author: Mr. Justice Friend

text:
    Morley Maguire, Appellee, v. Peoria and Pekin Union Railway Company, Appellant.
    Gen. No. 34,971.
    Opinion filed January 20, 1932.
    Rehearing denied February 1, 1932.

      Vernon W. Foster and Eugene E. Horton, for appellant.
    Joseph D. Ryan, for appellee; Frank Johnston, Jr., of counsel.
   Mr. Justice Friend

delivered the opinion of the court.

Plaintiff brought suit in trespass on the case under the Federal Employers’ Liability Act, Cahill’s St. ch. 114, ft 321 et seq., in the superior court of Cook county, to recover damages for injuries sustained by him while an employee of the Cleveland, Cincinnati, Chicago & St. Louis Railway Company, commonly known as the Big Four, because of the alleged negligence of the defendant, Peoria and Pekin Union Railway Company. The case was tried before the court and a jury resulting in a verdict and judgment in favor of the plaintiff for $18,000.

Suit was originally commenced against the Cleveland, Cincinnati, Chicago & St. Louis Railway Company and the Peoria and Eastern Railway Company on May 25, 1929. By an order of court entered on July 16, 1929, leave was granted to make the Peoria and Pekin Union Railway Company, the appellant herein, an additional party defendant, and to amend the pleadings. Summons was issued, directing the sheriff of Cook county to summon the Peoria and Pekin Union Railway Company, a corporation, and the return of the sheriff of Cook county showed service of the writ by delivering a copy thereof to John L. Beven, chairman of the board and agent. The declaration thereafter filed on July 22, 1929, based upon the Federal Employers’ Liability Act, Cahill’s St. ch. 114, jf 321 et seq., did not charge a joint liability or cause of action against all the defendants therein named, but alleged negligence and liability only against the defendant, Peoria and Pekin Union Railway Company, appellant herein. During the trial the other two defendants were dismissed from the case, counsel for plaintiff stating that the other railroads had never-been charged with negligence and were not in the ease.

The first count of the declaration under which the 'cause was heard alleged in substance that on November 3,1928, the Peoria and Pekin Union Railway Company, defendant herein, owned, controlled, and operated a terminal yard in the City of East Peoria, Illinois, which was used by defendant in its business as a common carrier in interstate commerce and in switching and moving freight cars in interstate transportation, and in making up trains and transferring cars and trains by means of connecting tracks to other common carriers by railroad, then using said yard with the permission and consent of the defendant; that on said date plaintiff was employed as a switchman for the Peoria and Eastern Railway Company and was rightfully in said terminal yard in the course of his employment; that said Peoria and Eastern Railway Company, by virtue of a certain lease previously entered into between it and said defendant, was authorized and permitted to operate its engines and cars over the defendant’s railroad and terminal yard; that said Peoria and Eastern Railway Company was on the date aforesaid, at the invitation and with the knowledge and consent of defendant, using said yard, and the Peoria and Eastern Railway Company, in whose employment plaintiff was engaged in interstate transportation, by virtue of the permission granted to it by defendant, then and there became and was the lessee, agent and substitute of the defendant; that by reason of the relationship thus created, defendant became and was subject to a certain act of Congress known as the Federal Employers ’ Liability Act; that it was the duty of defendant to exercise ordinary and reasonable care in the management and operation of its railroad and terminal yard in the making up of said train so as not to injure the plaintiff, or expose him to unusual or extraordinary hazards; that while plaintiff was standing upon one of the cars constituting said interstate train, the defendant negligently operated an engipe along the track on which the train was being made up and propelled said engine against the train of cars, causing the same to be moved suddenly and with unusual force and violence, by reason whereof plaintiff was thrown or caused to fall from the car and to sustain the injuries complained of.

The second count adopted the first paragraph of the first count, and further alleged that it was the duty of plaintiff, as brakeman, to enter said yard and accompany the said train on its interstate journey; that it was .his regular and customary duty to board said train after it was made up by defendant and before the caboose was attached thereto and while it was at a standstill, to adjust and release the brakes on certain of the cars constituting said train, and that in the performance of said duty and in the course of Ms employment, plaintiff did board one of the cars and release the brakes; that defendant, without any notice or warning, carelessly and negligently operated said locomotive along the track and with unusual force propelled said engine against the cars, causing them to jar and move forward unexpectedly and throw plaintiff from said car, as a result of which plaintiff sustained the injuries alleged in the first count.

To this declaration defendant filed a plea to the jurisdiction of the court, and under date of December 20, 1929 by leave of court, filed an amended plea to the jurisdiction, as follows:

“And now comes the above named Peoria & Pekin Union Railway Company, a corporation, by its attorney, and limiting its appearance herein to the sole purpose of this amended plea, by leave of the court first had and obtained, files this, its amended plea to the jurisdiction of this court, and thereby comes and defends, etc., and says that at the time of the commencement of this suit and prior thereto and from thence hitherto it was and is a railroad company, duly organized and existing under and by virtue of the laws of the State of Illinois, by virtue of articles of incorporation, dated September 25, A. D. 1880; that in and by its said articles of incorporation it is authorized and empowered to build or acquire railroads in the Counties of Peoria and Tazewell, Illinois, and not elsewhere, with its principal office in the City of Peoria, Illinois; that since its organization it has owned and operated a railroad in the said Counties of Peoria and Tazewell, Illinois, and not elsewhere, and that its principal office has been and still is in the said City of Peoria; that its place of residence since its organization has been in the said Counties of Peoria and Tazewell, Illinois, and not elsewhere; that its said railroad has never extended into or through the said County of Cook, nor has it done or transacted the business authorized by its charter therein; that at the time of the alleged service of the process of summons in this case upon J. L. Deven, as a director of this company, it was not a resident of nor was it doing business in said County of Cook, nor was it found therein.
“This defendant further avers that the plaintiff herein has sought to confer jurisdiction on this court to try said cause against this defendant by causing service of summons to be made upon one J. L. Seven, a resident of Cook County in the State of Illinois, as a director of this defendant; and the defendant says that said J. L. Seven' is a director of this defendant, but at the time of said alleged service of summons he was not in said Cook County for the purpose of transacting its business, nor was he then transacting the business of this defendant in said county; that the said J. L. Beven at the time of the said service upon him' resided in Cook County and was there for the purpose of transacting his own personal business and the discharge of his duties as a vice president of the Illinois Central Railroad Company, with which he was at the said time and still is connected, and not for the purpose of doing or transacting the business of this defendant. And this it is ready to verify, wherefore it prays judgment if this court will take cognizance of the action aforesaid against this defendant.
“Pboeia & Pekin Union Railway Company,
By Eugene E. Horton,
Its Attorney.”

Plaintiff demurred to the amended plea to the jurisdiction, and the court, by its order of February 1,1930, sustained the demurrer and ordered the defendant to plead over on or before the 24th day of February, 1930. Thereupon, on February 21, 1930, the defendant filed its plea of the general issue, which stated that it was not intended thereby to waive its objection to the jurisdiction of the court over the defendant, but that said plea was filed in obedience to the order of the court that it plead over.

Among other assignments of error, defendant insists that the superior court of Cook county acquired no jurisdiction over the defendant; that having filed its amended plea to the jurisdiction to which a demurrer was sustained by the court, and having been directed by the trial court to plead over, it has a right to raise the jurisdictional question upon appeal to this court.

By its demurrer to the defendant’s amended plea to the jurisdiction, plaintiff admits that defendant is a corporation organized under the laws of Illinois, limited by its charter powers to building or acquiring railroads in the counties of Peoria and Tazewell, and that its principal office is in Peoria, Hlinois; that since its organization it has owned and operated a railroad in said counties of Peoria and Tazewell and not elsewhere, and that its principal office has been, and still is, in the City of Peoria; that its residence is in the counties of Peoria and Tazewell, Illinois, and not elsewhere, and that its railroad does not extend into or through the county of Cook, and that at the time of the alleged service of process upon John L. Seven it was not a resident, nor was it doing business in Cook county; that said Seven is a director of the defendant, but at the time of the alleged service he was not in Cook county for the purpose of transacting the business of the defendant, nor was he transacting such business within said county; that he resided in Cook county and was there for the purpose of transacting his personal business and the discharge of his duties as vice president of the Illinois Central Railroad Company. Two sections of.the Practice Act provide the proper venue and the method of obtaining service upon railroad corporations in the State of Illinois. Cahill’s St. ch. 110, If 6 (section 6, chapter 110,- Smith-Hurd Illinois Revised Statutes 1929) provides:

“It shall not be lawful for any plaintiff to sue any defendant out of the county where the latter resides or may be found, except in local actions, and except that in every species of personal actions in law where there is more than one defendant, individual or corporate, the plaintiff commencing his action where either of them resides, may have his writ or writs, issued directed to any county, or counties where the other defendant, or either of them may be found: Provided, that if a verdict shall not be found or judgment rendered against the defendant or defendants, resident in the county where the action is commenced, judgment shall not be rendered against those defendants who do not reside in the county, unless they appear and defend the action, nor then, if the action is dismissed as to the defendant, or defendants, resident in the county. Actions against a railroad or bridge company, may be brought in the county where its principal office is located, or in the county where the cause of action accrued, or in any county into, or throtigh which its road or bridge may run.”

