author: Mr. Presiding Justice Wolfe

text:
    Laura A. Smith, Appellant, v. Illinois Power Company, Appellee.
    Gen. No. 8,870.

      Opinion filed January 25, 1935.
    Rehearing denied March 18, 1935.
    Archie G-. Kennedy, Julius E. Matteson and Dennis J. Collins, all of DeKalb, for appellant.
    Smith & Brower, of Sycamore, for appellee.
   Mr. Presiding Justice Wolfe

delivered the opinion of the court.

This action was' brought by the plaintiff, Laura A. Smith, against the defendant, Illinois Power Company, to recover damages for personal injuries sustained by her caused by her tripping over a guy wire bracing an electric light pole owned by the defendant. The pole stood in the parking between the sidewalk and the curb on the east side of Evans avenue in the City of DeKalb. It appears from the evidence that the defendant, under a franchise granted to it by the City of DeKalb, maintained and controlled in the streets of that city, poles, wires, guy wires, anchors and other equipment for furnishing electricity to the residents of the city, and for lighting the streets of DeKalb. A jury trial resulted in a verdict and judgment for the defendant.

The plaintiff contends that the trial court erred in overruling her demurrer to the defendant’s plea of the statute of limitations interposed to the first, second and third additional counts of the declaration. Those counts were filed more than two years after the accident. The plaintiff also contends that the trial court erred in withdrawing from the consideration of the jury, at the close of all the evidence, the fourth, fifth, sixth, seventh and eighth additional counts of the declaration. Those counts charge the defendant with wilful and wanton conduct. It will be necessary to give attention to the pleadings, and subsequently an examination of the evidence to determine if there is any evidence in the case proving or tending to prove wilful and wanton conduct on the part of the defendant which was the proximate cause of the injury complained of as charged in the fourth, fifth, sixth, seventh and eighth additional counts of the declaration.

The defendant filed the general issue to the first four original counts of the declaration. The ownership and control of the guy wire by the defendant is not disputed. Relative to those counts, we deem it sufficient to state the breaches of duty charged therein as follows first count: The defendant “then and there negligently and carelessly placed said brace wire at a point where it was not necessary and in a manner where it was dangerous to persons passing upon, along and across said Evans Avenue.” Second count: The defendant “maintained said pole and said brace wire attached thereto negligently and carelessly and in a manner where it was dangerous to persons passing upon, along and across said Evans Avenue.” Third count: The defendant “placed said brace wire attached to said pole negligently and without regard to the safety of persons passing upon, along and across said Evans Avenue and without the exercise of ordinary care and prudence in the location of such brace wire so that the same was dangerous to persons passing upon, along and across said Evans Avenue.” Fourth count: That defendant “negligently and without regard to the safety of persons passing upon, along and across said Evans Avenue, and without the exercise of ordinary care and prudence negligently and carelessly failed to properly protect said brace wire so as to render it harmless to persons passing upon, along and across said Evans Avenue.”

None of these counts charges, indicates, or discloses any breach of duty by the defendant in failing to obey and comply with the requirement of any order, decision, direction, rule or regulation made and prescribed by the Illinois Commerce Commission.

As before stated, the defendant pleaded the statute of limitations to the first, second and third additional counts of the declaration. The substance of paragraphs five and six of the first additional count is as follows:

5. “Plaintiff avers that on said 20th day of February, 1930, and for a long time prior thereto there had been in full force and effect a certain Statute of the State of Illinois entitled ‘An Act Concerning Public Utilities, ’ in and by which act there was created in the Department of Trade and Commerce an ‘Illinois Commerce Commission’; that it was also provided in and by said Act, among other things, as follows :

“ ‘Every public utility shall obey and comply with each and every requirement of every order, decision, direction, rule or regulation made and prescribed by the Commission in the matters herein specified, or any other matter in any way relating to or affecting its business as a public utility, and shall do everything necessary or proper in order to secure compliance with and observance of its officers, agents and employees. ’

“Plaintiff further avers that there was then and is now in full force and effect a General Order No. 115 of said Illinois Commerce Commission; that paragraph 170.8 of said General Order No. 115 is in words and figures as follows:

“ ‘Guards for Guys — The ground end of all guys attached to ground anchors exposed to traffic shall be provided with a substantial and conspicuous wood or metal guard not less than 8 feet long. It is recommended that in exposed, poorly lighted locations such guards be painted white or some other conspicuous color. ’

“Which said General Order No. 115 was duly served upon said defendant, the Illinois Power Company, by said Illinois Commerce Commission as provided by law. ’ ’

6. “Plaintiff further avers that it became and was the duty of the defendant to provide the ground end of said guy so attached to said ground anchor just east of the curb on the east side of Evans Avenue in said city with a substantial and conspicuous wood or metal guard not less than eight feet long, as provided by Law and rules of said Illinois Commerce Commission. ’ ’

The breach of duty charged in the first additional count is that the defendant “carelessly, negligently and improperly failed to provide said ground end of said guy with substantial and conspicuous wood or metal guard as required by said General Order No. 115 of said Illinois Commerce Commission, and said defendant, the Illinois Power Company, carelessly, negligently, and improperly failed to inclose, fence or otherwise protect said guy or brace wire as provided by law.”

The seventh paragraph of the second additional count is as follows: “Plaintiff further avers that it was also provided in and by said act concerning public utilities among other things, as follows:

“ ‘In case any public utility shall do, cause to be done or permit to be done any act, matter or thing prohibited, forbidden or declared to be unlawful, or shall omit to do any act, matter or thing required to be done either by any provisions of this Act or any rule, regulation, order or decision of the Commission, issued under authority of this Act, such public utility shall be liable to the persons or corporations affected thereby for all loss, damages or injury caused thereby or resulting therefrom, and if the court shall find that the act or omission was wilful, the court may in addition to the actual damages, award damages for the sake of example and by way of punishment. An action to recover for such loss, damage or injury may be brought in any court of competent jurisdiction by any person or corporation.

“ ‘In case of a recovery of damages by any person or corporation under the provisions of this section the plaintiff shall be entitled to reasonable counsel’s or attorney’s fee to be fixed by the court, which fee shall be taxed and collected as part of the costs of the case.’ ”

The breach of duty charged in the second additional count is: that the defendant, “with a conscious indifference to surrounding circumstances and conditions and conscious that its conduct would naturally and probably result in injury to persons using said Evans Avenue or passing upon, along or across the same, said defendant wilfully and wantonly permitted such guy or brace wire attached to a ground anchor and exposed to traffic as aforesaid to be and remain unprotected contrary to law as aforesaid.”

The accident occurred on the 21st day of February, 1930. The three additional counts were filed on Jan-nary 10, 1933. If each of them states a new canse of action, they were all barred by the statute of limitations. When the plaintiff’s demurrer to the plea of the statute of limitations to the three additional counts was overruled and the plaintiff elected to abide by her demurrer, judgment nil capiat would have been proper as the plea was in bar to any cause of action stated in any one of the counts. County of Pike v. Cadwell, 78 Ill. App. 201.

Evidence sufficient to sustain the first four original counts would not be sufficient to sustain any one of the first three additional counts. Under those additional counts, it would have been necessary for the plaintiff to introduce in evidence paragraph 170.8 of G-eneral Order No. 115 of the Illinois Commerce Commission and prove a violation thereof by the defendant, in order to sustain, by proof, any of the first four original counts. The second additional count is based on the statute ostensibly allowing an attorney’s fee to the plaintiff if the court finds the alleged violation of the order of the commission by the defendant to have been wilful. The question of wilful conduct is one of fact to be determined by a jury. We are not aware that a person may be deprived of a jury trial by a statute which attempts to grant “the court” power to find whether an act or omission of such person is wilful or not. We have no doubt it would have been necessary for the plaintiff to introduce in evidence the said order of the commission and to prove its alleged violation by the defendant to have been wilful. The courts have logically adopted the rule that one test by which it determines whether the different counts are for the same cause of action under a plea of the limitations statute, is whether the same evidence would support a judgment rendered upon either. The question of a variance or a misjoinder of counts is not involved under such an inquiry. Carlin v. City of Chicago, 262 Ill. 564.

