author: Mr. Presiding Justice Denis E. Sullivan Mr. Justice Burke, Mr. Justice Burke,-

text:
    Nicholas Peiffer and Ethel Peiffer, Plaintiffs, v. William French, Appellee. Appeal of Ethel Peiffer, Appellant.
    Gen. No. 40,889.
    Burke, J., dissenting.
    Original opinion filed April 10, 1940.
    Rehearing opinion filed June 19, 1940.
    Rehearing denied September 10, 1940.

      Owens & Owens, of Chicago, for appellant.
    Ashcraft & Ashcraft, of Chicago, for appellee; Charles H. G. Kimball, of Chicago, of counsel.
   Mr. Presiding Justice Denis E. Sullivan

delivered the opinion of the court.

Plaintiff Ethel Peiffer brings this appeal to reverse an order of the circuit court of Cook county which was entered on February 9, 1939, quashing the writ of capias ad satisfaciendum issued on December 6, 1938, in a suit which was instituted in the circuit court by Nicholas Peiffer and Ethel Peiffer v. William French, wherein a judgment was obtained against William French on April 21, 1938, and in favor of plaintiffs aforesaid, in the amounts of $10,625 and $400, respectively, for personal injuries sustained by them in an automobile collision. The jury answered a special interrogatory finding the defendant William French guilty of wilful and wanton misconduct at the time and place in question.

On September 2, 1938, a writ of capias ad satisfaciendum was issued on both judgments against the defendant, William French. He was committed to the county jail on September 19, 1938. On December 6, 1938, an alias writ of capias ad satisfaciendum was issued in favor of plaintiff Ethel Peiffer, against the defendant William French. On motion of the defendant, this writ was quashed by order of court entered on February 9,1939, from which plaintiff Ethel Peiffer appeals.

The theory of the plaintiff Ethel Peiffer, is that she is entitled to enforce her judgment against the defendant, William French, through the means provided by statute. The capias ad satisfaciendum dated December 6, 1938, was issued pursuant to the statute in such case made and provided, and was based on a valid judgment in favor of plaintiff which had not been set aside or satisfied.

The theory of the defendant is that he relied upon only one proposition, and that is that a person who had been discharged by an order of court on a habeas corpus shall not be ag'ain imprisoned for the same cause; that there are exceptions to this proposition, but the plaintiff fails to bring her case within such exceptions.

It appears that on Monday, September 19, 1938, the defendant was taken into custody on a writ of capias ad satisfaciendum and on the same day the plaintiffs paid to the sheriff, the suni of $4 for board and jail fee of defendant commencing September 19,1938; that on Saturday, September 24, 1938, the plaintiffs tendered $3.50 to the sheriff of Cook county for board for the second week, but the sheriff refused to accept the payment on that day as being premature; that thereafter on Tuesday, September 27, 1938, the plaintiffs paid $3.50 to the sheriff for board of the defendant for the second, week.

It further appears that on September 29, 1938, a writ of habeas corpus was issued and on the same day the defendant was released on bond; that on October 10,1938, an order was entered by the circuit court discharging the defendant from the custody of the sheriff, for the reason as shown in the draft order of the court, so that the board of the defendant was due on September 26,1938, and because it was paid on September 27, 1938, the defendant was illegally detained.

It further appears that thereafter, on December 6, 1938, an alias writ of capias ad satisfaciendum was issued by the clerk of the circuit court on the judgment in favor of Ethel Peiffer. The defendant moved to quash the writ on the grounds that its issuance was contrary to the Habeas Corpus Act and on February 9, 1939, the circuit court entered an order quashing said writ.

There are several sections of the statutes of this State which must be considered in determining what was the intent of the legislature with regard to imprisonment for debt. There is no claim made as to the validity of the judgment or that a writ of capias ad satisfaciendum is not the proper means of enforcing the payment of a judgment. Chapter 65, section 26, Ill. Rev. Stat. 1937 [Jones Ill. Stats. Ann: 109.338], known as the Habeas Corpus Act, reads as follows:

“No person who has been discharged by order of the court or judge, on a habeas corpus, shall be again imprisoned, restrained or kept in custody for the same cause, unless he be afterwards indicted for the same offense, nor unless by the legal order or process of the court wherein he is bound by recognizance to appear. The following shall not be deemed to be the same cause:

“1. If, after a discharge for a defect of proof, or any material defect in the commitment, in a criminal case, the prisoner should be again arrested on sufficient proof, and committed by legal process for the same offense.

“2. If, in a civil suit, the party has been discharged for any illegality in the judgment or process, and is afterwards imprisoned by legal process for the same cause of action.

“3. Generally, whenever the discharge has been ordered on account of the non-observance of any of the forms required by law, the party may be a second time imprisoned if the cause be legal and the forms required by law observed.”

It seems to us that the issue here is narrowed down to the question as to whether or not the defendant was discharged in the habeas corpus proceeding because of the nonobservance of one of the forms of procedure as required by law coming within the meaning of the Habeas Corpus Act as set forth above. There is no clearly defined decision in this State directly applicable except that in the case of Stroheim v. Deimel, 77 Fed. 802, p. 807, which case has been cited by appellant. We quote with approval a portion of the concurring opinion in that case which we think is more enlightening than is the majority opinion. District Judge Bunn, sitting in the court of appeals said:

“I concur fully in the general conclusion that the order of the circuit court discharging the prisoner must be reversed. . . .

“When the prisoner was arrested and sent to jail, a week’s board was paid by the creditor in advance, according to the statute; but for mere convenience of sending, being nonresidents of the state, after the first week the money was sent in sums larger than was required to pay just a week’s board in advance, but was always sent in advance. So that there was no time when the jailer was entitled to, discharge the prisoner, unless because the board bill was paid more in advance than was required by the statute; and it is on this ground the- prisoner asked to be discharged, and was discharged by the court below. This is one of the points mainly relied upon by the defendants in error, both in the circuit court and in this; court. It is fairly in the case, and may just as well be decided. In my judgment, this point should be ruled against the prisoner, and the order of the circuit court reversed on that ground. I am willing to go as far as any one in adopting a strict construction in favor of personal liberty, provided, always, that a remnant of propriety and good legal sense attend the decision. This provision of the statute was evidently intended as an indemnity to the jailer for the prisoner’s board while in jail. The prisoner was not liable for that. The creditor must pay it, and, as security to the jailer, it was provided that he must pay it in advance, so that the jailer would not have to trust to the creditor. If the creditor should not keep the board bill up by paying a week in advance, the jailer might discharge the prisoner. He was not obliged to, but he might do it. The prisoner had no interest in the matter of the board, except that it should be furnished him at the creditor’s cost. If he got his board, it was no great concern of his how long in advance it was paid for by the creditor. The circuit court held that a strict compliance with the statute required the board to be paid just a week in advance, and not more; and, because it was paid two weeks in advance, the prisoner was entitled to be discharged. I know of no decision, ancient or modern, English or American, adopting so strict a rule of construction, and a priori would never expect to find one, for it would seem beyond question that payment of the board bill two weeks or more in advance is not only a substantial, but a literal compliance with the statute. Payment two weeks in advance includes payment a week in advance. When one week is closed out, the money for the next week is already in the hands of the jailer, as required by the law; and who is' wronged by the money lying there a week or two week longer than the statute requires?”

It appears that in 1845 the Illinois Legislature changed the original Insolvent Debtors Act. Section 2 of said act, among other things, provides:

“If, at any time, the plaintiff, his agent or attorney shall fail to advance the jail fees, as herein provided, it shall be the duty of the officer or jailer, as the case may be, forthwith to discharge the prisoner.”

The Act of 1853, entitled “Ah Act in relation to committals to jail on writs of ca. sa.” amended section 2 of the act is as follows:

“Should such debtor be detained in jail under such writ for more than one week, it shall be the duty of such creditor at the commencement of each week to advance and pay to such jailer or sheriff the board of such debtor for each succeeding week that such debtor may be detained in such jail, and in default of such payment in advance, said debtor may be discharged by such jailor or sheriff.”

In 1872 the present act governing the committal of insolvent debtors to jail was passed by the legislature. The language of paragraph 30 of the present act (Ill. Rev. Stat. 1937, ch. 72, par. 30 [Jones Ill. Stats. Ann. 109.048]) uses the same language as that of the Act of 1853, and reads as follows:

“Should the debtor be detained in jail under such writ [evidently meaning the writ of capias ad satisfaciendum] for more than one week, it shall be the duty of the creditor, at the commencement of each week, to advance to such jailor the board of the debtor for the succeeding week,and in default of such payment in advance, the debtor may be discharged by such jailor.”

In 59 Corpus Juris at p. 1082, it was said:

“So, where a section of a statute is amended by striking out ‘may’ and inserting ‘shall’ in lieu thereof, an intent is shown to alter the directory nature of the law and render it mandatory; and conversely, an amendment substituting ‘may’ for ‘shall’ manifests a clear intent to make the act referred to optional and permissive instead of mandatory.”

In the case of People ex rel. Carson v. Muldoon, 306 Ill. 234, the Supreme Court in commenting on the use of words, at p. 238, said: “It is the settled rule that words used in a statute are to be given their ordinary meaning in general and popular use unless the court is certain that it is following the legislative intent in giving them a different meaning. (Way v. Way, 64 Ill. 406; Chudnovski v. Eckels, 232 id. 312; Culver v. Waters, 248 id. 163.)”

