author: Mr. Presiding Justice Biess

text:
    Economy Dairy Company, Appellant, v. Otto Kerner, Individually and as Attorney General of the State of Illinois, and Albert C. Baxter Individually and as Acting Director of Department of Public Health of the State of Illinois, Appellees.
    Gen. No. 9,205.

      Heard in this court at the February term, 1939.
    Opinion filed January 15, 1940.
    Green, Costigan & Wines, of Chicago, for appellant.
    John E. Cassidy, Attorney General, for appellees; Montgomery S. Winning, Assistant Attorney General, of counsel.
   Mr. Presiding Justice Biess

delivered the opinion of the court.

Plaintiff appellant, Economy Dairy Company, a corporation, engaged in the processing and distribution of milk at retail in Cook county, Illinois, filed its complaint for an injunction and mandamus in the circuit court of Sangamon county against Otto Kerner, individually, and as attorney general of the State of Illinois, and Albert C. Baxter, individually, and as acting director of the department of public health of Illinois, as defendants, now appellees herein.

The first count of the complaint sought the issuance of a writ of injunction in equity restraining all civil and criminal prosecutions of the plaintiff for alleged violations of the Pasteurization Act (Ill. Rev. Stat. 1937, ch. 56½, ¶¶ 101 to 114, incl. [Jones Ill. Stats. Ann. 53.087-53.101]). The second count, which is at law, sought the issuance of a writ of mandamus to compel defendant to issue to plaintiff a certificate of approval for its plant under the provisions of said Pasteurization Act. The defendant had previously refused to issue such certificate on the alleged ground that the plaintiff had failed to comply with certain provisions and requirements of said act and of the regulations of the department of public health in effect thereunder. The cause was heard upon complaint and answer and dismissed by the trial court, and an appeal was wrongfully taken to the Supreme Court, which has certified the case to this court for review upon said appeal.

No objection is made by the department of public health to the sale of raw milk in bulk form by the plaintiff pursuant to the requirements of the Pure Food Act, but it is contended that the sale of heated milk processed in such plant under the Pasteurization Act can only be lawfully made to the public in such original sterilized containers in which the milk is placed and sealed within said plant pursuant to the provisions of the statute and rules of the department thereunder and cannot be sold and disposed of at retail in bulk form. It is further contended that the statute expressly prohibits the sale of heated milk in any other form.

Under section 1 of the Pasteurization Act, approved in 1925, as amended in 1935 (being par. 101, chapter 56%, above cited), the various terms of the act are defined. “Pasteurization,” “pasteurized” and similar terms are defined as the process of heating every particle of milk or milk products to a temperature of not less than 142 degrees F., and holding it at such tern-perature for not less than 30 minutes in apparatus approved by the department of public health, or the heating of every particle of milk or milk products to 160 degrees F., and holding it at such temperature or above for not less than 15 seconds. The various milk products are then defined. The definition of “pasteurization plant” given in the above section is as follows:

“ ‘Pasteurization plant’ as used herein shall be taken to include the building, machinery, apparatus, and other equipment and appurtenances necessary and essential in the work of pasteurizing* milk or milk products, tanks and other equipment essential to the storing or handling of the milk while being held for pasteurization, the equipment, machinery, apparatus, and appurtenances for cooling the milk and milk products, and placing the milk and milk products in bottles or other suitable containers, and storing such bottles and containers following* pasteurization.”

Sections 2 and 3 of said act provided for application, inspection and issuance of certificates of approval by the department of public health of plants operated under the provisions of the act. The latter section provided in part as follows:

“No milk or milk products shall be sold or offered for sale with any word or words stating* or indicating that the milk or milk products are pasteurized nor shall the owner or operator of a plant or distributor of milk or milk products indicate by any other means that the milk or milk products are pasteurized, until the State Department of Public Health has issued a certificate of approval for the pasteurization plant in which the milk was pasteurized.
“No person, firm, association, institution, partnership or corporation selling, delivering* or distributing milk or milk products shall heat milk or milk products or subject milk or milk products to other treatment in an effort to make the milk or milk products safe for human consumption or to preserve its keeping qualities unless such, person, firm, association, partnership, institution or corporation shall comply with the provisions of this Act. ’ ’

Section 4 provided for the manner of constructing and remodeling such plants. Section 5 provided that the State department of public health shall prepare and have printed the minimum requirements for the construction, equipment, maintenance and operation of pasteurization plants for which certificates of approval will be issued. Section 6 provided for automatic devices for recording pasteurizing temperatures and for charts and records thereof to be dated and filed with the State department of public health upon request therefor.

Section 7 provided that:

“Bottles, cans or other containers in which pasteurized milk or pasteurized milk products are sold, delivered or distributed shall have been washed, rinsed and sterilized by some efficient means approved by the State Department of Public Health. Said containers shall be plainly tagged, capped or labeled with the name and post office address of the pasteurization plant where said milk or milk products are pasteurized.
“All pasteurized milk and milk products shall be delivered to the consumer in the bottles, cans or other containers in which said milk and milk products are placed in the pasteurization plant. ’ ’

Said section 7 concluded by defining hotels, restaurants and other public eating places as consumers and provided for the manner of storing and handling pasteurized milk and milk products so as not to expose the same to contamination.

Sections 8 to 14 inclusive provided for inspection of plants, certificates of health of employees, scientific analyses of milk samples by the department, revocation and reinstatement of certificates of approval, penalties for violation of its provisions and exempted from the provisions of the act municipalities of more than 500,000 inhabitants which maintained such systems of pasteurization and regulation.

The plaintiff company maintains a plant for heating and processing milk in Cook county, Illinois, and operates two retail milk stores, one at 7314 West Irving Park boulevard and the other at 6540 Milwaukee avenue; the plant of the plaintiff being’ located in rooms to the rear of the first mentioned store. A number of photographs of the rooms, machinery and premises constituting plaintiff’s plant and stores appear as exhibits in the record.

The process of heating, bottling, capping and cooling such portion of the milk as was sold to the consumer in the original bottles or containers in which it was so placed in the pasteurization plant appears to have been in accordance with the minimum requirements of the statute and rules prepared and promulgated by the State department of public health ther’e-under. The plaintiff company sought, however, to store approximately one-third of the milk so heated in ordinary sterilized 10-gallon milk cans, from which the same was at intervals poured into large covered vats in each of the retail stores of the plaintiff, from which vats, pipes and faucets extended through the walls of the cool storage room or compartment into the retail stores where the same was sold to the general public either in paper containers supplied by the clerks of the plaintiff or in miscellaneous containers brought into the store by consumers, which were filled from the faucets and so sold and delivered in bulk or loose form to the consumers.

No printing nor written advertisement concerning the pasteurization of the milk appeared on the bottles or in the stores where the milk and milk products were sold across the counter by the clerks employed therein, but it appears from the evidence that on two occasions, when such inquiry was made, the clerk filled the cus-turners ’ orders by selling milk both in bottles so filled in the plant and in containers brought by the customer and filled from the faucets and stated the same to be pasteurized milk. The president of the company testified that he -had instructed the employees not to represent and sell the same as pasteurized milk. On one of the two occasions in question a jug was filled from the faucet through a funnel taken by a woman clerk from beneath the counter and placed in the jug.

It appears that the “bottles, cans or other containers in which pasteurized milk” was so usually sold and delivered in bulk had not been “washed, rinsed and sterilized by some efficient means approved by the State Department of Public Health,” and that the pasteurized milk so sold and delivered to the consumer in such bottles, cans or other containers had not been placed therein in said pasteurization plant, but were by such sale and delivery in bulk form, whereby they became “exposed to contamination.” All such sales, both in sealed bottles and in bulk form were made without having procured a certificate of approval therefor issued by the State department of public health pursuant to the provisions of the Pasteurization Act, the issuance of which was denied for the reason that the plaintiff sought to sell a portion of its milk so heated and processed in loose or bulk form and subject to contamination in the purchasers’ containers not sterilized pursuant to the provisions of the act, thereby exposing the public health to all the dangers sought to be avoided by compliance with the provisions of the act.

Under the provisions of the above act, it became mandatory that new pasteurization plants submit plans to the department and that the plants be approved and certificates of approval issued before pasteurized milk from such plants may be sold • or distributed. Pasteurized milk must be delivered to the consumer in the sterilized containers in which it was placed in the pasteurization plant and such containers must be tagged, capped or labeled with the name and post office address of the plant where the contents were pasteurized regardless of who the distributor may be. From the evidence of the chemists who testified, it appeared that the bacteria count made from samples of the loose milk was more than double that of the milk sealed in the plant in sterilized containers. The safety and value of pasteurized milk depends not alone upon adequate heating to destroy pathogenic bacteria or disease-inciting organisms, but also in its subsequent freedom from contamination until ready for use by the consumer.

We are disposed to hold that the refusal of the State department of public health to issue its certificate of approval of the above method of processing and selling its products as pasteurized milk unless they discontinued such sale of heated milk in open or bulk form was justified in view of the fact that approximately one-third thereof was being processed and disposed of in open bulk or loose form and not in sterilized and sealed containers.

To the plaintiff’s contention that the above restrictions imposed by the health department under the act would tend to work unjust competitive hardship on its business, it may be said that to permit it to process and sell pasteurized unlabeled milk in loose form and in unsterilized and unsealed containers would not only nullify the provisions and purpose of such legislation, but would constitute a discrimination against all processors and dealers who comply with its terms.