Section 8 of the same chapter, Cahill’s St. ch. 110, H 8, provides:

“An incorporated company may be served with process by leaving a copy thereof with its president, if he can be found in the county in which the suit is brought, . . . If he shall not be found in the county, . . . then by leaving a copy of the process with any clerk, secretary, superintendent, general agent, cashier, principal, director, engineer, conductor, station agent, or any agent of said company found in the county . . . ; and, in case the proper officer shall make return upon such process that he cannot in his county find any clerk, secretary, superintendent, general agent, cashier, principal, director, engineer, conductor, station agent, or any other agent of said company, then such company may be notified by publication and mail in like manner and with like effect as is provided in sections twelve (12) and thirteen (13) of an Act entitled ‘An Act to regulate the practice in courts of chancery.’ ”

The inquiry presented by the assignment of error upon the jurisdictional question is whether the superior court of Cook county had jurisdiction over the Peoria & Pekin Union Railway Company, defendant in this cause. In the consideration of this question, it will be assumed as fact upon the state of the pleadings that the defendant had its residence and conducted its business only in Peoria and Tazewell counties, Illinois, and not elsewhere, and that the director of defendant, upon whom service was had in Cook county, while residing in said county, was not transacting the business of the defendant, but was there on his personal business and in pursuance of his duties as vice president of another railroad.

The Supreme Court of Illinois, in the early case of Bristol v. Chicago & Aurora B. Co., 15 Ill. 436, held that the language implied by the statute which preceded section 6 of the Practice Act should be deemed to extend to and include bodies politic and corporate as well as individuals, and in passing upon the question as to whether the C. & A. It. It. could lawfully be sued in Cook county, laid down the following general rule:

“Unless, therefore, the corporation had a legal residence in Cook county, the court was without jurisdiction and the suit was properly dismissed. The residence of a corporation, if it can be said to have a residence, is necessarily where it exercises corporate functions. It dwells in the place where its business is done. It is located where its franchises are exercised. It is present where it is engaged in the prosecution of the corporate enterprise. This corporation has a legal residence in any county in which it operates the road or exercises corporate powers and privileges. In legal contemplation, it resides in the counties through which its road passes, and in which it transacts its business.”

It appears to be the settled rule in this State and elsewhere that service upon a director under circumstances such as these confers no jurisdiction as to his corporation. Silsbee v. Quincy Hotel Co., 30 Ill. App. 204, is one of the early and leading cases wherein the foregoing sections of the Practice Act were discussed and construed. The defendant, Quincy Hotel Company, resided in Q.uincy, in the State of Illinois. It had no office or business in Cook county. The service of summons was upon a director of the company who was in Cook county, not upon any business of the company, but temporarily on a mission of his own. The validity of the service there had to confer jurisdiction upon the circuit court of Cook county, was attacked by an appropriate plea and constituted the only question arising in that case. In the course of its opinion, the court said:

“So far as is applicable to this case, section 2 of the Practice Act is: ‘It shall not be lawful for any plaintiff to sue any defendant out of the county where the latter resides or may be found’ and section 4: ‘An incorporated company may be served with process by leaving a copy thereof with its president, if he can be found in the county in which the suit is brought; if he shall not be found in the county, then by leaving a copy of the process with any . . . director . . . of said company found in the county. ’ Section 2 fixes the county in which the suit may be brought, and section 4 the manner of service in that county. The corporation is found wherever it is doing business, but not everywhere that those engaged in its service may for their private business or pleasure stray.
“This is ,consistent with all the cases that the Supreme Court have decided upon the subject from Bristol v. Chicago & Aurora R. Co., 15 Ill. 436, to Midland Pacific R. R. Co. v. McDermid, 91 Ill. 170.”

The court held that the demurrer to the plea attacking the jurisdiction of the court was properly overruled. The jurisdictional facts were precisely the same as those in the instant case and we regard the rule there announced as consonant with the established law of this State.

Plaintiff cites American Hide & Leather Co. v. Southern Ry. Co., 310 Ill. 524, and other cases where jurisdictional, questions arose. It appears from a reading of these decisions, however, especially in the Southern Ry. Co. case, that an agent of the railroad company was present in Cook county and employed to solicit business there, occupying an office furnished by his company for that purpose. The averments of defendant’s amended plea in the case, before us expressly negatives any inference that would justify the court in assuming that defendant’s director was present in Cook county as agent for defendant or authorized to solicit or carry on business there.

The question has frequently arisen in other jurisdictions as to whether the residence of an officer or director of a corporation necessarily gives the corporation a domicile in the foreign State for the purpose of service, and it has been generally held that the officer or director must be there, officially representing the corporation in its business, or in other words, that the corporation must be doing business in the foreign State in order to render service upon the officer valid. Conley v. Mathieson Alkali Works, 190 U. S. 406; Atchison, T. & S. F. Ry. Co. v. Weeks, 254 Fed. 513. Thus in Empire Fuel Co. v. Lyons, 257 Fed. 890, the plaintiff was a resident of West Virginia and brought suit against the Coal Company in Ohio for breach of contract. Summons was served upon one Hutchinson, general manager of the defendant, who lived about one-half of the time in Cincinnati, Ohio. Defendant moved to quash the service on the ground that defendant was not doing business in Ohio, and the court, in the course of its opinion, said:

“The effectiveness of the service of summons, and thus the jurisdiction of the court below, depends upon whether defendant was doing business in Ohio, ‘in such a manner and to such an extent as to warrant an inference that through its agents it was present there. ’ If defendant was doing business in Ohio, service on Hutchinson gave jurisdiction. Defendant had acquired no permission under the statutes of Ohio to do business in that State. Its main office was at Fair-mount, West Virginia; its mining office, at Hugheston, in that State. Mr. Hutchinson, its general manager in charge of operations, spent about one-half of his time at Hugheston, the remainder at Cincinnati, where he resided, going back and forth from Cincinnati-to the mines. He was the managing agent of the Hutchinson Coal Company, which maintained an office at Cincinnati, where Hutchinson kept ‘an Empire Fuel Company file’- ‘for his personal reference and for the Hutchinson Coal Company, ’ and carried on from Cincinnati such correspondence as was necessary between himself and persons at the mines. But this, standing alone, was not enough to constitute a doing of business by defendant in Ohio.”

On principle there is no distinction between cases where the jurisdictional question arises as between the domiciliary and a foreign State on the one hand and eases such as the instant proceeding, where the question of venue is raised as between two counties in the same State, because the test generally applied is whether the defendant is present in the jurisdiction which is sought to be invoked in such a manner and to such an extent as to warrant an inference that through its agents it was present and doing business there. The averments of the amended plea in the case before us so completely exclude every essential statutory requirement upon which jurisdiction in Cook county could be based, as to leave little room for doubt. Plaintiff here resides in Champaign, Illinois, and the defendant resides and has its place of business in Peoria and Tazewell counties, and not elsewhere, with its principal office at Peoria. Its railroad, according to the averments of the amended plea, has never extended into or through Cook county, it has never transacted business in Cook county, nor was it doing business there at the time of the alleged service. Any inference that may have existed as to the presence of its director in Cook county upon business of the corporation is completely negatived by the averments of the amended plea.

It will be noted that the last clause of section 6, chapter 110 of Cahill’s Illinois Revised Statutes specifically provides that:

“Actions against a railroad or bridge company, may be brought in the county where its principal office is located, or in the county where the cause of action accrued, or in any county into, or through which its road or bridge may run.”

Under the averments of the amended plea it must be assumed that defendant had its principal office in Peoria county, that the cause of action accrued in said county and that defendant’s road never extended beyond the boundaries of Peoria and Tazewell counties, and therefore, in the absence of any showing that defendant transacted business in Cook county, none of the facts contemplated by the statute existed to vest the superior court of Cook county with jurisdiction over the defendant.

Under the provisions of Cahill’s St. ch. 110, If 6 (section 6, chapter 110, Smith-Hurd’s Illinois Revised Statutes), a defendant domiciled in another county may be made a codefendant with those residing or found in the county where the action is brought. In the instant case the other two railroads first made defendants, were found in Cook county and the Peoria and Pekin Union Ry. Co. was joined as an additional party under the provisions of the foregoing statute. When the original defendants were dismissed from the case, however, the proviso of section 6, which states that “if a verdict shall not be found or judgment rendered against the defendant or defendants, resident in the county where the action is commenced, judgment shall not be rendered against those defendants who do not reside in the county, unless they appear and defend the action, nor then, if the action is dismissed as to the defendant, or defendants, resident in the county,” became applicable. The remaining defendant challenged the jurisdiction of the court at the earliest opportunity and even after it was ordered to plead reserved the jurisdictional point. Under the circumstances we are of the opinion that it did not “appear and defend” and, therefore, section 6 is directly applicable to the situation here presented. Furthermore, the action was dismissed as to the defendants resident in Cook county and the action should therefore have been dismissed as to the remaining party in compliance with the statute.

Various technical objections are urged as to the form and substance of the amended plea, which upon careful consideration appear to us to be without merit.

We are of the opinion that the court erred in sustaining the demurrer to the amended plea in abatement. Because of our conclusion upon this question, it will be unnecessary to consider the other assignments of error. The cause is reversed and remanded with directions to the trial court to set aside the judgment and also the order sustaining the demurrer to the amended plea, to overrule said demurrer and to allow such further proceedings as may be consistent with the views herein expressed.

Reversed and remanded tvith directions.

Hebel, P. J., and Wilson, J., concur.

Since filing our opinion herein, appellee has filed a motion to strike out the remanding portion of the order, and in support of said motion filed suggestions admitting of record that upon any future proceeding or trial of said cause appellee would be unable to produce or introduce any further or additional proof than 'that already of record in said cause to show that appellant was or is doing business in Cook county, Illinois, and would be unable to obtain any better or different service or process upon the appellant than that already obtained, which said motion was allowed. Therefore, our original order of January 20th is modified in accordance with appellees ’ suggestions and admissions and the judgment of the superior court of Cook county is herewith reversed without remanding.