We think where a section of a statute was amended by striking out the word “shall” and inserting the word “may” it was the intent of the legislature to remove the mandatory provisions of the statute compelling the sheriff to discharge the prisoner. In the instant case the sheriff had received all his charges and was satisfied therewith at the- time the motion to quash was made. We do not think such narrow construction should be placed upon the language of the statute as it would substantially destroy the imprisonment statute. It is quite evident the purpose of the legislative act in requiring the amount of money to be paid in advance was to protect the taxpayers against the burden of supporting a debtor who had been imprisoned.

If the phrase “commencement of the week” were to be literally and strictly construed as claimed for, it would begin on Sunday and it would be difficult, if not impossible, to comply with such interpretation of the statute. And, more strictly speaking, the “week” woud commence at midnight and such narrow construction of the language used would create a situation fraught with many obstacles. It seems to us that if a sheriff receives a prisoner’s board in advance and is satisfied with it as being in compliance with the statute, the time of payment could not thereafter be used as a basis for the quashing of a writ. In the instant case plaintiff tendered the amount of the weekly board money on Saturday and the sheriff refused it because the payment was tendered too soon. The next day was Sunday, a holiday, and thereafter on the following. Tuesday the sheriff accepted the money as being his interpretation as the. proper time for such payment. We think a common-sense interpretation of this statute is that the payment of the money in advance, within a reasonable time, and the sheriff’s willingness to accept the- same, is all that is required by the statute. Consequently, we are of the opinion that the court erred in quashing the writ and releasing the prisoner.

For the reasons herein given the order of the circuit court is reversed and the cause is remanded with directions to vacate the order quashing the writ and that the defendant be returned to jail.

Order reversed and cause remanded with directions.

Hebel, J., concurs.

Mr. Justice Burke,

dissenting: On Monday, September 19,1938, the defendant was taken into custody. On that day plaintiffs paid the sheriff $4 to cover the jail fee and the board for one week. On Saturday, September 24, 1938, plaintiffs tendered $3.50 to the sheriff for board for the second week, which payment the sheriff refused to accept at that time on the ground that it was premature. On Tuesday, September 27, 1938, plaintiffs paid $3.50 to the sheriff for board of the defendant for the second week. On October 10, 1938, an order was entered in the circuit court discharging defendant, following the return to a writ of habeas corpus. Defendant was discharged because the board for the second week was due on September 26, 1938, and was not paid until September 27, 1938. The court was of the opinion that defendant was illegally detained. On December 6,1938, on demand of plaintiffs, the clerk issued an alias writ of capias ad satisfaciendum. Before the writ was served, defendant moved to quash the same, based on the contention that it was issued contrary to the provisions of the Habeas Corpus Act. On February 9,1939, the circuit court quashed the writ and this appeal followed. In the case in which the writ issued there was a verdict and judgment against the defendant. The jury also answered the following interrogatory in the affirmative: “Was the conduct of the defendant, William French, in the operation of his automobile, at the time of the occurrence in question, of such reckless character as to amount to wilful and wanton misconduct?”

Section 5, ch. 77, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 107.155], provides that “No execution shall issue against the body of the defendant except when the judgment shall have been obtained for a tort committed by such defendant, and it shall appear from a special finding of the jury, or from a special finding by the court, if the case is tried by the court without a jury, that malice is the gist of the action, and except when the defendant shall refuse to deliver up his estate for the benefit of his creditors." The parties treat the answer to the interrogatory as a special finding by the jury that malice was the gist of the action. In view of the fact that no appeal was taken from the action of the court in entering an order discharging the defendant in the habeas corpus proceeding, such action must be looked upon and accepted as proper. Section 26, ch. 65, Ill. Rev. Stat. 1939 (section 26 of the Habeas Corpus Act [Jones Ill. Stats. Ann. 109.338]) provides that "No person who has been discharged by order of the court or judge, on a habeas corpus, shall be again imprisoned, restrained or kept in custody for the same cause, unless he be afterwards indicted for the same offense, nor unless by the legal order or process of the court wherein he is bound by recognizance to appear. The following shall not be deemed to be the same cause:

"1....

"2....

"3. Generally, whenever the discharge has been ordered on account of the nonobservance of any of the forms required by law, the party may be a second time imprisoned if the cause be legal and the forms required by law observed."

The theory of plaintiffs is that the discharge, by the court in the habeas corpus proceeding was because of the nonobservance of a form required by law, and that hence under the exception to section 26 defendant may again be imprisoned and kept in custody for the same cause. Section 29, ch. 72, Ill. Rev. Stat. 1939 (section 30 of the Insolvent Debtors Act [Jones Ill. Stats. Ann. 109.407]) provides that under a writ of capias ad satisfaciendum it shall be the duty of the creditor to pay the sheriff his fees for receiving such person, and his board for one week at the time the debtor is committed to jail and before the jailer shall be bound to receive the debtor, and in default of such payment, the debtor may be discharged. Section 30, ch. 72, Ill. Rev. Stat. 1939 (section 31 of the Insolvent Debtors Act [Jones Ill. Stats. Ann. 109.408]) provides that should the debtor be detained for more than one week, it shall be the duty of the creditor, at the commencement of each week, to advance to such jailer the board of the debtor for the succeeding week, and in default of such payment in advance, the debtor may be discharged by such jailer. Plaintiffs invite attention to the fact that the sections mentioned state that the creditor “shall” pay the board and advance the board of the debtor, and that in default of such payment in advance the debtor “may” be discharged by such jailer, and argue that the defendant is not concerned with the payment of the board and that the sheriff has the sole right to determine when the board shall be paid. Based on this premise, plaintiffs insist that the payment of the board in advance is a mere form. It is well established that the courts lean toward that construction of statutes which is in favor of personal liberty. The words of the statute are mandatory in requiring the creditor to pay the board in advance. If the sheriff may exercise a discretion, then under similar facts he may keep one debtor in custody and release another. I do not believe that the sheriff is vested with any such discretion. The jail is built and maintained at the expense of the taxpayers, and the food for all prisoners is purchased as a result of appropriations from the public funds by the board of county commissioners. If the sheriff does not collect the board, then the loss must fall on the taxpayers, or on the sheriff. Nor do we know of any provision for the issuance of an alias writ of capias ad satisfaciendum. If the sheriff pays the board then in effect he becomes an interested party which the law does not tolerate.

I am of the opinion that the discharge of defendant under the habeas corpus proceeding was not because of the failure to observe a form required by law. The fact that the statute states that the creditor “shall” advance the board, shows clearly such payment in advance was not intended to be a mere form. Plaintiffs suggest that the only way they can collect their judgment is by proceeding under the capias ad satisfaciendum. It is patent, however, that plaintiffs have the right to collect their judgment in any lawful manner. The tendency of legislation has been to discourage the use of the writ. If plaintiffs’ argument is valid, then there is no reason why a creditor may not advance the board for one week, then fail to advance it for the succeeding week, and then after the debtor has been released and is attempting to earn a livelihood, cast him into prison again, thereby playing with him like a cat with a mouse, and snapping him in and out of prison at will. I am of the opinion that the court was right in discharging defendant in the habeas corpus proceeding and in sustaining the motion to quash the writ of capias ad satisfaciendum.

On Rehearing.

This cause comes before us on a rehearing. An opinion was heretofore filed by this court in the above entitled cause on April 10,1940. Our attention has been called to the fact that the Supreme Court in the recent case of Ingalls v. Raklios, 373 Ill. 404, has changed the rule with relation to the issuance of a capias ad satisfaciendum, by requiring that the judgment order of the court contain the statement that malice is the gist of the action and not as formerly, that the verdict of the jury finding such fact was sufficient.

In the case of Ingalls v. Raklios, 373 Ill. 404, which cause was before this court and was thereafter appealed to the Supreme Court, that court in reversing the decision of the Appellate Court, said:

“Under section 5, as amended, the clerk of the court is not authorized to issue an execution against the body of the defendant, unless the judgment shows that it was entered upon an action for a tort committed by thé defendant and that the judgment contains a special finding of the jury or the court (if the case is tried without a jury) that malice toas the gist of the action. If a defendant against whom a writ was issued desires to challenge the sufficiency of the judgment as regards to question of the findings of malice, his remedy is to apply to the court entering the judgment to quash the writ. The provisions requiring that before an execution for the body of the defendant shall issue the judgment shall show that the judgment was obtained for a tort committed by the defendant and that malice was the gist of the action, are mandatory and if such findings do not appear on the face of the judgment, the clerk is without authority to issue the writ. The duty imposed by statute upon the clerk to issue the writ is a ministerial act and he is not permitted to refer to the pleadings to determine tohether malice was the gist of the action for the determination of such question is a judicial act. A complaint which states a cause of action having malice as the gist, does not authorize the clerk to issue the writ, unless the judgment contains the essential elements prescribed by statute.

“... it is apparent that a defendant could be actuated by malice in committing a tort against the plaintiff and yet malice not be the gist of the action. The statement in the judgment that the court makes a special finding of malice is not the equivalent of a finding that malice was the gist of the action upon which judgment was entered.

“The statement in the judgment that the court found the defendant guilty as charged in plaintiff’s claim does not permit a reference to the complaint to determine whether the allegations of fact alleged therein made malice the gist of the action. As pointed out, if such reference was permitted, it would authorize the clerk issuing the writ to construe the pleadings in determining the legal effect to he given and thus exercise a judicial act.

“The judgment in this case does not meet the requirements of the statute and the writ of capias ad satisfaciendum was wrongfully issued.’’ (Italics ours.)

