text:
    The People of the State of Illinois ex rel. Christ Anderson et al., Appellees, v. Village of Bradley et al., Appellants.
    Gen. No. 9,156.

      Opinion filed January 18, 1937.
    E. A. Marcotte and Chas. D. Henry, both of Kankakee, for appellants.

      W. H. Dyer, and Eugene J. LaMarre, both of Kankakee, and David Jetzinger, of Chicago, for appellees.
   Mr. Presiding Justice Huffman

delivered the opinion of the court.

This is a petition for mandamus against appellants to compel a levy of the limit of taxation each year until a certain judgment against the village is paid. It appears by the petition that the village of Bradley entered into a contract with one M. C. Connors for the construction of a sewer; that the contract was completed and accepted and the acceptance duly confirmed by order of the county court, on February 15, 1922; that the cost of said project was the sum of $307,-511.69; that the village collected by special taxes from the property owners of said sewer district a total sum of $315,991.08; and that from this sum of special assessments so collected by the village, it wrongfully diverted therefrom the sum of $25,094.23.

The petition alleges that appellees Shaw and Bran-non, Adm’rx, instituted their suit in assumpsit against the village, in January, 1932, as assignees of Connors, the contractor who constructed the sewer, and recovered a judgment against the village in the sum of $54,119:21. The court in that judgment held the same to be subject to money due from Connors to certain materialmen, among whom were appellees, Christ Anderson, who was adjudged to be entitled to a lien against such judgment in the sum of $14,843.25, and Antoni Jelieniewski, who was adjudged to be entitled to a lien against the judgment for $6,586.30. The other persons granted liens against the judgment are not parties to this mandamus proceeding.

The appellees in this case filed their petition for mandamus against appellants in June, 1936, in which they set up that the village has not paid them anything by virtue of their aforesaid judgment obtained in 1932, and pray that a writ of mandamus may be issued directing appellants to levy the legal limit of taxes against all the property in said village, and to pay to appellees the excess taxes over and above the amount necessary to run the city, until they shall have had satisfaction of their judgment. Appellees filed answer to the petition and among other things set up that the running expenses of the village were greater than the revenue, and that no possible excess in the revenue could equal the annual interest charge upon such judgment and therefore it could never be paid. The answer of appellants was stricken upon motion of appellees, and order entered for the writ as prayed. This appeal follows.

The rule that mandamus will not issue unless a clear legal right thereto is made to appear, is so well established that we do not consider a citation of authorities therefor necessary. The question to be determined in this appeal is whether the petition of appellees shows a clear legal right to the writ. For this reason, the answer of appellants was not referred to in detail, as the same was stricken on motion, and the writ ordered issued upon appellees’ petition.

It appears by the allegations of the petition that the village wrongfully diverted the sum of $25,094.23 from the special assessments collected from the property owners in the sewer district. The parties to this petition are seeking to enforce against the taxpayers of said village, the payment of a judgment far in excess of the amount of money alleged to have been wrongfully diverted by the village from the special assessment fund, to which appellees and their assignor are by law required to look.

Section 39 of the Local Improvements Act, Ill. State Bar Stats. 1935, ch. 24, IT 164; Jones Ill. Stats. Ann. 76.046, in relation to sewer districts, provides that the same shall have definitely described boundaries. Property located in the village of Bradley and lying without the boundaries of the sewer district, cannot be taxed to pay for the construction of such sewer. In proceedings under the Local Improvements Act for the construction of proposed projects, the law requires that an assessment roll shall be prepared with respect to the lands lying within the district or territory of the proposed improvement, upon which special assessments are to be levied for the payment of the cost of such improvement. Lands outside the boundary of the proposed improvement district and not a part of the assessment roll, cannot be taxed to pay for any such improvement, because, before a landowner’s property can be taxed in a local improvement project, he is entitled to the notice provided by statute, and "the opportunity to be heard in court regarding the question of costs and benefits. Therefore, the judgment sought to be enforced by this petition being one approximately twice in amount to the sum alleged to have been wrongfully diverted from the special assessment fund collected, seeks to impose a greater burden of taxation than the petition shows the petitioners therein to be entitled. Furthermore, we are of the opinion that a municipality cannot be compelled to pay special assessment bonds out of its general fund, unless it has wrongfully diverted such money to its general fund. If any such assessments are diverted to another special assessment fund, then the taxpayers of the city as a whole, could not be taxed for the repayment of such money, because their property might not be situated within the district to which the money had been diverted. Neither could the property within the original district be liable, because property cannot be taxed twice to pay for the same object. Berman v. Board of Education, 360 Ill. 535, 543. There is nothing in the petition to show to what fund or to what purpose the village wrongfully diverted the special assessment money involved. Therefore, there is no way to determine whether it was diverted to the general fund and used to pay the general current expenses of the village, which would render it a proper obligation upon all taxpayers of the village, or if it was diverted to another special assessment district. The series of assessment bonds falling due each year are payable out of the special assessments due and collected for that particular year. In other words, each series of special assessment bonds must look to the particular instalment out of which they are payable, and not to some other instalment, because each year’s instalment of special assessment taxes is assessed, extended and levied, based upon the maturing bonds of that series, and on no other.

