration of twelve months from the first sale, and it would be inconsistent with this provision of the statute to allow a judgment creditor to accomplish the same object by a sale made within the twelve months.”

In People v. Barrett, 165 Ill. App. 94, it was held that the statutory right of redemption cannot be sold under execution. In Level v. Goosman, 285 Ill. 347, the Supreme Court pointed out that one of the purposes of redemption was to subject the property of the debtor to the payment of as many debts as possible and to accomplish this end redemption statutes are liberally construed. In Neuffer v. Hagelin, 369 Ill. 344, decided at the October term, 1938, in denying the right of a grantee of certain heirs to redeem from a sale made in due course of administration for the payment of debts, the opinion by Chief Justice Shaw pointed out that the theory of the appellant was based upon a misconception of Merry v. Bostwick and similar cases. The opinion states (p. 347): “In these cases it is held that the right of redemption which a judgment debtor has after a sale on execution is not such an interest in land as may be taken and sold on a subsequent execution. The reason for this rule is pointed out in the case of Merry v. Bostwick, supra, and that reason is, that such a practice would directly interfere with the mode prescribed by the legislature for successive redemptions by judgment creditors; that a judgment creditor cannot redeem until the expiration of twelve months from the first sale, and it would be inconsistent with this provision of the statute to allow such a creditor to accomplish the same result by a sale within the twelve-month period.”

This is the fundamental reason for the holding that a lien apparently given under section 1 of the Mechanics’ Lien Act may not attach. It is easy to become lost in metaphysical distinctions. It is always necessary in considering the language of judicial opinions to have regard to the particular problem before the court. Here, the construction for which the plaintiff contends would destroy the whole statutory plan for redemption under sales on executions upon judgments and decrees. Smith-Hurd Ill. Ann. Stats., ch. 77, secs. 18-27, pp. 217-258 [Jones Ill. Stats. Ann. 107.168-107.178]. It is apparent in the enactment of section 1 of the Mechanics ’ Lien Act no such result was intended. The necessary conclusion is that the lien was not intended to attach to a mere right of redemption of a mortgagor after sale as distinguished from his equity of redemption. The decree of December 2, 1938, was improper. The order setting it aside will be affirmed.

Affirmed.

O’Connor and McSurely, JJ., concur.


text:
    Trade Bond and Mortgage Company, Appellee, v. Max Schwartz and Yettie Schwartz, Appellants.
    Gen. No. 40,775.

      Heard in the first division of this court for the first district at the June term, 1939.
    Opinion filed January 22, 1940.
    Levinson & Levinson, of Chicago, for appellants; Louis E. Levinson, of Chicago, of counsel.
    Francis T. Delaney, of Chicago, for appellee.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.

This is an appeal by Max and Yettie Schwartz from an order entered by the municipal court of Chicago that they transfer on the books of the Schwartz Fur Sales Corporation a share of stock which the Trade Bond & Mortgage Company purchased at bailiff’s sale under an execution issued by the municipal court on a judgment entered against them. The order was entered on petition of the Trade Bond & Mortgage Company.

On September 26, 1932, the petitioner recovered a judgment against Max and Yettie Schwartz, who are husband and wife, he being’ the president and she the secretary of the Schwartz Fur Sales Corporation, which is an Illinois corporation. An execution was issued and returned no property found. An alias execution issued to the bailiff on March 25,1938. Plaintiff obtained a writ of injunction or restraining order from the municipal court, restraining Max and Yettie Schwartz from divesting themselves of the ownership of this stock whether standing in their names or the names of any other for their benefit. The injunction was issued without bond for cause shown and without notice. The writ issued under the seal of the court in conformity with the order.

February 3, 1939, the Trade Bond & Mortgage Company filed its petition setting up due service of the restraining order, the levy of the bailiff made under an alias execution on the stock of Max Schwartz (and Max Schwartz not claiming it to be exempt), the advertisement of the same for sale by direction of plaintiff, plaintiff’s purchase of it and demand upon Max Schwartz and Levinson, custodian of the stock certificate book, to transfer the same and their refusal to do so. The petition prayed a rule to show cause as for contempt might be entered.

Max Schwartz answered admitting other facts as charged but averring that the order for an injunction by the municipal court was void for want of jurisdiction of the subject matter and the sale thereof invalid. Upon the hearing* of this petition and answer the order appealed from was entered.

The sole question presented and argued is whether the municipal court of Chicago had the power and jurisdiction to enter the injunction order. At common law shares of stock in a corporation were not subject to execution. Alexander for use of Tobey Furniture Co. v. Livestock Nat. Bank of Chicago, 282 Ill. App. 315. In Illinois the statute has changed this rule and provides a mode by which the stock may be seized, sold and transferred (Smith-Hurd Ill. Ann. Stats., ch. 77, secs. 55-59, pp. 292-296 [Jones Ill. Stats. Ann. 107.205-107.209]). The Uniform Stock Transfer Act, adopted June 28, 1917 (Laws of 1917, p. 316, sec. 1, et seq.; Smith-Hurd Ill. Ann. Stats., ch. 32, par. 416, p. 648 [Jones Ill. Stats. Ann. 32.195]), contains further regulations. Sections 13 and 14 (Laws of 1917, p. 316; Smith-Hurd Ill. Ann. Stats., pars. 428, 429 [ch.. 32; Jones Ill. Stats. Ann. 32.207, 32.208]) provide:

“No attachment or levy upon shares of stock for which a certificate is outstanding shall be valid until such certificate be actually seized by the officer making the attachment or levy, or be surrendered to the corporation which issued it, or its transfer by the holder be enjoined. Except where a certificate is lost or destroyed, such corporation shall not be compelled to issue a new certificate for the stock until the old certificate is surrendered to it.” Laws of 1917, p. 319, sec. 13.