In the case of Lipman v. Goebel, 357 Ill. 315, a judgment was entered on a declaration charging wilful and wanton injury. The defendant applied for release under the Insolvent Debtors’ Act. The Supreme Court in holding that the defendant was not entitled to his release, said at p. 319:

“Section 2 of the Insolvent Debtors’ act . . . provides the procedure for the discharge of a debtor seized and imprisoned. A person . . . imprisoned upon a capias ad satisfaciendum where malice is the gist of the action is not entitled to discharge upon the surrender of his property. . . . ‘malice,’ . . . applies to . . . wrongs . . . inflicted with an evil intent, design or purpose, implies that the guilty party was actuated by improper or dishonest motives and requires intentional perpetration of an injury. . . . However, the term does not necessarily mean that the person . . . bears any spite, grudge or ill-will towards the person against whom the wrong is inflicted. . . . ‘gist of the action’means‘the essential ground or object of a suit and without which there is not a cause of action. ’ . . . Whether malice is the gist of the action is determined from the charges made in the declaration. ’ ’

Other cases in line with Lipman v. Goebel, supra, are In re Petition of Rosenberg v. Ott, 285 Ill. App. 50; Mantske v. Rhutassel, 248 Ill. App. 492; In re Petition of Miles v. Glad, 299 Ill. App. 185; Fromm v. Seyller, 245 Ill. App. 392.

We have carefully considered the Raklios case supra, and we have come to the conclusion that in that case the Supreme Court put a different construction on the statute than theretofore, so that in order to obtain the issuance of a writ of capias ad satisfaciendum, it must appear from the judgment order itself a finding that “malice is the gist of the action.”

If, as we think, we have put a proper construction upon the language used by the Supreme Court, then in the absence of such finding by the trial court in the instant case, we would not be justified in adhering to the former opinion filed by this court in this case. While it is true the former opinion filed by this court in this case was based upon the question of time of payment to the sheriff of money for the board of the defendant while he was in jail, yet we are of the opinion upon a reconsideration of the question raised on the petition for rehearing, although different from the one originally presented, that inasmuch as the judgment order in this case does not contain the finding that malice was the gist of the action, we should change our decision. We have in mind that part of the Supreme Court’s opinion in the Raklios case, wherein it is said, “A complaint which states a cause of action having malice as the gist, does not authorize the clerk to issue the writ, unless the judgment contains the essential elements prescribed by statute. ’ ’

We think it is our duty to follow the latest rulings and decisions made by our Supreme Court, and for that reason we hereby rescind our former decision and in lieu thereof we hereby enter an order affirming the action of the trial court in discharging the defendant.

For the reasons herein given, the judgment of the circuit court is hereby affirmed.

Judgment affirmed.

Hebel, J., concurs.

Mr. Justice Burke,-

specially concurring: Prior to 1935, section 5 of chapter 77 of the act in regard to judgments and decrees read: “No execution shall issue against the body of the defendant, except when the judgment shall have been obtained for a tort committed by such defendant, or unless the defendant shall have been held to bail upon a writ of capias ad satisfaciendum [respondendum] as provided by law, or shall refuse to deliver up his estate for the benefit of his creditors. ’ ’ This section was amended in 1935 so that it now reads (sec. 5, ch. 77, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 107.155]): “No execution shall issue . . . except when the judgment shall have been obtained for a tort committed by such defendant, and it shall appear from a special finding of the jury, or from a special finding by the court, if the case is tried by the court without a jury, that malice is the gist of the action, and except when the defendant shall refuse to deliver up his estate for the benefit of his creditors.” Prior to the 1935 amendment of section 5, a capias ad satisfaciendum could issue on any tort judgment. A defendant apprehended under such a capias could be released on application to the county court under the provisions of the Insolvent Debtors’ Act, (ch. 72, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 109.378 et seq.]), provided the court determined that malice was not the gist of the action. Under the 1935 amendment the clerk is not permitted to issue a capias ad satisfaciendum except where the judgment has been obtained for a tort committed by such defendant and where it shall also appear that the jury or the court (if the case is tried without a jury) made a special finding that malice was the gist of the action. Hence, under the statute as amended, in a tort case the clerk is not permitted to issue a capias ad satisfaciendum in the absence of a special finding. When such a capias issues and the defendant feels himself aggrieved by the action, his remedy now is to apply to the court where the judgment was rendered, to have such execution quashed. Therefore, the only change made by the 1935 amendment is to require the court or the jury to make a special finding that malice is the gist of the action. Under the law, prior to the 1935 amendment, in order to determine whether malice was the gist of the action, it was necessary for the county judge to determine that question from the pleadings and the transcript of evidence. Thus, controversies arose in nearly all cases. The purpose of the amendment was to remove the cause of these controversies by requiring a special finding that malice is or is not the gist of the action. Where a verdict or a finding of “guilty” is returned against a defendant, and also a special finding by the court or jury that malice is the gist of the action, the court may in a proper case sustain the verdict or finding of “guilty” and enter judgment thereon, and yet set aside the special finding of malice. Thus, under the amendment of 1935, the court, where the judgment is entered, retains jurisdiction to determine whether the finding that malice is the gist of the action, shall stand as a part of the judgment, or whether it shall be set aside. It is no longer necessary or proper to go into the county court to determine that issue. Under the provisions of the Insolvent Debtors’ Act (ch. 72, Ill. Rev. Stat. 1939) the county court still retains jurisdiction of cases where a defendant (judgment debtor) refuses to deliver up his estate for the benefit of his creditors. I have carefully studied the case of Ingalls v. Raklios, 373 Ill. 404. It clearly appears from the record in that case that the trial court did not make a finding that malice was the gist of the action. Therefore, there was no attempt to comply with the provisions of section 5. The majority opinion herein assumes that the opinion in the Raklios case speaks of the judgment as not embracing the finding. A careful reading of the Raklios case convinces me that the court uses the word “judgment” as embracing the finding as well as the judgment. I quote from page 406 of the Raklios opinion “The pertinent parts of the judgment are ‘ Court makes special finding of malice. . . . ’ ’ ’ Continuing on page 406, the opinion states that appellant’s contention in that case is “that the judgment in this case does not meet the statutory requirements, in that there is no special finding by the court that malice was the gist of the action.” On page 407 the court said: “Under section 5, as amended, the clerk of the court is not authorized to issue an execution against the body of the defendant, unless the judgment shows that it was entered upon an action for a tort committed by the defendant and that the judgment contains a special finding of the jury or of the court (if the case is tried without a jury) that malice was the gist of the action. . . . The- provisions requiring that before an execution for the body of the defendant shall issue the judgment shall show that the judgment was obtained for a tort committed by the defendant and that malice was the gist of the action, are mandatory, and if such findings do not appear on the face of the judgment, the clerk is without authority to issue the writ. . . . The statement in the judgment that the court found the defendant guilty as charged in plaintiff’s claim does not permit a reference to the complaint to determine whether the allegations of fact alleged therein made malice the gist of the action. ” It is not necessary to the validity of the judgment that any set form of words be used. In my opinion, the Supreme Court in the BaMios case used the word “judgment” in a broad sense. Where the court sustains the verdict of the jury that the defendant is guilty and also a special finding that malice is the gist of the action, by overruling the usual motions and entering a judgment on such findings, then the judgment embraces the findings. I agree with my colleagues that the judgment of the circuit court in the instant case should be affirmed, but I differ with them on their view of the intent of the opinion in the BaMios case. The only question before the court in that case was whether there was a special finding by the court that malice was-

the gist of the action. The Supreme Court was of the opinion that the record did not show that there was any such special finding. The opinion in that case did go on to say “that a defendant could be actuated by malice in committing a tort against the plaintiff and yet malice not be the gist of the action.” However, the court in that case did not discuss whether malice was the gist of the tort of which the defendant was found guilty. The court merely stated that a defendant “could- be actuated by malice in committing a tort” without such malice being the gist of the action. The majority opinion herein also quotes from Lipman v. Goebel, 357 Ill. 315, wherein the term ‘ ‘ malice ’ ’ and the ‘ ‘ gist of the action ’ ’ are defined. My colleagues apparently are of - the opinion that the Raklios case changes the classifications heretofore recognized of actions where malice is the gist thereof. Toward the end of the Ralclios opinion, the court cites with approval First Nat. Bank of Flora v. Burkett, 101 Ill. 391, where at p. 394, the court said:

“In the case of Harpham v. Whitney, 77 Ill. 32, the case of Mitchell v. Jenkins, 5 B. & A. 594, was referred to as defining malice. It was there said by Parke, J., ‘that the term “malice” in this form of action, is not to be considered in the sense of spite or hatred against an individual, but of malus animus, and as denoting that the party is actuated by improper and indirect motives. ’ That definition was applied in a case of malicious prosecution. The term has been defined: ‘A formed design of doing mischief to another,’ — ‘a wicked intention to do an injury to another. ’ Thus the forsaking of a husband or wife of the other, without - sufficient cause, is said to be a malicious abandonment. Malicious mischief is the wanton or reckless destruction of or injury to property. It in some cases implies a wrong inflicted on another with an evil intent or purpose, and this is the sense in which it is employed in this statute. It requires the intentional perpetration of an injury or wrong on another. The wrong and intention to commit the injury are necessary to deprive the party of the right to a discharge from arrest or imprisonment. In this case there was an intentional wrong, little, if anything, short of a criminal act, and it was malicious, in the statutory sense.