Appellees rely upon two cases in support of the judgment herein (Conway v. City of Chicago, 237 Ill. 128, and Shade v. City of Taylorville, 212 Ill. App. 512). It is recognized in the Conway case that a city is not liable generally for the unpaid balance due a contractor for work done as a local improvement project to be paid for by special assessment, (p. 135.) In that case, the city had made certain rebates to the property owners, which the party suing claimed were illegal and should be paid him by the city. With respect to this situation, the court said: “If appellant (the city) is required to pay appellee these rebates, the effect of it will be to establish a general liability against the city for the mere neglect, default or mistake of its officers in regard to the levying and collecting of a special assessment.” (p. 138.) It was suggested in that case that difficulties arising out of the lapse of time would prevent the collection of the rebates by the city by a supplemental assessment. In answer to this, the court stated: “However this may be, we are not inclined to extend the general liability of a municipality for special assessments beyond that which results from a failure to pay over money actually collected by it.” (p. 139.) The case of Shade v. City of Taylorville recognizes the same limitation upon the part of the city in its duty to account for special assessment funds, to those actually collected. In that case, at p. 513, it is stated that one of the questions is: “Whether it (the city) has now or has had and still should have in its possession, funds which should be applied to the payment of the unpaid balance. ...” Both of the above cases relied upon by appellees were suits in assumpsit. It has been said that if a city neglects or refuses to discharge its duties in connection with the levy and collection of special assessments provided for in the ordinance under which the improvement was made, that the remedy of persons entitled to have such assessments levied and collected was by mandamus to compel the performance of such duties; and that where the assessments had been levied and collected, and nothing remained to be done except to pay them to the parties entitled to them, that assumpsit was a proper remedy to compel the city to pay over the money. Conway v. City of Chicago, supra, p. 135.

Payment of special assessments by the property owner must be made to the person or persons indicated by statute. Funds collected by virtue of a levy of a special assessment to pay for a local improvement should be applied to the purpose to which the statute requires them to be applied. To say that a wrongful conversion of such funds by the city treasurer or a wrongful diversion thereof to some other special fund would again subject the property owner to a payment of the same assessment, would be to hold that a property owner could be compelled to pay the same instalment of special assessment taxes as many times as a city treasurer misused the money. This is not the law. Berman v. Board of Education, supra. The money collected by virtue of such assessments does not belong to the city. Such money constitutes a trust fund for the payment of the bonds issued for the cost of the improvement. Rothschild v. Village of Calumet Park, 350 Ill. 330, 339, 340. Any surplus remaining after payment for the improvement and costs, belongs to the property owners whose property was assessed. Dudick v. Baumann, 349 Ill. 46; Donahue v. Village of LaGrange, 263 Ill. 607, 614.

There must be some responsibility recognized by persons who seek and accept positions of public trust, otherwise the citizen has no protection against the arbitrary and unlawful acts of such officials. If the individual is unwilling to accept the responsibility involved, he should not seek or accept the office. It is to be presumed that public officers will properly discharge their duties. The courts will not anticipate that they will attempt to evade a plain statutory duty. No uncertainty can be said to exist with respect to the disposition of special assessment funds. They are purely a creature of statute and are collected under a special ordinance. The treasurer is required to keep a separate account for each such special assessment district and the tax extended against each lot, block, tract and parcel of land therein situated. The instalments paid the treasurer by each such district are to be applied upon the payment of bonds of the series that mature against that particular instalment, together with interest coupons falling due. A city treasurer and his bondsmen should be held to account for the wrongful, arbitrary, and unlawful misuse of such funds. The habit of public officials charged with the disbursement of tax money, of unlawfully using one tax fund for purposes other than those for which it was collected and intended by statute, is a vicious practice and one not to be countenanced by the courts. When such acts are continued, they invariably lead to complications.

The petition discloses that petitioners are the assignees of Connors, the contractor, who installed the sewer; that they took a judgment against the village for $54,119.21 as such assignees, in 1932; and that they seek by this present action to compel the village to levy a general tax to pay such judgment. Under the holding in Conway v. City of Chicago, supra, a city is not liable generally for the unpaid balance due a contractor, for a local improvement project, which is to be paid for by special assessment. The petition alleges that from the amount of special assessment funds collected by the village, it wrongfully diverted the sum of $25,094.23. Under the holding in Conway v. City of Chicago, supra, this would impose upon petitioners a limitation of that amount, as it is there held the city is liable generally, only for the special assessment funds actually collected and diverted. In addition to the above defect of the petition, is the further fact that it does not appear for what purpose the money was diverted or to what use it was put. As previously stated, we are of the opinion that property of property owners lying outside the improvement district, could not be legally subjected to a tax to repay a special assessment fund which had been wrongfully diverted by the public officers, unless such money went into the general fund of the city for general corporate purposes, in which event each property owner and taxpayer would have received his proportionate benefit of such fund. But if it was diverted to another special fund, the entire municipality should not be held to account therefor by a general tax levy.

The disposition of this case is based upon the following leg-al principles: (1) A city is not liable generally for the unpaid balance due a contractor, for a local improvement project, which is to be paid for by special assessment. (2) A city is not liable generally for special assessments, beyond those actually collected. (3) In the event of a diversion of such funds, the city is liable generally to account only for money diverted to general corporate purposes.

In view of the foregoing, the petition herein fails to show a clear legal right to the writ, but on the contrary, presents a state of facts which are directly in conflict with the law governing the case.

The judgment of the circuit court in awarding the writ is reversed.

Judgment reversed.


source: Caselaw Access Project

author: Mr. Presiding Justice Huffman

license: Public Domain

text:
    Edith L. Belding, Individually and as Administratrix of the Estate of Wilbert D. Belding, Deceased, Appellee, v. Harlow H. Belding et al., Appellants.
    Gen. No. 9,162.
    Opinion filed January 18, 1937.
    George W. Thoma, of Wheaton, for appellants; Francis L. Zimmermann and Herbert A. Grotefeld, of Downers Grove, of counsel.
    Walter E. Moss, of Chicago, for appellee.
   Mr. Presiding Justice Huffman

delivered the opinion of the court.

This was an action in debt by appellee against Harlow H. Belding and others, who were obligors upon an appeal bond given in the appeal of Belding v. Belding, 281 Ill. App. 351. Defendants filed answer. Appellee filed her motion to strike same for insufficiency. Appellants were given leave to file an amendment to the answer. An amendment thereto and a counterclaim were filed. On motion of appellee, the answer and amendment thereto and the counterclaim were stricken, and judgment by default entered against appellants, from which judgment they bring this appeal.