Section 429:

“A creditor whose debtor is the owner of a certificate shall be entitled to such aid from courts of appropriate jurisdiction, by injunction and otherwise, in attaching such certificate or in satisfying the claim by means thereof as is allowed at law or in equity, in regard to property which cannot readily be attached or levied upon by ordinary legal process.” Laws of 1917, p. 319, sec. 14.

The precise question here is whether the municipal court of Chicago, in a case where judgment and execution has been issued from that court, has power and jurisdiction to give aid by injunction as provided in sections 13 and 14. Schwartz says no and cites Ptacek v. Coleman, 364 Ill. 618; Barry v. Knight, 296 Ill. App. 277; People ex rel. Dr. Pierre Chemical Co. v. Municipal Court of Chicago, 297 Ill. App. 431. These cases in general hold that the municipal court of Chicago does not have general chancery powers. But that is not the question here. It is admitted that jurisdiction generally to issue injunctions as in chancery has not been granted. Notwithstanding, however, we hold that where an execution issues from the municipal court that court has power and jurisdiction to issue the injunction provided for in these sections of the Uniform Stock Transfer Act. We reach this conclusion for several reasons.

First, the jurisdiction to enter the judgment and execution being conceded (and it is not here denied)this further jurisdiction is incidental and necessary. This is the general rule applicable to courts of record. The power of such a court to render judgment and issue process necessarily carries with it power and jurisdiction to make orders necessary to give effect thereto and render the judgment binding and operative. 7 R. C. L. sec. 63, p. 1034; 15 C. J., sec. 108, pp. 811-812. Upon this principle in Phelps v. Mutual Reserve Fund Life Ass’n, 112 Fed. 453, affirmed in 190 U. S. 147, 47 L. Ed. 987, 23 Sup. Ct. 707, it was held the court in order to prevent a foreign corporation from evading execution on a judgment, by withdrawing all its agents from the State and directing its policyholders to pay premiums at its home office, was justified and had jurisdiction to enter an order appointing a receiver for the foreign corporation.

In the second place, we think snch power is by inference granted by the statute which vests the municipal court of Chicago with power of an equitable nature in supplementary proceedings designed to enable judgment creditors to reach the property of judgment debtors (Smith-Hurd Ill. Ann. Stats., ch. 37, par. 424 [Jones Ill. Stats. Ann. 108.092]). In People v. Cohen, 163 Ill. App. 115, it was held that the power there granted extended only to personal property. Shares of stock are personal property. In that case this court said that the jurisdiction of the municipal court in this respect “is referable solely to its jurisdiction to enter judgment in the principal case. ’ ’ In Baronski v. Shust, 218 Ill. App. 8, 11, this court said:

“The better reasoning supports the conclusion that the service of the summons in a supplementary proceeding on a third party does not create a lien on .property or money in his possession in the absence of any order requiring such party to retain the same, pending disposition by the court.”

The court also said the proceedings authorized by section 64 were “in the nature of a substitute for a creditor’s bill.” The necessary inference is that the court had power to enter an order requiring a defendant to retain property pending the decision of the court.

In the third place, we think such jurisdiction must be inferred from section 423 of the Municipal Court Act (Smith-Hurd Ill. Ann. Stats., ch. 37, sec. 423, pp. 442, 443 [Jones Ill. Stats. Ann. 108.091]). This section in substance provides that judgments, orders and decrees of the municipal court shall have the same force and effect and be executed and enforced in the same manner as the judgments, orders and decrees of the circuit court of Cook county, except as otherwise provided therein; that execution shall be directed to the bailiff, or if he is disqualified, to the sheriff of Cook county, and shall be a lien upon all the personal property of the person against whom judgment is obtained, situated within the city of Chicago, from the time it is delivered to the bailiff or to the sheriff, to the same extent as an execution issued out of the circuit court of Cook county, and that it may be levied upon the property, real or personal, to the same extent as an execution issued out of the circuit court. We hold that the power and jurisdiction to enter the restraining order is necessarily incidental to the jurisdiction granted to the municipal court under this statute.

In the fourth place, we think that a proper construction of the language of sections 13 and 14 of the Uniform Stock Transfer Act must be held to vest such jurisdiction in the municipal court of Chicago. After providing in section 13 that a levy upon shares of stock shall not be valid until the certificate is actually seized or surrendered or its transfer by the holder enjoined, section 14 declares that a creditor whose debtor is the owner of a certificate shall be entitled to such aid “from courts of appropriate jurisdiction, by injunction or otherwise, ’ ’ etc. In what court did the legislature intend to vest such jurisdiction? If it had been the intention to limit the jurisdiction conferred to courts of chancery, we think the act would have said so. It does not use that phrase. It uses what we must regard as the wider term of “appropriate jurisdiction.” What other court was intended to be included? We think, manifestly, the court in which judgment was entered and which would necessarily have control of its own process. These sections of the statute have never been construed in this State. The Supreme Court of New Jersey, in Progressive Building & Loan Ass’n v. Rudolph, 113 N. J. Law 204,172 Atl. 884, in a case construing section 13 of the Uniform Stock Transfer Act, recognized an injunction by the law court in which the judgment had been rendered as sufficient. Therefore, in conformity with the rule that necessary ancillary jurisdiction is granted by implication with jurisdiction expressly conferred; in view of the equitable powers expressly conferred by statute upon the municipal court of Chicago, as well as the jurisdiction conferred to enforce its own judgments at law, and in view of the language of section 14 of the Uniform Stock Transfer Act, we hold that the municipal court of Chicago is a court of “appropriate jurisdiction” within the meaning of section 14 of the Uniform Stock Transfer Act and had jurisdiction to issue the injunction order. The judgment will be affirmed.

Affirmed.

O’Connor and McSurely, JJ., concur.


text:
    Vito Addante, Appellee, v. Vincenzo Pompilio, Appellant.
    Gen. No. 40,789.