“Being malicious, was it the gist of the action? The gist is defined to be the cause for which an action will lie, — the ground or foundation of a suit, without which it would not be maintainable, — the essential ground or object of a suit, without which there is not a cause of action. In this case an action on the case could not have been maintained had not the defendant wrongfully and dishonestly drawn the money for which the hogs were sold, and for which he had given a draft to the bank on Green, Huddleson & Co., and for which draft the bank paid him. This fraud was of the essence or foundation of the action, and in the statutory sense it was both wicked and malicious. ’ ’ The doctrine in the above cited case, which the court approved in the Raklios case, arose out of a situation where a party shipped a lot of hogs to a commission merchant in Cincinnati for sale, taking a bill of lading from the railroad company, after which he applied for and obtained a loan of $400 from the bank, giving the bank a sight draft on the commission merchant and pledging the bill of lading, which he attached to the draft, and then before the draft was presented, collected the entire sum due from the commission men, leaving nothing to pay his draft, which was protested. The court held that this constituted an intentional wrong and was malicious, and that such malice was the gist of the action. In Lipman v. Goebel, supra,our Supreme Court held that malice may be made the gist of the action in a tort action if properly pleaded, even though some other form of action might lie. In the case at bar the jury returned a verdict of guilty and a special finding that the conduct of the defendant in the operation of his automobile was of such reckless character as to amount to wilful and wanton misconduct. Under the authority of the Raklios case this special finding was not in compliance with section 5, as amended in 1935, in that it did not find that malice was the gist of the action. Inasmuch as the jury did not find that malice was the gist of the action, there was no compliance with section 5, and hence it is unnecessary for this court to now announce how we would rule if under the same set of facts the jury had brought- in a finding that malice was the gist of the action.

It is worthy of observation that section 5 of ch. 77, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 107.155], by its express language prohibits the issuance of a capias ad satisfaciendum unless, first, the judgment shall have been obtained for a tort committed by the defendant, and, second, that it shall appear from a special finding of the jury or court that malice is the gist of the action. Thus the legislature clearly recognized the distinction between the finding and the judgment. "Where the finding by court or jury is finally sustained, it becomes merged in the judgment and a part thereof.

As stated in a dissenting opinion filed before the rehearing was granted, I am of the opinion that the defendant should prevail and the judgment should be sustained, based on the other points raised. Prior to the present proceeding the defendant had been discharged as the result of the issuance of a writ of habeas corpus. The order then discharging the defendant was a final order, and being a civil case the plaintiffs had a right to appeal. No appeal was prosecuted. The order of discharge having disposed of the controversy a plea of res judicata was appropriate. Subsequently, on the demand of plaintiffs, the clerk issued an alias writ of capias ad satisfaciendum. I do not know by what authority the clerk has the right to issue an alias writ of capias ad satisfaciendum. Defendant moved to quash this writ, which motion was sustained by the court. The basis for releasing the defendant in the habeas corpus proceeding was that the plaintiffs had failed to pay defendant’s board in dne time. The plaintiffs maintain that the discharge of the defendant in the habeas corpus proceeding was because of failure to observe a form required by law, and that under the provisions of section 26, ch. 65, Ill. Eev. Stat. 1939 (section 26 of the Habeas Corpus Act) defendant may be again imprisoned. I am of the opinion that the discharge of defendant under the habeas corpus proceeding was. not because of the failure to observe a form required by law. The fact that the statute declares that the creditor “shall” advance the board shows clearly that such payment in advance was not intended to be a mere form. Plaintiffs suggest that the only way they can collect their judgment is by proceeding under the capias ad satisfaciendum. It is patent, however, that plaintiffs have the right to collect their judgment in any lawful manner. If plaintiffs’ argument is valid then there is no reason why a creditor may not advance the board for one week, then fail to advance it for the succeeding week, and then after the debtor has been released and is attempting to earn a livelihood, cast him into prison again, thereby playing with him like a cat with a mouse, and snapping him in and out of prison at will. I am of the opinion that the court was right in discharging the defendant in the habeas corpus proceeding, and also in sustaining the motion to quash the writ of capias ad satisfaciendum.


source: Caselaw Access Project

author: Mr. Presiding Justice Denis E. Sullivan Mr. Justice Burke

license: Public Domain

text:
    Wisconsin Lime and Cement Company, Appellee, v. N. Anton Hultman and Ben Peterson, Trading as Hultman and Peterson, Appellants.
    Gen. No. 40,890.

      Burke, J., dissenting.
    Opinion filed June 19, 1940.
    Rehearing denied September 10, 1940.
    Cochrane & George, of Chicago, for appellants.
    Edward S. Cody, of Chicago, for appellee; David H. Kraft, of Chicago, of counsel.
   Mr. Presiding Justice Denis E. Sullivan

delivered the opinion of the court.

This is an appeal from a judgment entered in the municipal court wherein suit was instituted by plaintiff in an action in assumpsit against defendants for goods of the value of $1,086.70, claimed to have been sold and delivered by plaintiff Wisconsin Lime Company, to the defendants. The cause was tried before the court without a jury which resulted in a finding in favor of plaintiff for $1,044.93, from which finding and judgment defendants bring this appeal.

From the facts before us it appears that in the year 1933, plaintiff was engaged in the business of selling building materials and the two defendants who were partners were cement contractors; that a building was at that time to be erected to be used as a restaurant by the lessee thereof and said building was to be located at the entrance to a ‘ Century of Progress,” a World’s Fair which was being held in Chicago; that as a business venture the building and restaurant failed and thereupon various contractors, subcontractors and materialmen filed liens against the land and building.

The defendants testified substantially that when they had an opportunity to bid on the work to be done on the building- they went first to the representative of the plaintiff company, the credit manager Mr. Custin, and told him what they, the defendants, contemplated doing and asked him to look into the matter and see whether or not they would be justified in doing this cement work; that if they did sign the contract the building was to be the only security which either the plaintiff or the defendants could have and that payment to the plaintiff was dependent upon what money, if any, was received out of the project.

It further appears that pursuant to this conversation plaintiff furnished the defendants with certain materials which weré required in the construction of the building; that subsequently various mechanics’ liens were filed and two of these cases were consolidated and brought before this court for review. We refer to the case of Moulding-Brownell Corp. v. E. C. Delfosse Const. Co., 291 Ill. App. 343. In that case after reviewing the entire proceedings, the subject matter of which involved the material used in the construction of the same building as is referred to in the instant ease, this court at p. 350, said: ‘ ‘ The entire enterprise has every appearance of being a typical promotional adventure fostered by energetic contractors, for use during a ‘ Century of Progress, ’ rather than the usual ordinary contract entered into with owners who desire a building erected for normal purposes during normal times.” In that case the liens which had been allowed in the trial court were disallowed here with the exception of the architect’s lien. The conclusion which we arrived at in that case, as expressed in our opinion as to the character of the enterprise, applies with equal force at this time as it did then. The material was furnished in 1933 and no attempt by suit was made in the instant case to collect the money therefor from defendants until after five years had expired. The defense in this regard is that the right of action against them, if any ever existed, was barred at the end of five years from the date of the last delivery.

In the instant case a rather unusual situation presents itself. Jaffe, the lawyer for the plaintiff, was also the attorney for the defendants. Defendants went to Jaffe, the lawyer, at the suggestion of the plaintiff, they both having claims against the assignee of the defendants in the mechanics ’ lien case, being the National Builders Bank. When the money was received by Jaffe on behalf of the defendants, he, without the authority of the defendants, paid some of the money to the plaintiff in the year 1936. Said Jaffe then went on the witness stand as a witness and testified to conversations had with the defendants during the time he was acting as their lawyer, such course having presumably been pursued in an endeavor to stop the running of the statute of limitations. When the case came before the trial court, Jaffe, who also was the lawyer who signed and filed the affidavit of claim upon which the case was tried, withdrew his appearance, although he testified while upon the witness stand that he was still plaintiff’s lawyer, had been for 15 years and continued to be plaintiff’s lawyer. When objection was made to the testimony of the lawyer Jaffe, it was contended that he should not be permitted under the law to disclose confidential matters obtained while the relationship of lawyer and client existed. This objection was overruled by the trial court.

It appears from the record that the plaintiff is out of business and its accounts are being handled by the lawyer Jaffe. Jaffe stated that he had authority to commence suit on said accounts without getting authority from anyone.

The former credit man of the Wisconsin Lime and Cement Company is now working for the Consumers Company, and he stated he was not sure whether this account belonged to the Consumers Company or to the plaintiff. He stated that he did not know whether all of the accounts of the Wisconsin Lime & Cement Company had been taken over by the Consumers Company. He indicated that it was never intended that the plaintiff should consider the defendants liable regardless of whether or not they collected their money out of the project.

A lawyer being the principal witness in a case in order to establish a claim against his own client, is unusual. If the law were to permit such procedure, then a lawyer’s office would not be a very safe place for a man to go seeking advice as to his legal rights. It would not encourage him to tell the truth to his lawyer and, as has been said many times, such procedure is against public policy.

In the case of People v. Marcofsky, 219 Ill. App. 230, the court at p. 232, said:

“Professional communications between attorney and client are privileged communications which the law on the ground of public policy excludes for the reason that greater mischiefs would result from permitting their admission than from rejecting them. These communications are excluded not on account of any particular importance which the law attributes to the business of legal professors, but out of regard to the interests of justice which cannot go on without the aid of men skilled in the law. . . . Greenleaf on Evidence, sec. 238. . . . People v. Barker, 56 Ill. 299; Wood v. Thornly, 58 Ill. 464; Lanum v. Petterson, 151 Ill. App. 36; Hatton v. Robinson, 31 Mass. 416. ’ ’

Counsel for plaintiff, however, succeeded in convincing the court that this privilege is one which belongs to the lawyer and if the latter does not see fit to exercise it his client is helpless, and the court ruled accordingly.

