text:
    John Parke et al., Appellees, v. A. H. Lopez, Appellant.
    Gens. No. 9,534, 9557, 9558.

      Opinion filed August 8, 1940.
    Rehearing denied September 21, 1940.
    A. B. Litow, of Chicago, and Hadley & Leren, of Wheaton, for appellant; Charles W. Hadley and Palmer Leren, both of Wheaton, of counsel.
    Edgar F. Thoma, of Elmhurst, for appellees; George E. Billett, of Chicago, and William H. Fischer, of Elmhurst, of counsel.
   Mr. Presiding Justice Wolfe

delivered the opinion of the court.

The plaintiffs, John Parke, Dorothy Parke, William R. Darnall and Page Darnall filed in the circuit court of DuPage county, their complaints against the defendant (petitioner) A. H. Lopez, seeking to recover damages for personal injuries sustained by them resulting from a collision between the automobile of John Parke in which the plaintiffs were riding, and an automobile owned and driven by the defendant, A. H. Lopez. The collision occurred on the 21st of May, 1938, at the intersection of Roosevelt road and York road in DuPage county, Illinois.

The defendant, A. H. Lopez, filed his counterclaim against the plaintiffs, John Parke and Dorothy Parke, seeking to recover damages for personal injuries he sustained resulting from said collision. Rita Roberts who was a passenger in the automobile of the defendant, A. H. Lopez, was granted leave to intervene and file her counterclaim against the plaintiffs, John Parke and Dorothy Parke, seeking to recover damages for personal injuries she sustained as a result of said collision. The case was tried before a jury. The jury returned six separate verdicts, one finding the defendant, A. H. Lopez, guilty as to the plaintiff, Dorothy Parke, and assessed her damages at $499.80. As to the plaintiffs, John Parke, William B. Darnall and Page Darnall, they found the defendant guilty, but assessed each of the plaintiffs’ damages at no dollars and no cents. The jury also returned a verdict finding John Parke and Dorothy Parke not guilty upon the counterclaim of the defendant, A. H. Lopez. They found a similar verdict upon the counterclaim of the intervening petitioner, Rita Roberts. Each of the four plaintiffs filed separate motions for a new trial on the ground that the said verdicts and each of them are contrary to the manifest weight of the evidence, and contrary to law. The defendant, A. H. Lopez, and the counterclaimant, Rita Roberts, filed their separate motions for judgment on their respective counterclaims notwithstanding the verdict. These motions were overruled. The defendant, A. H. Lopez, and counterclaimant, Rita Roberts, then filed their motions for a new trial, which were overruled. The court sustained the motion of the plaintiffs for a new trial. Judgment was entered on the verdict of the jury on the counterclaim of the defendant, A. H. Lopez, and the counterclaimant, Bita Boberts, and that they take nothing by their counterclaims and that they go hence without day. It is from the order of the trial court in granting a new trial to the plaintiffs that this appeal is prosecuted.

There is no question raised upon the pleadings in the case. The complaint alleges that the plaintiffs were in the exercise of due care and caution for their own safety while riding in the car of John Parke, and that on account of the negligence of the defendant, A. H. Lopez, in the operation of his automobile, they were injured. The defendant, A. H. Lopez, in his answer, denies any and all negligence on his part. In his counterclaim he alleges that he was in the exercise of due care and caution for his own safety, and through the negligence of John Parke and Dorothy Parke, in the operation of their automobile, he was injured and sustained damages. The intervening petitioner, who was granted leave to file her counterclaim, charged that she was a passenger in the car of A. H. Lopez, and in the exercise of ordinary care and caution for her own safety, and that she was injured through the negligence of John Parke and Dorothy Parke.

The trial court, in passing upon the motion for a new trial, stated, that the jury having found the issues in favor of the plaintiffs, then each of them were entitled to some damages; that the jury was so instructed by the court, and they had failed to follow the instructions; that the damage assessed in favor of Dorothy Parke was inadequate, therefore he felt that the motion should be sustained as to her, the same as the other plaintiffs. It is always an aid to a reviewing court if we have the reasons why the trial court granted a new trial.

It is seriously contended by the appellant that the verdict in this case is identical as the one in the case of Chapin v. Foege, 296 Ill. App. 96. An examination of the verdicts filed in the Chapin case shows that they are entirely different from the case at bar. Chapin brought suit for personal injuries against the defendants, Herbert Foege and Henry Foege. The defendant, Herbert Foege, filed a counterclaim against Chapin. The jury, by their verdict, found: “We, the jury, find the defendant, Henry Foege, not guilty, the defendant, Herbert Foege, guilty and assessed the plaintiffs’ damages at the sum of no dollars. We, the jury, find the cross-defendant, W. J. Chapin, guilty and assess the cross-plaintiff, Herbert Foege’s damages at the sum of no dollars.” The Appellate Court of the First District sustained the trial court in holding that the jury, by their verdicts, intended to find that both plaintiff and defendant were guilty of negligence which caused the accident and injuries, therefore neither could recover. In the present case it will he observed that the jury found that A. H. Lopez was guilty of negligence which caused the injuries to all of the plaintiffs and also found that John Parke and Dorothy Parke were not guilty of negligence on the counterclaim of A. H. Lopez and the intervening petitioner, Rita Roberts.

The law is well stated in the case of Browder v. Beckman, 275 Ill. App. 193, in which the court uses this language: ‘ ‘ What moved the jury to render the verdict which it returned, is of course, not known, but it is certain they did not follow the court’s instruction as to the amount of damages which the uncontradicted proof showed she had a right to recover, if the appellee was, in fact, liable to her, as the jury found. Having decided that she was entitled to an award, the jury were hound, in making same, to take into consideration all of the elements of damage which were proven. This they did not do, for which reason the amount of the verdict, upon the record, was inadequate. Where such is true, and it is obvious that a jury have failed to take into consideration proper elements of damage which have been clearly proven, a new trial should he awarded. Paul v. Leyenberger, 17 Ill. App. 167; Kilmer v. Parrish, 144 Ill. App. 270. The court should have sustained the motion for a new trial.”

In the present case, the jury were instructed what elements to take into consideration in assessing damages if they found the issues in favor of the plaintiffs. This, they wholly failed to do. In granting motions for a new trial, it is largely discretionary with the trial court whether he shall, or shall not grant the same. In the present case it seems to us that the trial court properly exercised his discretion and granted the plaintiffs a new trial.

The order appealed from is hereby affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Dove

license: Public Domain

text:
    Kewanee Lumber and Supply Company, Appellant, v. Guest Laundry Company et al., Appellees.
    Gen. No. 9,541.
    Opinion filed September 19, 1940.
    James N. Cummings, of Kewanee, for appellant.
    Andrews & Young, of Kewanee, for appellees.
   Mr. Justice Dove

delivered the opinion of the court.

On March 11, 1935, William L. O’Connell, the then receiver of the Kewanee State Savings Bank and Trust Company, filed a complaint in the city court of the city of Kewanee, Henry county, Illinois, to foreclose a trust deed theretofore executed by the Guest Laundry Company. This trust deed was dated February 17, 1932 and conveyed lot 4 in block 22 of the original town, now city of Kewanee in Henry county, Illinois to Robert L. Taylor, trustee to secure the payment of a note for the principal sum of $15,000. In that proceeding the Kewanee Lumber and Supply Company, appellant herein, was made a defendant and it appeared by counsel and filed its motion to dismiss on the ground that the instant suit was pending in the circuit court of Henry county. There was a hearing upon this motion in the city court and on June 5, 1935, the motion was overruled. Thereafter this defendant, the Kewanee Lumber and Supply Company answered. The cause was referred to the master and on August 18, 1937, a decree of foreclosure and sale was entered by the city court of Kewanee. By this decree the receiver of the Kewanee State Savings Bank and Trust Company was found to have a valid first lien upon the property described in the trust deed executed by the Guest Laundry Company dated February 17, 1932, and that the Kewanee Lumber and Supply Company did not have a valid lien on said property. From that decree the Kewanee Lumber and Supply Company appealed to this court but, its appeal was, by this court, dismissed.