      Heard in the first division of this court for the first district at the June term, 1939.
    Opinion filed January 22, 1940.
    Rehearing denied February 5, 1940.
    Frank J. Tyrrell, of Chicago, for appellant.
    Michael B. Durso and Simon T. Sutton, both of . Chicago, for appellee.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.

May 18, 1938, plaintiff filed a complaint in which he alleged that on December 3, 1923, he deposited with defendant $3,000 to be by defendant transmitted and paid to plaintiff’s brother, Nicolla Addante, in Italy; that he also paid to defendant the necessary charges and costs for transmitting this money; that defendant at the time of the deposit gave plaintiff his receipt showing the deposit; that defendant neglected to remit the money and afterward appropriated it to his own use.

The complaint also avers that plaintiff made numerous demands and that defendant upon each and every demand promised to pay plaintiff; that the last demand was made in February, 1937, when defendant again promised to pay but failed to do so. The complaint charges that there had been unreasonable and vexatious delay and claimed damages to the amount of $5,162.50.

The complaint was duly verified. Defendant filed an amended answer in which he admitted the deposit by plaintiff of the money for the purpose as alleged; neither admitted nor denied that he gave a receipt but demanded strict proof; denied the alleged conversion and set up the affirmative defense that with the consent of plaintiff he placed the money with the American Foreign Exchange Corporation for transmission to Nicolla Addante and that this company converted - it. Defendant also set up a discharge in bankruptcy in a. proceeding where plaintiff’s claim was allowed and a dividend of $27 paid. Defendant denied the demands and promises to pay as alleged, and further set up the defense of the 10-year statute of limitations.

On December 2, 1938, the cause was tried by the judge without a jury, who found “the defendant Vin-cenzo Pompilio wrongfully and maliciously converted to his own use the money of the plaintiff set forth in the complaint in this cause”; found the defendant guilty and assessed plaintiff’s damages at the sum of $3,003. The record shows execution issued on January 3, 1939, and a body execution on the same day on which is an indorsement showing the arrest of defendant on January 17, 1939, and his commitment tó jail. On January 6, 1939, after more than 30 days had expired, attorneys for defendant made a motion for the entry of an order for a new trial nunc pro tunc, which was overruled on January 6, 1939. There is no report of proceedings. The evidence is not before us. The presumption, of course, is that it was sufficient to sustain the findings and the judgment of the court.

The defendant points out that section 15 of ch. 83, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 107.275] was applicable. This section in substance provides that actions for damages for the detention or conversion of personal property shall be commenced within five years next after the cause of action accrued. The defendant did not plead this statute but set up the 10-year statute, section 16, applicable to actions upon written contracts. It was necessary that the statute should be specially pleaded and in the absence of such plea it is waived. Ward v. Williams, 270 Ill. 547. Moreover, the burden of proving the defense of the statute was on defendant and if we assume it was set up in the answer, in the absence of a report of proceedings, we must assume the evidence was insufficient to prove the defense. Again, the date upon which defendant converted the money of plaintiff does not appear from the pleadings and can be determined only from the evidence which is not before us. O’Neill v. Lindsay Light Co., 181 Ill. App. 700. The statute would not begin to run until the actual conversion took place.

Defendant cites Nelson v. Petterson, 229 Ill. 240, to the proposition that tort actions once barred by the statute of limitations cannot be revived subsequently by an oral promise. This case is inapplicable here for the reason (as already explained) that in the absence of a report of proceedings we can not determine plaintiff’s claim was ever barred by the statute.

Defendant argues the complaint does not state a cause of action. He cites People v. Green, 368 Ill. 242, which is a criminal case. Incidentally the opinion of the court refers to the practice as it existed prior-to the enactment of the Civil Practice Act, citing two cases decided before that act went into effect. In this case section 42 (2) and (3) of the Civil Practice Act (Smith-Hurd Ill. Ann. Stats., ch. 110, par. 165, p. 256 [Jones Ill. Stats. Ann. 104.042]) is controlling. Subsection (2) provides no pleading shall be deemed bad in substance which contains information or shall reasonably inform the opposite party of the nature of the claim or defense he is called upon to meet. Subsection (3) provides that all defects in pleadings “either in form or substance, not objected to in the trial court, shall be deemed to be waived. ’ ’ No objections were made to the complaint in the trial court. It is apparent the- point was not thought of until after this appeal was filed in the Appellate Court. The purpose of section 42 of the Civil Practice Act is apparent. It was designed in so far as possible to compel the settlement of questions of pleading in the trial court. In cases where the judgment has been taken by default, as in Whalen v. Twin City Barge & Gravel Co., 280 Ill. App. 596, and Roe v. Cook County, 358 Ill. 568, 193 N. E. 472, the courts have given consideration to the question of whether the complaint states a cause of action. In no ease called to our attention since the enactment of the Civil Practice Act has a defendant, who appeared and failed to object to the sufficiency of the pleading, been allowed to question the sufficiency thereof in an Appellate Court. Fornoff v. Smith, 281 Ill. App. 232, was a case in garnishment in which the Civil Practice Act was not cited. The complaint in this case was sufficient under section 42, and would have been sufficient under the common law practice, any defect therein being cured by the finding of the court. Sargent Co. v. Baublis, 215 Ill. 428. The judgment will be affirmed.

Affirmed.

O’Connor and McSurely, JJ., concur.


author: Mr. Justice McSurely

text:
    People of the State of Illinois, Defendant in Error, v. Charles A. Braun et al., Plaintiffs in Error.
    Gen. No. 40,722.
    Heard in the first division of this court for the first district at the June term, 1939.
    Opinion filed January 22, 1940.
    Charles A. Bellows, of Chicago, for plaintiffs in error; J. W. Bellows, of Chicago, of counsel.

