author: Mr. Justice Scanlan

text:
    Nestor Johnson Manufacturing Company, Plaintiff in Error, v. The Alfred Johnson Skate Company, Defendant in Error.
    Gen. No. 35,365.

      Opinion filed April 5, 1932.
    Zane, Morse & Norman and Craig B. Johnson, for plaintiff in error.
    Moses, Kennedy, Stein & Bachragh, for defendant in error; Hamilton Moses, of counsel.
   Mr. Justice Scanlan

delivered the opinion of the court.

The plaintiff in error (hereinafter called the complainant) has sued out this writ of error to review an order of the chancellor denying it leave to file its ‘ ‘ supplemental hill and bill of review. ’ ’

The decree which the bill seeks to review was entered in the superior court November 12, 1924. The pleadings and the evidence heard in the original proceedings are fully stated in the case of Nestor Johnson Mfg. Co. v. Alfred Johnson Skate Co., 313 Ill.106. After the mandate of the Supreme Court in that case had been filed the chancellor entered the decree in question, in accordance with the mandate, enjoining the defendant, its officers, employees, etc.,

“First, from using in the advertising, disposition, distribution or sale of tubular ice skates upon any skate, box, container, letterhead, catalog, literature, sign, advertising matter or otherwise, or verbally, the word ‘Johnson’ in its secondary sense, that is to say, meaning, describing and indicating the particular make of tubular ice skates of the Nestor Johnson Manufacturing Company, complainant, in the description or partial description of, or as the name or part of the name of, a tubular ice skate.

‘ ‘ Second, from using in the advertising, disposition, distribution or sale of tubular ice skates, upon any skate, box, container, letterhead, catalog, literature, sign, advertising matter or otherwise, the name ‘Alfred Johnson Skate Company’ in print, script, or writing in any form without the four words of said name set forth in equal prominence and in the same character and size of type, script or writing, and without adding thereto in type, script or writing of the same character and not less than two-thirds the size of the said type, script or writing by which the said name ‘Alfred Johnson Skate Company’ is displayed, the words ‘Not connected with the Nestor Johnson Manufacturing Company.’ ”

It was also decreed that the complainant was entitled io an accounting from the defendant, The Alfred Johnson Skate Company, for all profits accruing to it “from the use of the trade name ‘Johnson’ in its secondary sense as hereinbefore defined applied to tubular ice skates made, sold or delivered by the defendant at any time subsequent to the date of service of summons upon the said defendant upon the bill herein,” and the cause was referred to a master in chancery to take proofs upon the accounting, with directions, etc. The matter of the accounting is still on hearing before the master. On February 15,1927, the complainant filed a “petition for leave to file bill of review called supplemental bill” (hereinafter called first petition), which came on to be heard before Judge Steffen, at which time the complainant presented a so-called “supplemental bill.” In support of the petition the complainant offered the affidavit of Charles I. Johnson, dated December 6, 1926, to which were attached certain exhibits; also the affidavits of Rudolph Notz and Ruth Helen Notz, both dated December 14, 1926. The defendant offered, in opposition, portions of the complainant’s brief and argument and also portions of its reply brief which were filed in the Supreme Court in the case of Nestor Johnson Mfg. Co. v. Alfred Johnson Skate Co., supra; also the decree of the superior court entered November 12, 1924. On February 15, 1927, Judge Steffen entered an order denying the complainant leave to file the “bill of review called supplemental bill.” After an appeal had been denied the complainant filed a certificate of evidence, but the order entered by Judge Steffen remains in full force and effect, as no writ of error has been sued out to review the same although the time allowed by section 117 of the Practice Act, Cahill’s St. ch. 110, IT 117, in which the writ may be brought has long since expired. On December 10, 1929, the complainant filed, in the superior court, a petition (hereinafter referred to as second petition) for leave to file the instant bill. Attached to the petition are certain exhibits, A, B, C, D and E. Exhibit A is an affidavit of Charles I. Johnson, dated May 22, 1929, and certain exhibits attached thereto marked 1 to 49, both inclusive, and which are identical with the affidavit of Johnson and the exhibits attached thereto which were offered in support of the first petition. Exhibit B is an affidavit of Ruth Helen Notz, dated May 24,1929, which is identical with her affidavit offered in support of the first petition. Exhibit C is an affidavit of Rudolph Notz, dated May 24, 1929, which is identical with his affidavit offered in support of the first petition. Exhibit D is a second affidavit of Charles I. Johnson, dated May 22, 1929. Exhibit E is another affidavit of Johnson, dated June 20,1929. The second petition came on to be heard before Judge Grentzel, and in support of the same the complainant offered Exhibits A, B, C, D and E. In opposition the defendant offered the order entered by Judge Steffen on February 15, 1927, also the certificate of evidence filed by the complainant in the matter of the first petition and also the decree entered by the superior court in accordance with the mandate of the Supreme Court. The certificate of evidence shows all the documents, papers and proof that were offered in evidence in the hearing on the first petition. Judge Grentzel entered an order denying leave to file the instant bill and it is this order which the present writ of error seeks to review.

The matters set forth in the bill which Judge Grentzel denied leave to file, are the same as those set forth in the bill which Judge Steffen denied leave to file, save that in the instant bill there are a few matters, of the same character and nature, set up which are alleged to have occurred subsequent to the time of the entry of the order denying leave to file the first petition. It is conceded that the matters averred in the affidavits filed in support of the first and second petitions are of. the same character and nature as those that were alleged in the original bill and proven upon the hearing of that cause. They are therefore merely cumulative to the facts considered by the Supreme Court in rendering its judgment.

The defendant contends that the order of Judge Grentzel denying the complainant leave to file the instant bill is not a final one, subject to review by appeal or writ of error, because the master has still before him the matter of the accounting, and that the order of Judge Grentzel is interlocutory and that until the chancellor enters a decree upon the accounting the cause is not reviewable on appeal or writ of error. We find no merit in this contention. The decree which the proposed bill seeks to review fixed the rights of the parties and it was therefore a final order. The accounting is merely a proceeding for the purpose of carrying out the decree.

The defendant also contends that the order of Judge G-entzel was a proper one for the reason that “the previous decision of Judge Steffen was res adjudicata”; that it stands unreversed and is not now subject to review by appeal or writ of error and that the provisions of section 117 of the Practice Act, Cahill’s St. ch. 110, if 117, “would be ineffectual if, after two years had elapsed, a second action could be maintained upon identically the same cause of action and evidence and a writ of error sued out to review a second adverse adjudication thereon.- The order of Judge Steffen was not only res adjudicata but it could not be reviewed by indirection on reviewing the order of Judge Gentzel.” The complainant asserts that the ruling of Judge Steffen, denying it an appeal, was wrong, but that it was procured by the defendant upon the ground that the order was not a final one and therefore not appealable, and that the latter is therefore estopped to raise the instant contention, as it is inconsistent with the position previously assumed by it, and which it successfully maintained. The defendant answers that there can be no estoppel unless it be mutual and binding on both parties, and cites, upon the oral argument, First Nat. Bank of Chicago v. Northwestern Nat. Bank, 152 Ill. 296; Chicago Portrait Co. v. Chicago Crayon Co., 217 Ill. 200; and Keal v. Rhydderck, 317 Ill. 231, 239, in support of its position. In the instant proceeding, after the chancellor denied the complainant an appeal, it sued out a writ of error to review the order. It had the right to pursue the same procedure after Judge Steffen denied it an appeal, but it did not see fit to do so. It would make no practical difference to the complainant whether it had the order of Judge Steffen reviewed by appeal or by writ of error. However, in onr view of this cause, we do not deem it necessary to pass upon the instant contention of the defendant.

We find but little difficulty in determining the merits of the present writ of error. The Supreme Court, in its exhaustive and able opinion, held that it was not necessary to enjoin entirely the use of the word “Johnson” nor the defendant’s corporate name, and approved that part of the decree entered by the chancellor which enjoined the use of the name “Alfred Johnson Skate Company,” without the use of the words, “Not connected with the original Nestor Johnson Manufacturing Company.” The complainant does not contend that the defendant has violated the decree entered by the superior court upon the mandate of the Supreme Court, and it concedes, as it must, that if the defendant violated the injunction, the complainant, by apt proceedings, could bring about the punishment of the defendant for its disobedience. The real position and purpose of the complainant is clearly shown by the prayer contained in the bill it asked leave to file, which is as follows: “That the said defendant, The Alfred Johnson Skate Company, its agents, servants, officers and employees, and the said other defendants in this bill, Julian T. Fitzgerald, Alfred Karl Johnson and Gustav Emil Schmidt) may be perpetually enjoined and restrained from using the word ‘Johnson’ in any connection as any part of the corporate name of the said corporate defendant so long as the said corporation is engaged in the manufacture or sale of tubular ice skates, and from using the word ‘Johnson’ in any manner, either in its corporate name or otherwise, in the advertising, distribution, disposition of, sale or soliciting of sale of tubular ice skates, or in any business connected with the manufacture and sale of the corporate defendant’s tubular ice skate, or upon any skate, box, container, letterhead, catalogue, literature, sign, advertising matter or otherwise, or verbally, and pending the hearing upon said supplemental bill and bill of review may be so temporarily restrained.” It will be noted that the sole relief prayed for is that the defendant be enjoined from using the word “Johnson” in any manner whatsoever in connection with its business, although the Supreme Court refused it such relief. The complainant states that it applied for leave to file its instant bill in the lower court notwithstanding the mandatory nature of the judgment entered by the Supreme Court because the rule in this State required it to do so; that if the rule in force in the federal court and certain of the sister states prevailed in Illinois it would have filed its petition in the Supreme Court. Upon the oral argument of this cause we were duly impressed with the fact that the present proceeding “is designed to show . . . that the decree ordered by the Supreme Court is no protection whatever to the complainant in its ownership and property right of the trade name 6 Johnson’ applied to tubular ice skates,” and that “the necessity of enjoining altogether the use of the name Johnson by defendant is very plain.” The complainant states: “We know that we are asking of this court the entry of a decree which impliedly would show that the decree directed by the Supreme Court is insufficient,” but that under the practice in this State and the facts it has the right to ask us to order such a decree. However, the complainant very frankly admitted, in the oral argument, that its ultimate purpose is to convince the Supreme Court that the decree it ordered is insufficient to protect the rights of the complainant.

