text:
    Material Service Corporation, Appellant, v. George W. Ford et al., Appellees.
    Gen. No. 32,855.

      Opinion filed November 19, 1928.
    Rehearing denied December 3, 1928.
    Oliver C. Heywood, for appellant.
    Daniel L. Madden and Roy C. Merrick, for appellees.
   Mr. Justice McSurely

delivered the opinion of the court.

. By this appeal complainant seeks the reversal of a decree dismissing for want of equity its bill of complaint whereby it sought to establish a subcontractor’s lien upon the premises owned by Ford and Parker, defendants, to the amount of $3,099.58.

March 28, 1924, defendants, Ford and Parker, owners of.certain real estate in Chicago, made a contract with J. C. Blakeslee to erect a building thereon. Blakeslee made an agreement with the complainant whereby it was to furnish stone, cement and sand to be used in the job. Construction of the building proceeded, but the subcontractor'lío t being paid filed this bill to enforce a lien for the materials furnished.

The cause was referred to a master in chancery, who after, hearing the evidence reported that the complainant was entitled to its lien as prayed for. Upon hearing the exceptions to this report the chancellor decreed that the bill be dismissed for want of equity. A number of .points are. argued in the briefs, but we shall notice only one of these, which, in our opinion, is controlling."

Was the bill filed within the statutory period of four months? Section 33 of the Mechanics’ Liens Act, Cahill’s St. ch. 82, If.33, provides that suit must be commenced by a subcontractor “within four months after the time that the final payment is due the subcontractor, laborer or party furnishing material.” Defendant claims that there was no work done nor material delivered to the premises at any time after June 7, 1924, while complainant contends that the evidence shows that there was mat|erial delivered on June 19th. Without narrating the variant testimony on this controverted point, we are inclined to hold that much the stronger evidence indicates that the defendant’s version is correct. Virtually all of the witnesses testify that all work was ended on June 7th. However, we do not deem it necessary to determine which was the correct date of the last delivery for the reason that complainant’s bill was filed October 21, 1924, which was after the four months’ statutory limitation had expired whether counted from June 7th or June 19th.

The argument of complainant is that it had an agreement with Blakeslee, the contractor, that its bills should be paid on the 10th of the month following the month of delivery, hence the bill for June deliveries would not be due until July 10th, and that counting from this date would bring the time of the filing of its bill — October 21 — within the statutory four months. Complainant invokes the language of the statute, namely, that the action must be commenced within four months ‘ ‘ after the time that the final payment is due the subcontractor.” Is final payment due when deliveries are completed or at the time that the subcontractor agrees with the contractor that the account may be paid?

This question was under consideration by another division of this court in George Green Lumber Co. v. Fendl, 246 Ill. App. 132, where it was held that the-final payment is due a subcontractor, within the meaning of section 33, Cahill’s St. ch. 82, if 33, at the date of the last delivery of material, regardless of any private arrangement between the contractor and the subcontractor extending the time of payment. Although complainant questions this opinion as not being in point, we are unable to distinguish it in any essential way from the instant case. As was said in that opinion, although there might be outstanding obligations as to the accounts between the contractor and the subcontractor, “all rights of the petitioner to a subcontractor’s lien were at an end when the four months, after the last delivery, had expired. There is nothing in the Lien Act that suggests that the subcontractor’s lien time may be extended beyond that of the original contractor. Eeasonably considered, the subcontractor’s rights are within and not greater than those of the original contractor. Otherwise, by an understanding between them, there might be as against the owner an outstanding right to a subcontractor’s lien extending to the full period of the particular limitations, 5 or 10 years.”

This is the only construction of the statute that can reasonably be made, otherwise, a materialman might sell material on five years’ credit on an open account or take a note or any other promise to pay in the future and the owner of the premises would have no means of knowing when the rights of the subcontractor to a lien had expired.

We do not read the cases cited by appellant as deciding to the contrary, nor do we find that the precise point has been passed upon by our Supreme Court or in any other reported decisions- in this State except the George Green Lumber Co. case above referred to.

We do not deem it necessary to discuss the other points presented. From what we have said it follows that the decree of the chancellor dismissing the bill was proper and it is affirmed.

Affirmed.

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


source: Caselaw Access Project

author: Mr. Justice McSurely

license: Public Domain

text:
    Consumers Petroleum Company, Appellee, v. Henry Sugar and Joseph Siegel, Trading as Roosevelt Baths & Hotel, Defendants. Joseph Siegel, Appellant.
    Gen. No. 32,871.
    Opinion filed November 19, 1928.
    Rehearing denied December 3, 1928.
    Koven & Perlman, for appellant.
    William Jaffe, for appellee.
   Mr. Justice McSurely

delivered the opinion of the court.

By this appeal Joseph Siegel seeks the reversal of a judgment against him of $1,866.78, in an action tried by the court wherein plaintiff sought to recover payment for fuel oil claimed to have been sold and delivered to the defendants as partners. Henry Sugar was not served with summons. The record does not show that any summons was ever issued against him nor did he appear in the case.

By his affidavit of merits Joseph Siegel denied that he had purchased the merchandise from plaintiff and denied that he was ever engaged in business with Sugar under the name of Roosevelt Baths & Hotel, and asserted that this was a trade name used by a corporation known as the Kedzie Avenue Building Corporation, which corporation was the purchaser of the merchandise described in plaintiff’s statement of claim,

The evidence showed that Siegel with Sugar and two other parties formed a corporation under the name of Kedzie Avenue Building Corporation, February 11, 1926, for the purpose of owning, acquiring, erecting and leasing a building which was specially equipped as a public bathhouse and hotel. There were several stores on the ground floor leased to tenants. In the summer of 1926, when the building was in the process of construction, Mr. Scherman, president of the plaintiff company, had a conversation with Siegel on the sidewalk with reference to plaintiff’s selling oil for the building. Scherman testified that Siegel told him that it was a little too early, he was not ready to buy, “and so on and so forth, and that as soon as he was ready, he’d advise me to see his partner.”

Siegel’s version of the conversation .is that while they were putting a tank under the sidewalk, Scherman came by and spoke to him with reference to oil. Siegel said he told him that Mr. Sugar was the secretary and treasurer of the company and did all the buying; that he himself had to do only with the building end of it, and that anything that was to be bought was done by Sugar; that Scherman asked Siegel what part he was taking in the matter and Siegel replied that he was president of the company. Siegel’s version of the conversation was corroborated by another witness.

The court then permitted Scherman, plaintiff’s president, to testify to conversations with Sugar, and the court seems to have based its conclusion that there was a partnership between Siegel and Sugar on these conversations. Siegel had by a proper plea put in issue the existence of a partnership between him and Sugar. Statements made by one of the alleged partners, who was not served with summons and who did not appear in the case, are not admissible except where there is sufficient evidence to raise a fair presumption of partnership. Conlan v. Mead, 172 Ill. 13. In the instant case, however, there was no evidence making out a prima facie case of partnership. Siegel, supported by another witness, testified that he informed plaintiff’s president of the corporation. The statements made by Sugar were incompetent. Among the cases so holding under similar circumstances are Burt Zaiser Co. v. Claussen, 208 Ill. App. 378; Kennedy v. Hall, 68 Ill. 165; Smith v. Hulett, 65 Ill. 495; Montgomery v. Black, 124 Ill. 57; Gardner v. Northwestern Mfg. Co., 52 Ill. 367.

There was nothing in the surrounding circumstances to mislead plaintiff as to the identity of the buyer of the oil. The Kedzie Avenue Building Corporation rented the stores and furnished heat. The oil purchased from plaintiff was used to heat) the entire building including these stores. The corporation was also engaged in conducting a bathhouse business under the trade name of the Roosevelt Baths & Hotel. The account with plaintiff showing the purchasers of oil was kept in the ledger of the Kedzie Avenue Building Corporation. Delivery of oil to the premises took place in the spring of the year following the summer of the conversation between Scherman and Siegel. There is point in the suggestion that Scherman, in his anxiety to obtain an order, commenced delivering oil to the premises without making any investigation as to who was the actual buyer.

For the reasons indicated the judgment is reversed and' as the case was tried by the court, judgment that plaintiff take nothing will be entered in this court.

Reversed and judgment of nil capiat entered here.

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


author: Mr. Justice Matchett

text:
    Denney & Company, Defendant in Error, v. Wabash Railway Company, Plaintiff in Error.
    Gen. No. 32,592.
    Opinion filed November 19, 1928.
    Rehearing denied December 3, 1928.
    John Gibson Hale, for plaintiff in error.
    O’Connell, McGlinn & O’Gallagher, for defendant in error; Daniel O’Connell and Leo N. McGlinn, of counsel.
   Mr. Justice Matchett

delivered the opinion of the court.

