author: Mr. Justice Wolfe Mr. Justice Dove

text:
    Armand Bollaert, Appellee, v. Kankakee Tile and Brick Company, Appellant.
    Gen. No. 9,812.
    Dove, J., dissenting.

      Opinion filed December 22, 1942.
    Wayne H. Dyer, of Kankakee, for appellant; Wayne H. Dyer, of Kankakee, of counsel.
    Benjamin Gower, of Kankakee, for appellee.
   Mr. Justice Wolfe

delivered the opinion of the court.

The Kankakee Tile and Brick Company, a corporation of Kankakee county, is a manufacturer of building and drain tile and pulverized clay used in making roofing paper and similar products. The appellee was employed by the defendant company as a salesman and a chemist. He commenced his work in October ' 1936, and continued in the defendant’s employ until November 1,1937. The appellee started a suit against the appellant in the circuit court of Kankakee county, alleging that there was due him the sum of $902.01. He filed a copy of the account sued upon, which is treated as “an account stated.’’ There was no written contract between the parties.

The defendant filed an answer admitting that the plaintiff was employed by and worked for them on a salary, expense and commission basis, but they denied that there was ever an account stated between the parties. They filed a counterclaim, in which they claimed that the plaintiff had been overpaid by the defendant. The case was tried before the court without a jury which found the issues in favor of the plaintiff, and entered judgment in his favor for the sum of $600. It is from this judgment that the appeal is prosecuted.

The judgment was entered on March 16, 1942. The defendant filed a notice of appeal to .the Appellate Court on April 4, 1942, and on April 8, 1942, filed an appeal bond, which was conditioned on payment of the judgment in case the judgment should be affirmed. This bond was approved by the trial judge on April 16, 1942. The plaintiff, now appellee, on April 10, 1942, filed a notice of cross-appeal and a praecipe for an additional record. On April 11, the plaintiff filed a motion for leave to amend his complaint. The defendant objected to the motion, alleging that the court had lost jurisdiction to enter any order herein to amend the pleading* in the case; since notice of appeal had been filed before the motion was presented. The court overruled the objection and allowed the amendment to be made. An appeal has been prosecuted to this court by the defendant, and cross-appeal ® by the plaintiff.

It is insisted by the appellant that the court had lost jurisdiction of the subject-matter of the suit after the notice of appeal had been filed. The appellee relies upon several Appellate Court cases; one, Jackson v. Jackson, 294 Ill. App. 552, which this court decided, where it is stated: “The statute expressly,provides that where an amendment is germane to the original bill and is presented for the purpose of making the allegations of the bill to comply with the proof, then the court’s refusal to grant such amendment constitutes an abuse of the trial court’s discretion if he does not allow the amendment.” This case was cited with approval in Wiedow v. Ellen Alden Carpenter, 310 Ill. App. 342. An examination of these cases and others that have passed upon the question, discloses that the motion to amend the pleading was made before final judgment had been entered. In these cases the motion was made before the judgment would have become final under our statute, where it is provided that judgments shall become final after the expiration of 30 days after the judgment is entered.

Section 3 of section 170, chapter 110 of Smith Hurd’s Ann. Stats. [Jones Ill. Stats. Ann. 104.046] provides: “A pleading may be amended at any time before or after judgment to conform the pleadings to the proofs, upon such terms as to cost and continuance as may be just.” In interpreting this section of the statute, another section of the statute must be considered in conjunction with it. Subsection 2, of section 200 of chapter 110 of Smith Hurd’s Ann. Stats. [Jones Ill. Stats. Ann. 104.076] provides: “An appeal shall be deemed perfected when the notice of appeal shall be filed in the lower court.” It will be observed that before the motion was made to amend the pleadings in this ease, both the appellant and appellee had filed, a notice of appeal and the appellant had filed an appeal bond, which had been approved by the trial court. In Cowan v. Curran, 216 Ill. 598, it is stated: “The decree in this case, which is appealed from, was entered on May 3, 1905., and the appeal was perfected by the filing of the appeal bond on May 12, 1905. This appeal operated as a supersedeas, and its effect was to stay further proceedings until it was dismissed. The appeal having been thus perfected, the jurisdiction of this court over the subject matter and the parties attached, and the trial court had no power to render any further decision, affecting the rights of the parties in the cause, until it should be remanded. When an appeal is perfected, the jurisdiction and control of the court below cease, and the appeal becomes a stay-of all proceedings to enforce the execution of the judgment or decree. Consequently, the proceedings in the lower court in June, 1905, after the present appeal was perfected by the filing of a bond, can have no effect upon the decision of this cause.” This case has been cited with approval in People v. David, 328 Ill. 230, and City of Chicago v. Lord, 281 Ill. 414. It is true that these cases were decided before the present practice act was passed, and a different mode of appeal now prevails in our Supreme and Appellate Courts, but the principle of law involved is the same. It is our conclusion that the trial court was without authority to allow the amendment presented by the plaintiff appellee.

The appellee insists that it makes no difference whether the court erred or not, as the court could have made the same decision on the original pleading. With this contention, we cannot agree. ' If there was an account stated as contended by the plaintiff, he was entitled to the full amount of his claim. That the case was tried on the theory of an account stated by the plaintiff is borne out by the abstract on pages 36' and 37, in which the attorney for the plaintiff interrogated him in regard to the customary and usual salary paid for such services he had rendered, and the attorney for the defendant objected to the question on the ground that it was a suit on an account stated. The court asked the question: “Is there any proof by the defendant of any kind, attacking his capacity to earn Two or Three Hundred Dollars per month?” The court proceeded further: “I don’t see its competency under your theory of the case. You are traveling on an account stated. Objection sustained.”

It is our conclusion that the judgment of the trial court is not sustained by the proof and that the amendment to the pleading should not have been allowed. The judgment of the trial court is hereby reversed, and the cause remanded.

Reversed and cause remanded.

Mr. Justice Dove

dissenting*: In my opinion the trial court did not err in permitting the amendment to be made by the plaintiff on April 11, 1942., The statute expressly so provides. I therefore respectfully dissent.


source: Caselaw Access Project

author: Mr. Justice Wolfe

license: Public Domain

text:
    Albert C. Eichelberger and Clara E. Eichelberger, Appellees, v. William Homerding and Loretta Homerding, Appellants.
    Gen. No. 9,817.
    Opinion filed December 22, 1942.
    Francis A. Dunn, of Joliet, for appellants.
    Oscar R. Laraway and Robert E. Higgins, both of Joliet, for appellees.
   Mr. Justice Wolfe

delivered the opinion of the court.

The plaintiffs, Albert C. Eichelberger and Clara E. Eichelberger, the appellees in this appeal, filed a complaint in which they alleged that on the 10th day of May, 1930, the defendants, William Homerding and Loretta Homerding, for a valuable consideration, namely, $1,350, conveyed by warranty deed, in fee simple, a certain piece of property described as lot 4 in block 11 in the city of Lockport, Will county, Illinois; that the defendants warranted that this property was free and clear of all encumbrances, but as a matter of fact on that day there were some encumbrances in the form of special assessments, warrants numbered 760 upon which was due $295.72, and on warrant 761, $231.59, was due making a total of $527.37, and that this amount also includes the interest thereon from the time due until the same was paid, which payment the complaint alleges was made on the 2nd day of December, 1941.

The defendants in their answer admitted that they executed a warranty deed on May 10, 1930, and that they by so doing warranted that the premises were free and clear of encumbrances. In the answer the defendants denied that the plaintiffs were required to remove any encumbrances, nor that they had removed any encumbrances. The defendants further stated that by way of defense the cause of action, if any, being taken by the plaintiffs was barred by the statute of limitations inasmuch as ten years have already elapsed since the action accrued, and asked that the complaint be dismissed.