“For all practical purposes all bills of review or bills in the nature of bills of review are divided into three general classes: Bills for error appearing on the face of the decree, bills upon discovery of new matter, and bills based upon allegations of fraud impeaching the original decree. (Story’s Eq. PI. — 10th ed.— secs. 412, 426; 2 Daniell’s Ch. PI. & Pr. — 6th Am. ed.—

chap. 33, sec. 5; Griggs v. Gear, 3 Gilm. 2; Schaefer v. Wunderle, 154 Ill. 577.) A bill of review for error apparent upon the face of the record or to impeach a decree for fraud may be filed without leave, but leave of court must be obtained before the filing of a bill of review for newly discovered evidence; and such leave is also necessary where the averment of newly discovered evidence is united to or accompanied by a charge of fraud in obtaining the decree or united with allegations as to errors of law on the face of the record. 2 Beach’s Modern Eq. Pr. sec. 868; 3 Ency. of Pl. & Pr. 586; Glos v. People, 259 Ill. 332; Griggs v. Gear, supra; Schaefer v. Wunderle, supra.” (Harrigan v. County of Peoria, 262 Ill. 36. See also Bushnell v. Cooper, 289 Ill. 260, 265-6.) The complainant states that its bill is “based upon evidence since the decree,” “upon facts and matters happening since the decree was rendered,” and therefore it properly lies to review the former decree. In Griggs v. Gear, 3 Gilm. 2, 11, it is said: “A party may file a bill of review for newly discovered evidence. In such a case the bill must set forth the newly discovered matter, and that it has arisen since the final decree, or has since come to the knowledge of the party, and-that he was guilty of no neglect, in not discovering and producing it before. The evidence must not be cumulative, and must be of an important and decisive character.” (Italics ours.) It must be “such as, if true, should produce on another trial of the issue a different result on the merits; and (4) it is not merely cumulative. (Elzas v. Elzas, 183 Ill. 132; Griggs v. Gear, 3 Gilm. 2; Walker v. Douglas, 89 id. 425; Schaefer v. Wunderle, 154 id. 577; Boyden v. Reed, 55 id. 458.) ” (Lewis v. Topsico, 201 Ill. 320, 329. Italics ours.) In Elzas v. Elzas, supra, the court states that to warrant the granting of leave to file a bill of review the newly discovered evidence relied upon must not be merely cumulative, and must be of such an important character as would apparently have effected a different result had it been known and produced, and the court further held “that the newly discovered evidence must be such as relates to a matter in issue on the hearing,- — -not evidence to make a new case, but to establish the old one. (Boyden v. Reed, supra.)” After a careful consideration of the opinion of the Supreme Court and the allegations of the proposed bill and the exhibits attached thereto we are satisfied that the new facts relied upon are of the same character and nature as those that were considered by the Supreme Court. In fact, the complain-ant does not claim otherwise. Under the law cited, therefore, the present bill would not lie.

The defendant also contends that the adjudication by the Supreme Court settles the law applicable to the present proceeding and that the instant bill is merely an attempt to have a nisi prius court reverse the judgment of the Supreme Court. The decree which the instant bill seeks to review was entered in the superior court in pursuance of the mandate of the Supreme Court, and it is, in effect, the decree of the latter court. It is not necessary to cite the many cases wherein the Supreme Court has refused to reconsider a contention which had been previously settled by a former adjudication of that court in a proceeding between the same parties. It appears from the opinion of the Supreme Court and the record in the present proceeding that the complainant strenuously urged upon that court that the defendant be enjoined from the use of the word “Johnson” in any way in the conduct of its business. The opinion plainly shows how carefully and ably this important question was considered by the court. As the instant bill is based solely upon newly discovered evidence which is entirely cumulative in its nature, and as the only relief asked is that the defendant be enjoined from the use of the word “Johnson” in any way in the conduct of its business, it would seem, therefore, as though the decision of the Supreme Court should be res adjudícala of the sole question presented to us. The complainant states that while the defendant obeys “the prescribed words of the decree,” experience shows that the relief granted by the Supreme Court is inadequate and that therefore an injunction against the use of the name “Johnson,” in any way, in connection with defendant’s business, is required and justified. As we view it, the instant proceeding is merely a novel method of asking the Supreme Court to review and reverse its former judgment.

In support of its contention that the experience of the last seven years has demonstrated the necessity of enjoining altogether the use of the name “Johnson” by the defendant the complainant cites the case of Waterman Co. v. Waterman & Co., Inc., 229 Ill. App. 630, wherein the first division of this court held that the defendant in that case should be enjoined from using the name “Waterman” in connection with its business. It appears from the record in the instant proceeding that this opinion was not only cited to the • Supreme Court by the complainant but was printed at length as an appendix to its brief. In the recent case of Warshawsky & Co. v. Warshawsky & Co., Inc., 257 Ill. App. 571, we followed the doctrine laid down by the Supreme Court in the case at bar and held that a provision of the decree enjoining the defendant from making any use of its corporate name was too drastic. In that case Waterman Co. v. Waterman & Co., Inc., and several other cases now cited by the complainant were called to our attention.

We are satisfied that the order of Judge Gentzel denying the complainant leave to file the ‘‘ supplemental bill and bill of review” is a proper one, and, accordingly, the order which the instant writ of error seeks to review is affirmed.

Affirmed.

Gridley, P. J., and Kerner, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    Consumers Bond & Mortgage Company et al., Complainants, v. David H. Sadin et al., Defendants. In re Petition of Cody Trust Company, Intervening Petitioner, Appellant.
    Gen. No. 35, 571.

      Opinion filed April 5, 1932.

      Depress, Buckingham, Jones & Hoffman, for appellant ; Vincent O’Brien and John M. Baker, of counsel.
    Eijelson, Latter & Wise, for appellees; William N. Wise, of counsel.
   Mr. Justice Scanlan

delivered -the opinion of the court.

On February 25, 1931, Consumers Bond & Mortgage Company, a corporation, et al., filed a verified bill to foreclose a second mortgage, executed by the defendants, David H. Sadin and Eva Sadin, his wife, and thereupon a receiver was appointed. On April 6,1931, Cody Trust Company, a corporation, appellant, filed an intervening petition praying that the receiver surrender to it possession of the premises and the rents. After answers were filed an order was entered on findings, denying the petitioner relief. The petitioner has appealed.

The intervening petitioner was not made a party to the bill. In its verified petition, filed by leave of court, it set forth, inter alia, that it was trustee of the premises in question under a first mortgage executed by the said Sadins January 11, 1928, to secure an indebtedness of $60,000, evidenced by 18 promissory notes signed by the same parties; that default existed and that there is due and payable the principal sum of $57,000, with accrued interest thereon; that because of the default the petitioner and State Mutual Life Assurance Company as holder of the first mortgage notes had filed their bill in another cause, in the same court, to foreclose the first mortgage; that by reason of the default the petitioner, as trustee, became entitled to possession of the premises and the pledged rents; that in the instant case, upon bill filed by the second mortgagee (whose lien was subject to petitioner’s prior pledge) a receiver had been appointed, who was in possession of the premises and collecting the rents -f that the petitioner has the right to possession and management of the premises, and prays that the chancellor direct the receiver to surrender to it, as trustee under the first mortgage, the premises and all rents collected from the date of the filing of the petition. The petitioner also prayed that its petition stand as its demand for the rents, issues, income and profits as well as for the enforcement of its, other rights in the premises, “and for such other and further relief in the premises as equity might require.” In their answer to the petition the Sadins admit nearly all of the material allegations of the petition, but as these admissions are expressly stated in the findings of the chancellor, which we hereinafter quote, it is unnecessary to here refer to them. The answer denies that the rights of the receiver are subject to the prior rights of the petitioner to the possession, management, operation and use of the premises and to the rents, issues, income and profits therefrom; admits that the petitioner is a party complainant in another proceeding pending in the same court for the foreclosure of the first mortgage, in which it is named as trustee; avers that for the protection of their interest, as owners of the equity of redemption, an impartial person or corporation should be in possession of said premises, collecting the rents, issues and profits therefrom; denies that the petitioner is entitled to or has the right to take possession of the premises and to manage and operate the same; denies that the petitioner is entitled to the discharge of the present receiver or to the surrender by the receiver to the petitioner of the premises and of the rents, issues, income and profits that accrued therefrom after the filing of the intervening petition; denies each and every allegation of the petition not specifically admitted or denied, and denies that the petitioner is entitled to any relief as prayed for in the petition. The answer of Union Bank of Chicago, receiver, to the petition, neither admits nor denies the material allegations of the petition but demands strict proof thereof.