By this writ of error the railway company, a common carrier, defendant in the trial court, seeks to reverse a judgment for the plaintiff in the sum of $292.62, entered upon the finding of the court.

The facts in the case are practically uncontradicted and are in the record by stipulation of the parties. The plaintiff is the holder of a bill of lading, which covers a shipment of 742 bushels of yellow turnips in bulk, weighing 37,100 pounds. The shipment was in good condition and free from frost when delivered to and accepted by the initial carrier (the Canadian Pacific Railway Company) at Moffatt, Ontario, Canada, on January 10, 1925, for transportation to Chicago, Illinois. The shipment was routed via Detroit, Michigan, and Wabash Railway Company from Detroit to Chicago, arrived at Chicago on Wabash Railway Company at 2:20 a. m., January 15,1925, and was placed for unloading at 7 o’clock a. m. the same day.

The shipment was inspected on the day of its arrival by inspectors for plaintiff and defendant and found to be in a frozen condition by which the commodity was damaged to the amount of the judgment.

The car was transported on schedule with the ventilators closed, plugs in and drain pipes plugged throughout the transit. The defendant received the car at Detroit and delivered it to Chicago under the same seals. The car was not wrecked, roughly handled or opened until after notice of arrival at Chicago was given and was not interfered with at Chicago or handled in any way, or the commodity moved or otherwise so as to cause damage unless from failure to heat the car.

The defendant has never provided for heater service in its tariff and has never rendered such service to such shipments. Heater service in the United States has never been provided for by the railroads in their tariffs or actually rendered except upon shipments originating at or destined to points west of the Missouri River, and where such service is provided the tariffs require that written request of the shippers for such service be indorsed on the bill of lading.

The inspection report, which is in evidence by agreement, shows that the seals were broken on the cars in Chicago on January 15, 1925; that the hatches, plugs and drain pipes were closed; that there was no ice or heater; that the temperature outside was 25 degrees, at the top of the car 34 degrees, and at the bottom of the car 32 degrees; that, the weather was clear; that the condition of the car was good; that the car was equipped with false floors; that the turnips were of fair grade and mature and that there was practically no decay; that the same were of good quality and in good condition with the exception that one layer of the turnips on the floor between doors was frozen solid with ice; that there was straw on the false floor and up the side at the doorways, and there were also burlap bags packed for protection from freezing and the doorway was boarded úp 4 feet high.

The bill of lading issued by the Canadian Pacific Railway at Moffatt, Ontario, provided, “inspection allowed, heater service not required, OK of deterioration account frost, not perishable, standard ventilation.”

It also provided that the carrier should not be liable for loss, damage or delay to any of the goods described caused by the act of God, the King’s or public enemies, riots, strikes, defect or inherent vice in the goods or the act or default of the shipper or owner; that goods not removed by the party entitled to receive them within 48 hours, or if bonded goods within 72 hours, after written notice had been sent or given, might be kept in car, station or place of delivery or warehouse of the carrier, subject to a reasonable charge for storage and to the carrier’s responsibility as warehouseman only.

At the time this shipment was made, the tariff of the defendant railway company, filed with the Interstate Commerce Commission covering shipments between Moffatt, Ontario, and Chicago, Illinois, contained no rate of tariff or charge to be exacted by railroads for heater service or service against frost upon shipments moving between these points. The consolidated freight classification filed with the Interstate Commerce Commission at Washington, which was effective at the time of this shipment, contained certain provisions respecting heaters or protection against frost or cold, and these rules provided that ratings for freight in carloads should not obligate the carriers to furnish heated cars nor to maintain heat in the cars-for freight requiring such protection, except under conditions which the carrier’s tariff would provide; that stoves used in cars, and the fittings and fuel therefor, must be furnished by the shippers and that the shippers must provide for men to care for the fires.

Propositions of law were submitted by the parties! The court held that a common carrier was obligated to protect a perishable shipment in its possession against frost or freezing by the best method proven to science consistent with the carrier’s employment and to so protect it independent of an express agreement to do so; that there was a duty imposed upon a carrier to publish a schedule covering charges for heating a car or protecting it against cold, and that the failure of the carrier to publish such a schedule did not relieve the carrier of its duty to protect goods of a perishable nature in its possession as a common carrier, and apparently upon such theory, the court held the defendant liable.

We think the court erred in so holding and that these propositions of law are not applicable to the facts which appear in this record. We have so held recently in the case of Northwestern Fruit Exchange v. Erie R. Co., 248 Ill. App. 193, following the case of W. H. Blodget Co. v. New York Cent. R. Co., — Mass. —, 159 N. E. 45.

Plaintiff says that decisions of the Interstate Commerce Commission in Memphis Freight Bureau v. Kansas City Southern, 17 I. C. C. 90; Gateway Produce Co. v. American Ry. Express Co., 61 I. C. C. 347; and Mitoue & Co. v. Director General, 81 I. C. C. 489, were not called to our attention in that case, and that if this had been done the'decision would have been otherwise. We have examined these decisions, but do not regard them as at all controlling. In those cases the commission held in effect that where no tariff rate for refrigeration had been filed but where the carrier had made a charge for the same which the shipper had paid, the commission could review this charge as to its reasonableness.

Plaintiff also cites Chicago & N. W. Ry. Co. v. C. C. Whitnack Produce Co., 258 U. S. 369; Freedman v. Erie R. Co., 246 Ill. App. 479; Lino v. Northivestern Pac. R. Co., 246 Ill. App. 451, to the point that where goods are delivered to the initial carrier in good condition and are delivered by the delivering carrier in a damaged condition at the destination, the delivering carrier is presumed to have caused the damage. This proposition, however, being conceded, is not controlling here. The stipulation of the parties is to the effect that defendant performed all its duties except to furnish heat. Defendant was not obligated to furnish heat, and there is therefore no liability.

The defendant in error heretofore made a motion to dismiss this writ for the reason that the record discloses that an appeal had been prayed by plaintiff and allowed and a bond filed, and it was urged that this writ might not be prosecuted in this court while the appeal was undisposed of. The motion was denied but is again reargued in the briefs. We adhere to our former decision.

For the reasons indicated the judgment of the trial court will be reversed.

Reversed.

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


text:
    Daniel D. Murphy, Appellant, v. Thomas J. Houston et al., Civil Service Commissioners of the City of Chicago, Appellees.
    Gen. No. 32,606.

      Opinion filed November 19, 1928.
    Rehearing denied and opinion modified December 3, 1928.
    Taylor, Miller, Busch & Boyden, for appellant.
    Samuel A. Ettelson, Corporation Counsel, Francis J. Vurpillat, Assistant Corporation Counsel, and John F. Tyrrell, for appellees; Francis J. Vurpillat, of counsel.
   Mr. Justice Matchett

delivered the opinion of the court.

This is an appeal from an order of the circuit court quashing a writ of certiorari theretofore issued upon petition of the appellant, Daniel D. Murphy, to secure a review of a record of the civil service commission of the city of Chicago, which on August 13, 1927, found the' petitioner guilty of certain charges filed by the superintendent of police of the city of Chicago on June 29, 1927, and ordered that he be discharged from the service.

Murphy, the record shows, entered the classified civil service of the city of Chicago as a patrolman some 20 years prior to the filing of the charges. He was promoted by civil service examinations successively until he attained the position of captain. No other charge during the period of his service was preferred against him. He was never reprimanded.

It is urged for reversal that the record and proceedings failed to show that the civil service commissioners had jurisdiction to enter the finding, (1) because the record failed to show cause was alleged or proved sufficient to justify the finding and removal of the petitioner ; (2) because the record failed to show petitioner was afforded an opportunity to be heard in his own defense as that phrase is used in section 12 of the Civil Service Act (see Cahill’s St. 1927, ch. 24, ft 697); (3) because the record failed to show jurisdiction to enter the finding, in that it showed the civil service commissioners proceeded contrary to the essential requirements of the law.