The plaintiffs filed a replication to the defendants’ answer alleging that the case was not barred by the statute of limitations because they had commenced their action within ten years after removing the encumbrance. Subsequent to these pleadings and just before trial, a stipulation was entered into whereby it was agreed by the parties: “1. That on May 10, 1930, the real estate in question was subject to the lien of unpaid instalments Numbering from five to ten, inclusive, under the City of Lockport Special Assessments, Warrants Numbers 760 and 761, together with interest thereon from January 1, 1925, and that said instalments were valid and subsisting liens and encumbrances against the heretofore described real estate.

“An additional stipulation was entered into in open court, at which time it was stipulated that on the 2nd day of December, 1941, $295.72 plaintiff paid on Warrant No. 760 and $231.59 on Warrant 761.” The court heard the matter on the 21st day of April, 1942, and the issues were found in favor of the plaintiff and against the defendant. Damages of the plaintiff were assessed at $527.31 together with costs. It is from this judgment that an appeal is prosecuted to this court.

The appellants insist that the judgment is erroneous because the statute of limitations requires that an action on a written contract be commenced within ten years from the time the breach occurred, and that the covenants in a deed that the land is free from encumbrances, as well as covenants of seizin and right to convey, are personal covenants not running with the land. If broken at all, they are broken when the deed is delivered, ánd that such covenants, as the land is free from encumbrances, are “in praesenti” and broken, if at all, the moment such a covenant is made. The appellants cite several Illinois authorities which on their face appear to support their contention. An examination of those cases discloses that the questions presented to the court for a decision, were not the same as presented in this case. The language used in Firebaugh v. Wittenberg, 309 Ill. 536 at page 543, that “Covenants of seizin and right to convey and that the land is free from encumbrances are personal covenants, not running with the land, ’ ’ is purely dictum, as the question was not raised at all in the case. In the Firebaugh case, Wittenberg had entered into a written contract to sell certain real estate to Firebaugh and deliver to him a deed conveying a merchantable title. Wittenberg was a married man and his wife did not sign the contract. His wife refused to sign the deed and he tendered a deed to Firebaugh signed by himself. The question in the case was whether such a deed conveyed a merchantable title, and under said circumstances would the tender of such a deed, be a compliance with the contract. In the case of Richard v. Bent, 59 Ill. 38, Richard conveyed land to one, Freeman, by warranty deed and Freeman conveyed it to Bent. After Bent had purchased it from Freeman, it was discovered that there were back taxes due on the premises, which Bent had to pay to clear the title. The suit was by Bent against Bichards for the damage he sustained because of the payment of said taxes. The main question involved was whether Bent could maintain the action, as it was claimed this was a “chose in action,” and not assignable, and did not run with the land. The court, in this case held, that although according to the strict letter of the law the covenant against encumbrances was broken immediately on the delivery of the deed from Richard to Freeman, yet, as the latter never removed the encumbrances, nor suffered any damage therefrom, the right of action for the breach of the covenant passed to and vested in his grantee who sustained the whole actual damages by paying the taxes and removing the encumbrances.

This case was cited with approval in Post v. Campau, 42 Mich. 90, 3 N. W. 272. On page 276 of the opinion, we find this language: “A covenant may be said to run with the land when its purpose is to give future protection to the title which the deed containing the covenant undertook to convey, and it does not run with the land when its whole force is spent in giving assurance against something which immediately affects the title and causes present damage. Tested by this rule a covenant against an encumbrance; which consists in a right of way, would not run with the land; but a covenant against a money charge must attach itself to the title conveyed, and accompany it, not only for the protection of the covenantee, but for the protection of any of his assigns, whom the encumbrance may eventually damnify. Foote v. Bennett, 10 Ohio 332; Knadler v. Sharp, 36 Iowa 232; Richards v. Burt, 56 Ill. 38. It is only by thus distinguishing between encumbrances that the covenant can have reasonable effect in all cases, and, when the courts thus discriminate, there is no difficulty in giving substantial redress under definite and inflexible rules of law. When the law can be just and also certain, there is no reason why an unjust certainty should be perpetuated.”

A similar question was before this court in Dalton v. Taliaferro, 101 Ill. App. 592. The court speaking through Justice Dibel on page 597 said: “The text books announce the general rule that covenants against incumbrances are broken as soon as made, if at all, and are .therefore personal and do not run with the land; and such is the law in most of the States, and no doubt such is the law in Illinois where the incumbrance is of the nature of an easement or right of way in or over the land covenanted to be free from all incumbrances. But the Supreme Court of this State refused to adopt that doctrine so far as relates to incumbrances consisting of a money charge upon the land, such as a mortgage securing a debt, but as to such incumbrances held that such a covenant runs with the land. (Richard v. Bent, 59 Ill. 38.) It is there admitted that there is a technical breach of such a covenant when made, giving the covenantee a cause of action to recover nominal damages only, but it is held that he who removed the incumbrance, whether the immediate or remote grantee, has the substantial cause of action. If such covenant were, as to the original grantee, merely a personal covenant, then, being broken as soon as made, the statute of limitations would at once begin to run against the covenantee, and if he removed the incumbrance after the lapse of the time fixed by the statute of limitations, even though his delay was because the incumbrance had not matured earlier, he would be barred of relief upon the covenant. But it was held in Post v. Gampau, 42 Mich. 90, in an instructive opinion by Cooley, J., in which Richard v. Bent, supra, is cited with approval, that the covenant against a money charge attaches itself to the title conveyed, and runs with the land, and therefore, even while it rests in the original covenantee, a right of action accrues when a substantial damage is suffered, as by the payment of the incumbrance, and that till that time the statute of limitations does not begin to run. ’ ’

It is our conclusion that the trial court properly held that the statute of limitations did not run against this claim, and the grantor should reimburse the grantee for the money expended in removing the encumbrances upon the land.

The judgment of the trial court is hereby affirmed.

Affirmed.


author: Mr. Justice Hebel

text:
    People of the State of Illinois ex rel. Philip Michajlowski, Appellant, v. Kirik Tanaschuk, Appellee.
    Gen. No. 42,467.
    Opinion filed December 31, 1942.

      Bernard W. Vinissky, of Chicago, for appellant.
    Oplatka, Pavek & Oplatka, of Berwyn, for appellee.
   Mr. Justice Hebel

delivered the opinion of the court.

This is a quo warranto action filed by the People of the State of Illinois on the relation of Philip Michajlowski against the defendant Tanasehuk to determine the defendant’s right to exercise the office of elder in the Holy Trinity’s Russian Orthodox Greek Catholic Church of Chicago. This cause was heard before the court, who, after hearing the evidence offered by the plaintiff and by the defendant, entered an order dismissing the complaint, and judgment was entered thereon.

The plaintiff’s theory is that the defendant is wrongfully assuming the right to act as elder of the church congregation which is a corporation organized under the laws of the State of Illinois, and plaintiff contends that he is the properly and duly elected elder of such church congregation.

The defendant, however, presents his theory in this case and contends that the plaintiff, while being elected to the office of elder by a majority of votes of the congregation, was not confirmed in his office as required by the canon laws, also known as Normal Statutes, of the church and that at a subsequent election the defendant was duly elected and qualified as such elder.

The statement of facts as they appear in the record indicates that Philip Michajlowski is a resident of Chicago and a member of the Holy Trinity’s Russian Orthodox Greek Catholic Cathedral; that the Cathedral is a religious corporation organized under the laws of Illinois and having its principal place of worship and appurtenant place of business in Chicago, Cook county, Illinois, and that the Normal Statutes provide for the election annually of one elder, to be elected from and by the parishioners in good standing by ballot at their annual meeting, for a term of one year. At the annual meeting of the parish held on January 4, 1942, the plaintiff received 47 votes. The defendant, Kirik Tanasehuk received 40 votes and J. Tonoff received 3 votes. After the balloting had been completed, the chairman of the meeting, Bishop Leonty, announced that the plaintiff had been elected by a majority of the votes. The Bishop congratulated the plaintiff on his election; also the Bishop called in all the members of the previous committee and told them to be at the church on the next Sunday for the transmission of duties to the new committee and told the newly elected members of the church committee, including the plaintiff, to come next Sunday to be sworn in. When the plaintiff appeared on the following Sunday, he was told that he would not be sworn in, as the Metropolitan (the ruling Archbishop of the church in America) had refused to confirm the election. A meeting of the church was held on February 1, 1942, at which Bishop Leonty presided as chairman and Vladimir Gfreevsky acted as secretary. It is contended by the defendant that he was elected by acclamation at this meeting.