The plaintiff contends that the first, second and third additional counts fall within the meaning of section 39 of the old Practice Act, Cahill’s St. 1933, ch. 110, 39 (App’x). That section was repealed by the Civil Practice Act which contains, a saving clause. It will be noted that section 39 provides that an amendment to a pleading should not be barred by the lapse of time under any statute limiting the time within which an action might be brought. Section 39 is in part as follows: “If it shall appear from the original and amended pleading that the cause of action asserted, or the defense interposed in the amended pleading grew out of the same transaction or occurrence, and is substantially the same as set up in the original pleading, even though the original pleading was defective in that it failed to allege the performance of some act or the existence of some fact, or some other matter or matters, which are necessary conditions precedent to the right of recovery or defense asserted when such conditions precedent have been in fact performed.” While the Appellate Courts of this State have given this section a liberal construction so far as its terms will permit, it has never been held that its effect is to repeal the two-year limitation for the bringing of actions for personal injuries as prescribed by the statute. Keslick v. Williams Oil-O-Matic Heating Corp., 277 Ill. App. 263. While we can say with conviction that the purpose of section 39, as amended in 1929, was to remedy the evil that the statute of limitations should not bar an amendment to a Declaration Which Contained a Defective Statement of a good cause of action in that it did not allege the performance of conditions precedent, and the amendment substantially states the same cause of action declared upon in the original declaration, then the amendment is not barred by the statute of limitations, the further intention and purpose, if any, of the section is not clear. In other words, amendments to declarations were permitted before the enactment of section 39 unless the amendment set up a new cause of action barred by the statute of limitations. If the amendment sets out a new cause of action, we cannot say that the amendment is substantially the same as the original declaration. It is true the original fourth count of the declaration in this case alleged that the defendant failed to properly protect the guy wire, but it seems to us that the allegations of the additional counts in question and the proof necessary to sustain any one of them states a new cause of action. Under any construction of section 39, the court correctly overruled the demurrer to the plea of the statute of limitations interposed to the first, second and third additional counts. (Union Pac. R. Co. v. Wyler, 158 U. S. 285, 39 L. Ed. 983; Zwahlan v. Johnson, 207 Ill. App. 373; Redmond v. Schilthelm, 273 Ill. App. 222; Bradley v. Chicago-Virden Coal Co., 231 Ill. 622.)

As before stated, the court at the close of all the evidence withdrew from the consideration of the jury the fourth, fifth, sixth, seventh and eighth additional counts, all of which charged the defendant with wilful conduct. These counts are independent of the first, second, and third additional counts. None of them pleads the General Order No. 115 of the Illinois Commerce Commission. However, each of the fourth, fifth, sixth, seventh and eighth.additional counts contains a paragraph designated as follows: “4. Plaintiff further avers that it became and was the duty of the defendant to place and maintain such brace wire only where necessary for the proper construction and protection of their system of lines and poles and with such care and skill as to make said brace wire harmless to persons passing upon, along and across the streets and public ways of the city of DeKalb.”

The fifth and sixth additional counts, iterative of the breach of duty alleged in the first and in the second original counts, charge respectively that the defendant wilfully placed said wire where not necessary and that the defendant wilfully maintained said wire where dangerous to persons passing upon, along and across said Evans avenue. The seventh additional count charges that the defendant wilfully placed said wire with a conscious indifference to the surrounding conditions, and thus wilfully and wantonly, and without regard to the safety of persons passing, etc., and without the exercise of ordinary care and prudence in the location of said wire, maintained the same so that the same was dangerous, etc. The fourth and eighth additional counts charge respectively that the defendant wilfully permitted said wire to remain unprotected and that the defendant wilfully failed to protect said wire, etc., contrary to law.

To ascertain if there is any evidence supporting the charge of wilful conduct contained in the fourth, fifth, sixth, seventh, and eighth additional counts, we turn our attention to the testimony in the case. It seems quite appropriate, however, to first state the reasons given in the plaintiff’s argument upon which her counsel bases the contention that the defendant was proved guilty of wilful conduct as charged in the declaration. It is urged by the plaintiff that the court erred in sustaining an objection to her offer to introduce in evidence General Order No. 115 of the Illinois Commerce Commission, and also a receipt signed by the secretary of the defendant, showing that the defendant had received a copy of the order on August 24, 1927. The plaintiff then further contends that the admission in evidence of this order and the receipt would be sufficient to lay a foundation for establishing a case of wilful and wanton conduct on the part of the defendant. As the plea of the statute of limitations was properly sustained to the additional counts of the declaration relying upon an alleged violation of said order, the order and receipt were inadmissible in evidence. The reason given by the plaintiff cannot support the argument that the plaintiff was proved guilty of wilful conduct.

The plaintiff tripped over the guy wire in the nighttime while attempting to cross the parking after she has alighted from a vehicle on the street which has stopped in front of her home. The plaintiff argues further: “The evidence establishing the wilful and wanton conduct complained of by the plaintiff, was that this guy wire in question attached to a ground anchor was placed by the defendant in the parking, a short distance off the line between the sidewalk leading to the home of the plaintiff and the point at which a person would ordinarily alight from a vehicle on the street to go to the home of the plaintiff. The defendant, therefore, was charged with the knowledge that the guy wire was in that position and that it would be dangerous to persons passing from the street to the home of the plaintiff, and it therefore became and was the duty of the defendant, as a matter of law, to place a guard upon such guy wire in order to make it conspicuous, if it could reasonably do so, in order to do what it reasonably might to reduce the danger of injury to people crossing the parking as they were compelled to do to go from a taxi stopped on the street, to the home of the plaintiff. This duty was imposed upon the defendant by law, both common and statutory. This duty the defendant ignored. The defendant, therefore, showed a conscious indifference to consequences in permitting this guy wire to remain without a guard, and without the protection for the people using the parking to which they were entitled by law. ’ ’

An examination of the evidence discloses that the following occurred at the trial. The husband of the plaintiff was a witness on her behalf, and the court sustained an objection to the question whether he had frequently seen guy wires such as the one in question, inclosed in metal or wooden boxes. He testified that the wire was not protected by a guard. Another witness on behalf of the plaintiff testified that in his opinion the guy wire in question was not necessary to support the pole. Several witnesses for the defendant testified that the pole had been moved in the fall of 1929 on account of the change in the parking brought about by the paving of Evans avenue, and that after being moved the pole sagged because it carried the weight of overhead wires and a street light; that the guy wire was necessary until the pole became firmly settled in the ground, which would be in about a year’s time.,

The wire was attached to the pole in September, 1929, and the accident occurred on February 21, 1930. The pole stood in the parking two. feet and three and one-half inches east of the street curb on the east side of the avenue. In addition to overhead wires, the pole partly held a street light by means of a wire extending diagonally from the pole to the light suspended in the middle of the avenue. The street light was also supported by a wire extending from a pole which stood on the other side of the avenue diagonally opposite the first pole. The guy wire in question was attached to the pole so that it extended therefrom to an anchor in the ground in line with the wire supporting the street light. The guy wire was thus so placed to brace the pole against the weight of the street light.

The legal term, wilful conduct, means more than inattention, inadvertence, or oversight. A wilful injury must have been intentional or the act must have been committed under circumstances exhibiting a reckless disregard for the safety of others, such as failure, after knowledge of the impending danger to exercise ordinary care to prevent it, or a failure to discover the danger through recklessness or carelessness when it should have been discovered by the exercise of ordinary care. Brown v. Illinois Terminal Co., 319 Ill. 326. “In order to constitute wilful and wanton misconduct the injury must have been either intentionally inflicted, or produced by acts so grossly negligent as to exhibit a reckless disregard for the safety of others.” Provenzano v. Illinois Cent. R. Co., 357 Ill. 192; Nosko v. O’Donnell, 260 Ill. App. 544.

It is also contended by the plaintiff that the court erred in excluding evidence offered by the plaintiff to prove that the defendant after the accident removed the guy wire in question from the pole. Under the pleadings in the case such testimony would have no other probative force excepting that it seemingly tended to prove that the defendant “placed,” or “maintained” the wire when it was not necessary to do so. Such evidence for that purpose has been held inadmissible. Colorado Electric Co. v. Lubbers, 11 Colo. 505, 19 Pac. 479, 7 Am. St. Rep. 255; Orr v. Dawson Telephone Co., 35 Ga. App. 560, 133 S. E. 924; Cumberland Telephone & Telegraph Co. v. Laird, 161 Ky. 800, 171 S. W. 386.

On cross-examination the plaintiff testified that the first time she ever knew this gny wire was in the parking was the day after the accident when she looked out of the window in her home. Her evidence in part is as follows: “Q. As you got out of the taxicab and started for your home did you look for anything in the parking? A. I did not.” “Q. When you got out of the taxicab that night did you see that pole? A. I did not pay attention to it.”