One who submits to a default, upon appeal, will be held to have admitted all that is well alleged against him. Roe v. County of Cook, 358 Ill. 568, 570; Seither & Cherry Co. v. Board of Education, 283 Ill. App. 392. Edgar E. Belding and his two sons, Wilbert D. and Harlow H., entered into a partnership agreement to engage in the general contracting business, in February, 1918. In 1928, Wilbert died, leaving appellee as his surviving widow. In 1931, appellee filed in the circuit court of DuPage county, her bill for an accounting, settlement, and division of partnership property, under the provisions of the Uniform- Partnership Act (Ill. State Bar Stats. 1935, ch. 106a; Jones Ill. Stats. Ann. 97.01 et seq.). That case came to this court. (Belding v. Belding, 272 Ill. App. 196.) It was removed to the Supreme Court on writ of certiorari. (Belding v. Belding, 358 Ill. 216.) The Supreme Court made computation of the amount due appellee, and reversed and remanded the case to the circuit court with directions for it to enter a decree in accordance with such views. Whereupon, the circuit court of said county did enter its decree in conformity with the views expressed by the Supreme Court in its above opinion. The appellant, Harlow H. Belding, prosecuted an appeal to this court from the decree of the circuit court entered in accordance with the mandate of the Supreme Court. In prosecuting such last named appeal, Harlow H. Belding and the other appellants to this suit, signed the appeal bond given in connection therewith. It is upon this appeal bond that this action of debt is brought.

In appeals of the above character, the only question presented is whether the decree entered by the lower court is in accordance with the mandate and directions of the court of review. This court held on the above appeal (Belding v. Belding, 281 Ill. App. 351), that the decree as entered by the trial court complied with the directions and views expressed by the Supreme Court. The judgment of the trial court was affirmed, and leave to appeal denied. The appellants in that case, not having satisfied the decree against them entered in conformance with the mandate of the Supreme Court, by paying to appellee the sum of money found due her and ordered paid, appellee instituted this present action in debt to recover upon the appeal bond.

We have considered the contentions of appellants in connection with the record in this case and do not find wherein the trial court committed error.

The appellee filed her motion to dismiss the appeal. We do not deem it necessary to consider such motion in the disposition of this case.

The judgment of the trial court is affirmed.

Judgment affirmed.


author: Mr. Justice Dove

text:
    W. E. Banik, Appellee, v. Bishop-Stoddard Cafeteria Company, Inc., Appellant.
    Gen. No. 9,127.
    Opinion filed January 18, 1937.
    Galbraith & Monk, of Peoria, for appellant.
    Johnson & Potter, of Peoria, for appellee.
   Mr. Justice Dove

delivered the opinion of the court.

This is an action brought by W. E. Banik against Bishop-Stoddard Cafeteria Co., Inc., an Iowa corporation, and Cyril Kegler, its president, to recover damages for an* alleged breach of contract. The declaration consisted of the common counts, to which the defendants filed the general issue and two special pleas. One special plea alleged that the several supposed promises set forth in the declaration were not evidenced by any writing signed by the defendants and therefore were within the statute of frauds; the second special plea averred that the supposed promises set forth in the declaration were without any consideration and therefore void. The issues formed by these pleadings were submitted to a jury and at the conclusion of plaintiff’s evidence he, the plaintiff, dismissed Ms suit as to the defendant Kegler; At tMs time and also at the close of all the evidence, the defendant moved for an instructed verdict. Both motions were denied and the jury returned a verdict finding the remaining defendant, Bishop-Stoddard Cafeteria Company, guilty and assessing “the plaintiff’s damages at $758.00 and legal rate of interest from November 8, 1932.” The court denied motions of the defendant, for judgment notwithstanding the verdict, in arrest of judgment and for a new trial, but ordered a remittitur of $350 and interest, which the plaintiff entered and thereupon judgment was rendered in favor of the plaintiff and against the defendant for $408 and costs of sMt, and from that judgment an appeal has been prosecuted to this court.

An examination of the record discloses that at the beginning of the trial it was stipulated by counsel that this suit was instituted to recover $678 damages for breach of an alleged contract, said amount of $678 being the difference between the alleged contract price of 48 shares of the preferred stock and 54 shares of the common stock of the defendant corporation, wMch the plaintiff claims the defendants agreed to purchase, but which they did not purchase, and the actual sale price for which said preferred and common stock was sold by the plaintiff. The stipulation is further that the breach of the alleged contract consisted of the failure of the defendants to accept and pay for the stock in question. The evidence discloses that what is spoken of in the record as a unit of this stock was two shares of preferred stock and one share of common stock. Appellee therefore owned twenty-four units and in addition thirty shares of common stock. On October 26, 1932, appellee was discharged from his position as manager of appellant’s Peoria cafeteria, a position which he had held for some time, and being desirous of selling his stock had a conversation with Kegler on either November 1st or 2nd, 1932. According to appellee’s testimony, Kegler, as a representative of appellant, told him to send his stock in to the company, and that appellant would purchase it at $42 per unit. Kegler does not deny this but further testified that appellant was desirous of maintaining the good will of appellee toward appellant’s cafeteria in Peoria and its offer to purchase appellee’s stock was made with the understanding* that appellee would “maintain his good will toward the Bishop-Stoddard Cafeteria in Peoria.” Appellee denied that as a part of the stock transaction anything was said by either party with reference to appellee not saying or doing anything* detrimental to appellant’s good name and denied that he had started any rumors about why he was discharged or that he had not at all times “maintained his good will toward the cafeteria.” On November 8, 1932, appellee wrote Kegler in which he stated: “Upon thinking* over our conversation in regard to my stock with the BishopStoddard Cafeteria Co., I have decided to turn it in. I feel that I am going to need the money, so as per your agreement will accept the $42.00 per unit. According to my checking I have forty-eight preferred and fifty-four common, how does this check with your records ? How do you want to handle this, do you wish the stock mailed in or handled through the bank here, or wait until you are over here again?” On November 18, 1932, appellant’s president replied to this letter stating that his delay in answering was caused “by various rumors of a very disturbing* nature that we have been investigating before fulfilling our part of the stock bargain.” This letter concluded by stating that the writer would drop appellee a line or see him personally within a couple of weeks and expressing the hope that in the meantime appellee would be successful in relocating himself. Thereafter appellee drew a.sight draft on appellant, to which he attached his certificates of stock and deposited the same in his local bank for collection. Appellant did not accept the draft and it and the accompanying’ certificates of stock were returned to appellee. On November 28, 1932, Kegler, as president of appellant, wrote appellee as follows: “We are not able to understand receiving notice from the bank this morning of a sight draft being received there with your stock attached. I am sure that we had a clear understanding when and how this was to be handled. This idea of forcing the issue in this manner is very vividly a further indication that you do not intend to deal with us fairly and squarely. We have been aboveboard in every move with you in this deal, and no one on earth can say that you were not treated with more than fairness, especially toward one being discharged for incompetency. Your tactics, assuming’ the attitude that they do, of clearly indicating unwillingness to cooperate, has altered our side of the deal considerably. A decision of the Executive Committee this morning carries instructions to me to herewith withdraw our offer to purchase your stock. You may get in touch with Scott McIntyre Co., Merchants National Bank Building, this city, if you desire to dispose of it. It is indeed regrettable to us that our efforts to have a happy parting of the ways has not met with like desire and action on your part. ’ ’

