author: Mr. Justice Matchett

text:
    People of the State of Illinois, Defendant in Error, v. Casimir Prell, Plaintiff in Error.
    Gen. No. 40,321.
    Opinion filed February 27, 1939.
    John P. and David L. Coghlan, of Chicago, for plaintiff in error.
    Thomas J. Courtney, State’s Attorney, for defendant in error; Edward E. Wilson, John T. Gallagher, Melvin S. Rembe and Blair L. Varnes, Assistant State’s Attorneys, of counsel.
   Mr. Justice Matchett

delivered the opinion of the court.

On October 28,1937, the defendant, Prell, was found guilty under an information filed by Louise Bewersdorf of driving an automobile “with a wilful and wanton disregard for the safety of persons or property” contrary to the statute. (U. A. R. T. Ill. Rev. Stat. 1937, ch. 95½, sec. 48, p. 2110 [Jones Ill. Stats. Ann. 85.177].) The motion of defendant for a new trial was overruled on December 30, and defendant having in the meantime filed an application for release on probation, a hearing was had and an order entered as prayed.

The judgment order recites the filing of the application, the hearing of the evidence, finds defendant had never been convicted of any crime or misdemeanor previously, has no means wherewith to pay a fine, that the offense is one that permits his release on probation, that there is reasonable ground to expect reformation, that the interests of society will be subserved by his release on probation for one year, that during that time the cause shall stand continued and the court retain jurisdiction; that defendant shall be under the care of the chief probation officer or one of his subordinates, and that “said release shall, however, be upon the following terms and conditions of probation. That defendant shall not, during the term of said probation, violate any criminal law of the State of Illinois or any ordinance . . . ; that said defendant shall appear in person before this court at such times as this Court may direct, or any rule of court provide; that said defendant shall enter into a recognizance without surety in the sum of Five Huhdred ahd uo/100 Dollars ($500.00) securing the due performance of the conditions imposed by this court”; etc. This bond was executed and approved on the same day, December 30, 1937.

The record shows nothing more until April 18, 1938, when it appears defendant was before the court, by what process does not appear. The record merely shows “Hearing on violation of probation postponed to April 19, 1938.” The hearing was postponed from time to time. There was an order on June 21, 1938, increasing bail from $500 to $1,000, and the hearing again postponed to June 28th. On June 21, 1938, the attorney for Bewersdorf, the prosecuting witness, filed a petition in her behalf verified by himself. The petition prayed that the order granting probation might be revoked and the records of the court corrected so as to show that the probation was on condition that defendant should pay to Dr. Bewersdorf the sum of $500. Defendant made a motion to dismiss this petition which was granted and it was dismissed on June 28th. Evidence was heard and the State’s attorney moved for final judgment on the verdict. The motion was granted. The probation of defendant was canceled and he was sentenced to the house of correction for 60 days and ordered to pay a fine of $250 and to stand committed until it was paid. To reverse this order the defendant sued out this writ of error.

Section 3 of the Probation Act (Ill. Rev. Stat. 1937, ch. 38, p. 1208 [Jones Ill. Stats. Ann. 37.773]) provides that before granting any request for probation the court shall require the probation officer to investigate accurately and promptly the case of defendant to ascertain his residence and occupation, whether or not he has been previously convicted of a crime or misdemeanor, or previously has been placed on probation, and that the court may in its discretion require further information; that orders granting or refusing release on probation shall be entered of record, and that “if such application is granted, the judge granting the same shall thereupon enter an order continuing the cause for a period not exceeding six months in cases of violation of a municipal ordinance and not exceeding one year in the case of other offenses, and shall by such order fix and specify the terms and conditions of the probation of such defendant as herein provided.”

From the stricken petition and from the evidence in the record it is apparent the real cause of complaint against the defendant was his failure to pay to the prosecuting witness the sum of $500 as supposed damages which she sustained as a result of his wilful and wanton driving. The order of probation in fact contained no such condition and could not properly have so provided. There is nothing in the probation law upon which such an order could be based and nothing in it disclosing an intention on the part of the legislature to grant power to the court to use the criminal process for the purpose of collecting damages to person or property. How such payments could be regarded as “restitution” within the meaning of the law we are at a loss to understand. Section 6 of the Probation Act [Ill. Rev. Stat. 1937, ch. 38, §789; Jones Ill. Stats. Ann. 37.776] makes provision for the enforcement of the conditions upon which probation is granted. It provides that the ¿ourt may upon report by a probation officer or other satisfactory proof of the violation by the probationer of any of the conditions of his probation revoke and terminate the same and issue a warrant for the arrest of the probationer, and that the court may enter a rule upon the probationer to show cause why his probation should not be terminated and judgment entered and sentence imposed upon the original conviction. There was no report filed by a probation officer nor accusation filed by anybody else, nor rule to show cause entered. The only petition filed was stricken. There was evidence tending to show that defendant had previously been convicted of violating a speed ordinance and fined $2.00 and costs, but the evidence was contradictory and there is no finding to that effect in the final order. A violation of a speed ordinance for which a fine of $2.00 was imposed hardly takes on the character of a crime or misdemeanor within the meaning of the probation statute.

There is nothing in this record which would give the court jurisdiction to revoke defendant’s probation. (People v. Huyvaert, 209 Ill. App. 40.) The proceedings were unusual, contrary to the spirit and purpose of the Probation Act and beyond the jurisdiction of the court. The judgment will therefore be reversed and the defendant discharged.

Judgment reversed and defendant discharged.

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


source: Caselaw Access Project

license: Public Domain

text:
    Chicago Title and Trust Company, Appellee, v. Anna Knodel et al., Appellees. Reuel H. Grunewald, Appellant.
    Gen. No. 40,339.

      Opinion filed February 27, 1939.
    Robert F. Kolb and Francis M. Cooper, both of Chicago, for appellant.
    Poppenhusen, Johnston, Thompson & Raymond, of Chicago, for certain appellee; James W. Hyde, An an Raymond and Robert Z. Hickman, all of Chicago, of counsel.
   Mr. Justice Matchett

delivered the opinion of the court.

This appeal is by leave of this court from a decree of foreclosure entered in the circuit court of Cook county on August 10, 1937, against Beuel H. Grünewald and other defendants and in favor of the Chicago Title and Trust Company, as the trustee, named in a first mortgage trust deed given to secure the payment of an issue of bonds. The bill was filed January 4, 1933, and made the holders of a second trust deed, in which the trust company was also trustee, defendants as unknown owners. The bill averred the lien of this second trust deed was subordinate and inferior to the lien of the first trust deed, foreclosure of which was prayed.

On January 30, 1937, complainant by leave filed an amendment by which Grünewald was made defendant, and it was ordered that summons issue against bim. The amendment to the bill, after describing in detail the second trust deed, states: “One Beuel H. Grünewald, claims to have an interest in the principal promissory note and interest thereon secured by said trust deed; that the lien of said trust deed and said note and interest thereon is subject, junior and inferior to the lien of the trust deed Document No. 10626490 herein-before described and sought to be foreclosed herein.” Grünewald was personally served with summons on February 10, 1937, and on March 24, 1937, an order of default was- entered against him upon this service. Other amendments by way of adding additional defendants were subsequently made, the cause was referred to a master, who took the evidence and filed his report, finding that the equities were with the complainant and recommending a decree of foreclosure which, as hitherto stated, was entered on August 10, 1937.

The decree found that there was due to the complainant the sum of $94,211 with interest at 5 per cent from July 10, 1937, and directed that in default of payment the premises should be sold by the master to satisfy the indebtedness due to the complainant. On November 8,1937, the property was sold by the master pursuant to the decree, and on December 1, 1937, a further decree confirming the master’s report of sale and distribution was entered.

On March 11,1938, Grünewald presented his petition to the circuit court praying that the decree of August 10, 1937, might be vacated. His petition set up the same matters which are now urged in support of his appeal.

On March 14, 1938, the complainant (respondent to the petition) moved to strike it and submitted affidavits in support of the motion. On the same day the circuit court sustained the motion and struck the petition and exhibit from the files and records. This petition for leave to appeal was filed on July 11,1938.

Grünewald argues error in the decree as to the find-' ings and orders therein concerning the second trust deed and title to the premises. The findings of the decree as to this second trust deed are found on pages 195 and 196 of the record. These are in substance that the note and trust deed dated December 15,1931, were given without consideration and that the same were at the inception thereof and ever since void; that subsequent to the execution and delivery thereof the instruments came into the possession of Anna Knodel, one of the makers, and must be construed as paid; that the trustee therein named should cancel and release the same, and that if said trustee fails so to do a special commissioner should be appointed by the court to do so; that Deuel H. G-runewald never had any right, title or interest in the real estate which was the subject matter of the foreclosure, and that G-runewald should be permanently enjoined from claiming or asserting any right, interest or title in and to the premises. It was decreed that the second trust, deed and note for $30,000 should be canceled, and that in default thereof the complainant should have leave to apply for the appointment of a special commissioner to that end.

The decree also finds that at the time of her death Anna Knodel had no right, title or interest in and to the real estate described in the bill of complaint, she having prior to her death conveyed the same by deed to the Haven Apartment Building Corporation, “and the heirs, assignees, personal representatives and creditors of the said Anna Knodel had and have no right, title or interest whatsoever therein, and neither Ernest Knodel, as her sole heir at law, nor Harry P. Adler, as guardian of the person and estate of Ernest Knodel, nor the estate in guardianship of the said Ernest Knodel ever had or now have any right, title or interest in the said real estate and premises, the legal title to and equity of redemption in the same being vested in Haven Apartment Building Corporation.”

These provisions of the decree as to the second trust deed and Grünewald’s rights thereunder are found on pages 195-196 and 197-198 of the record.