Said section 12 of the Civil Service Act, Cahill’s St. ch. 24,1f 697, provides that an employee holding a position with the city of Chicago under the provisions of that act may not be removed “except for cause, upon written charges and after an opportunity to be heard in his own defense. ’ ’

The leading case construing this section of the Civil Service Act is Funkhouser v. Coffin, 301 Ill. 257, in which the rules of law applicable are stated after a review of the authorities. It was there held that the only judgment to be rendered in a proceeding of this kind is either that the writ be quashed or the record of the proceedings be quashed, and it was said the purpose of the common-law writ of certiorari “is to have the entire record of the inferior body brought before the court that it may be inspected, to determine whether it had jurisdiction, or had exceeded its jurisdiction, or had failed to proceed according to the essential requirements of 'the law, where no appeal or other direct means of reviewing the proceeding is given. ’ ’

Upon the return of the record of the inferior body to the court which issues the writ, the trial is had upon the record, it being improper to form any issue of fact or to hear or consider evidence relating to the original proceeding as heard on the trial. The superior tribunal, upon an inspection of the record alone, determines whether the inferior tribunal has exceeded its jurisdiction or has otherwise proceeded in violation of the law. The Supreme Court said:

“There is no presumption of jurisdiction in favor of a body exercising a limited or statutory jurisdiction. Nothing is taken by intendment in favor of such jurisdiction but the.facts upon which the jurisdiction is founded must appear in the record * * * ‘and the record must show that the board acted upon evidence and contain the testimony upon which the decision was based, in order that the court may determine whether there was any evidence fairly tending to sustain the order/ ”

The finding there that the accused was guilty “as charged in the within and foregoing charges” was held to be a mere conclusion of law, stating no fact by which the court was able to see that the conclusion was true.

The court also said, citing Troxell v. Dick, 216 Ill. 98, that a gwosi-judicial tribunal of inferior jurisdiction must recite the facts, or preserve the facts themselves, upon which its jurisdiction depends. A recital, for instance, that due notice was given is not sufficient, such recital being a mere conclusion of law, but facts must be stated from which the court is able to see that the conclusion is true. The substance of the evidence should be given and not conclusions drawn therefrom. The court further said:

“The holdings of this court are that the return to a common law writ of certiorari must show by affirmative evidence the jurisdiction of the tribunal passing upon a case removing a person from office, and must show by the facts recited that the tribunal so acting-had jurisdiction and authority so to do.”

And further: “Such inferior tribunals do not possess unlimited and uncontrolled jurisdiction in the exercise of their powers and can not act arbitrarily in such exercise.”

Subsequent decisions of the Supreme Court and many decisions of the Appellate Courts of this State follow Funkhouser v. Coffin, supra, and we think it may be said that little, if anything, since has been added to the law as announced in that decision.

An examination of the charges discloses that the petitioner, Murphy, was alleged to be guilty of violating provisions of rules 236 and 289 of the police department.

Rule 236 provides in substance that the right of members of the police department to entertain political opinions and the right of elective franchise are sacred and inviolate, but no members should be .delegates to or members of any political or partisan convention, nor should they take part in any political campaign nor make or solicit contributions to any political party, club or association, or for any political purpose.

The charges specified as to rule 236 were that petitioner suffered, permitted and directed police officers, patrolmen and sergeants under his command to take part in political campaigns by soliciting pledge cards, in putting up political banners and removing and causing to be removed political banners, pictures and portraits of other candidates in the district under his.command. The specification further alleged that on March 3, 1927, in a confectionery and cigar store located at 753 North Clark Street, a representative "of the Chicago Daily Tribune was counting the straw votes he had taken for the candidates for the office of Mayor of the city of Chicago; that Captain Murphy followed him in, and in the presence and hearing of several voters and persons standing in the store, Murphy said, “There is nothing but Gf- damned Thompson hoodlums in this place,” or words of like and similar import; that he then and there threatened one of the customers therein to take him for a ride if he did not do something and get to work.

Another specification under this rule avers that Captain Murphy attended and participated in political meetings and activities as a partisan and supporter during the mayoralty campaign in the city of Chicago, prior to and including election day, April 5,1927, thereby intending and attempting to influence, persuade and coerce in person and by reason of his official character as captain of police, the citizens and voters of and .in his district.

Another specification alleges that Captain Murphy suffered and permitted houses of prostitution to be opr erated in his police district and suffered and permitted solicitation and roping for prostitution on the streets of his district, and suffered and permitted the operation of handbooks, gambling and the sale and dispens-. ing of intoxicating liquors in soft drink parlors in his district.

Specification 4 alleges the inability of Captain Murphy to prevent, and inefficiency in the prevention of, prostitution, the operation of places of prostitution, the solicitation and roping for prostitution on the streets of the district under his command, and further alleges his inability to prevent, and inefficiency in the prevention of, handbook making, gambling and the sale and dispensing of intoxicating liquors in the soft drink parlors in the district under his command.

The return recites that the civil service commission met at the city hall in the city of Chicago on August 11, 1927, for the purpose of investigating these charges and proceeded to hear and did hear testimony of the witnesses, a record of which is preserved and on file in the office of the commission, filed as a part of the return; that upon the conclusion of all the evidence and argument, the commission being fully advised, found that the charges as hereinbefore enumerated were filed against Captain Murphy in due form of law on July 5, 1927, and also the specifications as herein-before recited. It further shows that thereafter due notice was served upon Murphy by delivering a copy of the charges to him and informing him that these charges had been filed against him before the civil service commission by the superintendent of police under section 12 of the Civil Service Act, Cahill’s St. ch. 24, ¶ 697, and that a hearing had been ordered to be had on these charges in room 612 of the city hall on July 11, 1927, at 10 o’clock a. m., at which time and place he might appear and be heard in his defense; that the cause was continued from time to time until August 11, 1927.

The return further shows that the charges were served more than five days prior to the investigation; that Captain Murphy appeared in person and was represented by counsel; that he and his counsel were present throughout and participated in the examination of witnesses; that all the witnesses were duly sworn and testified; that on July 5, 1927, Murphy was a captain of the department of police of Chicago; that the commission had jurisdiction over the subject matter and of the person of Daniel D. Murphy, and from a consideration of all the evidence before them the commission found “the said Daniel D. Murphy guilty of the following: Violation of the following rules and regulations of the Department of Police of the City of Chicago, to wit.” Thereafter is recited the four charges in substanice as hereinbefore set forth, to' gether with the specifications under the charges, and the return then further states:

“Wherefore the Civil Service Commission finds the said Daniel D. Murphy guilty of—
“Violation of rule 236 (Bight to entertain Political Opinions) ;
“Conduct unbecoming a police officer or an employee of the police department;
“Neglect of duty;
“Incapacity and inefficiency in the service; as alleged in the foregoing charges and by reason of which finding of guilt, it is ordered that the said Daniel D. Murphy be and is hereby ordered discharged from the position of Captain, Department of Police, and from the service of the City of Chicago. ’ ’

A certificate attached to the return is signed by all the commissioners and states “that the foregoing is a true, full and complete record of the proceedings.”

The respondents contend .that the evidence taken on the hearing, whether returned with the record or not, may not be considered as an essential part of the return and that the reviewing court may not lawfully determine from the transcript of the evidence whether the commission exceeded its jurisdiction or proceeded according to the law. It is contended it is only necessary that the commission recite the facts upon which its jurisdiction depends and that it is only when these facts do not appear in the record that evidence of them sufficient to determine questions of jurisdiction of the inferior tribunal may be considered.

We do not accede to the supposed distinction made between the record and evidence. The civil service commission is not a common-law tribunal. It is not in any sense a court of record. Distinctions between bills of exception and common-law records may not be properly applied to its records. The record of the proceedings of the commission appears from the return made, and it may or may not include the evidence taken. It may, in lieu of the evidence, return such findings as will affirmatively establish its jurisdiction to make the order reviewed, but when, as hore, the commission returns specific findings and also the evidence, the reviewing court may examine both, not for the purpose of weighing the evidence upon any material issue of fact, but in order to determine (1) whether the commission had jurisdiction; (2) whether it exceeded its jurisdiction; (3) whether there was any evidence tending to prove the charges made; and (4) whether the proceedings were conducted according to or in violation of the law.

We cannot agree to the contention of the commission that, having examined the evidence for the purpose of determining whether evidence was taken, we may not further consider the same for the purpose of determining other jurisdictional facts. We may suppose a case in which only evidence, wholly immaterial and wholly unrelated to any of the charges preferred, has been taken, or we may suppose a case in which evidence has been submitted tending to establish the charges made, while all competent and material evidence offered by the accused has been arbitrarily excluded. The provision of the statute requiring a discharge to be made only after a hearing, etc., would become a mere travesty if a superior tribunal could not quash such a record. The purpose of the Civil Service Law, Cahill’s St. ch. 24, ¶ 685 et seq., would be entirely thwarted by such a proceeding. It was the design of the legislature in the enactment of this statute to provide a mode of trial which would assure to accused employees substantial justice, not according to the technicalities of the common law, but accordng to right and justice, irrespective of legal technicalities.

