text:
    The People of the State of Illinois ex rel. Henry A. Aeberly, Appellee, v. City of Chicago et al., Appellants.
    Gen. No. 30,630.
    1. Mandamus — right to writ to review proceedings of civil service commission trying patrolman on charges preferred,. Mandamus will not lie to review proceedings of the civil service commission of the City of Chicago in which a patrolman was found guilty of accepting a bribe, and as a result of which he was discharged •from the service.
    2. Mandamus — quashal on certiorari of proceedings before civil service commission trying patrolman as ground for granting man-damns to procure reinstatement after second trial and conviction. Where as the result of certiorari proceedings in the superior court of Cook county an order was entered quashing the record of proceedings by the civil service commission of Chicago' in which a patrolman was found guilty of accepting a bribe, and thereafter the same charges were made the basis of a second trial before the commission, in which the officer was- again found guilty, mandamus will not lie to review such second proceedings unless the quashing of the former proceeding operated to bar any subsequent proceeding upon the same charges, so that the second trial might be deemed void.
    3. Cebtiobari — scope of jurisdiction on review of proceedings before civil service commission trying patrolman for accepting bribe. On certiorari to review proceedings of the civil service commission in which a patrolman was found guilty* of accepting a bribe, the court has no jurisdiction to pass upon the findings and conclusions of the commission, but may examine the proceedings to ascertain whether the inferior tribunal had jurisdiction, whether the record shows the facts upon which jurisdiction is founded, and whether the commission acted upon evidence, and the only judgment which it can render is that the writ be quashed or that the' record be quashed.
    4. Certiorari — effect of order quashing record based upon finding return is insufficient in law. An order of the court quashing a record of proceedings before the civil service commission, based upon its finding that the return to the writ was insufficient in law, is a decision that the proceeding reviewed is null and void and as if it never had been.
    5. Judgments — order quashing record in certiorari proceedings as res adjudicata .of subject matter of proceedings. While an order of court on a writ of certiorari declaring the proceedings under review null and void is res adjudicata of the proceedings in question, it is not r.es adjudicata of the subject matter of such proceedings, and it may be made the basis of another proceeding before the same tribunal.
    6. Appeal and ebbob — unperfected appeal from order quashing proceedings before commission as bar to institution of second proceeding based upon same subject matter. Although following entry of an order in certiorari proceedings quashing the record under review the respondent prayed an appeal, that fact is no bar to a second proceeding by the respondent based upon the same subject matter, where it does not appear that the appeal was perfected.
    7. Mandamus — scope of review on proceedings to reinstate discharged patrolman. The question whether a civil service commission, in conducting a trial of a patrolman upon charges preferred, and in finding him guilty of such charges, observed all of its rules touching such proceedings, cannot be considered in mandamus proceedings to procure the officer’s reinstatement after his discharge as the result of such trial and finding.
    8. Municipal cobpoeations — reinstatement of patrolman after quashal on certiorari of proceedings against him before civil service commission as waiver of right toi second trial on same charges.
      The fact that, following the quashal on certiorari of proceedings by the civil service commission in which a patrolman was tried and found guilty of accepting a bribe, he was reinstated in his position, did not effect a waiver of the right of the commission to again place the officer on trial upon the same charges.
    9. Mandamus — discretion of court as to issuance of writ. Mandamus is not a writ of right, but rests in the sound judicial discretion of the court, and it may be refused if the consequences of the writ will not promote substantial justice.
    10. Mandamus — when writ improperly granted to reinstate discharged patrolman. Mandamus is improperly granted to reinstate in his position a patrolman ousted therefrom as the result of a second conviction of having accepted a bribe, where a former conviction on the same charge was set aside on certiorari proceedings, because the findings of the commission conducting the trial were not in proper' form, and there was no' allegation that the findings were erroneous or denial of the truth of the charges, to grant the writ in such a case not tending to promote substantial justice, but rather disorder and confusion.
    11. Mandamus — when patrolman tarred by laches from award for salary during period of illegal exclusion from position. Where a patrolman, ousted from his position as. the result of his conviction before the civil service commission of having accepted a bribe, delayed more than two- years to institute proceedings to collect his salary from the date of such ouster to the date of his reinstatement following the quashal of the proceedings of the commission on certiorari, his petition therefor, filed in connection with mandamus proceedings to compel reinstatement after his second discharge as the result of a second trial and conviction upon the same charge, was barred by his laches.
    Appeal by defendants from the Superior Court of Cook county; the Hon. Emanuel Elleb, Judge, presiding. Heard in the first division of this court for the first district at the October term, 1925.
    Reversed.
    Opinion filed March 29, 1926.
    Francis X. Busch, Corporation Counsel, for appellants ; Albert H. Veeder, Assistant Corporation Counsel, of counsel.
    John Owen, for appellee.
   Mr. Justice McSurely

delivered the opinion of the court.

Petitioner sought a writ of mandamus and defendants filed an answer. A demurrer to this was sustained, and defendants stood by their answer. Judgment was accordingly entered awarding petitioner the ' writ and commanding the superintendent of police, the civil service commissioners, the city comptroller and the city treasurer of the City of Chicago to reinstate petitioner in his former position of patrolman and to pay him the salary which had not been paid during the time he was ousted from said position.

The petition alleges in substance that petitioner was a duly appointed patrolman serving from August 5, 1915, until July 13, 1922, on which last date charges were preferred against him that he was guilty of conduct unbecoming a police officer in that he received a bribe of $100 for having a sentence of 60 days in the House of Correction stricken from the court records, and that after evidence was received supporting the charge petitioner was found guilty and on July 21, 1922, in accordance with the finding of the civil service commission he was discharged from the service; that he then sued out a writ of certiorari in the superior court of Cook county, and on April 21,1923, said court entered an order quashing the record and proceedings of the trial and discharge of petitioner before the civil service commission; that on July 13, 1923, he was ordered reinstated and continued to discharge the duties of patrolman until September 21, 1923, on which date the superintendent of police preferred the same charges against petitioner which had formerly been preferred against him, and thereupon on the second proceeding and trial before the civil service commission the petitioner was found guilty on November 16, 1923, and was ordered discharged, and on that date he was accordingly discharged. The petition sets forth certain rules of the civil service commission touching the proceedings before it, also the annual appropriation ordinances providing for the salary of patrolmen.

Defendants answered admitting most of the allegations of fact in the petition, but alleged further that • when the writ of certiorari was allowed in the superior court the only question raised in that court was whether or not the order of the civil service commission was in proper legal form, as it was contended that the • order of the commission was void because it contained no findings which showed upon what facts it had based its order of discharge; that the question of the guilt of petitioner was not considered or in any way adjudicated, and therefore, it was asserted, the order of the superior court was no legal bar to filing the identical charges against petitioner as were made and tried in the first trial before the commission.

Does mandamus lie to review the proceedings of the civil service commission, or must this be done by certiorari only? "While, apparently, the writ of mandamus and certiorari have both been used for the same purpose, namely, to reinstate a party to an office from which he has been illegally removed or suspended, yet considering the history and purpose of the two actions with the reported decisions, we conclude that the writ of mandamus will not lie to review the proceedings of the civil service commission.

The purpose of the writ of mandamus, when directed to subordinate tribunals exercising judicial or discretionary power, is to compel them to act, but never to compel them to decide in a particular manner. The writ is a command in the name of the State directed to some corporation, officer or inferior court, requiring the performance of a particular duty resulting from the official station of the party to whom the writ is directed. Mandamus lies to compel, not to revise or correct, action however erroneous it may have been. On the other hand, the office of the writ of certiorari is to review the proceedings in an inferior court to ascertain their validity. It is to bring up proceedings from the court below for examination so that they may be affirmed or quashed and not to enforce any rights growing out of those proceedings. Summarily stated, mandamus commands action and certiorari reviews an action. 13 Encyclopedia of Pleading and Practice, “Mandamus”; High’s Extraordinary Legal Remedies, 3rd ed., p. 4; 18 R. C. L., “Mandamus,” p. 87; 5 R. C. L., “Certiorari,” p. 250; 4 Encyclopedia of Pleading and Practice, “Certiorari,” p. 10. By statute, the Supreme Court reviews the entire record in cases brought by certiorari. Chapter 110, sec. 120, Hlinois Statutes [Cahill’s St. ch. 110, ¶ 119].

Hlinois decisions are not in conflict with this rule, although the precise question does not seem to have been raised. People ex rel. Qualey v. City of Chicago, 203 Ill. App. 192; People ex rel. Jones v. Webb, 256 Ill. 364; McArdle v. City of Chicago, 172 Ill. App. 142.

In the cited cases of mandamus there was an allegation that the petitioner had been removed entirely contrary to law or without any hearing before the civil service commission or by a board not composed of civil service commissioners. It is conceded that the writ of mandamus will lie to restore a person who has been wrongfully ousted from office under no authority or color of authority and when he has a clear legal right to be reinstated.