On July 17, 1934, appellant, Kewanee Lumber and Supply Company, filed the instant complaint in the circuit court of Henry county to foreclose a lien on said lot 4 in block 22 in the original town now city of Kewanee, in Henry county, Illinois. To this complaint the Guest Laundry Company, the owner of said lot and the maker of the trust deed which was foreclosed in the city court of Kewanee by the decree of August 18, 1937, together with William L. 0 ’Connell, the then receiver of the Kewanee State Savings Bank and Trust Company, were made defendants. • The receiver, William L. O’Connell filed his motion to strike the complaint. Thereafter and on February 14, 1938, the Kewanee Lumber and Supply Company by leave of court filed its amended complaint alleging that on November 30, 1930, it entered into an oral contract with the Guest Laundry Company by the provisions of which it furnished certain building materials for the purpose of making certain improvements on the building of the Guest Laundry Company located on said lot 4 in block 22 of the original town of Kewanee, said materials so furnished by the plaintiff to the Guest Laundry Company being of the value of $2,532.52. The complaint alleged that Charles H. Albers succeeded William L. O’Connell as receiver of the Kewanee State Savings Bank and Trust Company and that as such receiver he claimed to have an interest in said property by reason of the trust deed executed by the Guest Laundry Company which Albers held as receiver. In the amended complaint it was alleged that the claim of the Kewanee Lumber and Supply Company was superior to the claim of Albers or of any other person or persons, and by it the Kewanee Lumber and Supply Company sought a decree finding that the sum of $2,532.52 was due it from the Guest Laundry Company and that it had a lien against said lot 4 in block 22 of the original town of Kewanee and that its lien is prior to the lien of Charles H. Albers receiver by virtue of said trust deed executed by the Guest Laundry Company to Robert L. Taylor, trustee. To the amended complaint the defendant Charles H. Albers as receiver for the Kewanee State Savings Bank and Trust Company filed its motion to dismiss supported by affidavit setting forth the proceedings theretofore had in the city court of the city of Kewanee. On March 5, 1938, the Kewanee Lumber and Supply Company filed its countermotion to dismiss the motion of Albers which was filed on February 23, 1938. These motions were heard and the countermotion of the Kewanee Lumber and Supply Company was denied and the motion of Charles H. Albers, receiver was sustained, and the suit was dismissed at the cost of the plaintiff and from that decree the Kewanee Lumber and Supply Company has perfected this appeal.

Counsel for appellant contend that when the Kewanee Lumber and Supply Company filed its complaint in the circuit court of Henry county to foreclose its lien and made the receiver of the Kewanee State Savings Bank and Trust Company and other persons defendants, the circuit court thereby acquired jurisdiction for all purposes and the decree which the city court of the city of Kewanee thereafter rendered which established the validity of the lien of the trust deed which the receiver was foreclosing and which also established the invalidity of the lien of appellant upon the premises therein involved was absolutely void and of no force and effect.

In support of appellant’s contention counsel cite Nolan v. Barnes, 268 Ill. 515; Chicago City Bank & Trust Co. v. Paschong, 287 Ill. App. 1; Farmers’ Loan & Trust Co. v. Lake Street Elevated R. Co., 177 U. S. 51. In this latter case the Farmers Loan and Trust Company, as trustee filed its bill to foreclose a trust deed in the United States Circuit Court for the Northern District of Illinois. Its bill was filed at 10:35 o’clock in the morning of January 30, 1896. Shortly thereafter, but on the same day, the Lake Street Elevated Railroad Company, the defendant in the' suit filed in the United States Circuit Court, filed in the Superior Court of Cook County its bill praying that the Farmers Loan and Trust Company,- the plaintiff in the suit brought in the Federal Court be removed as trustee under the trust deed sought to be therein foreclosed, that the court appoint a new trustee and that the Farmers Loan and Trust Company be enjoined from prosecuting its suit in the Federal Court. The superior court granted the relief sought and enjoined the Trust Company from taking any further steps to foreclose or act as trustee under the trust deed. This decree was affirmed by the Appellate and also by the Supreme Court of this State (68 Ill. App. 666 and 173 Ill. 439). Upon a further review by the United States Supreme Court, that court reversed those judgments and decree and held that upon the filing of the bill by the Farmers Loan and Trust Company to foreclose its trust deed in the Federal Court that court acquired jurisdiction to hear and determine all controversies relating to said foreclosure proceeding and that having first acquired such jurisdiction its jurisdiction was exclusive and the superior court of Cook county, being a court of co-ordinate jurisdiction, was disabled from exercising a like power.

In Chicago City Bank & Trust Co. v. Paschong, supra, it appeared that on August 1,1936, the county treasurer of Cook county filed in the circuit court of Cook county a complaint asking for the appointment of a receiver for certain premises upon which the taxes had not been paid and for leave to apply the income from those premises on the unpaid taxes accruing prior to January 1,1934. The Sixty-third and Halsted Realty Company was the lessee of the premises and was made a party defendant. Thereafter and on August 6, 1935, the realty company filed its complaint in the superior court of Cook county asking, among other things, for the construction of its lease and that the county treasurer be restrained from proceeding further under his pending suit. On January 13, 1936, a suit to partition the leased premises was filed in the circuit court of Cook county, and subsequently, that court appointed a receiver and directed the receiver to pay out certain sums of money to certain parties. From that order the Sixty-third and Halsted Realty Company appealed, insisting that the appointment of a receiver by the circuit court in the partition suit was an unwarranted interference with the prior and superior jurisdiction of the superior court over the same subject matter. In sustaining this contention, the Appellate Court held that the appointment of a receiver by the circuit court was an attempt' by that court to oust the superior court of its jurisdiction over a subject matter which it had obtained long prior to the filing of the petition for the appointment of a receiver and in the course of its opinion said, “It has been held in many cases, that where two courts each take jurisdiction of a matter, that court in which the first action was brought, if the action be of a character that makes the court’s dominion over the res essential to its judgment, will acquire jurisdiction of the res on the commencement of the action and retain it to the end.”

In Nolan v. Barnes, supra, a bill was filed by the conservator of Annie M. Nolain in the circuit court of Cook county to set aside a deed and contract on the ground that they were obtained by fraud and undue influence. Thereafter the incompetent person died, and an amended and supplemental bill was filed and upon the hearing, a certified copy of a record declaring heirship of Annie M. Nolain made in the probate court of Cook county was offered in evidence. The Supreme Court held that this order was not competent evidence in the circuit court in the chancery suit against other parties to the proceeding in the circuit court because the order of heirship was made in an ex parte proceeding subsequent to the time the chancery proceeding was instituted. In the course of its opinion, the court said: “It is elementary that the court first lawfully obtaining jurisdiction will retain it until the end of the controversy and to the exclusion of all others; also, that no other court, even of concurrent jurisdiction can or will make findings or orders which have any bearing upon the issues in the court originally entertaining the cause. ’ ’

The foregoing authorities clearly state correct rules of law but they are not applicable to the facts as disclosed by this record. This is not an appeal from the decree of the city court of the city of Kewanee but is an appeal from the decree of the circuit court of Henry county dismissing the complaint of the Kewanee Lumber and Supply Company wherein it sought to have a lien declared upon the very premises involved in the foreclosure proceedings in the city court and which resulted in a decree of the city court of the city of Kewanee establishing the validity of the trust deed therein foreclosed and the invalidity of the claim and alleged lien of appellant upon the same premises. The cases and authorities relied upon by appellant do not hold that where a court has jurisdiction to hear and determine a case and then acquires jurisdiction of the parties thereto and proceeds to a final decree that such a decree is void, because another suit is pending and undisposed of which was filed previously to the case that has proceeded to a final decree. What the authorities relied upon by appellant hold is that upon a direct attack such a decree is erroneous and will be reversed. Appellant concedes that the city court of Kewanee had concurrent jurisdiction with the circuit court of Henry county of the subject matter in litigation in this proceeding and that the city court of Kewanee acquired jurisdiction of the parties thereto and that it proceeded to a final decree and that all questions as to the jurisdiction of the city court of the city of Kewanee, as well as the merits of the controversy, were finally passed on and settled by the final decree of the city court after appellant had vigorously litigated those questions in that court.

In Miller v. Rowan, 251 Ill. 344, the distinction between want of jurisdiction and erroneous exercise of jurisdiction was pointed out and it was there said that a decree is not binding upon anyone unless the court rendering the same had jurisdiction of the parties and the subject matter of the cause and that jurisdiction of the subject matter is the power to adjudge concerning the general question involved. “If a bill,’’ said the court, ‘ ‘ states a case belonging to a general class over which the authority of the court extends, the jurisdiction attaches and no error committed by the court can render the judgment void. If the court has jurisdiction, it is altogether immaterial, when the judgment is collaterally called in question, how grossly irregular or manifestly erroneous its proceedings may have been. The judgment cannot be regarded as a nullity, and cannot, therefore, be collaterally impeached. Such a judgment is binding on the parties and on every other court unless reversed or annulled in a direct proceeding and is not open to collateral attack.”

The doctrine of res adjudícala applies in this case. It is well settled that where a court’s jurisdiction to render a particular decree has once attached, a final adjudication of the issues involved in that proceeding precludes the raising of the same questions again. The adjudication is binding upon the parties to the proceeding and applies not only to all matters that were litigated but to all others that might have been litigated. Dillenburg v. Hellgren, 371 Ill. 452; Chamblin v. Chamblin, 362 Ill. 588. It is the first judgment for the same cause of action that constitutes an effective defense, without regard to the order of time with which the suits were commenced, 34 C. J. 758. And an adjudication in a suit commenced after the institution of another suit between the same parties may be conclusive as to the matters arising in the suit first begun, 34 C. J. 886. A new suit on the same cause of action cannot be maintained by the same parties and this rule applies to every question falling within the purview of the original action both in respect to matters of claim and of defense and this estoppel applies in all other actions whether commenced before or after the action in which the adjudication was made, 15 R. C. L. 964.

It is apparent that the entire matter in controversy in this proceeding has already been adjudicated by the city court of the city of Kewanee. That court had jurisdiction of the subject matter and acquired jurisdiction of the parties and its decree cannot be collaterally attacked in this proceeding. The decree appealed from will be affirmed.