It is pointed out in behalf of Grünewald that the pleadings tendered no such issues as were decided by the decree as to his rights; that the findings of the decree do not correspond with the allegations of the bill; that questions of title may not (the proceeding was prior to the enactment of the Civil Practice Act) be litigated in a foreclosure proceeding; that affirmative relief might not be granted in the absence of a cross-bill; that the decree went beyond the jurisdiction of the court, transgressed the law and is therefore void; that it denies to defendant his statutory rights to redeem; that by later amendments the default against Grünewald was vacated, etc. There were later amendments but these did not affect Grünewald’s rights in any way, nor in our opinion did the decree prevent redemption by Grünewald if, in fact, he has or shall acquire a right of redemption.

The brief of Grünewald contains 15 points to which numerous cases well-known to the profession are cited. Arguments in support of 7 of these 15 propositions are given. It would serve no useful purpose to discuss these in detail since we are of the opinion that the findings of the decree as to the second trust deed and the indebtedness secured by it are neither sustained by the allegations of the bill nor by the evidence in the record.

Since the record was filed in this court the complainant has filed its motion to strike from the decree the provisions above recited and affirm the decree of foreclosure itself which is in the usual form and without reversible error. Such provisions, as already stated, appear on pages 195 and 196, and 197 and 198 of the record. The motion was reserved to the hearing. It will now be allowed. The decree will be modified by the elimination of the findings and orders as to the second trust deed and title to the premises appearing on the. above pages (1) with the exception of the finding that the lien, if any, of the second trust deed is subordinate and inferior to the lien of complainant. So modified, the decree will be affirmed.

Affirmed as modified.

McSurely, P. J., and O’Cohhor, J., concur.


author: Mr. Justice O’Connor

text:
    Wilma Bennett, Appellee, v. Auditorium Building Corporation, Appellant.
    Gen. No. 40,252.

      Opinion filed February 27, 1939.
    Rehearing denied March 13, 1939.
    Lord, Bissell & Kadyk, of Chicago, for appellant; Raymond Wearing and Gordon R. Close, both of Chicago, of counsel.
    Krohn & MacDonald and Sidney Rothblatt, both of Chicago, for appellee.
   Mr. Justice O’Connor

delivered the opinion of the court.

Plaintiff brought an action against defendant to recover damages for personal injuries claimed to have been sustained by her. The declaration was in three counts. The first charged defendant with negligently permitting a “slimy substance” to remain on the floor of its tap room, as a result of which plaintiff fell and-was injured. The second count was based upon a violation of section 14 of the Dram Shop Act [Ill. Rev. Stat. 1937, ch. 43, § 135; Jones Ill. Stats. Ann. 68.042], and alleged that defendant sold alcoholic liquor to one of its patrons causing her to be intoxicated, and as a result she vomited on the floor of the tap room; that plaintiff in the exercise of due care stepped in the vomit, slipped, fell and was injured. The third count was also based upon section 14 of the Dram Shop Act and alleged that defendant sold or gave to plaintiff alcoholic liquor, causing her to become intoxicated, and while walking in the tap room she slipped and fell in a “puddle of slime” on the floor and was seriously injured.

Afterward, by agreement of the parties an order was entered striking the third count, and about 20 days thereafter plaintiff, by leave of court, filed an amended complaint in 2 counts substantially the same as counts 1 and 2 of the original complaint. Defendant answered the amended complaint. Afterward the cause was called for trial, a jury was impaneled, and on motion of plaintiff’s attorney count 1 of the amended complaint was dismissed and the trial proceeded under count 2. There was a verdict and judgment in plaintiff’s favor for $2,500 and defendant appeals.

The record discloses that defendant was operating a tap room in the Auditorium hotel in Chicago, and about 9:30 o’clock on the evening of March 29,1935, plaintiff went to the tap room to keep an appointment with a friend. She testified she waited in the hotel lobby for her friend but as he was late she telephoned him and then went to the tap room, had a couple of cocktails, ate a light dinner, met some friends with whom she talked for awhile, and about 11 or 11:30 o ’clock left the tap room to make a telephone call and when she returned she slipped on some slime or vomitus on the floor, fell and was severely injured. She was taken upstairs to a room by employees of the tap room of the hotel and. was attended by a physician and a nurse, and the next morning was taken to a hospital on the west side where she was confined for about 3 weeks; she then went to her home and was still under treatment by her doctor at the time of the trial, which began February 28,1938, and there is evidence to the effect that her injuries are permanent.

Further evidence offered on behalf of plaintiff is to the effect that during the evening while she was in the tap room there were a number of waiters and three bartenders serving food and drinks to patrons. Mrs. Miglore who had dinner with some friends in the tap room, called by plaintiff, testified that she had known plaintiff for about 10 years and saw and talked with her in the tap room on the evening in question; that during the evening she saw a woman sitting on a stool at the bar whom she did not know, and that a man was sitting on a stool next to this woman; “I imagine she was with him at the bar, because he left with her, and she was drinking at the bar with him”; that during the time she noticed her this woman became “boisterous and kind of silly” and seemed to be intoxicated; that within an hour and a half she saw the woman drink “six oldfashioneds and two or three whiskey sours”; that after plaintiff left the tap room about 11 o’clock and went to the lobby the woman at the bar left it and staggered; the man with her helped her toward the lobby but the woman “became sick to her stomach and vomited on the floor, ’ ’ and that some 10 or 15 minutes afterward plaintiff returning slipped in the vomit, fell and was injured; that the vomit remained on the floor about 15 minutes after plaintiff fell and that no one made any attempt to clean it up during a period of about 25 minutes. The only occurrence witnesses for plaintiff were Mrs. Miglore and plaintiff.

Defendant called four waiters who were working in the tap room on the evening* in question, who saw the accident. The testimony of each of these witnesses is to the effect that he saw plaintiff and quite a number of other patrons in the tap room during the evening; that plaintiff was sitting on a stool at the end of the bar; that about 11 o’clock she got off the stool, took a few steps, then turned apparently to go in another direction, fell on the floor and was injured. They all testified there was no vomit or any slimy substance on the floor at any time during the evening. Other employees came immediately after the accident and plaintiff was taken upstairs to a room where a doctor was called. They all testified they saw no vomit or any substance on the floor or on plaintiff’s dress, and that they noticed no smell of any person having vomited. There is considerable other evidence in the record, but we think it unnecessary to comment on it.

Plaintiff’s theory of the case is that defendant “either sold or gave to one of its patrons [the unknown woman at the bar] alcoholic drinks of sufficient number and quality to produce intoxication”; that such patron became intoxicated as a result of which she became nauseated and vomited “upon the floor, producing a dangerous condition,” and as a result of such dangerous condition plaintiff slipped and fell in the vomit, causing the injuries.

On the other side one of defendant’s contentions is that “plaintiff cannot recover under the ‘Dramshop Act’ because the evidence fails to prove . . . That alcoholic liquor was sold or given to the person alleged to have vomited on the floor,” and in support of this cite section 14, par. 135, ch. 43, Ill. Rev. Stat. 1937 [Jones Ill. Stats. Ann. 68.042]; Siegel v. People, 106 Ill. 89; Austin v. Bass, 206 Ill. App. 435; Gunderson v. First Nat. Bank, 296 Ill. App. 111.

Section 14 of the Dramshop Act (par. 135, ch. 43, Ill. Rev. Stat. 1937 [Jones Ill. Stats. Ann. 68.042]) provides: “Every . . . person, who shall be injured, . . . by any intoxicated person, or in consequence of the intoxication, ... of any person, shall have a right of action . . . against any person or persons who shall, by selling or giving alcoholic liquor, have caused the intoxication, in whole or in part, of such person.”

In the Siegel case the defendant was indicted and convicted of selling liquor to a minor in violation of sec. 6 of the Dramshop Act of 1874. Mr. Justice Schofield, in delivering the opinion of the court said (p. 94) : “So much of that section of the statute as is material reads as follows: ‘Whoever, by himself or his agent or servant, shall sell or give intoxicating liquor to any minor, without the written order of his parent, guardian or family physician, ... shall, for each offence, be fined’ etc.” The judgment of conviction was reversed because the evidence showed that the intoxicating liquor was sold to an adult who was a companion of the minor, and the liquor was then given by the adult to the minor who consumed it. It was held this was not a violation of the statute because the sale had not been made by Siegel to the minor but to the adult. That case is not in point because the section there involved made it an offence to “sell or give intoxicating liquor to any minor,” etc., while section 14, which is the basis for plaintiff’s suit, does not contain a similar provision. It provides that a person who is injured by an intoxicated person or in consequence of such intoxication shall have a right of action against the person or persons who sold or gave the alcoholic liquor that caused the intoxication. The section does not provide that the selling or giving must be to the intoxicated person, as did the statute involved in the Siegel case.

In the Austin case the evidence shows that Nell Bass resided in a house belonging to James C. Harris and “was running what the witnesses termed ‘a bootlegging joint’ that about 5 p. m. Austin and G-eorge Briscoe went to the house and Austin ordered three bottles of beer from Bass, paying her 25 or 30 cents for it; he gave one of the bottles to Briscoe and the other to Bass; that they all sat down at the table and drank beer until 8 o’clock of the same evening; that during that time “John Sposta brought a bucket of beer from a saloon down town” and Bass, Austin and Briscoe drank out of the bucket; about 8 o’clock Austin and Bass quarreled and she shot and killed him. His widow brought an action against Bass and the landlord, Harris. The basis of the suit was section 9 of the Dramshop Act which provided: “Every . . . wife, . . . who shall be injured in person, property or means of support, by an intoxicated person, or in consequence of the intoxication, ... of any person, shall have a right of action . . . against any person or persons who shall, by selling or giving intoxicating liquors, have caused the intoxication, in whole or in part, of such person or persons.” Plaintiff had a verdict and judgment in her favor, and on appeal the judgment was reversed and the cause remanded. The court said: “It is insisted by counsel for appellants that even if the death was caused solely by the intoxication of Nell Bass, there could be no liability, and upon the trial instruction number 8 was presented by them and refused by the court.” ' The instruction was to the effect that if the jury believed from the evidence that Bass was intoxicated at the time Austin was killed and “that because or on account of her said intoxication, if any, alone, she shot and killed the plaintiff’s husband, ...” then they should find both defendants not guilty. The court held it was error to refuse this instruction, and continuing said: “In this case Nell Bass killed Bob Austin and deprived his widow of her means of support, but was such killing caused by the selling or giving away of intoxicating liquors by Nell Bass? ... It seems to us that under the decisions of this court that after Bob Austin had purchased this beer of Nell Bass he had the right to. do as he pleased with it, and he chose to give Nell Bass one of the bot-ties to drink, and that if any one was responsible for this it would be Bob Austin who gave it to her.” The court then discusses the Siegel case. We are unable to agree with the reasoning of the court in the Austin case because we think the statute involved in that case is not similar to the statute involved in the Siegel case, but is substantially the same as section 14 involved in the Austin case. As stated, the statute involved in the Siegel case made it a punishable offence to sell or give intoxicating liquor to a minor, while the statute in the Austin case gave a right of action to the widow, whose means of support was “injured” by an intoxicated person or in consequence of such intoxication, against the person who sold or gave the intoxicating liquor which caused the intoxication. The statute does not say the selling or giving must be directly to the intoxicated person.