Holding as we do that the only way which we may review the decision of the civil service commission upon the second trial is by writ of certiorari, mandamus will not lie herein unless it can be said that the quashing of the proceeding of the commission upon the first trial by the superior court constitutes a bar to the second proceeding so that it may be considered void. That is to say, if the second proceeding of the commission is void and the prior proceeding has been quashed, there is no legal obstacle to petitioner’s reinstatement, and this may be effected by the writ of mandamus.

It is established by a long line of decisions that by writ of certiorari the court has no power to pass upon the findings and conclusions of the commission, but may examine the proceedings to ascertain whether the inferior tribunal had jurisdiction, and the facts upon which such jurisdiction is founded must appear in the record, which also must show that the commission acted upon evidence. If the court finds the inferior body had no jurisdiction or had exceeded it or had not proceeded according to law, it will quash the proceedings. The only judgment to be rendered by a reviewing court is that the writ be quashed or the record of the proceedings be quashed. Funkhouser v. Coffin, 301 Ill. 257.

The order of the superior court quashing the first proceeding of the commission was based upon the finding that “said return is insufficient in the law.” This was a decision that the first proceeding was null and void and was as if it had never been. This conclusion is supported by Hamilton v. Town of Harwood, 113 Ill. 154; Joyce v. City of Chicago, 216 Ill. 466; People ex rel. Maloney v. Lindblom, 182 Ill. 241; Sullivan v. Lower, 234 Ill. 21; Heaney v. City of Chicago, 117 Ill. App. 405.

In Baer’s Express & Storage Co. v. Industrial Board of Illinois, 282 Ill. 44, it was contended that the decision of the circuit court on the writ of certiorari declaring the proceedings and order of the inferior tribunal to be null and void is res adjudicata, but it was held that this amounted only to a finding that those proceedings “were to be held for naught and that they had never been had,” and the order of the circuit court was not res adjudicata of the matters presented to the inferior tribunal upon the second proceedings which were the same’ matters presented upon the first. See also Bullis v. City of Chicago, 235 Ill. 472.

It follows therefore that, if the first proceedings before the commission are held' for naught, as if they had never been had, the finding and order of the commission in the second proceeding is in full force and effect, and, as we have heretofore said, this may not be reviewed by a writ of mandamus.

Petitioner argues that when defendants prayed an appeal from the order of the superior court any second proceeding by the commission was barred, but it does not appear that the appeal was perfected.

Whether or not the civil service commission observed all of its rules touching proceedings before it cannot be questioned by this mandamus proceeding. In the cited case of City of Chicago v. Bullis, 124 Ill. App. 7, the rules were considered on a writ of certiorari.

By placing petitioner in his position as patrolman from July 13, 1923, to September 21, 1923, respondents did not waive their right to. try him again upon the same charges. They were bound to reinstate petitioner after the order of the superior court quashing the proceedings of the commission, but as there had been no adjudication of the charges against petitioner they could be renewed.

It is well established that mandamus is not a writ of right, but rests in the sound judicial discretion of the court, and it may be refused if the consequences of the writ will not promote substantial justice. Hooper v. Rooney, 293 Ill. 370. Even if there were no other considerations, we would hold that it would not promote substantial justice, but would tend to disorder and confusion to grant the writ to a petitioner who appears to have been found guilty in two trials of receiving a bribe for having a court record wrongfully changed. Petitioner nowhere alleges that these findings of the civil service commission were false or erroneous, nor does he deny the truth of the charges.

His petition for salary for the period from July 13, 1922, to April 23, 1923, was not filed until May 5, 1925, a delay of over two years. In People ex rel. Qualey v. City of Chicago, 203 Ill. App. 192, it was held that a delay of more than six months in filing a petition by a police officer constituted laches. Neither is he entitled to salary after September 21, 1923, the date he was ousted from'his position under the second proceeding before the commission.

For the above reasons, the order of the superior court is reversed.

Reversed.

Hatchett, P. J., and Johnston, J., concur.


source: Caselaw Access Project

author: Mr. Justice McSurely

license: Public Domain

text:
    Sterling-Midland Coal Company, Appellee, v. Great Lakes Coal & Coke Company, Appellant.
    Gen. No. 30,652.
    1. Set-oef, counterclaim and recoupment — right of set-off based upon breach of independent written contract. Damages are liquidated and a proper subject of set-off in an action upon a contract, where based upon the alleged breach by the plaintiff of an independent written contract to purchase from the defendant a certain quantity of coal, and the recovery sought is the difference between the contract and the market prices of such coal for the amount thereof as to which acceptance was refused.
    2. Sales — Uniform Sales Law as affecting right of seller to maintain claim of set-off based upon nonacceptance of goods sold by independent written contract. In view of Cahill’s St. ch. 121a, 67, stating the measure of damages for a breach by the vendee of a contract for the purchase of goods, and V 79, defining “action” to include set-off, defendant in an action upon a contract may maintain a claim of set-off therein based upon a separate and distinct contract, where the defendant’s claim for damages is measured by the difference between the contract and the market prices of the goods which plaintiff refused to accept.
    3. Contracts — when merger of contracts for purchase of coal not shown. Where an affidavit of set-off presented two contracts for the purchase of coal, one dated 19 days after the other but otherwise identical, a contention that the earlier contract was merged in the former was held without merit as based upon the fallacious assumption that there could not be more than one live contract for coal between the parties at the same time.
    4. Contracts — provision for maximum and minimum deliveries per week as avoiding contract for want of mutuality. A contract for the purchase of coal providing .that delivery should be from 18 to 30 cars per week “at the option of the seller” was not void for want of mutuality on the ground that there was no obligation on the part of the seller to ship any coal, a proper construction of the agreement being that the seller was obliged to deliver a minimum of 18 cars per week, but not more than 30 cars in any week.
    Matghett, P. J., dissents.
    Appeal by defendant from the Municipal Court of Chicago; the Hon. Theodore F. Ehleb, Judge, presiding. Heard in the first division of this court for the first district at the October term, 1925.
    Reversed and remanded.
    Opinion filed March 29, 1926.
    Rehearing denied April 12, 1926.
    Winston, Strawn & Shaw, for appellant; J. Sidney Condit and M. Ogden West of counsel.
    John J. Sherlock and Haight, Adcock, Haight & Harris, for appellees; Edmund D. Adcock, of counsel.
   Mr. Justice McSurely

delivered the opinion of the court.

Defendant by this appeal seeks the reversal of a judgment against it for $28,455.03 entered by the court after ruling on the pleadings.

Plaintiff claimed moneys due for various quantities and kinds qf coal sold and delivered to defendant pursuant to certain written contracts between them. Defendant pleaded a1 set-off and by other pleas questioned the amount claimed by plaintiff to be due upon the contracts sued on. This amount was adjusted upon the hearing, but the court sustained plaintiff’s motion to strike that paragraph of the affidavit of defense which claimed a set-off, and entered judgment for plaintiff.

The claim of set-off presented two written contracts for the sale of coal by the defendant to plaintiff, separate and distinct from those sued upon by plaintiff, and defendant alleged that plaintiff failed and refused to accept delivery of approximately 105,640 tons of the coal contracted for, and asked for damages based upon the difference between the contract and market prices of this shortage, which was $73,948.

Plaintiff contends that the set-off was properly stricken under the rule that unliquidated damages growing out of an alleged breach of contract distinct from the contract sued upon and in no wise connected with it cannot be made the subject of a set-off, to which defendant replies that-the damages claimed were not unliquidated, but were liquidated, citing Kelley, Maus & Co. v. Caffrey, 79 Ill. App. 278, in which the court said:

“When the damages can be determined by computing the difference between the contract price and the market value, they are not unliquidated damages. ^ #

“The general trend and policy of legislation and of the decisions of courts in this country, is, to have adjusted, as far as practicable, in one and the same suit, all claims and counter-claims between the parties thereto. And that is as it should be. ‘ Set-offs are to be encouraged; they lessen the amount of litigation, by preventing circuity of action. There is no reason or propriety in driving these parties to cross-actions, and to compel the claims to be settled in two suits, when full and equal justice can be awarded to each of them in one suit. ’ The damages to appellant set out in the pleas of set-off are not unliquidated, and the demurrer to the last one of said pleas should have been overruled.”

Plaintiff replies that it was held to the contrary in Turnbull Joice Lumber Co. v. Chicago Lumber & Coal Co., 152 Ill. App. 347. Both these cases are in point on the facts and are in direct conflict in the conclusions reached. No other ease is cited and we have been unable to find any involving facts just like those before us in which the instant point was determined.

