author: Mr.. Justice John J. Sullivan

text:
    People of the State of Illinois, Defendant in Error, v. Frank Parker and George Moran, Plaintiffs in Error.
    Gen. No. 41,099.

      Opinion filed May 13, 1941.
    Rehearing denied June 2, 1941.
    Wm. Scott Stewart, of Chicago, for plaintiffs in error.
    Thomas J. Courtney, State’s Attorney, for defendant in error; Egbert E. Wright and John T. Gallagher, Assistant State’s Attorneys, of counsel.
   Mr.. Justice John J. Sullivan

delivered the opinion of the court.

This writ of error is brought by Frank Parker and George Moran to review a judgment and sentence rendered against each of them on verdicts of a jury which found them guilty of conspiracy as charged in the indictment. They with eight other defendants were charged by two counts of the indictment with conspiracy to forge and counterfeit travelers’ checks purporting to be made and issued by the American Express Company, with intent to damage and defraud any and all persons who could be induced to accept said checks and pay the alleged conspirators money or property therefor; and by two other counts with unlawfully conspiring to falsely utter, publish and pass as true and genuine said forged and counterfeited checks with like intent.

Two of the defendants, Carl Silver and Frank Quigley, were not apprehended. Three others, Berger Hanson, Del F. Bruno and Emil Ahrens, who testified for the State, pleaded guilty and were each sentenced to the county jail for one day, the sentences to be considered served on recommendation of the State’s Attorney. The jury returned a verdict of not guilty 'as to defendants Frank Hicketts, alias Frank Boss, Daniel Keller and Bobert Sexton. As already stated there were verdicts of guilty as to defendants Parker and Moran and they were each sentenced to serve one year in the county jail and to pay a fine of $2,000. This writ of error was originally sued out of the Supreme Court, which transferred it to this court.

The record contains more than eleven hundred pages of testimony, but we think the following outline of the essential facts and cieumstances in evidence will afford a proper understanding of the questions presented.

Defendant George Moran testified on cross-examination that he had known Carl Silver about fifteen or sixteen years; that he and Silver had both been in the “bootlegging business” and transacted business with one another; that he saw Silver frequently until the “end of prohibition” and had quite a few business dealings with him during that time; and that “after prohibition” he saw Silver on several occasions and had some business transactions with him. Moran further testified that he met the defendant Frank Parker in Chicago during “prohibition days” and had some transactions with him in the “bootlegging business”; and that he continued to have business transactions with Parker until April 21, 1938, when he and Parker were arrested.

Berger Hanson engraved the plates and printed the counterfeit American Express Company travelers’ checks. Defendant Carl Silver met Hanson about January 3, 1938, and, after showing him an American Express Company travelers’ check, asked him if he could counterfeit same. In response to a telephone call Hanson met Silver about a week later and informed the latter that he could counterfeit the checks and that it would cost. $500 or $600 and take three or four weeks to do the work. Silver said that he would talk to his people about it. Silver picked Hanson up at his place of business in the Rand McNally Building at Clark and Harrison streets on February 11, 1938, and drove' to an office of the American Express Company on Randolph street between Wabash and Michigan avenues. Silver left Hanson in his car and went into the office of the American Express Company, • where he purchased five travelers’ checks, one of the denomination of $100, one of $50, two of $20 and one of $10. Silver returned to his automobile and gave all the checks to Hanson except one of the $20 checks, explaining that they were the copies for reproduction. On that occasion, after Silver gave Hanson $100 in cash, he told him he would give him more later and that they could get rid of $100,000 worth of the checks in Chicago and $50,000 worth in Kansas City. Hanson started to work on the plates for the checks on February 13, 1938, and finished making them about March 20, 1938. He had printed checks of the face value of $20,000 from these plates on March 24, 1938. In engraving the plates and printing the counterfeit checks, Hanson was assisted by defendants Emil Ahrens and Del F. Bruno. • March 26, 1938, Hanson again met Silver and after giving the latter samples of the checks that had been finished he told him that the job was not good enough and that he would have to “make the whole thing over,” which would take another two weeks. Later that same day, at Silver’s request, Hanson went to Jake’s book at Grand avenue and State street, where he met George Moran and Silver and talked with them about the checks. Moran stated that he thought that it was a poor job, that the numbers were not even and made other comments concerning the quality of the work. Hanson told Moran that he was going to make the plates over. Hanson next met Moran at Jake’s book about March 30, 1938, and they had a further discussion concerning the checks. Moran requested Hanson to meet him at Jake’s book again on April 2, 1938, at which time Moran told him that he had a man who wanted $11,000 worth of the checks and that they had to be perfect. Moran said that he wanted these checks as soon as possible and Hanson told him that he would have them ready in about two weeks. A few days later, about April 5, 1938, Hanson went to Jake’s book at Moran’s request, taking with him some black proofs that he had made from the new plates. Moran looked at the proofs and suggested some corrections, which Hanson agreed to make. About April 13, 1938, Silver went to Hanson’s place of business, obtained two sample checks, one of the denomination of $50 and the other of $100, from each of which Hanson cut off a corner so that Silver could not use them. These samples were printed from the new plates. That afternoon Hanson went to Jake’s book, where he met Silver and Moran and the latter said, “You fellows are putting yourselves in a hot spot . . . the West Side bunch were putting up all the money for the checks and that they had given Silver $1,800. ’ ’ Hanson told them that he did not know anything about the $1,800, but that if Silver had received that much from “some West Side bunch,” Silver should give him some more money. Following this discussion Moran told Hanson to print an additional $25,000 worth of checks after he had printed the $11,000 worth of checks, concerning which Moran had talked to him a few days before.

Moran in his testimony admitted the meeting with Hanson ¿nd Silver just referred to, but stated that the purpose of this meeting was to assist Silver in collecting some money from Hanson. In this connection Hanson testified that he never owed Silver any money and nobody ever stated or suggested to him at any time or place that he did owe money to Silver.

At the time of the meeting between Silver, Moran and Hanson at Jake’s book on April 13, 1938, the defendant Bruno was in Kansas City. When Hanson left George Moran and Silver at Jake’s book on that occasion, he stopped at a Postal Telegraph office and sent the following telegram to Bruno in Kansas City: “George wants 36,000. Should we make them. Will be at office tonight. Berger.” The original of this telegram in Hanson’s handwriting was received in evidence after it had been produced by the Postal Telegraph Company upon the trial of this cause. Bruno received the telegram and called Hanson on the long distance telephone from Kansas City on the evening of April 14, 1938. On April 17, 1938, Hanson met Moran by appointment on Harrison street between Clark and La Salle streets, where Moran was waiting in an automobile. Moran asked Hanson if the checks were ready and when the latter inquired, “How do you expect to get any work done if you do not pay for it,” Moran said, “To hell with you guys” and drove away. About 10 a.m. on April 18, 1938, Hanson again met Moran by appointment at the corner of Grand avenue and State street. When he arrived there Moran said to him, “Berger, you got to go along with us or else we will all be broke.” Hanson told Moran that he would have to be paid for the work he had done and Moran agreed to get him some money the next day. Hanson then promised to deliver the cheeks to Moran that evening. Moran telephoned Hanson at the latter’s place of business about 7 o’clock that evening and Hanson agreed to meet him at the same place where he had previously met him on Harrison street. Bruno and Ahrens were at Hanson’s place of business when the latter received Moran’s telephone call. Hanson, Bruno and Ahrens proceeded to wrap up the checks, putting each denomination in a separate package and then wrapping the three packages in one bundle. The three packages contained checks of the face value of $42,000. Hanson and Bruno left with the checks and delivered them to Moran, who was waiting for them in his automobile on Harrison street between Clark and La Salle streets.

Defendant Bruno testified that he accompanied Hanson when the latter met Moran on April 17, 1938, and on April 18, 1938, and that he saw Hanson hand Moran the bundle containing the counterfeit checks in denominations of $20, $50 and $100 and that they had an aggregate face value of $42,000.

Defendant Ahrens testified that he had been a printer for about thirty years and that he assisted Hanson in printing the checks; that the checks were in denominations of $20, $50 and $100 and that he helped to wrap the checks which Hanson and Bruno took out of the former’s shop April 18, 1938.

Emile V. Van Bever was a witness for the State. He had a law office in a suite in the Reaper Block, which he rented from one P. L. Adix, who was the lessee of such suite. Van Bever had met defendant Frank Parker in November, 1937, and had seen him occasionally when he came into Adix’s office to dictate letters to the latter’s stenographer. About February 20, 1938, Parker went into Van Sever’s office and told him that there was going to be a deal on “some paper.” Van Sever asked him what kind of a deal and Parker said that it had to do with American Express Company travelers’ checks and told him that when the checks were ready Van Sever might know some people who would be interested in them and that he could make himself a “little money.” Parker said, that the checks would be ready in the near future and that he would keep in touch with Van Sever. At about that time Frank Boss [Frank Hicketts] had been in the habit of accompanying Parker to Adix’s office, where Van Sever saw him a number of times. About the first part of March Boss told Van Sever that Parker had told him that he had spoken to Van Sever about the “paper deal.” Boss also told Van Sever that he could get him all of the checks he wanted at 15 per cent.

Van Sever went to Savannah, Georgia, about March 16, 1938, and just before he left he had a talk with' Walter Paradowski, a member of the Chicago Police Department assigned to the detective bureau. Upon his return to Chicago Van Sever again talked to Paradowski on the telephone and talked with him personally a day or two later, on March 25, 1938. After these talks with Paradowski Van Sever telephoned Parker on April 1, 1938, and told him that he thought he had somebody “who was interested in some of the paper and that they wanted a sample.” Parker arranged to meet Van Sever at Adix’s office that afternoon and give him a sample. Adix had moved his office to 520 N. Michigan avenue. When Van Sever arrived and stepped off the elevator on the third floor and approached room 316, where he and Adix were located, he saw Parker talking with George Moran. Van Sever spoke to Parker and went into room 316 and when Parker entered the room a short time later he asked Van Sever why he had not spoken to George and Van Sever told him that “he did not suppose that George would be interested in having anyone recognize him in public.” At that time Parker handed Van Sever an envelope in which he found a counterfeit American Express Company travelers’ check with the word “canceled” written in the lower right hand corner thereof. This check was received in evidence.

