text:
    Samuel Bright et al., Appellants, v. Edward J. Riedy and Thomas A. Harrison, Appellees.
    Gen. No. 31,443.
    1. Appeal and error — necessity for propositions of law. It is the Appellate Court’s duty to consider "both the law and the facts in a case tried without a jury even though no propositions of law were presented to the trial court.
    2. Landlord and tenant — when purchaser of property not hound hy provisions of lease. Under a lease providing that the lessee should have the exclusive privilege, for one year, to sell the property for the owner, the person to whom a sale of a part interest is effected is not liable to the lessee for commissions on the sale on the theory that the lessee being in possession such person was chargeable with notice of his rights and bound by the terms of the lease, since the purchaser could have no interest in the lease until after the sale was effected and the provisions of the lease could not be made to operate retrospectively.
    3. Set-oef, counterclaim: and recoupment — separate demand against joint demand. A separate claim against one plaintiff cannot be set off against a joint demand in favor of all plaintiffs.
    4. Set-off, counterclaim and recoupment — right to recoup on separate claim in joint action. Where a lease gave the lessee the exclusive privilege, for one year, of selling the property for the owner and contained a provision for liquidated damages if the lease should be forfeited by reason of the failure of either of the parties to perform any of its covenants, the failure of the owner to pay the lessee commissions on a sale of a part interest within the year does not authorize the setting up of the claim for liquidated damages by way of recoupment in an action for rent brought by the joint owners, as in any event only the original owner could be held liable for the commissions.
    5. Landlord and tenant — appointment of receiver as not eviction of lessees. Appointment of a receiver in a suit by the lessor held not to have constituted an eviction of the lessees.
    6. Receivers — nature of receiver’s possession of property. A receiver’s possession of property is adverse neither to the complainant nor to the defendant; the possession of the property is in the court through its receiver where it must remain for the protection of all of the parties in interest until the court disposes of the possession by ordering the receiver to sell the property or to turn it over to the party to whom ultimately it may be found to belong.
    7. Receivers — effect of appointment on right to possession. The effect of the appointment of a receiver is not to oust any party of hig right to the possession of the property but merely to retain the property for the benefit of the party who ultimately may appear to be entitled to it, and when- the party entitled to the property has been ascertained, the receiver will be considered his receiver.
    Appeal by plaintiffs from the Circuit Court of Cook county; the Hon. F. R. Dove, Judge, presiding. Heard in the first division of this court for the first district at the October term, 1926.
    Reversed with finding of fact and judgment entered here.
    Opinion filed February 7, 1927.
    Slottow & Levitón, for appellants; Charles Levitón, of counsel.
    Fred J. Crowley, for appellees; Clyde C. Fisher, of counsel.
   Mr. Justice Johnston

delivered the opinion of the court.

This is an appeal by Samuel Bright, Mier Ladon and Bertha Gralst, the plaintiffs, from a judgment in favor of the defendants in an action brought by the plaintiffs to recover rent alleged to be due to the plaintiffs from the defendants under a written lease beween the plaintiffs and the defendants.

The case was tried before the court without a jury.

On September 13,1924, judgment by confession was entered against the defendants in the sum of $3,494.70. On motion of the defendants, it was ordered that the judgment be opened, that leave be granted to the de-. fendants to plead, and that the judgment stand as security. The defendants filed the plea of the general issue, and also a plea of set-off, in which they alleged that the plaintiffs were indebted to the defendants in the sum of $1,583.33 for commissions due to the defendants, as real estate brokers, for the sale of certain property owned by the plaintiffs. The case was called for trial and after the court had heard the evidence, on motion of the defendants their plea of set-off was withdrawn. The plaintiffs thereupon remitted from their judgment all but $1,333.34, amended their declaration by reducing the ad damnum to $1,333.34, which was the amount of the rent alleged to be due for the month of September, 1924, and moved for a judgment for that amount. The court denied the motion, vacated the judgment of $3,490.70 theretofore entered, and rendered judgment in favor of the defendants.

The lease of the premises was originally made between the plaintiff Bright and the defendants. Subsequently Bright conveyed an undivided one-half interest in the premises to Mary Ladon as grantee for Mier Ladon, and Joseph Galst, and assigned to Mier Ladon and Bertha Galst, coplaintiffs in the present action, an undivided one-half interest in the lease.

The lease commenced on December 1, 1922, and expired on November 30, 1927. The total rental was $80,000, payable in monthly instalments of $1,333.34. The defendants sublet the premises to W. B. Thurston and his wife. According to the testimony of one of the witnesses, Mrs. Thurston, who seems to have had the actual charge of the building, “left the building,” and went “to parts unknown.”

The lease contained a provision that the defendants should have the exclusive right for one year to sell the property for the plaintiff Bright, who was then the sole owner. The sale of the one-half undivided interest which Bright made to Mary Ladon, as grantee for Mier Ladon and Joseph Galst, was within the year in which the defendants had the exclusive right to sell the property.

After the sale of his undivided one-half interest in the property, Bright and his wife, as complainants, began a suit in equity in which the following parties were defendants: Thomas A. Harrison, Edward J. Riedy, who are the defendants in the present action, Mier Ladon, Bertha Galst, who are the coplaintiffs with Bright in the present action, and W. B, Thurston and wife, the sublessees. In the bill of complaint the complainants referred to the lease of the premises to Harrison and Riedy, the sublease to W. B. Thurston and wife by Harrison and Riedy, and the sale of the one-half undivided interest- of the premises to Ladon and Galst. The bill alleged that Harrison and Riedy had not paid the complainant Bright the rent due for December, but had paid one-half the rent to Ladon and Galst and had retained the other half in satisfaction of their, Harrison and Riedy’s, claim for commissions for the sale of the one-half undivided interest of the premises by Bright to Ladon and Galst. The bill further alleged that Harrison and Riedy had persuaded Ladon and Galst to refuse to contribute their share of money necessary to operate and maintain the premises, and alleged on belief that Harrison and Riedy were insolvent. The prayer of the bill was for a partition of the premises, the appointment of a receiver and for an injunction restraining W. B. Thurston and wife from collecting the rents from the premises. A receiver was appointed by the court.

In the case at bar the principal defenses relied on by the defendants are: (1) That by way of recoupment the defendants are entitled to an abatement of the full amount of the claim of the plaintiffs by reason of commissions which are alleged to be due to the defendants in the matter of the sale by the plaintiff Bright of his one-half undivided interest in the property to the coplaintiffs Ladon and Galst; that at the time that the plaintiff Bright sold an undivided one-half interest in the property to the coplaintiffs Ladon and Galst, the defendants were in actual possession of the property; that, therefore, the coplaintiffs Ladon and Galst were bound by all of the terms and conditions of the lease, including the covenant in the lease giving the defendants the exclusive right for one year to sell the property; (2) that paragraph 18 of the lease provides as follows: “It is further expressly understood and agreed by and between the parties hereto that in the event that this lease is forfeited or cancelled by reason of failure on the part of either of the parties to this lease to keep and perforin any and all of the covenants and conditions of said lease as hereinabove outlined and agreed upon, then and in that event the party so failing and causing said lease to be cancelled shall pay as liquidated damages to the other party of this lease a sum not exceeding $10,000”; that because of the failure of the plaintiffs to pay the alleged commissions, the plaintiffs forfeited and canceled the lease, and therefore by way of recoupment the defendants are entitled to an abatement of the full amount of the claim of the plaintiffs by reason of the $10,000 liquidated damages which, it is alleged, the plaintiffs owe to the defendants- under paragraph 18 of the lease; (3) that the appointment of the receiver in the suit in equity brought by the plaintiff Bright constituted an eviction of the defendants.

It is contended by counsel for the plaintiffs (1) that, since on the trial of the case at bar the defendants relied only on the plea of the general issue, none of their defenses was admissible; (2) that furthermore, even if their defenses were admissible under the plea of the general issue, they are without merit; that whatever claim for commissions the defendants may have is against the plaintiff Bright personally and not against his coplaintiffs Ladon and Gralst; and (3) that the mere appointment of the receiver in the suit in equity brought by the plaintiff Bright did not constitute an eviction of the defendants.

Since we are of the opinion that the defenses interposed by the defendants are insufficient, it will not be necessary to decide the question whether the defenses were admissible under the plea of the general issue.

Counsel for the defendants contend that the question of the sufficiency of the defenses cannot be considered because the plaintiffs presented no propositions of law to the trial court, and that therefore the Appellate Court is without authority to pass on the law and the facts. This contention is not correct. It is the duty of the Appellate Court to consider both the law and the facts even though no propositions of law have been presented. Pittsburgh, C. C. & St. L. R. Co. v. Chicago City R. Co., 300 Ill. 162, 166; Marks v. The Knofsky Co., 233 Ill. App. 293, 297, 298; People v. Oberby, 240 Ill. App. 112, 115; Latham v. Hierman, 233 Ill. App. 360, 364.

In regard to the question whether the alleged commissions due to the defendants may be set up by way of recoupment against the plaintiffs, we are of the opinion that, assuming for the sake of argument that the defendants are entitled to commissions, the plaintiffs are not jointly liable for the commissions; that if anyone is liable for the commissions it is' the plaintiff Bright alone. We do not wish to be understood, however, as expressing an opinion on the question whether Bright is liable.