      Thomas J. Courtney, State’s Attorney, for defendant in error; Edward E. Wilson, John T. Gallagher, Melvin S. Rembe, Blair L. Yarnes, Richard B. Austin and Alexander J. Napoli, Assistant State’s Attorneys, of counsel.
   Mr. Justice McSurely

delivered the opinion of the court.

Defendants are officials of the village of Dixmoor, Illinois, a town near Chicago of 1,200 inhabitants lying on Western avenue, a highway much used by motorists; they were charged with conspiring unjustly and oppressively to extort money from motorists; they were tried by a jury and found guilty. Robert Greco, Charles Paduano and Tony Bater, police officers, were each sentenced to serve one year in the house of correction and to pay a fine of $500; Charles Braun, police magistrate of the village, and Charles Special, president, were each sentenced to one year in the house of correction and fined $2,000; they seek a reversal.

From 1936 to 1938, inclusive, the village found itself in the situation like that discussed by Mr. Chief Justice Taft in Tumey v. State of Ohio, 273 U. S. 510, 71 L. Ed. 749, 47 Sup. Ct. 437, where the court considered the case of a magistrate whose only compensation was derived from defendants tried before him and found guilty. If a defendant was acquitted the magistrate received no compensation. This was condemned by the chief justice in a notable opinion.

In the instant case these defendants depended for compensation for their services upon the collection of fines imposed on motorists. President Special testified that the fines levied against motorists went into the road and bridge fund, from which they were transferred to the general fund from which salaries of the defendants were paid. On one occasion Mr. Special was requesting the village trustees to appoint Mr. Bater as a policeman; when he was asked how Bater could be paid Mr. Special replied that his compensation would come ‘ ‘ out of the highway. ’ ’

On another occasion Mr. Special said that the police had to make at least 10 “pinches” a day in order to make their salaries, — -“That was the way he had to make a living, they had to eat that way. ’ ’

The situation, then, was that it was necessary, in order to receive their salaries, that defendants should carry on an intensive campaign against motorists under the guise of enforcing the traffic laws but for the real purpose of raising funds from which their salaries would be paid.

A conspiracy may be proved by evidence of the conduct of the parties and facts and circumstances disclosing a common illegal design. It was unnecessary to prove the defendants adopted in any formal way a resolution or statement of their purposes. People v. Drury, 335 Ill. 539, 551. There was in evidence a report from the books of the village showing the fines collected in the various months during the fiscal year just prior to the indictment of the defendants. They run from May, 1937, when the total fines for that month were $198. They increased during the summer months to something over $300 a month, but after police officer Bater assumed his duties the fines for November, 1937, jumped up to $989.50 and approximated this figure during the winter months of 1937 and 1938.

Moreover, soon after the increase in fines from motorists began, Special himself commenced to get substantial sums of money from the village. In December, 1937, he got $584.89, and the next month over $300. He testified that these sums were to repay him for moneys he had advanced for village expenses. The records of the village showing receipts were gotten together by magistrate Braun to bring them for inspection to the State’s Attorney’s office, but he testified that the night before he had planned to visit the State’s Attorney Ms court room where these records were kept was burglarized and the records stolen.

The main point presented in defense is that nearly all of the motorists who were arrested by officers and brought before magistrate Braun pleaded guilty to the offense charged against them, and defendants’ counsel argues that this is proof that defendants could not be guilty of unjustly extorting money from the motorists. We hold this conclusion does not necessarily follow.

A typical case was that of Sidney E. Stern who testified that before entering Western avenue, knowing it was a State road, he looked to see if there was any traffic and there was none for at least three blocks and he turned into Western at about 3 miles an hour and was at once stopped by officer Bater and taken to the court room of defendant Braun; he was there told he was charged with going into an intersection of a State road without stopping; Stern denied that he was guilty, because he had used more than ordinary precaution before entering Western; Justice Braun told him the maximim fine for this offense was $200 and if he wished to, have a trial he would have to put up a $200 cash or real estate bond; Stern indicated that he would be unable on a Saturday afternoon to get a real estate bond for this amount and inquired what alternative there was and was told by the justice, “You will have to go to jail”; Stern then pleaded guilty and was fined $5 with costs of $5 which he paid.

Dr. Zurndorfer was arrested charged with going 55 miles an hour; he testified that he was positive he was not going more than 35 miles an hour, the maximum speed limit on this highway in Dixmoor, and believing it was of no use to defend himself he pleaded guilty and was fined $5 and $5 for costs; there was no trial.

George Ewin was arrested charged with exceeding the speed limit of 35 miles an hour; he testified that he was familiar with the speed of his car and he was certain he was not exceeding the maximum of 35 miles; he was told by Justice Braun that he might be fined up to $100 but under the circumstances he would be fined $5 with $5 as costs.

Dewey Miller was arrested and charged with crossing the tracks of the Grand Trunk railway while the red railroad stop signal was flashing; he testified that he stopped when he came to the tracks and saw a train standing still approximately four or five blocks away, and there was no indication that the train would move for possibly an hour; he was told by Justice Braun that it was possible to fine him $200 for the offense and after much talk, “in order to make things easy for myself, ’ ’ he pleaded guilty and was fined $10. ■

Clifton Tatro was driving a truck for Armour & Co., delivering meat to a nearby sanitarium; he .was traveling 15 miles an hour; he was arrested on the ground that he had no rear plates on his truck; he was then charged with failure to wear his chauffeur’s badge on his cap; Tatro explained that he never wore his badge on his cap because he carried meat and his badge would get green; he presented his license and pictures but was not allowed to go until he paid Braun $15.