After receiving the check from Parker, Van Sever immediately delivered it to Paradowski. That evening Van Sever met several representatives of the American Express Company and it was arranged that he would start working on the case for said company. He continued to work actively on the case until after May 5, 1938. During all the time he was engaged in the work concerning which he testified, he talked with representatives of the American Express Company daily and he also talked with Paradowski, the police officer, at least once or twice a week. Under Van Sever’s arrangement with the American Express Company officials he was to continue to consort with Parker and make Parker believe that he was sincerely interested in the enterprise so that he might ascertain what persons were engaged in the conspiracy and just what they were doing. The American Express Company in accordance with its agreement with Van Sever paid him $170 a week for his services.

On April 5,1938, Van Sever met Parker on the sixth floor at 30 N. La Salle street, where Parker occupied desk space in the office of a public stenographer named Miss Springer. Van Sever had lunch with Parker that day in Martin’s Cafe at 33 N. La Salle street. Harold Keyes, an inspector for the American Express Company, by previous arrangement with Van Sever, was in the restaurant and observed the meeting. On this occasion Parker told Van Sever that everything was going along all right on the “paper deal” and after lunch he asked Van Bever to go with him to his office. When they arrived there Parker asked Van Bever to wait a few minutes and “go down the street with him.” Parker not being quite ready to leave, Van Bever excused himself and went down on La Salle street, where he met Keyes and had a conversation with him. Then he returned to Parker’s office and told the latter that he was anxious to get hold “of some of that paper,” that he had a buyer and wanted to know definitely when it would be ready. Parker told him it would be ready in a few days. As they started to walk north on La Salle street Parker said to Van Bever, “I want you to meet a fellow that used to be bodyguard for Jerry Horn here. His name is Frank. Quigley. I want to introduce you to Quigley as being the head of this deal. Everybody is trying to get into this, wants to put this paper on the cuff and I don’t want to do that. So you just tell him you are handling it and you are the head of it. In that way they will keep from bothering me, that they want this paper on time.” On the way to Ahern’s saloon Parker also instructed Van Bever to tell Quigley that the price of the paper was 20 per cent and that it had to be cash. When they arrived at Ahern’s saloon, Parker introduced Van Bever to Frank Quigley, saying, “Quigley, I want you to meet Von, Von here is the head of this deal and anything that he does is all right.” Quigley and Van Bever seated themselves in a booth and had a conversation about the checks. Quigley stated to Van Bever that he could not get any definite idea about when the paper would be ready and that he did not know just what to think about it. He said he and the other “pushers” wanted to get started. Van Bever told him that he thought everything would be ready in a few days now and that “the price would be 20 per cent and it had to be cash.” Quigley then told Van Bever that he had some cards printed, “using the name of J. A. Carpenter, a traveling auditor for the Standard Oil Company.” Van Sever said that he would like to see the cards because he might want to show them to some of the other boys who were in on the deal. Quigley went to the back bar, took out a package and went to the basement, followed by Van Sever. He extracted some cards from the package and Van Sever picked up four or five of them and put them in his pocket. One of these cards was received in evidence. After they returned to the bar room Quigley and Van Sever had some further conversation about the deal. Parker made an appointment to pick Van Sever up at the Medinah Club at 6:15 that evening and left the saloon.

Harold Keyes, the agent of the American Express Company, followed Parker and Van Sever to Ahern’s saloon on the afternoon of April 5. He went to the rear of the bar, sat on a bench there and ordered a drink. He saw Quigley take a package from the back bar, go to the basement with Van Sever and return. He heard Parker introduce Van Sever to Quigley and tell Quigley, “You can talk to Van, Quigley.” Keyes testified that he joined Van Sever at the Pure Oil Building after they left the saloon and that Van Sever gave him one of the A. J. Carpenter cards that Quigley had produced.

That evening Parker picked Van Sever up at the Medinah Club and took him out to his apartment for dinner. While they were there Parker called a number on the telephone and said, “Is Mr. Hanley there? Is George there?” and then hung up. Moran testified at the trial that when he was arrested he was living at 240 E. Delaware place with his wife under the name of Mr. and Mrs. George Hanley.

On April 7, 1938, Van Sever called Parker on the telephone from the office of the American Express Company. Joseph T. Walsh, financial manager of the Express Company, listened in on another telephone and. heard the conversation. In that conversation Van Bever told Parker that he had a letter from New York and read it to Parker over the telephone. He told him that he had a man who wanted $1,000 of the paper and wanted to get it at 15 per cent. Parker said that he would absolutely arrange it so that Van Bever could get it. Parker then told Van Bever to meet him at Trafton’s Gymnasium at 2 o’clock. Mr. Walsh testified that he took this entire conversation down in shorthand and that it was as Van Bever related it.

On April 8, 1938, Parker told Van Bever to go and see Quigley again at Ahern’s saloon, which he did. On that occasion' Quigley told Van Bever that he wanted him to meet some men who were coming in from Canada the following Sunday. He asked Van Bever who was going to take care of the backs for the checks and Van Bever told him he would let him know. After leaving the saloon Van Bever went to Parker’s office and discussed Quigley’s conversation with him. Parker told him it would be all right to meet the people from Canada on Sunday and also told him that everybody had to buy their own backs for the checks.

On April 9,1938, Van Bever saw Quigley in Ahern’s saloon and Quigley showed him a billfold containing an identification card and a small photograph of himself. Quigley said that he had to have his name and address typed in and Van Bever suggested that he would take the card, have it done for him and return it. Quigley told him the address he wanted to put on it. Van Bever took the card to the office of the American Express Company and gave it to Mr. Keyes and after the name and address had been typed on it, he returned it to Quigley. The card and small photograph were received in evidence. The card had typed on its face: “A. J. Carpenter, 3500 Sheridan Road, Chicago, Illinois.” Keyes testified that Van Bever brought the card to him on the evening of April 9, and, after talking with Van Bever about it, he typed the name, “A. J. Carpenter, 3500 Sheridan Boad, Chicago, Illinois,” and gave it back to Van Sever. When Quigley was arrested in Pittsburgh on April 21, 1938, the billfold containing the identification card and small photograph just referred to were in his possession. In Pittsburgh he used the name, “A. J. Carpenter” in signing the counterfeit checks which he passed there.

It should be noted at this point that it was on April 13,1938, that Hanson turned over to Silver two sample checks with the corners cut off, one of the denomination of $50 and the other of $100. The following morning Boss, alias Hicketts, who had been frequenting Adix’s office with Parker and had previously talked with Van Sever about the “paper deal,” went to Van Sever’s room in the Medinah Club and handed him two counterfeit American Express Company travelers’ checks, one of the denomination of $50 and the other of the denomination of $100, the lower left hand corner of each of which had been clipped off. Boss asked, “How do you like these?” Van Sever said, “Frank, now that begins to look like something, let me take them, I want to take them to whoever wants to buy them or bid on some of that paper.” Boss said that it would be all right for Van Sever to take them but he had to have them back at 12 o’clock. Van Sever took the checks to the .office of the American Express Company and showed them to Joseph T. Walsh, the financial manager, Harold C. Keyes, Harry C. Eldridge, a special agent, Charles C. Troyana, a special agent, and Charles J. White, the general manager, all of whom testified that they saw those checks on that day.

On the afternoon of April 13, 1938, Mr. Walsh of the American Express Company, gave Van Sever $150 in cash to buy $1,000 worth of the counterfeit checks at 15 per cent and the same afternoon Troyana met Van Sever in the lobby of the Medinah Club and had a talk with him. He then sat on a chair facing a settee in the front lobby. A short time thereafter Boss came in and Van Bever sat down with him on the settee near Troyana. Van Bever paid Boss some money for some work which Van Bever had arranged for Boss to do so that Van Bever could keep in close contact with him. This work consisted of looking up some records in the offices of the clerks of the superior and circuit courts. Troyana testified that, while they sat in the lobby of the Medinah Club, Van Bever asked Boss, “By the way, is that stuff ready?” Boss said, “Come with me now up to George’s house.” Van Bever said, “No, I don’t want to go there.” Boss said, “It is only three blocks from here.” Van Bever said, “I don’t want to go, you go there.” Boss said, “What the hell are you afraid of? I am with you.” Van Bever said, “No, I don’t want to go, you ’phone him.” Boss went to the telephone and reported that the line was busy. While he was gone Troyana talked with Van Bever and left the Medinah Club. He waited outside and fifteen minutes later saw Boss leave. After Troyana left Van Bever and Boss went back to the telephone booth and Boss dialed a number. Van Bever heard Boss say, “Is George there?” After a few moments, Boss motioned him to come nearer to the receiver so he could hear. Boss said, “George, I wish you would do that for me, I am trying to help a friend and make a little money for myself.” The other party to the telephone conversation said, “Well Frank, you know I can’t do that, I got stuck last year on that deal and it cost me five grand, I can’t do anything under $5,000 worth.” Boss said, “Well, all right, George” and hung up.

On April 15, 1938, Van Bever met Parker about noon. Parker asked Van Bever to go and see Quigley with him. On the way to Ahern’s saloon, Parker said to Van Bever, “I have O.K.’d Quigley with the Dagos for $10,000 worth of the paper.” Van Bever then asked where he came in and Parker told him that he would get $11,000 worth of the paper and give Quigley $10,000 and the other $1,000 would be for Van Bever. When they got to Ahern’s saloon Van Bever told Quigley that Parker said he could get $10,000 worth of the paper and the “stuff” would be ready in a few days. Quigley asked him to drop in the next day and he would have some boys there he wanted him to meet. He said that he and four men were going to take Pittsburgh and Philadelphia and that they wanted to get started. This was a day or two after Moran had told Hanson, “After you get through with this $11,000 worth of checks, why you print up $25,000 more and make them all in one delivery.”