Reversed.

Hebel, P. J., and Wilson, J., concur.


source: Caselaw Access Project

author: Mr. Justice Wilson

license: Public Domain

text:
    J. V. Niederle, Plaintiff in Error, v. Chicago Rapid Transit Company, Defendant in Error.
    Gen. No. 35,048.

      Opinion filed January 20, 1932.

      William A. Cunnea, C. Helmer Johnson and John Alden Byan, for plaintiff in error.
    Gardner, Foote, Burns & Morrow, for defendant in error; Walter M. Fowler, of counsel.
   Mr. Justice Wilson

delivered the opinion of the court.

The plaintiff, J. V. Niederle, brought his action in the superior court to recover damages for injuries sustained by reason of a collision between an automobile, in which he was riding as a passenger, and a train of the Chicago Bapid Transit Company, defendant. The trial resulted in a verdict of the jury in favor of defendant and judgment on the verdict.

The second amended declaration consisted of six counts. The first count charged the defendant generally with negligence in the management, operation and control of the train; the second is double and charged the defendant with operating its train at a high rate of speed and neglecting to provide the train with good and sufficient brakes; the third count charged the defendant with negligently failing to give proper warning of the approach of its train; the fourth count charged the defendant with failure to provide a sufficient headlight on its train; the fifth count charges the defendant with negligently failing to maintain signal bells in working order or gates at the crossing where the accident happened; the sixth count charged the defendant with having failed to sound a whistle, bell or gong as the train approached the crossing in question.

The accident happened in the City of Chicago at the intersection of a street known as 47th Court, and the right of way of the defendant at about 2:30 a. m. on the morning of December 18, 1927. The trains of the defendant were operated over its own right of way and guarding this right of way was a wire fence on either side except where the trains crossed intersecting streets. There were two tracks, one of which was easthound and the other westbound. On the west side of 47th Court and between the defendant’s tracks was a danger sign and an electric bell. There was also a cluster of lights on a pole situated on the west side of the street and south of defendant’s tracks was an ordinary railroad crossing sign. The electric bell and red light were started in operation by the approach of the train when it reached a certain “cut-in” over 800 feet east of the east line of 47th Court. Forty-seventh Court was a paved street and the distance from curb to curb was 30 feet. At the time of the accident, the automobile in which plaintiff was riding was going south on 47th Court over the railroad crossing and the defendant’s train was a westbound train.

The testimony of the witnesses as to the speed of the train varied, some placing it as high as 40 miles an hour and others at 20 miles an hour. The train was electrically operated and the motorman testified that he had stopped at the station just east of 47th Court and that it would have been impossible to have attained a speed of more than 25 miles an hour before he reached 47th Court. The evidence also discloses that the train made a regular stop at the 48th avenue platform, on which platform one of the witnesses for the defendant was waiting to board it.

From a photograph introduced in evidence by defendant and marked defendant’s Exhibit 11, it appears that a person standing four feet east of the west curb of 47th Court and 10 feet north of the north rail of the westbound track could see a person standing in the center of the westbound track 287 feet east of the east curb of the said 47th Court.

From the facts it appears that the plaintiff " on the night of the accident, together with a number of other persons, was attending a meeting at the building located at the northeast corner of 47th Court and the right of way of defendant’s tracks. This meeting was called for the purpose of arranging a trip to Czechoslovakia. The building was a two-story brick building and the meeting was held in a cafeteria located therein. The meeting remained in session until about 2:30 o ’clock in the morning and at that time a man by the name of Kubec invited the plaintiff, together with a Mr. and Mrs. Bukovsky and a Mr. Jones, to ride home with him. A number of cars were parked immediately in front of the building along the east side of the street and when Kubec and those who were riding with him in his machine left the building, they proceeded south to the railroad track and then crossed over to where Kubec’s car was located on the west side of 47th Court. The car was parked from 15 to 20 feet north of the defendant’s westbound track and evidently headed south. Kubec and Jones sat in the front seat with Kubec on the left and Jones on the right. The two Bukovskys and the plaintiff sat in the rear seat, with the plaintiff on the left or east side of the automobile. The machine had to move only 15 or 20 feet before it was on the westbound track of the defendant. It made no stop after having started until it was struck by the train. There was no watchman at the crossing after 12 o’clock at night. Forty-seventh Court was not a through street and about a block south of the right of way of the defendant company, and in the direction in which the plaintiff was driving, was located the plant of the Western Electric Company, which extended across the entire width of the street. There appears to have been very little traffic on this street after midnight.

Plaintiff’s witness Jones testified that he did not hear any signal or see any danger light, but saw a red light which was burning steadily on the west side of the street.

Conlon, the electrician for the defendant, testified that there was no permanent red light, but only the red danger signal which was operated automatically when the train crossed the “cut-in.”

Jones and the two Bukovskys as well as the plaintiff who was riding in the machine, testified that they heard no bell ringing or whistle sounded. Some of plaintiff’s witnesses testified that they saw no red danger light. On the other hand, one Prazak, an employee of the defendant, who was waiting at the 48th avenue station, just south of the crossing, testified that he heard the crossing bell ringing.

ICern, a witness on behalf of the defendant and employed by the Western Electric Company, testified that he was in the station house at 48th avenue and heard the bells at 47th Court crossing ringing.

A number of employees of the defendant testified that they examined the mechanism shortly after the accident and found that it was in good condition and that the bell would ring and the danger signal show when a train crossed over the “cut-in” going west.

The testimony of the plaintiff’s witnesses was negative in its character, while that of the defendant’s was positive as to the ringing of the bell and the showing of the red danger signal. There was no haze, fog or steam which would obstruct the view of anyone so as to prevent a view of the oncoming train. The only obstruction was the building located at the corner of 47th Court and the right of way of the defendant company. Plaintiff, as well as the driver of the motor car, was fully aware of the fact that the railroad crossing was only 15 or 20 feet from the car at the time they entered it. If the building prevented their view of an oncoming train, it was only necessary to move 10 feet nearer the crossing in order to have obtained a view of the train. This train in addition to being equipped with a headlight, was electrically lig’hted throughout. Testimony as to the danger signal and the ringing of the bell was conflicting and the jury was amply warranted in returning the verdict which it did in favor of the defendant. A railroad crossing is a dangerous place, and a driver approaching such a place should not, in the exercise of ordinary care, rely entirely upon the signals.

The Supreme Court of this State in the case of Flynn v. Chicago City Ry. Co., 250 Ill. 460, in its opinion says:

“The general rule in this class of cases is, that the burden of establishing, affirmatively, freedom from contributory negligence is upon the plaintiff, or, in the language of the opinion in Tolman v. S. B. & N. Y. R. R. Co., 98 N. Y. 202, that 'plaintiff approached the crossing where the collision and injury occurred, with prudence and care and with senses alert to the possibility of approaching danger.’ And this rule obtains even where the railroad company neglects to ring its bell or sound its whistle, as required when its trains approach a crossing. (Cullen v. D. & H. C. Co., 113 N. Y. 688.)”

The Supreme Court in the case of Gills v. New York, C. & St. L. R. R. Co., 342 Ill. 455, lays down the rule:

“The Supreme Court of the United States in Baltimore and Ohio Railroad Co. v. Goodman, 275 U. S. 66, laid down the rule that when a man goes on a railroad track he knows he goes to a dangerous place, and if he cannot otherwise be sure of the approach of a train he must get out of his vehicle and walk ahead and look. If he does not do so he is crossing at his own risk. This court held in Greenwald v. Baltimore and Ohio Railroad Co., 332 Ill. 627, that one who has an unobstructed view of an approaching train is not justified in failing to look or in crossing the railroad track relying upon the sounding of a bell or whistle; that where the view is not obstructed the law will not tolerate the absurdity of allowing a person to testify he looked but did not see the train, if by the proper exercise of sight he could have seen it; that the question of due care on the part of the plaintiff is one 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 the plaintiff, the trial court is justified in instructing the jury to return a verdict for defendant.”

Quoting from Greenwald v. Baltimore & Ohio R. Co., 332 Ill. 627:

“The duty resting upon one who crosses a railroad track is not only to listen but to look, and the fact that no bell was rung or whistle blown, if such was the fact, would not excuse him from using due care to look in the direction from which a train might be coming, and in this case had appellant’s servants done so it seems clear that the collision would have been avoided. ’ ’

The plaintiff was a passenger in the automobile and if he had an opportunity to learn of the danger and to avoid it, it was his duty to warn the driver and the fact that he was not driving did not relieve him of the duty of exercising reasonable care to have avoided the accident. Dee v. City of Peru, 343 Ill. 36, citing Pienta v. Chicago City Ry. Co., 284 Ill. 246; Flynn v. Chicago City Ry. Co., 250 Ill. 460; Hoag v. New York Central and Hudson River R. Co., 111 N. Y. 199.

The question as to whether or not the defendant was negligent in the operation of its train and in providing necessary warning signals at the crossings, together with the question as to whether the plaintiff was exercising ordinary care for his own safety at and just prior to the time of the accident, was a question for the jury. By its verdict the jury found the issues in favor of the defendant and we see no reason for changing the verdict and judgment upon the facts in the case.

Plaintiff contends that the court erred in permitting the defendant to introduce in evidence a certain statement contained in plaintiff’s first amended declaration, —the statement follows: “. . . and the defendant, Frank Kubec, saw, or in the exercise of ordinary care should have seen said electric car or train as it approached said intersection.” Plaintiff’s objection is based upon the ground that only part of the original declaration was offered and further that the evidence was incompetent. As to the first ground, it is the rule that where one party introduces part of a document or writing, the other side has the right to introduce the whole document or instrument. As to the position taken that the evidence was incompetent, it appears that Kubec, the driver of the automobile in question, had been made a party defendant to the original action but had subsequently died and was dismissed out of the proceeding.