The Gunderson case (296 Ill. App. 111) was an action under the same section of the Dramshop Act as is involved in the case at bar. In that case an action was brought against the defendant who owned the building, permitting a part of it to be used for a tavern; that the operators of the tavern “gave or sold liquor” to one of its patrons, causing him to become intoxicated and while in that condition he assaulted plaintiff. At the close of plaintiff’s case there was a directed verdict for defendant, but a new trial was allowed from which an appeal was prosecuted to this court where the order allowing the new trial was reversed and the cause remanded. The court held that the person who assaulted plaintiff was the owner of the tavern and helped himself to his own liquor, which was not a violation of the statute, and that plaintiff could not recover against the landlord unless he could do so against the tenant. The court there said: “It is clear that Monaco [the owner of the tavern] could make neither a sale nor a gift of liquor to himself and since there was no evidence of a sale or gift of liquor by the tavern operator as is required by the Dramshop act in order to hold liable the owner of the premises in which the tavern was located, the verdict was properly directed for defendant.” The facts in that case are not similar to the facts in the case at bar. There the proprietor of the tavern helped himself to his own liquor, became intoxicated and assaulted plaintiff, while in the instant case plaintiff’s evidence is to the effect that defendant sold intoxicating liquors which caused “the intoxication in whole or in part” of the woman at the bar who consumed the liquor. Defendant’s evidence tended to show that plaintiff herself purchased liquor from defendant, which she consumed, causing her to become intoxicated; and it seems to be conceded that if plaintiff purchased the intoxicating liquors for herself and became intoxicated so as to cause her to fall, she could not recover. Buntin v. Hutton, 206 Ill. App. 194. And the third count of the amended complaint, which was based on this theory, was eliminated by plaintiff. There was evidence tending to sustain the respective theories of the parties and therefore the question was for the jury.

Defendant further contends that the verdict of the jury in plaintiff’s favor is against the manifest weight of the evidence, and that in such circumstances it is the duty of this court to reverse and remand the cause for a new trial. In White v. City of Belleville, 364 Ill. 577, the court said: “If a verdict and the judgment of the trial court are manifestly against the weight of the evidence the Appellate court may reverse and remand for a new trial. Ill. Cent. R. R. Co. v. Smith, 208 Ill. 608; Chicago City Ry. Co. v. Mead, 206 id., 174.”

We think defendant’s contention must be sustained. The manifest weight of the evidence is that there was no vomit on the floor causing plaintiff to fall. We have above referred to the testimony of the witnesses; the only one who testified that vomit was on the floor was Mrs. Miglore, and plaintiff testified she slipped on some slimy substance. Mrs. Miglore further testified that the vomit remained on the floor about 25 minutes and that no one attempted to remove it, although the evidence is clear that the waiters and patrons were constantly passing over this part of the floor, and at least six witnesses testified there was nothing of that ldnd on the floor at any time during the evening.

On the trial counsel for defendant offered in evidence paragraph 6 of count 3 of the original complaint in which it was alleged that defendant was liable under section 14 of the Dram Shop Act because it had sold and given alcoholic liquors to plaintiff which caused her to become intoxicated, as a result of which she slipped and fell to the floor. Upon objection, the evi-' deuce was excluded. We think this was error. It must be assumed that plaintiff advised her attorneys of the facts and they drew her complaint accordingly. One of the controlling questions in the case was whether plaintiff’s fall resulted from her becoming intoxicated and, as stated, it seems to be assumed by both parties that if this were the fact she could not recover. The jury in weighing plaintiff’s testimony had a right to know what plaintiff had alleged in her original complaint in this respect.

We are also of opinion that the court erred in refusing an instruction requested by defendant by which it was sought to tell the jury that plaintiff could not recover unless she was in the exercise of due care as she alleged in her amended complaint, but which was denied by defendant in its answer. WTiile the instant suit is brought under the Dram Shop Act, we think that under the pleading and evidence plaintiff could not recover unless she was in the exercise of due care.

For the reasons stated, the judgment of the superior court of Cook county is reversed and the cause remanded.

Reversed and remanded.

McSurely, P. J., and Matchett, J., concur.


text:
    Edward T. Buttron et al., Appellees, v. Rozalia Repelowicz et al. Anthony W. Kegowicz, Appellant.
    Gen. No. 40,257.
    Opinion filed February 27, 1939.
    William J. Ryan, of Chicago, for appellant; Edward N. Sherburne, of Chicago, of counsel.
    Arthur A. Maina, of Chicago, for certain appellees.
   Mr. Justice O’Connor

delivered the opinion of the court.

January 24, 1934, a complaint in equity was filed to foreclose the lien of a trust deed dated August 1,1928, on certain premises, given to secure an indebtedness of $9,000. After certain pleadings were filed a receiver was appointed AprilJID, 1934, with the usual powers and duties. He qualified and entered upon the discharge of his duties. December 14, 1937, an order was entered which recites the coining on of the cause for hearing on the “No Progress Call” and it was dismissed for want of prosecution. The next that appears in the record is an order entered March 14,1938, which, among other things, approves the third current report and account and “all expenditures listed therein ratified and confirmed.” March 22, 1938, Anthony W. Kegowicz, who was not mentioned in the case up to that time, filed his verified petition in which he set up the filing of the complaint for the foreclosure; that at the time the suit was filed, Frank Matysek and Sofie, his wife, had title to the real estate involved; that afterward, March 14,1938, they conveyed the property by quit claim deed to him; that he now holds title and is the owner of the real estate, and that a receiver was appointed April 30, 1934, who from that date was acting as receiver; that no decree had been entered in the case but that it was dismissed December 14, 1937 for want of prosecution, and he prayed that an order be entered on the receiver to surrender possession of the premises to him and to file his final account and report. On the same day an order was entered that the receiver file Ms report within 20 days. The next that appears in the record is that 24 days thereafter, April 15,1938, the receiver filed his verified final report and account in which he itemized the receipts and disbursements and showed a balance of $642.48. In that document it is stated there is “Outstanding and unpaid against this account are (known) back taxes of . . . $548.96.” There is also a statement that “This account and property management remains with Homer B. Ash as before, Mr. Ash having been re-appointed Receiver on even date herewith, March 22, 1938 (by Judge Burke) and new bond duly executed.” On the same day an order was entered approving the receiver’s final report and account; that the receiver retain $25 for his compensation, pay bills shown by the report of $65.50, and it was further ordered that the receiver be authorized and directed to apply the entire balance of funds in his hands in payment of general taxes levied against the premises. Five days thereafter, counsel for Kegowicz presented a verified petition in which he again set up foreclosure proceedings and that he obtained title to the premises on March 14, 1938 by quit claim deed, as above stated; that the receiver had not filed his final report and account within 20 days, as ordered by the court March 22, 1938, hut that it was filed 4 days thereafter without notice to him, and the order of April 15 entered. The prayer was that the latter order be vacated and the receiver turn over the funds in his hands to the petitioner. An order was entered on the same day denying the prayer of the petition.

Kegowicz by this appeal seeks to reverse the two orders entered, one on April 15, 1938 and the other April 20, as above stated. His position is that since the foreclosure suit was dismissed for want of prosecution the moneys in the hands of the receiver, at the time he filed his final report and account, should be turned over to him because he was the owner of the real estate by virtue of the quit claim deed of March 14, 1938.

If we assume that Kegowicz was the record owner of the property by virtue of his quit claim deed, it does not follow that he would be entitled to the moneys in the hands of the receiver. The trust deed securing the indebtedness was attached to and made a part of the complaint hut it is not in the record before us. We think, however, sufficient appears to show that the rents and profits of the building were pledged as well as the property itself as security for the indebtedness. In the absence of the trust deed we think we may presume the trust deed authorized any receiver that might be appointed to collect the rents and to apply them toward the payment of any indebtedness against the premises, including taxes. And although the bill was dismissed for want of prosecution we think in the absence of facts showing a clear right of Kegowicz to the rents, they ought not to be awarded to him merely because he obtained a quit claim deed on March 14, 1938 from the persons who, he claimed, were the owners of the equity of redemption. Goodman v. Heinin, 291 Ill. App. 19. The equities of the case must be considered and we think Kegowicz has fallen far short of showing he is equitably entitled to have the rents. Moreover the record indicates that Ash, the receiver, was, in another suit appointed receiver of the same premises; that he duly qualified as such receiver and the court ordered the moneys turned over to hirri as such receiver to be applied toward the payment of taxes.

The orders of the circuit court of Go ok county are affirmed.

Orders affirmed.

McSurely, P. J., and Matchett, J., concur.


text:
    Raechel T. Kauders, Appellee, v. The Equitable Life Assurance Society of the United States, Appellant.
    Gen. No. 40,395.