The petitioner says that the charges do not state a cause for removal, to which respondents reply that the commission determines what is cause for removal and, moreover, that the charges were based on rules of the department of which the petitioner had knowledge.

While it is true that it is for the commission to decide what is cause for removal, it may not make an arbitrary and unreasonable rule in this respect. In Andrews v. King, 77 Me. 224, a statute provided that an employee might not be removed except for cause. The court held cause to mean some substantial shortcoming which renders continuance in his office or employment in some way detrimental to the discipline and efficiency of the service and something which the law and a sound public opinion recognize as a good cause for his not longer occupying the place. This statement of the rule seems to be in harmony with the authorities. Throop on Public Officers; City of Chicago v. Condell, 124 Ill. App. 64, reversed on a different point in City of Chicago v. Condell, 224 Ill. 595; Heaney v. City of Chicago, 117 Ill. App. 405; Joyce v. City of Chicago, 120 Ill. App. 398, 403, affirmed in 216 Ill. 466; City of Chicago v. Gillen, 124 Ill. App. 210; Ramsay v. Shelton, 329 Ill. 432; State ex rel. Gill v. Common Council of Watertown, 9 Wis. 229.

Here these charges were not formulated with the precision that might be required in a common-law pleading or an indictment, but they were, we think, sufficient to apprise the petitioner of the nature of the matters alleged against him. As we will hereafter point out, the allegation as to one charge did not state a cause sufficient to justify removal, but as to the others, while informal, the same were in substance sufficient.

The return fails to affirmatively show that all witnesses for defendants were heard, and it is argued that the proceeding was contrary to law in that material evidence offered in petitioner’s behalf was excluded. However, we think the facts which petitioner sought to establish by these witnesses were proved by others and are uncontradicted in the record, and we therefore conclude that this particular ruling of the commission, while technically contrary to law, cannot be said to have resulted in substantial injustice.

The controlling question in the case is whether there is any evidence in the return from which the commission could reasonably find that Captain Murphy was guilty of conduct which would justify the commission in the finding and order for his discharge. As to the first specification, one Levantis testified that during the mayoralty campaign Captain Murphy entered a cigar store at 753 North Clark Street where a representative of the Chicago Tribune was conducting a poll, and there made the statement, ‘ ‘ There is nothing but Gf— damned Thompson hoodlums in this place,” and that Captain Murphy said to him that he was “a hell of a business man” and his place was nothing hut a “Gf— damned Thompson joint.” He says that a customer named Dunsworth was there and that ‘ Captain Murphy called Dunsworth a Thompson hoodlum and said he would take him for a ride. ’ ’ This witness also testified that he asked Captain Murphy for a permit to play cards, but the Captain said, “I can do nothing for you. ’ ’

Dunsworth, who was secretary of the America First William Hale Thompson Club, testified that while Captain Murphy was in the cigar store at this time he made no such remarks, and on cross-examination stated, “I was for Thompson then and I am still for Thompson, but I don’t believe in dragging a man down with a bunch of lies.”

If we were permitted to weigh the evidence, it would not be difficult to decide that these allegations were not proved; but with that we have nothing to do, as it is not for the reviewing court in this proceeding to weigh the evidence. However, if it is conceded that these remarks were made, we do not think the commission could reasonably find therefrom that Captain Murphy violated rule 236, which in substance provides that members of the police department shall not be delegates to or members of any political or partisan convention, or take part in any political campaign, or make or solicit contributions to any political party, club or association, or for any political purpose.

As to other alleged violations of this rule, there was evidence in the record tending to show that while the campaign was in progress certain police officers serving in the district took part in the political campaign by putting up pictures of one of the candidates and causing pictures and portraits.of the other candidate to be removed and in other ways. This testimony was objected to when offered on the ground that there was no proof that Captain Murphy had knowledge of this conduct of these officials. The attorney prosecuting the charges thereupon promised that this. connection would thereafter be shown. This was not done, so that as a matter of fact there is no evidence in the record from which the commission could reasonably find that this conduct on the part of these officers was with the consent, approval or connivance of Captain Murphy.

As to the specification that" Captain Murphy attended and participated in political meetings and activities as a partisan and supporter during the mayoralty campaign, thereby intending and attempting to influence, persuade and coerce in person and by reason of his official character the citizens and voters of his district, the evidence of one Pappas was given. He said that he was at a meeting in the North Side Turner Hall March 29, 1927, and that there was another meeting — a Democratic meeting — in the hall. He says that he saw Captain Murphy standing at the door and that “they” broke up the meeting he went to, which was a meeting of the Creek-American Republican Club; that the Creek-American Club was supposed to have the hall on the second floor; that he went up there and saw Captain Murphy standing at the door, and he, Pappas, turned around and went- away; that Captain Murphy was in uniform; that there were other police officers standing at the door and telling the people to go inside; that the meeting inside was a Democratic meeting; that there was a big crowd there and Captain Murphy was there making them move along; that Captain Murphy did nothing else and he did not talk to the witness.

Captain Murphy testified with reference to this incident that he was present at the meeting doing police duty; that there was an awful crowd in the North Side Turner Hall on that occasion; that when the large hall upstairs was filled there was a smaller hall downstairs and later he had to stop people going in there; that the halls were not large; that he had to call for extra men and station them on the fire escapes; that he found some of the fire escapes closed and caused them to be opened; that he attended the John Dill Robertson meeting and the Thompson meeting in North Side Turner Hall and the Thompson meeting in the Medinah Temple; that he had difficulty getting in and had to practically force his way into the building and stayed there until the meeting was over. He says he went to political meetings at the Furniture Mart and other places in the district; that he did not participate in the Dever meeting in the North Side Turner Hall; that it was in his police district and it was his duty to be there; that he sometimes wore a uniform at these meetings and sometimes did not. Counsel for the commission in argument cite purported testimony of Pappas and one Davis which it is urged tend to sustain these charges, but the record fails to disclose the' supposed evidence.

The evidence being as recited, we think it must be held that there is no evidence from which the commission could reasonably find Captain Murphy guilty of this charge.

As to the further charges that Captain Murphy suffered and permitted houses of prostitution to be operated in his police district, permitted solicitation and roping for prostitution on the streets in the district, and permitted the operation of handbooks and g*ambling and the sale and dispensing of intoxicating liquors in soft drink parlors in the district, and that he was unable to prevent, and inefficient in the prevention of, prostitution, the operation of places of prostitution, the solicitation and roping for prostitution on the streets in his district; that he was unable to prevent, and inefficient in the prevention of, handbook making, gambling and the sale and dispensing of intoxicating liquors in soft drink parlors in his district, the evidence shows without dispute that the boundaries of the East Chicago Avénue police district are the river on the south, Division Street on the north, the north branch of the Chicago River on the west and the lake on the east, and that it is a very populous district.

The evidence against the petitioner as to conditions in his district was given by Charles E. Egan, a lieutenant of police, who said that he made an investigation on vice conditions (upon what date is not stated) and that he found open prostitution with solicitation on the streets and made some raids on Grand Avenue, North Clark Street, Chicago Avenue and State Street; that on enumerated dates on West Grand Avenue, West Ohio Street, North Clark Street, North State Street, Bush Street, West Erie Street and North Dearborn Street he found various houses of prostitution and gambling and made arrests. He said he had been on the police force for 13 years but never had been assigned to the Chicago Avenue station and knew nothing of the Chicago Avenue district or its reputation; that this was the first time he had been assigned to vice. He said that all the police could do was to get out, keep out and be vigilant and whenever persons were seen plying their illegal operations to arrest and bring them in; that he did not know of anything else that could be done. There is no evidence that the persons arrested were convicted and evidence as to the disposition of the cases was excluded.

The evidence shows without contradiction that during the term of Captain Murphy at the East Chicago Avenue station he made about 1,290 raids on vice, gambling and liquor and that in these raids from one man and one woman to seventy-five men and women were arrested. He testified in detail to the character of the population of this district, showing that the district when he took charge was largely given over to vice and crime; that it was a rooming-house district where it was exceedingly difficult to get evidence; that the force under his command was insufficient to properly patrol this district so as to entirely wipe out the prevalent vice and crime. As to most of the places described in Lieutenant Egan’s testimony, the record shows that while Captain Murphy was in charge of this district arrests were repeatedly made at these places; that at times when making raids Captain Murphy had been restrained by injunctions of the court, for instance, as to a place at 500 North Clark Street an injunction had been issued before Captain Murphy was assigned to the district, and in spite of it he caused this place to be raided on several occasions; that in the first raids he found nothing; that there were hidden openings in the walls leading into the basement and intricate hiding places; that he had broken down doors and frequently spent more than two hours searching without avail; that as to 538 North Clark Street, he was before Judge Sullivan three times on a contempt charge; that it was an organized house; that he told them to keep the girls away from there; that he continued to go in and search the place; and that when he was held a second time on a contempt charge he finally quit.

