author: Mr. Justice Matchett

text:
    Omaha National Bank, Appellee, v. United States Fidelity & Guaranty Company, Appellant.
    Gen. No. 31,395.
    1. Suretyship — construction of bonds of surety company doing business for profit. The bonds of a surety company, doing business for profit, are to be construed as contracts of indemnity or insurance, and hence most strongly against the surety in suit against it on the bond.
    2. Attachment — judgment of not guilty in suit for wrongfully obtaining attachment as bar to suit on bond of defendant. A judgment of not guilty for a defendant in a suit for tort for wrongfully suing out an attachment does not bar the plaintiff in that suit from suing on the bond given by the said defendant.
    3. Attachment — right of real owner of property wrongfully attached to sue on attachment bond although not named as defendant. Under Cahill’s St. ch. 11, 1f 4, which becomes part of every attachment bond, the real owner of property wrongfully attached may sue on the bond given in the attachment cause, though not named therein as a defendant.
    4. Attachment — estoppel of surety to deny regularity of bond after making possible levy damaging real owner. Whether or not an attachment bond was defective in that the common-law trust suing out the writ was not legally represented on the bond by reason of the fact that it was signed by only one of its trustees, the surety company on the bond was estopped to deny its regularity by making possible the levy to the damage of the real owner of the goods, for which damage it became liable as well as upon the bond.
    Appeal by defendant from the Municipal Court of Chicago; the Hon. Frank M. Padden, Judge, presiding.
    Heard in the first division of this court for the first district at the October term, 1926.
    Affirmed.
    Opinion filed May 2, 1927.
    Rehearing denied May 16, 1927.
    Stedman, Kesler & Dingle, for appellant.
    Packard, Peckham & Barnes, for appellee.
   Mr. Justice Matchett

delivered the opinion of the court.

Plaintiff sued upon a bond executed by the defendant in an attachment suit theretofore brought in the municipal court of Chicago. There was a trial by the court, a finding of the issues against the defendant, and judgment in debt for the amount of the bond ($10,000) and damages of plaintiff assessed at $4,800. Motions for a new trial and in arrest were overruled and there was judgment on the finding.

The bond is in form as follows:

“Know all men by These Presents: That we, F. M. Orchard, E. C. Kessler, R L. Stancill, Edwin F. Felt, Frank T. Eddingfield, Charles R Straver and E. E. Loughborough, as trustees of Ellery Motors Company, a common-law trust estate, and United States Fidelity & Guaranty Company are held and firmly bound unto Patriot Motor Company, also known as Hebb Motors Company, a corporation, in the penal sum of Ten Thousand Dollars and no Cents. * * * The condition of this Obligation is Such, that whereas, the above bounden Ellery Motors Company has on the day of the date hereof, prayed an Attachment out of The Municipal Court of Chicago, at the suit of said Ellery Motors Company against the estate of the above named Patriot Motors Company, also known as Hebb Motors Company, a corporation, for the sum of Five Thousand Dollars and no Cents, and the same being about to be sued out of said Court, returnable on the 14th day of June, A. D. 1920.
“Now, if said Ellery Motors Company shall prosecute its said suit with effect, or, in case of failure therein, shall well and truly pay and satisfy said Patriot Motor Company, also known as Hebb Motors Company, a corporation, all such costs in said suit, and such damages as shall be awarded against said Ellery Motors Company, heirs, executors and administrators, in any suit or suits which may hereafter be brought for wrongfully suing out said Attachment, then the above obligation to be void; otherwise to remain in full force and effect.
“Ellery Motors Company (Seal)
By F. M. Orchard, One of its Trustees
“United States Fidelity & Guaranty Co. (Seal)
By Henry M. Marshall, Attorney in fact.”

The undisputed evidence tends to show that this bond was duly filed; that attachment proceedings were instituted on June 4, 1920; that several parties were served as garnishees, and that one of these parties answered that it had no properties in its possession except two sight drafts and bills of lading for a shipment of four motor trucks which were attached in that proceeding; that the cause was continued for ■service by publication, which was made in accordance with the statute; that the Omaha National Bank, plaintiff .herein, intervened in that proceeding, claiming the property which was attached, and secured a judgment for possession in its favor, and that the attachment suit was thereafter dismissed at the costs of plaintiffs; that thereafter the Omaha National Bank brought a suit in tort in the circuit court of Cook county against the plaintiffs named in the attachment suit; that the action was in trespass for the alleged wrongful suing out of the attachment and detention of the plaintiff’s property.

In that action the Omaha National Bank recovered a judgment against all the attachment plaintiffs as trustees and also against E. E. Loughborough individually for $4,800. F. M. Orchard and E. C. Kessler, who were also individually made parties to that suit in trespass, were found not guilty, and a judgment was entered in their favor against the plaintiff, Omaha National Bank, for costs. The judgment against Loughborough was by default.

While this judgment was offered in evidence in the present suit, the suit was based upon the attachment bond, not the judgment, and evidence was offered tending to prove damages to the amount for which judgment was rendered and the reasonableness of the finding as to the damages is not questioned.

The defendant contends that the obligations of a surety are to be strictly construed and cannot be extended or enlarged beyond the strict condition of his bond, citing to this proposition the recent case of City of Chicago v. Southern Surety Co., 239 Ill. App. 628, where this court, in opinion by the writer, so stated. We have examined the briefs submitted in that case and find that the appellant Surety Company urged that proposition of law, citing in support of it People v. Toomey, 122 Ill. 308; Orton v. City of Lincoln, 156 Ill. 499; People for use of Fleishman v. Sowell, 186 Ill. App. 617, and People v. Wilson, 169 Ill. App. 452.

The City of Chicago, plaintiff there, did not contend against the proposition and cited no authority to the contrary. While the point was properly in the case, it was not controlling and was evidently not so regarded either by counsel or the court. The proposition as there stated is evidently only a half truth, for the third division of this court in McGowan v. London & Lancashire Indemnity Co. of America, 237 Ill. App. 561, and the Supreme Court of the State in Gunsul v. American Surety Co. of New York, 308 Ill. 312, have held the law to be that where a surety company is doing a business for profit the contracts entered into are construed as contracts in indemnity or insurance, and that the contract will be construed in such cases most strongly against the surety. (See also 21 R. C. L., pp. 1160-1162; Royal Indemnity Co. v. Northern Ohio Granite & Stone Co., 100 Ohio St. 373, 126 N. E. 405, reported in 12 A. L. R. 378.) It is unnecessary to say that these decisions were not called to the attention of this court in the consideration of the City of Chicago v. Southern Surety Co., supra.

It is also contended by the defendant that the judgment for the defendant, F. M. Orchard, in the tort action brought by plaintiff against said Orchard and others for the wrongful suing out of the attachment, precludes a recovery by plaintiff in this action on the bond, and defendant urges as applicable to the facts here the general proposition that the discharge of the principal in a bond by payment by operation of law or judgment in favor of the principal releases the surety. A number of cases, including Marietta Fertilizer Co. v. Gary, 22 Ga. App. 604, 96 S. E. 711; Sholes v. Eisner, 90 N. J. L. 151, 100 Atl. 213; Stolze v. U. S. Fidelity & Guaranty Co., 153 Mo. App. 29, are cited.

These cases would perhaps be applicable if the suit brought by plaintiff against Orchard had been upon the same obligation, namely, the bond upon which suit is here brought. The suit there, however, was not on the bond but a suit in tort. That suit in its nature was not inconsistent with this suit on the bond, and a judgment of not guilty in that suit is not inconsistent with the finding for plaintiff in this suit upon the written obligation. We have so held in First State Bank of Pond Creek v. Clark, 202 Ill. App. 283, where in substance it was said that a suit for wrongful attachment might be brought either in tort or on the bond. Orchard, we may well suppose, was not guilty of the trespass charged in the tort suit, while yet liable upon the obligation of the bond.

Again it is urged by the defendant that the plaintiff cannot recover in this action,' because the bond was not conditioned to indemnify the plaintiff. It is quite true that the bond does not name the plaintiff, Omaha National Bank, a corporation, as an obligee for the obvious reason that it was not originally named as a party to the suit, but the statute (no doubt for the purpose of protecting persons not so named in cases of this kind from the injury which may result from a levy upon their property, under a writ which does not run against them) has made provision (see chapter 11, sec. 4 of the Attachment Act, Cahill’s St. ch. 11, ¶ 4) that:

“Before granting an attachment, as aforesaid, the clerk shall take bond in sufficient security, payable to the defendant against whom the writ is to be issued, in double the sum sworn to be due, conditioned for satisfying all costs which may be awarded to such defendant, or to any others interested in said proceedings.”

This section of the statute has been construed in McKinstry v. Bras, 180 Ill. App. 648, where it was held that a third party might sue upon such a bond in his own name in case he had sustained damages by reason of wrongful attachment. The defendant cites Weir v. Dustin, 32 Ill. App. 388, but that case is, in our opinion, easily distinguishable. The plaintiff there was the assignee of a copartnership of which defendant in an attachment was a member. The question to be decided was whether expenses incurred, not by the defendant in the attachment, but by the assignee of a copartnership, of which the defendant in an attachment was a member, could be recovered in an action upon the bond given by the attaching creditor. It was held that the plaintiff in such a case could not recover against the assignor personally.