The chancellor found, inter alia:

“That the respondents expressly in their answers admit the allegations of paragraphs 1, 2, 3, 4 and 5 of the petition of Cody Trust Company and admit that for the purpose of foreclosing the trust deed in said intervening petition set forth, said Mutual Life Assurance Company as complainant did prior to the filing of said intervening petition exhibit in the said Superior Court of Cook County in cause No. 534618, its bill of complaint against all of the parties, both complainant and defendant, in the above entitled cause, which bill is pending and indetermined in said court.

“That to secure the payment of said indebtedness and the performance of all the covenants and conditions contained in said trust deed, said David H. Sadin and Eva Sadin, his wife, made, executed and delivered their certain trust indenture, bearing date the 11th day of January, 1928, whereby they conveyed, mortgaged and warranted to Cody Trust Company, as trustee, aforesaid, the real estate and premises described in the bill of complaint in this proceeding described in said trust deed and also the rents, issues, income and profits thereof, which said indenture was thereafter duly acknowledged by said David H. Sadin and Eva Sadin, his wife, before a notary public . . . and was filed for record ... on the 18th day of January, 1928.

“That on the 11th day of January, A. D. 1931, principar note No. 4, in the sum of $1,000 and interest coupons aggregating $1,567.50, matured under said trust deed but were not paid, nor was any part thereof but that default was made in that respect, which default still continues and that the said defendants, David H. Sadin and Eva Sadin, his wife, otherwise made default in the performance of the covenants and conditions on their part required by said trust deed to be performed; that by reason of said defaults Cody Trust Company as trustee has heretofore elected and did by the filing of its said petition elect to declare forthwith due and payable the entire principal sum by said trust deed secured and that by reason thereof there now becomes due and forthwith payable, in addition to the principal note in default as aforesaid the unpaid principal sum of $56,000 with accrued interest thereon as in said trust deed provided.

“That by petitioner’s trust deed the rents, issues, income and profits of the real estate and premises therein .described are expressly conveyed, pledged and assigned and that in and by Section 2 of Article VIII of said trust deed it is provided that in case the said David H. Sadin and Eva Sadin shall fail to perform any agreement or covenant under said trust deed, including payment of principal and interest at the times when the same becomes due and payable, time being of the essence, that the said intervening petitioner should, without notice, be entitled to the immediate possession of said real estate and premises as for condition broken and that it might by its agents with or without entry take actual or constructive possession of the said mortgaged premises and exclude the said Sadins wholly therefrom and that in and by said article the said Sadins agreed upon said default forthwith peaceably to surrender to the said petitioner and its agents the possession of the said real estate and premises.

“The court further finds that prior to the filing of the intervening petition by said petitioners and on the 25th day of February, A. D. 1931, the respondents, Consumers Bond & Mortgage Company and Samuel J. Damond, as trustee, moved the court for an order for the appointment of a receiver upon their verified bill of complaint to foreclose and thereupon the Union Bank of Chicago, a banking corporation, duly authorized under the laws of the State of Illinois to administer trusts, was appointed receiver for the premises involved herein and duly qualified as such.

“The court further finds that the income now realized by said receiver from the said real estate and premises is insufficient to meet the requirements of the said petitioner’s trust deed for principal, interest and taxes upon said premises as same become due and payable, but that the said premises are at present not fully rented, and that the receiver has not had ample opportunity to rent the unoccupied portion of said premises but that if the unoccupied portion of said premises is rented the income of and from said real estate and premises would be sufficient to meet the requirements of the said petitioner’s trust deed for principal, interest and taxes upon the premises involved herein.

“The court further finds that the mortgage sought to be foreclosed in this proceeding is expressly subordinate to the lien of the petitioner’s trust deed and to all of the terms and provisions thereof, and that the receiver herein was appointed at the instance of the complainants herein, and that the said petitioner was not and is not a party to the above entitled cause except as appears through its intervening petition herein.

“The court further finds that the said petitioner is not entitled to the possession of the said real estate and premises as against the possession of the receiver herein, but that the complainants in the cause pending in this court numbered 534618, are if they or either of them so elect, entitled to have the rents, issues, income and profits of and from the said premises protected by way of an extension of the said receivership but that the said petitioners have not moved the court for the entry of an order of extension of said receivership.

“ It is Therefore Ordered that said intervening petition, in so far as the same demands possession of the said real estate and premises as against the receiver herein, be and it hereby is denied, to which order the said intervening petitioner duly excepts in open court. ”

The petitioner contends that “as first mortgagee its right to the possession and incidental rentals is absolute upon default and assertion of its right; that therefore chancellor should direct the receiver (appointed at the instance of the second mortgagee) to step aside and permit petitioner’s exercise of its legal rights.” In the recent case of Altschuler v. Sandelman, 264 Ill. App. 106, we held that the appointment of a receiver to take charge of mortgaged premises under a junior mortgage does not destroy the right of a prior mortgagee to take possession; that there is no merit in the contention that the latter can then only have the receivership extended as„ to it, and that it is error to dismiss, for want of equity, an intervening petition demanding that a receiver, appointed at the instance of a junior mortgagee, surrender possession to a first mortgagee; that there is no material difference or distinction between the rights of a first mortgagee in possession of premises prior to an appointment or attempted appointment of a receiver at the instance of a junior mortgagee, and the rights of a first mortgagee not asserted until after a receiver has been appointed and is in possession at the instance of a junior mortgagee ; and that the appointment of a receiver at the instance of a junior mortgagee can only be made without prejudice to the right of the first’ mortgagee to the possession of the premises, if he sees fit within a reasonable time to assert that right. In that case the law bearing upon the important questions involved is cited at considerable length, and after a further consideration of the matter we adhere to the conclusions therein reached.

The appellees, however, contend that the rule announced in the Altschuler case does not govern the instant appeal, and we shall therefore consider certain points raised by them in support of this contention. They argue that the terms of the first mortgage trust deed operate as a restraint upon the right of the petitioner to obtain the rents and possession, and that before the petitioner would be entitled to possession of the premises and the rents after default, application of the legal holder of the indebtedness secured by the first mortgage trust deed would have to be made upon the petitioner to take possession, manage and collect the rentals of the premises involved herein pursuant to the terms of the trust deed, and that there is no allegation in the petition and no proof in the record that such application had been made. Even if the petitioner’s right to possession were based entirely upon the terms of the trust deed, nevertheless, we think that a prima facie showing was made in that regard. However, aside from its contract right under the trust deed, and solely by virtue of its status as a first mortgagee, the latter, under the Illinois law, became the owner of the property after condition broken, subject only to an equity of redemption, and as such owner was entitled to the physical possession of the same.

The appellees contend that “the possession of a receiver is the possession of the Court and said receiver can only be ousted by said Court.” This contention merely states a well known rule of law, and it was because of the same that the petitioner filed its petition. This rule, however, does not contemplate that the mere appointment of a receiver under a junior mortgage makes the possession of the court absolute and deprives a senior mortgagee of an opportunity to assert his right to possession.

The appellees contend that the chancellor was not bound to surrender possession to the petitioner unless it proved that it could execute the trusts contained in the trust deed more efficiently than could the court. A first mortgagee, upon default, can maintain ejectment in a law court, and it may maintain such action even after the appointment of a receiver, but to avoid contempt of the equity court the first mortgagee usually obtains leave of the chancellor to sue before bringing the ejectment action. In the instant case the chancellor had the custody of the res and elected to hear the matter of the petition. In the hearing the material question to be determined was, whether or not the petitioner had a legal right to possession, and as this question, under the findings, could be properly determined only in the affirmative, the question as to whether the petitioner could operate the property more efficiently than the receiver was not a material one. In support of appellees’ instant contention they cite Illinois Cent. R. Co. v. Mississippi Cent. R. Co., case No. 7008, 12 Fed. Cases, 1207. The property involved therein was located in Mississippi and the rights of the first mortgagee were determined by the law of that state, which is different from the law of Illinois. “In Delaware, Mississippi, and Missouri the common-law doctrine is so far modified, that until breach of the condition and possession taken, the mortgagor is regarded as the owner of the legal estate, not only as against third persons, but as against the mortgagee himself. But upon forfeiture and entry of the mortgagee, he is regarded as having the legal title for the purpose of obtaining satisfaction out of the property.” (1 Jones on Mortgages, 8th ed., p. 60.) In the Mississippi case the court thus states the doctrine of that state: “The property is the property of the mortgagors, subject only to the encumbrances in the order of their priority. The mortgages are only securities.” In other words, under the law of Mississippi, the mortgagee is not regarded as having the legal title for any purpose until forfeiture and entry.