Decr&e affirmed.


text:
    First Galesburg National Bank and Trust Company, Appellant, v. Melvin Reyelts, Appellee.
    Gen. No. 9,555.
    Opinion filed September 19, 1940.
    Robert M. Egan, of Galesburg, for appellant.
    Dale G. Ives and Virgil C. Lutrell, both of Aledo, for appellees.
   Mr. Justice Dove

delivered the opinion of the court.

On and prior to January 27, 1939, Herbert Mortenson was engaged in the sale of new and used automobiles in Galesburg, Illinois, doing business as the Mortenson Auto Service. He maintained a salesroom for the display of new and used automobiles and was the authorized dealer and agent for the sale of Oldsmobile cars. On that day he sold to C. H. Chilson of Galesburg an Oldsmobile Sedan. Chilson made a down payment and executed a promissory note payable in monthly instalments for the balance of the purchase price, together with a conditional sales contract to the Mortenson Auto Service. On the same day this note and conditional sales contract were indorsed and transferred for value to the Western Investment Company and the Western Investment Company, on July 1,1939, assigned and transferred them to the First Galesburg National Bank and Trust Company, the plaintiff herein. By the terms of this contract, the title to the automobile which Chilson purchased remained in the Mortenson Auto Service or its assigns until the purchase price had been paid in full. Chilson took possession of the car and made the monthly payments as required by the contract to and including May 5, 1939. Chilson contemplated moving to California and did move, but before leaving and on May 15, 1939, he left his automobile with the Mortenson Auto Service with instructions to place it in its showroom and to sell the same, pay the amount remaining due on his. note and remit whatever balance, if any, to him. His acts in so doing were without the knowledge or consent of the Western Investment Company. The June 5th payment on the note and contract held by the Western Investment Company, which had been executed by Chilson and assigned by Mortenson Auto Service to it was not made and the Western Investment Company, on making inquiry, learned that Chilson had moved to California and on June 7, 1939, sent him a telegram requesting payment. Chilson replied to this message by letter sending it from California by air mail, which letter was received by the Western Investment Company at Gales-burg, Illinois, on either the last mail delivery on June 8th or on the first morning delivery of June 9, 1939. By this letter, Chilson informed the Western Investment Company that he had left the car at Mortenson’s garage for the purpose of sale, and advised it of the instructions he had theretofore given Mortenson Auto Service.

On June 9, 1939, Melvin Reyelts, a farmer residing near New Boston, called at the Mortenson Auto Service in Galesburg with reference to purchasing a used automobile, was shown the Chilson car and Herbert Mortenson sold it to him that day at about 10:30 o ’clock p.m. The agreed purchase price was $925 and Reyelts delivered to Mortenson his used Chevrolet car and executed a note for $699.66 and a conditional sales contract which Mortenson promptly indorsed, transferred and assigned to the Northern Illinois Finance Corporation. During the course of their negotiations, Reyelts agreed to send his certificate of title to Mortenson on the following day and Mortenson agreed to mail to Reyelts the certificate of title to the Oldsmobile Sedan the next day. Following the execution of the note and conditional sales contract and on the evening of June 9,1939, Reyelts, after delivering to Mortenson his old car, received from Mortenson the Chilson car and drove it to his home that evening and used it until July 13, 1939, at which time the First Galesburg National Bank and Trust Company, assignee of the Western Investment Company, claiming title to the Oldsmobile by virtue of the conditional sales contract executed by Chilson, instituted this action of replevin. Reyelts executed a forthcoming bond to the sheriff and upon the hearing, the foregoing facts were stipulated, a jury was waived and the cause submitted to the court for determination resulting in a judgment in favor of the defendant to reverse which the plaintiff appeals.

The Uniform Sales Act provides that where goods are sold by a person who is not the owner thereof, and who does not sell them under the authority or with the consent of the owner, the buyer acquires no better title to the goods than the seller had, unless the owner of the goods is, by his conduct, precluded from denying the sellers authority to sell (Ill. Rev. Stat. 1939, ch. 121½, sec. 23 [Jones Ill. Stats. Ann. 121.27]). Under this provision of the statute it has been held that a conditional vendor who placed an automobile in the salesroom of a dealer was estopped from claiming title thereto as against a finance company who held a conditional sales contract thereon which was executed by a purchaser from the dealer. National Bond & Investment Co. v. Shirra, 255 Ill. App. 415. In Gump Inv. Co. v. Jackson, 142 Va. 190, 128 S. E. 506, 47 A. L. R. 82, it appeared that Jackson purchased an automobile from a retail dealer for value, without notice of any defect in the title thereof. The Gump Investment Company claimed it under a prior conditional sales contract executed by one Sutton to the retail dealer and by the dealer assigned to the Investment Company. The court held that Jackson had the superior title and said: “One conclusion is that some duty, at least, rests upon an individual, corporate or otherwise, who finances a retail dealer, to see to it that cars upon which it has a lien are not left under the domain and control of such dealer on his salesroom floor, to be offered to the public.”

Counsel for appellant insist that at the time appellee purchased this car, Mortenson was acting as the agent of Chilson: that Chilson could convey no better title than he had: that the title was in the Investment Company and that neither it nor appellant had anything to do with the car being placed in the salesroom of Mortenson, did not induce the appellee to purchase the car, never led any one to believe Mortenson was authorized by it to sell the Chilson car and that the wrongful act of Mortenson or of Chilson should not operate to defeat appellant’s title or estop it from asserting its title in this proceeding.

It is true that the Western Investment Company never learned that Chilson had left his car with Mortenson or that Mortenson had the car on display in his salesroom and was attempting to sell it until the evening of June 8th or the morning of June 9th, but it did know it then. Mortenson’s place of business was in Galesburg and so was the Investment Company’s and it knew that Mortenson had a salesroom from which cars were sold at retail. When it received Chilson’s letter, it was advised that Chilson’s car could there be found and the purpose for which it was there. Had the Investment Company acted promptly, no fraud could have been perpetrated. It did not do so, but knowingly permitted the automobile which it now claims to own to remain in the showroom where any customer might see it on display and where it was being offered to the public generally for sale. By so doing, a customer, appellee in this case, in good faith, assuming that Mortenson had title, purchased the automobile and in so doing, it seems to us, should be protected against the holder of a secret lien of which he had no notice. Illinois Bond & Investment Co. v. Gardner, 249 Ill. App. 337.

Neither appellant or the Investment Company are chargeable with the acts of either Chilson or Mortenson, unless it can be said that the Investment Company consented, after it became informed that the Chilson car was at Mortenson’s for sale, that the car should remain there for the purpose of being sold by Mortenson. Under all the facts in this record as they appear from the stipulation of the parties, it must be held that the Western Investment Company consented to the sale by Mortenson, its consent being evidenced by the fact that it did nothing to get possession of its car, but permitted it to remain in the salesroom of Mortenson after it had knowledge that it was there and there for the purpose of being sold. In our opinion, appellant and the Western Investment Company are precluded in this proceeding by their conduct, from denying Mortenson’s authority to sell the Chilson car to appellee.

The judgment of the trial court is right and will be affirmed.

Judgment affirmed.


author: Justice Huffman.

text:
    Carl W. Kellman, Appellee, v. John W. Tilton and Verdelle Tilton, Appellants.
    Gen. No. 9,549.
    opinion filed June 28, 1940;
    rehearing denied September 21, 1940.
    Steven Heifer, for appellants; Clark H. Countryman, for appellee.
   Opinion by

Justice Huffman.

“Not to be published in full.”


author: Justice Dove.

text:
    John H. Zimmerman, Appellant, v. Sam Garafolo et al., Appellees.
    Gen. No. 9,520.

      opinion filed September 19, 1940.
    John H. Page and Edward S. Foltz, Jr., for appellant; Stanley H. Guyer, for appellees.
   Opinion by

Justice Dove.

‘‘Not to be published in full.”


text:
    People of the State of Illinois for the use of Walter E. Boerger, Appellee, v. Jack Martin et al., Appellants.
    Gen. No. 9,539.
    opinion filed September 19, 1940.
    George W. Thoma, for appellants ; Robert J. Scott and Edwin O. Linden, of counsel; Walter E. Boerger, for appellee.
   Opinion by

Justice Dove.

‘‘Not to be published in full.”


text:
    Mandus DeMay, Administrator of Estate of Harold DeMay, Deceased, Appellee, v. Robert Brew and John C. Brew, Appellants.
    Gen. No. 9,566.

      opinion filed September 19, 1940.
    Thomas J. Welch and Vera M. Binks, for appellants; Charles F. Short, Jr., of counsel; Bergland & Everett, for appellee.
   Opinion by

Justice Dove.

“Not to be published in full.’’


author: Mr. Presiding Justice O’Connor

text:
    Highway Mutual Casualty Company, Assignee, Appellee, v. Roscoe Stern, Trading as Invader Decorating Service, Appellant.
    Gen. No. 41,056.
    Opinion filed October 1, 1940.
    Nathan E. De Vault, of Chicago, for appellant.
    B. M. Steiner and Irwin I. Blumberg, both of Chicago, for appellee.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.

Plaintiff brought an action against defendant to recover a balance claimed for workmen’s compensation insurance. Defendant denied liability on the ground that the contracts which were the basis of plaintiff’s claim were not executed by him, had not been delivered to him and were ultra vires the corporation which purported to issue the contracts. There was a trial before the court without a jury, a finding and judgment in plaintiff’s favor for $1,292.65 and defendant appeals.