In the case of People ex rel. Shufeldt v. Barker, 56 Ill. 299, the Supreme Court at p. 300, said:

“We know of no exception to the rule, that Communications made to a counselor, attorney or solicitor, when made to him in the character of a legal adviser, are to be protected, as the privilege of the party asking the advice. The rule is founded on principles of public policy. It has been found necessary to the protection of persons surrounded and embarrassed by difficulty, to the end that they may have the advice and counsel of persons skilled in the law, upon a complete disclosure of all that pertains to the transaction that affects their interest, property or liberty, with the full assurance that the communications thus made are as safe with their legal adviser as within their own breasts. The courts will never compel, or even allow, an attorney to disclose facts thus communicated to him by his client.”

Continuing at p. 302, the court said: “ ... it would unquestionably have been in better taste for the respondent to have declined to testify, unless compelled to do so by the court. The position of an attorney thus situated is a delicate one, and if any doubt existed or could exist, in the mind of any reasonable man, as to the propriety of his giving testimony under the circumstances, he ought at least to have submitted the question to the court for its advice. ’ ’

The attorney’s action in making payment of the money from one client to another and then for said attorney to seek to create a liability against his client the defendant and in favor of the plaintiff, by his testimony, cannot be countenanced. Said attorney should not have been permitted to so testify and the objections relative thereto should have been sustained. Such holding eliminates the only testimony tending to prove the plaintiff’s cause of action. We think the statute of limitations was not tolled, by such unwarranted actions on the part of Jaffe, and for that reason was a complete defense to plaintiff’s claim. Not alone was the statute itself a complete defense, but the whole case shows that our conclusion in the former case, Moulding-Brownell Corp. v. E. C. Delfosse Const. Co., 291 Ill. App. 343, was correct. It was not, as we have stated before, an ordinary business project, but when this building was erected it was an adventure on the part of the material-men and contractors, dependent upon the success, if any, achieved during the “Century of Progress” World’s Fair held in Chicago.

The burden of proof was upon the plaintiff to establish its case by a preponderance of the evidence and this it has failed to do. We believe the manifest weight of the evidence is in favor of defendants, and for the reasons herein given the judgment of the municipal court is reversed and judgment is entered here in favor of defendants and against plaintiff for costs.

Judgment reversed and judgment here in favor of defendants and against plaintiff for costs.

Hebel, J. concurs.

Mr. Justice Burke

dissenting: The burden was upon the defendants to prove by a preponderance of the evidence the defense that the action was barred by the statute of limitations. I am satisfied that they wholly failed to do, this, and that, to the contrary, the evidence convincingly establishes that the running of the statute of limitations was tolled. The documentary evidence, the circumstances and the testimony all combine to make it clear that the partial payment to plaintiff on the account was made by defendants voluntarily. It cannot be denied that the defendants accepted the remittance statement and check. Under all the circumstances shown, this certainly constituted the acceptance by them of a payment on account. I am also of the opinion that the evidence establishes an “account stated” between the parties which had the effect of removing the bar of the statute of limitations. I do not agree with my colleagues in their statement as to the testimony of attorney Jacob H. Jaffe, who testified in behalf of plaintiff. None of his testimony related to “confidential” matters imparted to him in the course of legal advice and did not violate the rule of privilege in communications between client and attorney. It is the law that where an attorney acts for both sides, with the consent of the parties, the rule of privilege in communications does not apply in a controversy arising between the parties so represented. The rule as to privilege does not apply as to communications made by the client either prior to the retainer or subsequent to the termination thereof. Furthermore, since the defendants themselves testified as to the communications which they claim are privileged, they must be deemed to have waived the alleged privilege in relation thereto. The burden was upon defendants to establish that the alleged communications were privileged, and the trial court correctly decided that the communications were not privileged. The trial judge had a better opportunity than this court to hear and see the witnesses, and his findings should stand, unless they are against the manifest weight of the evidence. In my opinion, the trial court correctly decided the case and the judgment should be affirmed.


author: Mr. Presiding Justice Denis E. Sullivan Mr. Justice Burke,

text:
    City National Bank and Trust Company of Chicago, Plaintiff and Interpleader, v. James Dunham et al., Defendants. James Dunham et al., Appellants, v. City National Bank & Trust Company of Chicago et al., Appellees.
    Gen. No. 41,021.

      Burke, J., dissenting.
    Opinion filed June 19, 1940.
    Rehearing denied September 10, 1940.
    Prescott, Burroughs & Taylor, of Chicago, for appellants ; Patrick B. Prescott, Jr., A. M. Burroughs, Archibald J. Carey, Jr. and Horace E. Galloway, all of Chicago, of counsel.
    Wendell E. Green, for certain appellee and pro se.

      Henry C. Ferguson, of Chicago, for certain other appellee.
   Mr. Presiding Justice Denis E. Sullivan

delivered the opinion of the court.

From a decree entered on June 30,1939, in the circuit court in a suit of interpleader, James Dunham, individually and as executor of the last will and testament of Frances Brundage, deceased, Ophelia Abrams, Anthony Cummings and Leroy Cummings, bring this appeal.

The so-called bill of interpleader was filed by the plaintiff City National Bank and Trust Company of Chicago. In that bill it is alleged that on or about June 4, 1919, there was opened with the National City Bank and Trust Company of Chicago, predecessor of plaintiff, a savings account in the name of Frances Brundage; that on or about October 6,1932, plaintiff assumed the debt which had arisen by virtue of the deposits to said savings account; that the amount of said debt and all accrued interest thereon amounted to $1,439.63, and that said savings account is now evidenced by a passbook issued by plaintiff and numbered 31955, and that James Dunham has possession of said passbook.

Said complaint further alleges that on or about the time said savings account was opened there was delivered to said National City Bank of Chicago a signature card or record bearing the purported signature of a Frances Brundage; that when plaintiff assumed said debt as aforesaid, it received said signature card or record and now has possession thereof; that plaintiff has no other signature card or record.

Said complaint further alleges that it is and has been for many years a general custom in Chicago, Illinois, for banks to identify each of their depositors by his signature, entered upon a signature card retained by the bank, and to permit a withdrawal from a savings account only upon a withdrawal order or receipt bearing a signature written by the person who signed the signature card appertaining to the particular account; that such correspondence of signatures is also required by plaintiff’s rules and conditions for savings deposits, to which every depositor has consented and by which he is bound; that paragraph 6 of such rules and conditions provides in part that “withdrawals of deposits and interest shall be made only upon presentation of the passbook accompanied by a withdrawal receipt or written order signed by the depositor as entered upon and in conformity with the signature cards of the Bank; . . .

Said complaint further alleged that during her lifetime, in the early part of 1938, the said Frances Brundage presented to plaintiff a withdrawal order or receipt bearing her true and genuine signature; that plaintiff ascertained that the signature “Frances Brundage” on said signature card or record was written by a different person from the Frances Brundage who signed said withdrawal order or receipt; that by virtue of said custom and said rules and conditions, plaintiff declined to allow said Frances Brundage to make any withdrawal from said savings account unless and until she could establish satisfactorily that the money deposited to said account was her property and that no other person had any right, title or interest in said savings account. These last two allegations are contradictory but tend to show that plaintiff was inequitably holding the money after Frances Brundage had complied with the terms of deposit.

Said complaint further alleges that said Frances Brundage during her lifetime informed plaintiff that the name Frances Brundage was written on said signature card or record by her daughter, whose name at the time she signed the signature card was Bettie White; that plaintiff has since been informed that Bettie White was the same person as Bettie Wimms who died on or about November 25, 1935, as aforesaid.

Said complaint further alleges that on or about March 14, 1938, said Frances Brundage brought an action against said City National Bank and Trust Company of Chicago in the Municipal Court of Chicago, in case No. 2781133, entitled, “Frances Brundage, Plaintiff v. City National Bank and Trust Company, a corporation, Defendant,” to collect said debt which had arisen by virtue of said savings account; that after the death of said Frances Brundage on or about June 8,1938, her death was suggested to the court and the executor of her will, said James Dunham, was substituted as party plaintiff in said case No. 2781133; that said case is still pending in the municipal court of Chicago.

The prayer contained in said complaint is that a guardian ad litem may be appointed for the infant defendant, said Mary Frances Wimms Price; that defendants may severally set forth to which of them the said indebtedness in the amount of $1,439.63 by reason of said savings account does of right belong and is payable and how in particular they make out their claim thereto; that the defendants may interplead and settle and adjust their said demands between or among themselves, the plaintiff being willing and desirous and agreeing that said indebtedness may be paid to such one or more of them to whom the same shall, in the judgment of this court, appear of right to belong; that plaintiff may be allowed its costs in this proceeding; that plaintiff may be at liberty to bring and pay the said sum of $1,439.63, less its costs aforesaid, into court in full payment and discharge of said indebtedness, as the court shall direct, which plaintiff hereby offers to do, for the benefit of such of the defendants as shall appear to be entitled thereto, and subject to the further order of the court; that the defendant James Dunham, individually and as executor of the will of Frances Brundage, deceased, and his agents and attorneys, may be restrained, both temporarily and permanently, by the injunction of this court, from proceeding against said City National Bank and Trust Company of Chicago in said action pending in the municipal court of Chicago on account of said indebtedness; that said James Dun-ham may be directed and ordered to dismiss said case No. 2781133 in said municipal court; that all of the defendants may be restrained and enjoined, both temporarily and permanently, from commencing any action or actions of any kind against said City National Bank and Trust Company of Chicago for the recovery of said indebtedness, or any part thereof, or touching any matters or things aforesaid; that the said James Dun-ham, individually and as executor of said will, may be decreed to deliver and surrender the passbook evidencing said savings account and said indebtedness to the plaintiff for cancellation; and that the plaintiff may have such other and further relief in the premises as equity may require and to the court shall seem meet.

The decree entered in this case found in favor of the plaintiff bank and said decree is much broader in its terms than is justified by the pleadings, the evidence or the law.