The trial court delivered an opinion in deciding this action, and from the opinion it would seem that the trial judge was moved in making his decision by the fact that he did not consider that he had any authority to act. He said:

“I think that in this election of January 4th, if the person whose authority it was to approve those that were elected did not approve it, that is a matter for the church group, and a court, a civil court cannot interfere in their religious matters. As to the holding of the second meeting, I think the same thing applies. Their rules will govern, and whether their rules have been complied with is a matter for them to determine.”

The plaintiff submits that the trial court was in error in reaching this conclusion; that the religious corporation over which the defendant is assuming to act as elder is incorporated under the laws of the State of Illinois relating to the incorporation of religious corporations; that its charter was recorded in the office of the recorder of deeds of Cook county on December 24, 1924. Plaintiff then calls to our attention paragraph 9 of the Quo Warranto Act (ch. 112, Smith-Hurd’s Ann. Stats. [Jones Ill. Stats. Ann. 109.498 (1)]) adopted in 1937, which provides as follows:

“A proceeding in quo ivarranto may be brought in case: (a) Any person shall usurp, intrude into, or unlawfully hold or execute any office, or franchise, or any office in any corporation created by authority of this State.”

The plaintiff contends, without the citation of authority, that this proceeding comes within the provision of the statute just cited.

It is also contended that the church corporation has been organized and exists only by virtue of the laws of the State of Illinois and that the office of elder is an office in that corporation. This provision of the statute just quoted does not, in regard to the question in this case, substantially depart from the language of the statute of 1874 and amendments thereto and which were repealed by the act of 1937. (Pars. 1-8, ch. 112, Smith-Hurd’s Ann. Stats.) Plaintiff avers that in earlier cases it was held that quo warranto was the only remedy to try title to church offices, and in support of plaintiff’s position cites the later case of Shavers v. Thomas, 339 Ill. 622, in which a bill in chancery was filed by the plaintiffs who claimed to be the sole surviving trustees of the First Colored Baptist Church of Clinton. The bill alleged that the defendants assumed to hold the office of trustees of said church and prayed for an injunction restraining them from performing certain acts. The court said:

“It is contended by appellants that they were the sole trustees and that the appellee trustees were usurpers. The bill was drawn upon the theory that appellants, as trustees, were vested with the legal control and management of the church property instead of the appellee trustees, and it sought to restrain appellees from pretending that they were trustees of the church. The title to the office of trustee is here only collaterally involved. The appellee trustees had been de facto elected to a corporate office, had accepted the same, entered upon the performance of their duties and were in the possession of the property. An information in the nature of quo warranto will lie against one who intrudes himself into the office of trustee of a church corporation, and his title to the office cannot be decided in a collateral suit but can only be decided in a direct proceeding.”

To the same effect is Lawson v. Kolbenson, 61 Ill. 405, cited by the plaintiff, where the court said:

“It is the settled law of this country that an information in the nature of quo warranto will lie against one who intrudes himself into the office of trustee of a church corporation. Ang. & Ames on Corp. 9th ed. 751.
“The defendants had been de facto elected to a corporate office, had accepted and acted in the same. In such case, the validity of their election could only be tried by a proceeding on information in the nature of quo warranto. Nor can the title to an office, in such case, be decided in a collateral suit; it must be by a direct proceeding. ’ ’

And it is suggested that while the authorities just cited specifically refer to the office of trustee they are applicable to the case at bar. Whether the other elders were considered church trustees or not is beside the point. The statute does not so limit the authority of the court. The rule is applicable to any officer of a church corporation. The plaintiff further suggests that the trial judge placed great stress on the case of Chase v. Cheney, 58 Ill. 509. In that case the question involved was whether or not the rector of the church was conducting himself in accordance with the tenets of the faith, and we will discuss the theory of that case later on. Plaintiff goes on to suggest that in the case at bar the questions involved are whether the defendant is entitled to exercise the office of elder or whether the plaintiff is entitled, to exercise such office to which he contends he was elected in accordance with the canon laws governing the religious corporation in question. Paragraph 15 of the canon law sets forth the jurisdiction of the local parochial council, and provides that such local council shall manage parochial affairs subject to the authorities of the diocese. . Paragraph 16 provides that the parochial council shall consist of (a) members of the clergy, (b) the church elder, (c) and the other representatives of the parish including the treasurer, secretary, and curators (not exceeding twelve) to be elected by the parish meeting for one year. This paragraph of the canon laws, it' is contended, clearly makes a distinction between the clerical and lay members of the council. Plaintiff’s discussion that is before us further goes on to quote paragraph 18 of the canon laws, in which the duties of the parish council are set forth, and states that these duties principally concern themselves with the collection and disbursement of the funds needed for the operation of the parish institutions including cemetery, schools and other institutions for instructions or charity, and that this paragraph specifically provides for recourse to the “law courts” in the following language; that the parqchial council is entrusted with, among other things:

“. . . intercession before civil institutions, hospitals, prisons, law courts, factories and schools for the need of the parish . . . .”

It is further stated that paragraph 30 of the canon laws provides as follows:

“If a parish meeting, is called to consider questions which, according to the laws of the State, demand compliance with some preliminary formalities, the latter must be fulfilled with thorough exactitude. . . .”

And it is suggested that the Holy Trinity’s Russian Greek Orthodox Catholic Cathedral of Chicago was organized under the laws of the State of Illinois, and is subject to all the laws governing religious corporations, and that whether or not this religious corporation has complied with the law is a matter to be determined in the courts of this State. The Supreme Court has definitely laid down this rule in Shavers v. Thomas, 339 Ill. 622, which has been cited by the plaintiff.

The defendant suggests that the trial court properly determined that if the official of the church whose authority it was to approve or disapprove the election of January 4, 1942, acted in accordance with the Normal Laws, rules and regulations of the church, a civil court should not interfere or sit as a court of appeal to revise the judgment of the ecclesiastical tribunal. It does not appear from the pleadings that the relator alleged or charged that the Archbishop, Metropolitan Theophilus, is not the ruling head of the church in America. Nowhere is it alleged or charged that the matter was not brought before the Metropolitan Theophilus in the usual and regular manner of reporting elections for his approval or disapproval. The only allegation in the reply of the plaintiff is that the plaintiff was confirmed in his election as elder by Bishop Leonty, and that the action of the Archbishop as set forth in paragraph 8 (d) of the answer was not authorized or effective under the Articles of Association or the Normal Statutes. Defendant suggests that it became necessary for the trial court to determine, first, did the Archbishop have authority to act under the Normal Statutes, and, second, what was his decision? The Articles of Association provide that the Holy Trinity Cathedral of Chicago is organized and formed to worship Almighty Cod according to the Canon Laws of the Eastern Orthodox and Apostolic Church . . . and according to the “Normal Laws,” rules, requirements and regulations for the parishes of the North American Orthodox Diocese of said . church in America in the matters of rites and personal or social status of its clergy and parishioners. The Normal Laws are also referred to in paragraph 3 of the Articles of Association, and in paragraphs 4 and 14.

Paragraph 16 of the Normal Laws, as it is cited, provides that the members elected to the parochial council are to be confirmed by the Archbishop or Bishop of the Diocese, and if not confirmed, new candidates must be elected. The Normal Laws, rules and regulations of the church provide for jiist such a situation as arose in the case at bar.