Crow v. National Bank of Commerce, 62 Ill. App. 24 — a case where the sheriff made a mistake and levied upon the wrong property and it was held that the injured party could not recover in an action upon the bond — is also clearly distinguishable in that the proof here fails to show that the levy upon the plaintiff’s property was the result of a mistake. Neither in Weir v. Dustin, supra, nor in Crow v. National Bank of Commerce, supra, was the statute in question called to the attention of the court.

Under well-recognized rules of law, the statute entered into and became a part of the attachment bond. (Hibbard v. McKindley, 28 Ill. 255; Sharpe v. W. J. Morgan & Co., 144 Ill. 382; Rehm v. Halverson, 197 Ill. 378. See also Love v. Fairfield, 10 Ill. 303.)

The defense, however, upon which most reliance seems to he placed is that the bond given in this case was defective; that it was not the bond of the plaintiffs named therein, for the reason that plaintiffs there sued at law as a common-law trust. It is urged that no one of the trustees of such a trust would have power to bind the trust, and that, in attempting to do so, the obligation became only that of the individual executing the bond, — in this case, F. M. Orchard. Schmidt v. Kellner, 307 Ill. 331, 138 N. E. 604-607, and Austin v. Parker, 317 Ill. 348, 148 N. E. 19-22, are cited, and the rules of law announced in those decisions, with reference to what is technically known as a common-law trust, are discussed at length.

We are not pointed to evidence in the record tending to show that the attachment suit here was brought by the same kind of a technical trust that is referred to in the cases relied on, but even if this were made to appear, we do not think the defendant Surety Company is in any position to urge that point, for the reason that it is clearly estopped so to do. It executed the bond as surety, and by that execution made it possible for the plaintiff in the attachment suit (by whatsoever name it might be called or whatsoever legal entity it might in fact be) to secure an attachment writ-and to levy upon the plaintiff’s property and, as the uncontradicted evidence shows,. to damage the plaintiff in the amount of $4,800. Having done this, it cannot now be heard to urge the incapacity of the plaintiffs to bring suit. It would rather seem that plaintiff, by signing a bond which made it possible for an absolutely irresponsible party to go out and seize property under an attachment writ, should be held to stricter liability for that very reason. We will cite only a few of the many authorities so holding. Green v. Wardwell,. 17 Ill. 278; Stoner v. Millikin, 85 Ill. 218; Stern v. People, 102 Ill. 540; Iroquois Furnace Co. v. Wilkin Mfg. Co., 181 Ill. 582; Remson v. Graves, 41 N. Y. 474; Hine v. Morse, 218 U. S. 493; 1 Brant on Suretyship (3rd Ed.), sec. 52; 21 R. C. L. 998.

The judgment is just and it is affirmed.

Affirmed.

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


source: Caselaw Access Project

license: Public Domain

text:
    Anna Waerness, Appellee, v. The Independent Order of Foresters, Appellant.
    Gen. No. 31,423.
    1. Fraternal beneficiary associations — when excess payment upon premium deemed advance payment upon next premium. Where the holder of a fraternal benefit policy, in anticipation of the issuance of a substitute policy for a larger amount which was thereafter issued, paid a premium larger than the first policy called for, the surplus payment so made constituted an advance payment upon the next premium.
    2. Fraternal beneficiary associations — advance payment of premium as accelerating effective date of policy. The fact that the holder of a fraternal benefit association policy, in anticipation of the issuance of a substitute policy for a larger amount which was thereafter issued, paid a premium larger than the first policy called for did not render the second policy effective as of the date of such payment, the minds of the parties not having met.
    3. Fraternal beneficiary associations — judicial policy as to declaration of forfeiture of insurance policy. The courts will never cheerfully hold that an insurance policy has been forfeited and will strictly construe the record as against a claimed forfeiture in beneficiary’s action upon the policy of a fraternal society.
    4. Fraternal beneficiary associations — when ivainer of default in payment of premiums "binding notwithstanding by-laws to the contrary. If the local body or officer of a fraternal mutual benefit insurance society has apparent authority to do an act, such as waive default in payment of premiums, that waiver will bind the society, in spite of by-laws to the contrary, in an action by the beneficiary upon the policy.
    5. Fraternal beneficiary associations — letter of official demanding payment of overdue premium as waiver of default for nonpayment. The letter of the local financial secretary of a fraternal insurance society demanding payment of an overdue premium amounts to a waiver of any right the society might have under its by-laws to refuse payment for default on premiums under the policy in the beneficiary’s action thereon.
    6. Interest — necessity of special count demanding, m action on imsurance policy of fraternal society. Under Cahill’s St. ch. 74, K 2, allowing interest on any debt evidenced by writing, no special count for interest is .necessary in a declaration demanding payment on an insurance policy, issued by a fraternal society, in order to secure 5 per cent interest on the amount of the policy.
    Appeal by defendant from the Circuit Court of Cook county; the Hon. J. C. Eagleton, Judge, presiding.
    Heard in the first division of this court for the first district at the October term, 1926.
    Affirmed.
    Opinion filed May 2, 1927.
    Charles F. Vogel, for appellant.
    Brown, Fox & Blumberg, for appellee; Nathan S. Blumberg and Karl Edwin Seyfarth, of counsel.
   Mr. Justice Matchett

delivered the opinion of the court.

The defendant is a fraternal insurance order organized under the laws of the Dominion of Canada. Plaintiff sued in assumpsit as beneficiary of a life insurance policy issued by it to her deceased husband, Henry T. Waerness.

There was a plea of the general issue and a stipulation that defendant might, without filing a special plea, offer evidence tending to show that at the time of death deceased was not a member in good standing of the. defendant order.

At the close of all the evidence each party moved for an instruction which was denied, the jury returned a verdict for ,the plaintiff assessing her damages at $6,305, and on this verdict the court, overruling motions for a new trial and in arrest, entered judgment.

The material facts are not contradicted and appear to be substantially as follows:

On February 26,1920, Henry T. Waerness made application for admission to membership in the defendant corporation and applied at that time for a mortuary benefit of $3,000. By a letter dated March 1 thereafter, defendant notified the applicant that he had been accepted by the Supreme Court Medical Board, and on March 22 an insurance policy with mortuary benefits to the amount of $3,000 was issued to him.

The applicant was at that time 51 years of age, and the monthly premium for a $3,000 policy was $10.89. There were also court dues of forty cents a month. The pass book in evidence indicates that Waerness was admitted to membership on March 9, 1920.

On May 1, 1920, Henry T. Waerness made application for $2,000 additional mortuary benefits. Previous thereto, on March 24, 1920, the physician who had first examined him on behalf of the lodge reported that the insured had presented himself for additional insurance and examination and recommended him therefor.

On July 7, 1920, the policy upon which this suit is brought was issued to the applicant in the sum of $5,000, and the policy previously issued for $3,000 was canceled.

The monthly premium of this policy for $5,000 was $18.15. On March 11, 1920, Mr. Waerness paid the premium for the months of April, May and June, at that rate. On July 6 thereafter he paid at the same rate the premium for the months of July, August and September. At these respective times he also paid court dues at the rate of forty cents per month.

Payment for the first three months was made on March 11 to the financial secretary, who at that time changed the pass book of the applicant so as to indicate that Waerness was paying on a $5,000 policy. Under the rules of the Order, the actual dues and assessments would not begin until the first of the month following the actual payment thereof.

The payments for these six months of the amounts above named were made by check through Dr. Schaubel, the high chief ranger and the chief ranger of Court Humboldt, to which the insured belonged. The entire amount was forwarded by Frank Both, the financial secretary of Court Humboldt, to the home office at Toronto, Canada. If the insurance policy for $5,000 was in force only from the date upon which it was issued, there was an overpayment of $21.78.

Further payments were not made by Mr. Waerness, but the monthly premiums for October and November were paid to the home office by the local court out of its general fund, which it seems was customarily used for that purpose. The report of the local court indicates that the insured was suspended on December 1, 1920, for nonpayment of dues and assessments for that month.

There was evidence tending to show that notices for October and November were in due course mailed to the insured, stating that if the assessments and dues for those months were not paid he would be suspended.

The by-laws of the Order provide that, where the dues and assessments are not paid on or before the last day of the month prior to the month for which his assessment must be paid, a member ipso facto stands suspended for such failure. The local court ordinarily made payment to the supreme court of the Order on the 10th day of each month.

On December 5,1920, at 9:30 a. m. at St. Elizabeth’s hospital, Chicago, Illinois, Henry T. Waerness died as a result of shock and injuries incurred at about four o’clock on the same morning when he fell, in some manner not ascertained, from the rear porch of his apartment to the ground below.

On December 5 the financial secretary of Court Humboldt mailed to the insured the following letter:

“Office of Financial Secretary
Court Humboldt 3389, I. O. F.
Chicago, Illinois.
“Dear Sir and Brother:
“At a recent meeting of our Court a motion was passed that all members who are indebted to the Court be notified to pay up within 30' days or be suspended. Your account shows you owe the Court for October, November and December, three months, $18.15 and 40, $18.55, $55.65. Our next meeting will be held December 11, election day, therefore, kindly give this matter your immediate attention.
Fraternally in L. B. & C.
(Signed) Frank Both, Fin. Sec’y-”

This letter was in due course received by the plaintiff. Without other information, so far as the evidence discloses, on December 8, thereafter, she mailed her check for the sum of $55.65, drawn to the order of the defendant, to Frank Both, financial secretary. On December 9 this check was returned to her with a letter which stated:

“I received your letter today, also check, but I am sorry to have to return the check for $55.65 because your husband is suspended from the Independent Order of Foresters.”