Counsel for defendant cites the case of Wenegar v. Bollenbach, 180 Ill. 222, but from a reading of this case it appears that the pleading was drawn several months after the client had stated the facts to his attorney and subsequently complained to his attorney that he had not set out the facts correctly in the bill. There is no such evidence of any protest by the plaintiff in this proceeding. On the other hand, in the case of Linn v. Clark, 295 Ill. 22, the court held that such a bill when filed by a solicitor for one of the parties was competent, as it would necessarily be presumed that the statements contained in such a pleading were based upon information furnished by the client. The court in its opinion says:

“The defendants objected to the admission of the original bill in evidence. The bill was not signed by Clark and there is no evidence that he saw it or was acquainted in detail with its allegations before it was filed, but it was filed by his solicitor, presumably after consultation with him, and parties to causes are presumed to know the contents of the pleadings filed by them. The bill was admissible in evidence, and its effect as evidence must be determined from the circumstances under which it was made. It was filed three months after Clark had left for California, and it is not an unreasonable inference that it was prepared by his solicitor in his absence, in reliance as well upon the memorandum of agreement between Muir and Clark as on the solicitor’s recollection of his client’s statements.” To the same effect see Allen v. United States Fidelity & Guaranty Co., 269 Ill. 234; Bartlow v. Chicago, B. & Q. R. Co., 243 Ill. 332; Stevenson v. Avery Coal and Mining Co., 143 Ill. App. 397.

Plaintiff objects to the giving of instruction number 11 on behalf of the defendant, on the ground that it is a peremptory instruction directing a verdict of not guilty. This instruction directed the jury that if they believed that the plaintiff, while riding in the automobile in question as the same was approaching and about to go upon the railroad track in question, did not exercise that degree of care which an ordinarily prudent and careful person, acting prudently, would have exercised under the same circumstances as shown by the evidence in this case, then he was guilty of contributory negligence. The objection is based upon the ground that the contributory negligence, if any, must be such negligence on the part of the plaintiff as proximately contributed to the injury. The instruction itself places the time at which the plaintiff should exercise due care at that time at which the plaintiff was approaching and about to go upon the track. In our opinion the word “proximately” would have added nothing to the instruction. We do not believe that the jury could have been misled by the instruction or that it would have been more enlightened by the word “proximately.”

Objection is also made to instructions numbers 12 and 13, given on behalf of defendant, on the ground that they are peremptory in that they directed a verdict of not guilty. Instruction 12 does not direct a verdict, but informs the jury that if it believed that the failure of the plaintiff to do certain things was negligence, then it should find the defendant not guilty. In other words, the jury had to find certain facts before it could return a verdict in favor of the defendant. The effect of these instructions was that if the plaintiff, before the car in which he was riding went upon the tracks of the defendant, had an opportunity to observe the approach of the train and failed to warn the driver, and in that regard he was negligent, then he could not recover. While this is an abstract proposition of law, nevertheless, it is correct, and it still left the question to the jury as to whether or not the plaintiff was guilty of contributory negligence under such circumstances. We do not believe that the giving of these instructions constituted reversible error as should call for a reversal of the cause.

It is insisted on behalf of the defendant that under the circumstances the trial court should have directed a verdict in favor of the defendant. We are of the opinion that there was ample evidence to sustain the verdict in favor of the defendant and it is, therefore, unnecessary to discuss this question.

For the reasons stated in this opinion, the judgment of the superior court is affirmed.

Judgment affirmed.

Hebel, P. J., and Friend, J., concur.


text:
    Joseph Kaszab, Plaintiff in Error, v. Metropolitan State Bank, Defendant in Error.
    Gen. No. 35,195.

      Opinion filed January 20, 1932.
    Rehearing denied February 1, 1932.
    Kelson, Burton & Quindry, for plaintiff in error.
    Frank A. Ramsey, for defendant in error; Ernest Saunders and John B. Brenza, of counsel.
   Mr. Justice Wilson

delivered the opinion of the court.

Plaintiff, Joseph Kaszab, brought his action -against the Metropolitan State Bank, charging the defendant with having converted to its own use a number of checks of the value of $23,783.26 and with failure to pay plaintiff on demand for said checks to the damage of the plaintiff in the sum of $30,000. To this action the defendant filed two special pleas.

The first plea sets out and alleges that on February 11, 1927, and prior to the commencement of the suit at bar, plaintiff began and instituted a certain action at law in assumpsit in the circuit court of Cook county, in which action the said Joseph Kaszab, plaintiff in this case, was also plaintiff there and Greenebaum Sons Bank and Trust Company was defendant; that a summons issued out of said court directed to the defendant, Greenebaum Sons Bank & Trust Company, a corporation, to which defendant entered its appearance and filed its answer therein; that the plaintiff, under oath, filed his affidavit of merits in support of his declaration in said cause, in which he stated and charged that the defendant, Greenebaum Sons Bank & Trust Company, was a corporation organized under the laws of the State of Illinois and engaged in the banking business in Chicago, and that the plaintiff maintained a certain deposit account with said banking company, which was known as a commercial checking account; that during the period from March 24, 1925, to and including October 4, 1926, plaintiff signed certain drafts or checks addressed to the defendant as drawee, payable respectively to the order of various persons therein named in various sums, but that the said payee so named in said checks never received the same nor indorsed them; that the signatures of the said respective payees, as indorsers of said checks, were not made by said respective payees, but were forged by other persons; that the defendant on certain dates wrongfully paid the said sums of money to the person or persons not entitled thereto and wrongfully charged the account of plaintiff with said respective sums; sets out checks so wrongfully paid out on said forged iridorsements, together with the serial numbers of said checks; charges that the drafts and checks set out in the affidavit of the plaintiff in said cause are the same drafts and checks set forth and described in the declaration in the present pending cause; charges that said action was reached for trial and duly heard and determined in the circuit court and the jury was instructed by the court to find the issues in favor of the plaintiff and assess the plaintiff’s damages; that the jury did so find for the plaintiff and assessed the plaintiff’s damages, and judgment was entered upon the verdict; that thereupon the defendant entered its • exceptions to said judgment and prayed an appeal to the Appellate Court in and for the First District of the State of Illinois and filed its bond in said cause on appeal; charges that the defendant, G-reenebaum Sons Bank & Trust Company was solvent; charges that on the appeal, judgment was entered in the Appellate Court for the First District of Illinois in said cause, reversing and setting aside said judgment and entering judgment in favor of the defendant; charges that by stipulation the remanding clause in the judgment order of the Appellate Court was stricken from the. record and the judgment was made final in the Appellate Court. A petition for a writ of certiorari in the Supreme Court was denied.

The second special plea is very similar to the first, with the additional allegation that Greenebaum Sons Bank and Trust Company notified the defendant, Metropolitan State Bank, that it would look to it for reimbursement in the event it should be held liable in the action pending against it in which Joseph Kaszab was plaintiff and Greenebaum Sons Bank & Trust Company was defendant. This was based upon the ground that the Metropolitan State Bank had guaranteed the indorsement and it also agreed in writing to indemnify the Greenebaum Sons Bank & Trust Company against any loss arising out of the transaction by reason of the false or forged indorsements on the checks or drafts in question. It is also alleged that the Metropolitan State Bank, defendant, joined with the said Greenebaum Sons Bank & Trust Company in the defense of said cause. Demurrers to these pleas were overruled and plaintiff prayed an appeal to this court.

The first plea in effect is treated as one charging that the plaintiff by suing Greenebaum Sons Bank & Trust Company elected to declare its remedy as one in assumpsit against its depository bank and, having prosecuted that case to a final conclusion, it was precluded after an adverse decision from starting and maintaining its present action against the defendant, Metropolitan State Bank, in tort for wrongfully converting the checks of the plaintiff.

The second plea is treated as one raising the issue of res adjudicata, or if not res adjudicata a plea of estoppel by verdict.

The original proceeding is entitled, Joseph Kaszab v. Greenebaum Sons Bank & Trust Company, Gen. No. 33,071, and reported in vol. 252 Ill. App. 107.

The demurrer to the pleas admits that the action is predicated upon the same checks and growing out of the same circumstances and transactions. These checks were made out by the plaintiff and handed to one Tomsovic, an employee, and the forged indorsement of the payee placed by him on the check. They were drawn on Greenebaum Sons Bank & Trust Company, deposited in the defendant bank by Tomsovic, and paid by the drawee, the Greenebaum Sons Bank & Trust Company, in the regular course of banking business after having passed through the clearing house.

The issue raised by the first plea is simple, namely, whether the plaintiff having elected to sue the drawee bank in the first instance and prosecuted the action to a final conclusion, and, failing to recover, can now sue the defendant bank through which the checks passed during the course of the various transactions. Plaintiff’s position is that the actions are against different persons and are consistent and concurrent; that only a satisfaction of the claim in one case would constitute a bar to the other and that therefore the doctrine of election does not apply.

Defendant on the other hand insists that the remedies are inconsistent in that, in the action against the Greenebaum Sons Bank & Trust Company, plaintiff’s position was based on the theory that the money paid out on the forged checks was the money of Greenebaum’s Bank and not that of the plaintiff and that, consequently, the bank still held plaintiff’s money for plaintiff’s use; that, therefore, this position was inconsistent with the position taken against the Metropolitan State Bank in that this action was in tort and based on the proposition that the defendant, Metropolitan State Bank, had wrongfully paid out the money of the plaintiff and that it was, therefore, a ratification of the payment by Greenebaum of the funds in controversy to the present defendant. In other words, that the plaintiff, by his action against Greenebaum, refused to ratify the act of Greenebaum in paying the Metropolitan State Bank, but, by his action against the Metropolitan State Bank he thereby took an inconsistent position in that he must necessarily ratify the action of Greenebaum Sons Bank & Trust Company in paying the defendant.