The plaintiff complains that the court erred in giving to the jury the following instruction: “The jury are instructed that a city has a right, under the law, to get aside a certain portion of a city street for travel and a portion of a city street for parkways, ornamentation, the planting of trees and shrubbery, or for the erection of telephone and electric light poles and equipment thereon, and you are further instructed that if you believe from the evidence, that the plaintiff left that portion of the city street devoted to travel upon the parkway, then the plaintiff was not entitled to assume that there should be no obstruction or barriers upon said parkway and was bound in the use of said parkway to use a higher degree of care in ascertaining the condition of the area over which she was about to pass than if she were walking on the sidewalk proper.” The allegation of the declaration that the plaintiff was in the exercise of due care for her own personal safety, both before and at the time of the accident was to be proved by the plaintiff by a preponderance of the evidence. Considering this evidence the jury should have been clearly and accurately instructed as to the degree of care to have been exercised by the plaintiff in order to prove that allegation. She was required to use such care as reasonable and prudent persons ordinarily exercise under the same or similar circumstances and no more. (Perryman v. Chicago City Ry. Co., 242 Ill. 269.) She denied knowing that the guy wire was in the parking. To say that she was required to use a hig’her degree of care than would be required while walking on the sidewalk is not the proper measure of care to have been used by the plaintiff while crossing the parking1. She was required to use ordinary care commensurate with the danger, but we are of the opinion that the instruction was erroneous in stating that she must use a greater degree of care than while walking on the sidewalk. The jury would understand from such an instruction that she was required to use a greater degree of care than ordinary care or an extraordinary degree of care,

It is contended by the defendant that the evidence shows that the plaintiff was guilty of contributory negligence, and for this reason the case should not be reversed and remanded for a new trial. As the evidence appears we think it was a question of fact for the jury to determine whether the defendant was or was not guilty of contributory negligence. The court also at the request of the defendant gave the following instruction: “The court instructs the jury that there is no presumption of negligence arising against the defendant from the-simple fact of itself that the plaintiff was injured as a result of the occurrences in question.” This instruction is an abstract statement of a proposition of law and it was not applicable to the facts in the case. It was irrelevant and misleading.

Twenty-two instructions were given for the plaintiff and eleven for the defendant. Twenty-six instructions which were submitted by the parties to the court were refused. To discuss all of the objections made by the parties to the given and refused instructions would be an endless task. We are of the opinion that too many instructions were submitted to the court. (Daubach v. Drake Hotel Co., 243 Ill. App. 298.)

However, it may be added further that instruction 26 is subject to the objection pointed out by the plaintiff that it invades the province of the jury in informing the jury that the declaration admits that the defendant had the right to place the wire in question in the street. It was a question of fact for the jury to determine whether the defendant was negligent in placing the wire and whether it should have been made conspicuous by a covering or guard.

As the giving of the instructions mentioned constitutes reversible error, the case is reversed and remanded for a new trial.

Reversed and remanded.


source: Caselaw Access Project

license: Public Domain

text:
    The People of the State of Illinois ex rel. Russ Alford, Appellee, v. Lew A. Hendee et al., Appellants.
    Gen. No. 8,920.
    Opinion filed March 22, 1935.
    Rehearing denied April 22, 1935.
    Runyard & Behanna, of Waukegan, for appellants; Eugene M. Runyard and Daniel J. Dalziel, of Waukegan, of counsel.
    Jerome F. Dixon and Edwards, Block & Bairstow, of Waukegan, for appellee; J. E. Bairstow, of counsel.
   Mr. Presiding Justice Wolfe

delivered the opinion of the court.

Russ Alford, of the City of Waukegan, Illinois, filed his petition in the circuit court of Lake county for a writ of mandamus against Lew A. Hendee, Michael Haney, and Henry F. Wallenwein, to compel them as the canvassing board for the election held November 6, 1934, to properly abstract the votes in certain precincts of Lake county. The petition in substance is as follows :

It alleges relator is a resident, a qualified voter and taxpayer of Lake county, Illinois; that there was a general election held on November 6, 1934, at which time was submitted to the voters of Lake county, Illinois, an election of certain county offices including the office of county clerk; that the relator was a duly nominated candidate on the Democratic ticket for said office of county clerk of Lake county, Illinois, opposing Lew Hendee, Republican candidate; that the relator is duly qualified to hold such office; that the county of Lake contains 75 election precincts duly designated by the board of supervisors; that according to the proclamation of the judges and as shown by the poll books and tally sheets duly certified and authenticated from the said precincts there was cast for the relator 18,729 votes for said office and for the respondent, Lew Hendee, 18,451 votes for said office, provided all the votes so proclaimed by the judges and shown by the poll books, tally sheets and certificates to have been cast for each candidate, are counted as proclaimed and as certified.

That on the 7th day of November, 1934, all of the returns from each of the aforesaid precincts were delivered to respondent Lew A. Hendee, the present county clerk of Lake county, Illinois, pursuant to statute ; that on such day said respondent Lew A. Hendee in such capacity called to his assistance Michael J. Haney and Henry Wallenwein, both duly elected, qualified and acting justices of the peace for the town of Waukegan, county of Lake and State of Illinois; that they then and there in the office of the county clerk proceeded to open returns and malee abstracts of the votes cast for the different offices voted for at said election; that immediately upon the closing of the polls the judges of election in the 2nd precinct of the town of Deerfield in Lake county, Illinois, proceeded to canvass the votes there polled and to proclaim the total number of votes for the office of county clerk, as follows:

Straight tickets
Number of votes received on ballots other than straight tickets.
Total
Buss Alford 309 36 345
Lew A. Hendee 115 90 205

and they delivered said returns to the county clerk of Lake county, Illinois; that immediately on closing the polls the judges of election in the 2nd precinct of the town of Avon in Lake county, Illinois, proceeded to canvass the votes there polled and to proclaim the total number of votes for the office of county clerk as follows:

Straight tickets
Number of votes received on ballots other than straight tickets.
Total
Buss Alford 149 105 254
Lew A. Hendee 139 62 201

That in the aforesaid 2nd precinct in the town of Deerfield 619 electors voted at said election; that in aforesaid 2nd precinct in the town of Avon, Lake county, Illinois, 483 electors voted at said election; that upon the abstracting and canvassing of the returns from the 2nd precinct of the Town of Deerfield, said Lew A. Hendee, Michael J. Haney, and Henry Wallenwein determined that each Democratic candidate for office in the aforesaid precinct except the relator received 309 straight votes on the Democratic ticket.

That the said persons composing the canvassing board in abstracting the vote for the office of county clerk, fraudulently neglected, failed and refused to abstract the full number of straight Democratic ballots for the relator for said office and arbitrarily and illegally abstracted for the relator 115 straight tickets which was the number of straight Republican tickets or ballots cast in the aforesaid precinct, thereby depriving the relator of 194 votes; that the relator demanded of said canvassing board that this mistake be corrected; that affidavits and proofs were submitted to them; that said canvassing board by a vote of two to one refused the relator’s demand and declared an abstract of the vote as follows:

Straight tickets
Number of votes received on ballots other than straight tickets.
Total
Russ Alford 115 36 151
Lew A. Hendee 115 90 205

That through this mistaken error the electors who had voted for the relator for said office were deprived of their franchise.

That upon the abstracting and canvassing of the returns from the 2nd precinct of the town of Avon said Lew A. Hendee, Michael J. Haney, and Henry Wallenwein, in which precinct only 483 votes were polled and cast, erroneously and fraudulently credited Lew A. Hendee, the Republican candidate for county clerk, with more than 100 votes than he had received in the aforesaid precinct, by abstracting the number of votes received upon ballots other than straight tickets for the said Lew A. Hendee as 162 instead of 62, as follows:

Straight tickets
Number of votes received on ballots other than straight tickets.
Total
Russ Alford . 149 105 254
Lew A. Hendee 139 162 301

thereby recording a total of 555 votes polled and cast in said precinct for said office, a greater number of votes than the number of votes which were cast in said precinct at said election which was 483; that relator demanded this error be rectified and amended; that affidavits and proofs were submitted to said canvassing board; that the said canvassing board refused to accept the proofs and failed to correct and rectify this error thereby giving said Lew A. Hendee, Republican candidate, 100 more votes than were cast for him at said election in direct contradiction of the returns of the judges of said precinct; that the fraudulent, arbitrary, erroneous and unlawful recording and abstracting of the votes as aforesaid in the above two precincts will deprive the relator of the certificate of election to which he is entitled and unless amended and corrected to speak the truth would give the following as the total vote cast for said office:

Total vote
Russ Alford
18,535
Lew A. Hendee
18,551

That based on this erroneous and fraudulent abstract of the vote polled said Lew A. Hendee would be awarded the certificate of election to which he is not entitled; that if the returns of the two precincts are correctly and properly abstracted and canvassed final totals will be as follows:

Total vote
Russ' Alford
18,729
Lew A. Hendee
18,451

That the relator is entitled to the certificate of election.