Defendant furnished to the plaintiff blanks for proofs of death with written statement, however, that in sending same defendant did not admit any liability. Such proofs were submitted by plaintiff on January 2, 1921, and on February 11 thereafter payment was refused.

The constitution and by-laws, which by agreement became conditions in the policy, provided that no branch of the Order nor any officer or member of it shall have any power to waive any provisions of the constitution and laws of the Order; that each court and each member are the agents of the members; that payments made to the financial secretary shall be received by him as agent of the member making the payment ; that neither he nor other officers of a court aré officers of the corporation, and that members suspended may not be reinstated except according to the provisions of the laws of the Order nor unless they are in sound health.

Two questions arise under the evidence and are urged in the briefs: First, was the insured in default at the time of his death in the payment of his dues and assessments? Second, assuming that he was in default and suspended for that cause, were such default and suspension waived by any one having authority so to do?

If we assume that the policy for $5,000 upon which the plaintiff sues did not go into effect until the date upon which it was issued, namely, July 7, 1920, and that the insured was only protected by a $3,000 policy up to that date, then it is apparent that there was an overpayment of $21.78, a sum more than sufficient to meet the payment for December. The defendant contends, as it necessarily must, that the $5,000 policy was in force from the date on which the premium for that amount was paid. There could, however, be no contract of insurance until the minds of the parties had met upon its terms. The contract is in writing, and the application and laws of the Order and the policy constitute the contract. It can hardly be successfully contended that, if the insured had died prior to the time the policy for $5,000 was issued to him, the beneficiary could have recovered under that policy.

Moreover, it must be remembered that the question here is whether an insurance policy has been forfeited, and the courts are always reluctant to hold that such forfeiture has taken place. The record must therefore be strictly construed against the defendant, and upon such construction we are disposed to hold that the insured was entitled to a credit of $21.78 on account of premiums, and that his policy was therefore not subject to forfeiture. As was said in Knights Templars & Masons Life Indemnity Co. v. Vail, 206 Ill. 404:

“The law does not favor forfeitures and never enforces them cheerfully, and will decline to enforce them when they are against equity and good conscience, and that it is not conscionable for a company to forfeit a policy when it has in its treasury more than enough of the assured’s money to pay the assessment. And in Elliot v. Grand Lodge, 2 Kan. App. 430, it was held that where money sufficient to pay an assessment is in the treasury of the subordinate lodge, even though the latter may have made an appropriation of the fund which would show the assured in arrears, no forfeiture can be declared. See also Nib-lack on Benefit Societies, sec. 271.”

The conclusion at which we have arrived on the first question will make unnecessary any extended discussion of the second further than to say that the facts, as above recited, indicate an intention on the part of the defendant to waive the suspension.

The defendant earnestly contends that the local court, and in particular the financial secretary, under the by-laws was wholly without authority to waive any requirement of the by-laws relating to reinstatement, and Dillon v. National Council Knights & Ladies of Security, 244 Ill. 202, is cited to that point. In that case, however, the Appellate Court had found as a fact that the alleged agent was without authority to waive the conditions in question, and the Supreme Court stated that it was bound by that finding of the Appellate Court. The general rule, however, in this and other States, seems to be that the by-laws of a mutual benefit society, limiting the authority of its local organizations or officers in these respects, are unavailing where such local body or officer has apparent authority. Independent Order of Foresters v. Schweitzer, 171 Ill. 325; Dougherty v. Independent Order of Foresters, 125 Minn. 142; Independent Order of Foresters v. Cunningham, 127 Tenn. 421; Zeman v. North American Union, 263 Ill. 304; Dromgold v. Royal Neighbors of America, 261 Ill. 60, are a few of the many cases cited in the briefs on this point.

Assuming the authority of Eoth, his letter demanding payment of the December premium after the date upon which forfeiture was claimed, must, irrespective of the other evidence, be held to amount to a waiver of the right to forfeit. (Chicago Life Ins. Co. v. Warner, 80 Ill. 410; Grand Lodge A. O. U. W. v. Lachmann, 199 Ill. 140; Illinois Life Ass’n v. Wells, 200 Ill. 445; Adam v. Columbian Nat. Life Ins. Co., 218 Ill. App. 54.)

It is urged that the court erred in instructing the jury that interest at 5 per cent might be included in assessing plaintiff’s damages, for the reason that no special claim for interest was made in the declaration. As the interest allowed was due by virtue of the statute, it was unnecessary that- the declaration should state that special claim. (Haley v. Supreme Court of Honor, 139 Ill. App. 478.)

It is argued that certain of the instructions were erroneous; but, as in our opinon the plaintiff was entitled to an instruction in her favor, if there was such error, it was harmless.

The judgment is affirmed.

Affirmed.

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


text:
    Morris Poncher and H. B. Winner for use of Simplex Windshield Wing Company, Appellees, v. Mohawk Auto Equipment Company, Appellant.
    Gen. No. 31,433.
    1. Garnishment — when proof of original judgment or execution issued thereon unnecessary. A proceeding for garnishment in the municipal court of Chicago, is merely a continuation of the cause in which judgment was obtained against the debtor, and no proof of the original judgment' or the execution thereon issued is necessary, since the court will take judicial notice thereof.
    2. Appeal and error — presumption as to contents of complete record in garnishment proceedings. The presumption in favor of a judgment in garnishment requires the Appellate Court to assume, in absence of showing, that the complete record contains the original judgment, execution and return.
    3. Garnishment — sufficiency of evidence to show indebtedness of judgment debtor to garnishee. A garnishee who has sold a debtor’s goods and used part of the proceeds to which he had no lawful right to make a note payment for which he was jointly liable with the debtor, is in debt to the debtor in such sense that the garnishor may obtain judgment against him for the amount of the note payment.
    4. Garnishment — limitation of judgment against garnishee to amount of actual indebtedness at time writ served. Entry of a judgment against a garnishee for more than he owed to the judgment debtor at the time of service of the writ necessitates its reduction to the amount then actually due.
    Appeal by defendant from the Municipal Court of Chicago; the Hon. John H. Lyle, Judge, presiding.
    Heard in the first division of this court for the first district at the October term, 1926.
    Affirmed upon remittitur; otherwise reversed and remanded.
    Opinion filed May 2, 1927.
    Albert Goldman, for appellant.
    Albert G. Rosenbaum, for appellees.
   Mr. Justice Matchett

delivered the opinion of the court.

In the trial court, pursuant to the practice of that court, the plaintiffs filed an affidavit on December 30, 1925, alleging that a judgment in their favor against the Simplex Windshield Manufacturing Company had been theretofore entered and an execution thereon returned, “No property found,” and asking that the Mohawk Auto Equipment Company, which was indebted to the defendants should be summoned as a garnishee.

The garnishee answered on January 8, 1926, that at the time of service of the summons on December 21, 1925, it was not indebted to Poncher and Winner and had no property of any kind in its possession belonging to them. The answer was contested, and upon trial of the issues by the court there was a finding against the garnishee in the sum of $723. 28 and judgment entered thereon after motions for a new trial and in arrest by the garnishee had been overruled.

The Mohawk Auto Equipment Company contends in the first place that the judgment should be reversed because no proof was made of the original judgment or the execution issued thereon, or of its return, “No property found. ’ ’ That in proceedings in other courts and under other statutes such proof must be made, has been held in a large number of cases cited by defendant. (See Howard Co. v. Miller, 123 Ill. App. 483; Siegel v. Moses, 159 Ill. App. 624; Mennella v. Bottigliere, 191 Ill. App. 574; Lund v. Dole Valve Co., 185 Ill. App. 350; Sheehan v. Union Stock Yard & Transit Co. of Chicago, 172 Ill. App. 528.)

As was pointed out by this court in the case of Pease v. Undenvriters’ Union, 1 Ill. App. 287, this is the rule where the statute, under which proceedings are had, requires the garnishment to be brought as a proceeding independent from the suit in which the original judgment was obtained, but in cases where the whole proceeding constitutes one case and the garnishment is not brought as an independent proceeding, the court will take judicial notice of the original judgment and it need not necessarily be offered in evidence.

In Dandridge v. Northern Trust Co., 218 Ill. App. 138, the third division of this court, considering a garnishment proceeding brought in the municipal court of Chicago upon a judgment rendered in that court, stated:

“Where it appears, as it does here, that the garnishment proceedings are part and parcel of the same cause as that in which the original judgment was obtained — the original and garnishment proceedings bear the same general number — and the trial court takes, as it should, judicial notice of all that has transpired in the cause, we are of the opinion that it then becomes unnecessary to have the judgment and execution and return offered in evidence, and thereafter, on appeal or writ of error, made a part of the bill of exceptions.”