The record discloses that March 2, 1936, the United Employers Corporation “A Workmen’s Compensation Safety and Service Company” issued “A Workmen’s Compensation Contract” to defendant Boscoe Stern, the employer named in the contract, whereby it agreed to pay the employer “for personal injuries sustained by his employees arising out of and in the course of the employment” for a period of one year. At the termination of this contract a similar one was executed for another year. In the first contract defendant’s business was located at 3141 W. Roosevelt road, Chicago, and the second contract that defendant was in business at 2223 S. Millard avenue, Chicago. February 15,1938, the United Employers Corporation assigned all its right, title and interest arising under the contracts to plaintiff, Highway Mutual Casualty Company of Chicago. The amount defendant was to pay for the insurance was based upon a percentage of his payroll and from time to time defendant’s payroll was examined, bills sent to him and he made payments on account, and the corporation made a number of payments for injuries sustained by defendant’s employees. The evidence shows that March 12, 1936, and again on March 27, 1937, the Industrial Commission issued its certificates to defendant Stern certifying that he had complied with all terms and provisions of the Workmen’s Compensation Act. March 4,1937, the Industrial Commission wrote Stern advising him that the Commission had been informed that his contract with the United Employers Corporation had expired March 2, 1937, and to advise the Commission immediately whether he intended to comply with the Workmen’s Compensation Act. Stern wrote on the bottom of this letter, “Have renewed my policy with same company.”

The defense interposed is that the United Employers Corporation was organized under the Illinois Business Corporation Act and that act does not apply to insurance companies and therefore the two contracts are “illegal and ultra vires the corporation. ’ ’

We do not stop to consider whether United Employers Corporation complied with all the terms of the law in obtaining its charter or in issuing the two contracts involved in the suit. We might say, however, the evidence above referred to shows that what was done by the United company in its dealings with defendant Stern was approved by the Industrial Commission and we think it is far from clear that what was done was not authorized by law. No one connected with the- Industrial Commission, nor anyone else who seems to have been familiar with the organization of companies issuing workmen’s compensation insurance and entering into contracts with employers, was called to testify and explain what was done and how the contracts involved were approved by the Commission. We are of opinion that defendant has no defense. Prudential Ins. Co. v. Richmond, 364 Ill. 234. In that case it was held that one who had received the full benefit of his contract — an insurance contract — cannot defend on the ground of ultra vires unless the enforcement of the contract is directly prohibited by some positive rule of law, good morals or established public policy. The court there, in passing on the validity of an insurance policy said: “It will be found that one who has received the full benefit of his contract with a company cannot defend upon the ground of ultra vires unless the enforcement of the contract is directly prohibited by some positive rule of law or runs counter to good morals or established public policy. In the case at bar we are of the opinion that the constitutiopal question sought to be raised is immaterial; that no matter which way it might be decided — even if we should assume the power to pass upon it — the result must be the same so far as the defendants are concerned.”

In the instant case no law has been pointed out which directly prohibits the issuance of the two contracts in question. The fact that the Business Corporation Act, under which the United Employers Corporation received its charter from the Secretary of State, may not be applicable to insurance companies does not directly prohibit the making of the two contracts of insurance. Defendant has received the full benefit of the two contracts; nothing remains but to pay the balance due. The evidence shows he acknowledged his liability a number of times and made payments from time to time as bills were presented to him. There is no merit in his defense and the judgment of the municipal court of Chicago is affirmed.

Judgment affirmed.

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


text:
    Sarah Traistar, Appellee, v. Nathan Traistar, Appellant.
    Gen. No. 41,081.

      Opinion filed October 1, 1940.
    Charles H. Borden and Paul F. Pomeroy, both of Chicago, for appellant.
    Friedman, Hutler & Topper, of Chicago, for appellee ; Russell J. Topper, of Chicago, of counsel.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.

November 22, 1938, plaintiff filed her complaint for divorce charging defendant with extreme and repeated cruelty. Defendant filed his answer denying the charges and setting up matters which it is unnecessary to refer to here. July 13, 1939, the court entered an order, which among other things, provided that “the entire cause be referred to Arthur Groldblatt, as amicus curiae, to hear and report his findings and recommendations for and as to final disposition and adjustment of all matters involved herein without charge therefor to the parties herein,” and that the amicus curiae file his report within 10 days. August 25,1939, plaintiff filed an amended complaint for divorce solely on the ground of desertion in which she alleged that on “to-wit: the 15th day of October, A. D. 1937” defendant deserted plaintiff without reasonable cause and without any fault on her part. On the same day defendant filed his answer in which he denied the charge of desertion and the parties then entered into a stipulation signed by their counsel “that the hearing of the above entitled cause be had upon amended bill and answer ... as in cases of default.” The matter was heard on that day before Judge Robert C. O’Connell, at which the report of the proceedings discloses Arthur Goldblatt “amicus curiae” and counsel for both parties were present. At the opening of such hearing Mr. Goldblatt stated to the court that he was appointed ‘ as Amicus Curiae in this cause, and after a number of hearings and conferences with the parties and the attorneys, parties have agreed that an amended bill of complaint be filed and an answer by the defendant, and they have also stipulated that the matter come on to be heard on the amended bill of complaint. Now, I think that in this matter, perhaps it would be better to prove up the case. There are also certain matters on which I will report to your Honor at a later date, which I think your Honor should take under advisement.” Thereupon counsel for plaintiff called Mrs. Traistar and two of her children who testified in support of the allegations of the bill including that defendant had deserted plaintiff October 15, 1937. Defendant offered no evidence.

Afterwards the report of the proceedings was approved and filed and a decree of divorce entered awarding plaintiff a divorce on the ground of desertion. The decree passed on the property rights of the parties and awarded plaintiff alimony. The decree, among other things, finds that during the pendency of the suit, pursuant to order of court, $63.75 was deposited “with Arthur Goldblatt, as amicus curiae” by the tenant of the property owned jointly by the parties and it was adjudged that Goldblatt retain $25 of this money “as and for partial payment on account of his fees and compensation herein as amicus curiae;” that he retain $15 additional out of the moneys as “reasonable court reporting and other indispensable expenses incurred” and that he turn over the balance to plaintiff.

October 6,1939, eight days after the entry of the decree, counsel for defendant withdrew his appearance and others were substituted. On the same day an order was entered which recites that on motion of solicitor for plaintiff the cause came on to be heard upon plaintiff’s verified petition for a rule on defendant to show cause why he should not be held in contempt of court for failure to comply with the terms of the decree of divorce and it was ordered that plaintiff be given leave to file the petition instanter. Defendant was ordered to pay plaintiff $50 of the amount due under the decree and it was further ordered that leave be given defendant to substitute counsel and to file a petition to vacate the divorce decree. The decree of divorce was entered by Judge O ’Connell and the motion and petition to vacate was filed before Judge Nelson, who was sitting at the time.

It was alleged in the petition that prior to the decree of divorce entered by the superior court, plaintiff had filed her verified complaint in the circuit court against defendant for separate maintenance in which she alleged that the parties were married August 9, 1914, and lived together as husband and wife until October 19, 1938; that November 15, 1938, defendant filed his motion in the circuit court to dismiss the complaint on the ground that the parties were living together as husband and wife; that the matter came on to be heard before Judge Finnegan, of the circuit court, who heard the evidence in support of the motion, found in favor of defendant, and November 15, 1938, dismissed the complaint forwant of equity; that seven days thereafter the same counsel who appeared for plaintiff in the circuit court suit filed the bill for divorce in the superior court and that in the superior court suit the court was not informed of the action of the circuit court and that this was a fraud on the superior court.

Other matters are set up in the petition as to the agreement of the parties in reference to alimony and property rights which are not important here.

Attached to and made a part of the petition was a copy of the verified complaint for separate maintenance filed in the circuit court, a copy of the substitution of counsel, copy of defendant’s motion filed in the circuit court proceeding and the final order or decree entered by the circuit court dismissing the cause for want of equity.

Mrs. Traistar filed her answer to the petition in which she denied she had alleged in her circuit court complaint for separate maintenance that she had cohabited with her husband from the date of her marriage until October 19, 1938, and alleged that the complaint was dismissed by the circuit court on the ground that it failed to allege the parties were living separate and apart at the time of the institution of that proceeding.

October 16, 1939, the matter of the petition to set aside the divorce decree and the answer thereto came on for hearing before Judge Nelson but the court refused to permit counsel for the petitioner to go into the matter fully by calling witnesses, etc., and the petition was dismissed.

We think the verified petition to vacate the decree of divorce set up sufficient facts to show prima facie that fraud and imposition had been committed on the hearing of the divorce suit in the superior court. People ex rel. Healy v. Case, 241 Ill. 279, and the court erred in not hearing the case at large on the petition and answer. If plaintiff, as she alleged in her verified complaint for separate maintenance, was living with defendant as husband and wife- until October 19, 1938, and this was adjudicated against her by the circuit court, she could not a few days thereafter file her verified bill in the superior court alleging that defendant had deserted her in 1937. The State has an interest in divorce suits. Floberg v. Floberg, 358 Ill. 626.