In view of this uncontradicted evidence and of the character. of this district, as established by the evidence, we think it cannot he said on this record that there is evidence tending to show that Captain Murphy was inefficient or that he tolerated or condoned in any way the vice and crime which was rampant in the district, hut on the contrary that he was vigilant and efficient, earnestly endeavoring, in so far as his limited force would permit, to keep the district clean and enforce the law. There is no evidence in the record from which the commission could reasonably or justly find that Captain Murphy at any time, either with knowledge or by reason of negligence, failed to maintain and enforce the law in this district to the best of his ability with the forces which he had at his command.

To permit a record like this to stand would amount to a nullification of section 12 of the Civil Service Law, Cahill’s St. ch. 24, if 697. There is not a scintilla of evidence tending to show any dereliction on the part of Captain Murphy, but on the contrary there is evidence tending to show a diligent, earnest, effective attempt in good faith to perform his duty. It follows that the record of the civil service commission should have been quashed. The order of the circuit court quashing the writ will therefore be reversed and the cause remanded with directions to enter an order in accordance with the views expressed in this opinion.

Reversed and remanded with directors

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


text:
    Blackstone Shop, Appellee, v. Samuel M. Ashman and Mrs. Samuel M. Ashman, Appellants.
    Gen. No. 32,702.

      Opinion filed November 19, 1928.
    Blum & Jacobson and Klaas & Porter, for appellants; Harry H. Porter and Martin S. Gordon, of counsel.
    Aaron Soble, for appellee.
   Mr. Justice Matchett

delivered the opinion of the court.

This appeal is by the defendants, husband and wife, who seek to reverse a judgment in the sum of $175 entered against them upon the finding of the court.. The bill of exceptions has heretofore been stricken, and we may therefore consider only such errors as are assigned and argued upon the common-law record.

The statement of claim alleged that the defendants were husband and wife, living together in the city of Chicago, and that on August 19, 1927, Mrs.' Ashman purchased from the plaintiff a blue velour coat at the agreed price of $175 and had the same altered at the agreed price of $10; that said coat after it was altered was delivered to the said defendants who refused to accept it, and that the coat was held by the plaintiff as bailee for the defendants.

In another paragraph it is alleged that the coat constituted a family expense within the purview of paragraph 15 of chapter 68 of Cahill’s Illinois Revised Statutes; that repeated requests for the payment had been made, which were refused.

The affidavit of merits admits defendants were husband and wife living together, but denies that Mrs. Ashman purchased the coat at the alleged price; denies that it was altered at their request for which there was to be a charge of $10, and states that not having ordered the coat defendants refused to accept the same. The record shows a motion in arrest of judgment by defendants, which was overruled.

It is argued for the defendants that the statement of claim failed to state a good cause of action against the husband, Samuel A. Ashman, and that the motion in arrest of judgment should therefore have been allowed. On the other hand, the plaintiff contends that since the bill of exceptions has been stricken, this point does not arise on the record for the reason, as it is contended, that the motion in arrest of judgment must be preserved by bill of exceptions. .In support of this contention Greenwell v. Hess, 298 Ill. 459; Commissioners of Savannah & York Drain. Dist. v. De La Vergne, 298 Ill. 480, are cited and relied on. Theire is language in the opinions in these cases that would seem to be broad enough to sustain this view.

In People v. Ross, 243 Ill. App. 427, the Appellate Court for the fourth district reviews the authorities, including Mix v. Nettleton, 29 Ill. 245; Nichols v. People, 40 Ill. 395; People v. Depew, 237 Ill. 574; Horn v. Young, 171 Ill. App. 284, and points out that the question as to whether a motion in arrest of judgment should be preserved by bill' of exceptions was not involved in either Greenwell v. Hess or Commissioners of Savannah & York Drain. Dist. v. De La Vergne, supra, and concludes that the statements in the opinions filed in those cases are too broad. With this conclusion we agree. We think therefore the question of whether the statement of claim states a cause of action may be properly argued upon this record.

It is urged that the statement is defective and insufficient to set forth a family expense for which the husband is liable, because it appears therefrom that the coat in question was not actually received into and kept for use in the family, and Robertson v. Warden, 197 111. App. 478, is cited to that point. In that case the plaintiff sought to recover against the defendant husband for the price of a dress made for the wife upon her order and sent to her residence and by her returned to the plaintiff for alterations. The plaintiff made the alterations and sent it again to the wife, who refused to accept it. This court, on the authority of Fitzgerald v. McCarty, 55 Iowa 702, 705, and Straight v. McKay, 15 Colo. App. 60, 60 Pac. 1106, held that it was not sufficient to charge a husband under the statute to show that an article was purchased for the wife on'account of and with the intent that it be used in the family, if it was in fact never used therein or by any member of the family. The judgment for plaintiff was reversed.

Plaintiff cites Whitney, Inc. v. Mandel, 218 Ill. App. 316, but an examination of that case discloses that the case there turned upon an issue of fact, namely, whether the article sold had been accepted and kept for use. It was held that- the article had been so kept and used. The cases are therefore not analogous.

The statement of claim here shows that the coat was not accepted, and the fair inference is that it was not used since the statement says it was returned to the plaintiff who holds it as bailee for the defendants. We hold that the statement of claim does not state a cause of action against the defendant husband under the statute. We are not, however, unaware of the rule which obtains in actions of the fourth class in the municipal court to the effect that technical written pleadings are unnecessary, and in the .absence of a bill of exceptions we will presume that the defect was cured by verdict. McClunn v. Gillespie, 227 Ill. App. 400; Sher v. Robinson, 298 Ill. 181; Winitt v. Kornblith, 248 Ill. App. 108. That rule was applied in these cases where the statements of claim failed to set forth certain essential elements of a cause of action. In the absence of a bill of exceptions, it was apparent that the court or jury could not have made the finding or the court entered the judgment without such proof, and the apparent error was therefore presumed to have been cured by the verdict or finding of the court.

Here, however, the defect in the statement of claim does not merely amount to an omission of an essential element but to affirmative allegations which conclusively show that according to the law the plaintiff has no right to recover against the defendant husband. Such being the state of the record, it was error to deny the motion in arrest, and for that error the judgment must be reversed.

Reversed.

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


text:
    C. J. Miles, Appellant, v. Victor Nelson, Appellee.
    Gen. No. 32,831.
    Opinion filed November 19, 1928,

      Gann, Secord & Stead, for appellant; Lot N. McIntosh and Junius C. Scofield, of counsel.
    Daniel Anderson, for appellee.
   Mr. Justice Matchett

delivered the opinion of the court.

In an action on contract, after excluding evidence offered by the plaintiff, at the close of plaintiff’s case the court instructed the jury to return a verdict for defendant, overruled motions for a new trial and in arrest and entered judgment on the verdict against plaintiff.

•The statement alleges that the plaintiff, Miles, on May 2, 1925, entered into a written contract with defendant, Nelson, for the exchange of certain real estate ; that Nelson agreed to furnish plaintiff with a certificate issued by the registrar of titles or complete merchantable title guaranty policy made by the Chicago Title and Trust Company; that plaintiff relied on these promises, consummated the purchase and paid money as agreed and performed all other obligations of the contract, but that defendant refused to deliver the certificate of title or guaranty policy; that defendant tendered to plaintiff a guaranty policy in the amount of $4,500, but that the purchase price paid by plaintiff to the defendant for the real estate was $83,000 and the defendant was therefore obligated to deliver plaintiff a policy for that'amount; that the reasonable value of a policy for $83,000, after allowing credit for the premium theretofore paid on the $4,500 policy Was $328, which plaintiff alleged to be due.

The affidavit of merits admits the contract, conveyance and exchange, but denies defendant agreed to furnish a guaranty policy for $83,000 and denies that he is so indebted.

The evidence discloses a contract by which Nelson agreed to convey to Miles an apartment building in Chicago subject to incumbrances and Miles agreed to convey to Nelson a dairy farm of 350 acres in Wisconsin, together with certain personal property thereon, to pay $10,000 in cash and give notes to the amount of $16,000 secured by a second mortgage.