In Hankel v. East & West Pub. Co., 239 Ill. App. 236, which case was a garnishment proceeding in the municipal court of Chicago upon a judgment rendered by that court, the garnishee contended that the record failed to show that an execution was issued and returned unsatisfied, and that the court was therefore without jurisdiction, but it was held:

‘ ‘ The garnishment proceeding is but ancillary to the principal action — a continuation of it and the affidavit for garnishment summons was properly filed in that action.” Dandridge v. Northern Trust Co., supra, and Senelick v. Mann, 239 Ill. App. 589, were cited. The court there, however, also cited LaSalle Opera House Co. v. LaSalle Amusement Co., 289 Ill. 194, and as the judgment against the garnishee was to be reversed and the cause remanded for another reason, suggested by way of precaution, in view of language used in that decision, that upon the next trial the original judgment, with execution and return thereon, should be offered in evidence. In LaSalle Opera House Co. v. LaSalle Amusement Co., supra, the Supreme Court said:
“All portions of the record in the original proceeding having a bearing on the question of the jurisdiction of the court in rendering a judgment are part of the record in the garnishee proceedings. (Dennison v. Taylor, 142 111. 45.) The execution issued and its return are not part of the common law record in the original proceeding, but they, together with the affidavit for the summons against the garnishee, are the means of acquiring jurisdiction in the garnishee proceedings, and are therefore a part of the record which must be shown to sustain a judgment against the garnishee. The absence of them from the record is fatal to the judgment.”

In this case the record is per praecipe, and does not show the original judgment, the execution or return. The presumption in favor of the judgment requires us to assume that the complete record contains these. Under this state of the record, we think the contention of the defendant cannot be sustained.

It is further contended, in behalf of the defendant, that the evidence fails to disclose that the garnishee was indebted to the judgment debtors. They say the only issue in a garnishment proceeding is whether the garnishee is indebted to or has property of the judgment debtor in his possession, and it is argued that the evidence in this case fails to disclose facts upon which any liability on the part of the garnishee might be based.

The facts appear to be (and there is little conflict in the evidence) as follows:

The vice president and secretary of the defendant Mohawk Auto Equipment Company is L. S. Poncher and the corporation is and was engaged in business at Chicago, Illinois. Morris Poncher, a nephew of L. S. Poncher, was a copartner of H. B. Winner, who, with Morris Poncher, are the judgment debtors in this case. L. S. Poncher had become liable upon a note executed in behalf of Poncher and Winner at the bank for the sum of $2,000, and this note was signed by him in order to enable the copartnership to purchase from the Mohawk Auto Equipment Company merchandise to the amount of $4,400. The firm of Poncher and Winner also bought goods from the Simplex Windshield Wing Company, and it seems that the goods purchased from these two firms were by the co-partnership shipped to Florida with the intention of opening a store, although they had not yet actually engaged in business in that state. As a matter of fact, the partnership lasted about 10 days or 2 weeks, and Winner says that when he saw things weren’t right, he wired the Mohawk Auto Equipment Company asking what they should do, and that the Mohawk Auto Equipment Company wired back, telling him to dispose of the car there. He then returned to Chicago and gave Mr. L. S. Poneher a power of attorney. He says that he told Mr. Poneher, who was going to Florida, that there was some merchandise in the car belonging to the Simplex Windshield Wing Company, and Poneher said that whatever didn’t belong to him he would send back or wouldn’t use. Mr. L. S. Poneher went to Florida and sold the entire merchandise including that obtained from the plaintiff, for $3,000. There was then due to the Mohawk Auto Equipment Company about $2,400, which was retained by him for that company, and instead of turning the remainder of the money obtained from the sale of the goods over to the Simplex Windshield Wing Company, as agreed, he took the same and paid it to the bank upon the note of Poneher and Winner, after the same matured February 5, 1926. L. S. Poneher, as vice president of the garnishee corhpany, still had this $600, being the proceeds of the sale of the merchandise, in his possession at the time of the service of the garnishment writ. It was money which in justice and fairness should have been turned over to Poneher and Winner for their own use, or to the Simplex Windshield Wing Company, as Mr. L. S. Poneher had agreed.

We think the court, however, erred in entering judgment against the garnishee for the full amount of the original judgment, as the evidence discloses that at the time of the service of the writ there was only $600 in the possession of defendant subject to garnishment. The garnishee was not liable for more than that amount.

If, therefore, the plaintiff, appellee, will remit in this court within 10 days the sum of $123.38 from the amount of the judgment, it' will be affirmed; otherwise it will be reversed and the cause remanded.

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

Affirmed upon remittitur; otherwise reversed and remanded.


text:
    John MacFadyean, personally and as assignee of claim of W. P. Stratton, Appellee, v. Watling Manufacturing Company, Appellant.
    Gen. No. 31,494.
    1. Contracts — unenforceabiUty of contingent fee contract to procure reduction of taxes. The maxim “ex turpi causa non oritur actio’’ applies to defeat an action on contract by tax specialists in which contract it was agreed that plaintiff should be paid for any services in securing from the national legislature or government departments a reduction in tax on defendant’s vending machines by a share thereof, on the ground that such a contract is void as against public policy.
    2. Assignments — compliance with statutory requirements as prerequisite to right to sue as assignee. One of two partners employed by defendant to secure a reduction in his taxes must comply with the provisions of Cahill’s St. eh. 110, K 18, requiring the. assignee to set forth how and when he acquired title, to be entitled to sue for himself and as assignee of his partner.
    Appeal by defendant from the Municipal Court of Chicago; the Hon. Theodore F. Ehler, Judge, presiding.
    Heard in the first division of this court for the first district at the October term, 1926.
    Reversed.
    Opinion filed May 2, 1927.
    Rehearing denied and opinion modified May 16, 1927.
    Bangs & Frankhauser, for appellant; Wendell McHenry, of counsel.

      Benjamin P. Epstein and Gesas & Leonard, for appellee ; Millard R. Powers, of counsel.
   Mr. Justice Matchett

delivered the opinion of the court.

In an action on contract upon trial by jury at the close of the evidence, the court instructed the jury to find the issues for plaintiff and assess his damages at the sum of $1,926.06. The verdict was returned and judgment was entered thereon.

The contract sued on is in writing, dated May 8, 1923, and by its terms the defendant employed the firm of Stratton & MacFadyean, as tax and technical specialists, to perform certain services.

This suit was brought by MacFadyean in his own right as one of the parties jointly employed and also as assignee of his joint contractor, Stratton.

The defendant contends that the judgment must he reversed, first, because the contract sued on was void as against public policy, and second, because neither in pleading nor proof of assignment did plaintiff comply with section 18, ch. 110, see Smith-Hurd’s 111. Bev. St. 1925, p. 1954, Cahill’s St. ch. 110, H18, concerning assignments in causes of action. Either contention, if sustained, is fatal to the right of the plaintiff to recover.

The contract sued on was as follows:

“The undersigned hereby agrees to and does employ Messrs. W. B. Stratton and John MacFadyean, No. 2001 Fisk Building, New York City, as tax and technical specialists and experts, to perform and render any and all services necessary and required, in presenting the different essential facts and expert and technical data to the different branches of the United States Congress, its subsidiaries, committees, or any other bodies which may be appointed by them, on the different hearings which may be held, concerning the revision and adjustment of the different. Excise Tax Schedules, now in force and operative, in so far as the same applies to tax payments on slot vending and slot weighing machines, manufactured in the United States; the present rate of tax being ten per cent (10%) on slot weighing machines, and five per cent (5%) on slot vending machines.
“And we further agree that for all services rendered by Messrs. Stratton & MacFadyean, and necessary expenses incurred in the above matter, to pay them, for all of such services, a sum equal to any and all reductions which may be made before December 1, 1924, by the United States Government, upon said two articles, from the present rate. The compensation agreed upon herein, is to be computed on the basis of the total amount of excise tax reported by the undersigned for the one year 1923. In no event shall the total amount to be paid for the above services exceed the total amount of excise tax reported by us during the year 1923; a payment of such total amount shall be deemed complete compensation for any services rendered under this agreement by Messrs. Stratton & MacFadyean.
u “It is further understood, that in the event that no reductions are made, then Messrs. Stratton & MacFadyean shall not be. entitled to any compensation whatsoever, from the undersigned.
(Signed) Watling Mfg. Co.,
By Thos. Watling, President.
“Chicago, Illinois, May 8th, 1923.
‘ ‘ This is to certify that a certain agreement entered into this day reference the excise tax on scales and vending machines is signed with the understanding that same is not in effect, except as to 50 per cent of amount saved to us, the Watling Mfg. Co.
(Signed) Stratton and MacFadyean,
By John MacFadyean.”

The substance of this agreement appears to be that the plaintiffs contract, at their own expense to endeavor to influence the national legislature and other departments of the government in the matter of revenues, their compensation to be contingent upon success in securing this result. That irrespective of whether the defense is pleaded such a contract is unenforceable by the courts, is a rule of law as old as the maxim ex turpi causa non oritur actio. This maxim was applied by the Supreme Court of the United States in Providence Tool Co. v. Norris, 2 Wall. (U. S.) 45, followed by that court is the interesting case of Oscanyan v. Arms Co., 103 U. S. 261, and by the Supreme Court of Illinois in Crichfield v. Bermudez Asphalt Paving Co., 174 Ill. 466. The cases applying the rule are again cited and discussed in Crocker v. United States, 240 U. S. 78, 36 Sup. Ct. 247. That this court has not failed to rigidly apply the rule, see Jamieson v. Iles, 219 Ill. App. 432.

In conformity with the maxim and adhering to the rules of law as expressed in these decisions, we hold this contract null and void on ground of public policy.

Our conclusion on this point makes unnecessary an extended discussion of the second point. An examination of the record, however, indicates that there was no attempt to comply with the material provisions of said section 18.

For the reasons indicated the judgment is reversed.

Reversed.