      Opinion filed February 27, 1939.
    Mayer, Meyer, Austrian & Platt, of Chicago, for appellant; Miles G-. Seeley, of Chicago, of counsel.
    Bows & Bows, of Chicago, for appellee; Augustine J. Bowe, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.

Plaintiff brought an action to recover as beneficiary under a life insurance policy issued by defendant to her husband. There was a jury trial and at the close of all the evidence defendant moved for a directed verdict. The court reserved its ruling and submitted the case to the jury which returned a verdict in plaintiff’s favor for $309.92, the amount of plaintiff’s claim. Afterward the court sustained defendant’s motion for a directed verdict and entered judgment notwithstanding the verdict. Plaintiff appealed to this court where, upon consideration, the judgment was reversed and the cause remanded with directions to enter judgment on the verdict. (294 Ill. App. 614, Abst.) Upon the mandate being filed in the trial court judgment was entered on the verdict in plaintiff’s favor and against defendant as directed, and 7 days thereafter defendant filed its motion for a new trial, which on motion of plaintiff was stricken and defendant again appeals to this court.

Defendant contends that it had a right to present its motion for a new trial and to have it heard after the entry of the judgment in plaintiff’s favor by virtue of sec. 68 of the Civil Practice Act. Par. 1 of that section provides where a verdict is returned “if either party may wish to move for a new trial ... or for a judgment notwithstanding the verdict, he shall, before final judgment be entered, or within ten days thereafter, or within such time as the court may allow on motion made within such ten days, by himself or counsel, file the points in writing, particularly specifying the grounds of such motion, and final judgment and execution thereon shall thereupon be stayed until such motion can be heard by the court. The time for appeal from such judgment shall not begin to run until the court shall rule upon the motion. . . .

“(3) a. Hereafter, in all civil actions at law, in courts of record, if either party shall at the close of the testimony, and before the case is submitted to the jury, request the court for a directed verdict in his favor, the court may reserve his decision thereon, and submit the case to the jury under proper instructions . . . after receiving and recording the verdict of the jury and before judgment is entered in said case, the court may hear arguments of counsel for and against said request, but in all such cases where a verdict is rendered, the court shall receive and record such verdict of the jury as rendered. ... If the court shall then decide as a matter of law that the party requesting the directed verdict was entitled thereto, the court shall enter its decision on the record and order judgment in accordance with such decision, notwithstanding the verdict. ...»

“c. If the party in whose favor the verdict of the jury was rendered shall assign error in the Appellate or Supreme court upon the order of the trial court entering judgment notwithstanding the verdict, and the Appellate or Supreme court shall be of opinion that the trial court committed error in ordering or entering judgment notwithstanding the verdict, such court shall reverse such order and judgment and shall order or enter judgment in accordance with the verdict of the jury, unless it shall appear that there was error in the case that would have entitled the party in whose favor judgment notwithstanding the verdict was entered, to a new trial if such judgment had not been entered by the trial court, in which case a new trial shall be ordered.”

Under paragraph 1 of sec. 68, judgment may be entered on the return of the verdict, in which case the losing party may, within 10 days thereafter or within such time as the court may allow on motion made within such 10 days, file his motion in writing* for a new trial, or for a judgment notwithstanding the verdict. But if judgment is not entered at the time the verdict is returned he may move the court to sustain his motion for a directed verdict made at the close of all the evidence and for judgment notwithstanding the verdict, and he may also file a motion for a new trial, all of which must be done before an appeal is taken, because the paragraph expressly provides that “The time for appeal from such judgment shall not begin to run until the court shall rule upon the motion.” But defendant in the instant case not having filed a motion for a new trial until after the judgment of the trial court was reversed by this court, the motion for a new trial was waived. Cases will not be tried in piecemeal. Hill v. Richardson, 281 Ill. App. 75; Hicks v. Swift & Co., 285 Ill. App. 1; Gourley v. Chicago & E. Ill. Ry. Co., 295 Ill. App. 160; Synwolt v. Klank, 296 Ill. App. 79; Denny v. Goldblatt Bros., 298 Ill. App. 325; Delyda v. Metropolitan Life Ins. Co., 298 Ill. App. 623 (Abst.).

Paragraph 3 (c) of sec. 68 of the Civil Practice Act provides that where a trial court has entered judgment notwithstanding the verdict and complaint is made in this or in the Supreme Court that error has been committed, which the reviewing court sustains, we shall reverse the order and judgment and ‘1 shall order or enter judgment in accordance with the verdict of the jury, unless it shall appear that there was error in the case that would have entitled the party in whose favor the judgment notwithstanding the verdict was entered, to a new trial if such judgment had not been entered by the trial court.” Obviously under this provision defendant was required to urge that in any event he was entitled to a new trial; not having done so, the error was waived and he cannot now be heard to complain. This is the effect of the holding in the cases above cited. See also McCaskill, 1936 Ed. Ill. Civil Practice Act, pp. 189-190; Harrow’s Ill. Practice Act Manual, pp. 221-224.

No point is made by plaintiff that this appeal was prosecuted for delay.

The order of the superior court of Cook county striking defendant’s motion for a new trial is affirmed.

Order affirmed.

McSurely, P. J., and Matchett, J., concur.


text:
    Edwood V. Melsha, Petitioner, v. Johns-Manville Sales Corporation, Respondent.
    Gen. No. 40,254.

      Opinion filed March 6, 1939.
    John A. Bloomingston, of Chicago, for petitioner.
    Heth, Lister & Flynn, of Chicago, for respondent.
   Mr. Justice Matchett

delivered the opinion of the court.

Melsha, the plaintiff, filed his complaint in the circuit court for an alleged libel demanding damages of $100,000. On motion of defendant the complaint was stricken. First amended and second amended complaints were also stricken and a request for leave to file a third amended complaint denied. December 28, 1937, the suit was dismissed with judgment for costs. February 5, 1938, plaintiff filed in the circuit court his notice of appeal and April 7 thereafter the record was filed in this court and the appeal docketed as No. 40,155. May 2, 1938, defendant moved to dismiss the appeal because the transcript of record was filed more than 60 days after the filing of the notice of appeal in the trial court, one day late under Supreme Court Rule 36 (2a) and Appellate Court Rule 1 (2a). The motion to dismiss was allowed May 6; at the same time, on countermotion of plaintiff and as a part of the same order, leave was given to file a petition for leave to appeal under Rule 29 Supreme Court and Rule 19 of this court, in conformity with the provisions of section 76 of the Civil Practice Act. By the order plaintiff was allowed 15 days in which to file his petition and leave was also given to withdraw the record to be refiled under the new number. In support of the countermotion plaintiff showed the illness of counsel from March 27, 1938, until the middle of April, also a meritorious defense. May 9, 1938, defendant moved to vacate and expunge that part of the order of May 6 which granted leave to plaintiff to file petition for leave to appeal, to withdraw the record, etc. This motion was denied May 13, 1938. May 21 plaintiff filed his petition for leave to appeal; the petition set up facts and proceedings as heretofore stated; the prayer of the petition was allowed.

Defendant on June 17, 1938, answered, asserting plaintiff had no right to perfect more than one appeal and denying the jurisdiction of the court to permit the filing of a second notice. The answer also asserted the second amended complaint stated no cause of action. In support of the contention that this court was without jurisdiction People ex rel. Bender v. Davis, 365 Ill. 389, was cited.

We have considered the record on the merits. A majority of this court (the writer not concurring) hold the second amended complaint states a good cause of action, and the trial court erred in striking the complaint and dismissing the suit. The jurisdiction point presents a question of controlling importance and calls for an interpretation of section 76 of the Civil Practice Act and the rules of the Supreme and of this court enacted pursuant thereto.

Prior to the decision of the Supreme Court in Bender v. Davis, it was the practice of all divisions of this court to construe section 76 of the Civil Practice Act as granting jurisdiction after the expiration of 90 days from the rendition of judgment by the trial court and within one year upon petition to grant leave to appeal when a notice of appeal theretofore filed within the 90 days had proved ineffective or abortive and a party not guilty of culpable negligence had a meritorious case. We adopted this construction of the statute because it was apparent otherwise many litigants, without fault, by a mere technicality would be denied their right to have judgment against them reviewed, and because we relied upon the provisions of the Civil Practice Act that it was to be liberally construed. We were of the opinion a notice of appeal which had become abortive and insufficient to confer jurisdiction might be regarded as nonexistent. We also were mindful that the constitution guaranteed the right of review by writ of error and that the Civil Practice Act broadened the process of appeal to include judgments, orders or decrees heretofore reviewed either by appeal or writ of error and abolished the writ of error as a mode of review of judgments in civil cases. Section 74 of the Civil Practice Act provides the method of review shall be by notice of appeal only, and “such appeal shall be deemed to present to the court all issues which heretofore have been presented by appeal and writ of error. ’ ’ Under the former practice, upon the happening of a contingency which rendered the remedy by appeal ineffective, it was usual to obtain review by suing out a writ of error which might be done as a matter of right within the time allowed by the Statute of Limitations. Under the old practice an appeal was purely statutory and since at that time a writ of error was a writ of right at common law and generally might be prosecuted as a matter of right in all civil cases, it was held that in prosecuting an appeal the statute should be strictly followed. The reason for the old rule that in prosecuting an appeal the statute must be strictly complied with no longer obtains because the writ of error in civil cases has been abolished, and review by that method is not available. Under the old practice, if counsel made a slip in perfecting his appeal he could abandon it because he could have the judgment reviewed by writ of error where the whole record would be searched. Drummer Creek Drain Dist. v. Roth, 244 Ill. 68.

It is now contended under the law as stated in Bender v. Davis, such litigants are left without remedy and this court without jurisdiction. The third division of this court has given this interpretation to the opinion of the Supreme Court in Bender v. Davis: in Schroeder v. Campbell, 289 Ill. App. 337, 7 N. E. (2d) 329; and in Moss v. Federal Life Ins. Co., 289 Ill. App. 379, 7 N. E. (2d) 468. Appellate Courts are obligated to follow the construction of the statutes adopted by the Supreme Court, and in view of the importance of the question we have given careful consideration to Bender v. Davis.