There is no warrant in law which authorized the court to appoint or refer the cause to amicus curiae. Divorce cases should be heard by the court. Nor do the facts in the instant case warrant the appointment of a special commissioner [§ 5, ch. 90, Ill. Rev. Stat. 1939; Jones Ill. Stats. Ann. 106.26].

For the reasons stated, the order of the superior court of Cook county dismissing the petition is reversed and the matter remanded for further proceedings in accordance with the views herein expressed.

Reversed and remanded.

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


text:
    City of Chicago, Appellee, v. William Wernecke, Appellant.
    Gen. No. 41,127.

      Opinion filed October 1, 1940.
    Rehearing denied October 15, 1940.
    Herbert M. Wetzel, of Chicago, for appellant.
    Barnet Hodes, Corporation Counsel, for appellee; Alexander J. Resa and L. Louis Harton, Assistant Corporation Counsel, of counsel.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.

November 13, 1939, a criminal complaint by leave of court was filed against defendant William Wernecke, charging him with the violation of § 4210 of the Revised Chicago Code of 1931 and with the violation of § 193 of the Municipal Code of Chicago of 1939. The two sections are substantially the same, the latter taking the place of the former.

The complaint was filed by E. J. Mangan, a police officer who swore to a quasi criminal complaint (City of Chicago v. Dickson, 221 Ill. App. 255), charging defendant with disorderly conduct, the specific charge being that defendant ‘ ‘ Did make or aid in making an improper noise, riot, disturbance, breach of peace, or diversion tending to a breach of the peace, within the limits of the city” of Chicago contrary to § 193 of the 1939 Code of Chicago. On the same day the case was heard before the court without a jury, defendant was found guilty as charged and a fine of $100 imposed.

November 21,1939, defendant filed a motion to vacate the judgment supported by a number of affidavits, the substance of which is that on November 10, 1939, defendant and a number of other persons, including an attorney, appeared in the felony branch of the municipal court, the parties being interested in a matter then before that court; that after hearing defendant in that ease was held to the grand jury and immediately afterward defendant, the other witnesses and the attorney went into the corridor outside the courtroom; that the attorney advised them it would take several hours to arrange bail for the party who had been held to the grand jury; that defendant stated the disposition of the case by the municipal court was caused by persons belonging to a certain racial group and apparently defendant spoke disparagingly of that group; that thereupon Officer Mangan approached defendant and wanted to know if defendant was referring to him, although the affidavits disclose he was not one of such group, and placed defendant under arrest on the ground that he had attempted to intimidate the witnesses in the felony matter, and he was taken before Judge Gorman, who had just heard that case, the purpose being that the court should punish him for a direct contempt of court; that Judge Gorman said he could not take judicial notice of what occurred outside the courtroom since he had not heard it; that defendant was then placed under arrest, as stated, and three days later the matter came up for hearing; the witnesses who were present at the time of the arrest had not been summoned and did not appear; that the police officer gave testimony to the effect that the reason he placed defendant under arrest was that defendant had threatened him at the time; that the attorney for defendant was taken by surprise and asked for a continuance until lie could bring in the witnesses who were present at the time of the arrest, but the court refused such continuance.

It is contended that the complaint is void because it is based on the information and belief of the officer who swore to the complaint.

The contention cannot be sustained. In the Dickson case we passed on this question and pointed out a statutory requirement which provided that actions for the violation of any ordinance may be brought “upon the affidavit of any person that any such ordinance has been violated, and that the person making the complaint has reasonable grounds to believe the party charged is guilty.” (Art. V, ch. 24, par. 80, p. 397, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 21.171].)

•While a number of authorities in this State say that an action to recover for the violation of a municipal ordinance is a civil proceeding, yet we think it is more accurate to say, as we did in the Dickson case, that it is quasi criminal. If the complaint was insufficient in failing to point out the particular charge made against defendant, this defect could have been obviated by motion for a more specific statement. (City of Chicago v. Williams, 254 Ill. 360.)

Under the circumstances as disclosed by the affidavits, as above stated, we think the court should have granted a continuance so that the witnesses who were present at the time defendant was placed under arrest, could appear and testify. For the same reason, we are of opinion the court should have sustained defendant’s motion to vacate the judgment and grant him a new trial.

The judgment of the municipal court of Chicago is reversed and the cause remanded with directions to award defendant a new trial.

Reversed and remanded with directions.

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


text:
    People ex rel. Salvatore DeCola et al., Appellants, v. United States Fidelity and Guaranty Company, Appellee.
    Gen. No. 41,148.
    Opinion filed October 1, 1940.

      Gustave E. Riedl, of Chicago, for appellants.
    Eugene P. Kealy, of Chicago, for appellee; Edmund L. McGibbon, of Chicago, of counsel.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.

Salvatore DeCola, Rose DeCola and Marie Paul, surviving children of Fred S. DeCola, deceased, in the name of the People, brought this suit on the bond of Dominic H. Valens, the administrator of their deceased father’s estate against the surety, the United States Fidelity and Guaranty Company, a corporation, to recover for the claimed derelictions of the administrator. The surety company filed its motion to strike the complaint and to dismiss the suit on the ground that the matters involved had been adjudicated by the probate court and the circuit court, and in support of its motion also set up that it had been released from all liability. The motion was supported by an affidavit filed pursuant to § 48, ch. 110 of the Civil Practice Act, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 104.048]. The motion was sustained, the complaint stricken, the suit dismissed and plaintiffs appeal.

It is alleged in the complaint that Fred S. DeCola died intestate August 12, 1926, leaving his widow and his three children by a former marriage, the relators (who will be referred to as plaintiffs), his heirs. His estate was probated in the probate court of Cook county and letters of administration were issued February 10, 1927, to Dominic H. Valens. Valens executed his bond for $20,000 with defendant, the United States Fidelity and Guaranty Company, as surety. Afterward, October 9, 1930, the probate court revoked the letters of administration issued to Valens and ordered him to file a final account and to turn over the property of the estate to his successor, Carl Laurie, who was then appointed administrator de bonis non. It is further alleged that the administrator Valens disregarded his duties in that he collected some cash and converted it to his own use. Other derelictions of duties were alleged against the administrator, one of which was that the deceased was an undertaker and at the time of his death had a number of accounts due and owing which it was the duty of the administrator to collect, but that he failed to do so; that there was certain personal property in the nature of undertaker’s supplies and equipment belonging to the estate which was worth in excess of $10,000, but that Valens, in disregard of his duties as administrator sold such property for $48 without having it appraised and without being authorized by the probate court to make the sale. The damages were laid at $20,000 — the amount of the bond.

1. Defendant contends that the matters involved for which plaintiffs sue were adjudicated in that when Valens filed his final account pursuant to the order of the probate court, plaintiffs filed objections to it and that the subject matter of the objections was the same as the subject matter alleged in the complaint; that after hearing the objections to the account, the probate court sustained some of them, overruled others and ordered Valens, the administrator, to pay into the estate $1,246 for and on account of his liability to the estate; that from this order of the probate court, Valens appealed to the circuit court of Cook county; that the appeal was perfected and the hearing had in the circuit court before Judge Trude and July 9, 1937, an order was entered by the circuit court adjudging that Valens pay to the estate $1,005 for and on account of his liability to the estate; that the. circuit court further ordered that upon failure of Valens, the administrator, to pay the $1,005, defendant, United States Fidelity and Guaranty Company, the surety on the bond, should pay that sum to the administrator de bonis non of the estate; that pursuant to the judgment of the circuit court, the surety company, July 28, 1937, paid the judgment and the judgment was satisfied by the administrator de bonis non on the record of the circuit court.

2. The other defense interposed was that at the time of the payment of the $1,005, the administrator de bonis non executed a release which is in the record and is the usual form. It acknowledges receipt of the $1,005 in payment of all claims against Valens or his surety.

Plaintiffs’ counsel says that the judgment entered by the circuit court and the payment of it by defendant surety company, does not bar the instant case because § 25 of ch. 3, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 110.026], authorizes successive suits on an administrator’s bond, provided the aggregate of the judgments does not exceed the penalty named in the bond.

Section 25 provides that suits may be brought on an executor’s or administrator’s bond and “such bonds shall not become void on the first recovery thereon, but may be sued upon, from time to time, until the whole penalty shall be recovered.” In support of the contention counsel cites People v. Randolph, 24 Ill. 324. In that case suit was brought in the name of the People for the use of Burgstresser & Co. on an administrator’s bond assigning as breaches the wasting and misapplying of the property of the deceased and a prior suit on the bond was interposed as a defense. The court held the defense good and entered judgment for defendant, but on appeal to the Supreme Court the judgment was reversed. The court there said: “The record in this case presents the question, whether one recovery on an executor’s bond may be pleaded as a bar to another recovery on the same instrument, in an action instituted for the benefit of another person. It is insisted that after a recovery, all persons who desire to recover damages for a breach of duty by the executor, must make themselves parties to the former recovery.” But the court held under the language of the statute, which is substantially the same as § 25 above quoted from, that the defense was unavailing. In the instant case plaintiffs are the same parties (they seek the same relief for the same damages), who objected to the final account filed by Valens and not another person as was the fact in the Randolph case.