On April 16, 1938, at about 2:30 or 3 p. m. Van Bever went to Ahern’s saloon and saw Quigley at the bar with two men. Quigley told him, “You are just the man I want to see, tell these boys when this stuff is going to be ready. I want you to meet Mr. Sexton and Mr. Driscoll.” Van Bever said, “Well, boys, I think everything will be ready in a few days.” Parker came in about that time and Van Bever said, “Come here, Frank, tell these men when that paper will be ready.” Quigley then introduced Parker to Sexton and Driscoll and Van Bever walked to the front of the saloon. Parker came up to where he was and said, “What are you trying to do, put me in the middle, I do not want to meet any of these people.” Van Bever replied that “he thought Parker should tell them when the stuff was going to be ready.” That evening Parker called Van Bever on the telephone and said to him, “Van, you are absolutely right about the ink on those checks, or the color of them, the boys are going to work all night tonight and all day Sunday to get them out, so stand by and I will let you know,” to which Van Bever replied, “All right.” As heretofore stated this conversation took place on April 16, 1938, and it will be recalled that Hanson testified that Moran tried to get him to deliver the checks on Sunday evening, April 17, 1938, and that they were actually delivered to Moran, according to Hanson and Bruno, on Monday evening April 18, 1938.

Mrs. Bernice Quigley, the wife of Frank Quigley, testified that on the morning of April 19, 1938, she was in the bathroom dressing after having taken a bath; ■that she was fully clad in a house dress when she heard her husband call about 8:30 or 9:00 a. m.; that she went to the door and noticed that the coat of his pajamas had caught in the door and that the door was closed and locked; that she opened the door and. when she did so she saw Frank Parker jump aside; and that when he observed her he said, “Good morning, Mrs.. Quigley.” At the time she testified her husband, Frank Quigley, was in the Allegheny County Workhouse in Pennsylvania.

When Troyana, "one of the special agents for the American Express Company, talked with Quigley in Pittsburgh, the latter told him, “I got the travelers’ checks at my house, they were delivered to me the day before we left for Pittsburgh.”

On April 19, 1938, Van Bever received a telephone call from Parker at the Hartman Drug Store in the Medinah Club. Parker said, “Meet me at the La Salle-Wacker Garage right away.” Van Bever said, “Frank, what time have you got on your watch?” Parker said, “It is 10:20.” Van Bever said, “I’ll be there within fifteen minutes.” Van Bever then called Keyes of the American Express Company on the telephone and proceeded toward the garage with a man named Long, connected with the Burns Agency. Long remained outside. When Van Bever entered the garage Parker was about midway toward the rear thereof. He asked Van Bever if he had the money and Van Bever said that he had $150. Van Bever asked Parker if he had the “paper” and the latter said, “Tes, here is the paper.” Parker handed Van Bever a package wrapped in brown paper with a string around it, which was about four or five inches in length and a couple of inches wide. Van Sever looked inside the package and found some counterfeit travelers’ checks. He asked Parker how many there were and Parker told him $1,050 worth. Van Sever asked what the extra $50 was for and Parker said, “That’s for you.” Van Sever handed Parker $150 in cash, which Mr. Walsh of the American Express Company had given him, and started to leave. Parker called him back and handed him another package telling him that he wanted him to hold this package until Parker should call for it. Parker and Van Sever left the garage. When Van Sever got up on La Salle street he saw Keyes there. Van Sever took a taxicab and went to the office of the American Express Company. Mr. White, the general manager of the Express Company, Mr. Walsh, the financial manager, Mr. Troyana, Mr. Eldridge and Mr. Keyes, special agents, were there, and Van Sever handed both parcels to Mr. Keyes. The package Parker had given Van Sever to keep for him contained counterfeit checks, all of the denomination of $20.

Harold Keyes testified that he received a telephone call from Van Sever at about 10:35 on the morning of Tuesday, April 19, 1938; that he immediately left his office, intercepted Van Sever at Wacker drive, walked with him for about a block and then followed Van Sever to the La Salle-Wacker Garage; that when he got to the garage he saw Parker and heard a girl inside of the garage calling Parker’s name; that he then went back across the street and waited until he saw Parker leave the garage and walk south on La Salle street; that he then returned to the office of the American Express Company, where Van Sever handed him two packages; that one of these packages contained one hundred fifty-three $20 counterfeit checks and the other contained five $100 counterfeit checks and eleven $50 counterfeit checks; and that Mr. Walsh and Mr. Eldridge of the American Express Company took down the numbers of the checks. '

Joseph T. Walsh testified that on the morning of April 19, 1938, Van Bever came into the office of the American Express Company with two packages wrapped in brown paper, one secured with a piece of twine and the other secured with a piece of gummed tape; that the first package was immediately opened and it contained eleven $50 counterfeit American Express Company travelers’ checks and five $100 American Express travelers’ checks; and that he made a list of the numbers of these checks. Walsh testified further that he also made a list of the one hundred fifty-three $20 counterfeit checks contained in the other package; and that the package containing the one hundred fifty-three $20 counterfeits was rewrapped and returned to Van Bever and the other package containing $1,050 in counterfeit checks was retained by him. Both of the foregoing lists were received in evidence.

Charles J. White, the general manager of the American Express Company, testified that he was in the office of the company on the morning of April 19, 1938, when Van Bever came in with two packages containing counterfeit travelers’ checks; that both packages were wrapped in brown paper; that the small one contained five $100 counterfeit checks and eleven $50 counterfeit checks; that the other package contained one hundred fifty-three counterfeit $20 travelers’ checks; that lists were made of the serial numbers of the checks in both packages; that one package was retained by the American Express Company; and that the other package containing one hundred fifty-three $20 counterfeit checks, was returned to Van Bever.

Charles C. Troyana’s testimony was to substantially the same effect in this regard as that of White, Walsh and Keyes.

Later in the day on April 19, 1938, when they were in Parker’s office at 30 North La Salle street, Parker asked Van Bever what he had done with the other package of checks and Van Bever told him that he had left it at the Medinah Club. Parker told Van Bever to get the package because he needed two or three of the checks as there was a man coming in for some. Van Bever then left Parker’s office and met Keyes down on La Salle street. Van Bever and Keyes went to the top floor of the building at 100 N. La Salle street where Van Bever opened the package and took therefrom three of the counterfeit checks. Van Bever remained on La Salle street a short time before he returned to Parker’s office. When Van Bever got off the elevator at 30 N. La Salle street, he saw Parker and Moran in the hallway with a package wrapped in brown paper, which one of them was handing to the other. Keyes testified that when Van Bever left the office of the American Express Company on the morning of April 19, 1938, after bringing the two packages of counterfeit checks there, he followed him to 30 N. La Salle street and remained downstairs; that after twenty minutes or half an hour Van Bever-came out of that building and signaled Keyes to follow him to the building at 100 N. La Salle street; and that he and Van Bever went up to the top floor of said building where Van Bever extracted three counterfeit travelers’ checks from the package which he had with him.

Still later in the afternoon of April 19, 1938, Van Bever was again in Parker’s office at 30 N. La Salle street. At that time there was a typewritten letter on Parker’s desk and after telling Van Bever to add something in writing at the bottom thereof, Parker said, “Well, tell him he can get this paper in 20’s and 50’s and 100’s at 20 per cent.” After Van Bever had written a memorandum below the letter he asked Parker what name to use in signing same and Parker said it was all right to use any name. Van Bever said, “Will J. B. Harrison do?” Parker told him that that was fine and to use an address in care of Johnny Ahern’s saloon. Then Parker asked Van Sever for one of the $20 checks. After signing the name “Frank” to the typewritten portion of the letter Parker placed the counterfeit traveler’s check with the letter in an envelope and put two 3c stamps on the envelope and wrote “Air Mail” thereon. Parker was about to leave the office to drop the letter in the chute when Van Sever said “Frank, you let me mail that, you’re busy.” Parker gave the letter to Van Sever to mail and he took it to Keyes, the American Express Company agen^, who had it photostated.

Keyes testified that about 6 p. m. on April 19, 1938, Van Sever came to the office of the American Express Company and handed him a letter addressed to Mack Carlin, 1640 Ocean avenue, Brooklyn, New York; that Parker’s address, 1618 Jonquil terrace had been on the upper left hand corner of the envelope, but that it had been “erased pretty well”; that he sent the envelope and its contents to be photostated; and that when the envelope and its contents were returned, he sealed the original envelope after replacing the letter and counterfeit check therein and mailed it. Photostatic copies of the. envelope, letter and counterfeit check were received in evidence. The typewritten letter just referred to reads as follows:

“Dear Mack:
“Not having heard from you for quite some time thought I would drop a line to say hello. How are things in the big city? A friend of mine has something that I think you might be interested in, sol am having him write you relative to same. If interested kindly give him an air mail special at once so that he will not make other arrangements in New York. He is a very reliable person. Kindly tell John Popkin that I received the statement or engineer’s report that he mailed me.
“With best personal regards,
“Sincerely yours,
Frank.”

Just below the typewritten letter appeared the following in handwriting:

“Enclosed please find sample. They come in 20-50-100 20 per cent. Let me know how many you can handle and in what denomination,
“Tours truly,
J. E. Harrison, c-o Johnny Ahern,
176 N. La Salle Street.”

Parker admitted that he dictated the typewritten portion of the foregoing letter and stated that Mack Carlin, to whom the letter was addressed, was an old friend of his, but that he knew nothing about the handwritten portion of the letter. He stated that the typewritten portion of the letter referred to air conditioning machinery.

On the evening of April 20, 1938, Parker took Van Sever to his apartment for dinner, where he met Mr. and Mrs. George Moran. They were introduced to Van Sever by Parker as Mr. and Mrs. Hanley. After dinner Moran said he had a “meet” at the Belmont Hotel at 9 o’clock. Parker then drove Van Sever down to Clark and Division streets, where the latter alighted from the car. Van Sever notified three Burns detectives of the meeting at the Belmont Hotel about which Moran had spoken^

Harold C. Keyes testified that he went to the Belmont Hotel a little after 9 p. m. on April 20, 1938, and saw Moran leaning through the doorway of a black sedan talking to somebody; that he entered the hotel and saw Parker walking around the lobby with his hat off; and that later he saw Parker, Moran and another man enter an automobile.