Thereafter and on January 5,1933, appellee sold his stock in the appellant company through N. L. Rogers and Company, brokers of Peoria, Illinois, to Scott, McIntyre and Company of Cedar Rapids, Iowa. The sale was in two lots, one lot consisting of 24 units which .was sold for $25 per unit and the other lot consisting of 30 shares of common stock which was sold for $5 per share, which the proof shows was the best available price at the time the stock was sold. Thereafter, on January 20, 1933, this suit was instituted, the trial being had in April, 1936.

The declaration consisted of the common counts and counsel for appellant insists that such a declaration will not support the judgment. The evidence discloses that this action is brought by the plaintiff to recover damages for a breach of an executory contract. The evidence is that appellant did not receive, accept or pay for any part of the stock and that no part of the alleged contract to purchase the stock was performed, but it remains wholly executory and that appellee instituted the suit to recover damages for breach of such contract. Counsel for appellee state that this is a proceeding to recover the difference between the contract price and the price appellee realized from the sale of his stock upon the market and insist that where the proof shows that one party to a contract has repudiated the contract, the injured party may treat the repudiation as putting an end to the contract for all purposes and sue under the common counts for the profits he would have realized. In support of this proposition, counsel cite Puterbaugh Common Law PI. and Pr. (10th Ed.) 156 and the case of Baker v. Stoner, 213 Ill. App. 571.

“Indebitatus assumpsit will lie to recover the stipulated price due on a special contract, where the contract has been completely executed, so that only a duty to pay the money remains and the agreement may be read in evidence to show its terms and measure the damages. . . . The common counts can not be resorted to where there is a special contract, and the breach of the contract is the gravamen of the action. In such case the plaintiff must declare specially. . . . Where there is a subsisting unexecuted agreement, indebitatus assumpsit will not lie. . . . Where one party repudiates the contract and refuses longer to be bound by it, the injured party has an election to pursue any one of three remedies: He may treat the contract as rescinded, and recover upon quantum meruit so far as he has performed: or he may keep the contract alive for the benefit of both parties, being- at all times ready and able to perform, and at the end of the time specified in the contract for performance, sue and recover under the contract: or he may treat the repudiation as putting an end to the contract for all purposes of performance, and sue for the profits he would have realized if he had not been prevented from performing. Where the injured party elects to keep the contract in force for the purpose of recovering future profits, treating the contract as repudiated by the other party, in order to sustain a recovery the plaintiff must allege and prove performance upon his part or a legal excuse for nonperformance. The common counts are sufficient, however, if the contract is treated as abandoned and the plaintiff claims no benefit from it.” Puterbaugh Common Law Pleading and Practice, 10th Ed., pages 155-158. In support of the last two sentences, the author cites the case of Baker v. Stoner, supra. It appears in that case that the plaintiff sought to recover for labor and material furnished by him in building a dwelling house for the defendant. His declaration consisted only of the common counts, to which the defendant plead the general issue. The evidence upon the trial disclosed that the work had been begun and prosecuted under a written contract between the parties, but before the work was completed, the defendant had ordered the plaintiff to quit work and leave the premises and thereupon the plaintiff treated this action of the defendant as a repudiation of the contract and brought suit to recover for the labor and material which he had furnished. It was contended by the defendant that there could be no recovery under the common counts but the court held that the plaintiff was entitled to recover the reasonable value of his labor and of the material furnished, less whatever sum had been paid him under the contract.

It will be seen that Baker v. Stoner, supra, was a suit to recover the reasonable value of the labor expended and material furnished the defendant by the plaintiff after the defendant had compelled the plaintiff to abandon his written contract and the Appellate Court properly held that under the authorities the plaintiff could so recover under a quantum meruit count. In the instant case appellee did not seek to recover what his shares of stock were reasonably worth, but sought to compel appellant to respond in damages for breaching its contract and the law is that indebitatus assumpsit will not lie where it appears there is a subsisting unexecuted agreement and where there is a special contract and the breach thereof is the gravamen of the action, the plaintiff must declare specially and the common counts cannot be resorted to. Puterbaugh Common Law PI. and Pr., supra.