Counsel further contends that before the doctrine of res judicata can be interposed as a bar there must be identity of parties in the two actions and the issues and the relief sought must be identical, citing Ropacki v. Ropacki, 354 Ill. 502; that a prior judgment between the same parties will not operate as a bar if there is any uncertainty as to whether more than one issue was presented to the court in the first case, and People v. Hart, 332 Ill. 467, is relied upon and that the burden of proof to sustain these contentions is on the defendant who interposes such defense. Brown v. Brown, 286 Ill. App. 471.

The doctrine of res judicata is a bar to an action between the same parties where the same relief is sought. It is also binding upon their privies and other persons who are estopped because they were represented in the first action. Cole v. Favorite, 69 Ill. 457; Wood v. Johnson, 13 Ill. App. 548. This doctrine is further limited not only to the issues actually involved and determined in the first suit but extends to every other matter which might have been raised and determined. Bacon v. Reichelt, 272 Ill. 90. There is another equally well established rule of law that a prior judgment is a bar to a subsequent suit even if the issues and the relief sought were not identical, where a material fact in litigation has been determined. Little v. Blue Goose Motor Coach Co., 346 Ill. 266.

In the instant case the record discloses that plaintiffs are seeking to recover for the same derelictions of Valens as were involved when they filed their objections to his final report in the probate court and the property they sought to have the administrator account for includes the same property they seek to recover in the instant case. We think all the questions plaintiffs seek to have determined in their favor in the instant case might have properly been raised and determined by the probate and circuit courts, and in these circumstances the judgment of the circuit court of Cook county is res judicata of all matters involved in the instant case. Bacon v. Reichelt, 272 Ill. 90.

We are further of opinion that the execution of the release by the administrator de bonis non is binding upon plaintiffs. There is no showing or contention that the release was obtained through fraud or mistake. Wood v. Johnson, 13 Ill. App. 548; Potter v. Clapp, 203 Ill. 592 (68 N.E. 81).

In the Wood case it was held that the administrator was the sole representative of the personal estate of the deceased and that “In the adjustment and recovery of debts and property of the estate, and litigation and settlement of demands upon it, the administrator represents the creditors, heirs, legatees, and distributees by priority of estate, or by operation of law, so that his acts are binding, and judgments to which he is a party conclude him, the creditors and other claimants of the personalty. Stone et al. v. Wood, 16 Ill. 184.”

Since there was no counter affidavit to the affidavit of defendant setting up the facts in support of its motion to strike, the allegations of the supporting affidavit, are to be taken as true. Brandt v. St. Paul Mercury Indemnity Co., 285 Ill. App. 212; Koerner v. Apple, 199 N. Y. S. 171; Swan v. F. W. Woolworth Co., 222 N. Y. S. 111.

The judgment of the superior court of Cook county is affirmed.

T ■, Judgment affirmed.

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


author: Mr. Justice McSurely

text:
    Calumet Federal Savings and Loan Association of Chicago and Fred E. Hummel, Successor Trustee, Appellees, v. City of Chicago et al., Appellants.
    Gen. No. 41,087.

      Opinion filed October 1, 1940.
    Rehearing denied October 15, 1940.
    Barnet Hodes, Corporation Counsel, for certain appellants.
    Thomas J. Courtney, State’s Attorney, for certain other appellants; Walter V. Schaefer, Robert J. Nolan and David L. Leeds, Assistant Corporation Counsel, and John J. Griffin, of Chicago, of counsel.
    Peden, Melaniphy, Ryan & Andreas, of Chicago, for certain appellee; John C. Melaniphy and Gerald Ryan, both of Chicago, of counsel.
    Arthur J. Hughes, of Chicago, for certain other appellee; Philip A. Gibbons, of Chicago, of counsel.
   Mr. Justice McSurely

delivered the opinion of the court.

Plaintiff filed a complaint seeking a mandatory injunction to compel the removal of certain obstructive curbings on Torrence avenue in the vicinity of 95th and 97th streets in Chicago and for damages; evidence was presented before a master in chancery who reported favorably for plaintiff; the trial court decreed accordingly and issued its writ commanding the restoration of Torrence avenue to its condition prior to the construction of the curbings and retained jurisdiction for the ascertainment of damages to plaintiff’s property. Defendants appeal.

Plaintiff’s property is located at the southwest corner of Torrence and 95th street, improved with a gasoline filling station and a two-story building, the first floor of which is used for a tavern and the second floor for residential purposes. Fred Hummel, suecessor trustee in bankruptcy, filed an intervening petition alleging that he had been in possession of vacant property with a sideage of 37 feet on 95th street and a frontage of 600 feet on the east side of Torrence avenue, extending south from 95th street; he adopted the allegations of the complaint and asked for the same relief.

The complaint alleged that the streets involved had been dedicated and laid out as streets in the city of Chicago for more than 15 years prior to the occurrences set forth in the complaint; that they are paved and sidewalks laid, the cost of which was paid by the abutting property owners; that Torrence avenue at 95th street and at 97th street was recently closed by defendants by the construction of barrier curbs and that plaintiff’s access to Torrence avenue and to 95th street was unlawfully interfered with.

Defendants filed a motion to dismiss the complaint asserting that the damages alleged were consequential damages which were capable of ascertainment in an action at law and that the relief sought was beyond the equitable jurisdiction of the court. The motion to dismiss was overruled and defendants answered, setting forth the physical conditions existing in the vicinity and that the action taken by defendants was taken solely in the interest of public safety.

95th street is 100 feet in width and runs from the western to the eastern city limits; Torrence avenue is 80 feet in width, running from the south city limits northward to 95th street; immediately east of Torrence at this point is an elevated railroad embankment which, going north, crosses over 95th street at an angle by a viaduct with center and sidewalk columns. Torrence avenue does not extend north of 95th street; about 200 feet west of Torrence and running north from 95th street is Colfax avenue, which, before the changes in question were made, did not run south of 95th street; a short distance north of 95th street Colfax passes underneath a railroad right of way by means of an underpass divided by center pillars.

Prior to the changes referred to, northbound automobile traffic proceeded north in Torrence to 95th street, then made a left turn in 95th 'street, proceeded west in 95th street about 200 feet and turned right and went north in Colfax avenue. This necessitated the crossing of both the east and westbound traffic on 95th street. Also, automobile traffic going south in Colfax would make a left turn in 95th street and a right turn in Torrence, crossing both the west and eastbound traffic in 95th street. As one of the witnesses testified, “A car coming north on Torrence avenue to 95th street would stop because of a stop street. To proceed north the car would have to make a left turn and weave through traffic in a westerly direction to the north side of 95th street and then make a right turn onto Colfax avenue. This is a dangerous procedure under any condition whether traffic is light or traffic is heavy. The (railroad) underpass at 95th street and Torrence avenue effected the hazard of weaving, because a car (automobile) coming to 95th street and Torrence avenue had vision obscured to the east by the center columns and by sidewalk columns of the 95th street underpass and it is difficult to see cars coming from the east. ...”

Officials in charge of defendants ’ streets were of the opinion that this, physically, was a dangerous situation for traffic and developed a plan to avoid it, which was carried out and is the subject of this controversy. Colfax avenue was extended south of 95th street and as it approached 97th street it was converged into Torrence with an “easy curve” towards the east at a point approximately 50 feet north of 97th street. Concrete curbs about 7 inches high were constructed across Torrence north of the juncture with Colfax and also across Torrence at the south line of 95th street. Near these respective curbs the paved part of Torrence was widened and paved in a half circle so as to facilitate the turning* of traffic in Torrence at these respective points. In order to provide access to that portion of Torrence lying between the north and south curbs, 96th street was opened between Torrence and the newly constructed Colfax avenue and paved to a width of 40 feet. Before and after these changes were made access to plaintiff’s filling station was and is by a driveway from 95th street and also from Torrence avenue.

The trial court in its decree approved of these changes saying, “The elimination of the Torrence Avenue crossing would improve traffic conditions, and also decrease traffic hazards. ...” The record abundantly justified this conclusion. The necessity, when coming* from the south, of making a left turn out of Torrence across 95th street, where the westbound traffic on 95th east of Torrence is concealed by the pillars and posts of the railroad underpass, until it is a few feet of the east line of Torrence and the necessity, when desiring* to proceed north in Colfax, of weaving across traffic in 95th street to reach a position near the right hand curb in order to make a right turn north in Colfax, presents a very hazardous situation.

Illinois Malleable Iron Co. v. Commissioners of Lincoln Park, 263 Ill. 446, involved an ordinance which provided that wagons carrying* goods to or from plaintiff’s premises could only use the parkway drive between certain streets; plaintiff contended that as an abutting* property owner it had a special right in the parkway as a means of access to its property. It was held that the ordinance was valid under the legislative power over public streets to grant authority to limit their use for any purpose not incompatible with the objects for which they were established and to the argument that the ordinance was invalid as requiring the plaintiff to take a circuitous route to reach its premises, the court held that this inconvenience did not invalidate the ordinance. The opinion cites many cases supporting the views expressed. Cases involving similar facts in which it is held that the rights of an abutter are subject to the rights of the State to regulate and control the public highways for the benefit of the travel-ling public, even though that abutter may be inconvenienced by such regulation, are Wilbur v. City of Newton, 301 Mass. 97, 16 N. E. (2d) 86; Simpson v. City of Los Angeles, 4 Cal. (2d) 60; King v. Stark County, 66 N. D. 467; Jones Beach Boulevard Estate v. Moses, 268 N. Y. 362.