Silvester Pataczek worked for the Feldman Petroleum Company; he was driving a truck belonging to his employer and there was a dispute between him and officer Greco as to whether he made a dead stop at a highway; Pataczek was fined $10 but did not have the money; Feldman, the owner of the truck, was called by phone and told that he could not have the truck until the $10 was paid; he asked defendant Braun over the phone what the trouble was and was told that the driver of the truck was arrested “for not stopping at a sign.” Feldman was admitted to practice law and asked magistrate Braun to set the case for hearing and was told by the latter that it was all over; that the driver had been fined $10; Feldman argued that Braun had no right to keep the truck and was told by Braun that “we cannot release the truck.” A brother of Feldman went out to Dixmoor to get the truck and was told he could not have it. There was considerable more argument over the matter and finally, under the advice of Feldman’s brother, magistrate Braun was- given $10 and the truck was released. It had been stopped at about 10 o’clock in the morning and was not released until after 3 o ’clock in the afternoon.

Motorist Linguist was charged with exceeding the speed limit and was told definitely that “We have to set a fine for compensation to pay these officers.” Linguist testified he was not exceeding the speed limit.

Defendants’ testimony tended to contradict in some respects the version of plaintiff’s witnesses as to the above incidents, but we see no sufficient reason to hold that the jurors, who saw and heard the witnesses, could not reasonably find with the plaintiff as to the facts.

It would unduly lengthen this opinion to note all of the instances of motorists who were arrested and brought before the magistrate where, instead of being tried, they were persuaded, for fear of the imposition of a large penalty, to enter a plea of guilty and pay the magistrate $5 or $10. The jury could reasonably believe such pleas were in fact not admissions of violation of traffic laws but were simply for the sake of avoiding the annoyance of a trial, with an intimation that the result would be the imposition of a severe penalty. The pleas of guilty by the motorists were simply purchases of peace from further annoyance and could well fit in with the conspiracy charged.

The jury could properly believe that there was a common agreement by the defendants to harass motorists and truck drivers, and by covert threats induce them to pay a small fine rather than have a trial where the merits could be examined.

There was also abundant evidence from which the jury could properly conclude that this campaign against the motorists was not animated by the purpose of enforcing the traffic laws but, as admitted by statements of the principal defendants, for the purpose of securing compensation for themselves.

It is said the court admitted incompetent evidence. We do not find anything in this respect which would amount to reversible error.

It is said that the State’s Attorney made improper remarks when at one time he said, “This conspiracy has been going on for 20 years.” The court properly sustained an objection to this and instructed the jury to disregard it. There were frequent colloquys between respective counsel, witnesses and the court but nothing appears of decisive importance.

The court properly instructed the jury that a conspiracy was a combination of two or more persons by some concert of action to accomplish some criminal or unlawful purpose, or some purpose not in itself criminal or unlawful by criminal or unlawful means. This is a correct statement of the law, and in People v. Cohn, 358 Ill. 326, it is held that a guilty intention may be inferred when the means used are such as ordinarily would result in the commission of the forbidden act. Taking the instructions as a whole they correctly state the law.

Defendants argue that the indictment is fatally defective because they are charged with conspiring to extort money and to defraud. This is not open to the objection of duplicity. Defendants could properly be charged with conspiring to extort money and to defraud. It is well settled that in making the charge of conspiracy the means of carrying out the conspiracy need not be stated.

The People properly call attention to ch. 53, sec. 59, Ill. Rev. Stat. 1937 [Jones Ill. Stats. Ann. 48.041], which provides that the fees for a police magistrate, where a defendant pleads guilty, should be $2 and no more. In many of the cases appearing in the record defendant Braun charged $5 as costs, although the parties charged had pleaded guilty.

Defendants had a fair trial and from all the circumstances presented, the jury could reasonably find them guilty as charged.

The judgment is therefore affirmed.

Affirmed.

Hatchett, P. J., and O’Connor, J., concur.


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    Bank of America, National Trust and Savings Association, as Successor to the Bank of Italy, National Trust and Savings Association, Assignee of the Farmers and Mechanics Bank, Appellee, v. Grace S. Jorjorian and Samuel K. Jorjorian, Appellants.
    Gen. No. 40,747.
    Heard in the first division of this court for the first district at the June term, 1939.
    Opinion filed January 22, 1940.
    Max Murdock, of Chicago, for appellants.
    Teller, Levit, Silvertrust & Levi, of Chicago, for appellee; H. J. Goldberger, of Chicago, of counsel.
   Mr. Justice McSurely

delivered the opinion of the court.

Defendants appeal from a judgment of $9,326.25 entered against them upon trial by the court of a claim of plaintiffs on a promissory note executed by defendants on which there was an alleged deficiency in a nonjudicial foreclosure. Many of the facts were presented by defendants ’ answer but the trial court struck paragraphs 3, 4 and 5 of this answer. We are of the opinion this was error, but as both sides have discussed all of the facts in the case we shall disregard this action of the trial court.

Prior to April, 1928, defendants owned certain real estate in California subject to a $10,000 mortgage held by plaintiffs’ predecessor bank; February 25, 1937, the mortgage securing the note and the payment of the note were extended and defendants signed the note on which this suit is brought.

April 4, 1928, defendants sold the land to J. H. Cardwell and Yerna L. Cardwell who signed an in-dorsement on the note which reads:

“The undersigned successors in interest of the makers of this note and the deed of trust securing same, hereby and herewith assume and agree to pay the within note and indebtedness evidenced thereby.” Plaintiff bank agreed to this and accepted the note so indorsed. Defendants allege, and plaintiffs admit, that by reason of this indorsement defendants were liable as sureties, if at all, and not as principal. This was admitted on the trial and in the brief on behalf of plaintiffs.

For approximately nine years thereafter plaintiffs treated the Cardwells as the debtors while defendants remained all the time at their residence at Evanston, Illinois, receiving no demands, notices or information of any of the dealings or proceedings between plaintiffs and the Cardwells.