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


text:
    John Mallinger, Appellee, v. Anna R. Shapiro, Appellant.
    Gen. No. 31,572.
    1. Reference — weight to be given to .report of master in chancery. The report of a master in chancery, while prima facie correct, is only advisory, and does not have the same weight as a jury verdict.
    2. Building and construction contracts — insufficiency of evidence to support decree for architect in suit upon oral contract to draw building plans. Evidence showing that premises were so incumbered that it would be useless to have plans drawn for a' building thereon until the owner could be sure of having money therefor held to sustain.the owner’s theory that she was not to pay for an architect’s services unless he helped her to procure a building loan, especially as her claim was sustained by three witnesses as against his sole testimony that he was to be paid for drawing the plans without other consideration, and a decree for him must be reversed as • against the preponderance of the evidence.
    3. Mechanics ’ liens — right of architect to lien for services in drawing plans of building never constructed. Under Cahill’s St. eh. 82, If 1, an architect cannot have a mechanic’s lien under an oral contract for services in drawing the plans of a building never constructed.
    Appeal by defendant from the Circuit Court of Cook county; the Hon. Ira Ryneb, Judge, presiding.
    Heard in the first division of this court for the first district at the October term, 1926.
    Reversed with directions.
    Opinion filed May 2, 1927.
    Perlman, Goodman & Scolnik, for appellant; Avern B. Scolnik, of counsel.
    J. H. Perkinson, for appellee.
   Mr. Justice Matchett

delivered the opinion of the court.

.This appeal is by the cross-defendant from a decree which overruled her objections to a master’s report; found that the premises described in the cross-bill were subject to a mechanic’s lien for the amount of $5,075 and in default of payment directed that the premises should be sold.

The decree finds that the cross-complainant Mallinger, in the year 1923, was a duly licensed architect; that on the 1st day of September, 1923, defendant, Anna B. Shapiro, was the owner by contract of purchase, made on August 15, A. D. 1923, of the premises described in the cross-bill; that on that date she entered into a verbal contract with Mallinger to prepare plans and specifications and take bids for a thirty-six apartment building with a janitor’s apartment and two stores, to be erected on a part of the premises at the agreed price of five per cent of the cost of the building to be so erected; that Mallinger completed the plans and specifications on October 4, 1923, and on that date delivered the same to Anna B. Shapiro; that he proceeded to take estimates on the costs of labor and materials for the erection and completion of the building; that the cost of the same was $148,960; that afterwards Mallinger and Anna B. Shapiro went over the estimates and agreed on some changes that would make the cost of the building $145,000; that Mallinger is entitled to seven-tenths of five per cent of the cost of the building as the usual, customary and reasonable charge for his services and as agreed by his contract, which would amount to the sum of $5,075.

The decree also finds as follows:

“That the defendant, Anna B. Shapiro, did not construct a building on said premises for which said plans and specifications were made and no building or structure of any kind was or has been constructed on said premises, though said Mallinger stood ready and willing to perform his part of the contract and was prevented from doing so by the action of Anna B. Shapiro. ’ ’

The cross-defendant contends in the first place that the decree entered is clearly and manifestly against the weight of the evidence. Upon this point, cases are cited by the parties tending to sustain their respective contentions as to the weight which should be given to the report of the master.

Whatever the rule hitherto may have been, the law would seem to be settled by the recent case of Chechik v. Koletsky, 311 Ill. 433, which holds that the report of the master is not to be given the same effect as the verdict of the jury in a case where the parties would have the right to have the issues of fact determined by a jury. In a chancery case the facts are found by the court, and the master’s report, while prima facie correct, is of an advisory nature only.

There was a sharp conflict in the evidence upon the issues of fact as to what was the actual contract between the parties, the defendant contending that the contract of complainant was not alone to furnish plans and specifications and superintend the construction of the proposed building, but that he also agreed and promised to obtain a loan for her upon the property, which was necessary in order that she might be able to construct the building. The contract between the parties was oral and the cross-complainant’s case in this respect rests, entirely on his uncorroborated testimony which is denied by the cross-defendant, who is corroborated by three witnesses who testified to oral admissions and facts inconsistent with the testimony of the cross-complainant.

The master states as reasons for accepting the testimony of the cross-complainant the circumstances that when the plans and specifications were completed the same were turned over to the cross-defendant upon her receipt and the cross-defendant’s own testimony that she took these plans and specifications to different people seeking to obtain a loan. The master also points out that the defendant was not inexperienced in the matter of making building loans and says that, while he is satisfied that cross-complainant did (after the defendant had made several applications for a loan) endeavor to assist her in obtaining the same, this was not a part of his original agreement.

There was, however, other undisputed facts in evidence which do not appear to have been given due weight. Some of these are that the uncontradicted evidence shows that the premises, upon which it was proposed to construct the building, were already incumbered, and that it appears there would be no use for plans and specifications unless defendant had assurance that the money necessary to construct the building could be obtained. The story of defendant seems at least just as probable as that of complainant and the number of witnesses is three to one in her favor. The decree seems to be against the clear preponderance of the evidence.

The defendant, however, further contends that, as it appears from the undisputed evidence and the decree finds that no building was in fact constructed on the premises, and that the plans and specifications were not used in connection with the building of any structure of any kind upon the premises, the cross-complainant is not entitled to a lien for any amount that might be due him for making such plans and specifications, under the provisions of the Mechanic’s Lien Act.

This question, it is apparent, involves a construction of the Act of May 18, 1913, as amended and approved June 28, 1919, with reference to mechanics’ liens. Smith-Hurd’s Ill. Rev. St., p. 1628, ch. 82, sec. 1, Cahill’s St. ch. 82, ¶ 1.

Section 1 of that Act provides:

“That any person who shall, by any contract- or contracts, express or implied, or partly expressed or implied, with the owner of a lot or tract of land, or with one whom such owner has authorized or knowingly permitted to contract for the improvement of, or to improve the same, furnish material, fixtures, apparatus or machinery, forms or form work used in the process of construction where cement, concrete or like material is used for the purpose of or in the building, altering, repairing or ornamenting any house or other building, * * * or raise or lower any house thereon or remove any house thereto; or perform services as an architect or as a structural engineer for any such purpose; * * * or furnish material, * * * ' on the order of his agent, architect, structural engineer or superintendent having charge of the improvements, * * * shall be known under this Act as a contractor, and shall have a lien' * '*

Prior to the Act of 1895, which revised the law of Illinois on this subject, it was settled that a lien could be obtained under the statute only to the extent that work was done upon or materials actually used in a construction. (Compound Lumber Co. v. Murphy, 169 Ill. 343.) In Freeman v. Rinaker, 185 Ill. 172, the Supreme Court, construing section 1 of the Mechanics ’ Liens Law of 1895, held that the words in section 1 “perform services as an architect for any such purpose” referred back to the previous words “for the purpose of, or in the building * * * any house,” and the court in substance said that this statute gave a lien for the services of an architect, not only in building a house, but for the purpose of building a house, and that when an architect drew plans and specifications for a building even though he did not superintend its construction, he performed services for the purpose of building it.

However, the right of the petitioner in that case to a lien was denied because of the provisions in another section of the act, and the construction by the court of the language in section 1 was not necessary to a decision of the case and therefore dictum.

The complainant also cites and relies upon Nimmons v. Lyon & Healy, 197 Ill. App. 376. That decision was handed down by this court in January, 1916, and purports to follow the case of Freeman v. Rinaker, supra. That decision was also made under the Act of 1895, and, while, an examination of the opinion discloses language which would sustain the right of an architect to a lien where the improvement was not made, a more careful consideration discloses that upon the facts that case was not at all similar to this, the opinion stating, “that a building in fact was afterwards erected thereon of the same general character as the one contemplated by the plans prepared by the complainant. ’ ’

The defendant has cited many cases from other jurisdictions construing mechanics’ liens statutes of other states, and these cases tend to support her construction of this act. Our own Supreme Court has, however, pointed out that, because of the divergent provisions in the statutes of the different states, decisions from other jurisdictions give little assistance. Price v. Kirk, 90 Pa. 47; Poster v. Tierney, 91 Iowa 253; Buckingham v. Flummerfelt, 15 N. D. 112; Mitchell v. Packard, 168 Mass. 467, are a few of many cases from other states tending to sustain defendant’s contention.

The phraseology of the first section of the Act of 1895 (see Session Laws of 1895, page 226) differs much that of the act as amended in 1919. In the latter act, the phrase “for the purpose of or” seems to be limited in its meaning to a modification of the particular clause in regard to “forms or form work” in which it is placed.

The phrase “for any such purpose” seems to refer to the contract to improve or for the improvement of the premises.

We are constrained to so,hold in view of the rule requiring a strict construction of the-statute and the improbability that the legislature could have intended to subject titles to real estate to incumbrance as a result of oral contracts where no improvements are made.

The decree is reversed with directions to dismiss the cross-bill.

Reversed with directions.