Cfenerally speaking, unliquidated damages are such as rest in opinion only, and which cannot be ascertained by computation or calculation. If, however, there is data given from which damages can be ascertained by computation or calculation, they are liquidated. Ordinarily, damages for breach of a contract to deliver goods, where the plaintiff seeks to recover not only the difference between the contract price and the market price but also special damages including loss of profits, are unliquidated. Where, however, there is no claim for special damages but only for the difference between the contract and the market prices, we have data from which the damages can be determined by calculation and they should properly be defined as liquidated. 24 R. C. L. 60.

The claim of set-off here alleges the contract prices, the amount of coal plaintiff refused to accept, and the amount of resulting damages. Neither the contract prices, the amount of shortage, nor the market prices rest merely in opinion, but can be definitely ascertained. We have thus the data upon which to compute and determine the amount of damages by arithmetic and not by opinion only.

We are in accord with the statement in Kelley, Maus & Co. v. Caffrey, supra, that it is desirable, as far as practicable, to have adjusted in one suit all claims and counterclaims between the parties. Set-offs should be encouraged, and parties should not unnecessarily be driven to cross-actions to settle their claims when full justice can be done to each of them in one suit. We are led to our conclusion by the obvious desirability of such a policy, and in the absence of any decision of our Supreme Court to the contrary we hold that the damages claimed in this case are liquidated and a proper subject of set-off.

Defendant also says its claim can be set off by virtue of certain provisions of the Uniform Sales Act. Chapter 121a, Illinois Statutes (Cahill), paragraph 67, reads as follows:

“Action for damages for non-acceptance of the goods.

“(1) Where the buyer wrongfully neglects or refuses to accept and pay for the goods, the seller may maintain an action against him for damages for nonacceptance. * * *

“(3) Where there is an available market for the goods in question, the measure of damages is, in the absence of special circumstances, showing proximate damage of a greater amount, the difference between the contract price and the market or current price at the time or times when the goods ought to have been accepted, or, if no time was fixed for acceptance, then at the time of the refusal to accept.”

Paragraph 79(1) reads:

“In this Act, unless the context or subject matter otherwise requires—

“ ‘Action’ includes counterclaim, set-off and suit in equity.”

• These sections together seem to give a seller, where he may maintain an action for nonacceptance of goods, the right to maintain his claim by plea of set-off. This is the natural meaning of the language, and it requires some ingenuity to arrive at a contrary interpretation. Plaintiff argues that this construction would overthrow the established precedents as to set-offs, but, as we have seen, the decisions of this court are in direct conflict and the decisions of other States are in hopeless confusion. Woodruff v. Garner, 89 Am. Dec. 482. The conditions suggest the necessity of uniform legislation in this respect, and we are impressed by the language of Mr. Justice Thompson in Sherer-Gillett Co. v. Long, 318 Ill. 432, as follows:

“Uniformity in the law of the several States per-taming to sales being deemed essential to the commercial welfare of the country, leaders of the American bar prepared and submitted to' the legislatures of the several States a uniform sales act and a uniform conditional sales act.”

And in National City Bank v. National Bank of Republic, 300 Ill. 103, the court said of the Negotiable Instruments Act:

“In construing the act the language ought to be interpreted in such a way as to give effect to the beneficent design of the legislature in passing an act for the promotion of harmony in the law. * * * The court must take the act as it is written and should give to the words used their natural and common meaning. The law was enacted for the purpose of furnishing in itself a certain guide for the determination of all questions covered thereby * * * and, so far as it speaks without ambiguity as to1 any such question, reference to case law as it existed prior to the enactment is more likely to be misleading than beneficial.”

In the instant case, defendant, as a seller, claims damages from plaintiff, the buyer, amounting to the difference between the contract price and the market price because of plaintiff’s nonacceptance of goods. We construe the above quoted sections of the statute to permit defendant to maintain this by plea of set-off.

Defendant’s affidavit of set-off presents two contracts for the purchase of coal, one dated April 4,1924, and the second April 23, 1924. As the parties, the quality of the coal, and the prices are identical, plaintiff argues that the contract of the earlier date is merged into the contract of April 23. It does not follow that the subject matter is identical, although both deal with coal. The argument is without merit as it is based upon the fallacious assumption that the parties could not have more than one live contract for coal at the same time. The pleadings show there were several such contracts.

The contract of April 23,1924, provides that the delivery shall be from 18 to 30 cars per week “at the option of the seller,” and it is contended that this renders the’ contract void for want of mutuality, in that there is no obligation on the seller to ship any coal, citing Higbie v. Rust, 211 Ill. 333. Cases construing contracts as imposing no obligation on the buyer or seller to perform are not in point. This contract clearly means that the seller was obligated to deliver a minimum of 18 cars per week, with an option to deliver more but not to exceed 30 cars a week. E. S. Wheeler & Co. v. New Brunswick & Canada R. Co., 115 U. S. 29; McKell v. Chesapeake & O. Ry. Co., 186 Fed. 39; Consolidated Coal Co. v. Jones & Adams Co., 232 Ill. 326.

For the reasons above indicated, we conclude that defendant’s claim of set-off was properly filed and that the court was in error in striking it. The judgment is therefore reversed and the cause remanded.

Reversed and remanded,,

Matchett, P. J., dissents.

Johnston, J., concurs.


author: Mr. Justice Jett

text:
    The Oconto National Bank, Appellant, v. Franklin Weber and Emma Selby, Appellees.
    Gen. No. 7,550.
    1. Contracts — invalidity of agreements obtained through the use of criminal process. The use of criminal process as a means of collecting private indebtedness is illegal, and contracts so obtained are unenforceable on the ground of public policy.
    2. Contracts — surrender of void note as consideration for new instrument. The surrender of a void note is no consideration for a new note between the same parties.

      3. Contracts — validity of note given in settlement of civil liability created by criminal act. A note given by near relatives of one arrested on a charge of embezzlement, to the party making the charge and for the amount of the alleged embezzlement, in consideration of the transfer to the makers of property of the accused, is not void as having been given to compound a felony, although the accused was released after the giving of the note and never prosecuted, where the parties involved were adults of experience, acting without haste or compulsion and after having the advice of counsel, and there was no agreement that the abandonment of the criminal charge was part of the consideration for the note.
    Appeal by plaintiff from the Circuit Court of La Salle county; the Hon. Edgar Eldbedge, Judge, presiding. Heard in this court at the October term, 1925.
    Reversed and remanded.
    Opinion filed April 3, 1926.
    Lloyd Painter, for appellant.
    George F. Bell and Butters & Butters, for appellees.
   Mr. Justice Jett

delivered the opinion of the court.

During the summer of 1920 John H. Hazier was living in Oconto, Wisconsin, engaged in promoting in that city a corporation known as the Montana Tractor Company. On October 20 of that year he presented to appellant a check for $2,300 signed by himself and Caroline Hazier and drawn on Moon’s Bank of Leonora, Illinois, payable to the order of appellant and the amount thereof was paid to Hazier by appellant upon his representation that he had this amount of money in the bank upon which it was drawn. This check went to protest as there were no funds in the Moon bank to the credit of either of the drawers.

On December 20, 1920, the cashier of appellant procured in Oconto a warrant for the arrest of Hazier and early in January, 1921, two of its directors (one an attorney) came to Streator, consulted with the Assistant State’s Attorney and Hazier was arrested. Appellee, Emma Selby, is a sister of Hazier, and appellee, Franklin Weber, is the husband of another sister. Hazier, when arrested, called appellees and also an attorney who, at Hazier’s request, communicated with his mother and thereupon the following day appellees and the mother of Hazier came to the hotel in Streator where the representatives of appellant were staying and in reply to their inquiry whether the matter could not be straightened up were told by the directors and representatives of appellant that appellant did not desire to prosecute Hazier but all it wanted was its money. Appellees expressed their willingness to repay appellant in full but were unable to secure the cash and it was finally agreed that appellant would accept a note of appellees and thereupon a note for the full amount due appellant was executed by appellees at the office of the. attorney with whom Hazier first communicated. This note became due in July, 1921, but at the request of appellees, who paid appellant the interest thereon, it was surrendered and a new note executed. This renewal note became due in October, 1921, and subsequently two more payments of interest were made by appellees and on January 22, 1922, they executed another note to replace the one executed in the previous July. This last note not having been paid, judgment was confessed thereon in September, 1923, which, upon motion, was opened up and appellees pleaded the general issue and gave the following notice:

“The plaintiff will hereby take notice that upon the trial of said cause the defendants will prove and show that the alleged note declared upon in the plaintiff’s declaration is the only cause of action upon which said suit was brought; that said alleged note was signed by these defendants and came into the hands of the plaintiff without any good or valuable consideration whatever, and that there was and is no consideration for the giving of said alleged note.

“That said alleged note was procured to be signed by these defendants by means of fraud and moral duress, and was given in no other manner and for1 no other purpose.