September 11, 1933, over three years after the maturity of the note, the mortgaged premises were sold in California at a trustee’s sale without court proceedings and without knowledge of these defendants. November 13, 1933, plaintiff brought suit on the note in the California court, naming as defendants the Card-wells and the Jorjorians, the present defendants; the Jorjorians were not served and had no notice or knowledge of this suit except as later informed when this Illinois suit was begun on November 9, 1937; later plaintiff filed in the California suit an affidavit for attachment, which writ was levied on the title of the Cardwells on the tract of land secured by the instant mortgage and also other land in California.

December, 1935, plaintiff received from Cardwell $1,000 on account of this note and at the same time filed in the California suit an order of “dismissal with prejudice as to the defendant J. H. Cardwell only.” The present defendants had no knowledge of that dismissal or of the attachment or of the suit itself, except when they were informed by their attorney at the commencement of the present suit.

The defense is that the legal effect of this dismissal of the suit against Cardwell “with prejudice” was an’ absolute release of Cardwell’s personal liability on "the note and hence, under well-known decisions of the courts, defendants were exonerated as sureties. Plaintiffs in this court say this dismissal “with prejudice” was merely a covenant not to sue, plaintiffs still retaining its rights to bring an action.on the note against defendants. This depends upon the meaning of the words “with prejudice” as defined by the courts. In Union Indemnity Co. v. Benton County Lumber Co., 179 Ark. 752, 761, the court held that these words had a well-recognized legal import and are “as conclusive of the rights of the parties as if the suit had been prosecuted to a final adjudication adverse to the plaintiff.” This was followed in Lake v. Wilson, 183 Ark. 180, holding that a dismissal “with prejudice ’ ’ is res judicata of all questions which might have been litigated in the suit. To the same effect are Shorten v. Brotherhood of Railroad Trainmen, 182 Ark. 646; Lindblom v. Mayar, 81 Wash. 350; Pulley v. Chicago R. I. & P. Ry. Co., 122 Kan. 269.

Plaintiff argues, and the trial court was in accord, that this order of dismissal meant dismissal of the attachment suit only and not as to the main debt. Neither the record nor the decided cases support this view. Had plaintiff intended to dismiss the attachment suit only it would have been an easy matter to have the record show this. But the record shows that when this order of dismissal “with prejudice’’ was entered the attachment suit was not mentioned. We are of the opinion that the order was a dismissal and adjudication of all rights of plaintiff against Cardwell. In Petroyeanis v. Pirola, 205 Ill. App. 310, this court held that the entire liability of defendant was released although the document itself described the release as a covenant not to sue. Plaintiff cites Parmelee v. Lawrence, 44 Ill. 405, but the document there considered stated explicitly the unmistakable intention to leave the rights and liabilities unimpaired. Plaintiff cites other cases where the language definite^ reserves the right against the surety. No such language or reservation was in the instant order of dismissal. It is final and conclusively adverse to plaintiff.

In many cases it' has been held that the release of the principal releases the sureties. Among the cases so holding are Prudential Ins. Co. of America v. Bass, 357 Ill. 72; Tabero v. Stutkowski, 286 Ill. App. 225; Passman v. Budnizky, 284 Ill. App. 533, 540; Albee v. Gross, 250 Ill. App. 98; Braun v. Crew, 183 Cal. 728 and Wagoner v. Brady, 223 N. Y. S. 99.

We hold that by the order entered in December, 1935, plaintiff released and discharged its alleged right of action against these defendants. The judgment will therefore be reversed without remanding.

Reversed.

Hatchett, P. J., and O’Connor, J., concur.


text:
    Doris W. Wolfe, Appellant, v. Roscoe B. Wolfe, Appellee.
    Gen. No. 40,769.
    Heard in the first division of this court for the first district at the June term, 1939.
    Opinion filed January 22, 1940.
    Deming, Jakrett & Mulfinger, of Chicago, for appellant.
    John H. Lyle, of Chicago, for appellee; P. F. Murray and Bertel Jonson, both of Chicago, of counsel.
   Mr. Justice McSurely

delivered the opinion of the court.

Plaintiff appeals from an order dismissing her petition seeking a rule on defendant to show cause why he should not be adjudged in contempt of court for failure to pay for the support of their minor child in accordance with the provisions of a divorce decree.

It appears from the petition, filed January 20, 1939, and the record, that January 26,1928, a divorce decree was entered which provided that plaintiff have custody and that defendant pay plaintiff $25 a week for the support and maintenance of their child, Sheldon Burton "Wolfe, then less than three years old, during his minority; that on April 11, 1928, the decree was modified in that defendant was ordered to pay $15 a week instead of $25; the petition alleges that there has been no further modification of the decree since April 11; that plaintiff has had the custody and care of the'child since the entry of the original decree and that on January 4, 1939, defendant owed plaintiff $876.25 for the maintenance and support of the child under the decree as modified; that the child is now 13 years old; that plaintiff is working and makes $18 a week, which is insufficient to support herself and son; that defendant is employed and is well able to pay the $15 per week; that since the entry of the decree defendant has remarried, and since the alleged defaults has adopted a child; the petition prays that a rule be entered requiring defendant to show cause why he should not be punished for failure to comply with the decree as modified.

The answer of defendant states that plaintiff was married on the next day after the divorce decree was entered; admits that on April 11, 1928, the decree was modified by order of court to $15 a week, but denies there-has been no further modification; states that on June 1, 1934, defendant’s income being $45 a week and he having been remarried and supporting his wife, he entered into an agreement with plaintiff to the effect that the money for the support of their minor child be reduced from $15 to $12.50 a week; that defendant has paid $12.50 per week from June 1, 1934, in accordance with this agreement, which sum was considerably in excess of the amount actually expended by plaintiff for the support and maintenance of the child; the answer denies that plaintiff has had the custody of the child since the entry of the original decree, but states that about January 1, 1934, plaintiff and the child went to live with the mother of defendant and the child was cared for by her until about November 1, 1938, during which time the child’s grandmother contributed to, cared for and had custody of the child, except those evenings when plaintiff returned home from her employment.