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


author: Per Curiam.

text:
    Belleville Enameling and Stamping Company et al., Appellees, v. Edward Carbine et al., Appellants.
    1. Appeal and error — impropriety of joint appeal from separate. judgments after allowance of separate appeals therefrom. After separate appeals from judgments for contempt of injunctions have been allowed by the trial court, appellants cannot file a single transcript and joint assignment of errors and perfect a joint appeal from the separate judgments, and such attempted appeal will be dismissed.
    2. Appeal and error — when motion to consolidate separate appeals denied. The Appellate Court will deny a motion to consolidate separate appeals, not containing transcripts and assignments, with an appeal containing full transcript and assignments but dismissed as improperly seeking to bring up separate judgments of the trial court for review by one appeal.
    3. Appeal and error — when application to file complete transcript in place of incomplete one denied because too late. Under Cahill’s St. ch. 110, jf 100, providing an extension of time for filing transcripts shall be asked before the second day of the term, the court cannot grant an extension of time to file a complete transcript in place of an incomplete one, after that time.
    4. Appeal and error — procedure for procuring dismissal of appeals filed without transcripts or assignments. Under Cahill’s St. ch. 110, H 100, providing the method for dismissing appeals, either party may have appeals, filed without transcripts or assignments, dismissed on filing a short record with each appeal.
    5. Appeal and error — procedure for procuring revieio of separate judgments after dismissal of appeals therefrom defective for lack of transcripts and assignments of error. After appeals from judgments for contempt of injunctions are dismissed as defective for lack of transcripts and assignments of errors in each appeal, each appellant may sue out a writ of error from the Appellate Court and move the court for a consolidation and hearing upon the complete transcript made by one appellant and the assignments of errors made by each.

      Appeal by defendants from the Circuit Court of St. Clair county; the Hon. George A. Crow, Judge, presiding.
    Heard in this court at the March term, 1927.
    Appeal in term No. 46 dismissed.
    Opinion filed April 6, 1927.
    James O. Miller and W. T. McDonald, for appellants.
    Farmer & Klingel, for appellees.
   Per Curiam.

The Belleville Enameling and Stamping Company filed a bill in chancery and procured an injunction. The other appellee filed another suit in which an injunction was issued. Upon a showing made to the court several persons were cited for contempt for alleged violations of said injunctions and the causes were consolidated for a hearing in that regard. The court found Edward Carbine and 27 other persons guilty of contempt of court in violating the said injunctions and imposed a separate punishment upon each of them. Separate appeals were prayed and allowed. Separate appeal bonds in the amounts required by the court were filed and approved within the time allowed therefor.

Prior to the first day of the present term of this court, appellants filed, in term No. 46, a single transcript of the record, containing copies of the 28 appeal* bonds, to which transcript was attached a joint assignment of errors by all of the appellants. In term No. 46, appellants have attempted to perfect a joint appeal from several judgments although separate appeals were prayed and allowed by the trial court. This joint appeal is improper and the same is dismissed. West Disinfecting Co. v. Koppelman, 216 Ill. App. 456. Two separate judgments, decrees, or orders cannot be brought up for appellate review by one writ of error or one appeal. 3 C. J. 355.

On the second day of this term appellants filed a short record in term No. 47 and a certified copy of the appeal bond, and nothing more, in each of the cases, Nos. 48 to 73 both inclusive. They then moved the court to consolidate No. 47 to 73 with cause No. 46 and to hear all of the appeals upon the transcript, abstract and briefs to be filed in the latter case. Cause No. 46 must be dismissed for the reason above stated. The motion to consolidate, etc., must be denied because there is no longer any cause No. 46 pending in this court. If an extension of time for the filing of a complete transcript in No. 47 had been requested not later than the second day of this term, it could have been allowed, but we are now without authority to extend the time. Practice Act, sec. 100, Cahill’s St. ch. 110, ¶100.

Term Nos. 47 to 73, both inclusive, are still pending in this court, and either party may have the appeals dismissed on filing a short record in each case, except No. 47, in which such a record is already filed, in accordance with the provisions of section 100 of the Practice Act. As to what is a proper short record in such cases, see West Disinfecting Co. v. Koppelman, supra.

We regret that the cases have not been presented in such a way as to permit us to consider them upon their merits. When the pending appeals have been disposed #of, writ of error may be sued out of this court by each of the present appellants and if one of them files herein a complete transcript of the record with an assignment of errors in his own behalf, and each of the others should file a short record, each attaching thereto his assignment of errors, it will then be in order to move the court for a consolidation and for a hearing upon the transcript, abstract and briefs submitted in the completed case as-was done in West Disinfecting Co. v. Koppelman, 216 Ill. App. 438 and other cases. Leave is granted to appellants to withdraw the transcript of record in term No. 46 if they so desire.

Appeal in term No. 46 dismissed.


author: Mr. Presiding Justice Barry

text:
    George Epley et al., Appellants, v. Lawrence Epley, Appellee.
    1. Wills — admission of will to probate as vesting freehold in devisees. The effect of an order admitting a will to probate is to vest in the devisees any freehold disposed of directly or indirectly by the"will.
    2. Appeal and error — dismissal-for want of prosecution of bill to set aside probate of will as appealable directly to Supreme Court. A bill which seeks to set aside the probate of a will, and hence to divest the devisees of their title to the land devised, involves a question of freehold, and an appeal from the dismissal of such bill for want of prosecution must be taken directly to the Supreme Court.
    Appeal by plaintiffs from the Circuit Court of Gallatin county; the Hon. C. H. Miller, Judge, presiding.
    Heard in this court at the March term, 1927.
    Cause transferred to Supreme Court.
    Opinion filed April 12, 1927.
    Bex A. Trimble and William Denton, for appellants.
    David T. Rosenthal, Joe A. Pearce and Thos. H. Daily, for appellee.
   Mr. Presiding Justice Barry

delivered the opinion of the court.

Appellants filed a bill to contest the last will and testament of Jarrett Epley, which was admitted to probate by the county court of Gallatin county. On motion of appellee the court dismissed the bill for want of prosecution at appellants’ costs. The record discloses that the will purports to dispose of real estate of the value of $15,000.

The effect of the order admitting the will to probate was to vest the freehold in the devisees. Craig v. Trotter, 252 Ill. 228-230. The bill sought to cancel and set aside the will and to thereby divest the devisees of their title. A freehold is involved when it is sought to cancel a deed purporting to convey the freehold as a cloud on complainant’s title. Gits v. Ullrich, 288 Ill. 527-531.

A freehold is involved, on appeal from an order admitting a will to probate, even though the will does not, in terms, devise real estate, if it appears from the record that the deceased owned real estate which would pas;s under the residuary clause of the will. Senn v. Gruendling, 218 Ill. 458; Craig v. Trotter, 252 Ill. 228. Where a bill attacks the validity of a clause of the will devising real estate to trustees, a freehold is involved and an appeal lies to the Supreme Court from a decree dismissing the bill on demurrer for want of equity. French v. Calkins, 252 Ill. 243.

An appeal from a decree dismissing a bill for specific performance of a contract for the sale of land should be taken directly to the Supreme Court. Powell v. Huey, 241 Ill. 132. Where a bill to contest a will was dismissed for want of prosecution, the Supreme Court entertained an appeal and passed upon the case. Yott v. Yott, 257 Ill. 419.

A freehold is involved in the present appeal and this court is without jurisdiction. If we should assume to pass upon the question presented and the case should reach the Supreme Court it would be remanded with directions to order the appeal transferred to that court. Powell v. Huey, supra.

The clerk of this court is directed to transmit the transcript of the record and all files in this cause to the clerk of the Supreme Court, together -with a copy of this opinion and the order- of transfer, without delay.

Cause transferred to Supreme Court.


author: Mr. Presiding Justice

text:
    Orville Arnold et al., Appellees, v. Village of Ina, Illinois, Appellant.
    1. Municipal corporations — invalidity of contract creating liability, against village based upon mere oral consent of members of board. Under Cahill’s St. eh. 24, U 44, providing that yeas and nays on any proposition to create a liability against a city shall be entered on the journal of proceedings of the village board, the mere oral consent of all the members of the board to pay plaintiff for constructing culverts for the village is ultra vires and the plaintiff cannot recover therefor.
    2. Municipal corporations — nonimplication of contract creating liability against village based upon acceptance of work done under oral consent of board. No implied contract can be created against a village by its acceptance of work done for it after oral consent of the board, for the statute has declared the only method for binding the village in Cahill’s St. eh 24, If 44.
    3. Municipal corporations — when village not estopped to contest validity of contract creating liability against it not executed in compliance with statute. Everyone is presumed to know the extent of power of a municipal corporation and therefore there can be no estoppel by a village accepting the benefits of work put in for it after oral consent by the village board but without compliance with the sole statutory method for binding a village, as prescribed in Cahill’s St. ch. 24, If 44.
    4. Municipal corporations — invalidity of village contract for improvements in absence of prior appropriation therefor. A contract by the village board to pay for improvements, even though passed by yea and nay vote recorded in the journal of village proceedings, is invalid unless a prior appropriation has been made therefor.
    Appeal by defendant from the Circuit Court of Jefferson county; the Hon. J. C. Eagleton, Judge, presiding.
    Heard in this court at the October term, 1926.
    Reversed with finding of fact.
    Opinion filed April 15, 1927.
    Curtis Williams and Conrad Sohul, for appellant.
    Frank G. Thompson, for appellees.
   Mr. Presiding Justice

Barry delivered the opinion of the court.

Appellees constructed a section of the State hard road which runs through appellant. When they had about completed their work the president of the village board requested them to construct some culverts within the village limits on the understanding that if the State would not pay for same the village would. Mr. Gr. W. Page was the president of the board and he says that before appellees were employed by him he discussed the matter with the members of the village board and that they were all willing for him to employ appellees to do the work on the understanding aforesaid. He says that they all expected the State to pay the bill but that he later learned that it would not do so.