61 Election of Remedies” is the choice or adoption of one of two or more existing remedies, the use of one of which would preclude a resort to the others. In order to make a case of the application for this elective principle, the party having the right to the choice and selection must actually have at command two inconsistent remedies. The doctrine of election is based on the theory that where there are inconsistent rights or remedies, of which a party may avail himself, a choice of one is held to be an election not to pursue the other. If, however, the remedies are coexisting and consistent, the doctrine of election does not apply. Courts of law are open to litigants to furnish redress for injuries or damages sustained, but it places upon the litigant the duty of electing the course which he desires to pursue. If the actions are inconsistent, the courts place the responsibility of election on the one who seeks its aid and assistance. Glezos v. Glezos, 346 Ill. 96.

Counsel for plaintiff cite in support of their position Rauch v. Ft. Dearborn Nat. Bank, 223 Ill. 507. An examination of the facts in that case, however, discloses that the Fort Dearborn National Bank filed its bill of interpleader in the superior court of Cook county charging that Rauch & Co., one of the defendants, had in its employ a certain Bugenhagen who forged its indorsements to certain checks upon other banks made parties defendant; that these checks were cashed by one Rein and deposited with the plaintiff bank and credited to Rein's account and afterwards honored by the defendant banks, made parties defendant to that suit. The bill filed was a bill of inter-pleader and attempted to make all persons concerned parties defendant to the bill. The Supreme Court of this State in that case held that a court of equity was without power to compel a person to relinquish his claim against one liable on a contract and require him to proceed against another in tort. The defendant Rauch in that case had the right to elect his own course of procedure and his own remedy.

Considerable reliance is also placed by plaintiff on the case of Bartlett v. First Nat. Bank of Chicago, 156 Ill. App. 415. From the facts in that case it appears that the plaintiff sued the Reddick Bank, probably on the ground that the Reddick Bank was liable by reason of having warranted the genuineness of the payee’s signature by its indorsement over to the drawee. This suit was dismissed, however, before Bartlett brought his action against the First National Bank. The court in that opinion held that both the drawee and the Reddick Bank would be liable independently on its warranty and that no election of remedies could arise. No authorities are quoted and there is no discussion of this point. It probably was based on the fact that the suit did not proceed to final determination, but was dismissed before the second action was started. On appeal to the Supreme Court, the case of Bartlett v. First Nat. Bank of Chicago was affirmed and reported in 247 Ill. 490. The question does not appear to have been raised in the Supreme' Court nor discussed in its opinion.

In the case of Fowler v. Bowery Savings Bank, 113 N. Y. 450, it appears that John and Elizabeth White opened a joint account as depositors with the defendant bank; both died within a short time and their executors were appointed. Fowler, the executive of Elizabeth White’s estate, sued Flynn, the executor of John White’s estate, who had withdrawn the money from the bank and had recovered judgment, but was unable to collect. Fowler, thereupon, sued the defendant bank. The court held that the plaintiff had an election of remedies against the executor of John White’s estate, for money had and received, or against the bank to recover the deposit, but that he was not entitled to both and by electing one he lost the other. The court, in its opinion, said:

“The relation between a savings bank and a depositor therein is'that of debtor and creditor, and the defendant, therefore, became a debtor for the sum deposited with it by John White. (People v. Mechanics and Traders’ Savgs. Institution, 92 N. Y. 7.) After 'his demand of the deposit, and the payment of the money to Flynn, there were two remedies open to the plaintiff: He could sue the defendant as a debtor for the deposit and recover the amount thereof from it, or he could bring an action for money had and received to and for his use against Flynn, and recover it from him. But he was not entitled to both remedies at the same time, or in succession; and by electing the one he would lose the other. By electing to sue the bank he would repudiate its payment to Flynn, and his claim would be that the debt had not, in fact, been paid. By suing Flynn he would adopt and ratify the act of the bank in making payment to him, and his claim would be that the money due to him had, in fact, been paid to Flynn, and that Flynn had received it to and for his use. Such adoption and ratification of the payment would legalize the payment as between him and the bank, and thus discharge the bank. He could not occupy the position at the same time of claiming that the bank had paid his money to Flynn and yet that the bank was still his.debtor. . . . So here, the law will not tolerate the absurdity of holding that the plaintiff could sue Flynn on the ground that he had received money from the bank belonging to him, and at the same time sue the bank on the ground that it still remained his debtor, and that the money paid to Flynn was not his money and did not operate as payment.”

A case much in point is that of Jones v. First Nat. Bank of Lincoln (Neb.), 90 N. W. 912. In that case from the facts it appears that the plaintiff treated the check as valid and prosecuted his suit against the bank to a final determination. The opinion was by Judge Pound and we quote it at length:

“The plaintiff alleged in his petition that the bank paid out the money upon a false and counterfeit check, which was altered, false, and forged upon its face, and offered to prove that a paying teller, in the proper exercise of his duty, would have seen the alteration. But we need not consider the effect of these allegations, nor the admissibility of the evidence offered, for the reason that plaintiff had clearly cut himself off from any such cause of action before this suit was tried. In Jones v. Stewart, already referred to, he had sued Stewart, alleging that the latter received the money on that very check, and that he had thereby lost his deposit. He prosecuted that cause to final judgment. Having elected to treat the check as valid, and the payment to Stewart as authorized thereby, he cannot afterwards assert the contrary position. Either Stewart had his money, or the bank had it. Both could not have it. If the bank had "the money, Stewart had the bank’s money, and he was not liable to Jones, but to the bank. If Stewart had Jones’ money, it was because the bank had paid it out on Jones’ check, and the bank was no longer holden for the deposit. Fowler v. Bank, 113 N. Y. 450, 21 N. E. 172, 4 L. R. A. 145, 10 Am. St. Rep. 479. Looking at this suit as one based upon payment of the altered check, the two are entirely inconsistent.” To the same effect see Figuers v. Fly, 137 Tenn. 358; Crane v. Atlanta & Lowry Nat. Bank, 40 Ga. App. 83, 149 S. E. 58; Crook v. First Nat. Bank of Baraboo, 83 Wis. 31.

From these cases the doctrine appears to be fairly well settled that where one sues a drawee bank on a check paid by it on a forged indorsement, he takes the position that the bank still has his money and that the money paid out by the bank was the bank’s money and, therefore, not binding as to him. Where one sues another who has indorsed such a check over to the drawee bank, he necessarily takes the position that the money paid by the drawee bank was wrongfully paid and therefore wrongfully detained. The positions are mutually contradictory.

By electing to hold the drawee bank, one whose name has been forged to a check is placed in the position of refusing to ratify the payment by the bank on the forged instrument. No case in the Supreme Court of this State has been directly passed upon and the opinion in Bartlett v. First Nat. Bank of Chicago, 156 Ill. App. 415, cited by plaintiff, is not controlling. The Supreme Court of this State, however, inferentially has recognized the distinction between the liability of the drawee bank and an indorser guaranteeing prior indorsements.

In the case of Independent Oil Men’s Ass’n v. Fort Dearborn Nat. Bank, 311 Ill, 278, the court in its opinion says:

“Defendant in error might have brought an action of trover against plaintiff in error for unlawful conversion of its property, but it chose to waive the tort and to bring its action in assumpsit for money had and received for its use. That it had a right to do this is well established by the great weight of authority. (Rauch v. Fort Dearborn Nat. Bank, 223 Ill. 507; Hamlin’s Wizard Oil Co. v. United States Express Co., 265 id. 156; Talbot v. Bank of Rochester, 1 Hill, 295; Buckley v. Second Nat. Bank, 35 N. J. L. 400; Farmer v. People’s Bank, 100 Tenn. 187, 47 S. W. 234; Crisp v. State Bank, 32 N. D. 263, 155 N. W. 78.) Defendant in error ratifies the collection of the check for it, and by this act ratifies the assumed payment of the check. Both the drawer and the drawee of the check aré released from paying it over again, because the payee, by ratifying the payment, is estopped from making a claim against either. United States Portland Cement Co. v. United States Nat. Bank (Colo.), 157 Pac. 202, L. R. A. 1917A, 145, Annotation, id. 148.” It may well be argued that the Supreme Court in this opinion has inferentially established the proposition that the claims are inconsistent and that a party having availed himself of one is estopped from asserting the other.

We are of the opinion that the facts set out in the first plea of the defendant, namely, that by his election to sue the drawee bank and prosecuting his suit to a final conclusion, the plaintiff is precluded from after-wards suing the defendant in this case, set out a good cause of action and the demurrer thereto was properly overruled.

In view of the position taken by this court as to the first plea, it is unnecessary to consider the second.

For the reasons stated in this opinion the judgment of "the superior court is affirmed.

Judgment affirmed.

Hebel, P. J., and Friend, J., concur.


text:
    Frances Walentarski, Executrix of the Last Will and Testament of Apollonia Heinle, Deceased, Plaintiff in Error, v. George P. Racine, Defendant in Error.
    Gen. No. 35,226.
    Opinion filed January 20, 1932.
    Robert F. Pettibone, for plaintiff in error.
    No appearance for defendant in error.
   Mr. Justice Wilson

delivered the opinion of the court.