It is suggested that a civil court will not substitute civil laws for the ecclesiastical laws in matters affecting the government, organization and discipline of a church, and the case is cited of Chase v. Cheney, 58 Ill. 509, in which the court in its opinion said:

“We have no right, and, therefore, will not exercise the power, to dictate ecclesiastical law. We do not aspire to become de facto heads of the church, and, by construction or otherwise, abrogate its laws and canons. We shall not inquire whether the alleged omission is any offense. This is a question of ecclesiastical cognizance. This is no forum for such adjudication. The church should guard its own fold; enact and construe its own laws; enforce its own discipline; and thus will be maintained the boundary between the temporal and spiritual power.”

It is further said by the court:

“Our constitution provides, that ‘the free exercise and enjoyment of religious profession and worship, without discrimination, shall forever be guaranteed.’ . . . Religious worship consists in the performance of all the external acts, and the observance of all ordinances and ceremonies, which are engaged in with the sole and avowed object of honoring God. The constitution intended to guarantee, from all interference by the State, not only each man’s religious faith, but his membership in the church, and the rites and discipline which might be adopted. . . . Freedom of religious profession and worship can not be maintained, if the civil courts trench upon the domain of the church, construe its canons and rules, dictate its discipline, and regulate its trials.”

The defendant further calls our attention to the fact that it is argued by the plaintiff that his right to hold the office of elder in the Holy Trinity Cathedral of Chicago is a civil right, and therefore his civil rights are involved, which the circuit court should protect, and says that the same argument was made in the case of Chase v. Cheney, 58 Ill. 509, that it was there claimed for Rev. Mr. Cheney that his civil rights were involved in the controversy; that the office of clergyman is one of public concern; that he has a vested right in it; that the right to preach is, in itself, property; that attached to the office in question are salary and emoluments; that there is a value in the right to pursue any lawful avocation. Defendant quotes the language of the Supreme Court in disposing of the argument, as follows:

“We have no doubt either of the absolute right of every citizen, under our constitution, to teach and preach the gospel, to whomsoever will listen. But in an organized church, with written or printed rules, and established doctrines and mode of worship, the right is qualified. The continuance, power and emoluments of the position, depend upon the will of the church. The right is contingent and restricted, and, as a thing of value, is very much lessened. The sentence of the church judicatory, in a proper case, deprives of the position, and salary and emoluments are gone.
“. . . Shall we maintain the boundary between Church and State, and let each revolve in its respective sphere, the one undisturbed by the other? All history warns, not to rouse the passion or wake up.the fanaticism, which may grapple with the State, in a deathly struggle for supremacy.”

A further case that is cited by the defendant is Fussell v. Hail, 233 Ill. 73, wherein a bill was filed for a decree declaring that the general assembly of the Cumberland Presbyterian Church has no power, under the constitution of the church, to unite with the Presbyterian Church in the United States of America, or to carry over any of the property belonging to or held in trust for it. A demurrer was sustained and the bill dismissed for want of equity. In affirming the decree it was said :

“The civil courts deal only with civil or property rights. They have no jurisdiction of religious ecclesiastical controversies. ’ ’

After quoting from our constitution on the subject of religious freedom, it was said:

“Such freedom of religious profession and worship cannot be maintained if the civil courts may interfere in matters of church organization, creed and discipline, construe the constitution, canons or rules of the church and regulate and revise its trials and the proceedings of its governing bodies.”

Several authorities are cited in support of this doctrine, including the case of Chase v. Cheney, 58 Ill. 509, the court, in the Fussell case, saying further:

“The civil courts afford no remedy for any abuse of. ecclesiastical authority which does not violate a civil • or property right. Church tribunals ought to perform their functions honestly, impartially and justly, with due regard to their constitutional powers, sound morals and the rights of all who are interested; but if tyranny, force, fraud, oppression or corruption prevail, no civil remedy exists for such abuse except where it trenches upon some property or civil right. The ordinary courts have no cognizance of the rules of a religious organization or other voluntary association, and cannot consider whether they have been rightly or wrongly applied.”

Defendant points to the rule which was adopted by our Supreme Court that, in cases involving property or civil rights, where those rights depend upon the constitution, canons, rules and regulations of the church organization, and such constitution, canons, rules and regulations have been interpreted by a judgment of the ecclesiastical tribunal provided therein, the civil courts will adopt and follow the judgment of such ecclesiastical court or tribunal in the determination of the property or civil rights involved in the controversy, and points to the case of First Presbyterian Church of Lincoln v. First Cumberland Presbyterian Church of Lincoln, 245 Ill. 74, upon this question.

It appears from the opinion in that case that a bill was filed to restrain defendants from maintaining and prosecuting a certain ejectment suit against complainants for the possession of church property. The court there said that the question which presented itself at the threshold of that case was, had the court below jurisdiction of the cause made by the bill and, if so, how far can it go, in the exercise of its jurisdiction as a court of chancery, in determining the case upon its merits as an original proposition? After discussing authorities, the court said:

“While it must be admitted that au ecclesiastical court cannot adjudicate upon and determine a civil or property right (Fussell v. Hail, supra), we think the great weight of authority in this country is to the effect that the civil courts, in adjudicating upon civil and property rights in those classes of church contentions to which this case belongs, are bound by the adjudications of the ecclesiastical court to which of the contending factions in the church is the true representative of the church and which faction is outside of and beyond the pale of the church, and that the civil courts will decree the title of church property to belong to the faction in the church which the ecclesiastical courts have held to be the true representative of the church.”

It is further suggested that the court in the Presbyterian Church case opinion discussed Schweiker v. Husser, 146 Ill. 399, and quoted favorably from the opinion as follows:

“In determining this question recourse must be had to the constitution and laws of the denomination, and especially to the decisions on that subject of the supreme judicial, legislative and administrative authority of the denomination, the general conference. If such decisions can be found, unless they are clearly and manifestly repugnant to the established laws of the denomination, they are binding and conclusive upon the civil courts, and must be followed in the determination of such property rights as those courts may be called upon to adjudicate.”

The court also quotes with approval the case of Lamb v. Cain, 129 Ind. 486. Further in its opinion the court said:

“We have endeavored to give this case the consideration which the interests of the parties and the importance of the questions involved demand, and have reached the conclusion that the question whether the reunion between the Cumberland church and the Presbyterian church was a valid reunion was a question for the general assemblies of the two churches to decide, sitting as the highest ecclesiastical judicatories of those churches, and that the general assembly of the Cumberland church, having held the reunion valid and binding upon the Cumberland church, its judgment is binding upon this court, and that this court must follow the determination of that ecclesiastical court in the determination of the property rights here involved. ’ ’

The defendant calls our attention to the fact that the plaintiff contends that the church corporation has been organized and exists only by virtue of the laws of the State of Illinois, and that the office of elder is an office in said corporation, but that this is a misapprehension ; that the right to organize churches and church associations is guaranteed by Article II of the Constitution, Section 1 of the Bill of Bights; and that the statute on ecclesiastical corporations merely permits religious associations to incorporate, so that an association as a legal entity may hold property in its own name, and sue and be sued in its own name, and not be required to hold property or to sue and be sued through trustees; and contends that the government of the church is not regulated by statute, but by the canon laws of the church.

Defendant sets forth that the organization of the Russian Orthodox Greek Catholic Church is an hierarchy with Patriarch Tikhon of Moscow, Russia, as the supreme head, the Metropolitan Theophilus as the Archbishop, and the Right Reverend Leonty as the Bishop of Chicago. The clergy staff of the Holy Trinity Cathedral consists of the Bishop of Chicago, two priests, one deacon and two readers. Due to the fact that there is only one priest in the Cathedral now, the Bishop acts as first priest. The parish priest is the chairman of the parochial council. It is the contention of the defendant that when Leonty presided over the parish meeting on January 4, 1942, he presided, not as Bishop, but as first priest of the parish.