The validity of and the necessity for municipal regulations and legislation protecting milk against contamination by bacteria, disease germs or bacilli has long been recognized in this State and is no longer open to serious question. Under municipal ordinances of the city of Chicago making provision for pasteurization of milk, the necessity and reason for such provisions was recognized by the Supreme Court in the case of Koy v. City of Chicago, 263 Ill. 122, 104 N. E. 1104 (1914), wherein it was said, on pages 130-131: “There is no article of food in more general use than milk; none whose impurity or unwholesomeness may more quickly, more widely and more seriously affect the health of those who use it. The regulation of its sale is an imperative duty which has been universally recognized. This regulation in minute detail is essential, and extends from the health and keeping of the cows which produce the milk, through all the processes of transportation, preservation and delivery to the consumer. Not only may laws and ordinances require that milk offered for sale shall be pure, wholesome and free from the bacilli of any disease, but they may and do, in order to produce this result, prescribe the manner in which such purity, wholesomeness and freedom from disease shall be secured and made to appear. The cows may be required to be registered with a designated public authority; the dairies to be conducted and managed according to prescribed regulations, and, together with the dairy utensils, subjected to inspection; the receptacles in which milk is contained to be of prescribed character and capacity; the labels to be placed according to fixed regulations and to contain certain required information; the milk to be prepared in the manner, at the times and by the means directed and at all times to be subject to inspection. These may be drastic restrictions upon a private business, but experience and the increasing knowledge of the causes of disease and the agencies of its propagation have demonstrated the necessity of such restrictions to the preservation of the public health.”

In view of the passage of the more recent Act of 1939, repealing the Act of 1925 as amended in 1935 and in effect at the time this suit was instituted, which latter Act of 1939 regulates the entire subject matter of pasteurization of milk and milk products, and in express language provides in section 8 thereof (Ill. Rev. Stat. 1939, ch. 56½, ¶122 [Jones Ill. Stats. Ann. 53.183]) that “All pasteurized milk and milk products shall be placed in their final delivery containers in the plant in which they are pasteurized”; that it shall be unlawful for “hotels, soda fountains, restaurants, grocery stores, milk depots, milk stations and similar establishments to sell or serve any pasteurized milk or milk product except in the original container in which it was placed at the point of pasteurization,” except milk products consumed on the premises which may be served from the original container, and further providing that “The sale or distribution of bulk, loose or dipped pasteurized milk or milk which has been heated within the purview of this Act is hereby prohibited,” the questions at issue herein, under any valid act so providing, can remain only as academic or moot questions.

Before either a writ of injunction or of mandamus will issue, the right of the plaintiff to such remedies must clearly and affirmatively appear. We hold that in denying a writ of injunction restraining the department from prosecuting any civil or criminal proceeding's against the plaintiff for alleged violations of the provisions of the above act and in the denial of a writ of mandamus requiring the department to issue a certificate of approval as a pasteurization plant to the plaintiff under the circumstances in evidence herein, the trial court acted properly and that there is no reversible error in the record.

The decree and judgment of the circuit court of Sangamon county will therefore be affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Presiding Justice Riess

license: Public Domain

text:
    First National Bank, Not Individually, But as Cotrustee Under the Last Will and Testament of David Mark Cummings, Deceased et al., Appellees, v. Village of South Pekin, Appellant.
    Gen. No. 9,212.

      Heard in this court at the April term, 1939.
    Opinion filed January 15, 1940.
    Louis P. Dunkelberg, of Pekin, for appellant ; Harold J. Rust, of Pekin, of counsel.
    Ralph Dempsey, of Pekin, for certain appellees.
    Velde & Prettyman, of Pekin, for certain other appellee; Nelson Trottman, of Chicago, of counsel.
    E. E. Horton, of Peoria, and Alfred W. Black, of Pekin, for certain other appellee; E. C. Craig and Charles A. Helsell, both of Chicago, of counsel.
   Mr. Presiding Justice Riess

delivered the opinion of the court.

In this case, the defendant, Village of South Pekin, has appealed from a final order of the county court of Tazewell county entered on August 15, 1938, disconnecting from the village certain areas of land of the petitioners alleged to comprise 20 or more acres located on the border or boundary of the village and not subdivided into lots and blocks, which proceedings were had under the provisions of an act entitled ‘ ‘ An Act providing for the disconnection of land from cities, towns and villages” (Laws of 1935, p. 300), being ch. 24, secs. 385d-385g, Ill. Rev. Stat. 1937 [Jones Ill. Stats. Ann. 21.403(1)-21.403 (4)].

The pertinent sections of the act provide:

‘ ‘ § 1. The owner or owners of any area of land consisting of one or more tracts, lying within the corporate limits of any city, town or villege, may have the same disconnected from such city, town or village under the provisions of this act if such area of land
“ (1) Contains twenty (20) or more acres;
“ (2) Is not subdivided into city lots and blocks;
“ (3) Is located on the border or boundary of the city, town or village;
provided, however, that such disconnection shall not result in the isolation of any part of the said city, town or village from the remainder of such city, town or village.
“§ 2. The owner or owners of any such area of land who desire such disconnection shall file a petition in the County or Circuit Court of the county where the land, or the greater part thereof, is situated, and in such petition shall allege facts in support of such disconnection. The particular city, town or village shall be made defendant, and it, or any taxpayer resident in such municipality, may appear and defend against such petition. If the court finds that the allegations of said petition are true and that such area of land is entitled to disconnection under the provisions of Section 1 of this Act, it shall order said land disconnected from such city, town or village.”

The original petition was filed by the First National Bank and Dexter Cummings as cotrustees under the will of David Mark Cummings, deceased, and Henry H. Benjamin and Forrest N. Williams, who were co-owners of the following lands lying within and sought to be disconnected from said village, viz.: tract one (E% SW%, sec. 27, except 1.14 acres in southeast corner thereof, being 78.86 acres); tract two (NE% SE%, sec. 27, diagonally bisected by right of way strip owned in fee simple by railroad companies into tracts of 23 acres lying northwest of said right of way and 13.40 acres lying southeast thereof), and tract three (NE% NE%, sec. 34 being 39 acres). Subsequently, by leave of court, the several continuous right of way tracts owned in fee by said railroad companies, to wit: tract four (3.60 acres, being right of way strip owned in fee by both the Illinois Central and the Trustees of Chicago & Northwestern Railroads and bisecting tract two as above); tract five (3.54 acres owned by the Illinois Central Railroad and extending along and on both sides of the east line of SE% of sec. 27), and tract six (2.05 acres owned by the Illinois Central Railroad extending along and on both sides of the east boundary line of NE% NE%, sec. 34, and lying within said village) were by an intervening petition filed upon leave of court, also included and a subsequent amended petition specifically describing all six of said tracts was filed by all of said land owners. Motions of the defendant to strike the intervening and subsequent amended petition were overruled by the trial court, and upon evidence heard, a decree providing for disconnecting all six of said tracts was granted. Defendant wrongfully appealed to the Supreme Court and the cause was transferred to this court for hearing on the appeal.

It is conceded by all parties that tract one of 78.66 acres; the part of tract two lying northwest of the railroad right of way and consisting of 23 acres which we will refer to as tract 2a, and tract three, consisting of 39 acres, might each have been properly disconnected from said village under the original petition, as meeting all the requirements of said act, unless such disconnection of tract three would thereby isolate tract six (being the right of way extension along the east side thereof).

It is contended by the village that the portion or area of tract two lying southeast of said railroad right of way and consisting of 13.40 acres, which we will designate as tract 2b, is completely separated from the above 23 acre tract by the intervening railroad right of way, tract four; that tracts 2a and 2b are separate tracts and areas, and tract 2b, of a less area than 20 acres, cannot be so disconnected; that tract four of 3.60 acres, tract five of 3.54 acres and tract six of 2.05 acres, all constituting the railroad rights of way described in the intervening petition and in the subsequent amended petition, cannot be disconnected from said village because said tracts are separately owned from tracts one, two and three and do not comprise an area or tract of 20 or more acres as required by said act.

The petitioners contend to the contrary that the language of the act and intent of the legislature was to permit the owners of separate tracts of land to join together for the purpose of being disconnected from the village if the gross area or respective areas of all such tracts when joined together comprise 20 acres or more and that they thereby meet the acreage requirement of the statute, irrespective of the size or number of separate tracts and owners so joining together to comprise such gross area.

In the case of Punke v. Village of Elliott, 364 Ill. 604, 5 N. E. (2d) 389, Punke had filed a petition in the circuit court of Ford county under the provisions of the above act of 1935 to disconnect a tract of land containing substantially 100 acres from the Village of Elliott, and one Dickerman, owner of a tract of 16.66 acres on the boundary of the village and a tax payer in/ bqt not a resident of the village was, by leave of court;, also permitted to become a party defendant. Separat%motions in the nature of demurrers were filed by said defendant and the village, which were overruled, and the defendants elected to stand by their motions. An order disconnecting petitioner’s land was thereupon entered, from which order the village alone appealed to the Supreme Court. •

In passing upon the validity of the above provisions, the court, speaking through late Chief Justice Herrick, freely discussed the apparent intent and purpose of the legislature in the passage of the amended act and its application to the facts in that case, and what was there said is of material assistance to this court in construing and applying the above act to the facts in the case at bar as indicative of the intention of the legislature, in permitting the owner or owners of tracts containing 20 acres or more to become disconnected from the village where such acreage was not subdivided and was located on the boundary or border of said village and was thereby subjected to excessive tax burdens with little or no benefits in return therefor, although smaller tracts suitable for various purposes were not included in such classification because of the more diverse uses and purposes to which they might be put, as therein indicated.