We have concluded our brethren of the third division misapprehended the scope and effect of that decision. The case in the Supreme Court was by way of original petition for mandamus directed to the Appellate Court of the Third District. The petition prayed an order entered in that court might be expunged. The facts disclosed were that June 29, 1935, the relator, Martha L. Bender, as administratrix, recovered judgment in the circuit court of McLean county against the Alton R Co. for $7,500 and costs; July 13, 1935, the railroad company filed notice of appeal to the Appellate Court; July 18 defendant filed its praecipe for record; September 9,1935, the report of the proceedings of the trial was certified and filed, and October 2, 1935, the completed record was filed in the Appellate Court; December 18, 1935, abstracts and briefs were filed by the railroad company and the cause docketed; December 30 plaintiff filed notice of a motion to dismiss the appeal or affirm for failure of defendant to comply with the rules of the Appellate Court, pointing out in particular that the brief did not properly set forth “the errors relied upon for reversal,” as required; January 7, 1936, the motion came on for hearing; the court entered an order finding, ‘ ‘ That the appellants in preparing briefs and abstracts have clearly violated the rules of this Court and are subject to censure and criticism for the detailed statement and for the voluminous quotations from the testimony both in the Statement and in the Abstract filed, which is an imposition upon this Court, but believing that the granting of the motion would delay and hinder the final disposition of the case and that Appellee can be protected on a proper motion to retax costs if that becomes necessary. It is therefore ordered that the motion to affirm judgment is hereby denied.” January 8, the defendant filed a reply brief and the same day the cause was argued orally and the defects of the briefs of the railroad company again pointed out. The defendant made no request for leave to amend its brief. Thereafter the case of Farmers State Bank of Belvidere v. Meyers, 282 Ill. App. 549, decided in the second district, was called to the attention of the court, it having first appeared January 15, 1936, after the submission of the cause. February 29, 1936, the Appellate Court-' (Third District) filed a per curiam opinion and entered an order dismissing the appeal for failure to comply with the rule. April 7,1936, defendant’s petition for rehearing was denied. Prior to that time, on March 15, 1936, defendant filed in the Appellate Court its petition for leave to appeal from the same judgment under section 76 of the Civil Practice Act and rules of the court pursuant thereto. On the same day the Appellate Court entered an order granting the prayer of the petition ; a few days thereafter plaintiff by leave filed her petition for mandamus in the Supreme Court, and at the February term, 1937 the court awarded the writ and directed that the order of April 7 should be expunged. While so deciding the court explained the ground and reasons for its decision.

The opinion was careful to point out that a writ of mandamus could not perform the office of a writ of error or an appeal. The opinion states (p. 390) : “Mandamus cannot be made to perform the office of a writ of error or of certiorari or appeal. People v. Shurtleff, 355 Ill. 210; Eisen v. Zimmer, 254 id. 43.”

The opinion further said:

“By dismissing the railroad company’s first appeal the respondents enforced a rule of court. Whether their action could have been reviewed by this court, or whether the railroad company, had it sought leave, might have been permitted to amend its brief and to comply with the rules, or whether granting leave to file the second notice of appeal was in effect granting such leave to amend, are all questions which we cannot properly pass on in a mandamus case. ’ ’

It is a fair inference from this language thát if the order of dismissal of the Appellate Court had been before the Supreme Court for review the Supreme Court would have reversed the order dismissing the cause with directions to the Appellate Court to enter a rule on the defendant to file an amended brief and to consider the appeal upon the merits. It appears that in two important respects the record before this court is distinguishable from that upon which the Supreme Court passed in the Bender v. Davis case.

First, in that consideration of the order dismissing the appeal was limited by the legal nature of the proceeding. The order of dismissal was not and could not in that proceeding be challenged. Here, both the order of dismissal and the order permitting leave to file a second notice of appeal are before this court for consideration on the merits. Neither order is questioned collaterally, as was the case in Bender v. Davis. This distinction is important.

In the second place, the Bender v. Davis case and this case are distinguishable upon fundamental and controlling facts. In the Bender v. Davis case the appeal had been considered on the merits; briefs had been filed and oral arguments heard. The attention of the defendant had been three times called to the defective character of its briefs. In the instant case the plaintiff was given no further opportunity to comply with the rule which he had inadvertently transgressed. By a mere inadvertence, through illness, plaintiff failed by a single day to comply with the rules of the court. The strict enforcement thereof would compel this court to deny to him a review of a judgment which a majority of the court have decided is unjust and erroneous. Manifestly, there is a fundamental distinction between a proceeding in which the notice of appeal (as in the Bender v. Davis case) had performed the function it was created to perform, and the notice of appeal in this case which has utterly failed through misadventure1 to perform such function. These two distinctions, we think, justify the conclusion that the decision in the Bender v. Davis case is not applicable to the facts before us in this case. The intention of the legislature in the enactment of the Civil Practice Act is not doubtful. Section 4 of that act (Ill. Rev. Stat. 1937, ch. 110, par. 128, p. 2382 [Jones Ill. Stats. Ann. 104.004]) provides:

“This Act shall be liberally construed, to the end that controversies may be speedily and finally determined according to the substantive rights of the parties, and the rule that statutes in derogation of the common law must be strictly construed shall not apply to this Act or to the rules made pursuant thereto.

“No statute hereafter enacted shall be construed to limit or affect the provisions of this Act or the rules adopted in accordance therewith, unless expressly declared to supersede or take precedence of designated provisions thereof or designated rules adopted pursuant thereto.”

Section 76 of the Civil Practice Act provides that an appeal may be taken from judgments and decrees within 90 days as a matter of right, but that after the expiration of 90 days and within a year from the rendition of the judgment an appeal may be allowed by the reviewing court, provided the party appealing has not been guilty of culpable negligence and that there is merit in his appeal. The section reads: “Notice of appeal may be filed after the expiration of said ninety days, and within the period of one year, by order of the reviewing court, upon motion and notice to adverse parties, and upon a showing by affidavit that there is merit in appellant’s claim for an appeal and that the delay was not due to appellant’s culpable negligence.”

In the instant case plaintiff presented facts bringing him within the provisions of the statutes. Certainly there was no “culpable negligence” and a majority of the court, after careful consideration of the briefs, have found that there is merit in his appeal.

Not only the sections of the Civil Practice Act already quoted but section 92 of the same act (Ill. Rev. Stat. 1937, ch. 110, par. 216, p. 2415 [Jones Ill. Stats. Ann. 104.092]) precludes a strict construction of that act. Section 92 provides that the reviewing court may order or permit the record to be amended by correcting errors or by adding matters which should have been included, and it may make not only orders which the lower court should previously have made but also “such other and further orders and grant such relief ... as the case may require.” The distinction between a case where an appeal has been heard upon the merits and a case where an appeal taken has proved to be abortive, making consideration of the case on the merits impossible, is fundamental. Section 76 (2) of the Civil Practice Act (Ill. Rev. Stat. 1937, ch. 110, par. 200, p. 2410 [Jones Ill. Stats. Ann. 104.076]) further provides that only the filing of the notice of appeal shall be jurisdictional. We therefore held that notwithstanding the order of dismissal entered, this court has jurisdiction in this cause.

Holding that we have jurisdiction and a majority of the court being of the opinion the trial court erred in striking plaintiff’s second amended complaint and dismissing his suit, the judgment is reversed and the cause remanded for proceedings consistent with this opinion.

Reversed and remanded with directions.

MgShrbly, P. J., and O’Cohhor, J., concur.


author: Mr. Presiding Justice Burke

text:
    Sigmund Motel and E. Phillips, Appellants, v. Stella Andracki et al., Appellees.
    Gen. No. 40,334.
    Opinion filed February 27, 1939.
    Rehearing denied March 24, 1939.
    William M. Zipperman, of Chicago, for appellants.
    Kirkland, Tollkuehn, Finn & Smith, of Chicago, for appellees; James K. Finn and Ambrose P. Finn, Jr., of counsel.
   Mr. Presiding Justice Burke

delivered the opinion of the court.

On February 21,1930, in the municipal court of Chicago, plaintiffs recovered a judgment against defendant Stella Andraeki in the sum of $2,446.50. On March 3, 1930, a writ of execution was issued by the clerk and delivered to the bailiff, who, on March 12, 1930, left a copy thereof with defendant Stella Andraeki and made a 'demand thereon. On March 2, 1937, scire facias proceedings were instituted in the municipal court of Chicago to revive said judgment and defendant Stella Andraeki was personally served with summons in said proceeding. Thereafter, on March 16, 1937, the court entered judgment in due form that the original judgment be revived. On March 29,1937, an execution was issued thereon and delivered to the bailiff, who demanded that the judgment debtor pay the amount of the judgment. She refused so to do, and “fraudulently” (according to plaintiff) insisted that she had neither money nor property to satisfy the execution.