As stated by defendant, paragraph 16 of the Normal Laws provides that if any candidate elected at the parish meeting is not confirmed by the Archbishop or Bishop of the Diocese, the parish, on being notified of the reasons therefor, is to elect a new candidate, and that because Leonty is the Bishop of Chicago he does not care to act in his official capacity as Bishop to pass upon his own acts as chairman of the parish meeting, and makes his reports directly to the Archbishop; that after the election on January 4, 1942, the Reverend Snegireff asked permission to protest to the Archbishop the election of the plaintiff as elder, and the Bishop gave his consent; that the Archbishop forwarded a letter to the Bishop and Reverend Snegireff, which was received January 10, 1942, refusing to confirm the election of P. Michajlowski and confirming Kirik Tanaschulc as elder, and giving his reasons for such disaffirmance. By permission of the Archbishop a special meeting was held on February 1, 1942, to elect a candidate for elder, at which meeting the defendant, Kirik Tanasehuk, was the only candidate nominated for the office of elder, and, there being no other candidates, defendant herein was elected by acclamation. There were no protests, as appears from the minutes of that meeting. As further set forth by defendant, it is provided by paragraph 33 of the Normal Laws that the chairman proposes matters for the discussion of the meeting, guides the discussion, and formulates resolutions, and that, if balloting is necessary, it is done either openly or by secret voting, if one half of the members require it.

The trial court ruled that the decision of the Archbishop being pleaded in the answer and not denied in the reply of the plaintiff, it need not be proved.

The trial court, in giving his opinion and making his decision as we have indicated, followed the rule of law laid down by the Supreme Court, that where the decisión depends upon the laws, rules and regulations of the church, and the highest tribunal of the church in America has construed the rules and made decision thereon, the civil courts will adopt and follow such decision.

It appears from this record, and it is contended, that the trial court adopted the correct rule of law in exercising the jurisdiction which was conferred in the quo warranto proceeding’, and that the Archbishop having disaffirmed the election of plaintiff to the office of elder of the church, the civil courts must accept that decision as the judgment of a legally constituted court.

It will appear from this record that it does not bear out the contention of the plaintiff that he was confirmed by the Bishop at the election of January 4,1942, and, as stated by the trial court in his opinion, if the person whose authority it was to approve those that were elected did not approve, that is a matter for the church group, and a civil court cannot interfere in their religious matters.

It is contended by the plaintiff that defendant was not elected to the office of elder in accordance with the laws and usages of the organization, and that in paragraph 30 of the canon laws in question it is provided:

“If a parish meeting is called to consider questions which, according to the laws of the State, demand compliance with some preliminary formalities, the latter must be fulfilled with thorough exactitude ’ ’

and that therefore the notice required to be given of the meeting is such notice as is required by the statute on commercial corporations. The plaintiff has overlooked the fact, however, that the Holy Trinity Cathedral of Chicago is not a commercial corporation but an association governed by the statutes covering religious corporations. The State requires that in commercial corporations a written or printed notice, stating the place, day and hour of the meeting and, in case of a special meeting, the purpose or purposes for which the meeting is called, shall be delivered not less than ten nor more than 40 days before the date of the meeting, either personally or by mail, to each shareholder of record entitled to vote at such meeting. Ill. Rev. Stat. 1941, ch. 32, par. 157.27 [Jones Ill. Stats. Ann. 32.027]. The statute governing religious corporations provides that all elections of trustees after the first, and elections to fill vacancies, may be called and conducted upon such notice and in such manner as may be provided by the rules, usages or by-laws of the congregation, church or society. The Normal Statutes of the church involved herein provide merely that the parishioners shall be duly notified when the meeting is announced. So far as it has come to our knowledge, the priest or minister, in every denomination or creed, makes the announcements of meetings from the pulpit at the regular religious services held by the congregation. In the instant case the plaintiff cannot say that he did not have notice of the meeting held to elect a new trustee, as he was present at the meeting. He must have received the notice that caused his attendance at the time in question. The defendant in his answer alleged that a special meeting of the parishioners was duly called for February 1,1942 by permission of the Archbishop, for the nomination and election of a new elder, at which meeting the plaintiff was present and participated in the election; that the only candidate named for the office of elder at that meeting was the defendant, and that the minutes of the meeting show that the defendant was unanimously elected, and that no appeal was taken at any time by the plaintiff or anyone in his behalf from the action of the parish meeting.

However, the plaintiff contends that the meeting called for February 1, 1942 was in violation of the terms of orders entered in the superior court of Cook county, but there does not seem to be any question raised as to the meeting, and at that meeting there were about 80 persons present and Mr. Miehajlowski asked permission of the chairman to speak and the matter went to a vote of the congregation who voted to hear him. The plaintiff was present and did not raise the question of a quorum, and as we will have to indicate, he should not be heard for the first time to raise that question in the reviewing court.

It appears too that the plaintiff had a remedy within the church organization by appeal to question the proceedings of the parish meeting on February 1, 1942, and not having exhausted his remedy within the organization he has no standing in a court of law.

It is a rule of law that where the constitution, bylaws or rules and regulations of a voluntary association provide for appeal to a higher tribunal for the redress of any alleged wrongful conduct or irregularity affecting a member, such member will not be permitted to litigate his grievance in a court of law until he has exhausted his remedy within the organization.

One of the cases that has been cited upon this question is the case entitled People ex rel. Keefe v. Women’s Catholic Order of Foresters, 162 Ill. 78, wherein the plaintiff sought by mandamus to be restored to membership in the society from which she had been expelled by a board of eleven directors known as the “High Court.” The constitution and by-laws of the society provided for an appeal from the decision of such “High Court” to the next annual session of the society. The plaintiff in that case took no appeal from the order of expulsion, but filed her petition for mandamus in the court. A copy of the constitution and by-laws was attached to the petition. A demurrer was overruled by the trial court, and defendant elected to stand by the demurrer, and the writ was ordered to issue. On appeal to the Appellate Court the judgment was reversed with directions to sustain the demurrer and dismiss the petition. The judgment of the Appellate Court was affirmed. The court in its opinion in that case said:

“Therefore, when the charter, constitution or by-laws of the society require a member to first seek redress ■ within the society, and by appeal to carry the question to its highest tribunal, he has no right to bring an action against the society in a court of the land, until he has exhausted his remedy in its tribunals. It follows that a writ of mandamus will not be awarded, where a member of a benefit society, who has been expelled, has a remedy by appeal under the laws of the society, which he has not exercised. (2 Bacon on Ben. Soc. and Life Ins. sec. 442.) ”

And further in support of his position in this connection the defendant cites the cases of People v. Grand Lodge Knights of Pythias, 166 Ill. 71; O’Brien v. Rittman, 176 Ill. App. 237; and Moody v. Farrington, 227 Ill. App. 40.

In the case now being considered the defendant in his answer set forth various sections of the Articles of Association and Normal Laws of the church, and after pleading the holding of the meeting of February 1, 1942, and the election of defendant to the office of elder, it is alleged that no appeal was taken at any time by the plaintiff or by anyone in his behalf from the action of said parish at said meeting. This allegation is not denied by the plaintiff.

As a result of the meeting the defendant was elected to the office of elder of the Holy Trinity Cathedral, and at the close of plaintiff’s case the defendant by his counsel moved the court to find for the defendant for the various reasons given, one of which was that the plaintiff had not exercised his right of appeal within the organization.

For the reasons that we have stated in the opinion the judgment of the circuit court will be sustained on" ■ the ground urged by the defendant that the plaintiff has not exercised his remedy of appeal within the organization before filing this suit.

Therefore the judgment of the circuit court dismissing the petition of plaintiff is in accordance with the . law and the evidence, and it is affirmed.

Affirmed.