In discussing the above provisions, the court in that case said at p. 610:

“The act applies to the owners of all tracts of land of twenty acres or more not subdivided into lots or blocks located on the boundary line of any city, town or village, where such disconnection would not result in the isolation of any part of such municipality. ’ ’

It is there further said that:

“Appellant contends the classification of tracts which may be disconnected being limited to those of a minimum of twenty acres is unreasonable. . . . The basis of the act here is acreage or size — not valuation or population,-as is frequently the foundation of legislative acts. Size, where the circumstances justify it, may properly be assumed as the index of legislative enactments. People v. Stokes, 281 Ill. 159, 168.
“The legislature has determined that an evil exists in compelling owners of tracts of twenty acres or more, not subdivided and which border a city or village, to pay taxes for urban benefits. It is obvious that un-subdivided tracts of this size do not possess any characteristics of city or village property. They receive no practical benefits from being within the limits of such municipality and contributing, by paying taxes, to the expense of the maintenance and administration of such local governmental agency. It is true that tracts of less than twenty acres may likewise receive no benefits for the local taxes paid, but that is a criticism addressed against the legislative wisdom rather than a constitutional defect.
“Appellant urges, as an argument against the validity of the statute, that Dickerman, with his 16.66 acres and a hypothetical owner of a 19.5-acre tract were illegally discriminated against by setting the index at twenty acres. If that principle is sound, which we do not believe it is, then such complaint might be made against the classification of counties, which have populations as their index, on which certain types of fees and salaries are based. . . . The legislature may have had in mind that acreage of twenty acres would constitute a small farm and would ordinarily be used for that purpose, while smaller areas might have possibilities as sites for oil stations, bulk plants, road houses, taverns, amusement parks, and other activities which often enter into urban life and constitute such latter premises integral parts of the municipality. If the property subject to severance were fixed at a minimum of ten acres, by the same reasoning as is urged here against the classification the owner of a 9.99-acre tract or an acre-tract not subdivided would have a like cause of complaint against the reasonableness of the legislative grouping. ’ ’

In Town of Gypsum v. Lundgren, 61 Colo. 332, 157 Pac. 195, cited by the appellee herein, it may be noted that the language of the statute under construction therein expressly reads that “whenever a tract or contiguous tracts of land aggregating twenty or more acres in area” (italics ours) seek disconnection, this express provision was properly held in that case to permit more than one owner of contiguous tracts aggregating such acreage to join in a petition for disconnection. No such express language or provision appears in the Illinois Act of 1935.

The Appellate Court case of Gilbert v. Morgan, 98 Ill. App. 281, also cited by appellee, was one wherein the statute provided for such petition by “owners representing a majority of the area of land of any territory within any city or village,” etc., to the city council or village board for disconnection. In that case the classification of acreage was not made and did not control, which classification was held in the case of Punke v. Village of Elliott, supra, to be a proper one and controlling under the provisions of the act of 1935.

Similarly, the classification into tracts of 10 acres or more, where the same were used for agricultural purposes only, under the act of 1933, was condemned and held invalid in the case of Forsythe v. Village of Cooks ville, 356 Ill. 289, 190 N. E. 421, as special legislation because it limits the disconnection of a tract of that acreage to lands used for agricultural purposes only and because of one other requirement therein not appearing in the present statute; not, however, finding fault with the express requirement that the tract contain 10 acres or more in area, reciting (p. 291) as follows:

“The act purports to give to the owner of a tract containing ten acres or more, used exclusively for agricultural purposes, not subdivided and not bounded on more than two sides by subdivided lands and located on the border or boundary of a municipality, the right to have such land disconnected therefrom. It denies that right to the owner of a tract which may be in part used for some other purpose.”

Concerning the construction of statutes providing for the disconnection of territory from a city or village upon petition of property owners, it was early held (1874) that the language of the legislature “being in derogation of the common law, it should be construed strictly, and the city, and others interested, might properly insist that nothing should be taken in favor of the petitioners by intendment merely.” City of Galesburg v. Hawkinson, 75 Ill. 152,155.

Here, it cannot be fairly said that the railroad properties, furnishing freight and passenger service to the public, much of which property, including its depot, switches and sidings, immediately adjoin and are reached and served by the village streets and would be so served by lights, water, drainage, police and fire protection or other improvements and benefits common to property owners of a city or village government, does not possess “urban benefits” or “do not possess any characteristics of city or village property” or that “they receive no practical benefit from being within the limits of such municipality and contributing, by paying taxes, to the expense of the maintenance and administration of such local governmental agency.” On the contrary, they peculiarly serve the public and receive benefits from such local governmental agencies, and unless they constitute areas or tracts of 20 or more acres and otherwise meet the requirements of said act, we hold that they cannot, by combining smaller acreage with other property owners, bring themselves within the language and intent of the above statutory provisions, and thereby avoid all burdens incidental to such local government.

We further hold that since tracts five and six constitute a continuous right of way, tracks, siding and railroad property of the Illinois Central Railroad, no part thereof would be isolated from the remainder of the village by disconnection of tract three. That portion of said railroad right of way and of tract five, upon which its depot, buildings and much of its switches and yards are principally located, immediately adjoins and is served by the subdivided streets and is adjacent to the lots and blocks of said village and located on the SE%, section 27, as shown on the exhibited plat thereof appearing in the record. Tract six is a southerly continuation of said tract five from said depot and subdivision and lying within said village; all being a continuous part of said right of way and railroad property.

Separate “Tract 2B,” containing 13.40 acres, touches no boundary line of the village, since it is bounded on the east by railroad “Tract Five” and therefore does not meet such statutory requirement, nor does this tract meet the minimum acreage requirement of the act. Similarly, if the statute were construed in accordance with appellees’ contentions, numerous adjoining tracts having separate owners and small acreage, only one of which was located on the boundary line, could by the simple expedient of uniting their properties in the same petition, avoid both the minimum acreage and boundary line requirements expressly set forth in the act and thus nullify its purpose and intent, as indicated in the Punke case, supra, and as we construe it herein.

It is contended by the appellant that it was error for the trial court to permit other property owners to intervene in the pending cause because the same was instituted under a special statutory proceeding. With this contention, we cannot entirely agree, since the Civil Practice Act controls in all matters of procedure wherein the special statutes are silent.

In Wintersteen v. National Cooperage & Woodenware Co., 361 Ill. 95, 197 N. E. 578,. it is said at p. 109:

“Where there are express provisions in the special statutes relating to procedure those provisions will necessarily control, but where the special statutes are silent as to any mode of procedure which is contemplated or required by a general law then the provisions of the general law may be applied.”

Concerning the application of the Civil Practice Act to proceedings regulated by special statutes, rule 2 of the Supreme Court (ch. 110, sec. 259.2, Ill. Rev. Stat. 1937 [Jones Ill. Stats. Ann. 105.02]) provides that “the separate statutes shall control, to the extent to which they regulate procedure in such actions, but the Civil Practice Act shall apply to matters of procedure not so regulated by separate statutes.”

The law does not encourage a multiplicity of suits when the same object can be satisfactorily attained in one suit.

However, while we believe that another land owner .or land owners, joint or co-owner, of tracts properly coming within the purview of said act might intervene and be disconnected in a case meeting all the requirements of the above statute, we hold that the intervening petition herein should have been stricken upon the motion of the defendant because the same did not state sufficient facts to bring the intervening petitioners within the requirements of the statute; nor should the motion to strike the amended petition have been denied, for the same reason.

We further hold that the county court of Tazewell county erred in disconnecting tracts four, five and six described in its decree and the amended petition and in so disconnecting that portion of tract two herein identified as tract 2b from the Village of South Pekin.

The decree and judgment of the county court of Tazewell county will therefore be reversed and the cause remanded to said court with directions to proceed in accordance with the holdings herein.

Reversed and remanded with directions.


author: Mr. Justice Fulton

text:
    Paul Clayton Carter et al., Appellees, v. Ray Geeseman, Appellant.
    Gen. No. 9,169.

      Heard in this court at the October term, 1938.
    Opinion filed January 15, 1940.
    Taff & Putman, of Canton, for appellant.
    Burnett M. Chiperfield, Claude E. Chiperfield and Robert B. Chiperfield, all of Canton, for appel-lees ; Chiperfield & Chiperfield, of counsel.
   Mr. Justice Fulton

delivered the opinion of the court.

This is an appeal from an order of the circuit court of Fulton county, setting aside the verdicts of a jury rendered in said cause and granting plaintiffs’ motion for a new trial. There were eight plaintiffs in the cause; each seeking to recover damages either to person or property, which they claim were caused by the negligence of the defendant in the operation of his automobile. In his petition for leave to appeal the defendant contends that the trial court abused its discretion in granting a new trial and thereby deprived the defendant petitioner the benefit of a trial by jury. It is the theory of the plaintiffs appellees, that the verdict of the jury was wholly and entirely opposed to the weight of the evidence and that the court properly awarded a new trial. The record discloses the opinion of the trial court and his reasons for granting a new trial.

The evidence shows that the defendant Gfeeseman on May 26, 1937 was driving his automobile in an easterly direction on State Route No. 9, about seven miles west of Canton, Illinois, at the rate of approximately 15 miles per hour, and intended to go to the farm home of his brother on the north side of said highway by means of a driveway connecting with the said hard road where the accident in question later took place. Traveling behind him and in the same direction was a Dodge pick-np truck driven by the plaintiff Eleanor Carter, and following the Carter truck was a Chevrolet sedan driven by the plaintiff Palmer. Geeseman, the defendant was driving alone. In the truck seated on the front seat with Mrs. Carter was Mrs. Dilts at her side and Betty Miller on the outside. In the rear of the truck, seated in the bottom of the truck, facing the west were Mr. Dilts and Mr. Carter. Each of the ladies held a small child on her lap. In the Palmer car was Mr. Palmer, who was driving, Mrs. Palmer to his right and three ladies riding in the rear seat. As Geeseman approached the scene of the accident he slowed down to about 10 or 12 miles per hour and turned to the left with the intention of entering the private driveway extending to his brother’s residence. The Carter truck was traveling 25 to 30 miles per hour as it approached the scene of the accident and when it was about 50 or 60 feet to the rear of the Geeseman car, started to pass the defendant by driving to the left side of the roadway. As Geeseman was proceeding to enter the driveway and while his car was still on the pavement the left rear of his car was struck by the Dodge pick-up truck. When the two cars stopped their positions were such that there was not sufficient space for a car to pass between them, and the Palmer car collided with the other two cars. Plaintiffs’ theory is that Geeseman was negligent in failing to give any signal of his intention to turn to the left as required by the Motor Vehicle Act. Paragraph 162 of ch. 95½ [Ill. Rev. Stat. 1939; Jones Ill. Stats. Ann. 85.194].