“That one John H. Hazier was a brother-in-law of this defendant, Franklin H. Weber, and that said Hazier was placed under arrest and held in custody by the agents of the plaintiff upon a false and malicious charge of' embezzlement, or for the alleged giving of a fraudulent check which was thereafter dishonored, and that -said Hazier was not then indebted to said plaintiff; that while so deprived of his liberty these defendants were advised that said Hazier would be kept in custody until he gave a note signed by these defendants, and that if such a note was given, he, the said Hazier, would be discharged and set at liberty; that these defendants were so grieved and distressed by the arrest and keeping said Hazier in custody as aforesaid, and believing that his release could only be obtained by the giving of said note, they, through fear and by means of so being under duress as aforesaid, signed said note. That said Hazier, upon said note being given, was discharged and never re-arrested or tried upon said charge.

“That said note was given for such purpose and no other.”

Issue was joined and a trial had before the court without the intervention of a jury, and the judgment theretofore rendered in favor of appellant was vacated and set aside and a judgment entered in bar of the action and in favor of appellees, for costs, from which judgment an appeal has been perfected to this court.

In addition to the foregoing facts the attorney, who was called by Hazier immediately after his arrest, testified that at the time the original note of appellees was executed in his office in January, 1921, Hazier conveyed to his two sisters his undivided interest in certain land in Iowa which he had inherited from Ms father. Appellees sought to deny that such a deed was executed but we are satisfied from a reading of the record that such a conveyance was made by Hazier for the purpose of securing appellees in executing the original note given appellant. Both appellees testified that no consideration passed from appellant to them at the time the original note was executed and that they executed it solely to get Hazier out of jail and they contend that inasmuch as Hazier was thereafter immediately released from custody and not prosecuted that the only consideration was compounding’ a criminal offense and their contract was void as against public policy. Appellant admits that a note given solely to avoid a criminal prosecution is without a valid consideration, contrary to public policy and void, but insists that in this case the amount of the indebtedness of Hazier to appellant was not in dispute but was conceded; that Hazier desiring to pay appellant the amount justly due it conveyed his property to appellees and they in turn executed the original note, the consideration therefor being the conveyance to them by Hazier of his undivided interest in his Iowa land which he inherited from his father; that no agreement was made by anyone not to prosecute the criminal charge against Hazier but appellant was free to withdraw its complaint against him if it so desired and his discharge from jail was a mere incident.

The use of criminal process as a means of collecting private indebtedness is illegal and contracts so obtained are contrary to public policy and unenforceable. Shenk v. Phelps, 6 Ill. App. 612. All the authorities hold that an agreement to compound a felony will not be enforced and that any security based upon such consideration is void. 3 R. C. L. 957. And if the original note or security is void, its- surrender could be no consideration for a new note between the same parties. 3 R. C. L. 964-65. But it is not illegal merely to compromise the civil injuries resulting from a criminal act where it is. not expressly or impliedly agreed that ther prosecution for the crime is to be prevented or suppressed and a note given in consideration of moneys embezzled is valid and enforceable, there being no agreement to conceal or suppress a prosecution for the offense. 3 R. C. L. 958. The true rule seems to be that notwithstanding the pendency of criminal proceedings against a wrongdoer one whose money or property has been fraudulently obtained may contract for repayment of the money or satisfaction for the-loss sustained and take security therefor, without invalidating the contract, unless there be included therein, as a part of the consideration therefor, some promise or agreement, express or implied, that such prosecution shall be suppressed, stifled or stayed. Northfork Board of Educartion v. Angel, 75 W. Va. 747, 84 S. E. 747, L. R. A. 1915 E. 139.

In Ford v. Cratty, 52 Ill. 313, the defendant Ford had embezzled a considerable sum of money from plaintiff’s intestate, Frederick Furch, who procured a warrant for his arrest and this warrant was shown to Ford and he was informed that he must settle or secure the amount due or the prosecution would be pushed to a conclusion. Ford, thereupon, with the other defendants, executed the note sued upon. In affirming the judgment of the lower court in favor of the plaintiff and after quoting the statute the Supreme Court said: “This last section authorizes the injured party to- reclaim his property or receive compensation for the wrong done to him. * * * In this, case, Furch did no more than receive that compensation when he obtained the note. There is. no pretense that Ford had not collected the money and still owed it to bim. He had a right to receive the note, and whatever may be said of the means employed in obtaining it, we cannot hold that it was received to compound a criminal offense. * * * Here the note was given, not as a reward for not prosecuting but for a debt due from Ford to Furch, and that being the only and true eon-. sideration, it is not like a note given simply to prevent the prosecution for a misdemeanor or felony.”

In Rudolph Stecher Brewing Co. v. Carr, 194 Ill. App. 32, Frank Sarafin had purchased beer of the brewing company and in- payment therefor had executed and delivered to them two* checks aggregating $502.32. These checks had been sent to an attorney for collection and he had determined from the facts stated to him that Sarafin had been guilty of the crime of confidence game in giving such checks and after consulting with the State’s Attorney a complaint was filed and Sarafin arrested. At the hearing he waived examination a,ud was bound over on his own recognizance to the grand jury and gave to the brewing company a check for $502.32, which was indorsed by Carr. The check not having been paid, suit was instituted against Carr. The trial court held that the check was given for the compounding of the crime of confidence game and therefore void. In reversing this judgment the Appellate Court, after commenting upon the fact that the evidence tended to show that the brewing company, , by its agent, consented in consideration of the check being given, that Sarafin could go- on his own recognizance, said: “even if Levy (the agent of the brewing company) did consent that he might go upon his own recognizance and did not agree that Sarafin would not be prosecuted further, this would not be sufficient to defeat this action, for the mere consenting for the defendant to- go- upon his own recognizance would not be the compounding of a crime. We think it is quite clear from this evidence that the check in question was not given as- a reward for not prosecuting, but was rather in payment of the debt, and that if consent was given that he might go upon his own recognizance it was a mere incident and would not of itself be sufficient to warrant a court in saying that it was compounding a. crime.”

In Goacher v. Bates, 280 Ill. 372, the complainants filed their bill to set aside deeds whereby they had conveyed certain real estate to defendants. The evidence disclosed that Goacher had swindled the defendant Bates, who was a banker, out of a considerable sum of money and Bates had employed the State’s Attorney to assist him in collecting it and they had gone to the home of the father and mother of Goacher, informed them of the amount of the indebtedness of their son at the bank and stated to- them that the son had procured such sum by means, of false pretenses and in a later conversation Bates stated that he would rather prosecute the son criminally and send him to the penitentiary than to go ahead with a proposed settlement. However, the matter was settled and the conveyances made which were sought to- be set aside and as part of the settlement Bates signed an agreement not to prosecute the son on a criminal charge. In affirming the decree of the chancellor who held that the conveyances, to Bates were valid the court at page 383 said: “While it is true that Bates made various threats during the progress of these negotiations and up to the time of settlement, the negotiations consumed several days and the Goachers were all adults and had ample opportunity for consultation and reflection. Lennie (the son) and his brother, at their father’s suggestion, consulted an attorney, and he informed them no crime had been committed and that Lennie was in no- danger of criminal prosecution. After receiving the benefit of this advice the Goachers continued their efforts to secure a settlement and made numerous propositions of settlement to Bates until finally he agreed to settle the matter upon the conveyance of the real estate. * # * We are of the opinion that there was no such fraud or duress used as would affect the transaction. The plaintiffs in error were all adults, of sound mind, consulted together among themselves and with their friends and legal adviser and insisted upon making the settlement which they are now seeking to have set aside.” So in the instant case appellees are intelligent adults. They sought and obtained the advice of counsel. They saw fit, however, to ignore this advice and acted upon their own volition. The representatives of appellant did not seek them but they, at the request of their relatives, sought them. They did not act hastily but had ample opportunity for mature deliberation and the acceptance by appellant of the note of appellees in satisfaction of the debt due it from Hazier is sufficient consideration to bind appellees. Harris v. Harris, 180 Ill. 157; Commercial State Bank of Forreston v. Folkerts, 200 Ill. App. 385.

The several propositions of law marked “held” by the trial court were so held upon the theory that the consideration for the note sued upon was an agreement by appellant not to prosecute Hazier, and that the. note was obtained by duress.

In view of the facts as disclosed by this record .and the law arising therefrom there was. neither duress nor want of consideration. The transaction was. the calm and deliberate act of appellees, and the defense here sought to be interposed was for the sole purpose of defeating a debt which had been believed by all for a long time to be bona fide and honestly due.