On the night of April 20, 1938, Driscoll, Sexton and Quigley bought tickets at the Union Station and boarded a train for Pittsburgh at 11:15 p. m. Keyes went to the Union Station in response to a telephone call that he had received from one of his operatives and saw Driscoll, Sexton and Quigley purchase the railroad tickets and board the train. Troyana,, another agent for the American Express Company, missed the Pittsburgh train but he took an airplane and arrived in Pittsburgh sometime before Driscoll, Sexton and Quigley did. Before leaving for Pittsburgh on April 20, Keller [Driscoll] and Sexton passed two $50 counterfeit checks in Chicago, one at the Stetson Shoe shop on South Dearborn street and the other at Carson, Pirie, Scott & Company. These checks were received in evidence.

As soon as Troyana reached Pittsburgh he got in touch with the police there and with their assistance kept Keller, Sexton and Quigley under surveillance. They had cashed one $100 counterfeit check and were arrested while in the act of passing another $100 counterfeit check. When they were arrested they had in their possession counterfeit checks in the face amount of $21,050.

Late in the afternoon of April 21, 1938, Van Bever received a telephone call from Parker, who told him that there had been a “snatch” in Pittsburgh and asked Van Bever what he knew about it. Van Bever told him that he did not know anything about it and Parker then told Van Bever to meet him at Bay’s Chop House on Illinois street in twenty minutes and bring with him the package of checks which Parker had left in his care. Van Bever met Parker at the appointed time and place and turned over to him the package containing the $20 counterfeit travelers’ checks which Parker had theretofore given him, and Parker said, “I have just talked to George, some son-of-a-bitch is going to get killed, there are too many people in this deal, what, do you know about it?” Van Bever replied that he did not know anything about it. Parker then said, “What are you so nervous about? Quigley is O. K. Quigley is a stand-up-guy; nothing to worry about.” Parker and Van Bever then drove south on the under-pass below Michigan avenue and Parker said, “I think Boss is the son-of-a-bitch that tipped this off, and if he did he is going to get killed.” Van Bever said, ‘Well Frank, before you hurt anybody, I would be sure that you got the right man. ’ ’ They went into the Lower Deck Tavern on the lower level of Michigan avenue and Parker went to the telephone booth in the rear. When he returned he said he had just talked to George and George was on his way to the tavern. They had several drinks, during which time Parker made several trips to the telephone booth and Van Bever saw him go into the lavatory once or twice. Later that evening Parker telephoned Van Bever and asked him to find out from his friend at the detective bureau how many of the counterfeit checks Keller, Sexton and Quigley had when they were arrested in Pittsburgh. He also asked him to come down and meet George but Van Bever told Parker that he was tired and was going to bed. That same evening Parker was arrested at 7:30 p. m. in Miss Springer’s office at 30 N. La Salle street. Moran was also arrested that evening at 11 p. m. at his apartment, 240 E. Delaware place.

On April 23,1938, Van Bever with Charles J. White and Harold C. Keyes of the American Express Company and Detective Paradowski, went to the Lower Deck Tavern on the lower level of North Michigan avenue. Van Bever went inside while the others remained outside in the automobile. While he was in the tavern he made a search of the lavatory and found in a hole in the wall under the drain pipe from the lavatory, in the space back of the plaster board, a roll of counterfeit travelers’ checks with a rubber band around it. He took it out exactly as he had found it and handed it to Keyes.

Keyes, testified that he went with the aforementioned persons to the Lower Deck Tavern; that Van Bever entered same alone; that when Van Bever returned to the automobile from the tavern he gave him a roll of $20 counterfeit checks, which he had found in the men’s toilet room. The testimony of Charles J. White in this regard was substantially to the same effect.

On April 24, 1938, after Parker had been released on bond, he telephoned Van Bever and asked him to meet him at Bay’s Chop House on Illinois street. Parker drove up in a Ford car, picked up Van Bever and they drove south under Michigan avenue to the Lower Deck Tavern. While they were in the tavern Parker said to Van Bever, “You are a lucky son-of-a-bitch, we have looked into it and it does not look like you are the tip-off man at all.”

On the early afternoon of April 26, 1938, Parker went to Van Bever’s office in room 316, 520 N. Michigan avenue, Parker having made this appointment by telephone. When Van Bever entered the office Parker was already there and asked, “Is there anything new?” Van Bever said, “No there is not anything new.” Parker said, “Well, stick around a little bit, George is on his way down.” In a little while Moran entered the office and said “hello.” Moran then said, “You haven’t anything to worry about, they have not anything on us.” Parker then said, “I think I will go to Pittsburgh.” Moran said, “Don’t go,” or “I don’t think I would go,” or something to that effect.

On April 28, 1938, Moran telephoned Hanson and asked him to go to Jake’s book. When Hanson got there Moran said that he supposed Hanson had read the papers. Hanson said that he had read them and that he supposed that they were all “washed up.” Moran then said, “No, we will take care of you, but you better destroy some of those copies you have up there.” He told Hanson to hide the plates so nobody could get hold of them. Hanson agreed to do so. About the middle of August Carl Silver called Hanson and asked him for the plates from which he had made the checks. Hanson told him that he had already melted them. Silver asked him if he had any of the metal left and Hanson said that he had the melted zinc. Silver then told him to take it flown in front of 727 S. Dear-born street and give it to Moran.. Hanson went to the place designated with the can of metal and handed it to Moran, who was in the car with several other men, and Moran handed him $2.

When Sexton and Keller were brought to trial in Pittsburgh they each entered a plea of guilty and were sentenced there. Both Sexton and Keller testified upon the trial of this case that Van Bever had given them the counterfeit checks, telling them that they were genuine American Express Company travelers’ checks, which he had purchased at a discount at a bankruptcy sale, and that he did not want to dispose of them in his own name, but that he would give Sexton, Keller and Quigley a commission if they would sell them for him; and that Van Bever also told them that he desired their assistance in order to avoid any civil action that might be brought against him. They testified further that Sexton assumed the name of Sloan, Keller assumed the name of Driscoll and Quigley assumed the name of Carpenter at the suggestion of Van Bever.

Moran in his testimony denied that he had any part in the conspiracy. Parker testified in effect that he was a substantial business man; that he owned gold mines in Colorado and two Chicago breweries and denied that he had any part in the conspiracy. A certified transcript of the record of conviction in the criminal court of Cook county of George Moran in 1917 of the crime of robbery and a certified transcript of the record of conviction in the criminal court of Cook county of Frank J. Parker in 1914 of the crime of burglary were received in evidence.

Defendants’ contentions as stated in their brief are as follows:

“It is respectfully contended that the verdict rests entirely upon the uncorroborated testimony of accomplices.
“Before the trial in the case at bar, while Sexton, Keller and Quigley were serving jail sentences in the East, the state brought Parker, Moran and Hicketts to trial before Judge Fardy in the criminal court of Cook county. On the same evidence produced here a jury found Parker, Moran and Hicketts not guilty. An offer to prove said fact in support of a claim of former jeopardy on behalf of these defendants was denied by the trial court.
“It is also contended that the court erred in other rulings concerning the evidence and in the giving and refusing of instructions.
“Further that the acquittal of Sexton and Keller as principals precludes the guilt of Parker and Moran as accessories. Also we present a federal question, claiming that due process of law was not afforded the defendants as guaranteed by the 14th Amendment to the Constitution of the United States.”

The evidence shows conclusively that the defendants Parker and Moran entered into a conspiracy with others to forge and counterfeit checks purporting to have been issued by the American Express Company and to publish and pass said forged and counterfeit checks with intent to defraud such persons as could be induced to accept them and pay the conspirators money or property therefor. There is an abundance of evidence in the record to show beyond any reasonable doubt that Parker and Moran were prime movers in the conspiracy.

There is no merit in defendants’ contention, that their conviction resulted entirely from the uncorroborated testimony of accomplices. It clearly appears from the evidence that Van Bever never entered into the conspiracy and that he therefore never became an accomplice. According to Van Bever shortly after Parker broached the counterfeit scheme to him, he notified his friend Paradowski, the police officer, who in turn related the facts to the officials of the American Express Company. That company employed Van Sever as an investigator to keep in touch with the situation and follow it through and to keep the representatives of the Express Company informed as to the results of his investigation as it progressed. He followed the instructions and directions given him and kept the representatives of the American Express Company fully advised of his activities at all times so that Harold C. Keyes and other Express Company agents, as well as the Burns operatives could observe his contacts with those engaged in the conspiracy. Neither knowledge nor concealment of knowledge that a crime is being or is about to be committed can constitute one an accomplice, and the generally accepted test as to whether a witness is an accomplice is whether he himself could have been indicted for the offense, either as principal or as accessory. (People v. Hrdlicka, 344 Ill. 211.) Van Bever’s entire career, including all the circumstances bearing upon his association with some of the defendants, including Parker and Moran, was placed before the jury and the question of his credibility was purely for the jury. His testimony was corroborated in many material and essential respects by that of Harry O. Eldridge, Harold O. Keyes, Charles C. Troyana, Joseph T. Walsh and Charles J. White, highly reputable officials and representatives of the American Express Company, as well as by numerous documentary exhibits in evidence.

It is true that the witnesses, Hanson, Bruno and Ahrens were accomplices and the rule is that the testimony of an accomplice is competent evidence and may be sufficient to sustain a conviction, although uncorroborated, if it is of such a character as to prove" guilt beyond a reasonable doubt, but is always subject to grave suspicion and should be acted upon with great caution. There was some corroboration of Hanson’s testimony and we think that his testimony, as well as that of Bruno and Ahrens was of such a nature that the jurors were fully warranted in believing same. Their evidence establishes beyond a reasonable doubt the actual counterfeiting phase of the conspiracy.