. There was no record of any meeting of the village board in regard to the employment of appellees. The statute provides that the yeas and nays shall be taken on all propositions to create any liability against the city, or for the expenditure or appropriation of its money, which shall be entered on the journal of its proceedings. Cahill’s St. ch. 24, ¶ 44. Provisions of that nature are mandatory. People v. Chicago & E. I. R. Co., 314 Ill. 352; Crawford v. Board of Education Dist. No. 88, 215 Ill. App. 198. Where a collection of individuals designated in a manner provided by law are created a body, to whose care public affairs are committed, the body so created is powerless to act except together and as a body, and where a record of its proceedings is required to be kept, such record is the only lawful evidence of its action, and it cannot be changed by parol proof. People v. Chicago & E. I. R. Co., 306 Ill. 402.

If there is a statute prescribing the method by which an officer or agent can bind a municipal corporation by contract such method must be followed, and there is no implied contract or liability of such municipal corporation. Roenheld v. City of Chicago, 231 Ill. 467. It is quite evident, therefore, that Mr. Page had no authority to employ appellees. The village board could only create a liability against the village upon a ,yea and nay vote entered on the journal of its proceedings. The creation of a liability against the village in any other manner is expressly prohibited by the statute. Appellees contend that because the work was done and appellant has received the benefit of it, they should be allowed to recover. They cite Westbrook v. Middlecoff, 99 Ill. App. 327; De Kam v. City of Streator, 232 Ill. App. 135, and other cases in support of that contention. The latter case went to the Supreme Court and was reversed. De Kam v. City of Streator, 316 Ill. 123. In that case the court held that the Westbrook case, supra, was erroneously decided. The court also held that everyone is presumed to know the extent of the powers of a municipal corporation, and it cannot be estopped to aver its incapacity, which would amount to conferring power to do unauthorized acts simply because it has done them and received the consideration stipulated for.

Even if the village board had undertaken to employ appellees by a yea and nay vote entered upon the journal of its proceedings, the contract would be invalid unless an appropriation had been made for that purpose prior thereto. De Kam v. City of Streator, 316 Ill. 123. Appellees having failed to prove' a valid and binding contract, the judgment is reversed at their costs.

Reversed with finding of fact.

The clerk will insert the following in the judgment: The court finds that appellees had-no valid contract with appellant.


text:
    Nellie Ferry, Defendant in Error, v. National Motor Underwriters, Plaintiff in Error.
    1. Judgments and degrees — entry of judgment by nil dicit upon withdrawal of general issue and election to stand 'by special plea and demurrers to replications to other pleas. Where a defendant withdraws its general issue and elects to stand by a special plea and demurrers to replications to other special pleas, nothing is left for a jury to try and the trial court should render judgment by nil dicit, or for want of a plea.

      2. Appeal and error — insufficiency of record to warrant reversal of order overruling demurrer to plea in abatement. Where the abstract of a plaintiff in error asserts that there was a plea in abatement and that it was based upon want of proper service of process, but fails to set out the plea or enough thereof to show wherein service was insufficient to confer jurisdiction, the Appellate Court will presume that the trial court did not err in overruling a demurrer thereto. It will not search the record to ascertain the alleged fact.
    3. Insurance— construction of provisions m favor of beneficiary. Where a policy of insurance is so framed as to make possible different interpretations of the same clause, that construction will be adopted, in a suit upon the policy, which is most favorable to the beneficiary.
    4. Insurance — construction of policy provision exempting insurer of automobile if car used for illegal transport of liquor or in violation of law. A clause of an insurance policy, insuring against damage suits against an automobile owner but, exempting the insurer if the car is used for illegal transport of liquor or in violation of law, will be construed to limit the exemption to illegal handling of liquor at the time of an accident and not to any violation- of the law such as excessive driving speed, as maintained by the insurer.
    5. Highways — construction of statutory limitation upon speed of automobiles within residential district of incorporated city. Under Cahill’s St. eh. 95a, jf 23, the rate of speed for the residential district of an incorporated city is not limited to 15 miles per hour but there is only prohibited a rate of speed greater than is reasonable under due regard to traffic and life, limb, and property of others.
    6. Insurance — undertaking to defend insured automobile owner from damage suit as waiver of exemption provisions of policy. An insurer of an automobile owner against damage suits does not waive any provision of the policy exempting it from liability for certain acts of the insured merely because it undertakes to defend the insured from such a damage suit, as it was bound to do.
    7. Pleading — sufficiency of defective replication to bad plea. Even though the replication to a plea is not good, it is sufficient answer to a bad plea and replication and plea must fall together.
    8. Insurance — when insured under automobile liability policy entitled to pay damage judgment against her and recover same from insurer. One insured by a policy against damages caused by her automobile has the right to pay a judgment recovered against her upon failure of the insurer to file an appeal bond, and to recover from the insurer the amount paid.
    9. Insurance — insufficiency of plea in action upon automobile liability policy. Where the plea of an insurer in an action to recover the amount of a judgment for damages caused by the insured’s automobile, while alleging that the insured interfered with the appeal in such action by paying the judgment, failed to allege that a supersedeas or appeal bond had been filed or that the time for filing had not expired, a demurrer thereto was properly sustained.
    10. Judgments — impropriety of entering default after withdrawal of general issue and election to stand upon special plea and overruled demurrers to replications. After a defendant has withdrawn the general issue and elected to stand upon a special plea and its overruled demurrers to replications to its other pleas, the court cannot properly enter a default.
    11. Appeal and error — when failure to render judgment nil dicit or for want of plea not reversible error. Although the trial court should have rendered judgment nil dicit or for want of plea, after the defendant withdrew the general issue and elected to stand on a special plea and demurrers to replications to its other pleas, the error of hearing evidence and rendering judgment for the plaintiff thereafter will not warrant reversal.
    12. Insurance — payment of judgment recovered against insured under automobile liability policy as prerequisite to right of action on policy. An insured need not prove that she has paid a judgment recovered against her for injuries caused by her automobile before recovering the amount of the judgment from a company which has insured her against such judgments.
    Error by defendant to the City Court of East St. Louis; the Hon. Silas Cook, Judge, presiding.
    Heard in this court at the November term, 1926.
    Affirmed.
    Opinion filed April 15, 1927.
    A. M. Fitzgerald, P. W. Zerwekh, H. C. Moore and Earl B. Songer, for plaintiff in error.
    McGlynn & McGlynn, for defendant in error.
   Mr. Presiding Justice Barry

delivered the opinion of the court.

Plaintiff in error insured defendant in error against loss and expense for legal liability arising or resulting from claims upon her by reason of the .ownership or use of a certain motor car on account of bodily injury suffered by any person by reason of accident providing that liability is limited to $5,000 for injury or death of any one person. It agreed to defend, at its own costs and expenses, all legal proceedings instituted against the insured, whether groundless or not. Insured was required to give written notice within five days of an accident or loss, and, if sued, to send the summons to the home office of plaintiff in error. She was not to assume any liability, settle any- claim, or incur any expense except at her own cost, or to interfere in negotiations for settlement or legal proceedings without consent of the plaintiff in error previously given in writing. She was required, when.requested, to aid in effecting settlements, securing evidence, attendance of witnesses and in prosecuting appeals.

While the policy was in force defendant in error was driving her car and she struck and injured Edith Peacher. An action was brought against defendant in error who gave the required notice, and thereupon plaintiff in error assumed the defense of the suit. The trial resulted in a verdict and judgment for $5,000. Plaintiff in error procured a bill of exceptions but failed to file an appeal bond. An execution was issued upon the judgment and thereupon defendant in error caused the same to be satisfied of record.

She then sued plaintiff in error to recover on the insurance contract which she set out in her declaration with the usual averments. Plaintiff in error filed a plea in abatement to the jurisdiction of the court and a demurrer thereto was sustained. The general issue and three special pleas were then filed. Replications were filed to the first and second special pleas and demurrers thereto were overruled. A demurrer was interposed to the third special plea and sustained. Plaintiff in error then withdrew the general issue and elected to stand by its third special plea arid its demurrers to the replications to the first and second special pleas. A jury was called and at the close of the evidence the court directed a verdict for $5,000. When the general issue was withdrawn there was nothing left for a jury to try and the proper course was to render judgment by nil dicit, or for want of a plea.

Plaintiff in error contends that the court erred in sustaining the demurrer to its plea in abatement to the jurisdiction of the court over its person. The presumption is that the trial court did not err in its ruling and for that reason plaintiff in error should so present its case that the errors in the record relied upon for a reversal clearly appear on the face of the abstract, and it is not the province of the court to search the record for the purpose of discovering errors on which to base a reversal. That rule has been announced so frequently that we will only refer to the latest case on the subject. People v. Heywood, 321 Ill. 380.

The abstract, in the case at bar, simply states: “Plea of National Motor Underwriters in abatement setting up no proper service of process had upon the attorney in fact of said defendant or Director of Trade and Commerce of the State of Illinois, as required by the statute of the State of Illinois. G-eneral demurrer of plaintiff to plea in abatement of defendant. Special ground of demurrer to foregoing plea for insufficient verification. Orders of court at May Term 1926, entered May 29, 1926 sustaining the demurrer to plea in abatement.”