The judgment of the circuit court of LaSalle county is reversed and the cause remanded.

jReversed and remanded.


text:
    Farmers National Bank of Princeton, Illinois, Appellee, v. Anson Rosenkrans, Appellant.
    Gen. No. 7,558.
    1. Negotiable instruments — forbearance to press payment of note whereon comaker’s name forged as consideration for indipidVfl,l note of such comaker, Good consideration for the giving. of a note is shown by proof that it was given in consideration of forbearance or extension of time for payment of another note whereon it was claimed that the maker’s name had been forged.
    2. Negotiable instbuments — what constitutes sufficient consideration for note. It is not indispensable that the consideration for a note shall have passed directly to the promisor, but any act which is a benefit to- one party or a disadvantage to the other constitutes a sufficient consideration to support the contract.
    3. Contracts — validity of note given in consideration of forbearance to enforce payment of note on which maker’s name forged as comaker. A note given in consideration of the agreement of the payee to forbear pressing for payment of another note signed by his son-in-law and daughter and bearing the forged signature of the maker of such second note, is not void as given to compound a felony, although as a result of the giving of such second note there was no prosecution for the alleged forgery, where it was manifest that the said maker was an active and intelligent business man, acting without compulsion and with full understanding of the purpose of the transaction.
    Appeal by defendant from the Circuit Court of Bureau county; the Hon. Edgab Eldbedge, Judge, presiding. Heard in this court at the October term, 1925.
    Affirmed.
    Opinion filed April 3, 1926.
    R. L. Russell and H. A. Brooks, for appellant.
    J. L. Spaulding, for appellee.
   Mr. Justice Jett

delivered the opinion of the court.

Farmers National Bank of Princeton, Illinois, appellee, obtained judgment by confession in the circuit court of Bureau county against Anson Rosenkrans, appellant, upon a judgment note for $5,000, dated August 30, 1921.

The note declared upon reads as follows:

“Princeton, Illinois. August 30, 1921. $5,000.00.

“Two years after date, for value received, I promise to pay to the order of Farmers National Bank of Princeton, Ill., Five Thousand and No-100 Dollars at said Bank, with interest at seven per cent per annum from maturity. (Here follows warrant of attorney authorizing confession of judgment at any time after date of note.) This note is given to secure a note and any renewals thereof, dated April 12, 1921, due six months after date, signed T. Clyde. Strait, Anson Rosenkrans and Mrs. T. Clyde Strait.

(Signed) Anson Rosenkrans. ’ ’

After judgment was obtained by confession on said note, appellant made a motion to open up the judgment and to be permitted to plead. The motion was allowed and appellant filed a number of pleas. The defenses relied upon by appellant are that there was no consideration for the, note, that the bank was guilty of compounding a felony and that appellant Rosenkrans executed the note under duress. A trial was had by the court, without the intervention of a jury, and the court found for appellee and against appellant and rendered judgment accordingly for the sum of $5,766.-39, from which judgment appellant prosecutes this appeal.

The evidence shows that Mrs. T. Clyde, Strait, who was the wife of T. Clyde Strait, was, the daughter of appellant, who- lived at Paw Paw, Lee county, Illinois, about forty miles from Princeton, Illinois. Strait and his family lived on a farm near the village of Lamoille, which was about half way between Princeton and Paw Paw. On April 12, 1921, appellee held several notes against Strait and wife amounting to $4,144.50 for money loaned. Strait applied to appellee to increase the debt to- $5,000, stating that he would give the appellee a new note and have his wife and appellant sign as security. On that date a judgment note for $5,000 due six months after date was drawn and delivered to Strait. On the following day Strait returned to the bank with the note and it appeared to be signed by Strait first, appellant second, and Mrs. Strait third. Upon the, delivery of the note the appellee canceled and delivered to Strait the old notes and placed to his credit in the checking account $853.50. On August 29, 1921, appellee received a letter from Strait asking for a renewal of the note" until the following December at which time he promised to pay $2,500. On the same date this letter was received from Strait, appellee wrote to appellant informing him that it held a note for $5,000 signed by him and Mr. and Mrs. Strait, which note would be due October 12, and that the appellee had received word from Strait asking for a renewal of the note until December, at which time he would pay $2,500 and stating that if it was satisfactory to appellant the bank would grant the extension. On the next day, August 30, 1921, appellant went to the bank and had a talk with L. R. Davis, the president, and A. W. Anderson, the cashier, in which appellant stated that his name had been forged to the note. There was considerable discussion between the parties with reference to the seriousness of the charge and the effect it would have upon Strait and his family. Appellant offered appellee $2,000 to surrender the note, which was refused. He then offered $3,000, which was also refused. The officers of appellee then suggested that the bank would be willing to take a note for $5,000, due in two years, signed by appellant securing the payment of the forged instrument. After further discussion appellant agreed to execute this note and it is claimed by appellee that" it was then agreed that both notes should be held by appellee and that appellee was to collect from Strait whatever amounts could be secured, and any payments made should be indorsed upon both notes. There is some dispute as to whether it was at that time agreed that the question of this forgery should be kept a secret so as not to injure Strait and his family. A note for $5,000, dated August 30, 1921, due in two years, was then prepared and was signed by the appellant. After the judgment clause was the following: “This note is given to' secure a note and any renewals thereof dated April 12,1921, due six months after date, signed T. Clyde Strait, Anson Rosenkrans and Mrs. T. Clyde’ Strait.”

Strait did not pay $2,500 in December, and shortly before January 1,1923, made a sale of all his property and removed with his family from the State. From August 30,1921, to April 18,1923, there was some cor-. respondence between appellee and appellant with reference to the note, but after Strait and his family left the State appellant notified appellee that he considered the incident closed and he was not liable to appellee in any amount.

The note for $5,000 dated April 12, 1921, which appellant claims was a forgery, was declared upon by appellee and appellant defended upon the ground that he did not execute the same. Judgment, however, was obtained in the circuit court of Bureau county and an appeal was prosecuted to this court where the judgment of the circuit court was reversed and the cause remanded. The opinion is reported in 232 Ill. App. 632. In the decision in that case the court, among other things, said:

‘ ‘ * * * The next question is whether or not the evidence admitted tending to show ratification was sufficient to make appellant liable for the payment of the forged note. It must be conceded that appellant did not sign this note. He repudiated it from the beginning. He first offered $2,000 for its surrender. He then offered $3,000. Both offers were refused. These offers were not agreements to pay and did not constitute a ratification. Appellee then suggested that appellant sign a new note for $5,000 due in two years, securing the payment of the forged note or any renewal thereof, and the new note was executed. In connection with this new note it was agreed that appellee should collect from Strait what he could on the forged note and any payments made were to be credited on both notes. The fact that nothing was collected or credited does not change the effect of the agreement. Any balance due was to be paid by appellant on the new note. He did not recognize or ratify the forgery. He expressly repudiated it. He executed Ms own note in lieu thereof, and by so doing made himself personally liable to pay the $5,000, not upon the forged note, but upon the note which he personally executed. For this reason the, evidence admitted did not show a ratification of the forged note so as to make the appellant personally liable thereon, but the evidence did show that a new note was given by appellant and upon tMs new note his liability must be based.”

It is evident that the main thing wMch appellant deisired was that secrecy should be maintained in order that his son-in-law and daughter might not be known as forgers. He gave the note-involved in this case to the bank in order to protect the names of, his family. When he executed the $5,000 note in controversy he was asked if he did not want the forged note and he said, “I would rather have you keep the note. I feel you can collect the money better than I can.”

• Forbearance, or extension of time for payment of the note on wMch appellant claimed his signature was forged was a good consideration for the giving of the note declared upon in this proceeding. Commercial State Bank v. Folkerts, 200 Ill. App. 385-390; McMicken v. Safford, 197 Ill. 540; Spalding v. White’s Estate, 184 Ill. App. 217.

It is not indispensable that the consideration should pass directly to the promisor, but any act which is a benefit to one party or a disadvantage to the other constitutes a sufficient consideration to support a contract. Schlatter v. Triebel, 284 Ill. 412-415; Dickinson v. McKay, 177 Ill. App. 412-416; People v. Commercial Life Ins. Co., 247 Ill. 92-98.

If there was any benefit or advantage passing to the son-in-law or daughter -of appellant by reason of Ms executing and delivering to the appellee bank of the note declared on, such benefit or advantage constituted a sufficient consideration to sustain it. Schlatter v. Triebel, 284 Ill. 412-415; Dickinson v. McKay, 177 Ill. App. 412-416; People v. Commercial Life Ins. Co., 247 Ill. 92-98.

We are of the opinion there is no merit in the contention of appellant that there was no consideration for the execution of the note in question.

„ It remains to be determined whether or not the bank was guilty of compounding a felony and whether or not the note was executed under duress.