Plaintiffs alleged in the instant case that these changes were the result of a conspiracy among defendants to violate and evade the law. There was no evidence to support this. On the contrary, the trial court in its decree found not only that this work would improve traffic conditions by decreasing traffic hazards, but “the municipal authorities would be wholly within their discretion to put such plan into effect,” and that “the acts done by the defendants were in good faith and designed to decrease or eliminate traffic hazards.” No objections or exceptions were made to this finding, either in the trial court or here. Therefore such findings are conclusive upon the plaintiff. Moore v. Machinery Sales Co., 297 Ill. 564, 567; Decatur Coal Co. v. Clokey, 332 Ill. 253. Moreover, these findings are amply supported by the evidence.

The trial court was of the opinion that the construction of the curbs on Torrence ‘ necessitated the vacating of a portion of Torrence avenue, which can only be done as provided by statute.” We are of the opinion this conclusion was erroneous. The vacation of a public street involves its complete abandonment for street purposes and the adoption of an ordinance to this end. Ill. Rev. Stat. 1939, ch. 145, § 1 [Jones Ill. Stats. Ann. 21.685]. The vacation of a street terminates the rights of the public in the land which formerly constituted the street and it is automatically transferred to the owners of the abutting property. Ill. Rev. Stat. 1939, ch. 145, § 2 [Jones Ill. Stats. Ann. 21.686].

Defendants concede that no such ordinance was adopted and assert as a fact that there has been no vacation of Torrence avenue. Photographs in the record show vehicles on Torrence avenue between 95th and 97th streets. The opening and improving of 96th street between Colfax and Torrence was solely for the purpose of giving access to Torrence avenue between these streets.

Plaintiff has access to its property, both from Torrence and 95th street. The only effect of the changes made is that to reach that portion of plaintiff’s property fronting on Torrence avenue it is necessary to use a more circuitous route than that heretofore available. A traffic engineer testifying on behalf of plaintiff said that a vehicle starting from the intersection of 95th street and Torrence avenue and going south on Torrence to 96th street and then westward to Colfax and on Colfax north to 95th and on 95th back to the starting point on Torrence, traveling at 20 miles an hour, would take 75 seconds to go that distance, and at 10 miles an hour would take 150 seconds. Plaintiff contends that the inconvenience of this additional time destroys ingress and egress to its property. Manifestly this cannot be true.

The trial court, based upon the assumption that Torrence avenue had been in fact vacated, although not legally, drew the erroneous conclusion that plaintiff could not maintain an action at law for damages to its property until a valid vacation ordinance had been passed. Plaintiff argues that by failing to pass a vacating ordinance the hands of plaintiff are tied. This is an error. The right of plaintiff to maintain an action for any damage to its property by a public improvement rests upon the provisions of section 13, article 2 of our State constitution, which says that “Private property shall not be . . . damaged for public use without just compensation.” Davis v. City of Chicago, 290 Ill. App. 244. Petition for leave to appeal to Supreme Court denied.

In Weage v. Chicago & W. I. R. Co., 227 Ill. 421, the plaintiff sought to enjoin the elevation of railroad tracks in Wallace street and other streets and alleys in Chicago; it was alleged that the ordinance permitting this granted to the railroad the exclusive use of Wallace street for a number of blocks except the west 20 feet, and portions of certain other streets; that this amounted to a vacation of the streets; that in the event the court should be of opinion that the railroad should pay plaintiff damages, a commissioner or some other body be selected by the court to hear and determine such claims; the reviewing court held that the ordinance did not vacate the streets; that the averments of the complaint did not make a case that would justify the interposition of a court of equity and that if the parties have any remedy ‘ ‘ a court of law would afford them complete and adequate relief.”

Manifestly, in the instant case there is merely a regulation in the use of Torrence avenue but no vacation. The obstructing curbs prevent through traffic on Torrence and divert this to the safer highway on Colfax avenue but do not prevent the use of Torrence avenue as a street.

Suits for damages to property resulting in changes in the grade of public streets are common and are based upon the constitution, above cited. The right of plaintiff in the instant case to recover damages in an action at law is no different than the rights asserted by plaintiffs in the many cases involving change of grade in the streets. The changes under consideration involve no physical taking of plaintiff’s property and equity will not assume jurisdiction to interfere with the construetion of a public improvement. By diverting the through traffic from Torrence to Colfax the volume of traffic on Torrence will be substantially diminished. We find no cases holding that an abutting property owner has any vested right in the volume of traffic passing its property. In Hacker Co. v. City of Joliet, 196 Ill. App. 415, it has been held that no such right exists. This seems to be conceded in plaintiff’s brief.

Childs & Co. v. City of Chicago, 279 Ill. 623, involved the question as to whether the city could be enjoined from proceeding with the construction of the Monroe street bridge in Chicago because the complainant would suffer consequential damages from such improvement; it was conceded, as here, that no part of plaintiff’s property would be taken. The court refused to enjoin the work, quoting from County of Mercer v. Wolff, 237 Ill. 74, 76, “ For such actual damages, though consequential only, as may be sustained by an owner of abutting land through the taking of adjoining premises for a public use a remedy is given, and the owner may have his compensation ascertained by a jury, as required by the constitution in a common law action. But when no part of the land of an abutting owner is taken the constitution does not require the ascertainment and payment of his consequential damages before entry can be made upon adjoining property. Damages resulting to an abutting proprietor, no part of whose land is physically taken, are not within the contemplation of the Eminent Domain act, but he is remitted to his action at law for his damages.” The opinion said this has long been the settled law of this State, citing many cases. See also South Park Commissioners v. Montgomery Ward & Co., 248 Ill. 299, 310, 311.

Plaintiff cites cases tending to support the proposition that having been damaged it is entitled to compensation. We understand defendants concede that plaintiff may bring an action at law to this end. Smith v. McDowell, 148 Ill. 51, and Pew v. City of Litchfield, 115 Ill. App. 13, are cited by plaintiff. These cases involve the validity of ordinances giving* a portion of a street to a private person for his sole use. It was held that no such power existed and the matter was properly litigated in a chancery court. No similar conditions are in the instant case.

Whatever may be the rule in New York and other States (see Story v. New York Elevated R. Co., 90 N. Y. 122, where defendants were restrained from constructing and operating* their elevated railroad’ on a street in New York City opposite plaintiff’s premises), the Supreme Court of this State has not followed these cases. In Doane v. Lake Street Elevated R. Co., 165 Ill. 510, plaintiff sought to enjoin the construction of defendant’s elevated railroad on Lake street. The court held that plaintiff’s injury was “a depreciation of the property, which is capable of being* estimated in money and recoverable in an action at law, therefore a court of equity will not interfere by injunction. ’ ’

The above considerations lead us to the conclusion that the construction of the curbs on Torrence avenue at 95th and 97th streets was a reasonable exercise of the police power in the interest of public safety; that Torrence avenue was not vacated, either in law or in fact; that under the circumstances a court of equity will not assume jurisdiction to interfere with the construction of public improvements.

Other points are suggested in the briefs which we do not discuss, as what we have said disposes of the case.

We hold that the order appealed from is erroneous and it is reversed and the cause is remanded with directions to dismiss the complaint.

Reversed and remanded with directions.

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


text:
    National Mutual Church Insurance Company, Appellant, v. Henry P. Magill, Appellee and Cross Appellant.
    Gen. No. 41,124.
    Opinion filed October 1, 1940.
    Rehearing denied October 15, 1940.

      Charles O. Loucks, of Chicago, for appellant; Walter J. Cox, of Kenilworth, of counsel.
    Samuel A. Harper and Walter Sczudlo, both of Chicago, for appellee; Thomas E. D. Bradley and Thomas S. Stearns, both of Chicago, of counsel.
   Mr. Justice McSurely

delivered the opinion of the court.

Plaintiff filed an affidavit in attachment alleging that defendant owed plaintiff $5,926.13, representing losses and damages sustained by plaintiff because of its assumption by contract of certain liabilities of the Mutual Insurance Corporation of Chicago, Illinois, which losses and damages defendant in and by his written bond, in the sum of $15,000, agreed to pay, and which upon request he has failed to do; that defendant is not a resident of this State but resides in Danville, Kentucky. The attachment was levied on real estate in Cook county, Illinois, owned by defendant in joint tenancy with his wife.

Defendant filed an answer and counterclaim denying he was indebted to plaintiff in any sum whatsoever; asserting that in addition to the indemnifying bond, defendant gave to plaintiff $7,000 in cash and also defendant’s promissory note for $5,000 secured by mortgage to secure plaintiff for any losses or damages incurred by it by reason of its contract with the Mutual Insurance Corporation; that plaintiff has not suffered any losses or damages under this contract and defendant is therefore entitled to the return of the $7,000 in cash and the promissory note for $5,000. Defendant also claims $250 as salary due him.

Motions to strike the affidavit in attachment and also the counterclaim were denied and the cause was heard by the court, which found for defendant under the issues raised by the complaint; the $5,000 promissory note secured by the mortgage was ordered to be returned to defendant, but the finding was against defendant as to the counterclaim for the return of $7,000 and also the claim for $250.