In Cliitty on Pleading (12th Am. Ed. Yol. 1), 345-347, the author says: “In order to maintain a count for goods sold and delivered, it is essential that the goods should have been delivered to the defendant, or his agent or to a third person. . . . The common counts for goods sold can not be maintained and it is necessary to declare specially in the following cases: . . . 4thly. If there has been no delivery of the goods, even the count for goods bargained and sold (not showing a delivery) can not be maintained, unless it appear that there has been a complete sale and the property in the goods had become vested in the defendant by virtue of such sale, and an actual acceptance of the commodity by the defendant. . . . Where the defendant refuses to receive goods which he has agreed to purchase, the special counts are not only necessary, if the property in some identical goods has not become vested in the defendant, but are at all events essential in order to recover any expenses which may have been incurred. ’ ’

Brand v. Henderson, 107 Ill. 141, was an action brought to recover the price of wheat, which the plaintiff, a broker, bought for the defendant. In its opinion the court set forth an instruction which the trial court had given and in commenting upon the same said: “A recovery on the case stated in the instruction was not admissible under the common counts. The contract between the plaintiffs and defendants was never performed. It was entirely executory. The title to the wheat never vested in the defendants. In the case stated in the instruction no money was paid out by plaintiffs for use of defendants. There is no count for goods bargained, sold, and offered, but not received,. For such a cause of action the count must be special. ‘If there has been no delivery of the goods, even the count for goods bargained and sold (not showing a delivery) can not be maintained, unless it appears that there has been a complete sale, and the property in the goods had become vested in the defendant by such sale, and an actual acceptance of the commodity by the defendant.’ (1 Chitty’s Pleading, 347; Seckel v. Scott, 66 Ill. 106.) A tender of goods, or offer to deliver the same, is not sufficient, under such circumstances. The contract must be specially set out, and the damages can not be recovered under the common counts. (Outwater v. Dodge, 7 Cowen [N. Y.] 85, 87.) Where suit is for the recovery of damages for breach of contract, the count must be special. If he recovers, it is for the damages he has sustained by the breach of the contract; (Burnham v. Roberts, 70 Ill. 24.) It is only where the contract has been fully performed, and nothing remains' to be done but the payment of the money, that the common counts are applicable. (Throop v. Sherwood, 4 Gilm. 92.) ‘In such a case as this the declaration should be framed specially on a contract for not accepting the goods, or for refusing to complete the bargain. ’ 1 Chitty’s Pleading, 347, note.” See also Clause v. Bullock, Printing Press Co., 118 Ill. 612; Morris v. Jamieson, 205 Ill. 87; Thorn v. Danzinger, 50 Ill. App. 306.

In the early case of Rollins v. Duffy, 14 Ill. App. 69, it was held that the common counts cannot be resorted to where there is a special contract and the breach of the contract is the gravamen of the action. In such cases the plaintiff must declare specially. “When a special contract is open and unexecuted and the plaintiff proceeds for a breach of it, he must declare specially and set it out and aver a breach.” Moulton v. Trask, 9 Metcalf 577. “No recovery can be had upon an executory contract under the common counts. ’ ’ Sergo v. Bloch, 263 Ill. App. 198, and the contract, to recover for a breach of which this action was instituted, is an executory contract. Ullmann v. Kent, 60 Ill. 271, at page 273.

Morris v. Jamieson, supra, was an action on the common counts for money had and received. At the conclusion of the plaintiff’s evidence a directed verdict for the defendants was returned upon which judgment was rendered. In affirming the judgment of the Appellate Court, which affirmed the judgment of the circuit court, the Supreme Court stated that the position taken by the defendants and evidently entertained by the trial and Appellate Courts was that the action could not be maintained under the common counts and if it could not be, then the trial court properly instructed a verdict for the defendants. In its opinion the court said: “From the declaration, of course, it cannot be determined what the exact nature of the action was, but looking to the evidence, or the case as the evidence tends to make, it shows an action for a breach of contract. . . . The evidence in this case not only did not tend to establish a canse of action for the plaintiff, but shows that under the declaration filed he had no cause of action, and the instruction for a verdict for appellees was properly given.” So in the instant case, appellant, by its respective motions at the close of the evidence on behalf of the plaintiff and again at the close of all the evidence, moved the court for an instructed verdict and the record discloses that counsel for appellant, at the close of all the evidence, stated to the court that under the pleadings in this case, there can be no recovery by the plaintiff and that the court should direct a verdict for the defendant. In this state of the record, it cannot be said, as counsel for appellee contend, that the sufficiency of the declaration to support the judgment was not raised in the trial court. Furthermore, appellant’s motion in arrest of judgment specifically stated that the declaration was insufficient in law to sustain this judgment.

The trial court erred in not directing a verdict at the close of appellee’s evidence for appellant and for that error the judgment will be reversed and the cause remanded.

jReversed and remanded.


text:
    William N. Duffield, Administrator of the Estate of Arthur Orth Rader, Deceased, Appellee, v. Grace A. Rader, Individually and as Executrix of the Last Will and Testament of Florence Rader, Deceased, Appellant.
    Gen. No. 9,153.
    Opinion filed January 18, 1937.
    Paul J. Graham, of Aledo, and Wood & McNeal, of Moline, for appellant.
    Roswell B. O’Harra, of Macomb, for appellee.
   Mr. Justice Dove

delivered the opinion of the court.