The contract provided that ‘ each party hereto is to furnish the other within a reasonable time from the date hereof, either a certificate of title issued by the Registrar of Titles of............complete merchantable abstract of title, or merchantable copy thereof, brought down to cover this date, or merchantable title guaranty policy made by Chicago Title & Trust Company showing good and sufficient title at date of this contract in the respective parties hereto to the property hereby agreed to be conveyed by them.”

The transaction was completed at the office of the Chicago Title and Trust Company.

It is the contention of plaintiff that under the terms of this contract defendant was obligated to deliver to plaintiff a guaranty policy insuring the title transferred to plaintiff to the amount of the purchase price paid by him; that, as the contract was silent as to the amount of the insurance to be covered by the policy, oral evidence was admissible upon that point.

On the other hand, defendant contends that as the contract was in writing, complete, certain and unambiguous, oral evidence was not admissible to vary its terms.

Plaintiff upon his theory offered evidence tending to show the value of the Wisconsin farm which was transferred in the transaction. The court sustained an objection to this evidence. Plaintiff offered to show the usage and custom as to the amount for which a guaranty policy should be written in a transaction of this kind, and also offered evidence of oral conversations between the parties with reference thereto, all of which were excluded by the court apparently upon the theory that since the contract was in writing, oral evidence was not admissible for any purpose. These rulings of the court are assigned as error.

The object of construing a contract is to find the intention of the parties. It is apparent upon reading this contract that it is impossible to determine from the writing alone what the intention of these parties was in so far as the amount of insurance to be named in the guaranty policy to be issued was concerned. The subject was not omitted. It is covered, but in an ambiguous and uncertain way. Telluride Power Transmission Co. v. Crane Co., 208 Ill. 218, on which defendant relies, is not applicable.

While the form of some of the questions may have been objectionable, it is apparent that the court ruled upon the theory that oral evidence was inadmissible under the circumstances. In this we think the court erred. A review of the authorities is not necessary, but Collins Ice-Cream Co. v. Stephens, 189 Ill. 200; Morris v. Jamieson, 205 Ill. 87; Stone v. Mulvaine, 217 Ill. 40; Steidtmann v. Joseph Lay Co., 234 Ill. 84, 88, and El Reno Wholesale Grocery Co. v. Stocking, 293 Ill. 494, are a few of the numerous cases that might be cited.

For the reasons indicated the judgment is reversed and the cause remanded for another trial.

Reversed and remanded.

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


author: Mr. Justice Barnes

text:
    The People of the State of Illinois ex rel. Russell Stockham, Plaintiff in Error, v. May P. Schaedel and Theodore B. Schaedel, Defendants in Error.
    Gen. No. 32,731.

      Opinion filed November 27, 1928.
    Good, Childs, Bobb & Wescott, for plaintiff in error; Walter E. Beebe, of counsel.
    John Wm. Chapman, for defendants in error.
   Mr. Justice Barnes

delivered the opinion of the court.

This writ seeks a review of action taken on a petition for a writ of habeas corpus. The writ was sued out by the relator, Bussell Stoekham, to recover custody of his two sons, John, aged 14, and George, aged 12, who, the petition alleges, are restrained of their liberty by their mother, May Schaedel, relator’s former wife, and by her husband, Theodore B. Schaedel.

The children were produced in court, and by agreement in open court the answer was waived and the cause heard on such defenses as might properly be pleaded.

After the hearing the court awarded the custody of the children to their mother, holding that the court in the State of Ohio in which the parents were divorced, by a decree entered October 2, 1920, awarding the custody of said children to their mother, had no jurisdiction when it entered a later order awarding their custody to the father, and if it did, it was for the children’s best interests that they remain in her custody in accordance with their expressed desires.

Petitioner introduced a duly exemplified copy of the record of the Ohio court, held in Portsmouth, Scioto county. It discloses that a petition was filed by the wife, and an answer and cross-petition by the husband in April, 1920, and that by their pleadings each party charges the other with cruelty and asks for a divorce and the custody of the children; that on October 2, 1920, a decree was entered granting the divorce on the wife’s petition and awarding her alimony and the custody of the children until the further order of the court, and the father possession and control of them at certain intervals of time, and continued the cause “for the purposes of any further orders relating to the custody and control and right to visit said children.”

It also appears from said record that on the father’s motion filed October 12, 1920, for modification of said decree or order, the custody of the children was transferred to him during its pendency, and that on November 4,1920, the decree or order was modified whereby their care, custody and education and control were awarded to the father “until further order of court.” The decree was again modified on April 16, 1921, by which the mother was to have the children at her residence in Portsmouth between certain hours on each Saturday.

Later, as the record discloses, another order was entered February 23,1925, which divested her of certain property interests awarded her under the decree and reduced her alimony to $10 a week. The next and final order shown by the record was entered July 21, 1925, which relieves the father from obligation to make any further payment of alimony until further order of court, the order reciting that the mother had violated the former order of court as to leaving the children in the custody of the father.

On inspection of the record of the Ohio court, on which petitioner relied as presenting a prima facie case, the trial judge expressed the view that because it did not show the grounds on which the order of October 2,1920, was so modified, or that respondent May Sehaedel had notice of the.proceedings, the order of modification was void for want of jurisdiction. In this conclusion we cannot concur. The court had jurisdiction of both parties to render the decree of divorce and to award the custody of the children, and the order as to their custody was not final but “until further order of court. ’ ’ "While the record is silent respecting notice of the subsequent proceedings modifying the decree, and the grounds therefor, such silence does not create the presumption that due notice was not given or that proper grounds for the modification were hot presented and considered. As to such jurisdictional matters it is said in Freeman on Judgments, vol. 1, sec. 132: ‘ ‘ The preponderance of the decisions upon this question supports the doctrine that ‘it is a matter of no consequence whether the jurisdiction of the court affirmatively appears upon the judgment roll or not; for if it does not, it will be conclusively presumed.’ ” And as also there said: “It is a familiar principle that the judgment or decree of a court of general jurisdiction cannot be collaterally questioned, except for want of authority over the matter adjudicated upon.” While the court improperly heard evidence touching the question of notice to the mother of the proceedings to modify the decree as to the custody of the children, and erroneously held that the Ohio court was without jurisdiction on the face of its record to modify its original decree, its order is in fact founded on what it deemed to be for the best interests of the children, which, as generally recognized, is the paramount consideration and guiding principle when that question is properly before the court.

But it is urged by plaintiff in error that the orders of the Ohio court are res ad judicata of the father’s right to their custody. It is trueo as to facts and conditions then before the court full faith and credit must be given to said decree. But it is generally held that as to facts and conditions arising subsequently, the foreign decree has no controlling force and is not binding upon the courts of other States. (See 15 R C. L. § 417, p. 940; 9 R. C. L. § 293, p. 477.) “Such decrees are necessarily provisional and temporary in character, and are ordinarily not res judicata, either in the same court or that of a foreign jurisdiction, except as to the facts before the court at the time of the decree.” (19 C. J. § 831, p. 366, and authorities there cited; In re Alderman,, 157 N. C. 507, 73 S. E. 126, 39 L. R. A. [N. S.] 988; Mylius v. Cargill, 19 N. M. 278, 142 Pac. 918, L. R. A. 1915 B 154, see also the L. R. A. annotated notes to said cases.)

While the decisions are not altogether uniform on the question of extraterritorial jurisdiction in such cases, we think the preponderant view is expressed in the authorities cited.

The real question, therefore, is whether there was sufficient evidence of a change of conditions, since the rendition of the Ohio decree as modified, to warrant the court’s order for a change of custody of the children. While the evidence here on that subject, so far as it affected their best interests, was somewhat meager, it was not refuted. The mother has remarried and'' become a resident of this State. The children are some seven or eight years older than when the decree was rendered, and at an age when a mother’s influence in shaping their lives is most desirable. They earnestly desire to live with their mother. They are both at an age when under the laws of the State of Ohio “they must be allowed to choose for themselves which parent they prefer to live with, unless the parent so selected, by reason of moral depravity, habitual drunkenness or incapacity be unfitted to take charge of such children, in which event the court shall determine their custodian.” (Gen. Code of Ohio [1921], vol. 2, sec. 8033.) There was no evidence that tended to show the mother was in any way unfitted to take charge of the children, or unable to give them proper care and educational advantages. The evidence in fact tended to show the contrary. Their father has also remarried and the children testified that they were unhappy in their home surroundings with him and their stepmother. Their earnest desire to live with their mother and to get away from the unhappiness in the home of the father is evidenced by the fact that they stole away from the home of the latter without sufficient means for transportation to come hundreds of miles to be with their mother in Chicago. While there is nothing in the evidence to indicate that either parent is unfit to have custody of the children, yet had the same evidence heard in this case been presented before the Ohio court on an application for a change of custody, we think it would have been mandatory under the statute of that State for the court to have granted it in accordance with the children’s expressed preference.