Burke, P. J., and Kiley, J., concur.


author: Justice Kiley.

text:
    Marie Greene, Appellant, v. Walgreen Company, Appellee.
    Gen. No. 41,855.
    opinion filed December 9, 1942;
    rehearing denied January 15, 1943.
    Thomas C. Hollywood and Lloyd T. Bailey, for appellant; Joseph W. Bailey, of counsel; Lord, Bissell & Kadyk, for appellee; Bruce S. Parkhill, of counsel.
   Opinion by

Justice Kiley.

“Not to be published in full.”


author: Presiding Justice Matchett.

text:
    Appeal of Abraham H. Patek, Appellant. Clara Young, Appellee, v. Frederick A. Smith et al., Appellant.
    Gen. No. 42,234.
    opinion filed December 21, 1942.
    A. H. Patek, pro se; Laurence M. Fine, of counsel; Maurice L. Cowen, for appellee; Bernard L. Goldstein and Barnet Perel, of counsel.
   Opinion by

Presiding Justice Matchett.

‘ ‘Not to be published in full.”


author: Justice McSurely.

text:
    Meyer Saffron, Appellant, v. Young Men’s Christian Association of Chicago, Appellee.
    Gen. No. 42,207.
    opinion filed December 21, 1942.
    Russell J. Topper and Golden & Golden, for appellant; Russell J. Topper, of counsel; Kirkland, Fleming, Green, Martin & Ellis, for appellee; William H. Symmes, David Jacker and Thomas F. Scully, of counsel.
   Opinion by

Justice McSurely.

‘‘Not to be published in full.’’


text:
    Vito Addante, Appellant, v. Vincenzo Pompilio, Appellee.
    Gen. No. 42,209.
    opinion filed December 21, 1942.
    Michael R. Durso and Otto Schusterman, for appellant; Frank J. Tyrrell, for appellee.
   Opinion by

Justice McSurely.

“Not to be published in full.’’


text:
    Washington Boulevard Hospital, Appellee, v. Theodore Levin, Appellant.
    Gen. No. 42,228.
    opinion filed December 21, 1942.
    Theodore Levin, pro se; Montgomery, Hart, Pritchard & Herriott, for appellee; Charles O. Parker, of counsel.
   Opinion by

Justice McSurely.

“Not to be published in full.”


text:
    Elizabeth Friese and Walter E. Friese, Appellants, v. George R. Friese et al., Appellees.
    Gen. No. 42,266.
    opinion filed December 21, 1942;
    rehearing denied January 5, 1943.
    Edward Sager, for appellants; Edwin Terwilliger, of counsel; Peter D. Giachini, for certain appellee.
   Opinion by

Justice McSurely.

“Hot to be published in full.”


author: Justice O’Connor.

text:
    George L. W. Moore and Clara Moore, Appellees, v. Bridget H. Sullivan, Administratrix De Bonis Non of Estate of James W. Moore, Deceased, Appellant.
    Gen. No. 42,212.
    opinion filed December 21, 1942.
    David J. A. Hayes, for appellant; Benjamin M. Becker and H. Burton Schatz, for appellees.
   Opinion by

Justice O’Connor.

“Hot to be published in full.”


text:
    Thomas D. Nash, Appellee, v. Park Castles Apartment Building Corporation, Appellee. Metropolitan Life Insurance Company, Appellant.
    Gen. No. 42,230.
    opinion filed December 21, 1942;
    rehearing denied January 5, 1943.
    Follansbee, Shorey & Schupp, for appellant; Robert W. Schupp and Frederic Barth, of counsel; Thomas J. Courtney, State’s Attorney, for certain appellee; Marshall V. Kearney, Jacob Shamberg and Brendan Q. O’Brien, Assistant State’s Attorneys, of counsel; Marshall & Marshall, for certain other appellee; Maurice G. Shanberg and William P. Gerber, of counsel.
   Opinion by

Justice O’Connor.

“Not to be published in full.’’


author: Presiding Justice Huffman.

text:
    Ralph Bouton, Appellee, v. George J. Harrison, Appellant.
    Gen. No. 9,838.

      opinion filed December 22, 1942.
    Cassidy, Knoblock & Sloan, for appellant; Champion, Gaskins & Lee, for appellee.
   Opinion by

Presiding Justice Huffman.

“Not to be published in full.’’


author: Justice Wolfe.

text:
    Marie Louise Grassle et al., Appellees, v. Elmer Knowles, Appellant. Ben A. Smith, Appellee, v. Elmer Knowles, Appellant.
    Gen. No. 9,677.
    opinion filed December 22, 1942.
    C. George Dimas, for appellant; Ray F. Faulkner and Matthew W. Stefanich, for appellees.
   Opinion by

Justice Wolfe.

“Not to be published in full.”


text:
    Guy P. Nadon, Appellee, v. City of Elgin, Appellant.
    Gen. No. 9,840.

      opinion filed December 22, 1942.
    Perry D. Wells and Geo. D. Carbary, for appellant; Geo. D. Carbary, of counsel; Ranstead S. Lehmann and Healy, Beverly & Funk, for appellee; Ranstead S. Lehmann and Paul G. Funk, of counsel.
   Opinion by

Justice Wolfe.

"Not to be published in full.”


author: Mr. Justice Dady

text:
    Bert Moudy, Appellee, v. New York, Chicago and St. Louis Railroad Company, Appellant.
    Gen. No. 9,352.

      Opinion filed October 29, 1942.
    Rehearing denied February 2, 1943.
    Thompson & Martensen, of Paxton, and Pope & Driemeyer, of East St. Louis, for appellant.
    S. H. Dilks and R. L. Schneider, both of Paxton, for appellee.
   Mr. Justice Dady

delivered the opinion of the court.

Plaintiff obtained a verdict and judgment for $5,000 for injuries resulting from a collision between his automobile and defendant’s passenger train. Defendant appeals.

The charges of negligence were that defendant negligently permitted weeds and shrubs to grow on its right of way so that plaintiff in approaching the crossing in question was unable to see the approaching train, and that defendant ran its train on the crossing without blowing a whistle or sounding a bell as required by statute.

The first contention of the defendant is that the trial court erred in refusing to direct a verdict for the defendant at the close of all of the evidence on the ground that the evidence shows plaintiff was guilty of contributory negligence which proximately caused his injuries.

In passing on a motion for a directed verdict it is not within tha province of the trial judge to weigh the evidence and ascertain where the preponderance is. (Frazer v. Howe, 106 Ill. 563.) Whether a plaintiff was exercising reasonable care or was guilty of contributory negligence becomes a question of law only when the evidence is so clearly insufficient to establish due care that all reasonable minds would reach the conclusion that there was contributory negligence. A motion to direct a verdict for the defendant preserves for review only a question of law whether from the evidence in favor of the plaintiff, standing alone, and when considered to be true, together with the inferences which may legitimately be drawn therefrom, the jury might reasonably have found for the plaintiff. (Ziraldo v. W. L. Lynch Co., 365 Ill. 197.) When there is any evidence before the jury which taken with its reasonable inferences in its aspect most favorable to the plaintiff tends to show the use of due care, the question of due care is one for the jury. Whether there is any such evidence is a question of law. (Dee v. City of Peru, 343 Ill. 36.)

In Chicago, B. & Q. R. Co. v. Pollock, 195 Ill. 156, 163, the court said: “What is required of one approaching a railroad track depends upon the circumstances of each case. Courts are not at liberty to say, as a, matter of law, that one must conduct himself in a particular manner and observe a certain line of conduct in each case and under all conditions. Negligence does not become a question of law, alone, unless the acts constituting it are of such a character that all reasonable men would concur in pronouncing them so. Human conduct must be judged by human standards. ’ ’

In passing on such contention of defendant, we will therefore state only the undisputed facts and the facts most favorable to the plaintiff.

Plaintiff, aged 60 years, testified he thought his hearing was normal. There was no testimony as to his eyesight being other than normal.