The contention of counsel for the defendants, that the coplaintiffs Ladon and Calst assumed liability for the payment of the commissions under the lease when they bought a one-half undivided interest in the property from the plaintiff Bright, is not sound. When the plaintiff .Bright sold his one-half undivided interest in the property to his coplaintiffs Ladon and Gralst, Bright was the sole owner of the property and the only lessor under the lease. The coplaintiffs Ladon and Gralst had no interest in the lease until the sale was consummated. They were not the sellers. They were the purchasers. Furthermore, there is no evidence that they explicitly agreed to assume any liability for the payment of the commissions, and in the absence of such an agreement they would not be liable impliedly for the commissions under the lease. It is obvious that except by specific agreement they could not be charged with a liability of any kind under the lease until they had obtained an interest in the lease. In other words, the lease did not operate retroactively as to them before they acquired an interest in it, but operated prospectively after the acquisition of their interest.

From the conclusion that we have reached on the question of the commissions, it follows that the defendants are not entitled to set up the alleged commissions by way of recoupment against the joint claim of the plaintiffs; and it also follows that the plaintiffs have not forfeited and canceled the lease under paragraph 18 of the lease, and consequently the defendants are not entitled to set up the $10,000 liquidated damages provided for by paragraph 18, by way of recoupment against the joint claim of the plaintiffs. Assuming for the sake of argument that the defendants have the right to recoup against the plaintiff Bright, on the basis of their commissions, and also on the basis of paragraph 18 of the lease, they have not the right to recoup against his coplaintiffs.

The rule is that demands to be the subject of set-off or counterclaim must be mutual between all the parties to the action. 34 Cyclopedia of Law and Procedure, pp. 727, 728. A joint indebtedness cannot be set off against a separate demand, nor can a separate demand be set off against a joint indebtedness. Priest v. Dodsworth, 235 Ill. 613, 615, 616; Dameier v. Bayor, 167 Ill. 547, 549; 34 Cyclopedia of Law and Procedure, pp. 727, 728.

In regard to the question whether the appointment of the receiver in the suit in equity brought by the plaintiff Bright constituted an eviction of the defendants, we are of the opinion that the appointment of the receiver did not have that effect. The order appointing the receiver provided as follows: ‘ ‘ That the Foreman Trust & Savings Bank be appointed a receiver of the premises described in the bill of complaint and of the rents and incomes thereof, with the usual powers of a receiver in chancery and subject to the instructions, and orders of the court.” Manifestly, the terms of this order reasonably cannot be construed as actually evicting the defendants from the premises. The possession of the receiver was constructive merely, and did not interfere with the occupancy of the premises by the tenants. The rule is that a receiver’s possession of property is neither adverse to the complainant nor to the defendant; that the possession of the property is in the court through its receiver, where it must remain for the protection of all of the parties in interest until the court disposes of the possession by ordering the receiver to sell the property or to turn it over to the party to whom ultimately it may be found to belong. Manning v. Mercantile Securities Co., 242 Ill. 584, 595; Town of Vandalia v. St. Louis, V. & T. H. R. Co., 209 Ill. 73, 80; Coates v. Cunningham, 80 Ill. 467, 468.

The effect of the appointment of a receiver is not to oust any party of his right to the possession of the property, but merely to retain the property for the benefit of the party who ultimately may appear to be entitled to it, and when the party entitled to the property has been ascertained, the receiver will be considered his receiver. Wiswall v. Sampson, 55 U. S. (14 How.) 52, 65; Union Nat. Bank of Chicago v. Bank of Kansas City, 136 U. S. 223, 236; Pennsylvania Steel Co. v. New York City Ry. Co., 198 Fed. 721, 728.

In support of their contention that the appointment of the receiver constituted an eviction, counsel for the defendants cite the following cases: Montanye v. Wallaban, 84 Ill. 355, 358; Mariner v. Chamberlain, 21 Wis. 253, 256. In the case of Montanye v. Wallahan, the court held that where a tenant in possession is ordered by the sheriff, having a writ of restitution based upon a judgment against a landlord, to vacate the premises described in the writ, and the tenant and his family leave the premises, and then the party entitled to possession under the writ executes a lease to such tenant and permits the tenant to retain possession under him, there is such an eviction by judgment of court as excuses the tenant from the payment of rent to the first landlord. The court said (p. 358): “We are of opinion that there was here an eviction by judgment of court on a superior title, which excuses the payment of rent.” We think that it is obvious that the facts in the case at bar are materially different.

In the case of Mariner v. Chamberlain, a receiver was appointed in a proceeding to foreclose a mortgage against a railroad company which was in the possession of Chamberlain. Mariner was made a defendant as a party who “has or claims to have some interest in the mortgaged premises as subsequent purchaser or otherwise.” Mariner claimed that he had leased part of the mortgaged premises to Chamberlain; that Chamberlain had never surrendered possession to him, and that the lease had been extended two years. The order appointing the receiver directed all of the parties to the action to deliver possession to the receiver. The court said (p. 256): “The order of a court of equity appointing a receiver and requiring a tenant to deliver possession to him, when he takes possession under it, as effectually ousts the tenant during the possession of the receiver, as the execution of a writ of possession on a judgment at law; and the same effect must be given to it as a protection or defense to the tenant in an action by his landlord for rent accruing during such possession of the receiver.” It is evident that by the terms of the order appointing the receiver, Chamberlain, the tenant of Mariner, was ousted, and that the receiver actually took possession. In the case at bar, however, the receiver did not actually oust the tenants of Mrs. Thurston, the sublessee of the defendants. On the contrary the tenants continued in the occupancy of the premises after the appointment of the receiver, and paid the rent to Mrs, Thurston, who in turn paid the rent of the premises to the receiver until she defaulted on her sublease. The receiver then notified the defendants that he would look to them for the rent.

For the reasons stated the judgment of the trial court is reversed with a finding of fact, and judgment will be entered in this court in favor of the plaintiffs for the rent of the month of September, 1924, in the sum of $1,333.34.

Judgment reversed with finding of fact and judgment entered here.

McSurely, P. J., and Hatchett, J., concur.

Finding of fact. We find as a fact that the defendants are indebted to the plaintiffs for the rent of the premises in question for the month of September, 1924, in the sum of $1,333.34.


source: Caselaw Access Project

author: Mr. Justice Matchett

license: Public Domain

text:
    Gladys Adkins Sims, Defendant in Error, v. American Food Products Company et al., Plaintiffs in Error.
    Gen. No. 30,874.

      Corporations — application of Securities Act to common-law trusts prior to 19S1 Amendment. Construing section 37 of the Illinois Securities Act of 1919, which makes a seller violating the act liable to the purchaser for the amount paid by the latter, in connection with section 2 of the act, held, particularly in view of the 1921 amendment of section 2, Cahill’s St. ch. 32, K 255, p. 647, that the sale of a certificate representing a beneficial interest in a common-law trust is not within the purview of section 37.
    Error by defendants to the Municipal Court of Chicago; the Hon. L. P. Harriss, Judge, presiding. Heard in the first division of this pourt for the first district at the October term, 1926.
    Reversed.
    Opinion filed February 7, 1927.

      Cloyes, Cleveland & Klinger, for plaintiff in error Alfred H. McComb.
    Fruchtl & Busch, for defendant in error.
   Mr. Justice Matchett

delivered the opinion of the court.

The plaintiff brought an action under section 37 of the Illinois Securities Act, in force June 10, 1919. (See Hurd’s Revised Statutes of Illinois, 1919, p. 2680.)

That section of the statute provides:

‘1 Every sale and contract of sale made in violation of any of the provisions of this act shall be void and the seller of the securities so sold and each and every solicitor, agent or broker of or for such seller, who shall have knowingly performed any act or in any way furthered such sale, shall be jointly and severally liable, upon tender to the seller or in court of the securities sold, to the purchaser for the amount paid, together with his reasonable attorney’s fees in any action brought to recover such amount.”

The statement of claim alleged that defendants in the State of Illinois procured from the plaintiff $1,000 for ten shares in the American Food Products Company, none of said defendants having qualified under the Securities Law of Illinois to sell or offer said stock for sale; that plaintiff tendered into court or to the defendants, the shares of stock and sued for attorneys’ fees and interest.

An affidavit of merits was filed, and there was a trial by the court without a jury. The issues were found against the defendants and plaintiff’s damages assessed for the sum of $1,000. Motions for a new trial and in arrest of judgment were overruled, and there was judgment for that amount.

It seems to be conceded by all the parties that the evidence disclosed that the certificate sold to the plaintiff represented an interest in a common-law trust organized for manufacturing purposes, and while other questions are argued, we think the controlling question in the case is whether the sale of a certificate representing a beneficial interest in such a common-law trust comes within the purview of the statute upon which the plaintiff’s suit is based.

In the determination of that question, section 2 of the same act must be construed in connection with said section 37.

Section 2 provides:

“The word ‘insurer’ shall include every person and every company, trust, partnership or association incorporated or unincorporated heretofore or hereafter formed for any lawful purpose and organised under the laws of this State or any foreign state or country which shall have issued any security sold or offered for sale to any person or persons in this State.”

The Appellate Court for the second district in the case of Kinross v. Cooper, 224 Ill. App. 111, has construed these sections of the statute, holding that an unincorporated association holding itself out as an organization under the common law in force in Illinois was subject to the provisions of this law, and the court, in the course of its opinion, states in substance that the Illinois Securities Law includes within its scope a declaration of trust of a common-law company, and that such a company comes within the provisions of that act.