It will be noted in this claim filed that no allegation is made that any one has made a demand, other than one person, to wit, Frances Brundage, and that said demand was made by a suit being commenced in the municipal court.

In Partlow v. Moore, 184 Ill. 119, at p. 121 the court said:

“As a general rule, a bill of interpleader lies where two or more persons claim the same fund or property by different, adverse interests, and the custodian, who is indifferent between them, does not know to whom the fund or property of right belongs. (Newhall v. Kastens, 70 Ill. 156; Cogswell v. Armstrong, 77 id. 139; Ryan v. Lamson, 153 id. 520.) Here there was no adverse claim interposed to the money in the hands of the master, and upon that ground alone the relief prayed for in the bill might be denied. ’ ’

Even if the complaint were sufficient, the proper procedure in an interpleader suit is to hear the evidence, if any, on the issues made by the plaintiff’s complaint and answer thereto, and a preliminary decree should be entered determining whether or not plaintiff was found to be rightfully in court and, if so found, ordering the said money paid into the registry or to the clerk of the court. Said decree should direct the defendants to interplead as between the said defendants and also should direct that the plaintiff, if found to be rightfully in court, should be discharged with its costs after paying into court the money aforesaid. On the trial of the issues between the defendants, the court should award the money in its possession to defendants to whom the court found the money rightfully belonged. Such practice and procedure was not pursued in this case.

Although the statement is made in the brief of appellees, that there are two sets of claimants for the funds involved, for which they seek an interpleader, if such a statement is accepted then one claimant to the fund asks it as the owner of a passbook of deposit and the other claimant to the fund alleges that he is entitled to it because he is an heir of some deceased person who was the depositor.

It is alleged by appellóes that the money had been deposited in the savings department of the National City Bank on June 4, 1919, by Bettie Wimms adopting the name of her mother Frances Brundage; that she kept possession of the bank book, made withdrawals from the account and controlled said account. They make the further allegation that James Dunham, Ophelia Abrams, Anthony Cummings and Leroy Cummings claim the fund through, the estate of Frances Brundage, deceased, James Dunham being the executor.

It will thus be seen from the statement of the bill that the origin of the suit was not through the same channel as provided by law, but the instant case sets up two separate and independent sources of claims, which, under the law, an interpleader will not lie.

We have been unable to find any evidence in the record showing that any claim was made for this money by the so-called heirs of the estate; that the estate was closed, the final account approved and the executors discharged without making any demand for the money.

In setting forth the position of the appellee, the discussion of abstract cases appears which we do not believe are applicable in the instant case. We note there is no showing made or arguments presented as to why the jurisdiction of the municipal court should be withdrawn in the suit known as case No. 2781133, entitled, “Frances Brundage, plaintiff v. City National Bank and Trust Company, a corporation, defendant.”

The exercise of jurisdiction by the circuit court over the probate and municipal courts, such as directing a former officer of the probate court, Seymour Wimms, to reopen an estate that had been closed for several years, also in issuing injunctional orders preventing parties to this litigation to appear in court, is not justified either by the law or the facts.

From a review of all the facts set forth here as sufficient reason for interpleader, these could have been passed upon by the municipal court. That suit was a similar action for money had and received which action was equivalent to a suit in assumpsit and that court has jurisdiction over such mátters and should not be deprived of such jurisdiction by the circuit court unless rendered necessary by operation of law.

So far as we have been able to discover it has not. been alleged or proven that the plaintiff will not have a complete defense in the action at law in the municipal court.

In order to maintain a bill of interpleader it has been held that the same debt, duty, or thing is severally claimed by the defendants from the plaintiff by virtue of a title dependent on or derived from a common source. Byers v. Sansom-Thayer Commission Co., 111 Ill. App. 575.

It has been held that in order to maintain a bill of interpleader it is necessary that:

(1) The same thing, debt or duty must be claimed by both or all the parties against whom the relief is demanded ;

(2) All their adverse titles or claims must be dependent or derived from a common source;

(3) The person asking the relief, the plaintiff, must not have or claim any interest in the subject-matter; and

(4) He must have incurred no independent liability to either of the claimants, that is, he must stand perfectly indifferent between them, in the position of a stakeholder. Snow v. Ulrich, 126 Ill. App. 493; Morrill v. Manhattan Life Ins. Co., 183 Ill. 260.

There is no statute in this State with relation to interpleader and for that reason care should be exercised to follow the practice and procedure as laid down by our Supreme Court. We think a mistake was made in the trial of this case by not following such procedure by having a preliminary hearing to determine whether or not the bill of interpleader was properly filed and, if so, have the money deposited with the court so that it would be free to handle it and decree it and dispose of it while it was in its physical-possession.

No charge is made by plaintiff alleging fear or apprehension of danger on its part if it paid the money to Frances Brundage, nor is apy reason interposed as to why it did not make the payment, as the allegation of its petition shows that a withdrawal certificate was presented to them, properly signed by Frances Brundage during her lifetime.

Under the allegations and proof presented in this case, we do not see how the court could consider this bill as a bill of interpleader. The money involved is still in the hands of the plaintiff, and no payment of the money has been made to the clerk of the court. The allegation that plaintiff has no interest in the fund and its offer to deposit the fund does not seem to have been acted upon in any manner.

As to the fees which the court ordered be deducted from the sum held by the plaintiff, it does not appear from the brief whether the fees are to be considered as solicitor’s fees or as fees for the guardian ad litem. If considered as solicitor’s fees, the amount of time consumed in doing the necessary work in connection with the case is not set forth, and we have no way of knowing whether said fees were earned.

For the reasons herein given the decree of the circuit court is reversed and the cause is remanded with directions to dismiss the bill of- complaint for want of equity at plaintiff’s costs.

Decree reversed and cause remanded with directions to dismiss bill for want of equity.

Hebel, J., concurs.

Mr. Justice Burke,

dissenting: In the answer

filed by appellants, no objection was interposed as to the propriety of the complaint in interpleader. The answer admits paragraphs 1, 2, 3, 4, 5, 6, 8 and 9 of the complaint, and neither admits nor denies paragraphs 7, 10 and 12 thereof. Paragraph 10 of the complaint avers that plaintiff is uncertain as to the person or persons to whom it is indebted by reason of the account in dispute, and that it is anxious to have the court determine who is entitled to the fund. Paragraph 12 alleges that plaintiff has not colluded with any one or more of the defendants touching the matters in controversy, nor is it in any manner indemnified. This paragraph also avers that the complaint was not brought at the request of any defendant. Paragraph 1 of section 40 of the Civil Practice Act (par. 164, ch. 110, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. § 104.040]) provides that general issues shall not be employed, and that every answer and subsequent pleading shall contain an explicit admission or denial of each allegation of the pleading to which it relates. Paragraph 2 of the same section declares that every allegation, except allegations of damages, not explicitly denied, shall be deemed to be admitted, unless the party shall state in his pleading that he has no knowledge thereof sufficient to form a belief, and shall attach an affidavit of the truth of such statement of want of knowledge, or unless the party has had no opportunity to deny. Paragraph 3 provides that denials must not be evasive, hut must fairly answer the substance of the allegation denied. The answer does not state that the pleader “has no knowledge thereof sufficient to form a belief.” Under these provisions of the Civil Practice Act that part of the answer which neither admits nor denies the allegations of paragraphs 10 and 12 of the complaint, in effect, admits such allegations. The parties proceeded before the chancellor without presenting any point as to whether the complaint in interpleader was proper. They submitted the case on the merits. The proper procedure is to first determine whether an interpleader is appropriate. If it is not, then the interpleader is dismissed and the parties are left to their several actions. If the inter-pleader lies, the approved practice is to enter an interlocutory decree providing for the dismissal out of the cause of the plaintiff, and the depositing of the funds in dispute with the clerk, or with some other depository. The remaining parties then interplead and establish the issues on which the cause is to be tried. Here the procedure was irregular in that no interlocutory decree was entered. The informality cannot, however, be taken advantage of by any of the parties for they all participated therein. The fact that the fund was not deposited is immaterial as no question is raised by anyone as to the availability of such fund when the rightful owner thereof is determined. The case was submitted on the merits and all points were duly considered by the chancellor, who saw and heard the witnesses. The decree should he affirmed.


author: Mr. Presiding Justice Denis E. Sullivan Mr. Justice Hebel

text:
    People ex rel. Oscar Nelson, etc., Plaintiff, v. Depositors State Bank, Defendant. Kathryn A. Calek, Appellee, v. Charles H. Albers, Receiver of Depositors State Bank, Appellant.
    Gen. No. 41,131.
    Hebel, J., dissenting.
    Opinion filed June 19, 1940.
    Rehearing denied September 10, 1940.
    Woods, Woods, Brown & Salter, of Chicago, for appellant; Charles H. Blumenfeld, of Chicago, of counsel.
    Harry O. Rosenberg, of Chicago, for appellee.
   Mr. Presiding Justice Denis E. Sullivan

delivered the opinion of the court.

This is an appeal from an order entered in the liquidation proceedings of the Depositors State Bank, based upon an intervening petition filed by Kathryn A. Calek, praying for the return of certain shares of stock of Commonwealth Edison Company from Charles H. Albers, as receiver of that bank. The matter was referred to a master in chancery, who in his report found the issues in favor of the receiver and recommended that the petition be dismissed and that the stock in question be decreed as belonging to the receiver, as pledgee.

At the hearing before the trial judge the exceptions of the petitioner to the master’s report were sustained and a decree was entered finding that the petitioner was the owner of and entitled to possession of the stock.

No point is made on the pleadings.