The answer denies that January 4, 1939, he owed plaintiff $876.25 or any other sum for the maintenance ' and support of the child.

The answer admits defendant is employed but denies that he is well able to pay $15 per week for support of the child; states that the reason plaintiff filed the instant petition was the fact that the present wife of defendant desired to adopt a child, and that when plaintiff learned of this she filed the petition to harass defendant; that when the parties were first separated he voluntarily paid plaintiff $50 a week for the support of plaintiff and child as long as he was able; that after entry of the decree he paid $25 a week for the child’s support as provided for in the decree; that when he became unable to pay $25 a week because of diminished income the court modified the decree to $15 per week; that when his income was further diminished the modified agreement between the parties of $12.50 per week became operative, and has been paid to plaintiff and accepted by her without complaint.

The cause was presented to the court on the petition and answer and the testimony of defendant as to his earnings which did not indicate any improvement in his financial condition. The trial court was of the opinion that when plaintiff agreed to accept $12.50 a week and made no complaint nor asked for a rule to show cause why defendant should not be held in contempt, she indicated her consent to the reduced amount, and dismissed her petition.

We hold that the court made the proper order and it would be unjust to hold defendant in contempt when plaintiff had for five years, without protest, accepted the reduced amount. Another circumstance to be considered is that from about January 1, 1934, to Novem-her 1, 1938, the child, was cared for and lived with the mother of defendant, during which time the grandmother contributed to the support of the child.

Plaintiff argues that no oral agreement to accept a reduced amount for the support of the minor child is valid unless it receives the sanction of the court, and cites Walter v. Walter, 189 Ill. App. 345. In that case the parties, without application to the court, entered into an agreement adjusting past and future alimony in consideration of the assignment by the husband to his former wife of a policy of insurance on his life and his agreement to pay the premiums; he failed to pay these and the; policy was surrendered to the insurance company; we held that under such circumstances, where the husband had failed to keep his agreement, the wife could properly apply to the court for an order on the husband to continue to pay alimony.

It should be remembered that in the instant case all of the agreements by defendant to pay have been observed and there is no default in this respect. In Cavenaugh v. Cavenaugli, 106 Ill. App. 209, where the parties, without applying to the court, agreed to a reduction of the monthly alimony from $40 to $25, the husband made these payments for some time but later discontinued making them, and the former wife applied to the court to enforce the payments; the husband maintained that the contract with his former wife was in full satisfaction of any claim of alimony; the court said the agreement for the reduced amount was not an independent contract but merely a consent in the reduction in the amount of the alimony and that the wife had a right to accept the lesser amount in satisfaction of the amount awarded by the decree, and held that the court had full power to enforce the agreement between the parties.

There is no question involved here of the failure of defendant to make the payments as agreed upon with his wife, and as the trial court remarked, when plaintiff accepted these payments for a period of five years, equity and justice would seem to deny her any right to complain to the court unless it should be made to appear that the financial condition of defendant had so improved that he should be ordered to pay the amount provided for in the original decree. No such showing has been made. In fact, it appears that the financial condition of defendant has grown worse instead of improved.

Under all the circumstances we think the trial court’s ruling is correct, and the judgment is affirmed.

Affirmed.

Hatchett, P. J., and O’Connor, J., concur.


text:
    Henry Schmitz, for use of Abraham Ginsburg and May Ginsburg, Appellee, v. 75th and Exchange Drug Company, Inc., Garnishee, Appellant.
    Gen. No. 40,799.

      Heard in the first division of this court for the first district at the June term, 1939.
    Opinion filed January 22, 1940.
    Bernard G. Sang and George M. Shkoler, both of Chicago, for appellant.
    No appearance for appellee,
   Mr. Justice McSurely

delivered the opinion of the court.

May 4, 1938, plaintiff recovered in the municipal court of Chicago a judgment against Abraham Ginsburg and May Ginsburg, his wife, for $150 and costs; upon return of execution unsatisfied the present garnishment action against the 75th & Exchange Drug Co., Inc., was commenced wherein, after the filing by the garnishee of its third successive answer of “no funds” to the third separate garnishment demand made upon it, the court found there was due Mr. Ginsburg, the judgment debtor, from the garnishee defendant, $75, and that this sum be recovered by Ginsburg for the use of the plaintiff. Defendant appeals.

The answer of the garnishee to plaintiff’s first wage demand, dated August 1, 1938, stated that at the time of service of wage demand and at any time since then up to and including the date of the service of summons, Ginsburg was indebted to it in the sum of $2,350; its answer to the second wage demand, dated September 1, set the indebtedness at $2,250, and to the third demand, dated September 7, set it at $2,225; each answer stated that Ginsburg was entitled to a weekly salary from the garnishee defendant of $45', of which the garnishee retained $25 which it applied toward the indebtedness due it from Ginsburg, and that he was entitled, as a married man, the head of a family residing with same, to $20 of his weekly salary claimed as his exemption, and, therefore, there was no money-subject to garnishment.