On October 11, 1939, between • eight and nine a. m. he was driving a Ford sedan northerly on highway No. 115. The only other occupant of the automobile was killed in the accident. The sun was shining and the concrete pavement was dry.

Highway No. 115 ran north and south. The tracks of defendant ran east and west and across the highway at apparently right angles. While crossing such tracks plaintiff’s automobile was struck by or collided with a west bound train of defendant, the speed of the train being about 60 miles per hour, and the point of contact being at or about the left side of the cowcatcher on the locomotive.

Plaintiff had previously driven over the crossing-many times but testified he did not previously know of obstructions to the view. He knew trains ran on the tracks and he knew about the morning passenger train, but did not know it was due at about that time.

There was evidence tending to show that on the southerly side of the right of way of the defendant there were weeds from five to six feet in height, that immediately south of the right of way there was a raise in the elevation of the ground, that there was growing thereon a field of standing corn, and such raise in the land and the weeds and corn obstructed the view of the plaintiff.

Plaintiff testified he had had his brakes examined and tightened three days prior to the accident, that they were in excellent condition, and that he did not hear any bell or whistle and none was sounded.

A witness for plaintiff testified that he arrived at the place of the accident shortly after the accident and that there was a skid mark on the pavement caused by the left tire of the car, showing a car had slid about 60 feet, the tire crossing the center of the pavement about the time it reached the railroad tracks.

There was testimony to the effect that one skid mark, instead of two, on a pavement indicates that the brake on only one side was taking- hold, and that the brake on the other side was not taking hold.

There were apparent inconsistencies in the testimony of the plaintiff, bnt construing his testimony most favorably to him, when about 300 to 500 feet south of the tracks he looked and listened; he looked and listened continuously from then on; when about 100 to 150 feet south of the crossing he decreased his speed from 30 to 12 or 15 miles per hour; in order to then get across the tracks “immediately,” he then increased his speed to about 22 to 25 miles per hour; while driving at 22 to 25 miles per hour he first heard but did not see the train when he was about 60 feet from the crossing, and he then immediately applied his brakes “with all his might” but the car then slid or skidded 60 feet further and was still moving when struck by the train, and he first saw the train when about 20 feet from the tracks.

Assuming as true the testimony with reference to the brakes being repaired, with reference to the application of the brakes by the plaintiff, and with reference to the one skid mark, plaintiff was driving a car with brakes that were apparently defective, yet such evidence tended to prove that the plaintiff had used reasonable care to have his car provided with reasonably good brakes, to prove that he had used reasonable care in the application of the brakes, and to prove that he had reasonable grounds to believe and did believe he had good brakes.

Although the plaintiff testified it would take 100 to 120 feet to stop his car at a speed of 20 to 25 miles per hour on a dry pavement with his brakes in good condition, and that he could not under such conditions stop a car within 15 to 20 feet, this was a mere expression of opinion, he was not bound by such testimony, and the jury was not bound to believe such testimony, but could rely on their own common knowledge. In Grubb v. Illinois Terminal Co., 366 Ill. 330, 334, the court said: “It is a matter of common knowledge that a small automobile of the type here involved, when going at the rate of twenty miles an hour with brake mechanism in good condition, can be stopped within a few feet.”

Assuming plaintiff’s testimony as true, when 60 feet from the track he was listening and heard the train and at once used every effort to stop his car. He was then going at such a rate of speed, 22 to 25 miles per hour, that the jury would have been justified in believing that if his brakes had worked properly he could have stopped the car in much less than such 60 feet, but that the brakes failed to work through no negligence of the plaintiff.

We are of the opinion there was nothing in the evidence which would have warranted the trial court in finding, as a matter of law, that the plaintiff was not in the exercise of due care or was guilty of contributory negligence at or just prior to the time of the accident. The court therefore did not err in denying the motion for a directed verdict.

For the same reasons, the court properly denied defendant’s motion for a judgment notwithstanding the verdict.

The overruling of defendant’s motion for a new trial is next assigned as error.

Defendant contends that, the verdict was against the manifest weight of the evidence. There was a sharp conflict in the evidence as to whether or not the defendant negligently permitted weeds and shrubs to grow on the right of way, as to whether or not the plaintiff’s view was obstructed and as to whether or not a hell or whistle was sounded. We have carefully examined the evidence and cannot say that on any of these questions the verdict-is manifestly against the weight of the evidence. Where there is a contrariety of evidence and the testimony by fair and reasonable intendment will authorize the verdict, even though it may he supported by a lesser number of witnesses, a court of review will not set it aside. (Carney v. Sheedy, 295 Ill. 78.) Where a fair question of fact is raised by the proof this court has consistently held that the jury finding will not be set aside as against the manifest weight of the evidence. (Summers v. Hendricks, 300 Ill. App. 498.)

Defendant contends that the trial court erred in giving certain instructions at the request of the plaintiff. It is said that instruction No. 4 limited the time in which the plaintiff was required to exercise care for his own safety to the time “while crossing the defendant’s railroad,” without regard to plaintiff’s conduct prior to the time the crossing was reached. The exact language of the instruction was that if the jury believed from the evidence a certain state of facts and that “the plaintiff was injured . . . while crossing the defendant’s railroad, and while he was in the exercise of ordinary care for his own safety, . . . . ” We do not believe this instruction is subject to this criticism, and we do not believe that it in any way misled or misinformed the jury. Moreover instructions are to be considered as a series. (McClure v. Hoopeston Gas & Electric Co., 303 Ill. 89; Beidler v. King, 209 Ill. 302.) Plaintiff’s instruction No. 11 fully informed the jury that “ordinary care” and “due care,” as mentioned in the instructions, “is that degree of care which an ordinarily prudent person would exercise under the same or similar circumstances as shown by the evidence in this case, at and immediately prior" to the collision in question.”

Plaintiff’s instructions Nos. 5 and 6 are also complained of, but we find no merit in the criticisms.

The judgment of the trial court is affirmed.

Affirmed.


author: Mr. Justice Hayes

text:
    Lillian Bell Gregory Knight, Appellee, v. Ginevra F. Wacaser et al., Appellees. Charles A. Gregory, Charles A. Gregory, Executor of Last Will and Testament of James A. Gregory, and Administrator of Estate of Sarah Estella Gregory Donovan, Deceased, Appellant.
    Gen. No. 9,340.

      Opinion filed October 29, 1942.
    Rehearing denied February 2, 1943.
    Asa S. Chapman, of Champaign, F. K. Lemon, of Clinton, and Little & Finfrock, of Urbana, for appellant.
    Robert F. White and Wm. C. Ingram, both of Sullivan, for appellees.
   Mr. Justice Hayes

delivered the opinion of the court.

James A. Gregory died testate on October 14, 1927, a resident of Moultrie county, Illinois, owning 265 acres of land in that county and a house and two small vacant lots in the village of Lovington. The second clause in his will, which has been admitted to probate, is as follows: “Second: After the payment of such funeral expenses and debts, I direct my estate both real and personal to be distributed as follows, viz: To my son, Charles A. Gregory two shares; To my daughter, Estella Donovan one share; To my daughter Lillian B. Knight one share and to my daughter Ginevra F. Waeaser one share and to my grandson, Gregory Pritchard one-half share. The sale and distribution of my estate after my death is to be left entirely to the judgment of my son, Charles A. Gregory, in whom I have the utmost confidence, both as to his ability and integrity.” At the time of decedent’s death 80 acres of the farm land was mortgaged to the Trevett-Mattis Banking Company of Champaign, Illinois to secure the payment of a promissory note for $6,000 due March 12, 1922, which maturity date was subsequently extended to April 1, 1932. On December 9, 1927, Lillian B. Knight, one of testator’s children and devisees and the plaintiff in this cause filed a bill in the circuit court of Moultrie county to partition testator’s real estate. This petition was denied and an appeal was taken to the Supreme Court where it was held that an active trust was established by the clause above quoted in the will of James A. Gregory and an equitable conversion of the real estate created. The decree of the circuit court was therefore affirmed. Knight v. Gregory, 333 Ill. 643.