The testimony of the plaintiffs tended to show that shortly before the collision there was a distance of about 50 or 60 feet between the Geeseman car and the Carter truck, and about the same distance between the truck and the Palmer car; that the other two cars were gaining upon the Geeseman car; that about the time the defendant made the turn to the left the Carter car was from 10 to 25 feet behind him. The three ladies in the front seat of the truck and Mr. and Mrs. Palmer all testified that no warning signal was given by Geeseman of his .intention to ¡turn to the left. Palmer and his wife testified that they were driving about 40 miles per hour just before the accident and that they heard the Carter car sound its horn and pull to the left side of the road for the purpose of passing the Geeseman car; that Palmer also pulled his car to the left side of the road with the intention of passing when the Carter car had passed.

Geeseman testified that he extended his left arm out horizontally from a point 300 to 500 feet west of the driveway and began to slow down to make the turn; that when he first observed the other two cars the Carter truck was traveling about 30 to 35 miles per hour and the Palmer car 60 miles per hour, and both gaining upon him rapidly; that having given the warning signal, he assumed his intention to turn into the driveway was known to those following and made the turn into the driveway; that he observed nothing about the Carter truck to indicate its driver intended to pass on the left. Arthur Churchill, a witness for the defendant, corroborated Geeseman with reference to the speed of the cars and on cross-examination stated that at the time the Geeseman car turned to the left the Carter car was probably 30 feet behind him.

The primary reason assigned by the trial court for granting a new trial was because the statute above referred to as applied to the defendant required that “No person shall turn a vehicle from a direct course upon a highway unless, and until, such movement can be made with reasonable safety”; that Geeseman knew the Carter car was approaching him rapidly at the rate of 30 miles per hour and that the duty rested on Geeseman to ascertain if he could make the turn with reasonable safety; that from the undisputed facts the minds of all reasonable men would reach a con-elusion that a car could not be turned with reasonable safety under such conditions. The court further reasoned that there were eight plaintiffs, some of whom were passengers in the truck or ear, and that negligence of the driver could not be imputable to them. He further stated that on account of the suddenness with which the Geeseman car turned and with which the collision occurred it could not be said that the pas! sengers were negligent in failing to caution the driver that she was driving the truck into a dangerous position.

In considering this appeal from an order of the trial court in granting a new trial we are not unmindful that the Supreme Court have said that the question of contributory negligence is one preeminently for the consideration of a jury, as such negligence cannot be defined in exact terms, and unless it can be said that the action of a person is clearly and palpably negligent, it is not within the province of the court to substitute its judgment for that of the jury. Blumb v. Gets, 366 Ill. 273.

Prior to the enactment of the new Civil Practice Act the application for a new trial was addressed to the judicial discretion of the trial court. In Belden v. Innis, 84 Ill. 78, the court said that in all cases where a verdict is manifestly and palpably against the weight of the evidence, the judge in the trial court should promptly take the responsibility of setting aside the verdict, and a failure to do so is error. In Donelson v. East St. Louis & S. Ry. Co., 235 Ill. 625, the court stated the rule as follows: ‘ ‘ The constitution, which provides that the right of trial by jury as previously enjoyed shall remain inviolate, does not make the jury the final judges of the weight of the evidence. ... It is the duty of the trial judge to set it aside and grant a new trial, and a failure to do so is error, for which a judgment must be reversed.”

Since the passage of the new Civil Practice Act, the discretion exercised by a trial court, where it grants a new trial, is now subject to review, and the right to appeal from such an order is controlled by section 77 of said act and by Rule 30 of the Supreme Court. Golliday v. City of Alton, 277 Ill. App. 26; Wettaw v. Retail Hardware Mutual Fire Ins. Co., 285 Ill. App. 394. Since the adoption of said Supreme Court rule and the passage of said act, cases on appeal where it was contended that the trial court erred in granting a motion for a new trial have frequently been reviewed by our Appellate Courts and they have uniformly held that where such motions are based on questions of fact arising at the trial, a court of review will not interfere with the order granting the new trial unless the record shows a clear abuse of discretion of the trial court in granting the motion. Village of La Grange v. Clark, 278 Ill. App. 269; Tone v. Halsey, Stuart & Co., Inc., 286 Ill. App. 169.

In Gavin v. Keter, 278 Ill. App. 308, the court said “A trial court has more latitude than this court in passing upon the verdict of a jury. The allowance or refusal of a new trial on the weight of the evidence is peculiarly within the discretion of the trial court and he is warranted in granting a new trial if a plaintiff has failed to sustain his claim by a preponderance of the evidence. In passing upon the question as to whether or not the trial court in such case was justified in granting a new trial, we must bear in mind that there are many things which a trial judge observes on a trial that do not appear from the printed record,— the appearance of a witness, his or her manner of testifying, and other circumstances that greatly aid the trial court in determining the credibility of a witness and the weight, if any, that should be attached to his or her testimony.”

After a full examination of the testimony and considering the very close question of whether or not the defendant Geeseman could make the left turn in this case with reasonable safety under the conditions disclosed by the record, we do not feel justified in setting aside the order of the trial court granting the plaintiffs a new trial. The order of the circuit court of Fulton county granting the plaintiffs a new trial is therefore affirmed.

Affirmed.


text:
    Walrus Manufacturing Company, Appellee, v. Marjorie S. Wilcox, Trading as Wayside Inn, Appellant.
    Gen. No. 9,210.
    Heard in this court at the October term, 1939.
    Opinion filed January 15, 1940.

      C. C. Martin and F. R. Wiley, both of Decatur, for appellant.
    Robert N. Patterson, of Decatur, for appellee.
   Mr. Justice Fulton

delivered the opinion of the court.

This is an appeal from an order of the circuit court of Macon county, Illinois, denying appellants motion to open up a judgment entered by confession and for leave to plead. Judgment was taken on the 18th day of May, A. D. 1939. On April 16, 1938, the appellant delivered her judgment note to the appellee corporation in the sum of $2,250, payable $1,125 on July 12,1938, and $1,-125 on August 12, 1938, without interest until after the maturity of each instalment. On July 20, 1938, the appellant paid the appellee the sum of $1,125, which was applied by appellee upon the note held by appellee. On August 23, 1938, appellant paid to appellee the further sum of $1,125. Both payments were made by check and both checks were cashed by the appellee.

Appellee did not send the note to appellant but on September 16,1938, entered judgment by confession on the note for the sum of $345.72, plus $51.78 attorney’s fees, or a total of $397.50, and at once had execution issued on the judgment. The next day the appellant filed her motion to open up the judgment, supported by her affidavit. On October 6, 1938, the appellee filed its motion asking that the court deny appellant’s motion and supported it by affidavit. On October 10, 1938, appellant, after obtaining leave of court, filed her amended motion and affidavit. On the same day-the appellee filed its motion asking that the court deny the amended motion of the appellant. In support of this motion the appellee filed three counter-affidavits. Upon a hearing, the court denied the motion of the appellant to open up the judgment.

The appellant’s amended affidavit sets forth that she paid the sum of $2,250 to the appellee on July 19 and August 23, 1938 in full of the amount due on the note and the appellee accepted such payments; that when she took the second check for $1,125' on August 23rd to the office of the appellee, and there presented it to B. I. Gray, the appellee’s manager, she expressly told him to apply the check on the note; that he so accepted the check and promised her that he would return .the note the following day by mail. The affidavit further stated that she subsequently learned that the appellee claimed to have applied part of the proceeds of the check in payment of what appellee claimed was due it on an open account; that at the time she delivered the check to the appellee, she did not owe it anything on an open account; that there was a dispute about an open account which the appellee wrongfully claimed she owed it. The appellant further stated in the affidavit that she knew the above facts of her own personal knowledge and that she was a competent witness to testify to them.

The three counter-affidavits filed by the appellee all went to the merits of the controversy. One affidavit was made by B. I. Gray, vice-president and manager of the appellee corporation, one by Louise Wright, its bookkeeper, and one by B. C. Zeiss, its treasurer. The affidavit of Gray stated that on August 23, 1938, the appellant was indebted to appellee, on an open account in the sum of $341.28 and that on the same date she was indebted to appellee in the further sum of $1,125 for the balance due upon the promissory note dated April 18, 1938; that on August 23rd the appellant at the solicitation and request of appellee called at its office and personally handed to the affiant Gray a check for the sum of $1,125; that at the time the check was delivered he stated to appellee that the check was insufficient to cover her indebtedness to appellee, and that on the advice of their attorney they would not accept the same to apply upon the promissory note held by the appellee until the open account owed by the appellant had been fully paid; that the open account had been incurred during the months of April, May, June and July, 1938, and was long since past due; that at no time during the conversation did the appellant direct the affiant to apply such check toward the payment of her said promissory note held by the appellee; that the affiant accepted said check from appellant on August 23rd and credited the sum of $341.28 therefrom in payment of the open account and the balance of $783.72 was applied upon the note; that at no time during such conversation did the appellant ask for or demand the return to her of the promissory note held by appellee and sued upon in this cause.

The other two affidavits by employees of appellee stated that they were present during the conversation between Gray and the appellant; that they heard Gray tell appellant that the check was short and could not be accepted in full payment of the debt due to the appellee by the appellant; that at no time during the conversation did they hear the appellant direct or instruct Mr. Gray to apply such check or payment toward or on the note of appellant held by the appellee, or ask for the return of said note, being the note sued upon in this cause.