Petitioner’s theory of the case is that the stock certificates were her sole property; that they were attempted to be pledged to the bank by her husband without her knowledge, consent or authorization; that the bank had notice that her stock was attempted to be hypothecated without her knowledge, consent or authorization; that an agreement was entered into between her husband and the cashier of the bank to the effect that the bank would accept and use her said certificates as collateral only on the condition and in the event that her husband would procure her power of hypothecation; that since said power of hypothecation was never obtained, the bank and its successors never acquired title or possession of the certificates, but held the same merely as a custodian for her.

Petitioner further contends that the bank knew and was charged with notice that the stock was attempted to be hypothecated without her knowledge, consent or authorization; that the bank was not a bona fide holder for value, without notice and that it had knowledge of facts which made taking of the stock wrongful. Petitioner further contends that the obligation under the agreement of March 28, 1931, was the obligation of James A. Calek; that petitioner was in no way obligated on said agreement, and that the bank knew and had reason to know that her husband was her fiduciary and was presenting her stock, without her knowledge, consent or authority for the purpose of fulfilling his own obligation to the bank, which fact made said bank liable to petitioner.

Petitioner further contends that the consideration for the contract of March 28,1931, failed; that the obligations assumed by Calek under said contract were those of “a guarantee for collection,” and that his liability thereunder is secondary and conditional; that said conditions constituted the consideration for his assumption of the liability as guarantor; that said consideration was not performed and failed in these particulars :

(1) There was no “contemporaneous herewith delivery” of collateral by anybody;

(2) One of the parties thereto, Joseph Hitt, did not deposit any collateral at any time; and

(3) Neither the Depositors Bank nor its successors liquidated the assets and liabilities of the Southwest Bank within a period of two years, and in fact have not as yet completed such liquidation. Therefore, Calek as a guarantor has been released of his liability and the Depositors Bank has no legal claim to the certificates of stock under any circumstances whatever.

The receiver’s theory of the case is that the stock was, in fact, the property of James A. Calek, petitioner’s husband, and that said stock had been deposited in discharge of an obligation of James A. Calek and he had obligated himself and had deposited this stock with the Depositors State Bank and in so doing was disposing of his own property.

It is further contended by the receiver that the stock certificates being indorsed in blank by petitioner, they were in effect negotiable by virtue of the Uniform Stock Transfer Act, and that the delivery of said stock by James A. Calek to the Depositors State Bank was a good and valid delivery and constituted the bank the pledgee thereof with complete power and authority to retain said stock pursuant to the terms of said collateral agreement.

It is further claimed on behalf of the receiver that the bank was a bona fide purchaser for value at the time of the taking of said stock and that the delivery was not conditional, but was legally and unconditionally effectuated.

■The receiver further contends that the petitioner had knowledge of her husband’s intention and desire to hypothecate said stock, and in permitting her husband to obtain possession of said stock while it was indorsed in blank and to deliver it to the Bank she estopped herself to assert any right to said shares of stock as against the Depositors State Bank and the receiver.

The receiver further contends that any right, title or interest in or to said shares of stock which may be vested in the petitioner is subordinate to and inferior to the rights of the receiver to retain said stock as pledgee thereof.

It further appears that on or about October 2, 1931, the petitioner, Kathryn A. Calek, was the owner of four certificates representing 59 shares of common stock of the Commonwealth Edison Company, which said certificates were registered on the books of said company in her name. Upon the reverse side of each of said certificates appeared her signature under the printed blanks for assignment and power of attorney. It appears that this signature was put there, as Calek terms it, for “probate purposes” or rather as we see it for nonprobative purposes, so that either Calek or his wife could appear as the owner of such stock as it suited their convenience.

It further appears that these certificates of the Commonwealth Edison stock were in a safety deposit box held jointly by Calek and his wife in the Depositors State Bank, of which Calek was vice-president and a director. This bank was in financial straits and the said Calek, as an owner of stock in said bank made an agreement with the bank which was termed a “Take-Over Agreement” of March 28, 1931, by the terms of which Calek agreed with the bank to guaranty the losses of the said bank.

It further appears that on October 2 or 3, 1931, he presented the said certificates of Commonwealth Edison Company to one Ratajczak, cashier of said bank, in attempted compliance with the terms of this agreement. Under the terms of the so-called “TakeOver Agreement” the Depositors State Bank took over all the assets and assumed all of the liabilities of the Southwest State Bank and agreed to liquidate all the liabilities within a period of two years; that in the event the liquidation of the assets and liabilities showed no deficiency, the excess or unused assets were to be returned to the Southwest Bank.

It further appears from paragraph 3 of said agreement, that certain individuals, all stockholders of the Southwest Bank, among whom was Calek, agreed to assure and guaranty to the Depositors Bank the collection of the assets of the Southwest Bank in an amount equal to the deposit liabilities assumed, with a limitation on their guaranty of $150,000; that five of the individual guarantors also agreed to pledge collateral satisfactory to the Depositors Bank for varying amounts, among them was Calek for $40,000 and Joseph H. Hitt for $20,000; that this collateral was to be deposited and “contemporaneously herewith delivered.” The agreement further provided that if the collection or liquidation of the assets did not equal the deposit liabilities assumed within a period of two years, the collateral was to be sold upon certain terms and conditions and the proceeds thereof were to be applied upon any balance remaining due the Depositors Bank by reason of its having assumed the liabilities of the Southwest Bank.

The agreement further provided that the complete liquidation of all of the assets so transferred and assigned to the Depositors Bank was to be made within two years from the date of the agreement, and if not so liquidated the Southwest Bank and individual guarantors were to become joint and several debtors of the Depositors Bank.

The collateral agreement contained a list of the collateral agreed to be deposited by the various individuals. Calek was listed for several items aggregating $40,000, among which was “59 shares Commonwealth Edison stock. ’ ’

The collateral agreement, paragraph 1, further provided that all securities deposited by the individuals shall be held by Depositors Bank as security for the obligation created by the guaranty in the agreement.

The Depositors State Bank became insolvent on January 18,1932, and has been continuously and is now in the hands of a receiver.

Intervening petitioner claims that on March 28,1931, there were seven certificates of Commonwealth Edison stock, totaling 59 shares, which belonged to her, Mrs. Calek, but which stood in the name of her husband, and which were indorsed in blank by him. It is further claimed that her husband, acting for her, had bought various certificates for her with her funds at a cost of $7,626.39; that said purchases were made during the course of the years from 1924 to 1931 by the use of “rights,” some of which were issued directly and some of which were purchased from private parties and from the Commonwealth Edison Company.

The evidence further shows that the funds of petitioner were deposited in her savings account in the Southwest State Bank and Depositors State Bank and that she was also the owner of several Christmas Savings Club accounts, which in the years 1925,1926,1927 and 1928, paid her the sum of $13,998.70.

It is claimed that after the agreement of March 28, 1931, had been signed, Calek disclosed to his wife that he had agreed to pledge her Commonwealth Edison stock; that she became hysterical and insisted upon having the stock in her possession at once; that the next day he delivered all of the certificates to her and she kept them in her possession in a steel box in a chest at home.

It is further claimed that subsequently she asked her husband to have the certificates registered in her own name, which he did, and they were put in a safety deposit box at the Depositors State Bank. These are the certificates which are sought to be reclaimed in this suit.

The evidence before us shows that Calek and his wife had confidence in each other and Calek testified to instances when the stock was in his name and was indorsed because “my wife had that much confidence in me. She just bought it and put it in my name and endorsed it in blank so that if anything happened to me she wouldn’t have any difficulty transferring it. Just a custom among our people. ...”

James Calek, when testifying later, stated that he went to the Continental Bank; that he had the stock transferred to his wife’s name and on October 3,1931, a few days thereafter, he received the certificates which contained a blank indorsement on the reverse side; that the indorsement was his wife’s signature.

The evidence further shows that their transactions were interchangeable, some of the bank accounts being in her name and some in his name. The gist of Calek’s testimony was that the financial relationship between himself and his wife was arranged so as to keep their stock in either one’s name, regardless of who owned it, so that they could avoid costs and expenses in the event their ownership was questioned.

The evidence further shows that Calek represented his wife throughout their married life with regard to financial transactions. Calek was the most interested party, so his evidence must be weighed with that in mind.

Calek was the head executive officer of the Southwest Bank'and after the auditors had threatened to close the bank, for the reason that the directors had exceeded the statutory loaning limit, Calek was willing at that time to give up all his assets so that the Southwest State Bank would not have to close and he would not be subject to further liability as a director. He offered to give anything he possessed and he signed a contract with this in mind, which contract was approved by the auditor of public accounts, Calek agreeing to put up this identical 59 shares of Commonwealth Edison stock, which at that time was in his name.

Caleb’s testimony contained the statement that on March 28, 1931, after he had signed the agreement, he told his wife that the Southwest State Bank and the Depositors State Bank had merged and that he was putting up all “our” collateral, including the 59 shares of Commonwealth Edison stock which was recorded in his name at that time and had been in his name ever since it was purchased, that is from 1924 until 1931, which stock certificates had remained in the safety deposit box, under his control. Calek claimed this stock was his own, and in all his conversations led the Depositors State Bank to believe this to be a fact.

Further testifying Calek stated that he pleaded with his wife to let him keep the 59 shares of stock, after he had signed the collateral agreement and after he had deceived the auditor of public accounts and the Depositors State Bank into believing that he could make good his agreement. He admitted that when he signed the document agreeing to put up this identical stock, he had misrepresented the facts to the Depositors State Bank and to the auditor and, although he was civilly liable in an action of fraud, he must have known that he misrepresented facts to the bank and the auditor in order' that the “take-over” would go through. He readily testified that he had led his wife to believe that the stock was in the safety deposit box, whereas, he had taken it out and had turned it over to the bank.