Plaintiff filed his declaration in the circuit court of Cook county for money had and received by the defendant, summons issued and was served in regular order, but the defendant failed to appear. Together with the declaration was a copy of the account sued on and plaintiff’s affidavit of the amount due.

June 7, 1928, judgment was entered by default in favor of the plaintiff. June 15, 1928, defendant appeared and entered his motion to set aside the default and vacate the judgment. This motion was continued from time to time until September 29, 1928, at which time defendant was given leave to plead and the judgment to stand as security. The cause was tried June 4, 1929. The jury returned its verdict and found: “We the jury find the issues for the plaintiff and assess the plaintiff’s damages at the sum of $5,986.50.” Defendant entered his motion for a new trial which was ovérruled and defendant excepted. A motion in arrest of judgment by the defendant was also overruled.

The cause is here on a writ of error by the plaintiff below and plaintiff in error here, assigning as error the action of the trial court in entering judgment upon the verdict of the jury June 4, 1929, instead of entering an order, based on the verdict of the jury, that the judgment theretofore entered June 7, 1928, should stand in full force and effect as of the time of its rendition. The defendant has failed to appear and defend the action in this court.

We agree with counsel for the plaintiff that the proper practice was to have ordered the original judgment to stand. Morris v. Taylor, 199 Ill. App. 588; Cervenka v. Hunter, 185 Ill. App. 547; Northeastern Coal Co. v. Tyrrell, 133 Ill. App. 472. The record, however, discloses that plaintiff in no way called the attention of the court to its error, but tacitly consented to the entry of the judgment in the form in which it appears here. The proper practice would have been for the plaintiff to have called the error to the attention of the trial court and had it corrected at the time. In order to save a question for review a party must preserve the question in some manner during the course of the proceedings. If a motion had been made in the trial court, there is no question but what the trial court would have corrected the judgment as it had the power to do. Certainly the trial court should have been given an opportunity to pass upon the question. 3 Corpus Juris, Appeal and Error, section 773, p. 877; McCaleb v. Coon Run Drainage & Levee Dist., 190 Ill. 549; Patterson v. Johnson, 214 Ill. 481; North v. Zerwick, 97 Ill. App. 306; Denhard v. Dunbar, 98 Ill. App. 266.

Intervening rights may have arisen which would be affected in the event of a correction of the judgment. Nearly a year’s-time had elapsed from the time of the entry of the original judgment by default and the judgment subsequently entered upon the trial by jury. A judgment should not be corrected at a subsequent term when it will affect adversely the rights of parties who acted upon the faith of the record. Denhard v. Dunbar, 98 Ill. App. 266. Plaintiff having failed to properly preserve the question by appropriate motion on proceeding in the trial court, and having without objection consented to the entry of the judgment in the trial court in the manner in which it was entered, cannot now ask this court to do that which could have been properly done at the time the matter was in the trial court.

For the reasons stated in this opinion, the writ of error will be and it hereby is dismissed.

Writ of error dismissed.

Hebel, P. J., and Friend, J., concur.


author: Mr. Presiding Justice O’Connor

text:
    In re Frank C. Paar. Frank C. Paar, Appellant, v. Adolph Carlson and Emelia Carlson, Appellees.
    Gen. No. 35,567.

      Opinion filed January 25, 1932.
    Rehearing denied February 8, 1932.
    Henry Both, for appellant.
    Charles P. Molthrop, for appellees.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.

By this appeal Frank C. Paar seeks to reverse a judgment of the county court of Cook county denying the prayer of his petition filed under the Insolvent Debtors’ Act, Cahill’s St. ch. 72, 4 et seq., and remanding him to the custody of the sheriff.

The record discloses that on September 25, 1930, Adolph Carlson and Emelia Carlson obtained a judgment, in an ex parte hearing, on the verdict of a jury in the superior court of Cook county against the defendant in the sum of $11,200; that afterwards a capias ad satisfaciendum was issued by the clerk of the superior court of Cook county on the judgment, and the defendant Paar taken into custody. Thereafter he filed his petition in the county court praying that he be discharged under the law relating to insolvent debtors. On the hearing before the county court the declaration filed in the superior court and other proceedings in that court were introduced in evidence. The court held that malice was the gist of each of the three counts of the declaration and accordingly ordered and adjudged that Paar be remanded to the custody of the sheriff.

Each of the three counts alleged in substance that the Carlsons, in exchanging certain real estate they owned for certain real estate owned by the defendant, Paar, were fraudulently deceived by Paar as to the annual rental of the property he was to convey to them; that he fraudulently represented that the rental received from the property was $17,400, when in fact it was $1,500 less; that he knew snch representations were false; that the Carlsons believed the representations and acted upon them; that the exchange was made and that the property received by the Carlsons from Paar was $25,000 less in value than it would have been if the rents were as represented by him.

No contention is made in this court by Paar that legal malice was not alleged in each of the three counts, but it is argued that the Carlsons, 'by bringing an action of assumpsit, waived the tort. We think this contention cannot be sustained. The form of the action is immaterial. Barney v. Chapman, 21 Fed. 903; People v. Healy, 128 Ill. 9; Kerwin v. Balhatchett, 147 Ill. App. 561; Corwin v. Tillman, 255 Ill. App. 230.

In the Barney case, decided by the circuit court of the United States for the northern district of Illinois, it was held where a plaintiff waived the tort and brought an action in form ex contractu to recover money wrongfully converted by the defendant to his own use, that a body execution might be issued under the statute of this State. The court there quotes sec. 5, chap. 77, of our statute, which is the same statute involved in the instant case (Cahill’s St. ch. 77, If 5) and which provides, “No execution shall issue against the body of the defendant, except when the judgment shall have been obtained for a tort committed by such defendant,” etc. In that case a motion was made to quash a body execution issued on a judgment and the motion was denied. The court said the substance of the declaration was, that the defendant was an agent of an express company and as such agent a package containing $14,000 came into his hands to be delivered to another company; that instead of doing so, the defendant converted the money to his own use. The court said (p. 904): “While the action is in form ex contractu, the gravamen and gist of the action is a tort clearly set out by the averments in the declaration, and the only question is whether the plaintiff has waived the right of proceeding in the first instance against the body of the defendant by having brought this action in form ex contractu. . . . the allegation of a promise to pay by the defendant is a pure fiction; the right of action arises from the tort stated, and not from the promise averred.” The ‘court then quoted that part of the section which we have above set forth, and said': “It (the statute) does not say the plaintiff must necessarily pursue the form of an ex delicto action in order to entitle him to an execution against the body of the defendant, if it appears on the record, and has been adjudged against him, that the real right of action was for a tort committed by the defendant.”

In the Healy case (128 Ill. 9), it was sought by mandamus to compel the clerk of the superior court of Cook county to issue a body execution on a judgment against the judgment debtor. The court referred to sec. 5, chap. 77, above quoted, and said that the petition for a writ of mandamus was predicated upon the basis that the judgment recovered was for the tort committed by the defendant. The court said that whether a tort had been committed by the defendant must be determined by an examination of the allegations of the declaration “rather than to the form of action adopted by the pleader, to ascertain the nature of the cause of action. ... So a recovery may be had for money embezzled, in an action ex contractu. It is apparent, therefore, that the form of the action will not necessarily determine the nature of the cause of action.”

In the Kerwin case (147 Ill. App. 561), it was said that in an appropriate action of assumpsit upon a proper showing of fraud, a capias might issue on the judgment. That was an action of trover and the verdict and judgment were in plaintiff’s favor and the defendant appealed. The court held the declaration would not support a judgment in trover and on page 567 said: “If there was actual fraud iu the contracting of the debt, and such fraud is established by the proofs in an assumpsit action, it does not follow that plaintiff would not be entitled to the writ of capias ad satisfaciendum to enforce such a judgment.”

In the Corwin case (255 Ill. App. 230), a capias ad satisfaciendum waS issued on a decree rendered by the superior court of Cook county decreeing that the defendant return some $5,000 to the complain'ant. In that case one of the errors assigned for reversal was the refusal of the chancellor to quash the capias, the contention being that “no writ can be issued upon a chancery decree for money.” In denying this contention the court said (p. 237): “The first contention is predicated upon the claim that malice is not the gist of the action as is required to authorize such a writ upon a common law judgment. In the case of Whalen v. Billings, 104 Ill. App. 281, there was involved consideration of the power to award such writ under a decree in chancery wherein were findings that certain property was obtained upon false and fraudulent representations, and it was held that it was an appropriate writ under our statute”’ (Citing sec. 5, chap. 77, Cahill’s Rev. St.) The court then referred to Freeman on Executions, “to the effect that where a decree is for the payment of money, and a statute gives authority to issue writs appropriate for its enforcement, satisfaction of such a decree may be sought by ‘capias ad satisfaciendum, in any case where such writ would be proper, had the recovery been in law instead of equity.’ ” The Supreme Court denied certiorari. Corwin v. Tillman, 256 Ill. App. xxxvii.

From the foregoing authorities, we think that whether the proceeding is in law or in chancery, the form is immaterial in determining whether a capias will issue on a judgment or decree. The question of whether malice is the gist of such a proceeding is of no importance so far as the right to have the writ issue is concerned. That question is important only where the defendant applies for his discharge under the Insolvent Debtors’ Law. Reinwald v. McGregor, 239 Ill. App. 240; People v. Walker, 286 Ill. 541.

While it is not important so far as the decision of this case is concerned, yet we think that although the praecipe summons and the beginning of the declaration filed in the superior court were entitled as in an action of assumpsit, the substance of each count of the declaration is in trespass on the case, and this would make the declaration one in case. Toledo, W. & W. Ry. Co. v. McLaughlin, 63 Ill. 389.