That the said county clerk, Lew A. Hendee, and the two justices, Henry F. Wallenwein and Michael J. Haney, have not completed the abstracting and canvassing of the votes and ballots and still remain in session and have not adjourned, and the errors and mistakes may be still corrected by them; that according to the proclamation of the judges in the precincts which still remain to be canvassed and according to tally sheets and poll books duly certified and authenticated in said few remaining precincts, they would not change the aforesaid grand totals of the votes in the last preceding paragraph above; that the relator has demanded that a certificate of election to the office of county clerk, Lake county, Illinois, be issued to him which the said Lew A. Hendee has refused to make out and deliver, whereby relator is prevented from receiving such certificate to which he is justly and lawfully entitled.

Wherefore, relator prays for writ of mandamus, directed to the said Lew A. Hendee, county clerk of Lake county, Illinois, and to Michael J. Haney and Henry F. Wallenwein, justices of the peace of Lake county, Illinois, as aforesaid, to show cause why a peremptory writ of mandamus should not be awarded requiring them to correctly and properly abstract the votes in the aforesaid precinct to speak the truth and to enter the votes so cast in the 2nd precinct in the town of Deerfield, Lake county, Illinois, to show that the relator received 309 straight Democratic votes in that precinct and a total of 345 votes in the said precinct, and to show that Lew A. Hendee received 62 votes upon ballots other than straight tickets in the 2nd precinct in the town of Avon in Lake county, Illinois, and a total in the said precinct of 201 votes; and the relator prays for a writ of mandamus to the said Lew A. Hendee, county clerk of Lake county, Illinois, requiring him to show cause why a peremptory writ of mandamus should not be issued to compel Mm to certify the election of relator as county clerk, and make out a certificate of the election of the relator to the office of the county clerk and deliver such certificate to the relator, and that such other order may be made as justice requires. The petition is sworn to.

Summons was issued returnable November 21, 1934, which was served on all three members of the canvassing board on the 15th day of November, 1934. On the 16th day of November, 1934, the respondents entered their special appearances in court and filed a plea to the jurisdiction thereof. To this plea the relator demurred and the court sustained the demurrer. On the 23rd day of November, 1934, the respondent Hendee filed his answer to the application for mandamus. He denies that Buss Alford received 18,729 votes, or that Lew Hendee received only 18,451 votes, but averred that Hendee received the highest number of votes cast for the office of county clerk of said county. He also declares that the board had properly canvassed the votes in the precincts mentioned, and that the respondent had received the highest number of votes for the office of county clerk and was duly elected. He denied that the board had acted illegally, erroneously, arbitrarily, or fraudulently in canvassing the results and in abstracting the vote at such election. The answer further sets forth that the respondent Hendee and Haney and Wallenwein (the latter two men justices) who composed the canvassing board had fully completed the canvass and abstract of results of the election and fully performed all their duties as such board; that all the votes had been abstracted from all of the precincts in said Lake county; that the candidates receiving the largest number of votes had been ascertained; that the result had been certified to the county clerk, and had been proclaimed, and that their duties had been fully completed and they had adjourned sine die on November 16, 1934. Said answer further states that all of the functions and duties of the board of canvassers had been performed prior to the return day to answer, and that said respondent Hendee had been declared, proclaimed, and certified as the successful candidate for county clerk; that said board had no other duties to perform and had adjourned on the 16th day of November, 1934. The answer denied that the court had any authority or jurisdiction to order the respondent Hendee and the said two justices of the peace to reconvene the canvassing board and recanvass any or all votes cast at - said election, or that the court had the power, authority, or jurisdiction to grant a writ of mandamus as prayed for. To this answer the relator replied, traversing and denying all of the allegations and averments contained in the answer.

The original poll books and tally sheets of the two precincts in Lake county, over which this controversy arose, were certified to this court for examination. Those exhibits disclosed that in the second precinct in the town of Avon, in Lake county, Lew Hendee had received 201 votes and Buss Alford 254 votes, of which there were 139 straight Eepublican votes cast and 149 straight Democratic votes cast; that by the poll books and tally sheets of the second precinct of the town of Deerfield, Lew Hendee had received 205 votes, and Euss Alford had received 345 votes; of these votes cast 115 were straight Eepublican votes, and 309 straight Democratic votes. On the tally sheet of the second precinct of Deerfield township the names of the Eepublican candidates appear first, and then the Democrat. Opposite the name of each of the candidates is a square, over which is designated “Number of votes received upon straight tickets.” The Eepublican candidates are each given 115 straight votes, and the Democratic candidates 309 straight votes. In this square space opposite the name of Lew Hendee are the figures 115. At the extreme lower part of the square are the figures 309. In the square opposite the name of Euss Alford the figures 115 are written. The clerks and judges of the election who prepared this tally sheet credited Buss Alford with 309 straight votes, the same as every other Democrat on the ticket received, and credited Hendee with 115 straight votes, the same as all the other Republican candidates on the ticket received. The canvassing board, however, over the protest of Russ Alford, gave Hendee 309 straight votes arid Alford'115 straight votes, thus changing the figures as returned by the judges and clerks of election from Hendee’s 205 votes to 399 votes, and decreasing Alford’s vote from 345 to 151 votes. The tally sheet of the second precinct of the town of Avon as originally returned by the election board gave Hendee 201 votes and Alford 254 votes, but the canvassing board for some reason changed the 201 votes of Hendee’s to 301. How they arrived at such a conclusion it is impossible for this court to ascertain. The tally sheet itself shows that it has been changed and by giving Hendee 301 votes and Alford 254 votes, makes a total of 555 votes. The poll books show that there was only 483 votes cast in this precinct on election day, or, 72 more votes cast for the two candidates than there were voters at the election.

The bill charges that the canvassing board illegally, erroneously, arbitrarily and fraudulently canvassed the vote. While they were so doing the relator protested against their action and offered to bring proof to show that the votes should be tallied the same as the board of election in the two precincts had certified it to the canvassing board; that the canvassing board had overruled his protest and refused to hear what the judges and clerks of election had to say in regard to the same. From an examination of the original sheets, poll books and the evidence in this case it is clear to this court that the board in canvassing the vote of the two precincts in question acted fraudulently; that in precinct number 2 of the town of Deer-field, Lew A. Hendee received but 205 votes for the office of county clerk, and Russ Alford received 345; that in the second precinct of the town of Avon, Lew A. Hendee received 201 votes for county clerk and Buss Alford received 254 votes; that the action of the canvassing board in changing the figures on the tally sheet and poll books was a fraud perpetrated upon Alford.

The respondents offered no evidence. After argument of counsel for both sides to the litigation the court announced that he would not order the reconvening of the canvassing board, but declared the return showed the election of the relator and ordered the county clerk of Lake county to issue a certificate to Buss Alford as being the duly elected county clerk of Lake county. A motion for a new trial was overruled, to which the respondent, Lew Hendee, excepted. The court then entered judgment upon said finding in favor of the relator and the writ of mandamus was awarded. The respondent, Lew A. Hendee, county clerk, was ordered to issue a certificate of election to the relator, Buss Alford, as prayed for in said petition. The case is brought to this court on appeal to review this action of the circuit court.

The facts of the case are not in dispute as the respondent did not see fit to introduce any evidence to contradict that given by the relator. The respondents seriously insist that the court is without jurisdiction to try a case of this kind as mandamus will not lie to compel the board of canvassers to reconvene and certify a different result from that which they have already done. To support that contention they cite five cases, the first of which is Donahough v. Owens, 277 Ill. 318; the next is Wells v. Robertson, 277 Ill. 534; People v. Mottinger, 212 Ill. 530; People v. Sweitzer, 185 Ill. App. 282, and County of Lawrence v. Schmaulhausen, 123 Ill. 321. An examination of each of these cases discloses wholly different situations from the facts in the present case. In each of the cases cited the canvassing board had completed their labors, certitled their results and adjourned sine die before a suit had been started. Courts have frequently held that a board in canvassing the" result of an election are empowered for one thing and one thing only, namely: to canvass the result of the entire election, and when that work has been completed and they adjourn, they cannot be compelled to reassemble as they have, as a canvassing board, ceased to exist. However, in the present case the suit was started and service had upon each of the respondents while they were still in session, and as soon as summons was served on them the court had assumed jurisdiction, and they could not defeat the purpose of the suit by attempting to finish their labors and adjourn and claim that they had ceased to exist as a canvassing board, especially so when the bill charges and the evidence shows that the canvassing board was wilfully acting fraudulently so far as the rights of the relator were concerned.