The trial court heard the case upon a stipulation of facts wherein it was agreed that on, and for about four months prior to August 1, 1938, when the first garnishment demand was served, Ginsburg, the judgment debtor, was in the employ of the garnishee as a pharmacist, receiving a salary of $45 a week; that he was a married man and the head of a family and entitled to $20 a week exemption from garnishment; that on June 25,1938, the garnishee corporation passed a resolution pursuant to which on June 27 a stock-purchase agreement and contract was entered into between it and Ginsburg in which it was recited that, whereas the corporation was in need of additional capital to continue to operate its business successfully and, whereas Ginsburg was desirous of purchasing 25 shares of its no par value common stock for $2,500, he thereby subscribed for the 25 shares and agreed to pay therefor $25 each and every week; the contract stated he was employed as a registered pharmacist and assistant manager at a salary of $45 a week, and that he could not be discharged as long as he conducted himself on the premises in a mannerly, businesslike and courteous manner and devoted his full time to his employment; the corporation agreed that when the $2,500 was fully paid it would issue the 25 shares of stock to Ginsburg, who was to have no rights or interest in the conduct of the business nor share in any of its profits until the $2,500 was paid in full; he could not assign this subscription right without the consent of the corporation, and in the event of the termination of his employment, whether by his dismissal or resignation, prior to the time of payment of the $2,500, he nevertheless was hound by his subscription to continue to make weekly payments of $25 until this amount was fully paid. The stipulation set forth that each Saturday commencing with July 2, 1938, through September 28, 1938, the garnishee paid $20 in cash to Grinsburg and retained $25 and credited this latter sum to him in accordance with the terms of the stock purchase agreement, and this credit appears in the books of the garnishee.

Though we have not been favored with a brief in behalf of plaintiff, his theory, pointed out with some speculation in the brief of defendant, seems to be that notwithstanding the stock-purchase agreement and contract between Grinsburg and his employer, there existed a relationship of debtor and creditor between them, and his employer, the garnishee, had funds in its possession in the form of salary belonging to Grins-burg, the judgment debtor, over and above his statutory exemption; that the stock-purchase agreement and contract, though, valid and binding between Grins-burg and his employer, could not bind plaintiff or any other creditor of Grinsburg. Defendant’s theory is that the agreement created an indebtedness on the part of Grinsburg to it, and plaintiff, therefore, should not prevail in this action. Defendant’s brief states that the trial court indicated the stock subscription agreement was unfair to plaintiff in that it did not afford him a right of recovery against Grinsburg, and therefore disregarded it.

There can be no question that stock-purchase agreements are valid and binding contracts. In Fletcher, Cyclopedia Corporations, Perm. Ed., vol. 4, sec. 1404, p. 66, it is said that

“In the case of subscriptions after a corporation has been formed and is in existence, there is no difficulty in the formation of the contract. There' must simply be both an offer and an acceptance, as in the case of any other contract.” See also 13 Am. Jur. 371, sec. 279. In the instant case the subscription agreement is definite and irrevocable, giving the garnishee defendant a cause of action against Grinsburg if he should default, even though his employment be terminated prior to the time of payment of the entire snm due, and obligating defendant to furnish the stock sold to Grinsburg upon the payment to it of the $2,500. Pursuant to its terms, deductions were made each week from the salary of Grinsburg to apply on his indebtedness. The validity of the resolution passed by defendant and the stock-purchase agreement entered into between it and Grinsburg pursuant thereto is not questioned by plaintiff. Nor was there any evidence to indicate that they were fraudulent or designed for the purpose of defeating the rights of plaintiff.

It is a well-established rule that the creditor stands in exactly the same attitude in relation to a garnished fund that the judgment debtor does, and can enforce only such rights as the debtor might enforce. The right of the creditor against the garnishee cannot, by garnishment, rise higher than the right of the debtor against the garnishee. If the right of the debtor is subject to a right of the garnishee, the right of the creditor is subject to the same right. The one exception to this rule occurs when there has been a fraudulent transfer of property. 12 R. C. L. 778, 779. In the instant case there was no evidence of fraud. In Hibernian Banking Ass’n v. Morrison, 188 Ill. 279, 281, it is said “that a judgment creditor garnisher cannot recover from a garnishee anything which the judgment debtor could not himself recover. Indeed, a garnishee proceeding based upon a judgment is a separate suit in the name of the judgment debtor for the use of the judgment creditor. The fact that the suit is for the benefit of a usee does not enlarge or change the right of the nominal plaintiff, as against the garnishee. ’ ’ And in Larson v. McCormack, 286 Ill. App. 206, it is said “that garnishment cannot lie unless the garnishee is indebted to the judgment debtor without uncertainty or contingency at the date of the answer of the garnishee. . . . that a fund is not subject to garnishment if the judgment debtor could not maintain an action therefor.” (Citing cases.) See also Campagna for use of Kolarik v. Automatic Elec. Co., 293 Ill. App. 437.

Ch. 62, sec. 13 of the Ill. Rev. Stat. 1937 [Jones Ill. Stats. Ann. 109.296], provides:

“Every garnishee shall be allowed to retain or deduct out of the property, effects or credits in his hands all demands against the plaintiff, and all demands against the defendant, of which he could have.availed himself if he had not been summoned as garnishee, whether the same are at the time due or not, and whether by way of set-off on a trial, or by the set-off of judgments or executions between himself and the plaintiff and defendant severally, and he shall be liable for the balance only after all mutual demands between himself and plaintiff and defendant are adjusted. . . .” We agree with the argument of defendant that when the trial court indicated the stock-subscription agreement was unfair to plaintiff in that it did not afford him a right of recovery against the judgment debtor, Ginsburg, the court failed to recognize the fact that Ginsburg was also indebted to the garnishee defendant. In other words, the judgment debtor has two creditors — the judgment creditor and the garnishee defendant, and the rights between these two creditors are fixed by the above-quoted provisions of the Garnishment Act wherein the garnishee is allowed to retain or deduct out of the property, effects or credits in his hands all demands against defendant of which he could have availed himself had he not been summoned as garnishee.

Garnishee defendant paid the statutory exemption of $20 a week to Ginsburg and, having applied the $25 balance of his weekly salary to the indebtedness due it from him, there was nothing further due him at any time any of the garnishment actions involved herein were pending that was subject to garnishment.

For the reasons above stated we hold the garnishee defendant should be discharged in each of the three actions pursued by plaintiff in this case, and the judgment is therefore reversed.

Reversed.

Hatchett, P. J., and O’Connor, J., concur.