While the defendant does not contend in this court that the gist of the action, as alleged in each count of the declaration, was not malice except on the theory that the tort was waived by bringing an action of assumpsit, and which contention we have held untenable, yet we are of the opinion that malice is the gist of each count of the declaration. It alleges the fraud and deceit of the defendant in the exchange of the properties.

Section 2 of the Insolvent Debtors’ Act, Cahill’s St. ch. 72, If 5, provides that “When any person is arrested or imprisoned upon any process issued ... in any civil action when malice is not the gist of the action, . . . such person may be released . . . upon complying with the provisions of this Act.” The term “malice” as used in the statute, “is not to be considered in the sense of hatred or ill-will but of malus animus and as denoting that the party is actuated by improper or dishonest motives.” Kitson v. Farwell, 132 Ill. 327. Malice is the gist of the action of fraud and deceit. Jemberg v. Mix, 199 Ill. 254; Scanlon v. Whalen, 249 Ill. App. 19. Under the law, on a petition by a judgment debtor for his release from custody, under a petition filed in the county court pursuant to the Insolvent Debtors’ Act, in construing a declaration to determine whether it states a cause of action of which malice is the gist, it must he taken most strongly against the pleader. Scanlon v. Whalen, supra; People v. LaMothe, 331 Ill. 351. Yet giving this rule full force and effect, we are of the opinion that malice was the gist of each count of the declaration and therefore the judgment of the county court of Cook county is affirmed.

Judgment affirmed.

HcSurely and Hatchett, JJ., concur.


text:
    Stanley K. Adams, Appellee, v. Barbara Butman, Etc., Appellant.
    Gen. No. 35,589.

      Opinion filed January 25, 1932.
    Jacob Levy, for appellant; James M. Q-win, of counsel.
    No appearance for appellee.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.

August 14, 1928, plaintiff brought suit against the defendant to recover damages claimed to have been sustained by plaintiff on account of slanderous and defamatory words spoken by the defendant. The summons was returned not found. Nothing further appears to have been done until March 17, 1930, when a pluries summons was issued, which the return of the sheriff shows was served on the defendant by his special deputy on March 17, 1930. The summons was returnable to the June term 1930, and the defendant, having failed to file any appearance, was defaulted. Thereafter, a jury was impaneled to assess the damages, and after hearing the evidence, assessed plaintiff’s damages at the sum of $500. Judgment was entered on the verdict June 16, 1930. About 10 months afterwards, April 3,1931, the defendant filed her verified petition to vacate and open up the judgment and for leave to defend. She denied in her petition that she had been served with summons and that she had notice of the pendency of the suit until March 20,1931. She also denied any liability. Affidavits were filed in support of the petition, all alleging facts which indicate that the defendant had not been served with summons. Plaintiff filed no counter-affidavits nor did she make any reply, but witnesses were produced who testified on behalf of both parties. The court weighed the evidence, denied defendant’s motion, and she appeals.

The motion having been made after the term had expired at which the judgment was entered, obviously it was based under the provisions of section 89 of our Practice Act, Cahill’s St. ch. 110, fí 89', and is the beginning of a new suit. Where such a motion is made, the proper practice is to raise the sufficiency of the motion by demurrer, by plea of nullo est erratum, by motion to dismiss, by pleading special matter in confession and avoidance, or by making an issue of fact by traversing the motion or declaration. People v. Crooks, 326 Ill. 266. The proper practice was not observed, but since both parties introduced evidence, they treated the matter as raising a question of fact.

The defendant contends that it clearly appeared from the evidence that the defendant was not served with process and therefore the court should have granted her motion. We think it clear that the contention is not borne out by the record. The evidence as to whether the defendant was personally served was sharply conflicting. The court found that the defendant was served with summons and we are of the opinion that, under the evidence, the finding could not be disturbed. Moreover, we are further of the opinion that the return of the sheriff on the summons could not be contradicted by the evidence offered because it is the law that both parties to the suit, after the term in which judgment is' rendered where the jurisdiction of the defendant’s person depends upon'such return, the return showing that the defendant was served, are conclusively bound by the return of the sheriff. Chapman v. North American Life Ins. Co., 292 Ill. 179; Marabia v. Thompson Hospital, 309 Ill. 147; People v. Drysch, 311 Ill. 342. In the Chapman case it was sought by a motion under section 89 of the Practice Act, Cahill’s St. ch. 110, IT 89, to invalidate the return of the sheriff showing service of the summons on the defendant. The Supreme Court, on a rehearing of the case, held this could not be done, and said (pp. 186, 187): “It has been uniformly held by this court and by other courts that both parties to a suit at law are conclusively bound by the sheriff’s return after the term of court has ended in which the judgment was entered and wherein the jurisdiction of the defendant’s person depends upon such return. The return cannot be contradicted in the same suit in any particular at such time. . . . ”

(p. 187): “The doctrine prevails in this State that the return of the sheriff on the summons, where that return is in harmony with the findings of the court in its judgment that the defendant was duly served, cannot be contradicted after the term of court has ended in which judgment was rendered, except in rare instances, as where the sheriff is sued for making a false return, which is one of his remedies where the defendant is damaged by a false return. ... In this State, before judgment is taken the sheriff’s return can be contradicted when a false return is taken advantage of by a plea in abatement, or, more properly .speaking, by a plea to the jurisdiction of the court of the person of the defendant. . . . after judgment has been rendered, and after the term has ended in which judgment was rendered, the sheriff’s return is conclusive as between the parties and cannot be taken advantage of by error coram, nobis unless such false return has been procured by the fraud of the plaintiff.”

Under the facts in the instant case as disclosed, by the record, the return of the sheriff could not be questioned, as was sought to be done by the plaintiff. Under the authorities cited the return of the sheriff was conclusive. The order of the superior court of Cook county is affirmed.

Order affirmed.

MoSurely and Hatchett, JJ., concur.


text:
    M. O. Benson, Appellee, v. Liberty Trust & Savings Bank et al., Appellants.
    Gen. No. 35,696.
    McSurely, J., dissenting.
    Opinion filed January 25, 1932.
    Rehearing denied February 8, 1932.

      Bernstein, Zolla & Bernstein, for appellants; Aleck L. Bernstein and Ralph M. Schwartzberg, of counsel.
    Robert N. Erskine, for appellee; John M. Wilson, of counsel.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.

By this appeal the defendants, the Liberty Trust & Savings Bank, a corporation, as trustee under trust number 851, and Aleck L. Bernstein, seek to reverse an order of the superior court of Cook county appointing a receiver in a foreclosure suit.

After notice the receiver was appointed. The court considered the verified bill and the testimony of witnesses heard in open court. Although notified, the defendants apparently did not appear and the first we hear of the two defendants who prosecute this appeal was when they filed their appearance November 17, nearly a month after the order appointing the receiver.

The defendants contend that the allegations of the bill which are relied upon for the appointment of a receiver are insufficient because they are “on information and belief,” and that the allegation in the bill that the property was scant and meager security for the indebtedness is but a conclusion and wholly insufficient upon which to predicate the appointment of a receiver. If the appointment of the receiver were based upon the allegations of the bill alone, there would be much merit in the contention, but the order appointing the receiver states that the court heard the testimony of witnesses in addition to considering the verified bill, and this too, although the trust deed authorized the appointment of a receiver without notice and without regard to the value of the property or the insolvency of the maker. Frank v. Siegel, 263 Ill. App. 316.

Although the defendants in their brief base their ground for reversal wholly on the claimed insufficiency of the allegations of the bill and make no reference to the fact that the court heard the testimony of witnesses, yet the complainant in his brief refers to the order appointing the receiver, in which it is stated that the court examined the bill of complaint, heard the testimony of witnesses and found that the premises were meager and scant security for the indebtedness and that this is a finding of an ultimate fact and sufficient without the finding of evidentiary facts. In reply, the defendants say that the finding of the court is not the finding of a fact but is nothing more than a conclusion and therefore insufficient.

October 15, 1931, the verified bill was filed and oh October 20 an amended verified bill was filed. The substance of the allegations of the amended bill is that on August 17, 1926, the defendant, The Liberty Trust 6 Savings Bank, a corporation, as trustee under the agreement known as trust number 851, was the owner of the premises in question, and being indebted in the sum of $50,000, made and delivered its 75 promissory notes numbered 1 to 50 both inclusive, being for $500 each, and notes numbered 51 to 75, both inclusive, for $1,000 each;- that the notes, by their terms, were due and payable as follows: Numbers 1 and 2, May 1, 1927'; 3 and 4, November 1,1927; 5 and 6, May 1,1928; 7 and 8, November 1, 1928; 9 and 10, May 1, 1929; 11 and 12, November 1, 1929; 13 and 14, May 1, 1930; 15 and 16, November 1, 1930; 17 and 18, May 1, 1931; 19 to 75, both inclusive, November 1, 1931; all bearing interest at 6% per cent per annum, payable semiannually on the 1st days of May and November in each year; that to secure the payment of the notes, the bank, on the same day on which the notes were made, executed its trust deed conveying the premises in question. The trust deed provided that in case of default by the bank in carrying out the provisions of the trust deed, the legal holder of the note might declare the unpaid balance due immediately without notice, and that a bill to foreclose might be filed. By the trust deed the rents, issues and profits were assigned as further security for the indebtedness, and in case a bill of foreclosure were filed the court might, without notice, appoint a receiver to collect the rents without regard to the solvency or insolvency of the makers and without regard to the value of the premises. The trust deed also contained the usual provisions about payment of taxes, etc.