It will be observed that plaintiff in error simply informs us by its abstract that there was a plea in abatement and states the conclusion that it set up no proper service of process. We are not advised by the abstract as to the averments of the plea nor is the verification shown. The plea should have been set out in the abstract or at least enough of it to show wherein it was claimed the service was insufficient to confer jurisdiction instead of stating the conclusion that there was no proper service. The presumption is that the court did not err in overruling the demurrer and plaintiff in error having failed to show, in its abstract, that there was error in that regard, we will not search the record in order to ascertain the alleged fact.

The first special plea set out that the policy sued on contained the following provisions: “This policy does not cover indemnity nor loss nor damages under the following conditions: (a) While insured car is driven or manipulated by any person under the age limit fixed by law, or under the age of sixteen years of age in any event; (b) driven in any race ' or speed contest; (c) operated bv a person under the influence of liquor; (d) * * *; (e) * * *; (f) * * *; (g) * * *; (h) if assured sells, or if said motor car illegally transports intoxicating liquor; (i) while being used, operated or engaged in violation of the law.” The plea then avers that at the time of the accident in question defendant in error’s car was being operated by her in violation of law, to wit: At a speed greater than reasonable and proper, to wit: Greater speed than 15 miles per hour on a public highway in a closely built up residence district within the limits of the city of East St. Louis.

It is quite apparent that the plea is based on the theory that defendant in error was not entitled to recover because, at the time of the accident, she was operating her car at an unlawful rate of speed. If the policy exempts plaintiff in error from liability in such a case it would also be exempt if the car was being driven without a registration certificate; without displaying the license number on the car; with the number covered, altered, defaced or mutilated; with a fictitious number or a number belonging to another vehicle; if the driver failed to give the right of way to another vehicle approaching from the right; if he failed to turn to the right of the center of the beaten track when meeting another vehicle; if he failed to have proper lights or failed to dim them at the proper time, etc. All of these various acts and omissions, and many others, are violations of the law. After providing specific penalties for the violation of certain sections of the Motor Vehicle Law the statute fixes a penalty of $100 for the violation of any section or provision thereof for which no specific penalty is provided. Motor Vehicle Law, section 43, Cahill’s St. ch. 95a, 1f 48. In addition to the said various acts and omissions an operator of a motor car may violate some of the laws and ordinances regulating traffic.

In the abstract of the provisions of the policy the clauses set out in the plea and designated as (h) and (i) are shown to be but a single clause which reads as follows: “If assured sells, or if said motor car illegally transports intoxicating liquor, while being used, operated or engaged in violation of law.” But whether this provision is a single clause or two clauses is not very material. The question is, How should the language be construed? We all know that nearly all automobile accidents are due to the fact that some law has been violated. If the language in question is to be construed so as to relieve plaintiff in error from liability in all cases where the insured was operating the car in violation of law at the time of the accident, the insured would have no protection in most cases.

If we divide the language in question into two clauses, as plaintiff in error has in its plea, then it would be relieved from liability, “(h) if assured sells, or if said motor car illegally transports intoxicating liquor.” Suppose defendant in error had made an illegal sale of intoxicating liquor, or that the car illegally transported such liquor, after the policy was issued and more than six months prior to the time of the accident in question. Would anyone contend, seriously, that such sale or transportation would deprive her of the benefit of her insurance? We think not.

The policy of insurance should not be so framed as to be susceptible of one construction in the hands of the soliciting agent, and of quite a different one in the hands of the adjuster. Travelers’ Ins. Co. v. Dunlap, 160 Ill. 642-647. Contracts of insurance are construed strictly against the insurer and liberally in favor of the insured, and whére two interpretations, equally reasonable, are possible, that construction should be adopted which will enable the beneficiary to recover. Zeman v. North American Union, 263 Ill. 304. And where there are conflicting clauses in the contract, the one which affords the most protection to the insured will control. Monahan v. Fidelity Mut. Life Ins. Co., 242 Ill. 488.

The policy in question is so framed as to be susceptible of one construction in the hands of the soliciting agent, and of quite a different one in the hands of the adjuster. When the provision in question is construed in accordance with the foregoing decisions the only reasonable conclusion is that it means that plaintiff in error was to be exempt from liability if the accident occurred while defendant in error was using or operating her car in the unlawful sale or transportation of intoxicating liquor. We cannot believe that this language was inserted in the policy for the purpose of relieving plaintiff in error from liability in almost every accident that might befall defendant in error. If we are right in our conclusion as to the meaning of the language, the first special plea is bad:

But the plea is not good even if the provision should be so construed as to relieve plaintiff in error from liability in all cases, where, at the time of the accident, the insured was operating her car in violation of law. The plea avers that she was operating her car in violation to wit: At a speed greater than reasonable and proper, to wit: Greater speed than 15 miles per hour, etc. The statute does not fix a speed limit of 15 miles per hour in a residential portion of an incorporated^ city, but prohibits a rate of speed greater than is reasonable and proper having regard to the traffic and use of the way, or so as to endanger the life or limb or injure'the property of any person. Stansfield v. Wood, 231 Ill. App. 586; Wallace v. Yellow Cab Co., 238 Ill. App. 283; Morrison v. Flowers, 308 Ill. 189-195.

The replication to said first special plea averred that when defendant in error was sued by Edith Peacher the summons was sent to plaintiff in error who assumed to defend the suit and that by reason thereof plaintiff in error waived all question of her violation of law in the operation of her car as well as the provision of the policy set out in the said plea. The demurrer to the replication was overruled. Plaintiff in error had contracted to defend any suit brought against defendant in error and its failure to do so would have rendered it liable. Kinnan v. Charles B. Hurst Co., 317 Ill. 251. We think that the doing of what plaintiff in error was obligated to do should not be held to be a waiver of any of the provisions of the contract when a failure to do it would render it liable. The replication was not a good one but it was sufficient answer to a bad plea. Gould’s Pl. ch. 9, § 37; People v. Central Tel. Co., 232 Ill. 260-276; Weatherford v. School Directors of Dist. No. 7, 317 Ill. 495-500.

Plaintiff in error cannot complain that the defective replication was allowed to stand to a defective plea, 1 Chitty’s Pl. p. 668; Louisville N. A. & C. Ry. Co. v. Carson, 169 Ill. 247-255. The replication and the plea being bad, they must fall together. Illinois Fire Ins. Co. v. Stanton, 57 Ill. 354-359.

The second special plea set out other provisions of the policy already referred to and averred that since the accident occurred defendant in error settled the claim of Edith Peacher and incurred expenses without the consent of plaintiff in error previously given in writing. The replication thereto was to the effect that after judgment had been rendered against her, plaintiff in. error, who was defending her in the suit, neglected to file an appeal bond; that an execution was issued on the judgment; that plaintiff in error abandoned the appeal; that by reason of the execution against her she was compelled to and did pay the amount of the judgment. The demurrer to the replication was properly overruled. Under the provisions of the contract it was the duty of plaintiff in error to provide an appeal bond if it desired to litigate further. Having failed to do so defendant in error had a right to pay the judgment and is entitled to maintain an action for an amount not in excess of that stipulated in the policy. Seessel v. New Amsterdam Casualty Co., 140 Tenn. 253, 204 S. W. 428; Johnson v. Maryland Casualty Co., 103 Neb. 371, 171 N. W. 908; Rochester Min. Co. v. Maryland Casualty Co., 143 Mo. App. 555, 128 S. W. 204; E. M. Upton Cold Storage Co. v. Pacific Coast Casualty Co., 162 App. Div. 842, 147 N. Y. S. 765; Pacific Coast Casualty Co. v. General Bonding & Casualty Ins. Co., 240 Fed. 36.

The third special plea avers that after Edith Peacher recovered the judgment plaintiff in error procured a bill of exceptions and filed the same within the time allowed and was taking the further necessary steps to take the case to the Appellate Court of which defendant in error had notice; that in paying said judgment defendant in error interfered with such legal proceedings contrary to the terms of her contract. The plea does not aver that an appeal bond had been filed, or that a supersedeas bond had been filed, or that the time for the filing of the appeal bond had not expired when defendant in error paid the judgment. The demurrer to the plea was properly sustained under the authorities last above cited. Plaintiff in error argues that it intended to take the case to the Appellate Court on a writ of error. If so it should have procured a supersedeas so that an execution could not issue against defendant in error.

It is argued that the court erred in hearing evidence and rendering judgment without a default having been entered against plaintiff in error. Plaintiff in error had appeared and pleaded to the declaration and had elected to stand by its third special plea and its demurrers to the replications to its first and second special pleas. A default would not have been proper. Instead of calling a jury and hearing evidence the proper course would have been for the court to render judgment in favor of defendant in error by nil dicit or for want of a plea. The error in that regard, however, is not such as to require a reversal. Mann v. Brown, 263 Ill. 394; Plaff v. Pacific Exp. Co., 251 Ill. 243. When plaintiff in error withdrew the general issue and elected to stand by its third special plea and its demurrers to the replications there was no issue to be tried by a jury and there was no occasion for the taking of evidence.

It is argued that defendant in error did not prove that she had actually paid the Peacher judgment in cash. As already stated there was no necessity for such proof. But even if there had been an issue as to that question, it would have been an immaterial issue. Under the terms of the policy when Edith Peacher was injured the liability of defendant in error was incurred and when the court rendered judgment against her the loss on account of such liability was' sustained. It would not be necessary for defendant in error to show that she had actually paid the judgment in cash. Ravenswood Hospital v. Casualty Co., 280 Ill. 103.

No reversible error having been pointed out the judgment is affirmed.

Affirmed.