The court there declines to follow the construction placed upon somewhat similar language in a statute of the United States by the Supreme Court of the United States in Eliot v. Freeman, 220 U. S. 178. The act there construed was one which provided for the taxation of corporations “now or hereafter organized under the laws of the United States or of any state or territory in the United States, or under the acts of Congress applicable to Alaska or the District of Columbia.” The Supreme Court of the United States held that the word “laws” as there used meant “statutes,” and that a common-law company was not subject to the tax provided for by the act.

The Appellate Court for the second district declined to follow this decision and seems to have based its opinion on Hunt v. Chicago & D. Ry. Co., 20 Ill. App. 282, where the court held in substance that under the provisions of the Constitution of 1870, the attorney general of this State was required to perform certain common-law duties, although the same were not expressly prescribed by the statute, holding that a duty required of the .attorney general by the rules of the common law was as much of a duty required of him by law, as though it had been imposed by the express mandate of the statute.

We do not regard Hunt v. Chicago & D. Ry. Co., supra, as applicable to the facts which appear here. It is of course elementary that the object of the construction of a statute is to find the legislative intent; that the intention must be found in the words which are used, and that all the language of the statute must be construed together and given some meaning, if that can be consistently done.

The phrase in section 2, which we have above italicized, must be given some meaning. If it had been the intention of the legislature to subject every person, partnership, association or company to the provisions of the statute, it would have been wholly unnecessary to have added the provision, ‘ ‘ and organized under the laws of this state or any foreign state or country.” It is ás a matter of fact well known that in most, if not all, of the States statutes do provide the specific way in which certain partnerships, associations or trusts may be organized. The statute itself is highly penal in its nature and therefore must be strictly construed, and, following such a rule of construction, we do not think it can be held that it was the intention of the legislature to include a trust not organized under any particular statute of any State and brought into existence only by virtue of some provision of the common law.

We are further persuaded that this is the proper construction of the Act of 1919 by the fact that through an amendment to this law passed by the legislature in 1921, section 2 was amended so as to strike out the phrase which we must here construe and by specific language making all trusts, except those created or appointed under, or by virtue of a last will and testament, or by a court of law or equity, or any charitable trust, subject to the provisions of the statute. (See Cahill’s St. 1925, ch. 32, ft 255, p. 647.) "See also Hecht v. Malley, 265 U. S. 144, where, construing the language in a United States statute substantially similar, the Supreme Court of the United States again held that trusts not organized under any statute were not subjected to the provisions of the act.

It follows that the judgment of the trial court must be reversed.

Reversed.

McSureuy, P. J., and Johnston, J., concur.


text:
    City of Chicago, a Municipal Corporation, Appellant, v. City of Chicago, Trustee for use of Schools, and Board of Education of City of Chicago, Appellees.
    Gen. No. 31,219.
    Schools and education — liability for tort. A school district or board of education, being a State agency and holding its property in trust, is not subject to an action in tort for personal injuries.
    Appeal by plaintiff from the Municipal Court of Chicago; the Hon. Joseph L. McCarthy, Judge, presiding. Heard in the first division of this court for the first district at the October term, 1926.
    Affirmed.
    Opinion filed February 7, 1927.
    Francis X. Busch, Corporation Counsel, and John J. Kelly, City Attorney, for appellant; Charles W. Stiefel, Jr., Assistant City Attorney, of counsel.
    Frank S. Righeimer, for appellees; Ralph W. Condee, John A. Cooke, Leo V. Roeder and Frank F. Trunk, of counsel.
   Mr. Justice Matchett

delivered the opinion of the court.

The City of Chicago brought suit against the City of Chicago, as trustee for the use of the schools, and the Board of Education of the City of Chicago, filing a statement of claim which alleged that the Board of Education was in possession of and occupied certain premises, the title to which was in the City of Chicago in trust for the use of schools; that the statutes of the State, namely, paragraph 156 of chapter 122, Cahill’s Revised Statutes of 1925, imposed certain duties enumerated upon the board; that upon the sidewalk adjoining and in front of these premises was a large coal hole, which was used for the purpose of delivering coal to the premises occupied by the board; that it became and. was the duty of the defendants to keep this coal hole in a reasonably safe condition for the use of the-public, but that the defendants disregarded their duty and permitted the hole to be in a state of disrepair and dangerous to persons using the sidewalk; that upon May 28,1922, one Margaret Ray tripped upon the hole in the sidewalk and was injured, and that on February 15, 1923, she brought suit and recovered judgment in the sum of $1,000; that the defendant Board of Education was notified of the pendency of the suit, and was further notified to pay such judgment after the same was recovered but failed to do so.

The defendants filed an appearance and made a motion to strike this statement of claim upon the grounds, first, that it did not state a cause of action; second, that the defendants were created by and performed their acts and duties solely in obedience to the statutes of the State of Illinois, and are therefore State agents acting in a governmental capacity, and not liable for negligence in the performance of such duties; third, that the property described in the statement of claim was .owned and occupied by the State of Illinois and the title held in the name of the plaintiff.

A motion to strike was granted, the suit dismissed and judgment entered for the defendants.

The sole question in the case is whether the statement of claim set forth a good cause of action. As a general rule a school district or a school board is not, in the absence of a statute imposing a liability, subject to suit in tort for personal injuries. There are two reasons for this rule, first, that a school board acts nolens volens as an agent of the State, performing a purely public or governmental duty imposed upon it by law, for the benefit of the public and for the performance of which it receives no profit or advantage; second, since the property which it possesses is held in trust, the payment of judgments in tort would amount to a diversion or, in some cases, a destruction of the trust. Such is the general rule. (See note to Stovall v. Toppenish School Dist. No. 49, Yakima County, 110 Wash. 97, 188 Pac. 12, 9 A. L. R. 908, 911, and the cases there cited. See also 24 R. C. L. 604, 605.)

The contrary rule seems to obtain in England. See Crisp v. Thomas (1890), 63 L. T. N. S. 756, and New York seems to have modified the general rule in Wahrman v. Board of Education of City of New York, 187 N. Y. 331, that case, however, being decided upon a record which, it would appear, precluded the court from following the general rule because of the absence of an exception to the charge given to the jury.

The cases cited in the briefs fail to disclose that the Supreme Court of Illinois has never departed from the general rule, but that on the contrary it has rigidly adhered thereto. Kinnare v. City of Chicago, 171 Ill. 332; Brenan v. People ex rel. Kraus, 176 Ill. 620; Bradbury v. Vandalia Levee & Drainage Dist., 236 Ill. 36; People ex rel. Biddison v. Board of Education of Paris Union School Dist., 255 Ill. 568; Johnston v. City of Chicago, 258 Ill. 494.

The plaintiff suggests that this rule has ceased to control by reason of the enactment in April, 1917, of amendments to the school laws of this State, which confer certain corporate powers on the Board of Education, such as that it may sue and be sued, etc. These amendments, however, do not disclose any change in the policy of the State with reference to the use of the school board as an arm of the State government, and in People v. Bither, 231 Ill. App. 301, this court said of this legislation: “None of these amendments, in our opinion, has any tendency to change the grounds of the Supreme Court’s holding that the board is a part of the municipal government.”

Our attention is called to Bedtke v. City of Chicago, 240 Ill. App. 493, indicating the view that the doctrine of the nonliability for torts where municipalities act as an arm of the State government arises from a misconception of the early law. We are not disposed to disagree with that decision or take issue on the statement there made obiter as to the reasons for the earlier statement of the law. However, the doctrine of the nonliability of such municipalities when acting in a governmental capacity is so firmly fixed in the law of this -State that only a statute expressing the intention of the legislature so to do can change it.

For the reasons indicated the judgment- of the municipal court is affirmed.

Affirmed.

McSurely, P. J., and Johnston, J., concur.


author: Mr. Presiding Justice Partlow

text:
    B. A. Knight, Appellant, v. Frank M. Blumenshine, Appellee.
    Gen. No. 7,679.
    1. Incompetents and delinquents — when contract with spendthrift void. Under Cahill’s St. eh. 86, H 14, an attorney, who makes a contract for fees on shares with one who has been legally declared a spendthrift, is bound thereby, but contract is void as to the spendthrift.
    2. Incompetents and delinquents — when contract with spendthrift not ratified. A contract void because made by a spendthrift under legal disability is not ratified by his turning over money payable under the contract to the other party immediately upon being restored to his rights.
    Appeal by plaintiff from the Circuit Court of Winnebago county; the Hon. Earl D. Reynolds; Judge, presiding. Heard in this court at the October term, 1926.
    Affirmed.
    Opinion filed December 17, 1926.
    Rehearing denied February 1, 1927.
    B. A. Knight, pro se; John R. Snively, of counsel.
    Large & Reno, for appellee.
   Mr. Presiding Justice Partlow

delivered the opinion of the court.

Appellant, B. A. Knight, filed his bill in the circuit court of Winnebago county against appellee, Frank M. Blumenshine, for the cancellation of a certain contract, and for an accounting to ascertain what amount, if any, was due appellant upon the cancellation of the contract. Appellee filed an answer. There was a hearing in open court before the chancellor and a decree was entered finding that the contract was void from the beginning; that it had never been ratified by appellee; that there was due from appellant to appellee $763.27. From that decree this appeal has been prosecuted.