The appellees contend that “a court of equity is not bound at all times to enforce a strict legal right, but will protect the equitable title when good conscience requires it.” In each of the three cases cited in support of this contention an equitable remedy was sought as the means of enforcing a legal right. In two of the cases an injunction was asked, and in the third, partition. In the instant case the petitioner was not asking for equitable relief but was merely insisting upon its legal rights.

The appellees contend that the intervenor failed to ask leave to become a party io the second mortgage suit and therefore was not entitled to any relief from the chancellor. It is a sufficient answer to this contention to say that the chancellor entertained the intervening petition, without requiring the petitioner to become a party to the suit, and the appellees made no objection to the procedure. Intervention may be permitted where the intervenor has an interest in the litigation itself such as will be affected by the granting of the relief prayed for in the bill, or where the intervenor has • an interest in or lien upon the property which the court, through the appointment of a receiver, has taken into custody. In the latter case the right of an intervenor does not depend upon an interest in the litigation itself and it may be wholly immaterial to it what decree may be entered in the litigation. In the instant case the sole concern of the intervenor was in the disposition of the res, which the court had in its custody, and it merely asked the chancellor to enforce its legal rights as to the same. The instant contention is an afterthought and is without merit.

The appellees contend that the petitioner’s rights would have been fully protected by an order extending the receivership to the first mortgage, and that as it refused to ask for such an order the chancellor was warranted in denying the petition. We find no merit in this contention. The complainant did not see fit to make the petitioner a party to the bill even after the intervening petition had been filed, and it was not necessary that the petitioner should voluntarily become a party to the foreclosure proceedings before it could maintain its legal rights as set up in the petition.

The order of the superior court of Cook county is reversed and the cause is remanded with directions to the chancellor to enter an order in accordance with the prayer of the intervening petition.

Reversed and remanded with directions.

Geidley, P. J., and Keener, J., concur.


author: Mr. Presiding Justice Matchett 0 ’Connor, J.:

text:
    Bessie Urban, Administratrix of the Estate of Alexander Urban, Deceased, Appellee, v. Pere Marquette Railroad Company, Appellant.

    Gen. No. 34,226.

      O'Connor, ¿T., dissenting.

      Opinion filed December 1, 1930.
    G-lennon, Cary, Walker & Murray, for appellant; Sidney C. Murray and Marvin A. Jersild, of counsel.
    John A. Irrmann, for appellee; John A. Irrmann, of counsel.

       This case which was formerly published as an abstract (259 Ill. App. 646) is now directed by the court to be published in full.

   Mr. Presiding Justice Matchett

delivered the opinion of the court.

This is an appeal by defendant from a judgment in the sum of $5,000 entered upon the verdict of a jury in an action on the case for alleged negligence resulting in the death of plaintiff’s intestate. This is the second trial of the case, the first having resulted in a disagreement of the jury. At the conclusion of plaintiff’s evidence and again at the close of all the evidence defendant, moved for an instruction in its favor, which was denied, and after verdict, motions of defendant for a new trial and in arrest were overruled.

The declaration is in a single count, and as the argument of counsel is largely directed to and based upon the same, we set it forth in substance. It charged that defendant railroad company was, on December 24, 1925, in possession and control of and was keeping, maintaining and using certain railroad tracks with trains of cars thereon, which tracks extended through the City of Chicago, for the purpose of moving divers freight and passenger trains over these tracks, with locomotive engines, passenger cars, freight cars and other cars in the conducting of its business in transporting passengers and freight; that the intestate at that time, while in the exercise of ordinary care for his own safety, was at 43rd and Leavitt streets crossing the railroad tracks with all due notice to defendant, its agents and servants then and there in charge of said railroad train; that while plaintiff’s intestate was in the act of crossing said tracks of defendant, “its said locomotive engine attached to a certain train of cars, was then and there so carelessly, negligently and improperly moved, managed and operated that the said train of cars and locomotive engine ran into and struck the plaintiff’s intestate- with great force and violence; by reason whereof plaintiff’s said intestate was then and there hurled a great distance and thrown to the ground” and killed.

It is urged in behalf of defendant that there is no evidence tending to show that defendant was guilty of negligence as charged; that the intestate was guilty of contributory negligence, and that the trial court erred in refusing to give certain instructions requested by defendant.

The accident in which deceased lost his life occurred on December 24, 1925, in the City of Chicago, at the intersection of 43rd and Leavitt streets. Leavitt street runs north and south, 43rd street east and west. At this intersection at the time of the accident 43rd street was crossed by about 15 tracks of different railroads including the tracks of defendant. The railroad tracks were about three feet above the level of 43rd street, and this elevation was of gradual formation. There was a gate on the east side of these tracks and another gate on the west side of the tracks. There were no lights over the tracks, and the nearest city lights on each side of the tracks were 150 feet distant. A wooden sidewalk was on the north side of 43rd street and extended across the tracks in an east and west direction. A similar sidewalk was on the south side of 43rd street, and it also extended across the tracks. The gates when lowered extended over the street and had an arm which extended over the sidewalk when the gates were down, but there was enough room for a person to walk around this arm. The distance between the east and west gates was about 180 or 200 feet.

This crossing was in the Stock Yard district. Employees who lived in the neighborhood west of these tracks, in cases where their place of employment was east of the tracks, were accustomed to cross the tracks in going to and from their work. Deceased lived at 4529 South California avenue, which was west of the tracks, and was employed by Wilson & Company, whose place of business was east of the tracks. The deceased had been accustomed to cross these tracks at this place twice a day for some five or six years.

The railroad companies kept a flagman and a watchman at this crossing. There was a flagman’s shanty about 30 feet east of the west gate and about four or five feet north of the north sidewalk on 43rd street. Just at the west gate in the southwest corner of the crossing was a tower occupied by a watchman. There was no automatic device to announce the approach of the trains. The watchman knew the times at which the trains were due and when he sighted a train (which he could see when three blocks away) he would lower the gates and ring a bell to notify the flagman. It then became the duty of the flagman when it was dark to hang a red lantern on the gates and to flag the traffic with another red lantern.

There was a switchman’s shanty south of the south line of 43rd street, some distance east of the east gate.

The accident occurred at about five o’clock in the afternoon while deceased was on his way home from work. His sight and hearing were good and his general health perfect. It was dark and there was some snow. He walked in a westerly direction on the north side of 43rd street.

At this time one of defendant’s passenger trains approached from the south. There were no other trains or engines there. The headlight on the locomotive of defendant’s train was burning brightly. A person walking on the north side of 43rd street would have an unobstructed view of this train approaching from the south for a distance of two or three blocks.

A clear preponderance of the evidence is to the effect that a whistle was blown for this crossing; that an automatic engine bell was ringing, and that the tower bell rang as the train approached. While some of the witnesses testified that they did not hear the whistle and the bells, there is positive testimony of unimpeached witnesses that they were sounded, and the negative testimony was insufficient to raise an issue of fact in these respects. Morgan v. New York Cent. R. Co., 327 Ill. 339; Pere Marquette Ry. Co. v. Anderson, 29 F. (2d) 479, 279 U. S. 851.

The evidence for plaintiff tended to show that when the deceased started to cross the tracks the gates were up and that the gates came down “at the same time the train came through.” This evidence was objected to by defendant upon the ground that there was no allegation of negligence with reference to the maintenance of the crossing in the declaration. The evidence was admitted, however, upon the authority of Chicago City Ry. Co. v. Jennings, 157 Ill. 274. Defendant requested that the court instruct the jury to disregard this evidence except as far as the same might be material in determining whether the intestate was guilty of contributory negligence, but these instructions were denied, and one of the principal contentions of defendant here is that the court erred in admitting this evidence and in refusing these instructions.

We entertain no doubt, as plaintiff asserts, the declaration states a good cause of action. The Jennings case compels this conclusion, but -this does not quite meet the issue raised. Plaintiff offered no evidence tending to show that defendant was negligent in any other respect, and the question raised by the receiving of this evidence over objection and the refusal to give the instruction asked is therefore of controlling importance.

In Toledo, W. & W. Ry. Co. v. Foss, 88 Ill. 551, it appeared that the declaration alleged that the defendant negligently ran a train of cars against a horse, and it was there held that proof that a gate was left down and that the train was not properly provided with steam brakes was not admissible. In Wabash, St. L. & P. Ry. Co. v. Coble, 113 Ill. 115, an instruction which stated in substance that the law imposed the duty on defendant to give signals to persons crossing a railroad track and to keep a lookout, was held to be erroneous because the particular negligence in this respect was not charged in the declaration. In Central Military Tract R. Co. v. Rochafellow, 17 Ill. 541, the declaration alleged that defendant negligently “drove, governed and directed said engine and cars,” and the court held that this allegation was not supported by proof of making up a train too heavy to be managed and controlled by the engine attached to it.