On May 23, 1930, plaintiffs filed a bill in aid of execution, in the circuit court of Cook county, against defendant Stella Andraeki and other defendants, for the purpose of (1) removing from certain real estate the lien of a trust deed from defendant Stella Andracki to Chicago Title and Trust Company, dated December 14, 1929, and recorded December 17, 1929, and (2) also removing an alleged “pretended conveyance” of the same premises to Joseph Natzke and Kate Natzke, which “pretended conveyance” was made on February 21,1930. The bill asserted that the two conveyances were without consideration and were made for the purpose of defrauding plaintiffs in collecting their judgment. The cause was referred to a master in chancery for the purpose of taking testimony and reporting his conclusions of law and fact. While it was pending before the master the grantees in the alleged fraudulent conveyance, namely Joseph Natzke and Kate Natzke, reconveyed the premises to defendant Stella Andracki. On November 19, 1937 (approximately seven and one-half years after filing), the circuit court dismissed the cause for want of prosecution during the call of a “No Progress Calendar.” On December 16, 1937, plaintiffs herein moved to vacate the order of dismissal, which motion the circuit court overruled. Thereafter, on March 11, 1938, plaintiffs filed a complaint in the superior court against Stella Andracki, Leonard A. Andracki, Edward Andracki and Chicago Title and Trust Company, as trustee. The complaint recited the judgment entered on February 21, 1930, and its revival on March 16, 1937; and averred, inter alia, that subsequent to the reconveyance of the real estate to defendant Stella Andracki by Joseph Natzke and Kate Natzke, and on March 12, 1937, defendant Stella Andracki made a “pretended conveyance” of the real estate by warranty deed to Leonard A. Andracki and Edward Andracki; that no consideration therefor had been paid to said Stella Andracki and that the conveyance was fraudulent as to plaintiffs. The complaint also set out that on December 14, 1929, defendant Stella Andracki made a “pretended” trust deed securing two notes, one for $3,500 and one for $1,500, to Chicago Title and Trust Company, as trustee, and that the mortgage and notes were without consideration and fraudulent as to plaintiffs ; and plaintiffs prayed that the trust deed and the warranty deed be set aside so that they might proceed to collect the judgment as against the real estate described. Defendants Leonard A. Andracki and Edward Andracki are sons of defendant Stella Andracki. Defendant Chicago Title and Trust Company filed an answer to the second complaint in equity in which it denied the allegations of fraud, and asserted that it did not have knowledge or information sufficient to form a belief as to other allegations. The other defondants filed a motion to dismiss the complaint on the ground that the action was barred by laches as shown on the face of the complaint. The chancellor directed the defendants to file a petition in support of their motion, and on April 8, 1938, they filed a petition in which they set out, inter alia, that the premises involved were conveyed by defendant Stella Andraeki to her sons Leonard A. Andraeki and Edward Andracki on March 12, 1937, after the lien of the judgment had expired and before it was revived; and further recited the proceedings in the circuit court wherein the previous complaint was dismissed for want of prosecution. Plaintiffs filed an answer to the petition and asserted that the complaint was not barred by laches for the reason that it did not appear that defendants were prejudiced by the delay; and, further, that defendants Leonard A. Andraeki and Edward Andracki did not allege in their petition that they were bona fide purchasers of the premises for value; that the previous bill in the circuit court was dismissed without the knowledge of plaintiffs; that in the hearing before the master in chancery while the previous case was pending ‘ ‘ admissions were made by Joseph Natzke and Kate Natzke, in the presence of defendants, that Stella Andraeki knew nothing of the conveyance, and it was then and there, while said suit was pending, re-conveyed by deed from Joseph Natzke and Kate Natzke to Stella Andraeki; that the conveyance from Stella Andraeki to her two sons, Leonard A. Andraeki and Edward Andraeki, is done with the intent to cheat and defraud the plaintiffs herein and to deprive them of their right to levy upon said real estate in satisfaction of the debt.”

In the second equity case the chancellor sustained the motion of defendants Stella Andraeki, Leonard A. Andraeki and Edward Andraeki and dismissed the cause, and on appeal the record is brought before us.

There is a substantial agreement on the facts. The judgment was entered on February 21, 1930, and expired by limitation 7 years thereafter. On March 2, 1937, the scire facias proceedings to revive the judgment were instituted and on March 16, 1937, the judgment was revived. On March 12, 1937, in the interim between the filing of the proceedings to revive the judgment and the entering of the order reviving the judgment, defendant Stella Andracki conveyed the real estate in question to her sons Leonard A. Andracki and Edward Andracki. At this time it is unnecessary to discuss the part of the complaint which seeks to set aside the lien of the trust deed as fraudulent. The trustee has filed an answer and whether the transaction was fraudulent as to plaintiffs will be determined when the cause is heard. It is conceded that when the 7-year period subsequent to the rendition of the judgment expired the lien which plaintiffs had acquired by virtue of their judgment and the issuance of an execution thereon was lost. The parties also agree that a judgment may be revived within 20 years and that when the judgment was revived a new lien arose. The Supreme Court, in Bank of Eau Claire v. Reed, 232 Ill. 238, 241, said: “The judgment is that the original judgment be revived and stand in full force and effect as- of the date of the rendition thereof, and that the plaintiff have execution against the defendant for said judgment, together with the plaintiff’s costs in the original action and this action. The judgment under a scire facias to revive a judgment is not quod recuperet for the amount due, but its object is to revive the judgment just as it formerly existed and to reinvest it with the-same attributes and conditions which originally belonged to it.” Hence the judgment as and when revived is invested with the same attributes as when it -yas originally entered- An examination of the briefs discloses that the parties are in substantial agreement on the law up to this point.

Plaintiffs contend that they have a right to maintain their complaint to remove what they allege are fraudulent conveyances of the property of the judgment debtor. In the case of French v. Commercial Nat. Bank, 199 Ill. 213, the court decided that a judgment creditor may, on the issuance of an execution and the placing thereof in the hands of the sheriff, file his bill in equity to set aside alleged fraudulent conveyances, and that in such case it is immaterial whether an execution had been issued and returned nulla bona prior to the filing of the bill. Defendants concede that plaintiffs’ contention in this respect is correct. Defendants urge, however, that the long continued delay in prosecuting the supposed rights of plaintiffs constituted laches and bars any right to equitable relief, and that laches may be raised for matters appearing on the face of the bill. It is manifest that if the facts constituting laches appear on the face of the complaint a motion to dismiss is proper. The first complaint, filed in the circuit court on May 23,1930, was dismissed on November 19, 1937, during the call of a “No Progress Calendar. ’ ’ It must be borne in mind, however, that any of the parties to the cause could have moved to speed the cause. Defendants could have made such a motion. The fact that the case was dismissed for want of prosecution did not in any way prevent plaintiffs from filing another bill. The petition accompanying defendants’ motion to dismiss does not deny the truth of any of the allegations of the complaint; it relies solely on the ground of laches. Plaintiffs argue the chancellor was in error in sustaining the motion because defendants did not show that the delay of plaintiffs in prosecuting their complaint prejudiced defendants, and cite Dixmoor Golf Club v. Evans, 325 Ill. 612, where the court said (pp. 622, 623):

“A court of equity applies the doctrine of laches in denial of relief prayed, where the statutory period of limitation has not expired, only where, from all the circumstances in evidence, to grant the relief to which the complainant would otherwise be entitled would presumptively be inequitable and unjust because of the delay to the defendants. (Stiger v. Bent, 111 Ill. 328.) Laches is such a neglect or omission to assert a right as, taken in conjunction with lapse of time and other circumstances causing prejudice to the opposite party, operates as a bar in a court of equity. (Morse v. Seibold, 147 Ill. 318.) It will only be applied where, from all the circumstances, to grant the relief to which the complainant would otherwise be entitled would presumptively be inequitable and unjust because of the delay. (Coryell v. Klehm, 157 Ill. 462.) A court of equity will be slow to apply the doctrine when there is no change in the situation of the parties to the prejudice of the defendant during the delay. (Totten v. Totten, 294 Ill. 70.) Mere delay short of the statutory period of limitation will not be laches where there are no circumstances which place the defendant in a worse position because of the delay. (Gibbons v. Hoag, 95 Ill. 45, Lynn v. Worthington, 266 id. 414.) Equity follows the law except when delay is accompanied by some other element rendering it inequitable. (Stowell v. Lynch, 269 Ill. 437.) The bill is practically a suit for the recovery of money had and received, and no circumstances of hardship appear which would make any delay short of the Statute of Limitations in such cases inequitable. ” It is apparent that the judgment as revived possessed all the attributes of the original judgment. If plaintiffs had secured an original judgment on March 16,1937, and execution issued thereon which was delivered to the bailiff, and they filed their bill to set aside said deeds on the ground that they were fraudulent as to plaintiffs, there can be no doubt that the action could be maintained. Defendants did not, in support of their motion, and do not in their brief, point out that they were prejudiced in any way by the delay of plaintiffs in prosecuting their complaint. Therefore we are of the opinion that the chancellor was in error in dismissing the complaint.

For the reasons stated, the decree of the superior court of Cook county dismissing the complaint is reversed, and the cause remanded, with directions that the motion of defendants be overruled and that further proceedings be had not inconsistent with this opinion. Decree reversed and cause remanded, with directions.

John J. Sullivan and Friend, JJ., concur.


text:
    Emma L. Morrissey, Appellee, v. Raymond L. Morrissey, Appellant.
    Gen. No. 40,346.

      Opinion filed February 27, 1939.
    Bathje, Hinckley, Barnard & Kulp, of Chicago, for appellant.
    Wm. L. Quinlan, of Chicago, for appellee.
   Mr. Presiding Justice Burke

delivered the opinion of the court.