On October 7, 1920, appellee, in the county court of Winnebago county, was declared a spendthrift, and the Peoples Bank & Trust Company of Boclcford, Illinois, was appointed as his conservator and continued to act until July 22,1925.

There is evidence tending to show that all of the time appellee was under disability, appellee made contracts for his own employment, performed services, collected his pay, carried on his personal business in the same manner as he had done before he was declared a spendthrift, and at no time did his conservator attend to his personal affairs.

During the period of disability appellee applied to appellant, who was a lawyer, for assistance in being restored to his legal rights. He called at the office of appellant many times to consult him with reference to this matter. Appellant claims that appellee represented that he, appellee, had been induced to convey his interest in two houses and lots in Washington, Illinois, which he had inherited from his father; that he had received no consideration for the conveyance and he wanted suit brought to recover his share of the property. One time during the period of disability, appellee wanted appellant to bring suit against his conservator and its attorney to recover money which they had received for services on the ground that appellee was illegally placed under disability because of the fact that the jury which heard his case was composed entirely of women. Appellant refused to commence these suits and advised appellee that he should take an appeal from the judgment of the county court. Appellee tried to raise money to pay the costs of an appeal but was unable to do so. Appellant claims that appellee requested him to say nothing about the Washington, Illinois, property to his conservator or to its attorney, for the reason that he was afraid his conservator would try to defeat the restoration of appellee to his legal rights.

On March 27, 1925, while appellee was still under conservatorship, appellant entered into a written contract with appellee which purported to employ appellant as attorney to represent appellee in an attempt to be restored to his legal status. Appellee was to pay appellant 25 per cent of all of his estate for such services. The conservator was not consulted with reference to this contract and knew nothing about it at the time it was signed.

On May 27, 1925, appellee filed- a petition to be restored to his rights and for the removal of the conservator. On June 8,1925, the conservator entered its appearance and waived service. On June 16, 1925, there was an uncontested hearing and the jury returned a verdict finding appellee should be restored to his rights under the statute and that the conservator should be discharged. On July 22, 1925, a written order was filed in court to that effect.

At that time all the property of appellee consisted of $1,236.08 in cash. On the same day the order was entered, the conservator gave appellee a check for the amount due, which check was cashed by appellee and the money taken to the office of appellant. Appellant kept $1,000 and gave the balance of $236.08 to appellee, together with a receipt which stated that the $1,000 was to apply on his contract for attorney’s fees. Appellant told appellee that his total charge for services was $1,146.50, and that appellee might pay the balance of $146.50 as soon as he was able. Appellant retained the $1,000 for several weeks and then informed appellee that he had made a mistake, that his total charge was $838.29, and that appellee was entitled to a rebate of $161.73, which was subsequently paid to appellee by appellant. There is evidence tending to show that after this payment was made, appellee endeavored to get appellant to return some of the money, had an attorney demand that appellant pay the balance of the money less a reasonable fee for Ms services, and that appellant refused to pay.

Appellant claims that at no time did appellee raise any point about the invalidity of the contract and did not do so until he had received substantially all of the benefits under the contract with appellant. After appellee was restored to his rights, he and appellant went to Washington, Illinois, to investigate the facts concerning the two houses and lots. Later appellee planned to make a trip to Washington and Pekin, Illinois, with appellant for the purpose of commencing an action to recover this property. The evidence shows that prior to the appointment of the conservator, the Washington, Illinois, property had been conveyed by appellee together with other heirs, and that the transaction had been entirely closed before that proceeding.

Appellant claims that the settlement of $838.27 included 25 per cent of the value of appellee’s interest in the Washington property; that he first figured the value of the two houses and lots at $13,332, one-fourth of which belonged to appellee. Later he claims he discovered- there were six heirs interested in the property instead of four and that he divided the value of the property at Washington into six parts and retained one-fourth of the value thereof.

Appellee testified that he told appellant nothing about the houses at Washington, Illinois, before or at the time the agreement for attorney’s fees was signed, and that he never told appellant he would give him 25 per cent of the value of the property at Washington, Illinois. The evidence tends to show that appellee had never received an education beyond the eighth grade and was not acquainted with business methods. He had worked on a farm since boyhood, was an ex-service man, and had been in poor health.

Hpon the hearing appellant testified that he wanted the contract canceled and he wanted the court to determine whether he was to have any pay under the contract, and if so, he wanted an accounting to ascertain how much was to he paid; that upon the cancellation of the contract he was willing to return to appellee any money that was due, and that his services were worth $200. Several witnesses testified to the value of the services performed hy appellant. The evidence showed that he was only engaged in the trial of the case in the proceeding to have the conservator discharged for a period of about two hours. Some of the witnesses testified that he was not entitled to any compensation, while others testified that he was entitled to from $50 to $75. Outside of his own testimony appellant offered no evidence as to the value of the services. The decree found the value of the services were $75, which amount deducted from the $838.27, which appellant had received, left $763.27 which appellant was ordered to pay appellee, and the decree found that the contract was void and that it had never been ratified.

Many questions are argued by appellant why the decree should be reversed. It is not necessary to consider them in detail for the reason that a general statement of the law and facts is sufficient to determine the correctness of the decree entered by the trial court.

Section 14, chapter 86, of the statute [Cahill’s St. ch. 86, If 14] provides that every contract made by a spendthrift, after the verdict of a jury, shall be void as against the spendthrift, but the person making any contract with such spendthrift shall be bound thereby. In Bradshaw v. Lucas, 214 Ill. App. 218; Karr v. Rust, 217 Ill. App. 555; Sheldon v. Eakle, 251 Ill. 369, the rule is announced in accord with the provisions of the statute. Therefore, in this case, the contract entered into was void from the beginning except that appellant was bound thereby.

Appellant contends that this contract could be ratified by appellee and was ratified by him after he was restored to his rights. Several cases are cited in support of the contention that the contract could be ratified but upon examination it will be found that these are cases under the statute on insanity and not cases where a conservator had been appointed. It is not necessary for us to determine whether the contract could have been ratified for the reason that the chancellor found that the contract had not been ratified and we agree with that finding.

The evidence shows that immediately upon the order being filed restoring appellee to his rights that he went to the bank, got the money, and paid it to appellant. Up to the moment the order was filed, the contract was not voidable but was void and was of no force and effect. There is an entire absence of any evidence of any act on behalf of appellee or appellant which shows, or even tends to show, that after appellee was restored to his rights and before the money was paid, that he ratified this contract and sought to carry out its provisions. On the contrary the evidence shows that the contract at all times was considered by appellant as binding not only upon himself but also upon appellee, and that he carried out its provisions and collected the money on the theory that the contract was a valid and binding instrument. This theory is erroneous, and is not in accord with the evidence which sustains the finding of the chancellor that the contract was void and that it never was ratified after- appellee was restored to his rights and before the money was paid.

If the contract was void and was never ratified, the question is whether appellant was entitled to any compensation for his services. The bill was filed upon the theory that appellant wanted the contract canceled. He asked the court to determine what amount he would be entitled to receive as compensation for his services. His testimony was that his services were worth at least $200. On the other hand, the evidence shows that the services rendered were worth from $50 to $75. The court allowed $75, and ordered appellant to pay the balance to appellee. The decree finds that the contract was void from the beginning, was never ratified, and appellant is ordered to pay .$763.27, each of which findings is correct and sustained by both the law and the evidence and the decree will be affirmed.

Decree affirmed.


text:
    Owen Anderson, Administrator of the Estate of Anton Kasprzak, Deceased, Appellee, v. Chicago, Rock Island & Pacific Railway Company, Appellant.
    Gen. No. 7,663.
    1. Evidence — weight of circumstantial evidence. To establish, by circumstantial evidence, the plaintiff’s theory that his intestate was going over a railway crossing when struck by a train, the facts must be so clearly related to each other that such is the only conclusion to be drawn.
    2. Railroads — sufficiency of evidence to show that pedestrian was on crossing when struck. Evidence that intestate’s body was found 15 to 100 feet from a railway crossing and his cap about 16 feet therefrom will not, standing alone, sustain the allegation that he was lawfully on the crossing when struck.
    3. Railroads — proof of allegation as to deceased being struck while on crossing. In an action against a railway for wrongful death, plaintiff must prove the allegation in his declaration that intestate was upon a highway crossing when struck by a train.
    4. Directing verdict — when statements on motion for, not proof. Statements on motions for directed verdict by a railway company on the ground of variance between proof and declaration, asserting there could be no recovery even conceding intestate was on the railway crossing when struck, do not furnish proof of that fact for plaintiff.
    5. Railroads — allegations necessary to sustain evidence. Plaintiff in an action against a railway company for wrongful death cannot show the condition of defendant’s board crossing, and its repair after the accident, as proof of circumstances surrounding the injury where he made no allegation in regard thereto in his declaration.