It is further alleged in the amended bill that the complainant is the legal holder and owner of the notes numbered 17 to 75, both inclusive; that default was made in the payment of notes 17 and 18, which, by their terms, were due May 1,1931, and that three days later the complainant declared all of the indebtedness immediately due and payable; that the general taxes for the years 1928, 1929, 1930 and 1931 are unpaid and that the taxes for 1928 and 1929 are past due; that after the recording of the trust deed being foreclosed there was another trust deed placed upon the property running to the Chicago Title & Trust Co. as trustee, and that trustee was made a party defendant, but it is alleged that the lien of that trust deed was junior to the one being foreclosed; that the premises were improved with an apartment building consisting of 19 apartments, and upon information and belief it was alleged that some of the apartments were vacant and unoccupied and had been vacant for a long time; that the premises had greatly deteriorated and were in a poor state of repair and- that complainant’s security was in danger; that considering the depreciated value of real estate the property in question was of less value than the amount due and owing to complainant, and that the property was scant and insufficient security for the indebtedness due and unpaid. The prayer was for a foreclosure of the mortgage and for the appointment of a receiver.

On the day the amended bill was filed, October 20, °1931, complainant caused a notice to be served on the defendant bank and the defendants Foote, who were alleged to be beneficiaries under the trust agreement by which the bank held the title, notifying them that on the next morning, October 21, "an application would be made to the court for the appointment of a receiver, and on October 21 the order appointing the receiver was entered. The order recites the coming on of complainant’s motion for the appointment of a receiver; that the court examined the bill and “having heard the testimony of the witnesses offered, ” found inter alia, “that the premises are meager and scant security for the indebtedness secured by said Trust Deed, and that it will be necessary to resort to the rents, issues and profits ... in order to fully satisfy such indebtedness.” The court further found that notice of the application for the appointment of the receiver, although waived by the trust deed, had in fact been given to the bank and to defendants Foote, and that the defendant “August K. Foote, now personally appearing before the court and claiming to be one of the beneficiaries for whom said Liberty Trust and Savings Bank holds legal title”; the receiver was appointed and he was required to give bond in the sum of $7,500. The complainant was required to give bond in the sum of $300. The two bonds were filed the next day and as above stated, the first move made by the defendants was on November 17, when the two appealing defendants filed their appearance and two days later, their appeal bond, which was approved by the clerk.

Upon a consideration of the entire record, it appears that at the time the amended bill was filed, October 20, 1931, notes numbers 17 and 18, for $500 each, were in default since May 1, 1931; the taxes for 1928 and 1929 were past due and unpaid, the taxes for 1930 should • have been paid by May 1, 1931, but on account of the tax situation, of which we take judicial notice, they were unpaid. The amended bill alleged upon information and belief that some of the 19 apartments of the building were vacant and unoccupied, that the real estate had greatly deteriorated in value and the building was in a poor state of repair and that the property was of less value than the amount due the complainant ; that there was another mortgage on the property junior to the one in question.

On the hearing of the application for the appointment of a receiver, the court heard the testimony of witnesses. What the testimony was, we are not advised because it has not been preserved by a certificate of evidence, but the court, after having examined the verified bill and after hearing the testimony of the witnesses, found that the premises were meager and scant security for the indebtedness secured by the trust deed. In these circumstances, we think the record is sufficient to warrant the appointment of a receiver. Moreover, it further appears that notes numbers 19 to 50, both inclusive, for $500 each, and notes numbers 51 to 75, both inclusive, for $1,000 each, all became due November 1, 1931, 11 days after the amended bill was filed, yet the defendants made no move to have the receiver discharged, but the first thing they do is to file their appearance on November 17 and their bond with the clerk two days later, appealing from the order appointing the receiver.

The order entered by the superior court of Cook county appointing a receiver is affirmed.

Order affirmed.

Matchett, J., concurs.

McSurely, J., dissents.


author: Mr. Justice Mg Surely

text:
    The People of the State of Illinois ex rel. Oscar Nelson, as Auditor of Public Accounts of the State of Illinois, v. Builders and Merchants Bank and Trust Company. Appeal of Will H. Wade, Receiver, Appellant. In re Petition of S. J. Osterlind, Intervening Petitioner, Appellee.
    Gen. No. 35,479.
    Opinion filed January 25, 1932.
    Rehearing denied February 8, 1932.
    Urion, Drucker, Bishop & Boutell, for appellant; W. B. Gtemmill and Boss S. Welch, of counsel.
    Ernest A. Eklund and Frederick J. Bertram, for appellee.
   Mr. Justice Mg Surely

delivered the opinion of the court.

This is an appeal by the receiver of the Builders and Merchants Bank and Trust Company from an order allowing the claim of petitioner, S. J. Osterlind, for a preferred claim in the amount of $4,778.18, and ordering the receiver to pay the same to him forthwith.

The petitioner had a savings account with the bank just previous to its failure. On Saturday, April 11, 1931, he signed and presented a withdrawal slip on this account in the sum of $4,778.18 and requested a cashier’s check for the amount, which was given to him. The books of the bank show that the savings account was charged with the amount of this withdrawal and the cashier’s check stub ledger shows the issuance of the check for this amount. The bank failed to open its doors on the morning of April 13 and its affairs are now in the hands of a receiver. The cashier’s check given to petitioner was deposited by him in another bank but it has not been paid. It is conceded that the bank was insolvent at the time of the withdrawal by the petitioner and the issuance of the cashier’s check, and apparently admitted that at the time petitioner received the check there was sufficient cash on hand to pay it.

The petitioner’s theory is that with the withdrawal of the money and the purchase of the cashier’s check a trust ex maleficio was created, and that the money in the hands of the receiver was enhanced to the exact extent of the amount withdrawn by petitioner, while the receiver’s theory is that, when the bank issued its cashier’s check, the latter was merely an evidence of the type of the deposit, being no different than money in the savings account from which the amount had just been deducted.

Certain points have been presented and argued by respective counsel which, in our opinion, it is unnecessary to discuss because we hold that Clark v. Chicago Title & Trust Co., 85 Ill. App. 293, affirmed in 186 Ill. 440, is decisive of the question presented. The facts there involved are almost identical with those in the instant case. There, Clark, the petitioner, had on deposit in the Glohe Savings Bank over $3,000 and on Saturday shortly before the closing hour, received for this amount a cashier’s check payable to his order; this was deposited in another bank and on Monday morning following was thrown out by the clearing house, the Globe Savings Bank having meanwhile passed into the hands of the receiver. Clark filed a petition setting forth the transaction whereby he received the cashier’s check and asked that the receiver be directed to turn over to him $3,000, the amount of the check. The chancellor approved the master’s report that the petitioner was not entitled to a preference over the rest of the depositors; that the cashier’s check was an evidence of indebtedness merely, of no higher character than the check of any other person having a sufficient deposit in the bank to meet the amount of his check. It was ordered that the petition be dismissed. This was affirmed by the Appellate Court and also by the Supreme Court. The opinion of the latter court quoted from the opinion of Mr. Justice Freeman in the Appellate Court where it is said: “The drawing óf the cashier’s check, even if it changed the form of indebtedness, did not change the fact. The Globe Savings Bank was still indebted to the appellant for the $3,000 represented by its cashier’s check. There was no change in the nature of the debt. The • only change was in the evidence of it.” Counsel for the petitioner here attempts to distinguish this case' from the case at bar, but without success as to the essential point. The fact that in the cited case the petitioner Clark had followed a 60-day notice rule, before money could be drawn from a savings account, is not important because when the 60-day notice had expired and Clark gave his withdrawal slip and received therefor a cashier’s check, he did just what the petitioner Osterlind did in the present case. Petitioner’s counsel seems to argue that there was a cash withdrawal with which the cashier’s check was purchased. The evidence shows to the contrary and in both the cited case and the present one the purchase of the cashier’s check was effected by a withdrawal from a savings account. It also appears in the Clark case that the hank had sufficient money to pay the check when it was issued, which is true in the present case.

We cannot agree that the transaction created a trust, whereby the Builders and Merchants Bank was obligated to segregate the money represented by the cashier’s check. All the circumstances show that there was merely a change in form of the evidence of indebtedness, namely, a change from money in the savings account to the cashier’s check, in both instances continuing the relationship of debtor and creditor. In line with this is the case of Howland v. People, 229 Ill. App. 23, where it was held that where money has been delivered to a bank even though it may be for a specified purpose, hut it has been mingled with the funds of the bank, the depositor will not he entitled to a preference above other creditors.

There are a number of cases in other jurisdictions holding the same view. In Jewett v. Yardley, 81 Fed. 920, where a depositor obtained from his bank two drafts upon another bank, paying therefor by checks ' against his deposit, it was held that the relation was still that of debtor and creditor and not a fiduciary relation entitling the depositor to have the receiver of the insolvent bank pay him as a preferred creditor. To the same effect are Nyssa-Arcadia Drainage Dist. v. First Nat. Bank of Vale, 3 Fed. (2d) 648; Empire State Surety Co. v. Carroll County, 194 Fed. 593. Other cases holding the same way are People v. Merchants and Mechanics’ Bank of Troy, 78 N. Y. 269; Stanley v. Green, 205 Ala. 225; Lummus Cotton Gin Co. v. Walker, 195 Ala. 552; People v. California Safe Deposit & Trust Co., 23 Cal. App. 199.

Following the above cited cases, we hold that the relationship between the petitioner and the bank was that of creditor and debtor and that this was not changed by the withdrawal and issuance of the cashier’s check. It follows that the petitioner is upon the same footing as the general creditors.

The order of the superior court is reversed and the cause remanded with directions to deny the order asked for in the petition.

Reversed and remanded with directions.

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