In the case of People v. Mottinger, 212 Ill. 530, 531, that court, in discussing the writ of mandamus, says, “These persons are no longer in authority, and on this phase of the petition the court has very great doubt of its power to issue an order to these individuals to re-assemble and reorganize and then do some act differently from what they have already done. Where some officer or some body of persons having authority refuses to do an act which it is his or its legal duty to do, mandamus may be resorted to to require such officer or body to act. If this canvassing board were now in existence and in session and were refusing to do its duty, — refusing to act — the court might be asked to require it to act. ’ ’ In the case which we are now considering it seems to us to be immaterial whether the court can or cannot compel the canvassing board to reassemble and make return such as the tally sheets and poll books correctly show, since the court did not require this to be done in the judgment that he entered, but ordered Lew A. Hendee, as county clerk of Lake county, to issue a certificate of election to Buss Alford, the relator in this case. In the early case of People ex rel. Fuller v. Hilliard, 29 Ill. 413, a case so similar to this upon the facts and pleading that we take the liberty of quoting at length from it, the petition filed sets forth that at an election held in November, 1862, the relator was a candidate for representative and that the return of the poll books and certificates of the judges and clerks of the election show that he was elected; that the county clerk called to his assistance two justices of the peace to count and abstract the votes. He charges that there were irregularities in the canvassing of the vote; that the prayer of the petition is for an alternative writ of mandamus against the clerk and the two justices of the peace, to show cause why a peremptory mandamus should not be awarded, requiring them to count the votes in this precinct (meaning the one in controversy) and enter the votes so cast in the abstract of votes, and as against the clerk requiring him to show cause why said writ should not issue to compel him to certify the election of the relator as representative in the general assembly, etc. Hilliard, the county clerk, filed a return to the summons in the mandamus suit and stated that he properly canvassed the vote and issued a certificate of election to a rival candidate, and thereupon the board adjourned and was dissolved. On a hearing of the case the respondent entered a motion to quash the alternative writ of mandamus for numerous reasons. The third is, “Because the defendants are not required by law to reassemble and count the votes in question; Fifth, For want of jurisdiction of the court to hear the case; Sixth, Because the return shows that the county clerk has, prior to the issuing of the writ, issued a certificate of election in conformity with the vote declared.” In discussing the case the court says: “The third ground may possibly be well taken, but constitutes no bar to the application. There is no necessity for reassembling the board of canvassers for the return does not deny that the relator is entitled to the certificate if the votes of this precinct are counted. It is admitted that they make up the majority of votes in favor of the relator, so that nothing remains but for the clerk to issue the certificate.”

The court also uses this language: “Upon the remaining ground of objection, that the county clerk had issued a certificate of election to another party, prior to the issuing out of this writ, it is only necessary to say' that it is in proof the certificate was not issued until after notice of this application for this writ. When the fact was brought home to the clerk that this application was made, it would have become quite decorous and proper to pause in his action, and await the decision of the court; the more especially as by issuing the certificate to a party not entitled, the right of the true claimant could not be weakened thereby. The power remains to the clerk to issue the certificate to the party this court may deem entitled to it. People, etc. v. Rives, 27 Ill. 246. There are no other means known to the law by which this result can be obtained. Though the House of Representatives is the sole and exclusive judge of the qualifications of its members, this application has no reference whatever to the point of qualifications. Its sole purpose is to procure the requisite evidence to present to that body of a prima facie right to a seat in it, independent wholly of the question of qualification. It is clear, then, the appropriate remedy is not with the House of Representatives. The only remedy the relator has — the only means by which he can obtain evidence of the right claimed, is by this compulsory writ of mandamus. This is very clear. No other process or proceeding can give the specific relief in the premises.

“In some of the States, this writ is not allowed for such purpose but8frequent resort has been had to it in this State, resulting in decisions quite uniform and harmonious, and which must he our guide in preference to the rulings of courts of other States, cited by the defendants. We have noticed the fact, that the certificate of election, issued by the clerk to King, under which it is claimed the office is filled, was, in fact, issued after notice of Ihis application, and that when notice was served, the canvass had not actually been completed.

“But it is urged by the defendants that the board of canvassers had and exercised a judicial discretion in ruling out these returns; and having acted in good faith, they cannot be compelled to act against their deliberate judgment.

“We have recognized a board of canvassers as ministerial, and not judicial officers. In the case of Head, 25 Ill. 325, it was there said the duty of a board of canvassers is a mere mechanical or mathematical duty. They may probably judge whether the returns are in due form, but, after that, they can only compute the votes cast for the several candidates, and declare the result. This class of power is not generally understood to be judicial, but purely ministerial.”

The case of People ex rel. Akin v. Matteson, 17 Ill. 167, 169, was an application for a peremptory writ of mandamus to compel the election board to issue a certificate of election to the relator. It was urged as a defense to the action that the same would not lie for the reason that a certificate had already been issued to the opposing candidate. The Supreme Court, in discussing this matter, said that it was no defense to the action, and ordered the writ of mandamus to issue. In the case of People ex rel. Roberts v. Rives, 27 Ill. 242, the relator filed his petition for a writ of mandamus to compel respondents to issue to him a certificate of election. The court in discussing the merits of the case say: “It is objected that the defendant has already issued a certificate for another, tb whom has been

issued a commission for the same office. That cannot affect the rights of the relator. As well might it be contended that a certificate issued to one without color of an election would prevent the clerk from issuing the certificate to the relator. We do not propose to turn the other out of office on an application for a mandamus. They are not parties to this record, and are not bound by this adjudication. All that the court can do, and all it is asked to do in this proceeding, is to compel the county clerk to issue to the relator a certificate of election, which the proof shows he was entitled to. Our right and our duty to do this was fully considered and settled in People ex rel. v. Matteson, 17 Ill. 167. A peremptory mandamus should have been issued.”

In the case of People ex rel. Ryan v. Nordheim, 99 Ill. 553, the relator filed a petition for a writ of mandamus to compel the canvassing board to issue to him a certificate of election. The court ordered the writ to be issued, and cited with approval People ex rel. Fuller v. Hilliard, 29 Ill. 413. This case has been frequently cited with approval, and our Supreme Court has on numerous occasions referred to this case as being the leading authority on this subject.

The respondent, in his petition, charges that the acts of the canvassing board were done deliberately with the intent to defraud him of his election as county clerk of Lake county. It has always been a peculiar province of the courts to grant relief against fraud. In the case of Moore v. Sievers, 336 Ill. 316, the court in discussing fraud uses this language: “The maxim that fraud vitiates every transaction into which it enters applies to judgments as well as to contracts and other transactions. A court of equity has always the power to grant relief against judgments and decrees obtained by fraud, and this power will be exercised to prevent the enforcement of a judgment or decree which is against conscience, or where a party had no opportunity to defend, or wss prevented by accident or the fraud or improper management of the opposite party and is without fault 01 his part. . . . ‘The most solemn transactions and judgments may, at the instance of the parties, be set aside or rendered inoperative for fraud. The fact of being a party does not estop a person from obtaining in a court of equity relief against fraud. The court of chancery is always open to hear complaints against it, whether committed in pais or in or by means of judicial proceedings. In such cases the court does not act as a court of review, nor does it inquire into irregularities or errors of proceeding in another court but it will scrutinize the conduct of the parties, and if it finds that they have been guilty of fraud in obtaining a judgment or decree it will deprive them of tie benefit of it and of any inequitable advantage which they have derived under it.’ ”

It is our opinion that the tally sheets and poll books of the precincts in Lake county, over which this controversy arose, plainly show that the canvassing board did not properly canvass the votes of the relator and respondent, but, that it should have certified that in the second precinct of Deerfield township, Euss Alford received 345 votes for county clerk, and Lew Hendee received 205 votes for the same office, and in the second precinct of the town of Avon, Lew A. Hendee received 201 votes for county clerk and Euss Alford received 254 votes for said office, and said board should have certified that Euss Alford received a total vote in Lake county of 18,675 for county clerk of said county, and that Lew A. Hendee received a total of 18,528 for county clerk in said county.

The writ of mandamus was properly ordered and issued to compel Lew A. Hendee, the county clerk, to issue to Euss Alford a certificate of election to the office of county clerk o:: Lake county, Illinois. The judgment of the circuit court of Lake county should be, and is, hereby affirmed.

Judgment affirmed.


author: Mr. Justice Huffman

text:
    John T. Dieter, Appellant, v. Grace M. Blue et al. James C. Sladky, Appellee.
    Gen. No. 8,901.
    Opinion filed March 22, 1935.
    Rehearing dismissed April 30, 1935.
    Richard F. Shay, of Chicago, for appellant; Edward McTiernan, of Chicago, of counsel.
    Clifford C. Elger, of Chicago, for appellee.
   Mr. Justice Huffman

delivered the opinion of the court.