We think Calek’s testimony is incredible. It is quite apparent that he manipulated his assets so as to accomplish his purposes and that his wife had agreed to aid him in this regard. Calek’s testimony, relative to asking that his Commonwealth Edison stock be released as it belonged to his wife, was refuted by George H. Webb and Frank L. Webb. Calek also stated that he did not remember having talked with Mr. Smietanka, asking the latter to represent him, Calek, and get the collateral back because at the time it was put up a Mr. Hitt had also agreed to deposit collateral, but that he failed so to do.

Mr. Smietanka, a reputable lawyer, contradicted Calek’s testimony.

The witness Calek testified that he did not find out that the other collateral had not been deposited by Hitt and others until after the bank had closed, but he also testified that he had talked with Mr. Mathias in this regard prior to the closing of the bank.

Smietanka, called as a witness on behalf of the receiver, testified that Calek was the prime mover in the ‘ ‘ take-over ’ ’; that Calek was much concerned about the transaction being consummated and that he told Smietanka that he,- Calek, could not afford to be embarrassed by having the State auditor close the Southwest State Bank.

Robert D. Mathias, called as a witness on behalf of the receiver, testified that he had no recollection as to having threatened Mr. Calek with being discharged if he did not deposit the Commonwealth Edison stock; that he had no authority to discharge an officer of the bank; that he [meaning Calek] was employed by the board of directors and that the authority to either hire or fire Mr. Calek or other directors and officers was vested in the board of directors.

At another point in his testimony Calek stated that he had talked with Mathias with reference to the stock and that he later delivered the stock to Mr. Ratajczak, vice-president, and that he promised to get an hypothecation agreement, yet Calek admitted that he had never asked his wife for power of hypothecation. He also testified that after the stock was transferred to his wife’s name and indorsed in blank by her, he pnt it into the safety deposit box and took it out that day or the next day and gave the stock to the Depositors State Bank, which was about October 2,1931, yet the evidence offered on behalf of the receiver shows, as disclosed by the entry card, that as to the safety box of James A. and Kathryn A. Calek, there was no entry made on October 2,1931, as they had testified.

We have set forth the evidence somewhat in detail as it seems to us that the testimony of Calek was definitely discredited as he proved to be unreliable as a witness and his testimony could not be used as a basis upon which to make a finding, other than that no reliance should be placed upon it. We do not find any credible testimony in the record showing that the bank had any knowledge at the time the stock was delivered or at the time of the “Take-Over Agreement” that the property was that of the petitioner and was pledged without her permission. The evidence shows that whoever was the owner of the stock, it was subject to transfer between Calek and his wife as best served their purposes. We cannot agree with the contention of counsel for petitioner that the fact that the stock certificates were indorsed in blank by Mrs. Calek, put the bank on notice that a transfer was wrong as to her, so as to constitute the bank a wrongful taker thereof.

In the case of Peckinpaugh v. H. W. Noble & Co., 238 Mich. 464, 213 N. W. 859, at p. 861, said:

“In the eye of the law an indorsement in blank of a stock certificate is not a mere inquisitive bit of evidence calling for investigation of rights remaining with the indorser. The indorsement in blank gave power to any possessor of the certificates to pass title by delivery. Indorsement of and delivery by the owner are distinct. Indorsement must appear; delivery by the owner need not be shown by a good-faith purchaser from one having possession. A pledgee is a purchaser. . . . The Uniform Stock Transfer Act is all-inclusive and admits of no exception, even in case of theft or felonious taking from the owner, affecting the rights of a good-faith purchaser. If such exception should exist it will have to be so provided by legislation and not by way of judicial amendment.

• • •

“Bad faith may, of course, be predicated upon actual notice demanding inquiry. But good faith, in a transaction arising in the usual course of business, demands no sua sponte questioning of the title of the possessor of certificates of stock indorsed in blank. Such indorsed certificates do not travel with the ear-mark caveat emptor, but possess veritas nuda. The rule, let the purchaser beware, and the doctrine of suspicion impugning rights of a possessor of indorsed certificates until the contrary is made to appear, would not only unduly retard negotiability demanded in the commercial world, but, in all except extremely rare instances, be considered a gratuitous insult.

“The Uniform Stock Transfer Act accepts common honesty as a concept reasonably safe as a basis of everyday action in the commercial world. . . . Upon the indorsement in blank by the owner a stock certificate becomes a ‘ courier without luggage, whose countenance is its passport.’ ” The foregoing case was cited with approval in the case of United States Gypsum Co. v. Faroll, 296 Ill. App. 47, at p. 56.

According to the law set forth in the cases just cited, there was no notice of any rights of Mrs. Calek, the petitioner. It seems to us that the position of the petitioner is rather inconsistent as in one part of the testimony counsel attempts to show that the petitioner was an uneducated, inexperienced housewife and that her only experience in life was that which she had acquired in the discharge of her household duties, yet she admits that she had a savings account totaling almost $6,000, and Calek admits that he had the right to draw on his wife’s funds if he so wished. As to the stock Calek said that it was in his name from the day it was purchased until October 2, 1931, the day it was delivered to the bank. The petitioner gave the explanation that she had the stock and on March 28,1931, when her husband told her he had used it she told him she wanted it back and on October 2,1931, she stated that she would like to have it put in her own name and it was then immediately indorsed in blank by her and her husband and placed in a safety deposit box to which she and her husband had joint access, which was under his control and that the stock could be taken out without her permission or consent ; that she knew of his obligation to the bank and his desire to use the stock.

From a review of this record we are quite satisfied that Mrs. Calek permitted her husband to have the use of her name and that the property was actually his throughout all their business transactions. The only other conclusion that could reasonably be reached would be that he was her agent. We believe that the master who heard the evidence, and whose conclusions in a matter of this kind should be given great weight, rightfully determined that the bank was the owner of this stock and, consequently, said stock should be given to the receiver. From the inconsistent statements made by Calek and his wife, we find nothing upon which we could uphold their contention relative to the stock in question. When applying to a court of equity, equitable rules should prevail. They explain that the indorsements which appeared on the stock were put there for “probative purposes,” which in plain words means that it was not to be reported to the probate court in the event the estate of either one of them was subject to probate. A court of equity cannot sanction such action, they must come into court with clean hands. Not only have they failed to prove the allegations as set forth in the petition, by a preponderance of the evidence, but they have not complied with the rule that, “He who seeks equity must do equity.”

For the reasons herein given the order of the circuit court in sustaining the exceptions to the master’s report is reversed and the cause is remanded with directions to dismiss said petition for want of equity.

Order reversed and cause remancled with directions.

Burke, J., concurs.

Mr. Justice Hebel

dissenting: I am unable to agree with the conclusion of the court in,the instant case for the reason that the officers of the Depositors State Bank, a banking corporation, had knowledge of ownership by Kathryn A. Calek of the certificates representing 59 shares of the common stock of Commonwealth Edison Company, which said certificates were registered on the books of the company in her name. These certificates were in a joint deposit box in the Depositors State Bank, which box was in the names of Kathryn A. Calek and J ames A. Calek, her husband. On or about October 3, 1931, he removed the above certificates of stock and presented them to one Ratajczak, cashier of the bank, in an attempted compliance with a so-called “take-over agreement” of March 28,-1931, to which Calek and the bank were parties. These certificates were offered to the bank without the knowledge, consent or authorization of his wife.

Under the “take-over agreement,” the Depositors State Bank took over the assets and assumed all the liabilities of the Southwest State Bank, and agreed to liquidate said liabilities within a period of two years. The Depositors State Bank became insolvent on January 18,1932, and has been continuously and is now in receivership. The assets and liabilities of the Southwest State Bank taken over and assumed by the Depositors State Bank were not liquidated within a period of two years and are now in the process of liquidation.

There does not seem to be any question as to the ownership of the certificates of the shares of stock of the Commonwealth Edison Company except that her name appears to have been indorsed on the back of this stock. The facts, however, are that when Mr. Calek, who was an officer of this bank, presented the shares of stock that were called for by the “take-over agreement,” his attention was called to the fact that the stock was not deposited by him, and that when he deposited the shares of stock finally, Ratajczak, who was the vice-president and cashier of Depositors State Bank, called his attention to the fact that these shares of stock were not in his name but in the name of Mrs. Calek, his wife, and that unless a power of hypothecation was signed by Mrs. Calek, he could not use the certificates. Calek stated that he would try to get the power of hypothecation, and thereupon the cashier, not wanting to accept them, took the certificates to Mr. Mathias, the president, and called the attention of the president to the condition of the certificates and that they could not be accepted without the power of hypothecation, and that he did not want to accept them. The president, thereupon, stated to Calek that the certificates were in his wife’s name; but directed the cashier to take the certificates and to “be sure you get that power from him.” However, it appears that Mr. Calek never obtained nor delivered to the bank the signed power of hypothecation of Mrs. Calek.

So, it appears from the facts as related that the shares of stock in question were removed from the box without the consent of Mrs. Calek, and that she had no knowledge of nor did she consent to or authorize the delivery of said certificates to the bank; that during the intermediate time, she received the dividend checks issued by the Commonwealth Edison Company, and there was nothing to create a suspicion in her mind that the certificates had been turned over by Mr. Calek to the bank. Under the circumstances and facts stated here, it appears that the parties had knowledge of the ownership of the certificates in question and that the bank was not a bona fide holder for value without notice.

For that reason I am of the opinion that the court should have affirmed the decree entered by the trial court that the petitioner, Kathryn A. Calek, was the owner of and entitled to the possession of the stock.