On April 13, 1938, plaintiff filed, in the municipal court of Chicago, her amended statement of claim wherein she set out that in a certain written contract dated May 21, 1936, defendant, among other' things, agreed to pay plaintiff the sum of $87.50 each month in instalments of $43.75 on the 1st and 15th of each and every month thereafter during the natural life of plaintiff, or, in the event of a decree of divorce, until the death or remarriage of plaintiff; that in the event defendant should default in making any of the payments and such default should continue for a - period of 10 days, defendant would pay plaintiff all necessary expenses, including reasonable attorneys’ fees, incurred by plaintiff in enforcing the terms of said agreement; that defendant failed to make semimonthly payments which became due April 15, 1937, up to and including June 15, 1937, or a total of $218.75; that a reasonable attorney’s fee for bringing said suit and collecting said amount was $50, making a total sum of $268.75 due plaintiff. The agreement attached to the amended statement of claim contains a preamble reciting that the parties were married on March 16, 1923, and were then living separate and apart; that he had filed his complaint for divorce and for a settlement of their property rights; that she had filed an answer and a counterclaim for divorce on the ground of cruelty and for a settlement of property rights, and for alimony and solicitors’ fees; that the parties desire to settle and adjust their respective property rights and claims; that each made a full and complete disclosure to the other of his or her respective properties, investments and financial condition, and the agreement provided that in consideration of one dollar and of mutual covenants and agreements therein contained she was declared to be the sole owner, free and clear of any claims of any kind whatsoever of her husband, of certain real estate, known as No. 6049 North Kilbourn avenue, Chicago ; that he would join in a conveyance of the property to her; that she was the sole owner of the furniture and other personal property located in No. 6049 North Kilbourn avenue, Chicago, excepting only his personal wearing apparel and tools; that she was declared to be the sole owner of a certain automobile; that he agreed to indorse to her the certificate of title to the automobile ; that he agreed to pay, upon demand, a balance of $600 remaining unpaid on the purchase of a fur coat then ready for delivery to her; that he agreed to pay her the sum of $87.50 per month for her support and maintenance during her natural life, or in the event a decree of divorce be granted to either of the parties, until her death or remarriage; that he agreed to pay her-for her attorneys’ fees in the divorce action the sum of $250; that each accepted the agreement as in full discharge of all claims of every character by each against the other. Defendant filed an affidavit of defense reading:

“Now comes the defendant, Raymond L. Morrissey, by Joseph J. Sullivan, his attorney, and in answer to the amended statement of claim of the plaintiff, Emma L. Morrissey, filed herein, represents that on, to-wit, May 26, 1936, he and the plaintiff executed and delivered to each other, in duplicate, a contract described in the amended statement of claim, a copy of which is thereto attached, and admits that he has failed and refused to make the semi-monthly payments provided to be made thereunder on April 15,1937, and thereafter up to and including June 15,1937, but denies that there is due and owing to plaintiff under the provisions of said agreement the sum of $218.75, or any other sum, together with attorney’s fees, for the reason that the said agreement is illegal, void against public policy, and unenforcible, all as hereinafter more fully set forth.

“And in further answer to the said amended statement of claim, this defendant alleges:

‘ ‘ 1. That on, to-wit, March 22,1936, this defendant, Raymond L. Morrissey, and the plaintiff, Emma L. Morrissey, were married to each other, and that by reason of domestic altercations this defendant was, on the aforesaid date, obliged to leave the family home and did thereafter live separate and apart from the said plaintiff and has continued so to do.

“2. That on, to-wit, April 4, 1936, this defendant,, as plaintiff, filed in the Superior Court of Cook County, Illinois, his complaint for divorce alleging, among other things:

“ (a) That on or about the year 1909 the plaintiff herein married one Henry L. Hass, and that said Henry L. Hass died in the year 1922 leaving him surviving as his widow the plaintiff herein;

“ (b) That on, to-wit, March 16, 1923, this defendant became and was lawfully married to the plaintiff herein, with whom he resided as her husband until March 22,1936, at which date he was compelled to leave and to cease living with her as a consequence of her ill-treatment, consisting of extreme and repeated acts of cruelty; which said proceeding was entitled ‘Raymond L. Morrissey vs. Emma L. Morrissey,’ Superior Court of Cook County Case No. 36S4662;

“3. That on, to-wit, May 21, 1936, the said Emma L. Morrissey filed to said complaint her answer and counterclaim denying the allegations of this defendant’s complaint and charging this defendant with various acts of cruelty, which said charges this defendant denied in his answer to said counterclaim, which said answer was filed in said proceeding on May 26, 1936.

‘ ‘ 4. That on, to-wit, May 21,1936, the plaintiff herein, Emma L. Morrissey, through her attorney, advised this defendant that he might be divorced from her upon the following terms and conditions, to-wit:

“ (a) That he, this defendant, would not defend or contest the aforesaid divorce proceeding and would allow said proceeding to be heard as a default case and would allow the plaintiff to secure a decree of divorce upon grounds of cruelty, and would consent to the dismissal of his said complaint for divorce;

“(b) That he would pay the plaintiff the sum of $600, being the balance remaining unpaid upon a fur coat purchased by the plaintiff;

“(c) That he would pay to the plaintiff, in addition thereto, the sum of $250 as and for her attorney’s fees;

“(d) That he would release any interest he had in certain securities then in the possession of the plaintiff, having an approximate value of $12,000;

“(e) That he would release all interest in the family home which was purchased and erected at a cost of approximately $16,000, which said release was to include all furniture and furnishings located on said premises;

“(f) That he would release all interest he had in the family car and would assign the certificate of title thereto to the plaintiff;

“(g) That he would, in addition thereto, pay to the plaintiff the sum of $87.50 in equal semi-monthly payments of $43.75 each, until plaintiff’s death or remarriage, all as alleged in the statement of claim filed herein;

‘ ‘ (h) That in consideration of the foregoing the plaintiff herein would release this defendant from any and all claims for alimony, separate maintenance, and from his legal obligation to support her; that she would immediately proceed with said divorce proceeding as a default case and would secure the entry of a decree of divorce dissolving the marital relationship and discharging each from their respective marital duties and obligations.

‘ ‘ 5. That this defendant accepted said proposal, as aforesaid, and did on, to-wit, May 26,1936, execute the said agreement dated May 21, 1936, providing, among other things, for:

“ (a) The payment of $600, as aforesaid;

“ (b) The payment of $250 as plaintiff’s attorney’s fees, as aforesaid;

“(c) The release of his interest in the family home and the furniture, furnishings, equipment and personal property located on said premises;

“(d) The release of his interest in the family automobile ;

“(e) The assumption of the obligation to pay to plaintiff the sum of $87.50 in equal semi-monthly payments, as aforesaid, until her death or remarriage;

“ (f) The release by the plaintiff herein of any and all claims for alimony, support and separate maintenance.

‘16. That thereupon the plaintiff, in accordance with said agreement, proceeded with said divorce proceeding as a default, uncontested case, and on, to-wit, June 1, 1936, secured the entry of a decree of divorce completely dissolving their marital relationship.

“7. This defendant further alleges that by reason of the above and foregoing underlying agreement by and between the plaintiff and this defendant providing for the entry of an uncontested divorce decree in favor of the plaintiff and against the defendant and the consent of the defendant thereto, the said agreement dated May 21, 1936, is illegal, void as against public policy and therefore unenforcible.

“8. This defendant further alleges that by reason of the fact that the consideration for the execution and delivery of the said agreement dated May 21, 1936, was the plaintiff’s promise to secure a divorce and this defendant’s promise not to contest the same and to consent to the entry of the said divorce decree, the said agreement dated May 21, 1936, is illegal, void as against public policy and therefore unenforcible.

“9. This defendant further alleges that the provision of the said agreement releasing this defendant from his legal obligation to support the plaintiff is void as against public policy, invalidates the said agreement dated May 21, 1936, and that the same is, therefore, illegal, void as against public policy, and unenforcible.

“Wherefore, this defendant prays judgment against plaintiff for his costs of suit herein.” Thereupon plaintiff moved to strike the affidavit of defense. The motion was argued and the court struck the affidavit of defense and entered judgment against the defendant in the sum of $218.75.

This appeal was consolidated for hearing with the appeal in the case of Morrissey v. Morrissey, 299 Ill. App. 609 (Abst.).

The appeal brings before us the question as to whether the affidavit that was stricken states a good defense. The theory of defendant is:

“First. That if the essence of and the underlying consideration for a written agreement or even a portion of the consideration therefor, although not expressly stated therein, is the defendant’s promise to desist from contesting the plaintiff’s divorce action and to stand by and consent to the entry of a divorce decree, as though by default upon the dismissal of his original complaint for divorce, the agreement is void as against public policy and is, therefore, unenforcible.

‘ ‘Second. That if a contract settling property rights and providing for payment in lieu of alimony is made in contemplation of and to facilitate and is conditioned upon the dissolution of the marital relationship, the agreement violates the public policy of this state and is, therefore, illegal and unenforcible. ” In support of his contention defendant cites Hamilton v. Hamilton, 89 Ill. 349. There the plaintiff had instituted a suit for divorce. While the suit was pending the parties entered into a written agreement providing that the then husband would give to plaintiff a certain farm and that he would pay her in addition the sum of $500. The plaintiff agreed to unite with defendant in the conveyance of all of defendant’s other real estate (waiving her homestead and dower rights) to Wm. C. Sadler; and she further agreed to dissolve an injunction then in force against the defendant in the divorce suit and to dismiss her claim for alimony therein. She brought an action in assumpsit. The declaration set up the agreement and alleged that she complied with the contract; that she prosecuted to final decree her divorce suit and made no claim for alimony; that the farm was conveyed to her as agreed, plus $150 of the $500 that he agreed to pay, and that he refused to pay the balance, wherefore she prayed judgment for the balance. The defendant demurred to the declaration and the court sustained the demurrer and gave judgment for costs against plaintiff. On appeal the Supreme Court said (p. 351):

“The majority of the court, however,'are of opinion that the contract set out in the declaration is, in its essence and character, against public policy, and that it must be held invalid upon that ground. "While divorces are authorized by law, they ought not to be encouraged. In this contract there is no express agreement that the husband would not resist the application for a divorce, or that he would consent to a divorce, still, it is thought that to permit such a contract as this to be enforced in the courts, would open a door for the attainment of divorces by collusion, and upon this ground the decision of the court in sustaining the demurrer to the declaration ought to be sustained.” Two of the justices dissented. The severity of the rule announced in Hamilton v. Hamilton, supra, was somewhat relaxed in Shankland v. Shankland, 301 Ill. 524, where the court said (pp. 531-533): “There is, then, absolutely no reason why appellant ought not to recover the alimony provided for by this contract except the bare fact that the testimony shows that the contract was signed before the granting of the divorce. Had it been signed after the divorce decree was entered, or had it been confirmed by the decree of the court and its provisions made a part of the decree, there is no question but that the contract would have been a legal and enforceable contract. This whole record indicates that appellant is a high-class woman, and that is the estimation that appellee placed upon her himself in his contract. Through oversight or neglect of her attorney the contract was not made a part of the decree. We think that, inasmuch as she has performed this contract entirely upon her part, it would be a most inequitable thing for appellee to persist in not carrying out the remainder of the contract on his part. It is entirely performed except as to the part not performed by him.