Appellant brought his bill of complaint to quiet title, in the circuit court of Lake county. He alleged that he was the owner of certain described real estate located in said county, by virtue of a quitclaim deed therefor from one Mary Janisen; that said grantor acquired title to said lands by virtue of a sheriff’s deed from the sheriff of Lake county; Illinois. It appears from the allegations of the bill of complaint that one James C. Sladky had caused a levy to be made upon the said premises by virtue of an execution issued out of the municipal court of Chicago, pursuant to a judgment rendered in that court prior to the judgment, levy, and sale under which the said Mary Janisen received her sheriff’s deed to said premises. Appellant brought this bill seeking to have the levy and sale of said premises by the said Sladky set aside and declared null and void as a cloud upon his title.

Appellee filed his .motion to dismiss the bill of complaint, which motion was in the nature of a demurrer, setting up that the hill, was bad on its face for lack of necessary allegations. The trial court dismissed appellant’s bill of complaint for such insufficiencies. We have examined the same carefully and do not find wherein it is alleged in any way that the appellant is in possession of the premises or that the same are unimproved and unoccupied. A bill to quiet title or remove a cloud from a tiile to land, which fails to show that the complainant is in possession thereof, or that the premises are unimproved and unoccupied, is bad on demurrer or motion to dismiss, as not showing a case for equitable relief. Gage v. Abbott, 99 Ill. 366; Eaton v. Woman’s Home Missionary Society, 298 Ill. 476; Hooper v. Traver, 336 Ill. 275; Miller v. Akin, 350 Ill. 186.

For failure of the bill of complaint to incorporate the above allegations, the order of the circuit court dismissing same was correct, and judgment as entered therein is hereby affirmed.

Orier and judgment affirmed.


author: Mr. Presiding Justice Hebel

text:
    Lake View Trust and Savings Bank, Appellant, v. Joseph P. Rice et al., Appellees. Cross Appeal of Frank Burket, Cross Appellant.
    Gen. No. 37,386.

      Opinion filed April 10, 1935.

      Robert E. Downs, oí' Chicago, for appellant; John M. Bryant and John ill. Pavlik, both of Chicago, of counsel.
    Shulman, Shulman Abrams, of Chicago, for cross appellant; Meyer Abrams, of counsel.
    Glenn, Schwartz, Beal & Browning, of Chicago, for certain appellee; Raymond G. Beal and James K. Kneussl, of Chicago, oí counsel.
   Mr. Presiding Justice Hebel

delivered the opinion of the court.

This is an appeal by the complainant from the entry of a decree in the supeiior court of Cook county, Illinois, in a foreclosure proceeding. A bill was filed by the complainant to foreclose the lien of a trust deed executed by Joseph P. Bice and Anna L. Bice, his wife, conveying to the trustee the improved real estate located at 8212-20 Drexel avenue, in Chicago, Illinois, to secure the payment of a bond issue of $105,000. The bill made certain named parties defendants.

The cause was referred to a master in chancery of the superior court, who in due course filed his report recommending that a decree of foreclosure be entered by the chancellor. The decree of sale was entered on November 29, 1933, from which it appears that exceptions to the master’is report were sustained, and thereupon in order to comply with the order of the court, the master in chsmcery amended his report to meet the views of the chancellor.

The material findings appearing in this decree and which are to be considered on this appeal, are, in sub-' stance, as follows:

That the complainant herein, as successor-trustee, for the equal and pro rata benefit of all the bondholders and owners of all the unpaid, outstanding and unsubordinated bonds and interest coupons, secured by said trust deed, has a valid and subsisting lien against the premises involved herein, and the rents, issues and profits thereof, for the sum of $93,514.07, together with interest thereon, from the date of the master’s report, August 2, 1933.

That Wm. H. Whalen, as receiver of the said Reliance Bank and-Trust Company, has a valid and subsisting lien against the premises involved herein, and the rents, issues and profits thereof, by reason of the ownership of bonds Nos. 7 to 12, inclusive, together with interest coupons series Nos. 5 and 6, and there is due thereon the sum of $12,855.19, together with interest, from the date of the master’s report, August 2, 1933.

That Frank Burket is the legal holder and owner of bonds numbered consecutively from 146 to 165, both inclusive, and the interest coupons thereto attached, which bonds and interest coupons were subordinated to the lien of all the other bonds and interest coupons secured by the trust deed, as aforesaid, and by virtue of his' ownership thereof, the said Frank Burket is entitled to recover the sum of $11,514.22; that said bonds are secured by said trust deed, and Frank Burket has a valid and subsisting lien against the premises involved herein, and the rents, issues and profits thereof, for the sum of $11,514.22, together with interest thereon, from the date of the master’s report, August 2, 1933, which lien, however, is subject, subordinate and inferior to the lien of the complainant herein, as successor-trustee, for its own benefit, and to the lien of Wm. H. Whalen, receiver of the Reliance Bank and Trust Company, for the amount appearing in the finding.

The facts as they appear from the evidence, are, substantially, that on July 24, 1928, the complainant purchased from the Reliance Bank and Trust Company and was the owner and holder of the issue of bonds, in the amount of $95,000. This constituted the entire issue with the exception of bonds numbered 146 to 165, both inclusive, which bonds aggregated the sum of $10,000. As a part of the inducement to the complainant and in consideration of its purchase of the aforementioned bonds, the Eeliance Bank and Trust Company agreed to, and did, subordinate the payment of said bonds numbers 146 to 165, both inclusive, and interest coupons attached, to' the payment of the bonds and interest coupons purchased by complainant.

At the time of delivery of the bonds to the complainant there were stamped on the face of each of the bonds numbered 146 to 165 the words, “This is a subordinated bond. ’ ’ This same stamp was also placed on the back of each bond, and in addition there was placed on the back of each bond a legend to the effect that the bonds were subordinated. There was also stamped on each of the interest coupons the following: “This is a subordinated coupon.”

From the evidence it further appears that complainant purchased the bonds and resold them to its numerous customers; that subsequent to the purchase of the bonds, by the complainant, the remaining bonds and interest coupons, all bearing the stamp and legend aforesaid, were, on October 16, 1928, sold by the Beliance Bank and Trust Company to one Frank Burket, who remained the owner and holder of said bonds from the time of their purchase by him to the present time.

That from time to time, as the bonds and interest coupons matured, complainant, acting as the agent of its purchasers, collected such bonds and interest coupons as had matured, took them to the Eeliance Bank and Trust Company, presented them for payment, collected the amounts due thereon, and distributed the same to its customers. This course of dealing occurred on seven separate and d: stinct occasions.

It also appears from the evidence that without the knowledge of the complainant, the interest coupons series Nos. 5 and 6 falling due October 24, 1930 and April 24, 1931, respectively, together with the bonds Nos. 7 and 12 both inclusive, which matured on said dates, were paid, when presented by the complainant, by the Reliance Bank and Trust Company by the use of its funds and not canceled. Thereafter, interest coupons series No. 7 falling due October 24,1931, were presented in a like manner to the Reliance Bank and Trust Company, and marked paid and canceled. The interest coupons falling due April 24, 1932, were also presented but were paid only in part.

It also appears that on the 15th day of August, 1932, the Reliance Bank and Trust Company together with Wm. H. Whalen, its receiver, resigned as trustee under the trust deed in question, and on the 12th day of September, 1932, the complainant was, in accordance with the provisions in said trust deed the appointed successor-trustee to the Reliance Bank and Trust Company, and it is in that capacity that the complainant instituted this proceeding for and on behalf of all the owners and holders of the unpaid bonds and interest coupons secured by said trust deed.

Frank Burket filed an intervening petition, alleging in substance that he had been defrauded in the purchase of bonds Nos. 146 to 165 both inclusive, from the Reliance Bank and Trust Company, bearing the legend, “This is a subordinated bond,” and asking that said bonds be decreed to be entitled to priority over all the other bonds and coupons. After a hearing, permission to file said petition was denied by the court, from which ruling the petitioner Burket has also prayed an appeal to this court and has assigned cross error.

The first point called to our attention by the complainant is that the bonds and interest coupons introduced in evidence by the claimant Reliance Bank and Trust Company, were presented for payment by the complainant to this claimant in the ordinary course of business; that they weie paid and should have been so marked and canceled, End that the Reliance Bank and Trust Company cannot maintain a claim as a purchaser against the complainant.