The use of criminal process as a means of collecting private indebtedness is illegal and contracts so obtained are contrary to public policy and unenforceable. Shenk v. Phelps, 6 Ill. App. 612. All the authorities hold that an agreement to compound a felony will not be enforced and that any security based upon such consideration is void. 3 R. C. L. 957. And if the original note or security is void, its surrender could be no consideration for'a new note between the same parties. 3 R. C. L. 964-65. But it is not illegal merely to compromise the dvil injuries resulting from a criminal act where it is not expressly or impliedly agreed that the prosecution for the crime is to be prevented or suppressed and a note given in consideration of moneys embezzled is valid and enforceable, there being no agreement to conceal or, suppress a prosecution for the offense. 3 R. C. L. 958. The true rule seems to be that notwithstanding the pendency of criminal proceedings against a wrongdoer one whose money or property has been fraudulently obtained may contract for repayment of the money or satisfaction for the loss sustained and take security therefor, without invalidating the contract, unless there be included therein, as a part of the consideration therefor, some promise or agreement, express or implied, that such prosecution shall be suppressed, stifled or stayed. Northfork Board of Education v. Angel, 75 W. Va. 747, 84 S. E. 747, L. R. A. 1915E 139.

In Ford v. Cratty, 52 Ill. 313, the defendant Ford had embezzled a considerable sum of money from plaintiff’s intestate, Frederick Furch, who procured a warrant for his arrest and this warrant was shown to Ford and he was informed that he must settle or secure the amount due or the prosecution would be pushed to a conclusion. Ford, thereupon, with the other defendants, executed the note sued upon. In affirming the judgment of the lower court in favor of the plaintiff and after quoting the statute the Supreme Court said, “This last section authorizes the injured party to reclaim his property or receive compensation for the wrong done to him. * * * In this case, Furch did no more than receive that compensation when he obtained the note. There is no pretense that Ford had not collected the money and still owed it to him. He had a right to receive the note, and whatever may be said of the means employed in obtaining it, we cannot hold that it was received to compound a criminal offense. * * * Here the note was given, not as a reward for not prosecuting but for a debt due from Ford to Furch, and that being the only and true consideration, it is not like a note given simply to prevent the prosecution for a misdemeanor or felony.”

In Rudolph Stecher Brewing Co. v. Carr, 194 Ill. App. 32, Frank Sarafin had purchased beer of the brewing company and in payment therefor had executed and delivered to them two checks aggregating $502.32. These cheeks had been sent to an attorney for collection and he had determined from the facts stated to him that Sarafin had been guilty of the crime of confidence game in giving such checks and after consulting with the State’s Attorney a complaint was filed and Sarafin arrested. At the hearing he waived examination and was bound over on his own recognizance to the grand jury and gave to the brewing company a check for $502.32, which was indorsed by Carr. The check not having been paid, suit was instituted against Carr. The trial court held that the check was given for the compounding of the crime of confidence game and therefore void. In reversing this judgment the Appellate Court, after commenting upon the fact that the evidence tended to show that the brewing company, by its agent, consented in consideration of the check being given, that Sarafin could go on his own recognizance, said: “even if Levy (the agent of the brewing company) did consent that he might go upon his own recognizance and did not agree that Sarafin would not be prosecuted further, this would not be sufficient to defeat this action, for the mere consenting for the defendant to go upon his own recognizance would not be the compounding of a crime. We think it is quite clear from this evidence that the cheek in question was not' given as a reward for not prosecuting, but was rather in payment of the debt, and that if consent was given that he might go upon his own recognizance it was a mere incident and would not of itself be sufficient to warrant a court in saying that it was compounding a ciime. ’ ’

In Goacher v. Bates, 280 Ill. 372, the complainants filed their bill to set aside deeds whereby they had conveyed certain real estate to defendants. The evidence disclosed that Goacher had swindled the defendant Bates, who was a banker, out of a considerable sum of money, and Bates had employed the State’s Attorney to assist him in collecting it and they had gone to the home of the father and mother of Goacher, informed them of the amount of the indebtedness of their son at the bank and stated to them that the son had procured such sum by means of false pretenses and in a later conversation Bates stated that he would rather prosecute the son criminally and send him to the penitentiary than to go ahead with a proposed settlement. However, the matter was settled and the conveyances made which were sought to be set aside and as part of the settlement Bates signed an agreement not to prosecute the son on a criminal charge. In affirming the decree of the chancellor who held that the conveyances to Bates were valid the court at page 383 said:

“While it is true that Bates made various threats during the progress of these negotiations and up to the time of settlement, the negotiations consumed several days and the Gfoachers were all adults and had ample opportunity for consultation and reflection. Lennie (the son) and his brother, at their father’s suggestion, consulted an attorney, and he informed them no crime had been committed and that Lennie was in no danger of criminal prosecution. After receiving the benefit of this advice the Gfoachers continued their efforts to secure a settlement and made numerous propositions of settlement to Bates until finally he agreed to settle the matter upon the conveyance of the real estate. * * * We are of the opinion that there was no such fraud or duress used as would affect the transaction. The plaintiffs in error were all adults, of sound mind, consulted together among themselves with their friends and legal adviser and insisted upon making the settlement which they are now seeking have set aside.”

In the instant case appellant was an intelligent and an active business man. He was evidently a man of considerable experience and under the conditions and circumstances as disclosed by the evidence he signed the note knowing and understanding the purpose for which it was executed.

We are of the opinion that there was a consideration for the note, that appellee did not compound a felony nor was the note executed under duress. There is no reversible error in the holding or the refusing of propositions of law.

The judgment, therefore, of the circuit court of Bureau county will be affirmed.

Judgment affirmed.


author: Mr. Presiding Justice Jones

text:
    I. N. R. Beatty et al., trading as I. N. R. Beatty Lumber Company, Appellees, v. James P. Monahan and Edward Monahan, trading as Monahan Bros. James P. Monahan, Appellant.
    Gen. No. 7,502.

      Parties — immunity from, service of process while in attendance upon trial. Service of civil process is insufficient to confer jurisdiction when the person served not a resident of the jurisdiction wherein such service is had, and is within the jurisdiction, at the time of such service, for the purpose of attending the trial of a civil suit pending therein, in which he is a party defendant.
    Appeal by defendant from the Circuit Court of Will county;1 the Hon. Frank L. Hooper, Judge, presiding. Heard in this court at the April term, 1925.
    Reversed and remanded with directions.
    Opinion filed April 5, 1926.
    J. W. Downey and Samuel B. King, for appellant.
    Hayes, Munts & Young, for appellees.
   Mr. Presiding Justice Jones

delivered the opinion of the court.

Appellees, copartners, doing business under the firm name of I. N. R. Beatty Lumber Company, began an action of assumpsit in the circuit court of "Will county against Edward Monahan and the appellant, James P. Monahan, residents of Cook county and copartners doing business under the firm name of Monahan Bros. Appellant was served with process in Will county; no service was had on Edward Monahan. Various pleas hereinafter mentioned were filed by appellant, James P. Monahan. A trial by jury was had and a directed . verdict against appellant for $244.49 was returned. Judgment was entered upon such verdict and the cause is brought to this court on appeal.

The suit was instituted by praecipe. Before the declaration was filed appellant filed two sworn pleas chailonging the jurisdiction of the. court. The first plea averred that both defendants were and are residents of Cook county, and that Edward Monahan was not found or served with process in Will county or in any other county. A demurrer to this plea was properly sustained under Sherburne v. Hyde, 185 Ill. 580. The second plea averred that appellant was a nonresident of Will county; that Edward Monahan was not found in Will county and that the alleged service of process upon appellant was had upon him while he was in attendance upon the trial of a chancery cause then being heard in the circuit court of Will county in which he was a defendant, and regularly served with process therein; that while he was so in attendance upon said trial in the court room in Will county and during the progress of said trial, and while the judge of said court was upon the bench hearing said chancery cause, a deputy sheriff of Will county served the summons in this case upon him and that no' other writ of summons in this cause has even been served upon him. The plea further averred that appellant was in said county of Will for no other purpose than to attend upon the trial of said chancery cause and had no occasion or reason to be there other than as a party defendant to said cause. A demurrer to this plea was also sustained by the court. Appellant has assigned error as to the rulings of the court upon the demurrers as well as upon certain other matters.

Preliminary to a discussion of the second plea, we are required to dispose of a contention made by appellees, in which they say that appellant waived the said plea by filing a general entry of appearance prior to the day when the demurrer was sustained. This contention grows out of an error of the clerk of the circuit court in placing the file mark on the entry of appearance. The clerk erroneously dated the filing November 1,1920, instead of the day the entry was actually filed, to wit, December 1, 1920. The demurrers were sustained November 30,1920. Since the abstract and briefs in this case were filed in this court, a diminution of record was suggested and the above-mentioned error has been corrected in the record. Consequently there is no longer any ground left to justify a contention of waiver.