It is the contention of the appellant that the court erred in denying her motion to open up the judgment, and in failing to assume the appellant’s affidavit as true for the purpose of the motion. Also in not holding that the said affidavit did set out a prima facie defense.

Prior to the adoption of Eule 26 by the Supreme Court of Illinois, following the passage of the new Civil Practice Act, it was the well-established practice that on a motion to open up a judgment entered by confession, the only question properly before the court was whether the defendant had set up a meritorious defense, and whether defendant was chargeable with such a degree of negligence as to leave him no standing in court. Elaborated Ready Roofing Co. v. Hunter, 262 Ill. App. 380. In the present case there is no question as to diligence. On a motion to vacate such a judgment it is necessary for a defendant to show a defense prima facie on the merits. Gilchrist Transportation Co. v. North Grain Co., 204 Ill. 510. Counter-affidavits going to the merits of the defense were not admissible. Continental Const. Co. v. Henderson County Public Service Co., 227 Ill. App. 43. In Mendell v. Kimball, 85 Ill. 582, the court said:

‘ ‘ The record in this case shows that counter affidavits were read by plaintiffs on the hearing of the motion to set aside this default. This is a vicious practice. Courts cannot do justice to parties in thus trying the merits upon affidavits, when the affiants are not subject to cross-examination. ’ ’

The basis for said rule of practice was because it would oftentimes rob a party of the right of trial by jury and in any event there would be no opportunity given of seeing or hearing the witnesses, to cross-examine or to accurately weigh the evidence.

We do not believe that Supreme Court Rule 26 provides for any radical departure from this well-established practice. The rule provides:

“A motion to open a judgment by confession shall be supported by affidavit in the manner provided by Rule 15 for summary judgments, and if the motion and affidavit disclose a prima facie defense on the merits to the whole or a part of the plaintiff’s demand, the court shall set such motion down for hearing. The plaintiff may file counter-affidavits. If, at the hearing upon such motion, it shall appear that the defendant has a defense on the merits to the whole or a part of the plaintiff’s demand and that he has been diligent in presenting his motion to open such judgment, the court shall then sustain the motion either as to the whole of the judgment or as to such part thereof as to which a good defense has been shown, and the case shall thereafter proceed to trial, and the complaint, motion and affidavit, and counter-affidavits shall constitute the pleadings unless the parties, or either of them, shall ask leave to file further pleadings.”

It appears to us that the purpose of the Supreme Court in adopting this rule was to clarify and simplify the established practice and not to change it so that causes could be tried by affidavits.

In the present case the affidavit filed by the appellant in support of the motion to open up the judgment discloses a prima facie defense on the merits to the whole or a part of the plaintiff’s demand. She stated positively that she delivered the checks, and expressly told the manager of the appellee corporation to apply them upon the note or obligation sued on, in full payment of the same; that he so accepted the check and said that he would mail her the note on the next day. She further stated very definitely that at the time she delivered the check on August 23rd she did not owe the appellee anything on an open account. These facts together with the counter-affidavits raised two issues of facts: One as to whether or not appellant directed the agent of appellee to apply the payment of August 23rd on the note in question and in full payment thereof, and the other, whether or not she owed anything to appellee on an open account. Those questions should have been tried by a court upon the pleadings and not on the affidavits.

While there does not seem to be any case construing the function of counter-affidavits under Supreme Court Rule 26, there is some indication by that court of their views on the trial of causes on affidavits in the recent case of Diversey Liquidating Corp. v. Neunkirchen, 370 Ill. 523. In that case the court was considering its Rule 15, providing for an affidavit in proceedings for summary judgments, and stated: ‘ ‘ The purpose of a proceeding for summary judgment is to determine whether a defense exists. Where a defense raising an issue of fact as to plaintiff’s right to recover is set up, a summary judgment must be denied.”

Buie 26 requires an affidavit similar to the one provided for in Buie 15 and the above language is quite significant as applied to the facts in this case.

It is our judgment that the circuit court incorrectly denied appellant’s motion to open up the judgment and the order of that court is reversed and the cause remanded with directions to grant appellant’s motion to open the judgment for the purpose of allowing appellant to defend, permitting the judgment to stand as security until the merits of the case are heard and determined.

Reversed and remanded with directions.


text:
    Jessie Nice, Administratrix of Estate of Earl D. Nice, Deceased, Appellee, v. Illinois Central Railroad Company, Appellant.
    Gen. No. 9,213.

      Heard in this court at the October term, 1939.
    Opinion filed January 15, 1940.
    C. H. Woods, of Lincoln, for appellant; E. O. Craig, V. W. Foster, and C. A. Helsell, all of Chicago, of counsel.
    Trapp & Trapp, of Lincoln, for appellee.
   Mr. Justice Fulton

delivered the opinion of the court.

Shortly after eleven o ’clock in the forenoon of February 22, 1937, Earl D. Nice while driving his automobile south across the tracks of the appellant Illinois Central Railroad Company, in the village of Chestnut, Illinois, was struck by one of the appellant’s trains as a result of which the said Earl D. Nice sustained injuries from which he died instantly. This action was brought by the appellee, Jessie Nice, as administratrix to recover damages for her husband’s death. A trial in the circuit court of Logan county resulted in a verdict by a jury in the sum of $1,500 in favor of appellee, and upon this verdict judgment was entered by the court. This appeal is taken to reverse that judgment.

Chestnut is a small unincorporated village of about 300 people, The main track of the Illinois Central Railroad passes through Chestnut in a southwesterly and northeasterly direction. The main street of the village extended east and west north of the railroad right of way, and upon which the business places faced south. On the east side of this business block was located Dauphin street, which ran north and south and crossed the railroad approximately 140 feet south of the southeast corner of the business block, and about one block north of the high school and grade school building. There is also north of the main track a switch or business track with several buildings such as an elevator, a cement house, a coal shed, two small coal houses and a loading ramp, located west of Dauphin street and about six feet north of the business track. Between the business track and the main track is a depot and platform of the railroad, located west of Dauphin street and a short distance west of the depot is placed a tool house and an outdoor toilet. Where the roadway of Dauphin street passes over the tracks there is a space of 21 feet in width that is filled with crushed rock material flush with the rails, so as to make a smooth and even crossing. From this crossing to the switch track north thereof is a distance of 55 feet. One block east of Dauphin street is another north and south street called Logan street which passes over the railroad tracks and a short distance further east is a State aid gravel road intersecting the railroad track.

The accident occurred at the crossing just east of the depot where Dauphin street intersects the railroad track. Immediately to the north of the crossing was a large “stop” sign and also a standard railroad sign with crossarms. There was also immediately north of the crossing on the west side of the roadway a tall signaling post upon which was a swinging disc or wigwag electrically operated which was set in motion automatically at least 20 seconds before any train would arrive at the crossing, and on the top of this signaling post was installed an automatic bell similarly constructed, operated and controlled.

The appellant railroad, prior to and on the day in question operated a fast passenger train, known as the Green Diamond, through the village of Chestnut, at the speed of about 90 miles per hour. On February 22, 1937, Nice, who was a trucker engaged in the general hauling business, had been to one of the elevators in Chestnut with a load of corn. He lived in the vicinity of Chestnut and had for a number of years, and was quite familiar with this particular crossing. After unloading his corn, Nice started down the east and west street north of the railroad, known as Olive street, going east until he came to Dauphin street, where he turned south and headed for the crossing, and when he made the turn south he was about 80 to 100 feet north of it. Just prior to his making the turn and during the entire time he was traveling south on Dauphin street, according to all the testimony of witnesses for both appellee and appellant, except that of Vida Nice, a daughter of the decedent, the wigwag was operating, the automatic crossing bell was ringing, two other cars traveling north on Dauphin street had stopped immediately south of the crossing awaiting the train to approach and pass. The evidence was further undisputed that the horn or whistle and the automatic bell on the engine were continuously sounded as the train approached the crossing. The appellee’s intestate was at all times driving his car at the rate of from 10 to 20 miles per hour until he was struck. One witness, Mrs. Gobiernan, who lived just south of the main track on the east side of Dauphin street, testified that the local agent of appellant always came out on the platform and sometimes stopped children and cars from crossing the tracks as trains approached. She was corroborated somewhat by the testimony of the witness Merritt Williams. Another witness Watson, a mail carrier, testified that he was in the vicinity of the business or switch track as Mice was driving toward the crossing and fearing that Mice had not sensed the impending danger he ran out to the roadway along side of the automobile and pounded on the glass window on the east side of the car which was immediately to the left of the driver and shouted for him to stop. The weather was cloudy and cool with the temperature at about the freezing point. The decedent was 40 years of age and had a wife, son and daughter, who were dependent upon him for support. While the depot and other structures obstructed the view to the west in moving south on Dauphin street there was a point beginning about 64 feet north of the tracks down to a point about 40 feet north where the view was unobstructed down the track for a considerable distance. It was then obscured again until a person came to a point about 15 or 16 feet north of the north rail of the track, where the view was again unobstructed.

On the day in question, being a holiday, the agent was absent from the depot. The train was proceeding in a northeasterly direction.

The charges of negligence in the complaint upon which the appellee relies were:

1. That appellant carelessly, negligently and recklessly operated its fast passenger train at a dangerous, reckless and excessive rate of speed.

2. That appellant usually placed a station agent as crossing watchman at the crossing in question to signal and give warning to persons approaching; that such custom was well known to appellee’s intestate and was relied upon by him; and that appellant negligently failed and refused to have its agent or other crossing watchman at the depot on February 22, 1937, for that purpose.

3. That appellant negligently maintained an electric wigwag signaling device at said crossing at such a height above the ground that appellee’s intestate, with ordinary care in approaching, could not see the same.