      6. Harmless and prejudicial error — when admission of evidence prejudicial. Admission of evidence that defendant’s board crossing was so defective as to catch decedent’s foot and hold it until he was killed by a train was reversible error, where such facts were not pleaded.
    7. Harmless and prejudicial error — when error in admitting evidence not cured. After evidence of a defective railway crossing was erroneously introduced, the court’s instruction that it must not be considered as proof of defendant’s negligence in killing plaintiff’s intestate since that had not been alleged in the declaration, did not cure the error.
    8. Death by wrongful act — evidence of care in absence of eyewitnesses. Proof, in the absence of eyewitnesses, that decedent was a sober and industrious man and in possession of his senses when he went on the railway track where he was killed does not offer the necessary proof that he was a prudent and careful man and thus establish freedom from contributory negligence.
    9. Harmless and prejudicial error — cure of error in admitting evidence. Error in admitting an ordinance in evidence is cured where the only counts based thereon are excluded from the consideration of the jury.
    10. Arguments of counsel — when improper. Permitting argument to the jury based upon an excluded ordinance was error.
    Appeal by defendant from the Circuit Court of La Salle county; the Hon. Edgar Eldredge, Judge, presiding. Heard in this court at the October term, 1926.
    Reversed and remanded.
    Opinion filed December 21, 1926.
    Rehearing denied February 24, 1927.
    Woodward, Hibbs & Pool, for appellant; Daniel Taylor, of counsel.
    L. 0. Browne, M. D. Morahn and Butters & Butters, for appellee.
   Mr. Presiding Justice Partlow

delivered the opinion of the court.

Appellee, Owen Anderson, as administrator of the estate of Anton Kasprzak, deceased, recovered a judgment for $5,000, in the circuit court of LaSalle county, against appellant, Chicago, Boclc Island & Pacific Railway Company, for the death of appellee’s intestate, and an appeal has been prosecuted to this court.

Appellant has two east and west main tracks through the city of LaSalle. Chartres Street and Creve Couer Street extend north and south and cross the tracks at right angles. Chartres Street is one block west of Creve Couer Street. There is a crossing at Creve Couer Street for vehicles. On the west side of Creve Couer Street there is a plank sidewalk about áy2 feet wide. About 25 feet east of Chartres Street there is a signal tower from which gates are operated at Creve Couer Street, which gates extend only over the vehicle crossing and not over the sidewalk. The depot of appellant is on the north side of the tracks about half a block east of Creve Couer Street. There is a signal post east of the depot.

The deceased lived in a house-boat along the Illinois and Michigan canal, just east of Creve Couer Street and south of the tracks two or three blocks. He was a section man for appellant. He went home about 5.00 p. m. on February 21, 1923, washed and ate his supper. About 6.30 he went to town and returned about 7.30 with some laundry. He again left home at 8.00 o’clock and his whereabouts from that time until he was killed does not appear from the evidence.

The undisputed evidence is that about 9.15 p. m. a westbound passenger train, consisting of 8 to 12 coaches, known as the Golden State Limited, went through LaSalle. The whistle was blown at the signal post east of the depot. The towerman started his signal bell ringing when the train whistled, and kept it ringing until the engine passed the tower. The whistle was blown a number of times between the depot and Chartres Street. The only direct evidence is that the train was running 25 miles per hour, although appellee contends that the facts and circumstances show that it was going 60 miles per hour. A man was struck near Creve Couer Street. The train was stopped with its rear end one or two rods west of the tower. The body of deceased was found along the tracks. One witness testified it was 70 feet west of Creve Couer Street, another testified it was 100 feet west, and still another said it was 15 to 20 feet west. A black corduroy cap was found 16 or 17 feet west of the crossing. The conductor found a shoe about 20 feet west of the body. The evidence does not show what was done with this shoe. The next morning one of the witnesses found a shoe on the westbound track about 12 or 15 feet beyond the end of the crossing. The shoe and strings were cut. The deceased’s right shoe was off, a right shoe was found, and it was the mate to the shoe deceased had on his left foot. One of the deceased’s legs was so mangled it was taken off, and the whole side of his skull was mashed.

The declaration consisted of four counts. The first count alleged that the decedent was passing along Creve Couer Street, and over the tracks, when a train running at a high, excessive, and dangerous rate of speed, in excess of the limit permitted by the ordinances of said city, struck and killed him. The second count charged that through the wanton, wilful misconduct, and gross negligence of appellant,'the train was driven over the crossing in a careless, dangerous, wanton and reckless manner, at a high and excessive rate of speed. The third count charged that there was in force in the city an ordinance which provided that no passenger trains should run at a greater rate of speed than 10 miles per hour, but that appellant wantonly and wilfully drove its train over said crossing 25 miles per hour. The fourth count alleged that appellant operated the train through the city over said crossing without ringing a bell or sounding a whistle, contrary to the statute.

At the close of appellee’s evidence, appellant moved for a directed verdict on the ground that there was a variance between each count of the declaration and the proof. The motion was denied. Appellant then moved to exclude the evidence under each count, "which motion was sustained as to the first, third and fourth counts and overruled as to the second. Appellant rested without introducing any evidence, and thereupon the various motions as to the second count were renewed, were overruled, and appellant asked for a directed verdict under the second count, which motion was denied.

Bach count alleged that deceased was on the crossing at the time he was killed. This was a material allegation and the burden was on appellee to prove it. There is no direct evidence on this point. He left home at 8.00 o’clock and was not seen again until he was found dead. No one saw him at the crossing, near it, going towards it, or in its vicinity. There were no blood stains on the crossing and no evidence that the body had been struck or dragged. He may have been east of the crossing, west of the crossing, or on it, for all the evidence shows. His position at the time he was struck could have been established by circumstantial evidence, but where circumstantial evidence is used to establish a material fact, the proof must be based on something more than mere guess, conjecture or surmise. A theory cannot be said to be established by circumstantial evidence, nnless the facts relied on are of such a nature, and are so related to each other, that it is the only conclusion that can reasonably be drawn therefrom. Savoy Hotel Co. v. Industrial Board of Illinois, 279 Ill. 329; Ohio Bldg. Safety Vault Co. v. Industrial Board of Illinois, 277 Ill. 96; Condon v. Schoenfeld, 214 Ill. 226; O'Connor v. Aluminum Ore Co., 224 Ill. App. 613.

In support of the contention that the evidence was sufficient to show that deceased was on the crossing at the time he was struck, appellant cites Follett v. Illinois Cent. R. Co., 209 Ill. App. 81; Follett v. Illinois Cent. R. Co., 200 Ill. App. 289; and Chicago, B. & Q. R. Co. v. Gunderson, 174 Ill. 495. In the first two cases two men were killed in the same accident. They were seen on the crossing, a very short time before the accident, waiting for a train to pass. Blood spots and evidence of the dragging of the cinders were found just south of the crossing. In the last case cited the deceased was seen at a double track crossing waiting for a long freight train to pass. Just as the rear of the train passed, he was killed by another train which came from the opposite direction. In each of these eases it was held that the evidence was sufficient to establish the fact that the persons killed were on the crossing at the time of the accident. In the case at bar, however, there is an entire absence of any such evidenco.

In Welsh v. Erie & W. Val. R. Co., 181 Pa. St. 461, 37 Atl. 513, the deceased was found lying a few feet from the crossing between the tracks. No one saw him on the crossing. Although near to it, he was not on it when found. No one saw him struck by the train. The court said: “To make the connection, we must presume he was thrown from the crossing to the track, and further presume he was lawfully upon the crossing when struck. If he had been seen walking upon it, or even going on the highway towards it, the jury might have found that he was lawfully upon it. The law does not presume that the presence of a person upon a railway track is lawful. It will presume that a traveler upon a highway leading to a railroad-track crossing is lawfully upon the track for the purpose of crossing it; but, if only found there, he may have been there as a mere loiterer, or he may have been a trespasser walking on the ties to reach a destination not touched by the highway.” The court held that the evidence was not sufficient to show that he deceased was on the crossing.

The only evidence in this case that deceased was struck on the crossing was that his body was found 15 to 100 feet west of the crossing. His cap was found 16 to 17 feet west of the crossing and a shoe was found 20 feet west of the body.. The entire contention of appellee rests solely upon appellee’s theory, without any evidence to support it, that he was on the crossing at the time he was struck. If he was not struck on the crossing, but was struck east or west of the crossing, then a material allegation of the declaration was not established by the evidence. If appellee saw fit to go to trial upon a declaration of this kind, he was bound to prove the charge as alleged in the declaration, and he cannot recover upon a theory not alleged in the declaration or established by the evidence.

Appellee insists that appellant should not be allowed to contest the fact that deceased was on the crossing, for the reason that by their motions for a directed verdict they have repeatedly admitted that he was on the crossing at the time he was struck. The various statements of appellant in its motions were made in support of its contentions that there was a variance between the declaration and the proof, and that even conceding that the deceased was on the crossing, and that his foot was caught in the defective sidewalk, that there was such a variance as prevented a recovery. These statements of appellant did not take the place of proof of the fact that deceased was on the crossing when he was struck.

The court, over the objection of appellant, admitted evidence that some of the planks on the board walk on the west side of Creve Couer Street were rotten and had holes in them, and that on the morning following the accident, the servants of appellant tore up the old planks and put in new ones. It is insisted by appellee that the evidence as to the defective condition of the sidewalk was admitted merely for the purpose of showing surrounding conditions and circumstances, and that where evidence is competent for one purpose, though incompetent for another, it is nevertheless admissible ; that it has been held competent to prove the condition of a sidewalk a few days after the accident and also that the sidewalk was repaired some days after the accident, to establish the condition of the sidewalk at the time of the accident, and East St. Louis & S. R. Co. v. Zink, 229 Ill. 180; City of Chicago v. Jarvis, 226 Ill. 614; City of Taylorville v. Stafford, 196 Ill. 288; City of Chicago v. Dalle, 115 Ill. 386, are cited in support of this contention. The cases cited are not applicable here. The facts in each of those cases were entirely different from the facts here presented. The declaration did not allege that the sidewalk, or its defective condition, had anything to do with the accident. A pleading is intended to disclose a cause of action or defense, and a party has a right to know what he is charged with so as to enable him to properly make out a case and to prevent his being taken by surprise by the evidence at the trial. Wabash R. Co. v. Billings, 212 Ill. 37.