In Chicago, B. & Q. R. Co. v. Magee, 60 Ill. 529, the declaration averred that defendant carelessly ran, conducted and directed its train, and it was held that under this declaration the jury had no right to consider carelessness proved with reference to the equipment of the train with proper machinery. In South Chicago City Ry. Co. v. Purvis, 193 Ill. 454, the declaration' alleged that defendant negligently “managed and controlled said street car,” and it was held that evidence that the brake and controller upon the car were out of repair was admissible under this declaration. In Larson v. Hines, 220 Ill. App. 594, the declaration alleged negligence in running and managing the locomotive engines and trains, and it was held that evidence as to negligence in connection with the ringing of the crossing bell was inadmissib] e. In Rogers v. West Jersey & S. R. Co., 75 N. J. L. 568, 68 Atl. 148, plaintiff’s declaration charged the negligent operation of defendant’s train resulting in a collision with the wagon of plaintiff at a grade crossing, and evidence that there were gates at the crossing and that the gate-man was absent was held inadmissible to show negligence of defendant; but it was held that the same might be considered in determining whether the driver of the wagon was guilty of contributory negligence. In Atchison, T. & S. F. R. Co. v. Shaw, 56 Kan. 519, 43 Pac. 1129, the petition charged that “the engineer and servants in charge of said train, suddenly, carelessly, and with gross negligence, backed said train across said highway, striking the wagon in which plaintiff was riding.” Proof was offered that no gates were maintained and no flagman stationed at the crossing, and the court held that where the failure to maintain the gates was relied on as grounds of recovery, it ought to be alleged in the petition.

The necessity of the proof corresponding with the allegations of the declaration in an action in assumpsit is discussed in the recent case of Hamilton Co. v. Channell Chemical Co., 327 Ill. 362, where the court said:

“There is no rule of practice permitting a plaintiff to make one case by his declaration and another by his proof, nor could there be without subverting those principles upon which the science of pleading rests.”

Defendant here, as in the trial court, relies upon the Jennings case, but that case is not controlling. The question there arose upon a demurrer to plaintiff’s declaration questioning its sufficiency, and it was held that the declaration was sufficient. Here it is admitted that the declaration is sufficient but urged that certain evidence offered thereunder was inadmissible. The cases reviewed above are all cited in defendant’s brief, and plaintiff has not attempted to distinguish any one of these.

However, as sustaining the view that the evidence was admissible, plaintiff cites Cohen v. Chicago & Northwestern Ry. Co., 104 Ill. App. 314. In that case one count of the declaration alleged that defendant was negligent in that it did not, through a flagman or otherwise, give notice of the approach of its train. The court said that evidence of failure to maintain gates was not admissible to show negligence under that count, but that the fact was admissible on the question of plaintiff’s contributory negligence. The case is rather against the contention made here by plaintiff. The opinion expressly stated that the cause set forth in the count which alleged a failure to signal was not identical with one which charged a failure to maintain gates, but that evidence as to the condition of the gates was “competent evidence on the issue of due care of the deceased.” This rule of law is consistent with the instruction requested by defendant which was refused by the court.

Plaintiff also cites Chicago General Ry. Co. v. Carroll, 189 Ill. 273, which holds that where a declaration charging general negligence was filed, the statute of limitations did not run against specific acts of negligence not inconsistent with the general negligence as charged in the counts filed subsequently.

Plaintiff also cites Cook v. Chicago, B. & Q. Ry. Co., 193 Ill. App. 527, where it was held that proof that there was no brakeman on the rear car of a freight train was competent under a count charging general negligence in the operation, of the train, and plaintiff also cites Schultz v. Chicago & Alton R. Co., 213 Ill. App. 628, where evidence that defendant did not have the air ‘ ‘ coupled up ’ ’ on its train was held admissible under a similar count.

Plaintiff also calls attention to Illinois Cent. R. Co. v. Aland, 192 Ill. 37, where it was held that under a count which charged that defendant negligently moved a certain engine with great force against plaintiff, it was permissible to show that the bell was not rung or the whistle sounded. Beeson v. Vandalia R. Co., 161 Ill. App. 267, is also cited. In that case a count charging negligence generally in the operation of an engine was held sufficient on the authority of the Jennings case'.

Without discussing all these cases in detail, it is sufficient to say that each case upon which plaintiff relies is easily distinguishable. We hold that the evidence here offered as to the condition of the gates was admissible but only on the issue of contributory negligence, and that it was therefore error to refuse an instruction to that effect as requested by defendant.

Plaintiff offered no other evidence tending to show negligence on the part of defendant, and there is no evidence in the record from which the jury could reasonably find that defendant was negligent in any other particular, such as in the failure to blow the whistle or ring the bell. We have already pointed out that there is no competent evidence in the record tending to show that the whistle was not sounded or the bell rung.

Although plaintiff suggests the contrary, neither is there any evidence from which a jury could find that the speed at which the train moved was negligent. Defendant’s witnesses placed it at 30 to 40 miles an hour. There is no evidence in the record as to any statute or municipal regulation limiting the rate of speed at the place where this accident occurred, nor any evidence tending to show that the speed at which the train moved was unusual or dangerous. There was therefore no evidence upon which a jury might base a verdict of negligence in this respect. Chicago & Alton R. Co. v. Sanders, 154 Ill. 531; Morgan v. Rockford, B. & J. Ry. Co., 251 Ill. App. 127; Butler v. Illinois Traction, Inc., 253 Ill. App. 135, are only a few of the numerous cases that might be cited so holding under similar circumstances.

Plaintiff, however, urges that the doctrine of res ipsa loqiátur is applicable and that the verdict of guilty can be sustained upon that theory. Chicago Union Trac. Co. v. Giese, 229 Ill. 260; O’Callaghan v. Dellwood Park Co., 242 Ill. 336; Bollenbach v. Bloomenthal, 255 Ill. App. 305; Kiewert v. Balaban & Katz Corp., 251 Ill. App. 342; Feldman v. Chicago Rys. Co., 289 Ill. 25. In Feldman v. Chicago Rys. Co., the court said:

“The doctrine of res ipsa loquitur may be stated thus: When a thing which has caused an injury is shown to be under the management of the party charged with negligence and the accident is such as in the ordinary course of things will not happen if those who have such management use proper care, the accident itself affords reasonable evidence in the absence of an explanation by the parties charged that it arose from the want of proper care.”

The facts of this case do not bring it within that definition. The accident here is just as consistent with negligence on the part of the deceased as it is with negligence on the part of defendant. It would be an unwarranted extension of the doctrine of res ipsa loquitur to hold the same applicable to a case of this character.

Defendant contends that plaintiff’s intestate was guilty of such contributory negligence as to bar recovery. We think that under the evidence appearing in this record that contention must be sustained. The testimony shows without contradiction that plaintiff’s intestate was in good health; that his hearing and eyesight were good. There is no evidence as to his habits of prudence, care and caution.

The undisputed evidence shows that as the deceased approached the crossing he had an unobstructed view of the approaching train for two or three blocks. He was a pedestrian. He was unaccompanied by any other person and was without obligation at this time to provide for the safety of any other person. The crossing was clear of traffic. There was no other train or trains approaching from the same or different directions. The headlight on the train in question was burning brightly. The only circumstance which might be suggested as excusing the deceased’s presence upon the track at the time he was hit is one supported by the testimony of a single witness, whose testimony is highly improbable and against the preponderance of all the evidence, and who says that the gate was up.

Plaintiff has cited a number of cases to the proposition that a mere failure of a person approaching a railroad crossing to look and listen is not negligence as a matter of law. Elgin, J. & E. Ry. Co. v. Lawlor, 229 Ill. 621, 624; Chicago Junction Ry. Co. v. McAnrow, 114 Ill. App. 501; Eggert v. Pennsylvania Co., 189 Ill. App.. 58, are a few of the many cases cited. These cases in effect hold that a failure to look and listen cannot be said to be negligence as a matter of law where there are circumstances tending to excuse such failure. There might be circumstances which would excuse the driver of a team of horses but which would not excuse a pedestrian, and there might be circumstances, such as a congestion of traffic on the crossing or of an absence of light on the locomotive, or of persons whose hearing or eyesight were impaired, or other similar circumstances which would make an issue for the jury.

There are no such circumstances appearing in this record. Here there was nothing to confuse deceased, such as trains coming at the same time from the same or different directions. The situation was such that if the deceased had looked he would have seen the approaching train and the accident would have been averted. The only circumstance that would tend to excuse is the one which exists if we assume that the gates were up, as plaintiff’s uncertain evidence might tend to show. That one fact when considered with all the circumstances established in this case by uncontradicted evidence is insufficient to raise a question for the jury.

The allegation of due care under the law of this State is a material averment which plaintiff must prove affirmatively in order to recover. Newell v. Cleveland, C., C. & St. L. Ry. Co., 261 Ill. 505. In a recent case our Supreme Court said: “Mo one can assume that there will not be a violation of the law or negligence of others and then offer such assumption as an excuse for failure to exercise care.” Greenwald v. Baltimore & Ohio R. Co., 332 Ill. 627; Illinois Cent. R. Co. v. Oswald, 338 Ill. 270; Goodman v. Chicago & E. I. Ry. Co., 248 Ill. App. 128.

Upon the uncontradicted evidence we find that plaintiff’s intestate was guilty of negligence as a matter of law which precludes recovery.