Because of our views concerning the sufficiency of the second plea it is unnecessary for us to discuss any of the other errors assigned. The question raised by this plea is simply this: Is a nonresident suitor exempt from service of civil process while in attendance upon a trial of his cause in the county where such suit is pending and when he is there only for the purposes of his suit ? While this question has been often decided by the federal courts and also by the courts of last resort of nearly every state in the union, the Supreme Court of Illinois, in our opinion, has never been called upon to pass directly upon it. Several cases have been before that court which involved related matters but not the precise question, and we will briefly refer to them. But the Appellate Court of the Third District, in Gregg v. Sumner, 21 Ill. App. 110, has passed upon that question and held that it is an established and well-settled principle that nonresident suitors are privileged from service of legal process in civil actions while attending upon the trial of a cause in a court. In none of the cases before the Supreme Court did the plea aver that the defendant claimed an exemption because he was in attendance upon a court in a civil cause as a suitor; but the averments showed that the defendant was either (1) not before a judicial tribunal but before a commissioner or notary public taking depositions and under circumstances which did not compel his attendance, or (2) voluntarily in said county and not as a suitor, or (3) held upon a criminal process.

Thus in Greer v. Young, 120 Ill. 184, the court held that a citizen of Missouri who came into this State for the purpose of taking depositions in Chicago to be used in a suit in Missouri was not exempt from the service of civil process. The opinion contains some language intended to distinguish between cases where the suitor was served by summons and cases where he was placed under civil arrest. Yet the opinion of the court is not grounded upon any such distinction but upon the fact that the defendant had voluntarily appeared before a commissioner to take depositions and was not in attendance as a party or witness in any matter pending before a court or before any lawful tribunal having jurisdiction of the cause. It is clear that a commissioner in Chicago cannot compel one residing- in Missouri to appear before him, and the court held that the whole proceedings before the notary were purely ministerial and therefore do not fall within the category of any of the tribunals contemplated by the rule relating to exemptions from civil process. The decision also rested on the holding of the court that the question was improperly raised upon affidavit instead of by a plea in abatement.

In Cassem v. Galvin, 158 Ill. 30, the defendant had gone to another county voluntarily to take depositions before a notary public and was not before a court.

In McNab v. Bennett, 66 Ill. 158, it is said that if a man voluntarily leaves his residence or goes into another county or, if seized, when properly charged with crime and taken into another county he would not be exempt from the service of civil process. But if his arrest was caused by false and fraudulent pretense or by abduction for the sole purpose of obtaining service in a civil proceeding, it would be a base and utter perversion of the object of the law to permit him to be served with civil process while there, and it was declared that if such a thing were allowed, the statute would be no protection against the machinations of bad men who are willing to prostitute their oaths for selfish purposes and that under such a state of facts the defendant was not found in the county but was entrapped there.

And again in Willard v. Zehr, 215 Ill. 148, a resident of Jasper county, Missouri, was brought into Tazewell county, Illinois, under arrest on a criminal charge. While in the latter county he was served with civil process. A plea in abatement was filed and the court in substance held that if the plea had set up facts showing that the indictment was wrongfully, fraudulently and deceitfully procured, it would have been a good plea, but that the plea was defective because it contained inferences and conclusions of the pleader and not the facts upon which such conclusions were based.

We have reviewed all of- the cases which are cited upon this question by appellees in their briefs and it will be seen that none of them are predicated upon a situation such as is presented by the second plea in this case. The defendant in the suit at bar was not in Will county before a notary public taking depositions or before any ministerial officer without judicial power or even before a notary public acting under an order of court in taking depositions. He was before a court of equity in a controversy in which he was a party defendant. He was not voluntarily in Will county on business other than the trial of said cause. He was there in obedience to the mandate of a summons and in the defense of said suit; and lastly he was not brought into Wifi county by a criminal process. And so it appears that his situation is not similar to that which has been passed upon by the Supreme Court of this State in any of the above-mentioned cases. Immunity from civil process under the circumstances of this case has been declared to be the rule of the courts of so many States of this union that it can now be said to be one of almost universal application. From our examination of reported cases we have been able to find only three jurisdictions which hold to a contrary rule, to wit, Missouri, Rhode Island and Nevada; and Missouri does so because of a statute.

On the other hand, the federal courts and the courts of last resort of the States of Arkansas, California, Delaware, Georgia, Indiana, Iowa, Kansas, Kentucky, Maryland Michigan, Minnesota, North Dakota, New Hampshire, New Jersey, New York, Nebraska, North Carolina, Ohio, Oklahoma, Pennsylvania, South Dakota, Tennessee, Texas and Wisconsin hold that a nonresident suitor is exempt from civil process. In the earlier cases in New York* it was held that a nonresident party was exempt only from arrest on civil process and not from service of summons. (Jenkins v. Smith, 57 How. Pr. [N. Y.] 171; Taft v. Hoppin, Anthon N. P. [N. Y.] 187.) But later, starting with Matthews v. Tufts, 87 N. Y. 568, and followed in a number of more recent cases, it is held that a nonresident party is also exempt from service of summons. The court in the Tufts case held that the privilege is not confined to witnesses, but extends to parties as well.

In Connecticut the rule was also changed. The early case of Bishop v. Vose, 27 Conn. 1, held against the majority rule but in Wilson Sewing Machine Co. v. Wilson, 51 Conn. 595, it modified its holding, and declared that the exemption extended to suitors who had been served with civil process as well as to those who had been placed under civil arrest.

A very illuminating discussion is to he found in Halsey v. Stewart, 4 N. J. L. 366 (Southard), where it is held that a nonresident suitor, while necessarily going to, staying at or returning from the court, is equally privileged from the service of summons as of a capias. The opinion in this case was written in 1817 and the conclusion reached in it has been almost invariably followed by all other jurisdictions. But the rule is of even more ancient origin and is mentioned in the Year Books as early as Henry VI. (21 R. C. L., p. 1307; Brooks v. State, 3 Boyce (Del.) 1, 51 L. R. A. [N. S.] 1126.)

The courts of some states have made a distinction between parties plaintiff and parties defendant and have held that plaintiffs are not privileged while defendants are privileged. The distinction is based upon the theory that a .plaintiff has gone voluntarily into another county or state to seek redress, while a defendant had nothing to do with selecting the forum and is compelled to follow the suit in his own defense. But this rule is a minority rule and we are not concerned with it at this time because appellant in this case was not a plaintiff but a defendant and was brought to Joliet through the process of the circuit court of Will county.

The basis of the majority rule is aptly stated in Andrews v. Lembeck, 46 Ohio St. 40, as follows: “The question is one which profoundly concerns the free and unhampered administration of - justice in the courts, that suitors should feel free and safe at all times to attend, within any jurisdiction Outside of their own, upon judicial proceedings in which they are concerned, and which require their presence, without incurring the liability of being picked up and held to answer some other adverse judicial proceedings againsi them, and is so far a rule of public policy that it has received almost universal recognition wherever the common law is known and administered.”

As far as we are able to observe the text-writers are all in harmony upon this question. 32 Cyc. 492, contains the following: “Suitors and witnesses coming from foreign jurisdictions, for the sole purpose of attending court, whether under summons or subpoena or not, are usually held immune from service of civil process while engaged in such attendance and for a reasonable time in coming and going.” See also 22 Amer. & Eng. Encyc. of Law, p. 164; 21 R. C. L., p. 1305. And this immunity is extended to parties and witnesses in counties other than their own as well as to nonresidents of the State. (21 R. C. L. 1312.)

Under the almost universal rule of decision, the second plea in this case was a sufficient plea and the trial court erred in sustaining a demurrer to it. This cause is therefore reversed and remanded with directions to the trial court to set aside the judgment and also the order sustaining the demurrer to the second plea, to overrule said demurrer and to allow such further proceedings herein as may he consistent with this opinion.

Judgment reversed and remanded with directions.