Defendants complain that the testimony of the witness Van Bever was incompetent and prejudicial in the following instances: (1) “Frank Parker said to me, well, I knew Ollie for a number of years before he went to the penitentiary in Stateville. I said I knew Ollie when he used to run around with — Mr. Stewart: Now, your Honor, we move to strike that, not material, what he knew about Ollie Berg. Ollie Berg is not figuring in this case. The Court: Well, I don’t see how it is material. Mr. Wright: It is not as to Ollie Berg, except it is a conversation that shows the development of their acquaintanceship. Mr. Stewart: I object and move to strike it out, your Honor. The Court: Strike it out.” (2) “Q. Tell the Court and jury what was said and done there at that time? A. Frank Parker said to me, ‘There is a deal on some paper. It is going to be a lot of money made. I had a deal a year or two ago, — ” Mr. Stewart: I move to strike that out, that reference to any deal two or three years ago. That could not be material here. The Court: Strike it out.” (3) “Parker then came back to the table or the booth. Speedy said, ‘I wonder where I could get hold of a good printer? I was with the Yellow Kid Weil today. I got to get a printer.’ That is about all of that transaction. Mr. Stewart: Your Honor, may we have that stricken about being with Yellow Kid Weil. The Court: Strike it out.”

It will be noted that in each instance the foregoing testimony was immediately stricken upon the objection and motion of defendants’ counsel. In the last two instances quoted the answers of the witness were not made in. response to direct questions asked for the purpose of eliciting the statements made by Van Bever and it cannot be said that any of the foregoing answers made by him were of such a prejudicial nature as to warrant reversal in view of the overwhelming evidence of the guilt of plaintiffs in error.

There is no merit to the contention of plaintiffs in error that their counsel were unduly limited in their cross-examination of Van Bever, Hanson, Bruno and Ahrens. Numerous instances are pointed out as to which it is claimed that the trial court improperly sustained objections to questions asked the aforesaid witnesses on cross-examination. We have carefully examined all the instances of undue limitation of cross examination complained of and find that the questions asked were either argumentative or otherwise improper or concerned matters which were immaterial or had already been covered. Defendants’ counsel were not only not unduly limited in their cross-examination but the record discloses that they were allowed the widest latitude consistent with the rules governing proper cross-examination We find no basis in the record for the suggestion of counsel for plaintiffs in error that the jury might well have received the impression from the conduct and rulings of the trial judge that he was “on the side of the State,”

Plaintiffs in error contend that nine of the fifteen instructions preferred by the State were erroneously given to the jury by the trial court and that the trial court also erred in refusing to give to the jury five instructions proffered by the defendants. We have carefully examined all the instructions given by the court and are satisfied that the jury was fully and fairly instructed as to the law applicable to every phase of this case, both from the standpoint of the prosecution and the defense. To analyze and discuss each of the “given” instructions objected to would serve no useful purpose and would only further lengthen this already long opinion. Defendants’ refused instruction No. 42 is as follows: “ A person cannot be put into a crime by the acts and conduct of other persons alone.” The court did not err in refusing to give this instruction since it merely stated an abstract principle of law and in any event it was covered by other instructions given to the jury. As to the other four instructions which the court refused to give, it is sufficient to state that they did not apply to any theory of defense of Parker or Moran. They dealt solely with the defense of entrapment advanced by defendants Sexton and Keller. These instructions could not have pertained to Parker and Moran since both of them denied that they knew anything about the counterfeit checks, that they had any knowledge of the conspiracy or that they participated in it.

It is also contended that the trial court erred in refusing to permit plaintiffs in error to offer proof of former jeopardy. Sometime prior to the trial of the case at bar, while Sexton, Keller and Quigley were serving sentences in Pennyslvania imposed upon them for passing the American Express Company checks in Pittsburgh, Parker, Moran and Hicketts were indicted in the criminal court of Cook county on a charge of forging and uttering the check which was cashed at the Stetson shop in Chicago on April 20,1938. They were brought to trial in the criminal court before the same trial judge who tried this case and acquitted. In our opinion there was no former jeopardy and neither was there any proper offer of proof of former jeopardy.

It is idle to urge that the acquittal of Sexton and Keller precluded the guilt of Parker and Moran as accessories. Parker and Moran were indicted, tried and convicted as principals and the evidence clearly shows their guilt as such.

Convinced as we are that plaintiffs in error received a fair trial and that the record discloses that no reversible error was committed upon the trial, the judgment and sentence of the criminal court of Cook county as to defendants Frank Parker and George Moran are affirmed.

Affirmed.

Friend, P. J., and S candan, J., concur.


source: Caselaw Access Project

author: Mr. Presiding Justice O’Connor

license: Public Domain

text:
    Stern, McGiveny and Company, Appellee, v. Keeshin Motor Express Company, Inc., Appellant.
    Gen. No. 41,602.

      Opinion filed May 19, 1941.
    Floyd F. Shields and Zachary D. Ford, Jr., both of Chicago, for appellant and cross-appellee.
    Murray Miller, of Chicago, for appellee and cross-appellant.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.

Plaintiff brought an action against defendant to recover $477.75 claimed as damages occasioned by delay in transporting a carton of nested fur felt hat bodies from Chicago to Dallas, Texas. The defense interposed was that while defendant was “a common carrier by motor vehicle engaged in transporting property for hire” it did not hold itself out to transport property between Chicago and Dallas, Texas, and that the transportation of the goods in question was made by carriers other than defendant. There was a trial before the court without a jury and a finding and judgment in plaintiff’s favor for $238.87, from which defendant appeals. Plaintiff prosecutes a cross-appeal claiming it was entitled to a judgment for the full amount of its claim.

The record discloses that September 7, 1939, plaintiff at its place of business, 65 E. South Water street, Chicago, delivered to defendant four cartons of nested fur felt hat bodies and one package of cotton and rayon ribbon to be transported to the Felix Hat Company of Dallas, Texas. At the time, defendant’s representative who called for the goods executed and delivered to plaintiff an original and duplicate uniform, straight bill of lading. In the blank space following the printed word “Route” in the duplicate bill was written in pencil “Keeshin Motors” which was stricken out, and following this “M.K.C.,” while in the original after the word “Route” was written “M.K.C.,” although it appears there had been an erasure of some other name written where these letters appear. Three of the cartons and the package of ribbon were delivered to the consignee in Dallas, Texas, in due time but one of the cartons, for some reason not explained, was delayed and was not tendered to the consignee until September 25, which was too late and the consignee refused to receive it. Afterward the carton was returned to Chicago and tendered to plaintiff who refused to accept it on the ground that the felt hat bodies were then of no value because it was too late in the season. There is evidence to the effect that afterward plaintiff tried to sell the hat bodies to a number of persons but was unable to do so because it was too late. There is further evidence in the record that the hats in the carton were invoiced at $477.75, and this was the reasonable value of them.

Counsel for defendant in their brief say defendant “is a motor common carrier engaged in the transportation of property for hire, and, as such, is subject to Part II of the Interstate Commerce Act (49 U. S. C. A. 301, et seq.). In addition to its line haul operations, that is the actual hauling of freight over the highways in motor vehicles, the defendant also conducts a local pick up and delivery service in the City of Chicago for railroads and other motor carriers.”

Defendant’s position is that in the handling of the goods in question it merely picked them up at plaintiff’s place of business and delivered them to the M.K.C. truck company for transportation by that company to Dallas. As we understand counsel, the contention is that the delay in the transportation of the goods was occasioned by the M.K.C. truck company and therefore it and. not defendant is liable for the resulting damages. We think the evidence does not sustain the contention. It shows defendant’s representative, pursuant to a telephone call, picked up the goods at plaintiff’s place of business and executed the original and duplicate bill of lading. The general freight claim agent of defendant testified defendant was a common carrier by motor vehicle and operated under the jurisdiction of the Interstate Commerce Commission; that in addition to its common carrier service it performed additional service for other common carriers in Chicago — picked up freight for them; that its place of business and telephone are the same as the M.K.C. truck company.

We think defendant was liable as a common carrier for the damages sustained by plaintiff. Section 20, Cummins (Carmack) Amendment, Interstate Commerce Act 1915. And even if defendant’s business was only to pick up the merchandise and deliver it to the M.K.C. company, as it contends, it is liable because it failed to show the delay was not occasioned by its negligence. The goods were delivered to defendant and there is no evidence explaining what occasioned the delay in forwarding it to Dallas. Whether it occurred in Chicago or elsewhere, the burden was on defendant to explain the delay. Marsh L. Brown & Co. v. Chicago, N. Y. & B. Refrigerator Co., 207 Ill. App. 89.

Defendant further contends “plaintiff is not entitled to special damages as no notice was given to the carrier or carriers informing them of the special circumstances requiring expeditious handling” and that it was the duty of plaintiff to accept the merchandise when it was tendered upon its return to Chicago.

While counsel for defendant cite authorities such as Wolfe v. Weir, 61 Misc. 57, 112 N. Y. S. 1078, and Lichtenstein & Co. v. Fargo, 66 Misc. 149, 121 N. Y. S. 327, which seem to sustain their contention, we hold the better rule as applied to the facts in the instant case is stated in the later case of Freegood v. Barrett, 172 N. Y. S. 353, where suit was brought to recover damages caused by delay in the shipment of two boxes of women’s lingerie. The court there said: “On the stipulated statement of facts, the questions of special damage and whether there was due notice to the carrier of the seasonable character of the goods are not in the case at all. The measure of damage is the difference in the market value of the goods at the consignee’s address in West Virginia at the time of shipment and at the time when the goods were finally offered back to the plaintiffs. It matters not what the cause of the reduction in market value was.” Moreover we think it is common knowledge that material for ladies’ hats must be disposed of expeditiously to prevent loss.

In the instant case the evidence shows, and there was none offered to the contrary, that when the goods were tendered back to plaintiff they were of no value. In these circumstances we think plaintiff was entitled to recover the loss it had sustained and the court should have entered judgment for the full amount of the claim. The judgment of the municipal court of Chicago is therefore reversed and judgment entered in this court in favor of plaintiff and against defendant for $477.75, the court costs to be borne by defendant.