Plaintiff has appealed from the finding against it on its complaint and defendant appeals from the finding against him as to the return of the $7,000 and the $250 item of salary.

The National Mutual Church Insurance Company, plaintiff, and the Mutual Insurance Corporation were engaged in general insurance business, issuing policies covering fire, windstorm, automobile and like insurance. Defendant, Mr. Magill, was president of each of these companies. Prior to March 4, 1933, the Mutual Insurance Company desired to dispose of its business and to reinsure the policies it had written. Plaintiff agreed to assume the entire business of the Mutual Company, which agreed to transfer all of its assets in consideration of the National Company assuming all its liabilities and reinsuring all its policies.

Defendant agreed to give plaintiff his bond in the sum of $15,000 “to indemnify the obligee against any loss or damage” resulting' from the assumption and liquidation of the business of the Mutual Company.

At this time the Mutual Company had a large number of outstanding policies, some of which were written for a term of five years; premiums on many of these were collected annually, and in some instances for the full five years in advance. The financial statement of the Mutual Company furnished to plaintiff at this time apparently showed that the liabilities exceeded the assets, due to the large reserve set up for the “unearned premiums, ” which amounted to $23,569.83.

March 4, 1933, plaintiff and the Mutual Company executed a contract whereby the Mutual Company conveyed to the National Company all its policies or contracts covering insurance of different kinds and in force on February 28, 1933. On the same day defendant, Magill, executed the indemnifying bond above referred to. At the same time another contract was signed by the insurance companies and defendant, which recites that Magill is a creditor of the Mutual Company for something over $41,000, and also in the sum of $7,000 which is advanced by Magill to the National Company “to apply against deficit in reserves”; that Magill agrees to subordinate his claims and waive payment of them, “except out of any surplus or excess remaining after liquidation of assets transferred in pursuance of said contract”; that Magill also should deliver to the National Company his note for $5,000 secured by a mortgage on premises in California “as security and guaranty against any loss or damage which said National Mutual Church Insurance Company, of Chicago, Illinois, may sustain or suffer because of the assuming” by it of the policies and obligations of the Mutual Company of Chicago. There was also provision that if the note and mortgage were no longer required as security for loss they should be returned to Magill. The amount of $7,000 in cash and the promissory note for $5,000 secured by mortgage were given by defendant to plaintiff. Accounts were opened by plaintiff corporation on its books with reference to the assets and liabilities of the Mutual Company. January 19, 1934, a decree was entered in the circuit court of Cook county dissolving the Mutual Insurance Corporation. The accounts kept by plaintiff of the “unearned premiums” showed these to be $23,569.83 on February 28,1933, but in less than one year’s time, that is, December 31,1933, these contingent liabilities had been reduced to $4,257.35. The accounts also show that all of the policies of the Mutual Company taken over by plaintiff on February 28, 1933 had been “runoff,” (as the witnesses term it) that is, the liability assumed under them terminated on or before March 28, 1938.

June 22,1938, defendant made a demand on plaintiff for the return of the security pledged by him pursuant to the contract, namely the sum of $5,000, the amount of the promissory note, and the $7,000 in cash, plus $250 withheld as salary due him. Two days after this demand was made plaintiff sued out a writ of attachment against defendant and levied on his property in Oak Park, Illinois.

The question presented is, Did the defendant, by his indemnifying bond and his advances to plaintiff, assume any obligations with reference to the unearned premium reserves except a contingent liability, and if such premiums have become fully earned and no part has been paid back because of a canceled policy and no losses covered by any policy have been paid, has not defendant’s obligation under his bond been satisfied and is he not entitled to the return of the advances made by him?

At the trial no evidence was introduced of any ultimate loss sustained by plaintiff in connection with its acquisition of the business of the Mutual Insurance Company.

It can hardly be controverted that in order to recover from defendant under his indemnifying bond it was necessary for plaintiff to show some loss or damage arising from its assumption of the policies, liabilities and obligations of the Mutual Insurance Company. The condition of the bond is that if the obligor “shall indemnify the obligee against any loss or damage which (it) . . . may sustain or suffer because of the assuming by said obligee of the policies, ’ ’ etc., of the Mutual Insurance Company, the obligation shall be void otherwise to remain in full force and effect.

Moreover, defendant could hardly be expected to give an indemnifying bond to pay plaintiff all the liabilities then appearing upon the books of the Mutual Insurance Company without any chance of recovering back any of his advances. Why should he give plaintiff a bond and advance $7,000 in cash and his $5,000 promissory note unless he expected that these unearned premiums which appeared as a liability at the time would in the course of time terminate and cease to be a liability.

There are many items appearing in the documents signed and in the testimony which indicate Magill expected that by the time the policies had expired there would be no liabilities that he would be called upon to make good under his indemnifying bond. In the contract for the surety bond dated March 4, 1933, it is recited that Magill is an officer of the Mutual Insurance Company and in consideration of the National Insurance Company “accepting the risk of said contract of reinsurance,” Magill agrees to indemnify the National Company against all loss or damage because of the assumption by it of this risk. The contracts repeatedly refer to the advances made by defendant to plaintiff and the execution of the .indemnifying bond as a guaranty against any loss or damage which the National Company might sustain. These words can only refer to some ultimate situation which would be developed in due course of time. They could hardly refer to the instant showing of the liabilities on the books as of February 28,1933.

Although there was some evidence to the contrary, there was testimony that in the conversations leading-up to the execution of the contracts nothing was mentioned with reference to any guaranty of payment of the contingent liability designated as “unearned premiums.” The trial court could properly accept the statement of the witnesses that in what was said concerning defendant’s agreement to guarantee payment of any losses, the parties were referring to “ultimate losses, ’ ’ and there were no ultimate losses.

Whether the term “unearned premiums” means legal liabilities, has been the subject of litigation. The most apt statement which is presented in the briefs is a quotation from the work of Professor Huebner on Property Insurance, p. 217, where, in speaking of unearned premiums, the author says: “It may be defined as that portion of the premium which the company has not yet had time to earn. ’ ’ Other writers upon the subject are in accord. Two authors — Riegel and Lomas, in their text book on Insurance Principles and Practices say the only reason for the existence of an unearned premium reserve is first to pay back the unearned premium under a policy that may be canceled, and second, to pay out of such reserve any claim for losses covered by the policy. And as was very properly said in Aetna Ins. Co. v. Hyde, 315 Mo. 113, 133, unearned premium is but an arbitrary measure of contingent liability. To the same effect is Central-Penn Nat. Bank v. New Jersey Fidelity & Plate Glass Ins. Co., 117 N. J. Eq. 548. See also 65 C. J. 1223. And in Townsend v. Equitable Life Assur. Society, 263 Ill. 432, it was held that money paid as premiums was not a trust fund but the policyholder is a creditor entitled to payment in accordance with his contract with the corporation. In Munich Re-Insurance Co. v. United Surety Co., 121 Md. 479, the court had among other things to determine the character of unearned premiums. It was held that at the end of the term for which the premiums are received the reserve is released and becomes available as current income; that the premium reserve should not be used as a factor in determining the actual profit or loss because such a reserve does not represent a liability.

Other points are made by both parties but we have discussed only the vital and decisive point in the case. It seems clear, both on reason, upon the evidence and upon precedent, that the item of unearned premiums as it stood in February, 1933, should not have been counted in determining the obligations of plaintiff and defendant in March, 1938.

The statement of account introduced by plaintiff included the item of $23,569.83 as a liability on February 28, 1933. Deducting this from the total amount of liabilities leaves $12,769.26, as the total of debts. Deducting this from the total credits of $30,162.96 leaves a surplus of $17,393.70. Out of this defendant was entitled to the return of the $7,000 advanced by him. He was also entitled to the payment of $250 with which plaintiff has credited defendant as a salary allowance.

The trial court properly found against plaintiff upon the attachment issue, holding there was no proof that defendant was not a resident of Illinois. The evidence showed that defendant had three places of residence— one in Oak Park, Illinois, a second in Danville, Kentucky, and a third in South Pasadena, California; that during the two years preceding the trial he spent less than six months of this period in Danville, Kentucky, went to California the latter part of each winter, and that he was in Illinois the majority of the time. There was no evidence that he intended to establish a permanent residence out of Illinois. To sustain the writ of attachment, plaintiff had the burden of proving that defendant was not a resident of Illinois. Weber Chimney Co. v. Johnson, 205 Ill. App. 348; Barron v. Burke, 82 Ill. App. 116.

Moreover, where the court finds for the defendant on the merits the attachment must fall. .The fact that defendant failed to deny the allegations in plaintiff’s affidavit for attachment that he was a nonresident is not important where no objection was made upon the trial to the testimony of defendant as to his residence. Ill. Rev. Stat. 1939, ch. 110, § 42, subpar. 3 [Jones Ill. Stats. Ann. 104.042],

For the reasons indicated the judgment of the superior court against the plaintiff on its demand set forth in its complaint for $5,926.13, and- directing the delivery to the defendant of the $5,000 note and mortgage, is affirmed. The judgment of the court against the defendant upon his counterclaim seeking recovery of the $7,000 in cash pledged to plaintiff and the $250 salary due defendant is reversed and the cause is remanded with directions to the superior court to enter judgments for the defendant as to these items, with interest.

Affirmed in part and reversed in part and remanded with directions.

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