A motion to direct a verdict was made by appellant both at the close of appellee’s proof and at the close of all of the testimony. The facts in the case are not seriously in dispute.

It is hard for this court to see in this day and age, and under the circumstances proven in this case, how it can determine that it is negligence per se to operate a train at the rate of 90 miles per hour through the village of Chestnut.

Neither can it be reasonably determined from the evidence in this record that the appellant ever assumed the duty of maintaining a crossing watchman at the crossing in question. It is true that when a railroad assumes the duty of maintaining gates or a flagman at the crossing of its tracks with a public street or highway, it is bound to discharge the duty with due care, whether or not it was obligated so to do by statute or ordinance, and is liable for damages to a person injured for a failure to perform such duty, Greenfield v. Terminal R. Ass’n of St. Louis, 289 Ill. App. 147, but the proof in this case falls far short of the assumption of such duty as shown by the opinion in the foregoing-case.

The record is bare of any evidence tending to show that appellee’s intestate had any knowledge of snch custom or relied upon the same. The question of crossing protection and the necessity therefor, and the method and manner of protecting the same is largely within the jurisdiction of the Illinois Commerce Commission and there is no showing here that the crossing in question was such as created special hazards requiring gates, a watchman or other additional warning.

The fact that from a certain point in the highway the view of the wigwag was obscured to the driver of an automobile did not in any manner relieve him of the duty to use due care commensurate with the circumstances. Sunnes v. Illinois Cent. R. Co., 201 Ill. App. 378.

Aside from the questions of negligence on the part of the appellant railroad, there is still the question as to whether or not the appellee has sustained the burden of proving that her intestate was in the exercise of due care and caution for his own safety just prior to and at the time of this accident. We are not unmindful that the Supreme Court has said that the question of contributory negligence is one which is pre-eminently a fact for the consideration of the jury. Blumb v. Getz, 366 Ill. 273. However, in this case we have the picture of a man driving onto a railroad track in the face of many warning signals. The wigwag was in operation, the automatic crossing bell was ringing, a “stop” sign and a standard railroad sign with cross-arms were placed at the crossing within easy view of the driver, another man running alongside the car and slapping the window next to the driver and shouting warning for a distance of 30 to 40 feet, two cars traveling north, stopping on the south side of the track awaiting the approach and passage of the train before proceeding, as well as the horn or whistle and the automatic bell on the engine sounding continuously. Most of these warnings were seen and heard by many people for a distance of 100 feet and over. To utterly disregard all of these signals and warnings seems to us to indicate an entire absence of due care. In Greenwald v. Baltimore & Ohio R. Co., 332 Ill. 627, the Supreme Court of this State said:

‘ ‘ The rule has long been settled in this State that it is the duty of persons about to cross a railroad track to look about them and see if there is danger, and not to go recklessly upon the track but to take proper precaution to avoid accident. It is generally recognized that railroad crossings are dangerous places, and one crossing the same must approach the track with the amount of care commensurate with the known danger, and when a traveler on a public highway fails to use ordinary precaution while driving over a railroad crossing, the general knowledge and experience of mankind condemns such conduct as negligence. . . . The question of due care on the part of a plaintiff is a question for the jury when there is any evidence given on the trial which, with any legitimate inference that may be legally and justifiably drawn therefrom, tends to show the use of due care, but where the evidence, with all legitimate inferences that may be legally and justifiably drawn therefrom, does not tend to show due care on the part of plaintiff the trial court is justified in instructing the jury to return a verdict for defendant. ’ ’

The allegations of the complaint did not properly charge wilful and wanton misconduct and the case was tried and the jury instructed on the theory of general negligence and we deem it too late for the appellee to raise that question in this court.

Because of the view we take of this case it will not be necessary to pass upon the other questions raised in the brief of the appellant and the judgment of the trial court is therefore reversed and the cause remanded to the circuit court of Logan county for a new trial.

Reversed and remanded.


author: Mr. Justice Hayes

text:
    Charles Arthur Ledferd, Appellee, v. Eugene Reardon, Appellant.
    Gen. No. 9,170.
    Heard in this court at the January term, 1939.
    Opinion filed January 15, 1940.
    Carl E. Robinson, of Jacksonville, for appellant.
    James M. Barnes, of Jacksonville, and L. Allan Watt, of Winchester, for appellee.
   Mr. Justice Hayes

delivered the opinion of the court.

This is an appeal from an order of the circuit court of Scott county, granting a new trial, in an action brought by Charles A. Ledferd, plaintiff appellee, hereinafter called plaintiff, against Eugene Reardon, defendant appellant, hereinafter called defendant, to recover damages for personal injury sustained by plaintiff when he was struck by an automobile driven by defendant, in the village of Manchester, on the evening of December 22, 1936.

The declaration charges defendant with general negligence in the operation of his car; also wilful and wanton negligence; also specific negligence in operating an automobile at a speed greater than was reasonable and proper having regard to the traffic and use of the way, and so as not to endanger the life or limb of any person; also in operating- his automobile across the center line of a public highway and upon the left side thereof; also in failing to keep to the right in mailing a left turn at an intersection; also in failing to give a signal on turning from a direct course upon a highway; also in operating his automobile with the intent to make a left turn without due caution in regard to traffic, and in not waiting until he could make such left turn with safety.

The jury found the defendant not guilty. A motion for a new trial was made by the plaintiff and granted by the trial court.

The plaintiff lived at Jacksonville, Illinois, and at the time of the injury was 20 years of age. For some time prior to the date of his injury he had been attending the C. C. C. camp at Jerseyville, Illinois. On December 22, 1936, he was granted a vacation of five days and made arrangements to spend Christmas at his home in Jacksonville. Prior to leaving the camp, he had written his mother to have his brother meet him in Roodhouse or Manchester. He got a ride, with the father of one of the other boys, to Manchester; stopped there and went into the Bandy restaurant. Plaintiff testified that he got a sandwich there, and listened to the Amos and Andy program, which he said was from 6 o’clock p. m., to 6:15 o’clock p. m. He then left the restaurant, carrying a suitcase, and placed the suitcase on the first step, on the east side of the cross walk at the northeast corner of the intersection of the hard road (Main street) with Fifth street. This cross walk is along the north side of Fifth street,-— which runs east and west, — and leads to the concrete slab on Main street. H. S. route sixty-seven (67), runs through the village of Manchester, on Main street. Bandy’s restaurant is at the southwest corner of the intersection in question. Fifth street, going east from this intersection, is 68 feet wide, and the whole surface of it is graveled. On the south side of Fifth street, and the east side of Main street, is a park known as the Public Square.' On the north side of Fifth street the first block, going east from Main street, is solidly built up with store buildings and business places with a narrow sidewalk adjacent to the stores, which sidewalk is higher than the elevation of either Fifth street or Main street, necessitating two steps where the sidewalk crosses Main street at the northeast corner of the \ intersection. There is an electric street light at the corner of this intersection which the proofs show was burning at the time of the accident. Plaintiff testifies that he was standing on the sidewalk, and after a short time a girl came along the sidewalk and he was in the way, so he stepped three or four steps west on the cross walk, and put his suitcase down and waited there for his brother. He fixes this spot as being 15 feet from the east edge of the concrete slab on route sixty-seven (67). He further stated that a car driven by Mr. Taylor was coming from the south, and at the same time a car was coming from the north, driven by the defendant; that “suddenly the defendant swerved his car off in front of the Taylor car and struck me so quickly that it was impossible to get out of the way.”

The record discloses that it was then between 6:30 or 7 o’clock in the evening. It was dark. In addition to the street light, which was overhead at this corner, there were lights in the stores all along the block.

There is a sharp conflict in the testimony of plaintiff and defendant as to where the plaintiff was standing at the time he was struck by the automobile of the defendant. The defendant, and the man who was riding with him at the time of the accident, testified that plaintiff was struck, — not while on the sidewalk, but about 10 or 15 feet south of the sidewalk on the gravel road, and about four feet east of the pavement at the intersection of the two roads.

The weight of the evidence shows that defendant’s car stopped with the front end at about the center line of Fifth street, headed in a southeasterly direction. The plaintiff was about five feet ahead and a little to the right of the automobile. The suitcase was a little further away. The defendant Reardon testified that at this time a car was coming from the south; that the lights blinded him somewhat; that he didn’t stop on the hard road as he had plenty of time to turn left at the intersection; that it was getting close to Christmas and he wanted to see if the stores were open, so he turned at the intersection; that he didn’t see plaintiff until almost the instant when he turned the corner; that he was running in high gear, and that his car traveled about 15 feet after he struck the plaintiff. On cross-examination, defendant was asked if the lights on the car from the south didn’t blind him, and if he didn’t pull to the left? In answer to this question, he answered £ a little. ’ He then added he was far enough down the road to get out of his way; that he didn’t want to stop on the road, and that he had plenty of time. Assuming that plaintiff was standing 10 feet, or even 15 feet south of the sidewalk, which is the position McCracken and defendant respectively place Mm, he would be in a position so as not to be struck, had the defendant observed the law in regard to keeping to the right on a left turn at an intersection. Therefore the defendant was guilty of negligence and violation of the traffic laws under Ms own testimony. There can be little question in the record, as to the negligence of defendant. It also appears from the record that defendant suddenly left the slab and turned left, when he was blinded by a car from the other direction. Defendant turned into the left-hand side of Fifth street, in front of the main business section of the town, and at a point where there was liable to be pedestrian or vehicular travel. He either didn’t or couldn’t see, and was traveling at a rate of speed that was in excess of due caution under the surrounding circumstances.