Neither do we think this evidence was offered merely for the purpose of showing the surrounding conditions and circumstances. Appellee’s theory of the proof is that the foot of the deceased was so caught and held in the defective sidewalk that he could not remove himself from the path of the approaching train, and it was for this reason that appellee offered proof as to the defective condition of the sidewalk. This is apparent from the argument of appellant in his brief when he says: “There was a hole in the plank which was a part of the crossing over the track at the time of the accident and decedent’s foot became fastened in it. That fact was proper to be shown by the best evidence the circumstances afforded. If the plank was rotten and had a hole in it by reason'thereof and was then being replaced the next morning, these facts had a tendency to establish the fact that the same condition existed at the time of the occurrence.” It is apparent from this argument that the evidence was offered not for the purpose of showing the surrounding conditions, but for the purpose of establishing appellee’s right to recover. If he desired to recover on the ground that the sidewalk was defective, and that deceased caught his foot therein, he should have so declared in his declaration. Without such an allegation, the proof was not admissible, and constituted not only reversible error, but it also constituted a variance between the declaration and the proof. Such evidence was especially damaging to appellant in view of the fact that there was no direct evidence tending to show that deceased was even on this sidewalk, or on this crossing. The court apparently entertained this view for the reason that by the tenth instruction on behalf of appellant, the jury was told that this evidence must not be taken into consideration in determining the liability of the defendant, as the plaintiff had made no allegation of such negligence in his declaration. The giving of this instruction did not, however, correct the error caused by the admission of the evidence.

Appellant insists that the evidence does not show that the deceased was in the exercise of due care. A plaintiff is not permitted in cases where there are no eyewitnesses to merely prove the accident which resulted in death, and then rely upon the instinct of self-preservation common to all men to establish the exercise of due care and caution on the part of the deceased. It is incumbent upon the plaintiff, in such a case, to prove the habits of the deceased as to sobriety, prudence, the exercise of care and caution in the ordinary affairs of life, and as to any other particular which would tend to throw light upon the question of whether, at the time of the fatality, he was likely to have been in the exercise of ordinary care. In the absence of any proof whatever which would tend to show that the deceased was in the exercise of ordinary care for his own safety, the appellee was not entitled to recover. Casey v. Chicago Ry. Co., 269 Ill. 386; Stollery v. Cicero & P. St. R. Co., 243 Ill. 290. The exercise of dne care hy. the deceased must he established by the highest proof of which the case is capable. Collison v. Illinois Cent. R. Co., 239 Ill. 532; Illinois Cent. R. Co. v. Nowicki, 148 Ill. 29; Chicago & A. Ry. Co. v. Carey, 115 Ill. 115; Missouri Furnace Co. v. Abend, 107 Ill. 44. Appellee offered evidence to show that the deceased was sober when he left the house; that he sometimes drank a glass of whiskey but he was always sober, and was never known to get drunk; that he always worked; that he worked for the Illinois Zinc Company for 30 years and for the appellant as a section hand for five years, and was in possession of all of his faculties. Appellee insists that this evidence was sufficient to establish that the deceased was in the exercise of due care, and in support of this contention cites Missouri Furnace v. Abend, 107 Ill. 44; Chicago, R. I. & P. R. Co. v. Clark, 108 Ill. 113; Toledo, St. L. & K. C. R. Co. v. Bailey, 145 Ill. 159; Chicago, B. & Q. R. Co. v. Gunderson, 174 Ill. 495; Cleveland, C., C. & St. L. Ry. Co. v. Keenan, 190 Ill. 217; Chicago & A. R. Co. v. Wilson, 225 Ill. 50; Moore v. Bloomington, D. & C. R. Co., 295 Ill. 63. Upon examination it will be found that none of these cases support this contention. In each of them there was evidence, either direct or circumstantial, that the deceased was a careful, prudent man. The law recognizes the fact that there are persons who are careless, heedless and inattentive, as well as those who are careful and prudent. Collison v. Illinois Cent. R. Co., supra. The deceased may have been sober, industrious, and in possession of all of his faculties, and not have been a prudent and careful man in the ordinary affairs of life. The evidence offered did not come within the rule announced in the authorities above cited.

Over the objection of appellant an ordinance of the city of LaSalle was admitted in evidence limiting the speed of passenger trains to 10 miles per hour. Appellant insists that the Public Utilities Act [Cahill’s St. ch. 111a] has taken from cities and villages the power to regulate the speed of trains, and in support of his contention cites Village of Atwood v. Cincinnati, I. & W. R. Co., 316 Ill. 425, and Northern Trust Co. v. Chicago Rys. Co., 318 Ill. 402. In those cases the Public Utilities Act was under consideration and it was held that that act superseded the right of cities and villages in certain respects with reference to railroads. We do not think that question, however, is material in this case, or properly before this court. The first and third counts of the declaration were based on this ordinance, but the second count was not so based. The evidence under all counts except the second was excluded, therefore, the court excluded this ordinance, and the counts upon which it was based were no longer before the court or jury for consideration. If there was error in admitting the ordinance, it was obviated when the ordinance was excluded. After this evidence was excluded, the court permitted counsel for appellee to argue the ordinance to the jury. In this respect we think the court was in error and should have limited the argument to the evidence which had been admitted and not excluded.

It is contended that the judgment is contrary to the evidence, and that appellant was not guilty of the negligence charged in the declaration. Because of the fact that the case may have to be tried again, we express no opinion as to the weight of the evidence.

It is insisted that counsel for appellee in the argument to the jury made improper remarks and our attention has been called to several of them. In most instances the court sustained the objection, and possibly in only one instance overruled the objection. Counsel in their argument should be limited entirely to the questions at issue and should not be permitted to go outside of the evidence and make prejudicial, remarks. If the only error were the argument to the jury, we would not feel inclined to reverse the judgment.

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

Reversed and remanded.


author: Mr. Presiding Justice Taylor

text:
    The People of the State of Illinois, Defendant in Error, v. Emma Callier, Plaintiff in Error.
    Gen. No. 30,701.
    1. Intoxicating liquor — when information sufficient. An information charging that defendant had in her possession intoxicating liquor for unlawful and beverage purposes, and not for medicinal, sacramental or mechanical purposes, is sufficient under the Illinois Prohibition Act, Cahill’s St. ch. 43, If 3.
    2. Arrest for crime — necessity for warrant. Evidence that two men coming out of a building appeared intoxicated is not sufficient to prove a criminal offense had been committed, nor that a woman living in one of the apartments of the building had committed an offense so as to permit an officer to arrest her without warrant under Cahill’s St. ch. 38, jf 681.
    3. Criminal procedure — when jurisdiction acquired though arrest illegal. The court acquires jurisdiction over one who, even though unjustifiably arrested without warrant, submits to the court’s jurisdiction without challenging the manner of arrest.
    4. Criminal procedure — when motion to suppress evidence should be passed on. A motion by defendant, supported by apt petition, to suppress evidence against her of the seizure of intoxicating liquor in her apartment without warrant and without proof of offense committed, should be passed on before taking evidence, and allowed and the seized liquor impounded.
    5. Searches and seizures — when unreasonable. The entry of police into defendant’s flat without a search warrant on the assumption that two apparently intoxicated men coming from the building were proof of prohibition law violation by defendant is a violaton of defendant’s legal rights and equally so their seizure of liquor therein,

      6. Intoxicating liquor — when guilt not sufficiently established. The obvious improbability of one accused of unlawfully having intoxicating liquor in her possession admitting to the officer who unlawfully arrests her that she has it for sale, which she denies on the stand against the sole evidence of the officer, warrants the court in concluding that defendant was not proved guilty beyond a reasonable doubt.
    Error by defendant to the Municipal Court of Chicago; the Hon. A. M. Eberhardt, Judge, presiding. Heard in the third division of this court for the first district at the March term, 1926.
    Reversed.
    Opinion filed March 2, 1927.
    William H. Haynes, for plaintiff in error.
    Egbert E. Crowe, State’s Attorney, Edward E. Wilson and Clarence E. Nelson, Assistant State’s Attorneys, for defendant in error.
   Mr. Presiding Justice Taylor

delivered the opinion of the court.

On June 17, 1925, an information, signed and sworn to by one Walter O. Storms, was filed in the name of the People, in the municipal court of Chicago, containing the following charges: That Emma Callier, the defendant,, on June 16, 1925, Chicago, “then and there wilfully, knowingly and unlawfully within the corporate limits of the City of Chicago, Co. of Cook, and State of Ill., have in his possession, intoxicating liquors containing more than one-half of one per cent of alcohol by volume, said liquor being for unlawful and beverage purpose and not for medicinal, sacramental or mechanical purpose. In viol. sec. 3 Ill. Prob. Act.”