It might be stated at the outset that the decree entered in this case is no-; questioned in its entirety, but only as to the chancellor’s finding that the described bonds and interest coupons were purchased and owned by the claimant, Reliance Bank and Trust Company, and are on a parity with the bonds represented by the complainant. This bank was the former trustee under the terms of the trust deed, now the subject of this foreclosure. The evidence indicates that the bonds and coupons were presented by the complainant to this bank for payment and the money received by the complainant, but without knowledge that they were purchased by the Reliance Bank and Trust Company by the usé of its funds, and not marked paid and canceled. The Reliance Bank was named the depositary to make payments of the matured bonds and interest coupons when presented, and when bonds had matured and were presented by the complainant.to this bank they were paid and the bonds and coupons marked “paid and cancelled. ’ ’

The Reliance Bank and Trust Company by the use of its funds for the purpose indicated was a mere volunteer. The bank we.s not obligated to do this, and there is no reason advanced and none appears in the record which would justify the advancing of funds required to make payment of the matured bonds and interest coupons in question. By this voluntary act the bank as trustee without notice was estopped to make purchase of the bonds under the facts as they appear in the master’s report. By this payment the claimant bank would not be subrogated to or on a parity with the rights of the holders of the bonds represented by the complainant, and the bank being a mere stranger could not by the payment of the debt of the grantors named in the trust deed be subrogated to a creditor’s rights in respect to the security given by the grantors in the land conveyed by the trust deed, who are the real debtors. The Reliance Trust and Savings Bank was not compelled to advance money in order to protect its interests upon any equitable ground which would justify the subrogation of the claimant to the bondholder’s rights in respect to the security given by the grantors in the trust deed. The case of Bennett v. Chandler, 199 Ill. 97, clearly states the controlling rule in these words:

“The doctrine has been thus clearly and concisely stated: ‘One who advances money to pay the debt of another in the absence of agreement, express or implied, for subrogation, will not be entitled to succeed to the rights and remedies of the creditor so paid, unless there is some obligation, interest, or right, legal or equitable, on the part of such person in respect of the matter concerning which the advance is made, as otherwise he is a stranger, a volunteer, an intermeddler, to whom the equitable right of subrogation is never ac-' corded.’ (24 Am. & Eng. Ency. of Law, — 1st ed.— pp. 281-286.)” Then again the Supreme Court in the case of Pearce v. Bryant Coal Co., 121 Ill. 590, in passing upon the right of a trustee in a trust deed to furnish money for the payment of interest coupons, held that the demand of a creditor, which is paid with the money of a third person, without any agreement that the security shall be assigned or kept on foot for the benefit of such third person, is absolutely extinguished. So where a corporation gave its bonds, with interest coupons, secured by a deed of trust, and the trustee, at the request of an officer of the corporation, paid the first set of coupons and took them up, it was held that such coupons became extinguished, and could not be enforced by the trustee so paying the same, and that they ceased to be a lien on the mortgaged property.

The holders of the unmatured bonds in the instant case had the right to insist that when the bonds were presented upon maturity and paid, they should be so marked, showing thereby the payment of the bonds. Payment of the bonds when they mature strengthens the security of the unmatured bonds. The facts in this record do not show that the purchase by the claimant bank was ratified by the bondholders. The complainant for the bondholders had no knowledge that the bank claimed to be a purchaser, and the facts are somewhat like those in the case of Farmers’ Loan & Trust Co. v. Iowa Water Co., 78 Fed. 881, and this decision has a material bearing upon the questions involved in the instant case. The court said:

“There can be no question under the facts, I take it, biit that as between C. H. Venner and Company and the Iowa Water Company, or as between C. H. Venner and the Farmers’ Loan and Trust Company, the transaction by which these different coupons passed into the hands of C. II. Venner and Company was intended by these parties as a purchase, and not a payment of the same. The evidence shows that this was done without the knowledge and without the consent of the bondholders, and that, at the time they received their money on such coupons, they supposed the transaction was a payment of their coupons, and they have never in any manne r ratified it as a purchase, and, in fact, had no knowledge of it being claimed to be a purchase until the interventions were filed in this foreclosure proceeding. Under these circumstances, what are the rights and equities of the parties'? These coupons were payable at the office of the Farmers’ Loan and Trust Company in New York. They were remitted by the holders of the bonds through their local banks, and sent to New York for collection. They were presented to the Farmers’ Loan and Trust Company, not for sale, but for payment. They received their money, and delivered their coupons to the Farmers’ Loan and Trust Company. They supposed that their coupons were paid and canceled, but, instead of that, they were delivered to Yenner and Company uncanceled. If the bondholders had known this, they could, and it is reasonable to suppose that they would, have refused to sell, and, if they were not paid, would have taken prompt steps to bring about a foreclosure a number of years before this suit was commenced. The payment of the coupons strengthened the security of their bonds, but a sale of such coupons allowed the indebtedness to accumulate, and the income of the mortgaged property to go to other purposes, and the coupons, which were a first lien before their bonds, passed into other hands, and became a prior lien to their bonds.”

The compelling doubt of the claimant bank’s right of parity with the bonds represented by the complainant in the instant case is this thought, that the claimant bank was the owner and holder of the bonds, and on July 24, 1928, sold and assigned to the complainant, bonds in the aggregate amount of $95,000, and the balance of the issue remaining with the claimant aggregated the sum of $10,000. By agreement of the parties these bonds were subordinated to the bonds sold to the complainant. The claimant bank transferred ownership of the bonds to the complainant, and it would be inequitable for the claimant now to deprive the bondholders represented by the complainant of any part of the bonds’ value by insisting upon equality or a parity with the lien as against the complainant, who represents the bonds purchased from the claimant bank.

In Pomeroy’s Eq. Juris., sec. 1203, which this court cites with approval in the case of Kuppenheimer v. Chicago Title & Trust Co., 163 Ill. App. 127, the language of the author is applicable in the instant case, and is as follows:

“When the mortgagee assigns one or more of the notes, and retains the remainder of the series, it is generally held that the assignee is entitled to priority of lien as against the mortgagee, with respect to the note or notes so transferred; and this rule operates without regard to the order in which the notes held by the two parties mature,” and the reason for this rule is stated by the author as follows:

“The mortgagee having transferred the note and received the consideration therefor, it would be inequitable in him to deprive the assignee of any part of its value, by insisting upon a priority or even an equality of right in sharing the insufficient proceeds.”

The claimant bank sti esses the point that the burden of proof is upon the complainant to establish that the Reliance Bank and Trust Company is not a purchaser of the bonds and coupo us in question. This position, however, is not suppoited by the case of Pearce v. Bryant Coal Co., 121 Ill 590. Aside from the question of the burden of proof, the record discloses that the Reliance Bank and Trust Company was the depositary of funds to pay matured bonds and coupons when presented; that the bank ised its own funds when the bonds in question were presented. This was done without the consent of the bondholders of the unmatured bonds represented by the complainant. The Reliance Bank, in its previous ccurse of business conduct paid and canceled the matured bonds and coupons when presented, and upon receipt of the bonds and coupons in question, the bank did nyt follow this same practice by marking the bonds paid and canceled. Subsequently the bank adopted its former practice and when the matured interest coupons were presented they were marked paid and canceled by this bank. The claimant bank also seeks to distinguish the authorities cited by the complainant in support of its contentions. Of course the facts are not all alike in the several decisions, hut the rules of law applicable are not changeable with facts. In the case of Bennett v. Chandler, 199 Ill. 97, the Supreme Court laid down the rule applicable where a volunteer makes payment of an obligation of a third person, which is quoted in this opinion. As we have indicated, the rule of law remains the same, but from the facts it must appear that the rule is not applicable. In referring to the Bennett v. Chandler case, supra, the Reliance Bank and Trust Company points to the fact that the Chandlers were but agents to collect. It is true there was no transfer of title to the Chandlers, and in making payment they were held to be volunteers, and the court properly denied the right to recovery of the money advanced in that case. In the instant case the Reliance Bank was a depositary to pay matured bonds when presented, and by reason of its course of conduct, the bank did not by any act of its own impart knowledge to the complainant representing matured bonds that it was purchasing the bonds in question.

The remaining question to be considered is: Can the bonds secured by Burket be subordinated by agreement of the complainant and the Reliance Bank, to the rights of the bonds purchased by the complainant?

The bonds now held by Burket are clearly marked and upon an inspection of the bonds it is apparent that they are subordinated to the bonds represented by the complainant. The petition of Burket for leave to intervene was considered by the court. The court considered the petition and at the conclusion of the hearing denied leave to Burket to intervene, which was within the discretion of the court. The question of abuse of discretion is not pressed by the petitioner.

Gross error assigned by Frank Burket that fraud was practiced on him when he purchased the bonds, and that he was an innocent party, is not borne out by the facts as they appear in the record. He purchased the $10,000 bonds clear.y marked subordinated, so that there could be no misrepresentation as to what appeared on the face of :;he bonds, and the complainant representing $95,000 :n value of bonds, cannot be charged with any representations that would affect the rights of the bondholders represented by the complainant. There is nothing : n the record so far as the complainant is concerned that would justify this court in holding that false representations were made to the intervening petitioner.