For the reasons indicated the judgment is reversed with a finding of facts and judgment for defendant here.

Reversed with finding of facts and judgment here.

McSurely, J., concurs.

0 ’Connor, J.:

I think the judgment should be reversed and the cause remanded.

Finding of facts: We find as facts that defendant railroad company in this case was not guilty of any negligence proximately tending to cause the death of plaintiff’s intestate; that plaintiff’s intestate before and at the time of the accident which resulted in his death was guilty of such contributory negligence approximately tending to cause the injuries which he received and which resulted in his death as to prevent a recovery by plaintiff as a matter of law; that judgment should be entered here in favor of defendant and against plaintiff for costs.


author: Mr. Presiding Justice O’Connor

text:
    Charles S. Smith, Appellant, v. William Hale Thompson et al., Appellees.
    Gen. No, 35,736.
    Opinion filed April 25, 1932.
    Miller, Gorham & Wales, for appellant.
    Samuel A. and Leonard B. Ettelson, Edward G. Higgins and John G. Drennan, for appellees.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.

By this appeal the complainant, Charles S. Smith, seeks to reverse a decree of the superior court of Cook county sustaining the joint general and special demurrer of the defendants, William Hale Thompson and Richard W. Wolfe,, sued individually and as trustees of the William Hale Thompson Flood Relief Fund, James W. Breen and the Water Way and Flood Control Association of the Mississippi Valley, a corporation, and dismissing the bill for want of equity.

The record discloses that on February 7, 1931, complainant filed his bill. The substance of the allegations, so far as it is necessaryto state for the purpose of this opinion, is that during April and May, 1927, the Mississippi river and its tributaries overflowed their banks and caused great suffering to the residents of the Mississippi valley, a great many persons being made homeless; that the calamity was called to the attention of all the governmental agencies in the country and appeals for aid were broadcast; that on April 19, Grovernor Small of Illinois issued a proclamation calling on all citizens to contribute to funds to assist the flood sufferers in the southern part of Illinois, and designating the American Red Cross as the official recipient of the funds; that President Coolidge issued a call requesting contributions and that $750,000 was informally fixed as Chicago’s quota; that a number of meetings were held in Chicago, and Mayor Thompson issued a proclamation on April 20, 1927, calling upon .all citizens of Chicago to give promptly and generously in the emergency, and stating that such contributions would be received by the mayor’s relief committee in the city hall; that the proclamation was printed in all the newspapers and was broadcast by radio; that while some prominent citizens’ names were used as members of the relief committee, the funds collected and the whole management of the entire matter were conducted by Mayor Thompson; that the mayor stated the fund was for the immediate relief of the sufferers from the Mississippi valley flood; that more than $6,000 subscribed to the fund by teachers and pupils of the public schools was turned over on May 11; that a great many employees of the city and other persons subscribed to the fund, the total amount raised being more than $139,000; that from time to time Mayor Thompson caused to be paid out of the fund for the relief of the sufferers more than $31,000. It is alleged that Mayor Thompson also paid out of the fund sums aggregating about $5,000 for his private and political purposes, in no way related to the relief of the flood sufferers, and that he caused to be turned over more than $103,000 to the “Water Ways and Flood Control Association of the Mississippi Valley,” a corporation organized by himself and the defendants Wolfe and Breen, whose object was “to devise ways and means for the prevention of floods and to promote the development and extension of the waterways of the Mississippi valley, and secure the passage of such legislation as may be necessary therefor.” It was further alleged that all the payments except the $31,000 were diversions and a misuse of the trust fund; that Oscar E. Carlstrom, Attorney General of the State of Illinois, as such had an interest in the proper management and distribution of public charity funds and he was made a party defendant; that complainant was interested in the fund as a contributor, he having contributed $50 to the fund in May, and that he brought suit on behalf of himself and all other persons who had contributed to the fund. The prayer of the bill was for an accounting and a receiver, or, in the alternative that the fund be distributed cy pres to the American Bed Cross.

The Attorney General was served with summons but he filed no pleading and took no part in the suit. Afterward Mayor Thompson was succeeded in office by A. J. Cermak as Mayor of Chicago, who by his corporation counsel asked and obtained leave to intervene. He filed a petition seeking to have the funds turned over to the “Governor’s Unemployment Commission.” As stated, the defendants demurred generally and specially to the bill and to the intervening-petition of Mayor Cermak. The demurrer was sustained and the bill and intervening petition dismissed for want of equity, and complainant alone prosecutes this appeal.

The flood relief fund was a public charity, and as such was a trust fund over which a court of equity has jurisdiction, and it seems to be conceded by counsel for both parties that the court sustained the demurrer on the ground that the complainant, as a contributor of $50 to the fund, had no standing in a court of equity.

The chief question for decision in this case is: Has the complainant, as a contributor of $50 to the fund of $139,000 donated by many hundreds of people to be used for a public charity, a standing in a court of equity to enforce the proper administration of the trust fund?

The defendants’ position is that the Attorney General, or the State’s attorney, on behalf of the People of the State of Illinois, alone has the power to institute such suit. We think the defendants’ position must be sustained. 2 Perry on Trusts and Trustees (7th ed.), p. 1255; Clark v. Oliver, 91 Va. 421; Ludlam v. Higbee, 11 N. J. Eq. 342; Green v. Blackwell (N. J. Eq.), 35 Atl. 375; Strong v. Doty, 32 Wis. 381; 11 Corpus Juris, p. 367; Tyree v. Bingham, 100 Mo. 451; Dickey v. Volker, 321 Mo. 235; Newberry v. Blatchford, 106 Ill. 584; People v. Braucher, 258 Ill. 604; Petition of Burnham, 74 N. H. 492; Nolfe v. Byrne, 142 Tenn. 309.

So far as we are advised by the clear, concise and able,briefs filed by counsel for both parties in this case, the precise point has not been decided by the Supreme Court of Illinois. The question is not free from difficulty, but from a consideration of the authorities we are of the opinion that a contributor to a fund creating a trust for public charitable purposes where, under no circumstances, is there any right of reverter, and the contribution is made without reservation, has no right to call the trustees of the fund to account for a misapplication of the fund or any other breach of the trust.

Perry in his work on the law of Trusts and Trustees, vol. 2 (sec. 732a, p. 1255, 7th ed.), states the rule thus: “When a property has become fully vested in trustees for a valid charitable purpose, neither the donor nor his heirs have any standing' in court in a proceeding to compel the proper execution of the trust, except as relators.”

In Clark v. Oliver, supra (91 Va. 421), contributors to a fund for the education of negro children brought suit for themselves and other contributors, alleging that part of the fund had been diverted for the building of a church instead of being used for a school. A demurrer was sustained to the bill and upon appeal to the Supreme Court the decree was affirmed. The court there said (pp. 424-426): “The contributors to this fund parted with their interest in it, and when it was paid their control over it ceased. They are not described as persons belonging to the class intended to be benefited by the application of the fund. The money was devoted to a charitable use. As we have said, the whole interest of the donors was divested. There remained in them no scintilla of right. How then can they be heard in a court of equity with respect to the disposition of it? There is no such thing as a resulting trust with respect to a charity. . . . Where the donor has effectually passed out of himself all interest in the fund devoted to a charity, neither he nor those claiming under him have any standing in a court of equity as to its disposition and control. The law is so laid down in the case of Ludlam and others v. Higbee and others, 3 Stockton, 342 (11 N. J. Eq. 342), where it is said that ‘the contributors to a fund creating a trust for mere charitable purposes, cannot call the trustees of that fund to an account for a misapplication of the fund, or any other breach of the trust. There must be something peculiar in the transaction, beyond the mere fact of contribution, to give a contributor to a charitable fund a foothold in court to enable him to question the disposition of the fund.’

“It is said that a person who goes into a court of equity for such a purpose must have some interest in the trust. He must be a trustee, or cestui que trust, or have some reversionary interest in the trust fund. . . . In a suit to enforce a trust, if it appears that the plaintiffs have no direct interest in the enforcement of the trust, their bill will be dismissed. See 21 Barbour, 565; Perry on Trusts, section 873; and Story Equity Juris., section 1191.” And continuing the court said (pp. 427-428): “In our opinion, where contributors have subscribed to a fund for a charitable purpose, and have paid it over to the hand by which it is to be received and applied, their interest in and control over it cease and determine, and whatever jurisdiction is thereafter entertained by the courts with respect to the disposition and control of this fund must be called into active exercise either by the Attorney General, acting on behalf of the public, or by the trustees charged with its custody and administration, or by some person having a beneficial interest in the object of the trust.”