Judgment reversed arid judgment in this court.

Matchett and Me Surely, JJ., concur.


author: Mr. Justice McSurelt

text:
    Thomas Wiedow et al., Plaintiffs Below. Thomas Wiedow, Appellee, v. Ellen Alden Carpenter et al. Appeal of Ellen Alden Carpenter and Landmore Liquor Company, Appellants.
    Gen. No. 41,568.

      Opinion filed May 19, 1941.
    Rehearing denied June 13, 1941.
    Ekern & Meters and Sidlet, McPherson, Austin & Burgess, both of Chicago, for appellants; Donald L. Thompson, Bussell H. Matthias, Vernon A. Forsberg, Adlai E. Stevenson, Balph F. Himmelhoch and Charles F. Martin, all of Chicago, of counsel.
    Samuel A. Binella, of Chicago, for appellee; Joseph Barbera and Harrt Gr. Fins, both of Chicago, of counsel.
   Mr. Justice McSurelt

delivered the opinion of the court.

This is an action under the Dram Shop Act. (Ch. 43, par. 135, § 14, art. 6, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 68.042].) Upon trial by a jury plaintiff had a verdict and judgment for $20,000 against Ellen Alden Carpenter, the owner of the premises and Landmore Liquor Company, a corporation, which operated the dram shop, and Sigurd Erickson, the assailant who injured plaintiff. The first two named defendants appeal.

It is conceded that Ellen Alden Carpenter on November 14, 1938, the date of the instant occurrence, owned the property at 1046 Leland avenue, in Chicago; that defendant Landmore Liquor Company was her tenant, operating a tavern on the premises, selling alcoholic liquors. On the day in question plaintiff, at about 5 o’clock in the afternoon, went into the tavern for a glass of beer; he remained there fifteen or twenty minutes; he was carrying two bundles; as he was leaving the tavern he accidentally dropped one bundle and as he stooped to pick it up defendant Erickson fired a blank cartridge from a pencil gun into plaintiff’s rectum; plaintiff did not know Erickson and had no conversation with him while in the tavern; he started for home and had gone a short distance when he felt blood running down into his shoes; he felt dizzy and fell, was picked up and assisted to his home and later taken to the Lakeview Hospital, and then to the Hines Hospital, as he was a veteran of the Spanish-American War. He was seriously injured.

Although there is some dispute, it was sufficiently proved that. Erickson was drunk at the time of the shootingi A witness testified that Erickson shot the pencil gun several times before he shot plaintiff; that he was served repeatedly with drinks and was drunk the first time he took out his pencil gun, and continued to drink after that for about half an hour or forty-five minutes. Lewis, the bartender, testified he served drinks to Erickson during the time he heard reports from the pencil gun; that Erickson shot the weapon about four times before shooting plaintiff; that he continued to sell Erickson liquor after he determined that he was intoxicated. There is little if any dispute as to the facts.

Counsel for defendants cite a number of alleged procedural errors which it is claimed require a reversal. It is said the court erred in overruling the motion of the dram shop defendants for severance and a separate trial from defendant Sigurd Erickson. It is argued that it tended to confuse the jury to submit a charge against the owner of the premises and the tavern keeper, under the Dram Shop Act, and at the same time a charge against Erickson seeking damages because of a wilful and wanton assault by him upon plaintiff.

The three defendants were properly joined in the one complaint. Section 24 of the Civil Practice Act (ch. 110, par. 148) provides for the joinder of defendants in one action when a liability is asserted against them arising out of the same transaction, regardless of the number of causes of action joined, and Rule 12 of the Supreme Court (ch. 110, par. 259.12) provides that different breaches of duty, whether statutory or at common law, ‘1 growing out of the same transaction, or based on the same set of facts may be treated as a single claim or cause of action, and set up in the same count.” In Baker v. S. A. Healy Co., 302 Ill. App. 634, the Healy company was sued on the basis of negligence, the Sanitary District of Chicago on the basis of liability by reason of the State Constitution and the Sanitary District Act, and the city of Chicago was also sued because it permitted dangerous work to be done in the street; a motion was there made to dismiss because of the purported misjoinder of the parties. It was held proper to join the three defendants in the same complaint although the liability of each defendant was upon a different basis. While the respective claims may be differently named, yet they are based on the same occurrence. Defendants cite Randall Dairy Co. v. Pevely Dairy Co., 278 Ill. App. 350. There the plaintiff joined in a single count a cause of action for slander and a cause of action for enticing away plaintiff’s servants. This was held bad as the breaches did not grow out of the same transaction, nor were they based on the same set of facts. In the instant case the breaches were baséd upon the same set of facts, and an order of severance would simply mean two separate trials presenting the same facts.

Section 51 of the Civil Practice Act provides that actions may be severed or consolidated, as an aid to convenience, “whenever it can be done without prejudice to a substantial right.” See Barnes v. Swedish American Nat. Bank, 371 Ill. 20, 25.

The complaint set out the Dram Shop Act, and specifically the section (par. 135, § 14, art. 6) which provides for “exemplary damages” by stating that one who “shall knowingly permit therein the sale of any alcoholic liquors that have caused, in whole or in part, the intoxication of any person, shall be liable, severally or jointly, with the person or persons selling or giving alcoholic liquors aforesaid, for all damages sustained, and for exemplary damages. ’ ’ This reasonably informed defendants of the nature of the claim which they would be called upon to meet. This was sufficient. Section 42, Civil Practice Act.

When the case came on for trial and Frank Lewis, the bartender for the Landmore Liquor Company, had testified he had sold Erickson liquor while he was intoxicated, the court allowed an amendment to the amended complaint in order to conform to the proof. This amendment alleged that the Landmore Liquor Company, through its agents, wilfully continued to serve intoxicating liquor to defendant Erickson while he was in an intoxicated condition prior to the shooting in question, which intoxicating liquor aggravated the intoxicated condition of Erickson, and that this sale was made wilfully and wantonly, entitling plaintiff to recover, from defendants Carpenter and the Liquor company, punitive damages in addition to the actual damages sustained. It was proper to allow this amendment. Section 46 of the Civil Practice Act provides that a pleading may he amended at any time to conform the pleadings to the proofs. Jackson v. Jackson, 294 Ill. App. 552; Duncan v. Kammeier, 206 Ill. App. 207. We also note that defendants made no motion to strike this amendment but, by stipulation of the parties, filed an answer thereto.

Two physicians connected with the Hines Hospital, Dr. Brown and Dr. Martin, testified as to the extent of plaintiff’s injuries. In an attempt to impeach their testimony defendants sought to introduce a summary of the hospital record which contained the statement, “The wound healed, he has good rectal sphincteric control.” This portion of the summary was not admitted. It was composed by a board of physicians only one of which examined and treated plaintiff. Hone of these physicians was called as a witness. The summary was merely the conclusion of the physicians, who based their opinions not upon an examination of the patient but upon examination of the hospital record. A similar point was involved in Branch v. Woulfe, 300 Ill. App. 472, where a hospital record made by a doctor not a witness in the cause was properly excluded. See also Plewe v. Chicago Motor Coach Co., 283 Ill. App. 57.

Moreover, the statement in the summary which was ruled out by the court was conveyed to the jury in the cross-examination of Dr. Brown. The statement in the summary was read to him: “The wound healed, he has good rectal sphincteric control,” and when asked as to whether that was true the doctor replied he did not know about the patient’s sphincteric control ; that his signature was not on the report and that he had nothing to do with it.

Defendants complain of the action of the trial court in excluding written reports prepared by two professional investigators who claim to have written down what certain witnesses for plaintiff told them. These reports were not signed by the witnesses. Although counsel do not agree as to what took place in this connection, we think it can be said that while these investigators did take the stand they did not testify as to any statements made by the witnesses for plaintiff contrary to their testimony upon the trial. The investigators were not devoid of recollection as to what the witnesses for plaintiff had said, hence Koch v. Pearson, 219 Ill. App. 468, does not apply. It would be a dangerous practice to admit into the record a written report by a professional investigator of what purported to be contrary statements (unsigned) made by a witness.

We find no reversible error in the instructions given on behalf of plaintiff. Twenty-three instructions were given by the court: ten for plaintiff and thirteen for defendants. Plaintiff’s instruction No. 1 is criticized as dealing with concurrent negligence. It is said there was no concurrent negligence involved in the case. If this were true the instruction was harmless, but in view of the evidence of the bartender Lewis as to serving of liquor to Erickson after he was intoxicated, the jury could find there was concurrent negligence. Plaintiff’s instruction No. 2 was in the words of the Dram Shop statute and was properly given. Reisch v. People for use of Stringer, 229 Ill. 574, 577.

Plaintiff’s instruction No. 3 told the jury that if they found the Landmore Liquor Company sold alcoholic liquor to Erickson after he became and was intoxicated in the tavern by reason of drinking such liquor, and if they further found that defendant Carpenter was the owner of the property, and the assault made by Erickson upon plaintiff was the result of such intoxication, then the jury may assess exemplary damages. Having in mind the testimony of Lewis, the bartender, that he sold Erickson liquor, the testimony of another witness that Erickson was drunk the first time he shot the gun and kept on drinking and that he had four drinks when the witness first saw him weaving around and he had some more drinks after that, the instruction was proper.

A similar instruction was approved in Rude v. Fakes, 143 Ill. App. 456, and also Jacoby v. Stark, 205 Ill. 34. In the latter case it was held that exemplary damages “may be recovered as part of the general damages if the evidence discloses a proper case for the infliction thereof.” See also Taneski v. St. Louis M. B. T. Ry. Co., 230 Ill. App. 300. It is said there is no evidence to justify exemplary damages. A similar objection was made to an instruction given in Buck v. Maddock, 167 Ill. 219, where it was held that giving intoxicating liquor to one already under the influence justified giving the instruction with reference to ex- ■ emplary damages. See also England v. Cox, 89 Ill. App. 551. We might add that the amount of the verdict does not indicate that exemplary damages were allowed. We see no reversible error in the instructions given on behalf of plaintiff.