An order was entered on the same day providing that the defendant be put in bail in the sum of $1,000; and that as the defendant was arrested without warrant, capias or other writ, and being present in open court, she be taken into custody by the bailiff of the court to answer the information. The defendant, waiving trial by jury, and being duly arraigned, pleaded not guilty. There was a trial before the court, without a jury, and the court found the defendant guilty in manner and form as charged in the information. Judgment was entered against the defendant that she was guilty of the criminal offense of “unlawfully having*in her possession intoxicating liquor for beverage purposes and not medicinal, sacramental or mechanical purposes without a permit from the Attorney General of the State of Illinois.” The defendant was thereupon fined in the sum of $100 and costs of suit. Motions for a new trial and in arrest of judgment were made on behalf of the defendant and overruled. This appeal is from the foregoing judgment.

At the beginning of the trial, counsel for the defendant moved the court to suppress the evidence, and, in support of the motion, presented a sworn petition of the defendant. The court ruled that the trial should go on, and stated that at the close of the evidence he would rule upon the defendant’s motion.

The defendant was then arraigned, and the clerk of the court then stated to the defendant that she was charged with the violation of section 3 of the Prohibition Act [Cahill’s St. ch. 43, H 3], and asked whether she was guilty or not guilty, to which she responded, “Not guilty.”

Counsel for the defendant then stated that he was undertaking to make a motion to quash the information, and that meanwhile the clerk had no right to arraign the defendant. The court stated, “Make the motion now, and it will be all right.” Counsel for the defendant then moved the court to quash the information. That motion was then overruled. Following that, the petition to suppress the evidence was filed.

The petition to suppress the evidence, signed and sworn to by the defendant, states, among other things, that she resides in an apartment on the premises known as 467 Bowen Avenue, Chicago; that on June 16, 1925, police officers of the city entered her apartment between 10 and 12 p. m. at night, without having any warrant or lawful authority so to do; that they then and there searched the premises and took from the premises a quantity of “spirituous liquors,” which they claimed contained more than one-half of one per cent of alcohol, by volume; that their search and seizure was-made without any warrant or authority so to do, in violation of the fourth and fifth amendments to the Constitution of the United States, and sections 6 and 10 of article 2 of the Constitution of the State of Illinois, and that the'said liquors are now in the custody of the police officers, and the State’s attorney of Cook county; that they propose to use the said liquor in evidence against her in the trial of her case.

The petition asked that the trial court inquire into the facts as to whether or not the liquor which was seized, and to be introduced in evidence, was taken by criminal search and seizure; that an order be entered requiring the police officers and the State’s attorney to return to her the liquor taken from her- dwelling or house in the nighttime in disregard to her constitutional rights, or that the same be impounded by the court.

The evidence in the case consists of the testimony of Walter Storms, a police officer, and that of the defendant. The evidence of Storms is substantially as follows: On Tuesday night, June 15, between the hours of 10 and 12 p. m., he and two other officers were passing the defendant’s house, at 467 Bowen Avenue, in Chicago, and saw two men coming out of the premises who appeared to be intoxicated. “We became suspicious and then we entered the premises and went to the second floor where Emma Callier lives, and we found her in her flat and she was undressed and apparently ready to retire. Another woman was in the flat asleep in bed in the back room. A man was in the flat, but this man had just gone into the flat ahead of the officers.” There was nothing disorderly going on in the house at the time they went in. They looked through the premises and searched the flat, and finally came to a closet, in which the liquor in question was found. They asked the defendant to open the closet and she opened it. After they seized the liquor, the defendant admitted she had it there for sale. Neither he nor the other officer had a search warrant. They went in because they saw a man coming out who appeared to be drunk. The liquor which they took was not in view until after the closet was opened. The closet was locked, and they told the defendant if she did not open the closet they would break it open; that the defendant opened the closet; that they then searched and found the liquor in the closet.

It was agreed between counsel that the liquor in question contained more than one-half of one per cent of alcohol by volume.

At that point in the trial, counsel for the defendant reiterated his motion to suppress the evidence, on the ground that the house was entered without a search warrant, or other process. The court stated that the motion at that time would be overruled, but for the sake of the record he would still hold it under advisement until all the other evidence was in.

The evidence of the defendant is substantially as follows: Between 10 and 12 p. m. on June 16, 1925, three police officers came into her flat, without knocking on the door, and without being admitted by her, ‘ ‘ They just broke in — just walked right in without being admitted by me or anybody else ”; that one of them was Walter Storms; the other two, she did not know. As soon as they got into her flat they proceeded to search it, and searched through the furniture and the' drawers in the bureau and chiffonier, and the closets in every room, all through the flat. She did not give them permission to search the flat, but told them they had no right to search her flat unless they had a warrant. She did not-help them to search the flat, and did not open the closet door for them. At the time they came in, she was undressed preparing to go to bed. She asked them to show her their search warrant or their authority to search her house. They told her they were police officers and they did not need any warrant, and that they were going to search her flat anyway. The closet was locked, and they could not open it. They asked her to open the closet and she refused to do so. Officer Storm and the other officers told her if she did not open the closet they would put her in jail. Officer Storm said, “You open that closet or we’ll take you to the police station just as you are now, without a chance to dress.” They said they would break the closet door down if she did not open it. She again asked them to show her the warrant, with the result that they only abused and cursed her and threatened to strike her, and, being afraid they would injure her, she unlocked the closet door, but refused to open it. Then the officers opened the door and searched the closet. She did not tell them that she had whisky there for the purpose of sale. There was no disorderly conduct of any kind in her house while the officers were in there, except what the officers caused by threatening her when searching through the house. She did not let the officers into her flat or house, nor give them permission to come in; that “they just came in, as rough as they could be. Just forced the door and came on in, that is all.”

At the close of the evidence, counsel again pressed his motion for suppression of the evidence, and it was overruled. Judgment was then entered, as stated above, and motions for a new trial and in arrest of judgment were made and overruled.

It is contended for the defendant (1) that the information is substantially defective; (2) that there was no justification for the defendant’s arrest; (3) that the motion to suppress certain evidence, against the defendant, should «have been allowed; and (4) that the defendant was not proven guilty beyond a reasonable doubt.

(1) Is the information substantially defective? The information, as stated above, charged the defendant with having in her possession “intoxicating liquors containing more than one-half of one per cent of alcohol by volume, said liquor being for unlawful and beverage purpose and not for medicinal, sacramental or mechanical purpose. In Viol. sec. 3 Ill. Prob. Act.”

Section 3 of the Illinois Prohibition Act [Cahill’s St. ch. 43, H3] is as follows: “No person shall * * * manufacture, sell, barter, transport, deliver, furnish or possess any intoxicating liquor except as authorized in this Act.” It will be observed that the information here — unlike the information in the People v. Peiscs, 226 Ill. App. 363 — charges that it was possessed for beverage and unlawful purposes. We think that is sufficient. In the Peiscs case, supra, after considering the effect of sections 3 and 28, as to possession, and sections 4, 8 and 40, which permit possession under certain circumstances, the court said: “An information which merely alleges possession of intoxicating liquors does not charge any crime. The charge must go further. It must allege that the possession of the liquor was intended for use in violating the Prohibition Act, or was unlawfully acquired by the accused, or was held in violation of some express provision of said act. ’ ’ The information in the instant case not only recited that the defendant had it in her possession, but that she had it in her possession for unlawful, and not for medicinal, sacramental or mechanical purposes. We think that constitutes a sufficient charge of a violation of the statute.

(2) Was there justification for her arrest? Paragraph 681, div. 6, ch. 38, Cahill’s St. 1925, is as follows:

“An arrest may be made by an officer or by a private person without warrant, for a criminal offense committed or attempted in his presence, and by an officer, when a criminal offense has in fact been committed, and he has reasonable ground for believing that the person to be arrested has committed it.”

We know of no case, and none has been cited — the brief for the People contains no citation whatever on the subject — that holds that “seeing two men who appeared to be intoxicated coming out of an apartment building” is evidence that “a criminal offense has been committed” in a particular apartment in the building, and gives reasonable ground for believing that a particular person in that apartment has committed it. The fact that the two men coming out of the building appeared to be intoxicated is not, in and of itself, sufficient evidence that “a criminal offense has in fact been committed,” nor, even if it were, was there “reasonable ground for believing” that the defendant-living at the time in one of the apartments, with the outside door shut and locked — committed the criminal offense. We are of the opinion, however, that even though no warrant was issued, and the evidence showed that .the arrest was not justified, yet, the defendant being in court without challenging the mode or manner of her arrest, and the written information setting forth the offense charged, being presented against her, the court thereby had jurisdiction. People v. Guthman, 211 Ill. App. 373.

(3) Having obtained jurisdiction, the question arises whether the court, in limine, should have heard and allowed the motion — supported as it was by an apt petition — to suppress the evidence as to the intoxicating liquor that was seized and intended to be used in evidence against her. During the actual trial, the court held the motion in abeyance, and at the close, but before judgment, announced that it was overruled. We are of the opinion that the motion not only should have been heard and passed upon before' the taking of evidence, but should have been allowed, and that the court should have impounded the intoxicating liquor and refused its use as evidence in the trial. People v. Castree, 311 Ill. 392; People v. Cade, 235 Ill. App. 587.