On December 15, 1931, this suit was instituted by William N. Duffield, administrator of the estate of Arthur Orth Rader. His bill alleged that his intestate died on May 7, 1927; that previous to his death he was possessed of $12,153.34, which he desired to invest in real estate in Mercer county, Illinois; that he appointed his sister, Florence Rader, his ag*ent to carry out such purpose and delivered to her said sum of money with specific instructions to use said money in the purchase of the old home farm; that Florence Rader received said money as such agent but violated her instructions and failed and neglected to carry out her principal’s directions and instead of purchasing said farm, loaned the money to her brother Fred and as security for the repayment thereof on or before May 17,1933, received from Fred a conveyance of certain real estate described in the bill. The bill then alleged the death of Florence Rader on March 8, 1931, the admission of her will to probate, the appointment of Grace A. Rader as her executrix, to whom she devised and bequeathed all her property, and the inventorying of the conveyance from Fred as an asset of her estate. The bill then alleged that said conveyance from Fred was in fact a mortgage and held by Grace in trust for the benefit of complainant as administrator of the estate of Arthur Orth Rader and prayed that the court so decree. Fred Rader defaulted. Grace A. Rader, individually and as executrix of the will of Florence Rader, answered denying that Arthur Orth Rader appointed Florence Rader as his agent for the purpose of investing the amount mentioned in the bill or any other sum for the purpose stated in the bill, admitted that Florence received from her brother a certain sum of money which she loaned to Fred and as security for its repayment Florence received a deed from Fred to the premises described in the bill. The answer then avers that the money which Florence received from her brother, Arthur Orth Rader, was received by her as a gift and after its receipt no one other than Florence Rader had any interest therein. The cause was referred to the master, who took the evidence and reported that the material allegations of the bill had been proven and recommended a decree in accordance with the prayer of the bill. The chancellor overruled all exceptions to the master’s report, approved and confirmed the findings and conclusions of the master and entered a decree directing Grace A. Rader to forthwith execute and deliver to the complainant a conveyance of the real estate which Fred had conveyed to. Florence and directing Fred to pay the specified principal sum and interest to the complainant. From this decree an appeal to this court has been prosecuted.

The evidence discloses that Charles Rader, the father of Arthur Orth Rader, Florence Rader and Grace Rader, owned 80 acres of land in Mercer county upon which he lived at the time of his death. He died intestate prior to the death of Arthur Orth Rader and left him surviving besides Arthur, Florence and Grace four other children and two grandchildren, who were children of a deceased daughter. Florence, called “Flo” by her intimates, was the oldest daughter. She never married but as the family grew up and scattered, she remained at home, took care of the younger children and waited upon her parents until their death and finally she was left alone on the home place. Grace, a younger sister, was a school teacher and in 1927 was teaching a school north of New Boston about 10 miles distant from the home place. She returned each evening except when the roads were bad or storms made it impossible for her to travel. Arthur Orth Rader, appellee’s intestate, known as “Orth” by his family and friends, went to California and accumulated considerable wealth. In the fall of 1926 Orth was visiting his relatives in Mercer county and found his sister Florence living on and managing the home place. He returned to California and from his home in Sacramento, on May 2,1927, he sent his sister the following letter :

“Sacramento, California,
May 2, 1927.
“Dear Sister Flo:
I received your letter sometime ago, but have been too sick to answer. I am enclosing two checks for $6,000.00, each, for you to use in buying the old home place, if it can be bought for yourself. I want to be sure that you got this before anything happened to me. Have Fred take you to Aledo and help you through with it.
“I thought the $12,000.00 would take care of it with your share out of it. Julia is writing this letter for me, as I am too sick to write. I received Fred’s letter a long while ago, but didn’t answer because I feel too bad to write. No more now.
“Julia will write you tomorrow.
“With love,
Orth”

The evidence is further that four days after sending his sister the letter of May 2, 1927, Orth died at his home in California. He was married but had no children. Upon the hearing Grace Bader produced the letter of May 2,1927, and called as a witness by appellee, testified that when she returned to the home place from her school in the evening of May 6, 1927, her sister Florence showed her the letter and drafts and on that day or within a day or two thereafter the drafts were deposited to the credit of Florence in a savings account at a bank in Aledo. She also testified to an incident that occurred at the time of Orth’s visit to the home place the preceding fall. At that time this witness testified that Florence was getting ready to make a kettle of soap and while she was in the house “Orth stood there looking at the project Florence was going to work up and it touched him and he broke down and cried saying: ‘I am so sorry to see Flo working so hard’ and he turned to me and said: ‘Now Grace, I am going to provide for Flo.’ He did not want her to come to want and stated that she had been a mother to all of us and she was worthy of being taken care of and he was going to provide for her-”

It further appears from the evidence that the two checks referred to in the letter of May 2, 1927, were drafts issued by a bank in California, drawn on the National City Bank of New York and were payable to the order of Florence Bader by whom they were indorsed and delivered to the Farmers National Bank of Aledo, Illinois, on May 6, 1927, and this bank, on that day issued to Florence Bader its four per cent certificate of deposit for $12,000 payable to Flo Bader, 10 months after date. On February 23, 1928, Florence loaned the $12,000 to her brother Fred and subsequently received from him as security therefor a deed to a farm which Fred owned.

Harry Proutv testified that he was 60 years of age, lived three-quarters of a mile from the Bader farm, went to school with Orth Bader and knew him well; that on the day before Orth started back to his home in California, in the fall of 1927, Orth came to the home of this witness and told him that he had means and could leave Florence with enough to take care of her and still leave his wife with plenty of means; that most of the children had homes of their own; that Florence had had two opportunities to have a home of her own but her folks prevailed upon her to give those opportunities up and help with the rest of the family and he felt she should have had the home left to her, but it wasn’t done that way; that he had means to help her and she would be taken care of; that no one could be forced to sell his or her interest in the home farm but he was going to send money to his sister which she could use as she pleased. Mrs. Harry S. Carlton also detailed a conversation which she had with Orth just before he returned to California for the last time in which Orth told her that he thought Flo was overworked and “knowing my closeness to her thought I would be interested in knowing that he felt he was able to take care of her, that he had been blessed financially in making money, knew this was his last visit here as he was not well and could die easier knowing that Florence was taken care of. ’ ’ There is evidence that Glenn, one of the brothers who had an undivided interest in the home place, could not be located and that the 80 acres was worth in 1927 approximately $200 per acre and that Orth told Florence before he went to California the last time that if he couldn’t come back he would send her enough money to pay $200 per acre for the land and that he wanted Florence to pay the heirs off and get a deed for the home place, and if they couldn’t locate Glenn they could put the money in the bank for him.