Upon the question of notice to unknown owners, the . record discloses that Burket had notice of the proceeding, for he appeared before the master in chancery on April 10, 1933, and testified as a witness to his ownership of bonds Nos. 146 ti 165 inclusive, which were purchased by him, and the bonds were offered in evidence by the complainant, anc. that he did not take any steps other than indicated above, until he filed his intervening petition on October 30, 1933.

There is no merit as far as we have been able to find from the record that would justify this court in setting aside the decree denying the right to intervene.

The chancellor erred in finding that the bonds and coupons in the possession of the claimant are on a parity with the bonds and coupons represented in the foreclosure proceeding by the complainant, for the reasons stated in this opinion.

The decree is therefore reversed and the cause remanded with directions that the chancellor modify the decree to conform with the views expressed in this opinion, which are that the claimant by reason of the possession of the bonds by the Reliance Bank and Trust Company has a valid and subsisting lien against the premises involved herein and the rents, issues and profits thereof, for the sum of $12,855.19, together with interest thereon from tie date of the master’s report, August 2, 1933, which are subject, subordinate and inferior to the lien of the complainant herein as successor-trustee for its benefit and as representing the bondholders, but on a parity with the bonds and coupons owned by Frank Burket for the amount appearing in the finding.

Decree reversed and cause remanded with directions.

Wilson and Hall, JJ., concur.


text:
    Whiting Hotel Building Corporation, Appellee, v. Sun Indemnity Company of New York, Appellant.
    Gen. No. 37,432.

      Opinion filed April 10, 1935.
    Joseph H. Hinshav, of Chicago, for appellant; Oswell Gr. Treadway, of Chicago, of counsel.
    Follansbee, Shorey & Schupp, of Chicago, for appelleeClyde E. Shorey and Loren P. Oakes, of Chicago, of counsel.
   Mr. Presiding Justice Hebel

delivered the opinion of the court.

This is an appeal by the Sun Indemnity Company of New York, a corporation one of the defendants, from the entry of a judgment in the sum of $3,975.31 against James Stamos, Nicholas Stamos, Angeline Stamos, William B. Mitchell, William Murgelas and William Pappajohn, dealing as the S. and M. Enterprises, co-partners and the Sun Indemnity Company, in an action of assumpsit, whe :ein the plaintiff seeks to recover for the amount c'ue for rent of February and March, 1930, from the defendants to the plaintiff for the occupancy of the premises known as the Whiting Hotel, located in the City of Whiting, Indiana.

It appears from the evidence that the plaintiff was the owner of certain premises with a hotel and store building thereon, located in the City of Whiting, Indiana. By a lease bearing date of January 27, 1927, the premises and buildi ag were leased to the defendants other than the Sur. Indemnity Company of New York, for a term of 40 years. By the terms of the lease the lessees, who were 1he defendants in this action, agreed to pay to the plaintiff as lessor for the term of the lease the sum of $1,057,500.60, which was to be paid in instalments, and for 1he first five years of the term was to be paid at the rate of $1,666.67 monthly in advance on the first business day of each month.

The lease required the defendant lessees to furnish a bond to save the plaintiff harmless by reason of default of the defendant lessees in the payment of the rent, or in the performance of any and all of the other covenants of the lease; that in compliance with this provision of the lease the defendants procured the Sun Indemnity Company of New York, one of the defendants herein, to execute with them the bond on which this action is brought. This bond bears date March 15, 1929, and was subject to the express condition that the liability of the assured ivas limited to the period of one year only from March 15,1929.

It also appears as a fact that the Peoples State Bank, of Indianapolis, Indiana, became the trustee for the bondholders of the Whiting Hotel Building Corporation sometime previous to the execution of the bond, and that arrangements were entered into by the plaintiff and the Peoples State Bank, whereby the State Bank was authorized to receive the rent payments under the lease.

The evidence shows that the defendants as lessees made rent payments to the bank from June, 1928, to September, 1930. It appears from the evidence, however, that no payments were made during February and March, 1930; that payment made on April 17,1930, was applied to the April rent, and that there was due to the plaintiff the rents for February and March, for which recovery was asked in the action instituted against these defendants.

The only defendant here on appeal is the Sun Indemnity Company of New York. The other named defendants are not complaining. The question is whether this defendant is liable on its bond for the unpaid rent for the months of February and March, 1930. The facts indicate that the defendant lessees did not make any payment of money to the plaintiff during these two months, but did make a payment which was received by the plaintiff on April 17, 1930, and the plaintiff applied this payment to the April rent then due, and that subsequent payments received by the bank were applied to the succeeding monihs, and the question narrows itself to the right of the plaintiff to apply the payments received as it did, all oí which appears from its books of account.

The rule governing the question as to the application of payment has been ap proved by the Supreme Court, and is to the effect that a creditor may apply the amount received from a debtor either to the payment of unsecured or secured ‘terns, unless the debtor directs the application of the payment, which direction may be implied from circumstai.ces surrounding the payment. Hansen v. Rounsavell, 74 Ill. 238.

The facts as they appear in this record surrounding the receipt of the payments by the defendants to the plaintiff would indicate that the payments were not always received at the lime fixed in the lease, but as received were applied by the plaintiff to each succeeding month until the default occurred in the payment of the February and March, 1930, rent.

The defendant here received the letter signed by Clarence R. Weaver, vico president and trust officer of the Peoples State Bank, io whom payments were made, a notice that the lessees were in default in the payment of the rent due unde r the terms of their lease, and this defendant here on appeal had knowledge of the default by the defendant lessees of the February and 'March, 1930, rent, as evidenced by its letter directed to one W. B. Mitchell, one oí' the defendant lessees, who is not here on appeal.

• The defendant contends that if the plaintiff had applied the rent payments received in April and May, 1930, to the February aid March rents, as indicated, then these payments would have satisfied the obligation of the defendants’ bond and the plaintiff would have no cause of action against this defendant.

The intent upon which the payments were made must be gathered from the facts and circumstances at the time the plaintiff received the payments. The defendant, however, points to the fact that the plaintiff, having accepted rent payments, after the due date, waived its right to insist upon a strict compliance with the terms of the lease, without first giving notice, not alone to the lessees, but also to this defendant, of its intention to do so.

The defendant admits the receipt of the letters from the plaintiff that a default in the payment of rents had occurred, but denies that this defendant was ever notified of the intention of the plaintiff to make a change in the application of the rent checks when received. It is doubtful whether this defendant as a surety can require that payments shall be applied to the payment of the indebtedness due, in order that the condition of the bond may be satisfied. The rule applicable is stated by the Supreme Court in the case of Hansen v. Rounsavell, 74 Ill. 238, in this language:

“But it is claimed that if there was no agreement for the appropriation, then the circumstance of there being sureties for one debt should control the application in protection of the sureties to that debt. But we understand the general rule to be otherwise, and that it is the creditor’s right in such case to have the payment applied to the debt which is the most precarious, where there is nothing to control this application. 2 Pars, on Con. 631, 632. We recognize the rule as stated by that author, as follows: But where an obligor makes a general payment to his obligee, to whom he is indebted not only on the bond but otherwise, the surety of the obligor cannot require that the payment should be applied to the bond, unless aided by circumstances which show that such application was intended by the obligor.” See also the ease of Halsted v. Griefen, 173 Ill. App. 551.

The defendant is not aided by surrounding circumstances which would indicate that the defendant lessees, the obligors of the bond, intended that the rent money should be applied as ccntended for by the defendant, and under the authority of the case just cited, as a surety, it is not in a position to require that the payments received by the p laintiif should be applied so as to satisfy the obligation upon its bond. The application of the rents was properly made, and the defendant as a surety under the facts and circumstances is not in a position to complain that the defendant lessees did not request that the rent money when received by the plaintiff be applied to rent for February and March, 1930. The defendant assumed a burden for a compensation, and the language used by the court in the case of Maryland Casualty Co. v. City of South Norfolk, 54 F. (2d) 1032, is: pertinent, and is as follows: “A debt guaranteed by a compensated surety stands, we think, in the same category as an ordinary secured debt; for while the cred.tor does not hold property of the principal debtor as security, he does hold the promise of the third person for which the principal debtor has paid, and this third person has no equity superior to that of the creditor, and there is no reason for not following the ordinary rule of applying the payment in the interest of the creditor. See Wait v. Homestead Building Ass’n, 81 W. Va. 702, 95 S. E. 203, 21 A. L. R. 696, and note; Pope v. Transparent Ice Co., 91 Va. 79, 20 S. E. 940; State v. United States F. & G. Co., 81 Kan. 660, 106 P. 1040, 26 L. R. A. (N. S.) 865.”

For the reasons stated in this opinion, we are- unable to find that there is reversible error in the record, and accordingly the judgmen; is affirmed.

Judgment affirmed.

Wilson and Hall, JJ.. concur.