text:
    Dollie M. Schleicher, Defendant in Error, v. General Accident, Fire & Life Assurance Corporation, Ltd., Plaintiff in Error.
    Gen. No. 7,519.
    1. Appeal and ebroe. — when finding of jury upon special interrogatory binding upon reviewing court. The finding of a jury in response to a specially submitted interrogatory is binding upon the reviewing court where plaintiff in error made no objection thereto during the trial and did not seek to have it set aside or make it the .basis for a motion for a new trial.
    2. Saving questions fob review — motion for direction of verdict as saving question of sufficiency of evidence to support answer to special interrogatory. The Question as to the sufficiency of the evidence to support the finding of the jury in response to a specially submitted interrogatory is not saved for review by reason of the fact that plaintiff in error asked that a verdict he directed in his favor.
    3. Saving questions for review — assignment verdict against weight of evidence as saving question of sufficiency of evidence to support answer t0‘ special interrogatory. A general objection that the verdict is contrary to the weight of the evidence does not save for review the question of the sufficiency of the evidence to' support the finding of the jury in response to a specially submitted interrogatory.
    4. In suban oe — “accidental means” defined. An effect which is not the natural or probable consequence of the means which produced it, an effect which cannot be reasonably anticipated from the use of such means, an effect which the actor did not intend to produce and which he cannot he charged with the design of producing, is produced by accidental means.
    5. Insurance — death resulting from administration of gas preliminary to extraction of tooth as dine to accidental means. Death resulting from the administration of nitrous oxide gas in connection with the extraction of a tooth i-s a death as the result of accidental means1 within the terms, of a policy of accident insurance, although it was: .the intention of the assured to have the ■tooth extracted and to have the gas. administered in preparation therefor.
    6. Saving questions fob review — failure to object during trial to want of foundation for opinion evidence as precluding consideration on review. An objection that a medical witness was allowed to state his opinion as to the state of an insured’s health prior to the administration of gas. preliminary to the extraction of a tooth, based upon conditions then observed as to which the jury were not informed, cannot be considered in the Appellate Court where no objection was raised on the trial to the questions and answers objected to.
    7. Saving questions fob review — failure to object to improper hypothetical question during trial as precluding objection on review. An objection that a hypothetical question submitted to a medical witness contained elements not appearing in the evidence cannot be entertained on review where the objection was not made during the trial.
    8. Saving questions fob bbvibw — failure to move for exclusion of answer invading province of jury as precluding objection on review. No reversible error was committed by the trial court in failing to exclude an answer of a medical witness to a hypothetical question invading the province of the jury where no- motion was made to exclude it, especially where it appears that the court sustained objections to other questions calculated to1 bring out the same answer as did the hypothetical question.
    9. Trial — discretion of trial court as to reopening case for taking of additional testimony after argument begun. The question whether the court shall reopen a case after argument has commenced for the purpose of hearing the testimony of an additional witness is one addressed to the discretion of the trial court, and its decision thereon is not subject to review.
    Error by defendant to the Circuit Court of Peoria county; the Hon. John M. Ndehaus, Judge, presiding. Heard in this court at the October term, 1925.
    Affirmed.
    Opinion filed April 5, 1926.
    John A. Bloomingston and Miller, Elliott & Westervelt, for plaintiff in error.
    McGrath, Stone & Daily, for defendant in error.
   Mr. Presiding Justice Jones

delivered the opinion of the court.

This is a suit instituted in the circuit court of Peoria county to recover upon a policy of insurance, insuring John Edward Schleicher against bodily injuries effected directly and independently of all other causes through accidental means (excluding suicide, sane or insane, or any attempt thereat, sane or insane), and providing for the payment of the principal sum of $7,500 in case of death to Dollie M. Schleicher, as beneficiary. A trial by jury was had and the jury returned a verdict in favor of the defendant in error. A motion for a new trial having been made and denied, judgment was rendered on the verdict and plaintiff in error prosecutes this writ of error.

It appears from the evidence that John Edward Schleicher, of the City of Peoria, died on October 21, 1923, from the effects of a weakened heart. Prior thereto, on July 12, 1923, he had a tooth extracted by a dentist of that city. Before the extraction, and as a part of the operation, the doctor in charge administered nitrous oxide gas to the decedent. The effects of the gas upon the decedent were noticeable within a very short time after the operation. As a result of the administration of the gas, decedent developed a nausea upon reaching the street, vomited, could not go any farther and had to be taken home in an automobile, where he was put to bed. There were immediate signs of injury to his heart. He never recovered and gradually grew worse until he died. Defendant in error contends that prior to the extraction of the tooth, decedent had never had any heart trouble. The night before the extraction of the tooth Dr. Sedgwick examined him and testified to finding nothing abnormal about the heart. Decedent had also been examined by Dr. Hubbard in August, 1912, for life insurance, and again two months later, and nothing was found indicating there was anything the matter with his heart. About the middle of December, 1922, Dr. Sedgwick again gave him a physical examination, and he testified that his examination indicated a normal heart; but that he had a functional nervous trouble, without any organic foundation. Decedent spent about two months in Florida, the first two weeks of which his physician was with him. His physician testified that he returned very much improved; that he attended to his business; and that his condition so remained up to the time he had the tooth extracted.

At the request of the plaintiff in error, the court submitted to the jury the following special interrogatory: “Did John E. Schleicher come to his death directly and independently of all other causes from the’ administration of nitrous oxide gas on the 12th day of July, 1923?” The jury answered “Yes.” That question was the principal one in dispute before the trial court. It was specially submitted to the jury and decided by it in the affirmative. Plaintiff in error made no objection to such finding in the trial court. It did not seek to have it set aside and did not complain of it as a ground for a new trial. In this state of the record such finding is conclusive in this court. In Brimie v. Belden Mfg. Co., 287 Ill. 11, a special interrogatory was submitted to the jury upon which the jury made a specific finding. On page 15 of the opinion, the court said: “The principal arguments in the briefs center about this special interrogatory and finding. It has been held by this court that the defendant is conclusively bound by a special finding of fact such as is here involved unless error has been assigned thereon and the question has also been raised on the motion for a new trial. (Citing cases.) No motion was made by plaintiff in error to set aside this special finding of fact in the trial court, nor was any error assigned thereon, either in the Appellate Court or this court. It is, however, contended here that the question was preserved by motion made by plaintiff in error in the trial court requesting that court to direct a verdict for plaintiff, in error, and was also preserved in the motion for new trial by the general objection that the verdict was contrary to the weight of the evidence. Under the rulings of this court neither of these points can be sustained. ’ ’ The case of Pennsylvania Coal Co. v. Kelly, 156 Ill. 9, was also a case in which there had been special findings, and on page 15 of the opinion the court said: “The case is, however, urged on behalf of appellant as though it was not bound by the special findings, and it is said some of them are wholly unsupported by the evidence. No objection of that kind was taken before the trial court, by motion for a new trial or otherwise, and therefore- it cannot be urged now.” In the case of Avery v. Moore, 133 Ill. 74, the court said: “Having asked for this special finding of fact, and the jury having returned an answer to the interrogatory, if appellant thought the finding was not supported by the evidence, he should have applied for a new trial, assigning that as a reason. * * # This he did not do.”

It now being conclusively settled in- this case that the decedent came to his death directly and independently of all other causes from the administration of nitrous oxide gas, we must inquire whether or not such death was accidental within the meaning of the policy. Plaintiff in error contends that according to the facfs shown by the record, the decedent did not come to his death as the result of accidental means, basing such contention on the proposition that the decedent in taking the gas and having a tooth extracted was doing just what he intended to do, and that where one does an act in the manner intended, with a result which was hot intended, the result does not ensue from “accidental means.” Notwithstanding what some of the other courts have said concerning cases involving the same question, we are of the opinion the courts of Illinois are committed to the rule announced in 4 Cooley’s Briefs on Insurance 3156: “An effect which is not the natural or probable consequence of the means which produced it, an effect which does not ordinarily follow and cannot be reasonably anticipated from the use of such means, an effect which the actor did not intend to produce and which he cannot be charged with the design of producing, is produced by ‘accidental means. ’ ”

This rule is sanctioned in Fidelity & Casualty Co. of New York v. Morrison, 129 Ill. App. 360; and in Rowden v. Travelers Protective Ass’n of America, 201 Ill. App. 295. It seems to have been applied in Higgins v. Midland Casualty Co., 281 Ill. 431. The evidence in this case shows that death from the administration of nitrous oxide gas is not the usual and probable result; that it is a very rare occurrence; and that the percentage is as low as 1 to 200,000. The death here involved was produced through “accidental means” as that term is construed by the courts of this State. |

It is next insisted by plaintiff in error that Dr. Sedgwick was- allowed to give his opinion from the' conditions he observed in the patient, which observations the jury knew nothing about. Dr. Sedgwick testified in detail as to the conditions he had observed and it does not appear that he testified to any condition he had not observed. The record does not bear out this contention of plaintiff in error, and besides that, no such objection was made in the trial court to the questions or answers now complained about; therefore none can be raised in this court. It is claimed that a hypothetical question submitted to Dr. Collins contained certain elements that did not appear in the evidence and that his answer invaded the province of the jury. The question was not objected to on the first ground and plaintiff in error cannot do so now. There is basis for the complaint as to answer of the witness but no motion to exclude it. The court sustained objections to other questions calculated to bring out the same answer as did the hypothetical question and would doubtless have excluded the answer complained of, had a motion to that effect been made. Similar complaint is made of the testimony of Dr. Hubbard and the record situation is about the same as that pertaining to the testimony of Dr. Collins. We do not believe any reversible error was committed in connection with the testimony of said witnesses or with the rulings of the trial court.

Lastly it is insisted that the court erred in refusing to reopen the case on the part of plaintiff in error after it had closed its case and after argument of counsel had started. Whether or not a judge should reopen a case after it has once been closed and then wait for a witness to arrive who' is not present is a matter within the discretion of the court, and the exercise of such discretion is not reviewable. (Schwitters v. Springer, 236 Ill. 271; Hartrich v. Hawes, 202 Ill. 334.)

We are of the opinion that the record is without substantial error and the judgment of the circuit court of Peoria county will be affirmed.

Judgment affirmed.