The remaining* question in the case is that of contributory negligence of the plaintiff. This is a difficult one. It is true plaintiff had a right to use that place in the street so long as he used due care and precaution for his own safety in keeping with the danger that surrounded him. He was looMng for his brother, who apparently was coming from Jacksonville. From the testimony of the plaintiff it would appear that there was uncertainty as to whether Ms brother would meet him at Roodhouse or Manchester. Plaintiff’s testimony shows that he made some remarks indicating that the brother might be in Roodhouse at the same time plaintiff was there. It further appears from the record that plaintiff went on to Manchester, and stopped in Bandy’s restaurant, which is on the west side of Main street in Manchester. If his brother were coming from Jacksonville, the west side of the street would be the natural side for him to wait on, as Jacksonville is north of Manchester on route 67, while Roodhouse is south of Manchester. In place of that, he crosses over and waits on the east side of the highway, which would look as if he had expected his brother to have gone to Eoodhonse and was coming back north on the east side of the road. The record is not clear on this. At that time in the evening it was natural for plaintiff to stand out where his brother passing on the highway would see him.

Plaintiff had a right to use any part of the street in question he chose, so long as he exercised due care for his own safety. Greater care is required where a person is using the street at a point away from the cross walk than at the cross walk. Morrison v. Flowers, 308 Ill. 189.

We are unable to hold that the jury was right in finding the plaintiff guilty of contributory negligence, nor that the trial judge was wrong in setting the verdict aside and granting a new trial. It is true under this record, that plaintiff did not foresee the fact that defendant would suddenly turn off the hard road and make a short left-hand turn at this intersection without giving a signal, and at such rate of speed that plaintiff did not have time to move from the path of the automobile. The defendant at that moment, was blinded by the lights of a car coming* from an opposite direction, which caused him to swerve to the left. These circumstances would justify any court or jury to hesitate before making a finding of contributory negligence that would bar recovery, particularly in a case where the negligence of the defendant is clear and the damage and injury are of a serious nature.

We are unable to say, as a matter of law, that the trial judge abused the discretion vested in him, in allowing the motion for a new trial. He heard the witnesses; had the benefit of first-hand information of all the facts and circumstances of the trial, and he saw the demeanor of the plaintiff and that of the defendant. It does occur to us however, that the defendant lived close to the village of Manchester and traded there. Manchester is in the county of Scott — the same county this case was tried in. As far as the record discloses, plaintiff was a stranger in the locality, and merely a passing traveler on his way from the C. C. C. camp to his home at Jacksonville. These circumstances and incidents could better be passed on by the trial judge than by a court of review. Plaintiff sustained a severe injury, and was incapacitated for a long period of time.

The law is well established that motions for new trials are addressed to the sound judgment of the trial judge and his actions therein will not be reversed except in case of a clear abuse, which must be affirmatively shown. It is further the rule that reviewing courts are more reluctant to interfere with granting of a new trial than the refusal to set aside a verdict. This rule is based upon the theory that the judge who tries the case, having the parties, their witnesses and counsel before him, has an opportunity to observe their demeanor and conduct during the trial. He can note all incidents occurring during its progress which are likely to affect the result thereof, and he is better qualified to judge whether a fair trial has been held and substantial justice done, than an appellate tribunal.

In Couch v. Southern Ry. Co., 294 Ill. App. 490, the court said:

“Previous to the enactment of the Civil Practice Act and section 77 thereof, the award of a new trial was not a final order and hence not reviewable. By the act it was designated as one from which an appeal might be allowed by the reviewing court upon a proper showing. We find that such rulings as have been made by our courts upon the proposition since such act became operative, have been founded upon the general trend of current authority as evidenced by the foregoing quoted decisions, and as stated in Tone v. Halsey, Stuart & Co., Inc., 286 Ill. App. 169, wherein the court, in construing said section 77, said: ‘many decisions of courts where similar statutes have been enacted are cited to the effect that only where the trial court has abused its discretion or proceeded upon some clear or manifest misapprehension of a supposed controlling rule of law, will an order for a new trial be reversed. Even in such cases, decisions indicate that courts are reluctant to reverse, and their power to do so is seldom exercised.’ This case is quoted approvingly in Wagner v. Chicago Motor Coach Co., 288 Ill. App. 402.”

It is the law that the trial judge is allowed broad judgment in the granting of new trials and that his action in so doing will only be reversed where it affirmatively appears that he has clearly and palpably abused his discretion in that regard. Under this record, we are unable to hold that the trial court was guilty of such abuse of his discretion, therefore his order is hereby affirmed.

Order affirmed.


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    Artie A. Brown, Appellant, v. Harry R. Cunningham and I. E. Merritt, Executor of Estate of Mary R. Cunningham, Deceased, Appellees.
    Gen. No. 9,201.
    Heard in this court at the October term, 1939.
    Opinion filed January 15, 1940.

      Couchman & Couchman, of Hoopeston, for appellant ; G. H. Couchman and Henry Couchman, of counsel.
    Dyer & Dyer, of Hoopeston, and Acton, Acton & Baldwin, of Danville, for appellees; W. M. Acton and H. H. Acton, of counsel.
   Mr. Justice Hayes

delivered the opinion of the court.

This is a suit in equity to enforce an assignment of an expectancy, seeking to establish a lien against the inheritance of the assignor or to divest him of title in a certain tract of real estate inherited by him and to vest it in the plaintiff. The case was tried without a jury and only one witness, as most of the facts were stipulated and agreed upon.

Defendant Cunningham, who was the assignor, pleads the statute of limitations, a discharge in bankruptcy, and payment. Plaintiff denies that any payment was made and questions the legality of the two legal defenses.

After a trial, the court rendered a decree against the plaintiff holding that the defense of a discharge in bankruptcy was a sufficient defense.

It appears from the record, that on December 15, 1913, the defendant Harry B. Cunningham, was indebted to Samuel J. Brown for nine hundred sixty-three ($963) dollars, and executed a written assignment, under seal, to secure said debt, assigning all right, title and interest to the extent of $963, that he might have or be entitled to as heir, legatee, or devisee, in and to the estate of his mother, Mary B. Cunningham, at her death, and acknowledged the same before a notary public. On November 22, 1915, the defendant was adjudged a bankrupt in the United States District Court for the Eastern District of Illinois and duly received his discharge, and said debt was scheduled in said bankruptcy proceedings among the liabilities.

It further appears that Samuel J. Brown, died testate on October 27, 1917, and that under his will, all the personal property went to his wife Artie A. Brown, the plaintiff herein. The inventory in his estate, as filed in the probate court, did not list the assignment of Harry R. Cunningham, nor did it list any indebtedness due from Harry R. Cunningham to said estate of Samuel J. Brown, deceased, and said estate of Samuel J. Brown was closed on April 15, 1918.

Mary R. Cunningham, mother of Harry R. Cunningham, died testate on the 11th day of February, 1937, and in her will devised a certain tract of land to her son Harry R. Cunningham, the defendant.

On April 16,1938, Artie A. Brown obtained an order from the probate court of Vermilion county, Illinois, to open the estate of Samuel J. Brown, deceased, and permit the filing of a supplementary inventory, listing for the first time the assignment of Harry R. Cunningham to Samuel J. Brown, being the assignment set up in the complaint in this case.

The rule in Illinois is that an expectancy of an inheritance may be assigned for a good consideration and that equity will enforce the assignment on the theory of specifically performing the contract to convey the inheritance when it vests upon the death of the ancestor. Donough v. Garland, 269 Ill. 565, Hudnall v. Ham, 183 Ill. 486.

Plaintiff contends that a discharge in bankruptcy of one who has assigned his expectancy in an estate to secure a loan does not destroy the hen which equity imposes upon the property, although the legal obligation to pay the debt is terminated, and cites Mallin v. Wenham, 209 Ill. 252; Dumont, Roberts & Co. v. McDougal, 200 Ill. App. 583; and Bridge v. Kedon, 163 Cal. 493, 43 L. R. A. (N. S.) 404. Mallin v. Wenham, supra, was expressly overruled by the Supreme Court of the United States in the case of Local Loan Co. v. Hunt, 292 U. S. 234, 78 L. Ed. 1230, 54 Sup. Ct. 695. The Supreme Court of Illinois in the Mallín case held that the assignment of wages earned in the present employment was not barred by a discharge in bankruptcy. Following the reasoning of that case, the Appellate Court of this State in Dumont v. McDougal, supra, applied the same rule to an assignment of an expectancy of an heir. Section 8 of Art. I of the Constitution of the United States delegates to congress the power to establish uniform laws on the subject of bankruptcy throughout the United States.

Our Supreme Court said in the case of Rothschild & Co. v. Steger & Sons Piano Mfg. Co., 256 Ill. 196, 205: “The constitution of the United States, the laws of Congress made in pursuance thereof, and treaties made under the authority of the United States, are by paragraph 2 of article 6 of the constitution of the United States made the ‘supreme law of the land’ and are binding upon all the courts of all the States, anything to the contrary in the constitution or laws of a State notwithstanding. It follows necessarily from this constitutional provision, that where a suit in the State court involves a question arising under the constitution, laws or treaties of the United States, or, in other words, what is commonly called a ‘Federal question,’ a decision of the United States Supreme Court upon the point at issue is to be regarded as absolutely binding and authoritative, and in such case, if the Supreme Court of a State should entertain a different view, it will follow the Federal Supreme court, reversing and overruling, if necessary, its own previous decisions to the contrary;”

Paragraph 67 (d) of the Bankruptcy Act provides:

“Liens given or accepted in good faith and not in contemplation of or in fraud upon this Act, and for a present consideration, which have been recorded according to law, if record thereof was necessary in order to impart notice, shall, to the extent of snch present consideration only, not be affected by this Act. ” U. S. C. title 11, section 107 (d).