The relator did not appear personally in court, and no other evidence in support of the petition than the record of the Ohio court was offered. After the evidence was all heard' his counsel requested the court to continue the case until he could come from Ohio and be heard. We do not think the court abused its discretion in refusing the request. Having applied for the writ and gone to trial he should have been prepared to present such evidence as was competent and to meet any defense that might properly be presented.

Nor can we say on the evidence adduced, the court’s conclusion that it was for the best interests of the children to live with their mother was not fully justified, especially in view of the strong desire they expressed to live with her. Their feelings in that regard are an element entitled to the most serious consideration. It is no disparagement to the love and interest of the father that the relationship between mother and child commands primary consideration. The children here are at an age when a mother’s love, sympathy and influence are most potent and most needed. Other things being equal, the children’s desire to be with their mother can hardly be overestimated and deserves special consideration in view of the mandatory provisions of the Ohio statute upon the subject. While it was not for the court of this State to enforce those provisions its order is in conformity with them.

As the petitioner invoked the jurisdiction of the court of this State, in which the mother is a resident, and the children had taken up their domicile with her and were produced before the court on the writ, thus bringing all parties within its jurisdiction, we see no valid reason why, in view of the grounds upon which the order was entered, the parties should be relegated back to the State of Ohio for a determination of the same question. We think therefore the judgment should be affirmed.

Affirmed.

Gridley, P. J., and Scanlan, J., concur.


author: Mr. Justice Scanlan

text:
    Estate of Perry Johnson, Appellant, v. Mary Kilpatrick, Appellee.
    Gen. No. 32,850.

      Opinion filed November 27, 1928.
    Rehearing denied December 11, 1928.
    Charles R. Casler, for appellant.
    Ellis & Westbrooks, James S. Winfrey, Blaine G. Alston and James E. Wright, for appellee; Richard E. Westbrooks, of counsel.
   Mr. Justice Scanlan

delivered the opinion of the court.

In the prohate court of Cook county, Eugene A. Tappy, conservator of the estate of Perry Johnson, a spendthrift, filed a sworn petition, under paragraph 54, chapter 86, Callaghan’s Illinois Statutes Annotated, vol. 5, p. 4924, alleging “that he is informed and believes that one Mary Kilpatrick, of Chicago, Cook County, Illinois, has in her possession, or has concealed or converted certain moneys in the sum of Fifteen Hundred ($1500.00) Dollars, belonging to said Estate and wrongfully refuses to deliver the same to your Petitioner, although often requested so to do.” The petitioner “prays that said Mary Kilpatrick may be cited to appear before said Court on a short day to answer such charge, and that she be ordered to deliver said sum of money to your Petitioner.” The respondent having been duly served appeared in the probate court, in person and by counsel, and apparently did not in any way raise any question of jurisdiction or as to the sufficiency of the petition. There was a trial upon the merits and the court found “that the said Mary Kilpatrick wrongfully obtained from Perry Johnson, a spendthrift, the sum of One Thousand Five Hundred and Twelve ($1512.00) Dollars,, which was the property of the estate of Perry Johnson, a spendthrift, and which she converted to her own use,” and the court ordered that the respondent “pay to Eugene A. Tappy, conservator of the estate of Perry Johnson, a spendthrift, the sum of One Thousand, Five Hundred and Twelve ($1512.00) Dollars, on or before twenty (20) days from the date of this order.” From this order the respondent appealed to the circuit court of Cook county. In that court the respondent entered a general appearance, and when the cause was reached for trial, moved the court “to quash the petition and to dismiss the citation proceedings,” on the ground that “a petition or affidavit which states that a person has money or property ‘belonging to the estate’ is insufficient to give the court jurisdiction to issue the citation and proceed with a hearing, and a motion to quash the proceeding and discharge the respondent should be sustained.” In opposing the.motion the petitioner contended that the proceeding in the circuit court was a trial de novo, and further contended that even if the petition filed in the probate court were insufficient, the respondent’s appearance in that court was a general and not a special one; that she raised no question in the probate court as to any alleged defect in the petition and she submitted to a trial of the cause upon the merits and that therefore she had waived any jurisdictional defect, if any, in the petition; but the trial court held that paragraph 54, of chapter 86, provides for the issuance of a citation only where a person has property or money “belonging to the ward,” and that the petition or affidavit filed in the probate court is fatally defective because it alleges that the respondent had money “belonging to the estate” of Perry Johnson, a spendthrift, and that therefore the circuit court was without jurisdiction to hear the matter, and the court, over the objection of the petitioner, entered an order that “the motion to quash the petition for citation and to dismiss the proceedings, be, and the same is hereby sustained and petition is hereby quashed and respondent discharged.” From the entry of this order the conservator has appealed to this court.

Paragraph 54 reads as follows:

“Property of ward withheld — Knowledge of property — Citation and hearing — Order of court. § 53. If any conservator appointed pursuant to this Act or any other person interested in the ward or his estate, or any other person, shall state upon oath, to any County Court, that he believes that any person has in his possession or control, or has concealed, converted or embezzled, any goods, chattels, moneys or effects, books of .account, papers or any evidences of debt whatever, or titles to lands belonging to the ward; or that he believes that any person has any knowledge or information of or concerning any indebtedness or evidences of indebtedness, or property, titles or effects, belonging to the ward, which knowledge or information is necessary to the recovery of the same, by suit or otherwise, by the conservator, and that such person refuses to give to the conservator such knowledge or information, the court shall require such person to appear before it by citation, and may examine him on oath, and hear the testimony of such conservator, and other evidence offered by either party, and make such order in the premises as the case may require.”

It has been frequently held that proceedings in the probate court like the one in question are not suits at law, but are purely statutory proceedings in which written pleadings are not required and the proceedings are not governed by the technical rules which apply to suits at law. “No formal particularity is required to give the court jurisdiction. (Blair v. Sennott, 134 Ill. 78.)” (Martin v. Martin, 170 Ill. 18, 24.) In fact, as we read it, paragraph 54 does not even require that the oath upon which the citation must be based shall be in writing. While we are mindful of the ruling of the court in Dinsmoor v. Bressler, 164 Ill. 211, in re section 81 of the Administration Act, Cahill’s St. ch. 3, li 82, nevertheless, it appears to us that the question as to whether or not a written affidavit is required to be filed by said section or by paragraph 54 of chapter 86 has never been squarely presented to the Supreme Court.

“Lunacy laws are enacted for the benefit of the unfortunate as well as the public. * * * They are in their nature emergency laws and must operate, if they operate at all, when the emergency arises. Such laws should be construed liberally to the end that their purpose may be effectuated. If courts stick in the bark on technical questions of construction of. terms, the lunatic may destroy himself or others or waste or lose his property and the object of the law thereby be frustrated while hairs are split.” (Parcher v. Reese, 202 Ill. App. 509.) The same rule of construction would apply to laws relating to spendthrifts. But it is not essential in this case to decide whether or not it was necessary for the petitioner to file a written affidavit, for even if it were necessary to do so under the statute, and admitting, merely for the sake of argument, that the petition in the present case was insufficient to give the probate court jurisdiction, in the matter, nevertheless, the-respondent entered" a general" appearance in that court 'and the matter was tried upon the merits, and she would be held to have waived, in the probate court, at least, any jurisdictional defect arising out of the alleged insufficiency in the allegations of the petition. (Bishop v. Welch, 149 Ill. App. 491, 496. See also Grier v. Cable, 159 Ill. 29; Stafford v. Stafford, 299 Ill. 438, 445.) In the instant proceeding, the statute required the appeal from the probate court to be taken to the circuit court, and it also required the cause, on appeal, to be tried de novo. “On a trial de novo the circuit court stood in the shoes of the probate court. It had the same jurisdiction on the trial de novo, and was clothed with the same powers as the probate court.” (Snyder v. Snyder, 142 Ill. 60, 65; McMahan v. Trautvetter, 305 Ill. 395, 404.) On appeal from the probate court the circuit court does not sit as a court of errors but tries the cause de novo. (Barnes v. Earle, 275 Ill. 381, 385.) It was held in Blair v. Sennott, supra (p. 85), and in Martin v. Martin, supra, that an administrator had the right, in a proceeding brought by him in the probate court under section 81, Cahill’s St. ch. 3, if 82, to file an amended affidavit, and in the instant case, especially in view of the attitude of the respondent in the probate court, the circuit court, trying the proceeding de novo and “clothed with the same powers as the probate court,” had the right to permit an amendment to the petition, if it were necessary. In fact it has been held that the circuit court has the power to permit amendments in matters of appeal from the probate court.