In Gindrat v. People, 138 Ill. 103, the court said, “Courts, in the administration of the criminal law, are not accustomed to be over-sensitive in regard to the sources from which evidence comes, and will avail themselves of all evidence that is competent and pertinent and not subversive of some constitutional or legal right.” In the Castree case, supra, the court said, referring to the language just quoted from the Qindrat case, “The last clause is important and is vital to the question now under consideration, for to receive the evidence in this case would be subversive of the plaintiff in error’s constitutional right to be secure in his person, houses, papers and effects against unreasonable searches and seizures.”

It was held in People v. Brocamp, 307 Ill. 448, as stated by Mr. Justice Dunn in the Castree case, that “where the defendant makes timely application, before the beginning of the trial, for an order directing the return to him of the property or papers unlawfully seized, the court should hear and determine the question of the legality of the seizure, and if it erroneously refuses to do so and receives the property in evidence against the defendant over his objection, it is an error for which the judgment of conviction must be reversed.”

As to the question, whether the motion should have been allowed and the evidence suppressed, we are of the opinion that the entry of the officers into the flat of the defendant, without a search warrant, was in plain violation of the law, and that their seizure of the liquor, which they found there in a closet, was in plain violation of the rights of the defendant. People v. Castree, supra, and cases therein cited.

It is urged that the defendant was not proven guilty, beyond a reasonable doubt, of the crime charged in the information.

As the statute does not make mere possession an offense, the question arises whether the evidence proves beyond a reasonable doubt that the defendant not only had the intoxicating liquor in her possession, but had it for purpose of sale, or some other illegal purpose. Storms, the police officer, testified that she told him that she had it for sale. That, she denies, and there are no witnesses that in any way tend to corroborate Storms; while, on the other hand, it seems highly improbable, considering the way the officers got into the flat, and what, they did after they got in there, that any such statement by the defendant was made. It is true that the trial judge saw the witnesses, but, considering all the evidence, there is such obvious improbability in the story of Storms, while that of the defendant is, at. least, reasonably plausible, that we are constrained to conclude that illegal possession was not proved beyond a reasonable doubt.

For the foregoing reasons, the judgment is reversed.

Reversed.

O’Connor and Thomson, JJ., concur.


text:
    William R. Ellison et al., trading as J. B. Ellison & Sons, Defendants in Error, v. A. E. Thomason, Plaintiff in Error.
    Gen. No. 31,251.
    1. Bankruptcy — when not a defense against revivor of judgment. Defendant cannot defend against scire facias to revive a judgment against him on the ground of a bankrupt’s discharge obtained before the original judgment was entered after failing to plead the discharge against the entry of that judgment.
    2. Appeal and ebbob — when amount of bond not improper on appeal from revivor of judgment. Requiring a bond of $2,000 for appeal from a revivor of a judgment for $1,134.31 was not error under Cahill’s St. ch. 110, If 92.
    3. Motions and orders — when order may he vacated after term. If a motion to vacate an order is made within the term and hearing thereon extended to the succeeding term, the court retains jurisdiction to vacate the order at the succeeding term,
    Error by defendant to the Municipal Coiirt of Chicago; the Hon. Edgar A. Jonas, Judge, presiding. Heard in the third division of this court for the first district at the October term, 1926.
    Affirmed.
    Opinion filed March 2, 1927.
    B. M. Shafener, for plaintiff in error.
    Frederic L. Goff, for defendants in error.
   Mr. Presiding Justice Taylor

delivered the opinion of the court.

This is a proceeding by scire facias to revive a judgment for $1,134.31, obtained by the plaintiffs Ellisons, against the defendant Thomason, in the municipal court, on July 10, 1913.

The writ of scire facias to revive the judgment was served on the defendant on February 10,1926, and, on February 15, 1926, the defendant filed his appearance.

On February 23, 1926, the defendant filed an affidavit of merits in which he alleged that on May 13, 1913, he was discharged in bankruptcy from all claims, including the claim of the plaintiffs, due and owing on January 4, 1913. This affidavit being stricken, on March 20,1926, he filed an amended affidavit of merits alleging that the petition in bankruptcy was filed on January 14, 1913; that the schedule giving a list of creditors included the plaintiffs’ claim of $1,134.31; that on May 5, 1913, he was granted a discharge from all claims which existed on January 4, 1913; that the claim of the plaintiffs existed prior to January 4,1913; and that by virtue of the bankruptcy proceedings and discharge, the plaintiffs were barred from prosecuting their claim.

On March 25, 1926, an order was entered reciting, among other things, that the amended affidavit of merits was stricken; that the defendant elected to stand on his amended affidavit of merits; that the defendant was defaulted for want of an affidavit of merits in scire facias to revive the judgment; and that the judgment of July 10, 1913, was revived for $1,134.31 and costs.

On April 24, 1926, the plaintiffs moved to vacate the order of March 25, 1926, and the court set the motion down for a hearing to be had on April 30,1926.

On May 3, 1926, it was ordered by the court that the order of March 25, 1926, be vacated and set aside, and that the affidavit of merits be stricken. The order also shows that the defendant elected to stand by his affidavit of merits. The order also shows that the defendant was “defaulted for want of an affidavit of merits on scire facias to revive the judgment,” and that “Judgment of July 10,1913 be revived for Eleven Hundred Thirty-Four and Thirty-One Hundredths Dollars ($1134.31) and costs.” The record then shows that the defendant prayed an appeal from the judgment and order, and that the appeal was granted on condition that the defendant file an appeal bond in the sum of $2,000.

The only defense set up in the amended affidavit of merits is that the discharge in bankruptcy released and discharged the defendant from the claim set forth in the scire facias proceedings; and it is contended for the defendant that the trial judge erred in striking the amended affidavit of merits and entering a judgment of revivor. It will be observed that the record shows that the plaintiffs’ suit was begun on November 27, 1912; that the defendant entered his appearance on December 27,1912; that the petition in bankruptcy was filed by the defendant on January 13, 1913; that on May 5, 1913, the defendant was discharged in bankruptcy from all debts and claims which existed on January 4, 1913; and that the plaintiffs recovered a judgment in this cause in the sum of $1,134.31 against the defendant on July 10, 1913, several months after the defendant was discharged in bankruptcy.

A similar chronology of facts is passed upon by the United States Supreme Court in Dimock v. Revere Copper Co. of Boston, Mass., 117 U. S. 559. In that case the suit was commenced on January 13, 1874; the petition in bankruptcy was filed on June 23, 1874; the discharge in bankruptcy was granted on March 26, 1875; and a judgment for the plaintiff was entered on April 1, 1875. In that case the court said:

“We are of the opinion that, having in his hands a good defense at the time judgment was rendered against him, namely: the order of discharge, and having failed to present it to a court which had jurisdiction of his case, and of all the defenses which he might have made, including this, the judgment is a valid judgment, and that the defense cannot be set up here in an action on the judgment. ”

In Brandenburg on Bankruptcy, section 273, 3rd Ed. (1903), which covers the National Bankruptcy Law of 1898, the law is stated as follows:

‘1 The mere filing of a petition in bankruptcy does not divest the jurisdiction of a state court over an action; but to affect such jurisdiction over pending actions, the adjudication or discharge must be pleaded, which may be done at any time after the institution of bankruptcy proceedings, but, if the bankrupt does neither, a judgment rendered against him is lawful and valid. ’ ’

Our attention is called to the case of Boynton v. Ball, 121 U. S. 457; but in that case the judgment was recovered against the bankrupt after the commencement of the proceedings in bankruptcy and before the discharge. It is, therefore, distinguishable from the Dimock case, supra. In the instant case, the defendant having failed to plead his discharge in bankruptcy, which would have been a valid defense, if pleaded at or before the time judgment was rendered, was in the same position that a defendant would be who had made a payment, or had received a receipt, or release, and yet failed to avail himself of his defense by an apt and seasonable plea. Having allowed the original judgment to go against him without any attempt to avail himself of his defense, the judgment became conclusive on the question of his indebtedness to the plaintiffs.

It is contended that the court erred in fixing the appeal bond at the sum of $2,000.

Paragraph 92, ch. 110, Cahill’s St. (1923), provides that a bond shall be given “in a reasonable amount, to secure the adverse party, to be fixed by the court, with sufficient security, to be approved by the court,” and contains the following: “If the appeal is from a judgment or decree for the recovery of money, the condition of the bond shall be for the prosecution of such appeal and the payment of the judgment * * * in case the judgment is affirmed. In all other cases the condition shall be directed by the court with reference to the character of the judgment, order or decree appealed from.” That being the law, we do not think it was error for the trial judge to fix the bond at the sum of $2,000.

It is further contended that, on May 3, 1926, the court was without jurisdiction to set aside the order which had been entered on March 25, 1926, more than 30 days having intervened. The record discloses, however, that on April 24, 1926, which was within 30 days after the judgment was rendered, the plaintiffs made a motion to vacate that order,' and that the hearing on that motion was continued until April 30, 1926, and that, thereafter, on May 3, 1926, the order complained of was entered, which vacated the order of March 25, 1926. The motion to vacate having been made within the judgment term, and the hearing on that motion having been extended to the succeeding term, the court still retained jurisdiction. Major v. Rand, 72 Ill. App. 279; Goodykoontz v. Kelly, 185 Ill. App. 165.

Finding no error in the record, the judgment is affirmed.

Affirmed.

O’Connor and Thomson, JJ., concur.