“We do not think this contract is void because made prior to the decree for divorce. There are some States that hold through their courts that a contract made between parties before a decree for divorce is granted, for alimony, is generally void, and in Hamilton v. Hamilton, 89 Ill. 349, this court held that a contract in some respects similar to this was void because it was thought that to permit such a contract as there recited to be enforced in the courts would open a door for the attainment of divorces by collusion. We do not think, however, that the contract in question ought to be considered as on a par with the one in the case above cited. ... It will thus be seen that there are respectable authorities which hold that such a contract as the one entered into in this case is not necessarily void because it is entered into prior to and pending divorce proceedings. Where it is apparent that such a contract is entered into for the purpose of stimulating or inducing one party or the other to institute divorce proceedings, or that the same is for the purpose of purchasing a decree of separation, or amounts to collusion between the parties to secure a decree of divorce, such a contract ought to be, and is, deemed contrary to public policy and void.” It is obvious that a written agreement between a husband and wife entered into for the purpose of stimulating a divorce is against public policy and void. -Plaintiff, however, argues that the written agreement attached to the amended statement of claim does not show any illegal consideration and that the contract cannot be varied by any oral testimony as to preceding negotiations. The principle of law announced by plaintiff has no application to a situation such as is presented by the affidavit of defense in this case. It cannot logically be argued that where a contract is illegal or vicious, or contrary to public policy, the nature of the contract cannot be shown even though the same does not appear in the written agreement. In Henderson v. Palmer, 71 Ill. 579, a note secured by a mortgage was given in consideration of a promise by the payee to discontinue a prosecution for a felony. The Supreme Court (pp. 582, 583) said:

“The rule is fully recognized, that when a contract grows immediately out of, or is connected with an illegal or an immoral act, a court of justice will not lend its aid in its enforcement. . . .

“As a general rule, if any part of an entire consideration for a promise, or any part of an entire promise, be illegal, whether by statute or at common law, the whole contract is void. ‘If a part of the consideration is illegal, the whole consideration is void, because public policy will not permit a party to enforce a promise which he has obtained by an illegal act or an illegal promise, although he may have connected with this act or promise another which is legal. ’ Parsons on Contracts, vol. 1, p. 380. ’ ’ In Fields v. Brown, 188 Ill. 111, a lease was executed by the lessor for the undisclosed purpose of enabling the lessee to use the premises as a house of ill-fame, and the Supreme Court said (p. 115): “The lessee, in such case, even though in pari delicto with the lessor, ought not to be denied or deprived of the privilege of presenting the defense that the lease was illegal because of its being in violation of the public law of the State, for the defense is not allowed on the ground that the person presenting it is' entitled to relief, but, as we said in Goodrich v. Tenney, 144 Ill. 422, ‘upon principles of public policy and to conserve the public welfare.’ ” We have come to the conclusion that the fact that the written agreement does not on its face show that there was an agreement to stimulate the obtaining of the divorce decree does not prevent the defendant from setting that up as a defense. If he could not make that defense it would be equivalent to holding that any contract would be enforceable even though its real purpose or consideration was vicious, immoral or contrary to public policy.

Plaintiff’s motion to strike serves the same purpose as a demurrer and admits the truth of whatever is well pleaded. A mere reading of the affidavit of defense discloses that it constitutes a good defense. Hence the action of the court in striking the affidavit of defense and in entering judgment against defendant was erroneous. We, of course, do not know what the facts in the instant case are, other than as they are set up in the pleadings before us. It is common knowledge, however, that in divorce cases parties frequently agree on their property rights and appear in court and state their agreement before the chancellor. Indeed, that practice appears to be sanctioned by the Supreme Court. “Had it [the contract] been signed after the divorce decree was entered, or had it been confirmed by the decree of the court and its provisions made a part of the decree, there is no question but that the contract would have been a legal and enforceable contract.” (Shankland v. Shankland, supra, p. 531.) When this case goes back to the trial court it may be that in a reply plaintiff may be able to set up facts which will constitute a complete answer to the defense now presented. Whether or not the agreement was in fact entered into for the purpose of stimulating a divorce will depend on facts and circumstances introduced on a trial of the case.

For the reasons stated the judgment of the municipal court of Chicago is reversed, and the cause remanded, with directions to overrule plaintiff’s motion to strike defendant’s affidavit of defense, and for other proceedings not inconsistent with this opinion.

Reversed and remanded with directions.

John J. Sullivan and Friend, JJ., concur.


text:
    In re Petition of Leonard Miles et al., Appellees, v. Erick Glad, Appellant.
    Gen. No. 40,406.
    Opinion filed February 27, 1939.

      Gut C. Guerine, of Melrose Park, and Leslie J. Smith, Jr., of Chicago, for appellant; Gut C. Guerine, of counsel.
    No appearance for appellees.
   Mr. Presiding Justice Burke

delivered the opinion of the court.

Brick Glad filed his complaint, consisting of three counts, in the circuit court. The first count charged petitioners with assault and battery. The second and third counts were stricken. On a trial with a jury a general verdict was returned finding all of the defendants therein guilty and assessing plaintiff’s (Glad’s) damages at the sum of $4,500. The following special interrogatory was directed to the jury: “Were the defendants guilty of wilful and wanton conduct which was the proximate cause of the plaintiff’s injury,” which the jury answered in the affirmative. Judgment was entered on the verdict and subsequently a capias ad satisfaciendum issued and the sheriff took Leonard Miles, Forest Miles and Nelson Miles, judgment debtors and petitioners, into custody.

On April 27, 1938, judgment debtors Leonard Miles, Forest Miles and Nelson Miles filed the following petition in the county court of Cook county:

“The Petition of Leonard Miles, Nelson Miles and Forest Miles, respectfully represents:

‘ ‘ That this petitioner has been arrested under a writ of Ca. Sa., issued by the Sheriff of Cook County in favor of Brick Glad for the sum of Forty-five Hundred and no/100 Dollars and is now in the Custody of the Sheriff of said County of Cook, under and by virtue of said writ, and is desirous of releasing his body from such arrest or imprisonment by delivering up his property.

“Therefore he prays that such proceeding to that end may be had as are prescribed or required by the Laws of the State relating to insolvent debtors.” Petitioners did not file a sworn schedule of assets. At a hearing in the county court there was no substantial dispute as to the facts. On June 15, 1938, that court found that malice was not the gist of the action and released and discharged the petitioners from custody, and this appeal follows.

Petitioners have not filed any briefs in this court. It is manifest that malice is the gist of an action for assault and battery. While the interrogatory did not in express language find that malice was the gist of the action, we are of the opinion that in effect the interrogatory did so find. Prior to the amendment of 1935, sec. 5, ch. 77, Ill. Rev. Stat. (par. 5, ch. 77, Cahill’s Ill. St. 1933), provided:

“No execution shall issue against the body of the defendant, except when the judgment shall have been obtained for a tort committed by such defendant, or unless the defendant shall have been held to bail upon a writ of capias ad satisfaciendum [respondendum] as provided by law, or he shall refuse to deliver up his estate for the benefit of his creditors.” That section was amended in 1935, so that it now reads (sec. 5, ch. 77, Ill. Rev. Stat. 1937 [Jones Ill. Stats. Ann. 107.155]):

“No execution shall issue against the body of the defendant except when the judgment shall have been obtained for a tort committed by such defendant, and it shall appear from a special finding of the jury, or from a special finding by the court, if the case is tried by the court without a jury, that malice is the gist of the action, and except when the defendant shall refuse to deliver up his estate for the benefit of his creditors.” Section 2, ch. 72, Ill. Rev. Stat. 1937 [Jones Ill. Stats. Ann. 109.379], provides that when any person is imprisoned in any civil action when malice is not the gist of the action such person may be released from such imprisonment upon complying with the provisions of the act. Prior to the 1935 amendment to section 5, supra, a capias ad satisfaciendum could issue on any tort judgment. A defendant seeking relief under the Insolvent Debtors Act (ch. 72, Cahill’s Ill. St. 1933) could apply to the county court and that court would then determine whether malice was the gist of the action. Under the 1935 amendment to section 5 the clerk is not permitted to issue an execution against the body of a defendant except where the judgment has been obtained for a tort committed by such defendant and where it shall also appear that the jury or the court (if the case is tried without a jury) made a special finding that malice was the gist of the action. Hence, under the statute as amended (sec. 5, ch. 77, Ill. Rev. Stat. 1937 [Jones Ill. Stats. Ann. 107.155]), in a tort case the clerk is not permitted to issue an execution ad satisfaciendum in the absence of the special finding. If the clerk does issue an execution ad satisfaciendum and a defendant feels that such action was improper, his remedy is to apply to the court where the judgment was rendered to have such execution quashed. In the instant case, petitioners apparently misapprehended the purpose of the statute. A reading of their petition, which has been quoted, shows that they contemplated securing their release from custody by delivering up their property. In the case of White v. Youngblood, 367 Ill. 632, the court said (pp. 634-635):

“By filing his petition for discharge in the county court the petitioner recognized the validity of the process under which he was seized and imprisoned. The petitioner had his remedy in the suit in the superior court. . . . The Insolvent Debtors act relating to the procedure for a debtor’s discharge in a civil action when malice is not the gist of the action has not been amended. (Ill. Rev. Stat. 1937, p. 1778.) When malice is the gist of the action the act may not be invoked.” We are of the opinion that the action of the court in finding that malice was not the gist of the action and in discharging the petitioners from custody, was erroneous.

Therefore, the judgment of the county court of Cook county is reversed.

Judgment reversed.

John J. Sullivan and Friend, JJ., concur.