It might be noted that the instructions given at the request of defendants safeguarded all the rights of defendants. As was said in Crosby v. DeLand Special Drainage District, 367 Ill. 462, “Ho instruction need state all the law in a case. It is sufficient if, taken as a series, the jury is correctly advised as to the law applicable to the case. (Minnis v. Friend, 360 Ill. 328.)”

The verdict was not excessive. When plaintiff was taken to the hospital he was operated upon under a spinal anaesthetic; there was a lacerated wound of the perineum, rectum and anus; it was necessary to perform the operation of colostomy, which is an artificial opening through which the fecal matter may be carried off to one side; in, this operation the intestines are brought from the abdominal cavity to the outside ; the dead tissues of the rectum were trimmed away; this was done for the purpose of keeping the rectum and anus clean so that it could be irrigated and washed from below and from above; the colostomy remained from November 17, 1938, to February 1, 1939, when he was again placed under an anaesthetic and the hole in the colon was sewed up; scar tissue extended from the skin into the rectum for about three inches and above the sphincter muscles; he was discharged from the hospital on' February 20, 1939. The sphincter muscles were lacerated and permanently damaged; the scar tissue irritates the sphincter muscles and removes the sensation that is necessary for control of the bowels. The doctors testified that he will suffer from rectal trouble for the rest of his life; that his bowels move unconsciously, which, in addition to his physical inconvenience and suffering, deprives him of employment possibilities, due to the reluctance of others to remain in his company, as his condition makes him offensive to others. Plaintiff was a painter and decorator by trade; he was sixty-three years of age when he was injured; previous to this injury he was earning $10 a day; after he left the hospital he was working for $6 a day; before the injury he weighed 174 pounds and afterwards 155 pounds. We cannot say that $20,000, the amount of the judgment, is exces- • sive considering the seriousness and permanency of plaintiff’s injuries. .

Other points are argued for reversal, but nothing of substantial importance. The facts are virtually undisputed, and there were no reversible errors committed upon the trial.

The judgment is therefore affirmed.

Judgment affirmed.

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


author: Mr. Justice McSurely

text:
    Peoples Gas Light and Coke Company, Appellee, v. William W. Hart et al., Persons Constituting Illinois Commerce Commission, and John E. Cassidy, Attorney General, Appellees. City of Chicago (Intervening Petitioner), Appellee. Mary Sowers and John Nelson (Intervening Petitioners), Appellants.
    Gen. No. 41,578.

      Opinion filed May 19, 1941.
    Leonard & Leonard, of Chicago, for appellants; Edmund G. Pabst, of Chicago, and Gordon MoLeish Leonard, of counsel.
    John E. Cassidy, Attorney General pro se and for certain appellees; Montgomery S. Winning and Losing B. Moore, Assistants Attorney General, of counsel.
    Barnet Hodes, Corporation Counsel, for certain other appellee; James J. Danaher, Assistant Corporation Counsel, of counsel.
    Dailey, Dines, White & Fiedler, of Chicago, for certain other appellee; Edward H. Fielder, John M. Connery, Joseph B. Gray, all of Chicago, of counsel.
   Mr. Justice McSurely

delivered the opinion of the court.

Mary Sowers and John Nelson asked leave to file an intervening petition on behalf of themselves and other gas customers of the Peoples Gas Light and Coke Co.; it alleged the gas company had collected from petitioners and others excessive charges for its services and that it should be required to pay interest at the legal rate upon such excessive charges. Leave to file this petition was denied by the circuit court, and Sowers and Nelson (hereafter called petitioners) appeal.

A short summary of this litigation is necessary. September 1, 1936, the gas company filed its complaint in the circuit court of Cook county against the members of the Illinois Commerce Commission and the Attorney General of Illinois to restrain the enforcement of the schedule of rates fixed by the commission for the use of gas, which was alleged to be confiscatory. The city of Chicago intervened. February 4, 1938, the circuit court decreed the rates were confiscatory and entered an interlocutory order enjoining their enforcement; the commerce commission and the attorney general appealed to this court, where the interlocutory order was reversed. (Peoples Gas Light & Coke Co. v. Slattery, 287 Ill. App. 379.)

February 4, 1938, the circuit court entered a final decree sustaining the claims of the gas company, which also contained provisions reciting that the court was advised defendants intended to perfect an appeal from the decree restraining the enforcement of the schedule of rates fixed by the commissioners, and, for the purpose of protecting the rights of the gas consumers, it was ordered that any moneys collected by the gas company in excess of the present rates should be impounded; it was further provided that the gas company should deposit as a special fund with the American National Bank & Trust Co. of Chicago the alleged excess of rates; that in the event it should be finally judicially determined that the decree be reversed and that plaintiff was not entitled to an injunction against the enforcement of the schedule of rates, the gas company should refund to its respective customers any sums paid by them to it in excess of the rates set forth in the schedule of rates fixed by the commissioners. But in the event it should be finally determined on appeal that the decree of the circuit court be affirmed and plaintiff was entitled to enjoin enforcement of the schedule of rates, all the funds so deposited should be immediately released and paid over to the gas company by the bank depositories. On the appeal the above refund provisions of the decree were not challenged by any of the parties. Subsequently the First National Bank of Chicago was also named as a depository.

Pending the appeal to the Supreme Court, the gas company deposited with the named banks all amounts collected by the company from its customers in excess of the rates in the schedule.

On the appeal to the Supreme Court (373 Ill. 31) the challenged rates were held not to be confiscatory and that court remanded the cause to the circuit court with directions to dismiss the gas company’s complaint. Upon reinstatement of the case in the circuit court the attorney general, representing the commission, the corporation counsel, representing the city of Chicago, and counsel for the gas company agreed that the refunding decree of May 24, 1940, should be entered. It is that decree which is now questioned by petitioners. That decree found the company had collected and deposited with the two banks a sum aggregating over $6,000,000, and required the gas company to refund this entire amount to the customers from whom it had been collected.

It is stated in the brief of the appellees that the question whether the company should be required to pay interest on these payments was fully considered by all the parties and by the court, and that the decree entered did not require the company to pay interest. The decree also designated and appointed the attorney general and the corporation counsel to continue to represent the rights of the various persons entitled to refunds.

It is stated that since the date of this decree the company has refunded from the impounded funds in the banks sums aggregating over $4,000,000, or more than two thirds of the total of the refunds payable. It is also stated that the only complaint of any of the more than 800,000 customers of the gas company is the one by Sowers and Nelson now before the court. It is also stated that the gas company has never been able to ascertain whether Sowers and Nelson are or ever were customers of the gas company or entitled to any refund, and their counsel have refused to give information as to their street addresses, and from the list of customers kept by the gas company they are unable to determine whether Sowers or Nelson were customers and have accepted the benefits of the. refunding decree.

The final circuit court decree of February 4, 1938, was severable. As we have seen, it enjoined enforcement of the schedule of rates fixed by the commission but also the court retained jurisdiction to protect the rights of gas consumers by ordering any excess moneys to be impounded pending the final outcome of the litigation. The present rules of the Supreme Court provide that appeals may be had from part of a decree. (Rule 33, ch. 110, par. 259.33, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 105.33].) See also Kerner v. Thompson, 365 Ill. 149. It is clear that the trial court retained jurisdiction for the purpose of disposing of the funds which it ordered impounded.

The petitioners cite section 72 of the Public Utilities Act (ch. 111⅔, par. 76, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 112.098]), which provides that the commerce commission may order interest paid on any excessive funds paid a public utility. This section of the statute provides that in order for customers to look to the commission for refund they must file a complaint with it and the commission must find they have been charged with such excessive rates. Under such circumstances the commission may then order the utility to refund any excessive amounts, with interest. In the instant case the members of the commission are parties. It was at their request the moneys were ordered impounded upon the conditions stated. The statute referred to can have no application to a case where the court has jurisdiction of the parties and subject matter and has determined the manner in which the amount of excess charges should be refunded to the consumers. As has been noted, the refunding order of May 24, 1940, was entered upon the advice of the attorney general and the corporation counsel of Chicago, the former acting as attorney for the members of the commerce commission and the latter as attorney for the city of Chicago; these counsel were ordered to continue to represent the gas consumers with relation to the refunding of the impounded funds. It has been held that in such cases the attorney for the commission and the city represent the gas consumers. In re Engelhard & Sons Co., 231 U. S. 646, 650-652; O’Connell v. Pacific Gas & Electric Co., 19 F. (2d) 460.

The impounded money was by the decree placed in the exclusive custody of the circuit court. The gas company did not have the use of those funds. In such circumstances, the moneys being in the custody of the court, the losing litigant depositing the money is not liable to pay interest — the persons ultimately awarded the funds being entitled to only such interest, if any, as actually was paid by the bank or other depositories. Osborn v. Bank of the United States, 22 U. S. 738, 837; Warren v. Banning, 140 N. Y. 227; Taylor v. Minor, 90 Ky. 544; Delta & Pine Land Co. v. Sherwood, 187 Ill. App. 167, 170, 171. In the latter case it was sought to hold an interpleader for interest on the fund deposited with the court. It was held that the court properly refused to compel the payment of interest on the funds so deposited. In the instant case no interest on the funds was paid by either of the depositories.

The petitioners cite ch. 74, par. 12, § 1 of the statutes, but this is not in point. That section provides that where the gas company .requires any person to deposit with it money he shall receive interest on the deposit. We think it is clear this statute, enacted in 1879, was with a view to compelling payment of interest upon funds deposited to ensure credit standing with the gas company. It does not relate to moneys charged and collected for gas seryice. Illinois Bell Telephone Co. v. Slattery, 102 F. (2d) 58, cited by the petitioners is not in point. There the telephone company retained and had the constant use of the excess charges collected. The excess charges were not impounded. The same situation obtained in Arkadelphia Milling Co. v. St. Louis S. W. Ry. Co., 249 U. S. 134.