On February 26, 1937, the Trevett-Mattis Banking Company filed a complaint in the circuit court of Moultrie county to foreclose its mortgage. Subsequently the banking company agreed not to press its foreclosure proceedings until it was determined whether the entire 265 acre tract of farm land could be sold as a unit. Instead, it took possession of the 80 acres subject to the mortgage and applied the income therefrom to the principal and interest of its indebtedness.

This action was begun by Lillian B. Knight on May 12, 1937 to construe the will of James A. Gregory in order to define the duties of Charles A. Gregory, trustee and in addition sought the removal of Gregory as trustee and the appointment of a successor who should be directed to sell testator’s real estate and liquidate the trust estate. Charles A. Gregory both as an individual and as executor and trustee was made a defendant together with the other beneficiaries and heirs of deceased beneficiaries under the will of James A. Gregory deceased. A hearing was had upon the original complaint and at its close, Mrs. Knight sought and obtained leave of court to-file an amended complaint. The amended complaint ad.ded to the original complaint, allegations setting forth various liens and encumbrances on the trust res and on the shares of several of the cestuis que trust, added as parties, subsequent assignees and judgment creditors of various beneficiaries and included as an alternative prayer for relief a request for partition. Motions to dismiss were filed by various defendants which were taken under advisement by the circuit court and later overruled. Finally on January 22, 1941, a hearing was held on the amended complaint. At the close of the hearing the court found for plaintiff and among other things ordered the removal of Charles A. Gregory as trustee and the appointment of a successor trustee who was directed to sell the property at public sale. Charles A. Gregory appealed to the Supreme Court from this portion of the decree but the cause was transferred here because no freehold was involved. Knight v. Gregory, 378 Ill. 565.

It is Gregory’s contention that by the terms of the will of his father he was empowered to sell testator’s real estate at any time he saw fit and that because of unfavorable market conditions he acted reasonably in deferring its sale. He further contends that there is | no proof that he has mismanaged the property or of any conduct justifying his removal. Mrs. Knight, on | the other hand, argues that he has delayed an unreasonable length of time in selling the trust res and that ] he has been guilty of gross misconduct in its administration.

It appears from the record that of the 265 acres of farm land only about 160 acres are tillable. The remainder is pasture and timber land cut by roads and a river. The farm is conveniently located near town and can be advantageously operated as a stock farm. Prior to testator’s death, Gregory himself occupied it. Thereafter he leased it to several tenants, leaving his own stock and equipment there for the use of the tenants. It appears that over a period of years most of this stock and equipment was converted by the tenants, causing Gregory a loss of about $4,500. The farm has been operated at a loss for several years, taxes were allowed to default, part of it was sold for taxes in 1938 but later redeemed by Gregory after this suit was filed. The improvements on the farm were old and have been allowed to deteriorate even further although some necessary repairs have been made. During most of the period of his trusteeship, Gregory has rented the house in Lovington to himself for $15 per month. In 1939, the house was damaged by fire and Gregory collected $1,500 fire insurance for the trust estate. He spent about $300 to repair the roof but has not repaired the damage to the interior. As a result, the house is not now occupied. He further testified to four attempts to sell the farm property. Three of them were merely conversations in which the possibility of a sale was discussed but no price made to the prospective purchasers. The fourth was an unsuccessful attempt by the trustee to sell the property to the State for a forest preserve.

Gregory seeks to justify the present condition of the estate and'his failure to liquidate the real estate by calling attention to the depression starting in 1930, which destroyed the market for farm property and restricted farm income. It should be noted, however, that from 1927 to 1930 the market for real estate was good and for the past few years, sales of farm property have increased and profits made. We believe that the circuit court was justified in finding that Gregory has delayed selling the real estate for an unreasonable length of time and correctly ordered a sale of the property especially since the income therefrom is insufficient to pay interest, taxes and other necessary expenses. Teater v. Salander, 305 Ill. 17; Suiter v. McWard, 328 Ill. 462. We are further convinced that the court properly ordered the removal of Gregory as trustee and the appointment of a successor. While it is well established in this State that a court of equity will not remove a trustee appointed by will unless he is proved to have been faithless to his trust, or has failed to act in accordance with his testator’s intentions (La Forge v. Binns, 125 Ill. App. 527), it is a court’s duty to so act where the object of the trust is being frustrated. Mannhardt v. Illinois Staats Zeitung Co., 90 Ill. App. 315; Metsker v. Metsker, 320 Ill. 547. It is clear in the present case that James A. Gregory intended his trustee to sell his real estate within a reasonable time and distribute the proceeds so that the beneficiaries of his will might, enjoy his estate. Instead of carrying out this intention his trustee has failed to act for over 14 years, during which time there have been at least two periods when the market for farm land has been reasonably good. It must have been apparent to the trustee that the property, whether through his own mismanagement or because of unfavorable economic conditions, had begun to deteriorate and was unable to carry its own fixed charges. Under these circumstances, it was his duty to exert even greater efforts to dispose of the property in order that the trust res would not be dissipated. We believe that Charles A. Gregory has been guilty of negligence in managing the estate confided to his control and that his conduct justifies his removal.

The circuit court also found in its decree that the interest of Mrs. Knight was subject to the lien of a judgment in favor of the Plainfield State Bank, that the interest of Charles A. Gregory was subject to the lien of a judgment held by the Hardware State Bank; that the interest of Sarah Estella Donovan, one of the beneficiaries under the will who died after the death of her father, was subject to any claims against her estate and that her share of the trust estate on liquidation should be paid to her administrator. The court further held that the interest of all the beneficiaries was subject to the lien of the Trevett-Mattis Banking Company on the tract described in the mortgage, and to all unpaid claims and expenses of administration allowed against the estate of James A. Gregory the testator. Within 30 days after the decree was entered, certain heirs at law of O. H. Castle deceased, residents of Louisiana, filed their verified petition in this cause, asking leave to intervene and to have the decree modified. The Castle heirs claim under an assignment executed by Charles A. Gregory of his interest in his father’s estate to O. H. Castle in November 1937, which assignment was not recorded or filed in Moultrie county until January 26,1939 when it was filed in the county court there. A hearing was • had on this petition whereupon the court permitted the intervention and modified its decree, reserving for future determination the rights of the Castle heirs, the Hardware State Bank, the Plainfield State Bank and all other creditors and assignees of the various beneficiaries to share in the distribution of the trust estate. The Hardware State Bank has appealed from this order, contesting the right of the Castle heirs to intervene and seeking to set aside the order modifying the decree. The bank has cited numerous cases holding that a third party may not intervene in a cause after final decree but we do not deem it necessary to discuss them at length. In each of them, the party intervening sought a hearing on the merits of the case. In such cases it is settled law that after a cause has been heard and determined between the parties there can be no intervention by a third person.” Haase v. Haase, 261 Ill. 30. In the present case, however, the Castle heirs are not concerned in the merits of the controversy between the trustee and beneficiaries ' under the will of James A. Gregory. They are merely seeking to assert their rights to the distributive share of Charles A. Gregory when the trust is liquidated. We believe the circuit court properly exercised its discretion in allowing them to intervene.

The order of the circuit court reserving for future determination the right of conflicting claimants to the shares of various beneficiaries cannot now be reviewed here. By so modifying its order that court did not finally decide that the judgment of the Hardware State Bank was not a prior lien upon the share of Charles A. Gregory but rather deferred its decision on this question until the rights of all parties could be more fully considered. It is therefore clear that this portion of the decree as amended is not final and hence is not appealable by the bank.

The judgment of the circuit court of Moultrie county is therefore affirmed.

Judgment affirmed.