In the Hunt case, the United States Supreme Court cites with approval In re West (D. C.) 128 Fed. 205, 11 Am. Bankr. Rep. 782:

“The discharge in bankruptcy operated to discharge these obligations as of the date of the adjudication, so that the obligations were discharged before the wages intended as security were in existence. The law does not continue an obligation in order that there may be a lien, but only does so because there is one. The effect of the discharge upon the prospective liens was the same as though the debts had been paid before the assigned wages were earned. The wages earned after the adjudication became the property of the bankrupt clear of the claims of all creditors.” On this subject the opinion of the court in the Hunt case says:
“The earning power of an individual is the power to create property; but it is not translated into property within the meaning of the bankruptcy act until it has brought earnings into existence. An adjudication of bankruptcy, followed by a discharge, releases a debtor from all previously incurred debts, with certain exceptions not pertinent here; and it logically cannot be supposed that the act nevertheless intended to keep such debts alive for the purpose of permitting the creation of an enforceable lien upon a subject not existent when the bankruptcy became effective or even arising from, or connected with, pre-existing property but brought into being solely as the fruit of the subsequent labor of the bankrupt.”

In the case at bar, plaintiff attempts to distinguish between the assignment of wages to be earned by labor in the future, and the expectancy of an heir to inherit in the future. Under the rule, as laid down in the Hunt case, there is no difference. The property that the lien is to attach in either case is not in existence at the time of the adjudication of bankruptcy, but in each its creation depends upon future events. In the Hunt case, the court in its opinion points out: “It is important to bear in mind that the present case is one not within the jurisdiction of a state court, but is a dependent suit brought to vindicate decrees of a federal court of bankruptcy entered in the exercise of a jurisdiction essentially federal and exclusive in character.” The court is careful to limit its decision in the Hunt case to bankruptcy cases, and on this point says:

“We find it unnecessary to consider whether this contention would in a different case find support in section 34 of the Judiciary Act of (September 24), 1789, now section 725, title 28, U. S. C., since we are of opinion that it is precluded here by the clear and unmistakable policy of the bankruptcy act. . . . Confining our determination to the case in hand, and leaving prospective liens upon other forms of acquisitions to be dealt with as they may arise, we reject the Illinois decisions as to the effect of an assignment of wages earned after bankruptcy as being destructive of the purpose and spirit of the bankruptcy act.” The court points out in the Hunt case, on public policy, that the bankrupt should have a clean slate and a new start, and in this connection says:
“One of the primary purposes of the bankruptcy act is to ‘relieve the honest debtor from the weight of oppressive indebtedness and permit him to start afresh free from the obligations and responsibilities consequent upon business misfortunes. This purpose of the act has been again and again emphasized by the courts as being of public as well as private interest, in that it gives to the hqnest but unfortunate debtor who surrenders for distribution the property which he owns at the time of bankruptcy, a new opportunity in life and a clear field for future effort, unhampered by the pressure and discouragement of pre-existing debt. The various provisions of the bankruptcy act were adopted in the light of that view and are to be construed when reasonably possible in harmony with it so as to effectuate the general purpose and policy of the act. Local rules subversive of that result cannot be accepted as controlling the action of a federal court.”

The Appellate Court of Illinois, Second District, in Dumont v. McDougal, supra, treated the assignment of an expectancy of an heir the same as an assignment of wages to be earned in the future.

It is true that while the decision in the Hunt case was one regarding the assignment of wages, the principle of the decision is controlling as to the assignment of an expectancy, and no reason can be advanced why the assignment of an expectancy creates a vested present right in property, any more than an assignment of wages to be earned under a present contract of employment.

The circuit court of appeals, In re Skorcz, 67 F. (2d) 187, in refusing to follow the decisions in Illinois, noted that the weight of authority was to the contrary of the Illinois decisions, and said: “it would be strange if the dominant grant to Congress to legislate upon bankruptcy and insolvency, and which, when exercised, supersedes state legislation respecting these matters, should nevertheless be subordinate to the right of each state to determine what is or shall be property, subject to the'terms of the Bankruptcy Act. . . . Future wages are conditional in their nature, being dependent upon performance of the services to be rendered. It follows therefore that an assignment given against such wages cannot create a legal lien since there is no property in being at the time the assignment is given. The lien must therefore be an equitable one which cannot attach until the property comes into being. If in the meantime the debt has been discharged by the action in bankruptcy, the lien falls. ’ ’

In view of the holding in Local Loan Co. v. Hunt, supra, we are compelled to hold that the discharge in bankruptcy was a bar to the assignment of expectancy in this case and affirm the decree of the circuit court.

Decree affirmed.


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    Warner W. Hurst, Appellant, v. American State Bank and Horatio C. Bent, Appellees.
    Gen. No. 9,211.
    Heard in this court at the October term, 1939.
    Opinion filed January 15, 1940.
    Wayne C. Townley and J. Oscar Hall, both of Bloomington, for appellant.
    Costigan & Wollrab, of Bloomington, for appellees.
   Mr. Justice Hayes

delivered the opinion of the court.

Warner W. Hurst, plaintiff appellant herein, recovered judgment in the circuit court of McLean county, against Horatio C. Bent, for one thousand one hundred sixty-seven and 50/100 ($1,167.50) dollars and costs, on June 11, 1937. Execution was issued and returned unsatisfied. On October 10, 1938, Hurst filed a complaint in the nature of a creditor’s bill against Bent and the American State Bank, alleging that the bank had, under its control, money or other property in which Bent had a beneficial interest, and prayed that a full and complete discovery be made and that any money or property in which Bent had an equitable interest be applied in satisfaction of the judgment. Defendants ’ answer admitted the existence and nonpayment of plaintiff’s judgment; but denied that the bank had any money or property under its control which could be applied on the judgment. Their answer also set forth, in reply to the prayer for discovery, that the last will and testament of Edith Neville, deceased, bequeathed twenty five thousand ($25,000.00) dollars in trust to the American State Bank, the income to be paid to Ada C. Bent during her lifetime, and the principal to be paid to Horatio C. Bent, upon the death of the life tenant. The answer further set forth that Ada C. Bent was still living. Plaintiff and defendants both filed motions for judgment on the pleadings. The circuit court of McLean county sustained defendants’ motion and dismissed the complaint. Plaintiff has appealed to this court from that order.

The sole issue presented on this appeal is whether the interest of Bent in the trust fund, set up by the will of Edith Neville can be reached by a creditor’s bill. The clause in the Neville will applicable here is as follows:

“Sixth: I give devise and bequeath to my executor herein named as trustee the sum of Fifty-five Thousand Dollars ($55,000.00) to be applied as follows, that is to say:
“(a) It shall from said fund set apart a fund of Twenty-five Thousand Dollars ($25,000.00) which it shall keep invested in approved interést bearing securities and shall from time to time as the income thereof received pay said income to my beloved aunt, Ada C. Bent, of Bloomington, Illinois during the term of her natural life and at the decease of the said Ada C. Bent, I direct that said fund be paid over to my cousin, Horatio C. Bent, to be his absolutely. ’ ’

There can be no doubt that the above clause created a trust of personal property for Ada C. Bent during her lifetime with a vested remainder in Horatio C. Bent. Nicol v. Morton, 332 Ill. 533; Pearson v. Hanson, 230 Ill. 610.

Section 49 of the Chancery Act (Ill. Rev. Stat. 1937, ch. 22, sec. 49 [Jones Ill. Stats. Ann. 106.12]) provides that a creditor’s bill can be filed “to compel the discovery of any property or thing in action, belonging to the defendant, and of any property, money, or thing in action due to him, or held in trust for him, and to prevent the transfer of any such property, money or thing in action, or the payment or delivery thereof to the defendant, except when such trust has, in good faith, been created by, or the fund so held in trust has proceeded from, some person other than the defendant himself.” Under this provision it is clear that a creditor’s bill cannot be used to reach the interest of a cestui que trust (First Nat. Bank v. Starkey, 190 Ill. App. 532) nor that of a remainderman whose interest is protected by a spendthrift clause (Von Kester v. Scully, 267 Ill. App. 495) or who does not obtain legal title to the trust res upon the death of the life tenant without affirmative action on the part of the trustee. (Kenwood Trust & Savings Bank v. Palmer, 209 Ill. App. 370.)

We do not believe that the interest of Horatio C. Bent falls within any of the exceptions just noted. Under the will of Edith Neville, Ada C. Bent is the cestui que trust and Horatio C. Bent has a vested remainder. No spendthrift clause is contained in the will and upon the death of Ada C. Bent, the principal of the trust is to be paid over to the remainderman without further act on the part of the trustee.

Under these circumstances we believe that the rule laid down in Kenwood Trust & Savings Bank v. Palmer, supra, applies. In that case a testatrix conveyed to her two daughters during their lifetime and, “At the death of the survivor of my two said daughters . . . this trust shall cease and my entire estate then existing, of every kind and nature, both real and personal, and wherever situate, shall be delivered over to my grandchildren then living. . . . ” The Appellate Court for the First District there held that the remainder interest of one of the testatrix’s grandchildren could, under section 49 of the Chancery Act, be reached by a creditor’s bill during the lifetime of the testatrix’s daughters. That court said: “The trustee does not hold the contingent remainder of this property in trust for the defendant. He merely holds a life estate in that property in trust for the two daughters. Where property is held in trust for the benefit of some person during the lifetime of such person, and is to go without any action of the trustee after the expiration of the trust upon the death of the cestui que trust to another, the interest of the latter in the property in question is not within the trust. Bergmann v. Lord, 194 N. Y. 70, 86 N. E. 828.”

We therefore hold that the interest of Horatio C. Bent created by the will of Edith Neville in the property now administered by the American State Bank is subject to sale on a creditor’s bill. By this holding we do not mean that the assets of the trust are to be affected in any way; only the vested remainder of Horatio C. Bent is subject to sale.

The judgment of the circuit court of McLean county is now reversed and the cause is remanded to that court for further proceedings in conformity with this opinion.

Beversed and remanded.