The petitioners stress the point that because the consumers were deprived of the use of the excess amounts which they paid the gas company, therefore the gas company should pay interest. This does not follow. That both parties are deprived of the use of funds is no reason why one of them must pay interest.

We are not convinced that petitioners, Sowers and Nelson, are entitled to bring this action as representing all other gas consumers in like situation. It is significant, as we have noted, that the only complaint made out of the large number of customers of the gas company is now made by these petitioners. Moreover, if they were gas consumers and paid their gas bills, the interest, if any, to which they would be entitled it is said would Tbe about forty-eight cents each. De minimis non curat lex.

We hold that the order appealed from should be affirmed.

Order affirmed.

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


text:
    Madigan Bros., Inc. et al., Appellees, v. Garfield State Bank, Defendants. Mary E. Walzer and Alfred B. Walzer, Appellants.
    Gen. No. 41,632.

      Opinion filed May 19, 1941.
    Rehearing denied June 4, 1941.
    Campbell, Clithero & Fischer, of Chicago, for appellants.
    John C. DeWolfe, Robert E. Dowling, Aaron Soble, Shaffer & Freedman and Ryan, Condon & Livingston, all of Chicago, for appellees.
   Mr. Justice McSurely

delivered the opinion of the court.

This is a suit to enforce a bank stockholders’ liability in which it was decreed that Mary E. Walzer and Alfred B. Walzer were liable for $26,705.50; from this decree the Walzers (hereafter called defendants) appeal.

Neither defendant at any time was a stockholder of the Garfield State Bank, the bank in question. Mary E. Walzer is the widow, and Alfred B. Walzer is the son of Alfred Walzer, who at one time was the owner of stock in this bank, and it is sought to hold the defendants upon the theory that they inherited property of Alfred Walzer and also his liability as a stockholder under the constitution.

November 23, 1932, an amended and supplemental complaint was filed, seeking to enforce liability of the stockholders of the Garfield State Bank; Alfred Walzer was charged with being the owner of 317 shares of its stock; August 12, 1933, and while the complaint was pending, Alfred Walzer died leaving defendants his only heirs; March 24, 1934, a second amended and supplemental complaint was filed; in this (filed more than six months after his death) it was charged that Alfred Walzer was the owner of 263 shares of stock. July 16,1936, a final decree was entered finding, among other things, that Alfred Walzer held 263 shares of stock and was liable for $26,300.

Two years thereafter on July 13, 1938, defendants are for the first time brought into the picture; on this date an amendment to the complaint was filed and certain persons, including defendants, were made additional parties defendant and served with summons; in this amendment it was alleged that when Alfred Walzer died, August 12, 1933, he -left surviving the defendants who took possession of the property of which the deceased died possessed and were therefore liable for his liabilities. Motions to dismiss were made and denied, and they answered asserting that they were never stockholders of the Garfield State Bank and are ignorant as to its assets and liabilities and as to the shareholders and the number of shares owned by each ; they admit that Alfred Walzer died August 12, 1933, but deny they took possession of any properties of which the deceased died seized or possessed, and deny they were liable for any liabilities of the deceased; the jurisdiction of the court was denied, as was the validity of any decree fixing any liability on the part of Alfred Walzer. The cause was referred to a master who, after hearing evidence, found defendants liable, and a decree was accordingly entered.

Defendants first argue the trial court was without power to reopen the cause two years after the date of the entry of the final decree. The facts in Trupp v. First Englewood State Bank of Chicago, 307 Ill. App. 258 (Supreme Court dismissed petition for- leave to appeal for want of jurisdictional certificate), are very similar to those in the case at bar. There the plaintiffs sought to impose a stockholder’s liability upon certain persons made parties for the first time more • than two years after the original decree was entered; the affidavit filed in that case supporting the supplemental complaint was to the effect that certain facts had come to the knowledge of plaintiffs subsequent to the filing of the complaint which necessitated the filing of a supplemental complaint; this affidavit is in all respects like that in the instant case. No facts are stated which have come to the knowledge of plaintiffs, nor is any showing made that the fact of death of Alfred Walzer could not by the exercise of ordinary diligence have been ascertained preceding the entry of the final decree of July 16,1936.

There were reservations in the decree of July 16, 1936, which are like those in the Trupp case. The decree finds that certain defendants, naming them, have accepted the terms of the settlement order entered by the court and have settled their liabilities. The name of the deceased, Alfred Walzer, is not included in this list. There is a further reservation that the decree is entered without prejudice to proceed against “defendants not heretofore served with process herein or who have not entered their appearance herein,” and jurisdiction was retained to determine the existence and extent of liabilities of such defendants. Manifestly these reservations do not include the present defendants, who were not made parties until two years after this decree was entered. In the Trupp case it was held that the verification of new facts coming to the knowledge of plaintiffs was vague and insufficient; that there was no showing that with the exercise of ordinary diligence these new facts could not have been ascertained. The opinion holds that the law fixes a definite time limit when jurisdiction once- acquired in a cause comes to an end, quoting United States v. Mayer, 235 U. S. 55, 70. The opinion also examined the reservations in the decree and held they did not cover and were never contemplated to permit bringing in a group of new parties against whom no relief was originally sought. It was held that the motions to dismiss the amended complaint should be affirmed.

The opinion in the Trupp case is supported by an abundance of authority,' stating in many ways that the court, after final judgment or decree, loses all power over the same after the expiration of 30 days from the ■ date of the entry, unless jurisdiction is in the decree expressly retained for some particular purpose. As we have seen, the decree of July 16, 1936, contained no reservation of jurisdiction for the purpose of making additional parties defendant not theretofore served with process.

There is authority for holding that the decree of July 16, 1936, entering judgment against Alfred Walzer three years after his death, is void. However, it is unnecessary to pass upon this point because in the amended complaint of July 13, ‘1938, plaintiffs struck from their second amended and supplemental complaints any allegations upon which the decree against Alfred Walzer was based. The alleged decree against Alfred Walzer was treated as void and is not mentioned in the amendment of July 13, 1938.

Plaintiffs earnestly argue that the trial court had jurisdiction of defendants because they fraudulently concealed the death and assets of the deceased; that their attorneys failed to advise the court of the death of said deceased and permitted a decree to be entered against him after his death, and also misled the court by failing to administer the estate of the deceased.

The heirs of Alfred Walzer were under no duty to intervene in the case and suggest his death to the court. The Abatement Act (Ill. Rev. Stat. 1939, ch. 1, §11 [Jones Ill. Stats. Ann. 107.011]) provides that upon the death of a defendant “the plaintiff, petitioner or complainant may suggest such death.” It has been held that the legal representative of a deceased defendant is under no obligation to suggest his death. Jackson v. Anderson, 355 Ill. 550. In that case it was charged there was fraudulent concealment of the death of the defendant. It was held there was no showing made why plaintiffs could not have learned of the facts. That language is applicable to the instant case. There is no showing of any attempt to learn of the death of Alfred Walzer and no showing that plaintiffs could not have learned by making reasonable inquiry. As to the failure of the attorneys for defendants to advise the court of the death of Alfred Walzer, the record shows that he appeared in the cause by other counsel and his answer was filed by his attorneys, other than those now representing defendants. March 24,1933, the present firm was substituted as his attorneys of record, and March 9,1934, this firm filed an amended answer on behalf of the defendants represented by them. Alfred Walzer was deceased at that time and was therefore not included among the defendants represented. This failure to include his name should have put plaintiffs upon inquiry as to why he was omitted, which would have led to knowledge of his death.. The record fails to show that any counsel purported to represent Alfred Walzer after his death.

We are of the opinion the master and chancellor were in error in finding defendants inherited property from Alfred Walzer which could be held liable for his stock liability. Alfred Walzer and his wife Mary E. were in the meat market business for many years; it was a prosperous business and in the spring of 1930 Alfred Walzer, then in failing health, told his son Alfred B. that if he would give up his employment with the Illinois Bell Telephone Company and go into the meat market business with him he would give him one-half interest in the business; this proposition was accepted and there was transferred to Alfred B. stock in the business of the principal value of $12,500. Mary Walzer testified that she and her husband were in the meat market business for many years and during that period they invested in two pieces of real estate and three mortgages — all in joint tenancy; these mortgages were foreclosed, and she claims to be entitled to the properties as surviving joint tenant. The first mortgage shows the master’s deed issued to her. The second mortgage was bought in her name as the legal owner and holder of the note, and the property was bid in by her. The third mortgage was also bought in her name as the legal owner and holder of the note, and the foreclosure sale ran to her. It was sufficiently proven that Mary Walzer was a joint tenant of these properties and the owner by survivorship after the death of her husband. The evidence shows that the bank account in the Garfield State Bank was in the names of Alfred and Mary E. Walzer as a joint account. A former vice president of the bank testified that their bank account and all the transactions and purchases of mortgages were joint, and their safety deposit box was under the same joint arrangement.

The master apparently was of the opinion there had been fraudulent conveyances of these properties to Mary E. Walzer. An action to set aside fraudulent conveyances cannot take place in a representative suit to enforce a stockholder’s liability. There must first be a recovery of a judgment and the return of an unsatisfied execution, and the remedy is then by an independent proceeding in equity. Sparta Building & Loan Ass’n v. Renfro, 287 Ill. App. 303. The record fails to establish that either of the defendants received or inherited any property from Alfred Walzer. The constitutional liability of a stockholder in a bank is not inheritable and the heirs cannot become liable for this unless by some overt act they accepted title to the shares of stock or the benefits flowing therefrom. The evidence fails to show these necessary facts.

While we are of the opinion the evidence fails to show defendants inherited any property from Alfred Walzer which would impress any stockholders’ liability upon them, our decision is based principally upon our conclusion that the court was without jurisdiction to bring in these defendants as additional parties two years after the final decree of July 16, 1936.

For the reasons above indicated, we hold that the decree appealed from should be reversed.

Reversed.

O’Cohnor, P. J., and Matchett, J., concur.