In Ludlam v. Higbee, supra (11 N. J. Eq. 342), quoted with approval by the Virginia court, it was held that as a general rule the contributors to a fund creating a trust for charitable purposes cannot call on the trustees of the fund to account for any misuse of the fund or for any other breach of the trust. In that case contributors to a trust fund for religious purposes filed their bill in which they averred that they were contributors to a fund raised by subscription for the erection of a church for persons holding the Presbyterian faith, “for the free and perpetual use of . . . visitors,” and it was alleged that the purpose of the trust had been violated when the property was conveyed to the Methodists, who afterward excluded all other denominations, as a result of which the complainant donors lost all their benefits and advantages thereof. The bill prayed for an accounting and the removal of the trustees. The court held that complainants were entitled to relief because the contributors to the fund “are interested in it as cestuis que trust.” But in passing on the rights of mere contributors to such a fund, the court said (p. 347): “It is insisted that the mere contributors to a fund creating a trust for charitable purposes cannot call the trustees of that fund to an account for a misapplication of the funds or any other breach of the trust. This is certainly true, as a general rule, and there must be something-peculiar in the transaction beyond the mere fact of contribution to give a contributor to a charitable fund a foothold in this court for the purpose of questioning the disposition of the fund. A party who comes into a court of equity for such a purpose must have some interest in the trust. In general he must be a trustee, or cestui que trust, or have some reversionary interest in the trust fund.”

In Green v. Blackwell (N. J. Eq.), 35 Atl. 375, it is said: “But I do not understand that a citizen of the State of New Jersey, not being a trustee or executor or otherwise especially interested, can file a bill in a case in which he seeks to do nothing more than vindicate a public right. In cases relating to charities, he may, indeed, be a relator in an information filed by the attorney general, but the presence of the attorney general is indispensable.”

In Strong v. Doty, supra (32 Wis. 381), land was conveyed to trustees to erect a house of worship for the use of members of the Methodist Episcopal Church according to the rules and discipline of the general conference of that church. The church was erected and used as such for about 30 years, when it was abandoned and the lot sold to parties who converted the property into a blacksmith and wagon shop. Suit was brought by one of the original grantors to enforce the trust. It was held the suit would not lie because the complainant was not shown to be a member of the Methodist Episcopal Church or to have any more interest in the property than had the general public, and that he could not maintain the bill merely on the ground that he was one of the original grantors. In stating this rulé of law the court said (p. 386): “It is not alleged that he is a member of the Methodist Episcopal Church or has any more interest than the general public in the maintenance of a house of worship upon that lot. The fact that he was one of the grantors who originally made the gift does not give him any greater interest in the faithful execution of the trust, or any superior right to insist upon its proper enforcement, than any other individual.”

In 11 Corpus Juris, page 367, the rule is stated: “As a general rule, the contributors to a fund creating a trust for mere charitable purposes cannot call the trustees of that fund to an account for a misapplication of the fund or any other breach of the trust. There must be something peculiar in the transaction, beyond the mere fact of contribution, to give a contributor to a charitable fund a foothold in court to enable him to question the disposition of the fund.” ■

In Tyree v. Bingham, supra (100 Mo. 451), suit was brought by the donors of a fund to prevent the diversion of the trust fund. The Attorney General was made a party defendant because he refused to be a plaintiff. It was held that no cause of action was stated and this judgment was upheld by the Supreme Court. The court there said (pp. 46A-465): “To the fund thus raised there is nothing in the petition that suggests the idea that the amount contributed by the plaintiffs in the way of monthly dues, or otherwise, was relatively so large as compared with the contributions of others as to give any color to the claim made for them by counsel that they, as founders of this charity and the donors of its funds, have some right of a visitorial character that a court of equity ought to protect. As donors they stand upon the same plane in a court of equity with hundreds of others, who in the same and in other ways contributed to this same purpose. As donors to the fund they have no pecuniary interest in it. . . . (p. 465) And it follows that, not being trustees of and having no interest in the fund, except the sentimental one that every person who contributed to it may be presumed to have, that it should be applied to the purpose for which it was contributed, they have no such interest in the fund, and sustain no such relation to it as to give them a cause of action for its misappropriation.”

And in the late case of Dickey v. Volker, supra (321 Mo. 235), where there is an elaborate review of authorities on the question of charitable funds, the doctrine announced in the Tyree case, supra, was adhered to, aiid it was held that the Attorney General alone had the power to institute a suit to see that the funds of a public charity were properly administered. And it was held that the objection of improper parties plaintiff was not obviated by making the Attorney General an unwilling party defendant. The court held that the Attorney General, under the facts disclosed in the case, was the only party who could maintain the suit, and said (p. 254): “He (plaintiff) argues that by the presence of the Attorney General all of the necessary parties are in court, but the Attorney General is not willingly in court. If the beneficiaries can be forced into court in this manner, then the Attorney General does not have the preclusive right to institute the suit. If he has that right, and we so hold, we are without authority to compel him as a party defendant to consent to the prosecution of the suit. Of course, if he did consent, as was done in the case of Women’s Christian Association v. Kansas City, 147 Mo. 103, 48 S. W. 960, there would be a different question for solution. If the appellant is without authority to institute the suit, the unwilling presence of the Attorney General as a party defendant does not confer that authority upon him.”

We think our own Supreme Court has held that the Attorney General alone has the right to bring suit for the claimed abuse of the trust of a public charity. In Newberry v. Blatchford, supra (106 Ill. 584), the court said (pp. 595-597): “But if it be assumed the name of the Attorney General was inadvertently omitted as a defendant to the original bill by accident or mere oversight, the difficulty does not lie in ascertaining the rule of law on this subject, but in its application. . . . The Attorney General, or other public officer whose duty it may be to have a care in such matters (public charity) is a proper party, either as complainant or defendant, and courts not infrequently hesitate to decree concerning a public charity unless the general law officer representing the donees is a party in some way. Exceptional cases are where the charity or bounty is in the hands of trustees charged by the donor specifically with its management for the cestuis que trust. There is much subtle learning in the books on this subject, but it is not deemed necessary to restate it, as it would tend in no considerable degree to enlighten the present inquiry. . . . Had it appeared the trustees were misappropriating the trust fund, it would no doubt have been the duty of the Attorney General to interpose for its preservation. It is only where the parties having charge of the fund unite in an abuse of their trust, and there is no one having a right to sue in his own name concerning it, as is the case with regard to a public charity, the suit must, ex necessitate rei, be instituted by the Attorney General.” And continuing the court said (p. 597): “But conceding the Attorney General was a proper party to the bill, it would be as co-complainant, and not as defendant. Complainants and the Attorney General all desired to have the same thing done, viz., a construction of the will of the testator.”

In People v. Braucker, supra (258 Ill. 604), it was held that the Attorney General or State’s attorney representing the public is charged with the duty of preventing a breach of the trust of a public charity, and that the suit could be maintained by such officers without making all members of the society to which the fund was given parties to the suit. In that case the bill was filed by the special State’s attorney in the name of tlie People to prevent a breach of a trust for public charity, and he was held to be the proper party complainant.

The Supreme Court of New Hampshire in the Petition of Burnham, supra (74 N. H. 492), held that where a valid charitable trust was created by a will, the heirs of the testator had no interest in the question of the execution of the trust apart from the general public whose rights it was the duty of the Attorney General to protect. The court there said (p. 494): “After ... it was determined that the trust was charitable, it became the duty of the Attorney General to see that the rights of the public in the trust were protected and that it was properly executed. The heirs had no interest in the question apart from the general public, whose rights were represented by the Attorney General.”

The same rule — that the Attorney General alone could maintain a suit to enforce the observance of the charitable trust — was followed by the Supreme Court of Tennessee in the case of Nolfe v. Byrne, supra (142 Tenn. 309). The court there said (p. 315): “Where there is a devise to a trustee for a definite charitable purpose and the subject of the devise is adequate for the effectuation of that purpose, a court of equity will at the suit of the Attorney General compel the observance of the trust.”

But counsel for the complainant say that it has been held by the courts of this and other States that a contributor to a public charity has sufficient standing in a court of equity to complain of abuses in the administration of. the trust. And the cases of McGee v. Vandeventer, 326 Ill. 425; Barker v. Hauberg, 325 Ill. 538; Garrison v. Little, 75 Ill. App. 402; People ex rel. Replogle v. Burnham Hospital, 71 Ill. App. 246; Tate v. Woodyard, 145 Ky. 613; Associate Alumni v. General Theological Seminary, 163 N. Y. 417; O’Brien v. PhysicictAis’ Hospital Ass’n, 96 Ohio St. 1; Mills v. Davison, 54 N. J. Eq. 659, are cited; but that in any event it is sufficient if an Attorney General is made a party to ,the suit either as complainant or defendant, citing Attorney General v. Newberry Library, 150 Ill. 229; Newberry v. Blatchford, 106 Ill. 584, and cases from other jurisdictions.