The foregoing is a fair résumé of the material evidence in this record. It is the contention of appellant that this evidence does not establish an agency and trust but a completed, executed gift. Counsel for appellee insist that this evidence discloses that Orth sent his sister $12,000 to invest in the home place; that until it was so invested it was Orth’s money in the hands of Florence as his agent, and not having been so invested before his death, she held it in trust for the benefit of his estate and that into whatever form the money went, it was still impressed with the trust. Counsel for appellee further state that there is no claim in this court and never has been that the money was to be invested for Orth Bader. His bill of complaint, however, charges that Orth Bader had, in his lifetime, the sum of $12,000' of his own money which he was desirous of investing in real estate in Mercer county, Illinois; that to invest in said real estate he appointed his sister to carry out such purpose and delivered to her as his agent said money with specific instructions to use said money in the purchase of the old home farm and she, Florence Bader, received said sum with directions to purchase said farm from the owners thereof. The decree which we are reviewing found specifically that “in Ms lifetime Arthur Orth Rader had $12,000.00- of his own money which he was desirous of investing in real estate in Mercer County, Illinois; and to invest in said real estate he appointed Florence Rader, his sister, Ms agent, and to carry out such purpose he delivered to Florence Rader, as his agent, $12,000.00 with specific instructions to use said money in the purchase of the old home farm.” In our opinion, if the bill was not meant to charge that Orth was desirous of investing $12,000 of his own money in Mercer county real estate for the benefit of Mmself, the pleader used the wrong words to convey Ms meamng. The allegation is that Florence Rader was appointed agent of Orth Rader to invest Orth’s money in Mercer county real estate. If the money was not to be invested for Orth, the principal, then it must have been sent by the principal to the agent to be invested by the agent for the benefit of the agent, but if this was what the pleader meant to charge, he was unfortunate in the use of the word investing because “in all cases of investment, although the specific character of the property is changed, the title and control remains with the investor.” Words and Phrases, Yol. 4, page 3756.

In our opinion the evidence does not show that Orth Rader constituted Florence Rader his agent for any purpose. He stated orally that he thought the home place should have been left to his sister Florence and said he was going to send his sister money which she could use as she pleased; that he was not well, had been blessed financially and would die easier knowing she was taken care of. In order to carry out this intent, he procured two drafts, each for $6,000 and delivered them, by mail, to tMs sister and in the letter which accompanied the drafts said: “these are for you to use in buying the old home place, if you can, for yourself. I want to be sure you got this before anything happened to me.” In our opinion the meaning which Orth wished to convey to his sister by the nse of these words was that he wanted her to receive this money, not the home farm, because he said he didn’t know whether the farm could be bought or not. He wanted her to have the money before he died and expressed the desire that if the home place could be bought, he wanted Florence to buy it for herself and sent her $12,000 for that purpose. There is nothing in this letter which would indicate that Orth retained any interest in this money or any part of it or that Florence was to do anything for Orth or that Orth considered himself as principal and Florence his agent for any purpose. Orth knew the interest of the missing brother Glenn could not be obtained, had stated his intention of giving1 Florence this money and carried out that intention by sending it to her and completing his intended gift to her.

As stated in Smith v. Baxter, 239 Ill. App. 453, the crucial question in controversies concerning gifts is that of delivery and the quo animo it was done. In the instant case, as in the Smith case, supra, the delivery of the money was completed and the representative of the recipient insists it was a gift and in our opinion the evidence in this record supports this claim. The brother’s desire that if the home place could be bought he wanted his sister to buy it for herself is not in our opinion a condition precedent which prevented the vesting of the title to this money in Florence, the sister. Orth did not, as we construe his letter, attach or intend to attach any condition to the vesting of title in this money in his sister.

It is essential to a gift inter vivos that it be absolute and irrevocable, that the donor part with all present and future dominion over the property given; that the gift go into effect at once and not at some future time, and that there be a delivery to the donee and such a change of possession as to put it out of the power of the donor to repossess himself of the property. Suchy v. Hajicek, 364 Ill. 502. We believe all of these elements are shown to be present in the instant case and the chancellor erred in not entering a decree dismissing* the bill for want of equity.

The decree of the circuit court of Mercer county is reversed and the cause remanded with directions to dismiss the bill for want of equity.

Reversed and remcmded with directions.


author: Mr. Justice Wolfe

text:
    The People of the State of Illinois ex rel. Thomas D. Reilly, Appellee, v. City of Kankakee et al., Appellants.
    Gen. No. 9,097.

      Opinion filed January 18, 1937.
    T. R. Johnston and Victor N. Cardosi, both of Kankakee, for appellants.
    Noel A. Diamond, of Kankakee, for appellee.
   Mr. Justice Wolfe

delivered the opinion of the court.

On June 12, 1936, the petitioner herein filed a petition in the circuit court of Kankakee county, praying for a writ of mandamus directed against the defendants, the city of Kankakee, mayor, clerk, treasurer and the members of the board of fire and police commissioners of the city of Kankakee, commanding them to reinstate the petitioner as a city fireman and to place him on the payroll of the fire department of the city as of May 4, 1933. By an ordinance adopted in 1898, the city of Kankakee established a fire department and created the offices of one chief, one assistant chief and 10 firemen in that department. On September 4, 1928, the voters of the city adopted the Fire and Police Commissioners’ Act. (Ill. State Bar Stats. 1935, ch. 24, If 958 et seq.; Jones Ill. Stats. Ann. 21.711; SmithHurd Ill. Rev. Sts., ch. 24, If 838 et seq.) On June 7, 1933, the petitioner filed his oath and bond as a city fireman. He served continuously as a fireman from August 5, 1933, to May 4, 1935, and received a fireman’s salary from the City during that time.