The sole argument of the respondent in support of the judgment of the circuit court is that paragraph 54 provides for the issuance of a citation only where a person has property or money “belonging to the ward,” and that the petition or affidavit in the instant cause (filed in the probate court) is fatally defective because it alleges that the respondent had money “belonging to the estate” of Perry Johnson, a spendthrift, and the circuit court was therefore without jurisdiction to hear the proceeding. The respondent admits that the contention is based entirely upon the case of Goetz v. People, 237 Ill. App. 71-75. In that case the respondent, Goetz, was adjudged guilty of contempt of court for failure to pay to the administrator of the estate of Roepsch, deceased, $1,000 in accordance with an order of the probate court committing the respondent to jail in a proceeding under section 81 of the act relating to Administration of Estates. (Cahill’s 1923 St. ch. 3, ¶ 82.) On the hearing of the order to show cause why the respondent should not be punished for contempt, it appeared that the property in question was a mortgage note, which the respondent obtained from a safety deposit box after the death of the deceased, and the appellate court held, following the ruling in Dinsmoor v. Bressler, supra, that section 81 refers only to property which came into the hands of the person charged before the death of the deceased person, and which was converted before or after such death; that under the petition and the facts in the case before them the court was without jurisdiction to commit the respondent to jail for contempt.' In our judgment, that decision is not an authority to sustain the order entered by the circuit court in the instant case.

Nothing that we have said in this opinion must be taken as a ruling by this court that a conservator, under paragraph 54, could not bring citation proceedings against a person who obtained from a spendthrift goods, etc., belonging to him or his estate, after a conservator had been appointed. That question is not before us for determination.

In our judgment the trial court erred in ruling that the circuit court was without jurisdiction to proceed with a hearing of the cause, and in entering an order quashing the petition for a citation and discharging the respondent, and the judgment of the circuit court of Cook county is reversed and the cause or proceeding is remanded with directions to the court to try the same de novo.

Reversed cmd remanded with directions.

Gridley, P. J., and Barnes, J., concur.


author: Mr. Presiding Justice Holdom

text:
    The People of the State of Illinois, Defendant in Error, v. Louis Paynter, Plaintiff in Error.
    Gen. No. 32,631.
    Opinion filed December 19, 1928.
    William Scott Stewart, for plaintiff in error.
    Robert E. Crowe, State’s Attorney, for defendant in error; Edward E. Wilson, Henry T. Chace, Jr., and Henry E. Ayers, Assistant State’s Attorneys, of counsel.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.

This writ of error is sued out by Louis Paynter, seeking the reversal of the judgment of the criminal court of Cook county of commitment for contempt of court and a sentence of 60 days ’ confinement in the common jail of Cook county. The trial judge proceeded upon the theory that the contempt was committed in the presence of the court, and as termed by the court in his finding, Paynter was “guilty of direct contempt.’ ’

It appears from the evidence that one Lorraine Irwin was a witness in the trial of the case of People v. Rongetti, in which ease she had been subpoenaed as a witness for the prosecution. It further appears that the witness had been acquainted in a casual sort of way with Paynter about a couple of years; that Miss Irwin had arranged to meet Paynter after the adjournment of court for the morning session at 175 West Washington Street, in the loop district of Chicago. Miss Irwin left the court room and proceeded to the place of rendezvous; there she met Paynter as agreed; that she had been shadowed by police officers, and a little before two o’clock these officers accosted Miss Irwin and Paynter, and upon the assumption that Miss Irwin was not going to return as a witness to the criminal court, they took her to the criminal court. One of the police officers examined by the trial judge testified that he had followed Miss Irwin from the vicinity of 77 West Washington Street and noticed that Paynter was some 20 feet to the rear of her; that they both entered the lobby of the building 175 West Washington Street; that after a few minutes Paynter and Miss Irwin came out of the building and were about to get into a taxicab, when he, the officer, stepped up and said that he was a police officer and that Miss Irwin was due in Judge Comerford’s court at two o’clock; whereupon Paynter said, “We have plenty of time, it is quarter of two>” and that the officer retorted that it was five minutes of two; whereupon the officer took Miss Irwin into custody and told Paynter to move along. Paynter returned to Judge Comerford’s court room and was examined by the judge, and stated that he had known Miss Irwin for a couple of years; that he was employed by the board of education as a fireman, working nights from 1 to 9 o’clock in the morning; that he had formerly been an investigator for the State’s attorney’s office, and had investigated a case some time previous to “this one” for William Scott Stewart, attorney for the defendant Amante Bongetti; that the last time he had appeared around the Criminal Court Building was during the trial of the Scott case; that he had attended court during the morning session merely as a spectator, and did not talk about the case to anyone, and he further testified that Miss Irwin called him up the night before and told him she was going to be in court as a State witness; that he said he would probably be down there himself; that she spoke to him in the hall after court had adjourned and he suggested that she meet him at 175 West Washington Street, where he was going for a union card. He further stated that he had gone to the office of defendant’s attorney, but did not see Miss Irwin, but that he met her in accord with his appointment at 175 West Washington Street; that he was with her only a few minutes and discussed nothing about the case to be tried, and did not intimidate her or threaten her in any manner, and was looking for a cab to go back to the court room for the afternoon session when the officer came up and took Miss Irwin into custody.

At the conclusion of this testimony the trial judge said that he did not believe that Paynter was telling the truth, and asked the State’s attorney to file a proper petition under which Paynter might be attached for contempt, and thereupon on the order of the court Paynter was taken into custody. The next day the court dealt with him for contempt.

It is clear from the foregoing that whatever Paynter might have been guilty of, he was not guilty of a direct contempt of the court by any conduct of his in the presence of the court or within the precincts of the Criminal Court Building.

There was no information filed against Paynter, nor any written charge of contempt. There was no document charging Paynter with contempt, which he might have answered under the rules of law and purged himself of the charge. The order of commitment fails to set forth any fact in the case which would tend to prove that Paynter was guilty of a contempt of court, either direct or constructive.

The court seems to have based his judgment upon the fact that he did not believe that Paynter was telling the truth. However, if the court was correct in this surmise, it was no justification because he believed Paynter to be guilty of perjury that he should adjudge him guilty of a contempt of court; a contempt constructively committed in the presence of the court.

We have scanned the record and all the evidence in it in an effort to find a justification for the court’s action, but fail to find any evidence justifying Paynter’s commitment. There is not one scintilla of evidence, either from the testimony of Lorraine Irwin or Paynter or the police officer, or anyone else testifying, to prove that Paynter was guilty of a contempt of court committed in the presence of the court. Lorraine Irwin denied that Paynter endeavored in any way to influence her in the case. While others may have intimidated Miss Irwin, there is no evidence which in the slightest degree sustains the charge that Paynter had done anything to either influence or intimidate her, which she herself very candidly admitted.

We think this case in analogous in every material point to that of People v. Berrell, 216 Ill. App. 341, and equally decisive of the case at bar, in which this court said:

“Such summary and arbitrary proceeding baffles credence in this twentieth century, supposedly at least an era of freedom under well-settled legal principles. In this ease plaintiff in error, without any indictment or charge of offense or any form of trial, was pronounced guilty of the crime of perjury in the presence of the court, and immediately sentenced to imprisonment in the county jail. No opportunity was afforded to meet the court’s charge, nor is the nature or quality of the perjury disclosed. What moved the mind of the court to the conclusion that plaintiff in error was guilty of perjury is not apparent from the record. What occurred, if anything, to impel the court to adjudge plaintiff in error guilty of contempt is nowhere set forth. The order of commitment contains all the proceedings which the record discloses. * * * People v. Stone, 181 Ill. App. 475. Such summary procedure the law will not tolerate. Every person is entitled before condemnation to be informed in some way of the offense charged against him and be accorded an opportunity to be heard by himself and by counsel in exculpation of the offense charged.”

The proceeding is irregular and illegal in every particular. There is no justification in the record for the court’s action. Therefore the judgment of the criminal court committing Paynter for contempt is reversed.

Reversed.

Wilson and Ryner, JJ., concur.