In the McGee case (326 Ill. 425) a suit was brought by the heirs of Thomas J. Caldwell, who by his will had left certain property to charities to be designated by his wife, Elsie Caldwell, during her lifetime. After his death his widow designated the beneficiaries in her will, and after her death it was contended that the designation was void and that certain of Thomas Caldwell’s property should be held to pass to his heirs, the complainants, as intestate property. The bill prayed for a partition of certain real estate. The Supreme Court held that the designation of the beneficiaries by the widow was properly made and that the complainants had no interest in it. The complainants were successful in the trial court, but on appeal the decree was reversed. The court there said (p. 439) : “The appellees (complainants) have no present interest or estate in the property which Thomas J. Caldwell owned in Ms lifetime and devised by his will. They have at best no more than a remote contingent interest — the mere possibility of reverter, which always exists in law in case of charitable bequests to corporations. (Mott v. Danville Seminary, 129 Ill. 403; Danville Seminary v. Mott, 136 id. 289.) The donor of property to charitable uses has a standing to appear in court to restrain the diversion of' the property from the charitable uses for which it was given. (Green v. Old People’s Home, 269 Ill. 134; Mills v. Davison, 54 N. J. Eq. 659; Chase v. Dickey, 212 Mass. 553.) This right of the donor to require the application of the property to the purpose for which it was given exists also in the heir, to whom the possibility of reverter passes upon the death of the donor.” And continuing the court said (p. 441): “The Attorney G-eneral or State’s attorney, representing the public, is charged with the duty of preventing a breach of a trust for a public charity or of requiring a restoration of a trust fund which has been diverted (People v. Braucher, 258 Ill. 604; Attorney General v. Illinois Agricultural College, 85 id. 516; Hunt v. Fowler, 121 id. 269'; Attorney General v. Newberry Library, 150 id. 229); though, as we have seen, the donor or his heirs have the right to restrain the diversion of property given to charity from the charitable uses for which it was given.” We think the McGee case is clearly distinguishable from the case at bar. In that case the heirs of Thomas J. Caldwell were claiming to own certain of the property which had been given to charitable purposes, and if they were successful the property would be taken from the public charity and revert to them. Obviously they had a standing in court. In the case at bar, the complainant claims no interest in the trust fund, and under the authorities above' cited and discussed he has, we think, no standing to maintain the suit.

In the Barker case, supra (325 Ill. 538), it was held that the directors, managers or other agents or employees engaged in the administration of a public charity had no right in a court of equity to compel the maintenance and operation of the charity in order that they may continue to render services in the administration of the charity; that if the property had been legally dedicated to the use of the public charity, the Attorney G-eneral was the proper party to prevent its diversion. And, after discussing the facts in the case, which showed that there was no right in the complainants to maintain the suit, it was said (p. 551): “A private individual not a donor of the property to the charitable purpose or the heir of a donor cannot complain of its diversion.” - This language was used arguendo in connection with the facts in that case, and by no process of reasoning can it be held that the court was laying down a rule of law that every donor of property to a public charity could maintain a suit to prevent a diversion of the trust fund.

In the Garrison case, supra (75 Ill. App. 402), cer tain property was bequeathed to three trustees to be used by them for the attainment of woman’s suffrage. The executors of the estate filed their final report and stated that the gift in question had lapsed by reason of the fact that two of the trustees had died. The third trustee filed objections to the report. The objections were overruled and an appeal taken to the Appellate Court. It was held that the bequest had not lapsed. It is to be observed that in that case the proceeding was in effect one brought by a trustee, and we think it clear that that case is not applicable to the facts in the case before us.

In the Burnham Hospital case (71 Ill. App. 246), it was held that a physician whose only interest in the government of a hospital was the hope of gains and profits that he might obtain from the practice of his profession, could not maintain a suit against the directors and managers of a hospital to compel them to allow him to practice his profession in the hospital, because he was not a beneficiary of the trust; and having disposed of this question the court said (p. 250): “The appellant was not a contributor to the fund by which the hospital was established, nor has he contributed to provide a fund to maintain it. The beneficiaries of the hospital are those unfortunates for whose relief and comfort it was established.” We think it clear that this case is not authority for the proposition that a donor to a fund to be used for a public charity has a right to maintain a suit to prevent a diversion of that fund.

In the Tate case (145 Ky. 613), Woodyard gave a lot and a building to house a church and a lodge. Afterward the lodge conveyed the property in fee simple to a third party, and thereafter Woodyard brought suit, claiming that since the property was no longer used for the purpose for which it was given, it should revert to him and that the deed from the lodge to the third party should be canceled and set aside, and asking other relief. The court said (p. 615): “The circuit judge granted the second prayer of the petition, and adjudged that the deed from Bobbins to Owens was and is null and void, that the attempted sale by Owens to Tate was null and void, and that neither Owens nor Tate acquired any right, title or interest in the land thereunder. The judgment went further and canceled the deed from Bobbins to Owens, and enjoined both Owens and Tate from occupying or exercising any act of ownership over any part of said parcel of land. The effect of the judgment was to uphold the trust.” The judgment of the lower court was affirmed. The deed from Woodyard there conveyed the property to a certain Masonic lodge for the “purpose of a lodge room and Baptist church and a graveyard.” There the grantor or donor was claiming that under the facts the property reverted to him, or, if this was found to be untenable, that the deed from the lodge to the third party be set- aside. We think these facts render the case distinguishable from the case at bar. That case is not an authority for holding that in every case a mere donor to a public charity fund has a standing in court to see that the fund is not diverted.

In Associate Alumni v. Theological Seminary (163 N. Y. 417) certain alumni of the defendant college raised a fund to endow a professorship. The donors reserved the right of nomination to any vacancy occurring in the professorship. Disputes arose between the defendant and its alumni, the defendant wishing to change the terms of the professorship and claiming to hold the fund as its own, subject to application for the benefit of the Seminary in such way as the defendant trustees might determine, while the alumni claimed the defendant held the fund solely as trustee “for the purpose and upon the conditions prescribed by the alumni.” It was held that under the facts disclosed in that case, the defendant had breached the duty in failing to comply with the terms and conditions of the donations. The court said (p. 422): “The general rule is, ‘If the trustees of a charity abuse the trust, misemploy the charity fund, or commit a breach of the trust, the property does not revert to the heir or legal representative of the donor unless there is an express condition of the gift that it shall revert to the donor or his heirs, in case the trust is abused; but the redress is by bill or information by the Attorney General or other person having the right to sue.” We think the facts in that case are not analogous to the facts in the case before us. There, the donors had raised the fund and given it to the defendant, reserving certain rights in themselves; while in the instant case there was no right reserved by the complainant when he donated the $50 to the charity fund.

In the O’Brien case, supra (96 Ohio St. 1), an action was brought by the hospital association claiming that the hospital was exempt from tax on account of it being a public charity, and the county treasurer was enjoined from attempting to collect taxes against the property. The court said that the evidence showed the hospital was conducted as a public hospital, open at all times to the public, and further said (p. 7): “It (defendant’s property) was purchased with trust funds donated for the purposes of a public charity hospital, and is impressed with that trust. . . . The donors of this fund have parted with all private ownership in the fund itself. They have no property interest in the fund, or the real estate purchased with the fund, and no rights whatever in relation thereto, except to compel the administration of the trust in accordance with the terms of the gift.” It does not appear from the case what the terms of the gift were. There was no discussion in that case about the question of the rights of a donor to maintain a suit seeking to prevent a misuse of the trust funds.

In the Mills case, supra (54 N. J. Eq. 659), a bill was filed to foreclose a mortgage belonging- to a church which had been conveyed to the church by Alfred Mills and wife, the conveyance being made upon condition that a building be erected on the property for public worship and teaching in accordance with the usages, rites and ceremonies of the Protestant Episcopal Church in the United States of America. Mills filed a cross-bill and claimed any surplus that might remain after the payment of the mortgage. The court held that Mills was not entitled to any surplus because he had conveyed away all his interest in the property, but said that he, as founder of the charity, had a standing in court to restrain the diversion of the property donated. This was said arguendo, and apparently it was not intended to lay down a rule different from that announced by the same court in Ludlam v. Higbee, 11 N. J. Eq. 342, supra.

From the foregoing we are of the opinion that a mere donor to a fund creating a trust for a public charity cannot call the trustees of that fund to an account for a misapplication of the fund, or any breach of the trust, unless there is something peculiar in the transaction beyond the mere fact of contribution.

But the defendants say that in any event the decree was wrong in dismissing the suit for want of equity because the Attorney General was made a party defendant, and since he filed no pleading and took no part in the case, it must be presumed that he was satisfied with what the complainant was seeking to do. Some cases which we have above referred to, such as the Newberry case, 106 Ill. 584, have said that the Attorney General should be a party to such a proceeding either as complainant or defendant. That case was brought to construe a will, and the question of the enforcement of a public trust was not considered. We have above quoted from that case, in which it was stated: ‘1 Conceding the Attorney General was a proper party to the bill, it would be as cocomplainant, and not as defendant.” Obviously, where the complainant is trustee, beneficiary or donor, under certain conditions, the Attorney General must be made a party defendant, and in other cases it is equally obvious that he should be made the complainant. And even if the Attorney General were made a party defendant when he should have more properly been a cocomplainant, yet if the record discloses that he was looking after the interests of the public in the suit, any decree that might be entered ought not to be disturbed, if it was warranted under the pleadings and the evidence, because the Attorney General was nominally on the wrong side of the case. But in the instant case the complainant having donated $50 to the fund of more than $139,000, which fund was donated by a great many people, and since we hold that the complainant had no standing in a court of equity, under the facts disclosed by the record, we think his disqualification to maintain the suit was not obviated by merely joining the Attorney General as a defendant.

The question of the propriety of sustaining the demurrer to the intervening petition of Mayor Cermak is not before us since he made no complaint and-has not appealed.

The decree of the superior court of Cook county is affirmed.

Affirmed.

McSurely and Matchett, JJ., concur.