A person claiming rights as an officer by virtue of his office and seeking payment for salary of a public officer, by mandamus, must show that he is an officer de jure, and not merely an officer de facto. (Moon v. Mayor, 214 Ill. 40; Wilcox v. City of Chicago, 107 Ill. 334; City of Pekin v. Industrial Commission, 341 Ill. 312; Schmitt v. Dooling, 145 Ky. 240, 140 S. W. 197.) Counsel in the case agree that the case turns On the question whether the petitioner has by competent evidence established his appointment as a de jure officer and shown a clear legal right to the writ. The circuit judge, after hearing- evidence, ordered the writ issued as prayed in the petition.

It is contended by the defendants, as an error relied upon for reversal of the case, that the order is based on evidence aliunde of the records of the board of fire and police commissioners and that the ordinance of 1898 provided for 10 firemen, and the petitioner has not shown that he is one of the 10 provided for in the ordinance.

The parties have stipulated that on May 26, 1933, the petitioner took the examinations for city fireman as required by the rules and regulations of the board of fire and police commissioners of the city. They have further stipulated that certain men, whose names are stated in the stipulation, were legally appointed officers and members of the fire department on May 2, 1927, by the mayor and city council and that they continued as such to and including June 6, 1933. The petitioner claims that on June 7, 1933, he was informed by the board that he had successfully passed the examinations, and on August 5, 1933, the board appointed him a permanent member of the fire department. It is a matter of controversy between the parties if the records of the board of fire and police commissioners show the appointment of the petitioner, or any firemen, since June 6, 1933.

On May 1, 1935, the mayor demanded the resignations of the members serving on the fire department, including the petitioner. They refused to resign and the mayor attempted to appoint other men to fill their places. From May 1, 1935, to May 4, 1935, the members whose resignations had been demanded and the men, appointed by the mayor, claiming- to be city firemen, all responded to fire alarms. This state of affairs, the old members of the fire department have now attempted to remove, by 14 of them, including the petitioner and one other not an old member, filing separate petitions of mandamus for right to be reinstated as firemen, or to be placed on the eligible list. The petitioner’s case is the first one of 14 to be appealed to this court, although we were informed on oral argument before us that an appeal has been perfected in one of the other cases.

The action of the mayor asking for the resignations of the members of the fire department and naming-other members thereon, was taken on May 1, 1935, and on May 4, 1935, the board of fire and police commissioners passed a resolution bearing on the subject. This board was appointed by the mayor on May 2, 1935, and the answer of the defendants ’ states that the term of office of one of the members had expired; that one of the two remaining members had failed to qualify as a commissioner, and that only one member was removed when the board was appointed on May 2, 1935. It is not contended that this new board was not legally appointed or constituted.

The resolution adopted by the new board is substantially as follows: That two groups of city firemen are now claiming the right to serve as firemen; that the records of the fire and police commissioners, as now appearing to us, do not show who are qualified members of the fire department; that section 11 of the Fire and Police Commissioners’ Act, Ill. State Bar Stats. 1935, eh. 24, f[ 968; Jones Ill. Stats. Ann. 21.721, provides that the commissioners may in extraordinary exigencies make temporary appointments to remain in force until regular appointments may be made under the provisions of the act and not in any event to exceed sixty days; that in the opinion of the commissioners, an extraordinary exigency exists, because two sets of firemen are claiming the right to act as firemen. Be it resolved, that by virtue of said section 11, the following persons are hereby appointed temporarily to the following positions as firemen, until further action of the board, not to exceed sixty days, to wit: (naming officers and members of the fire department.) Be it further resolved, that a copy of the resolution be delivered to the mayor, secretary of the board and that a copy be served upon each claimant together with notice of the action of the board; that the action of the board, or of each claimant affected thereby, shall not be taken or construed as prejudicial to any right or defense that each of said claimants may have.

The officers and members of the fire department named in the resolution were the same persons appointed to those places by the mayor. A copy of the resolution was served on the petitioner. Five days before July 1, 1935, the petitioner was given a notice, signed by the fire and police commissioners, that a hearing would be held on July 1, 1935, in the mayor’s office, at 10 o’clock, on petitioner’s demand, dated June 7, 1935, for reinstatement as a fireman, at which time he might appear and show cause why he should be reinstated and why the board should not make his suspension permanent and discharge him on the ground that the board is unable to determine which, if any, of the firemen were legally appointed to the office of firemen. The petitioner did not appear at the hearing. At the trial of this case, he testified that he had filed his petition of mandamus before the.notice was served on him, and that after July 1, 1935, he received a notice stating that he was discharged as a city fireman for not appearing at the hearing held on July 1, 1935:

Paragraph eight is the material charging part of the petition. It alleges, in part, as follows: “That on June 7, 1933, your petitioner was notified that he had successfully passed the said examinations, and on said last mentioned date the said board of fire and police commissioners temporarily appointed your petitioner to the said position of fireman in the fire department of the City of Kankakee, and thereafter on August 5, 1933, the said board of fire and police commissioners appointed petitioner as a permanent member of the fire department of said City in the position of fireman thereof; that thereafter the said board posted a list of (roster) permanent members of said fire department, and the name of petitioner appeared thereon as .one of the permanent members thereof.”

The answer denies that the petitioner was temporarily appointed to the office of fireman, or that on August 5, 1933, he was permanently appointed a member of the fire department; that the board by its action of August 5, 1933, or at any time appointed petitioner a regular member of the fire department, and that no action was taken by the board at any time subsequent to August 5, 1933, and prior to May 1, 1935, relative to making appointments to positions as firemen. Answer further denies that the board posted a “roster of the permanent members of said fire department,” and denies that petitioner’s name appeared on such roster as one of the permanent members thereof.

The answer alleges that at the time of the alleged appointment of the petitioner to the office of fireman, there were no vacancies in the department to which petitioner was or could be appointed and that there were then serving in the department 10 firemen who had been serving as members of the department for more than one year prior to the adoption of the Fire and Police Commissioners ’ Act by the defendant, city, and who were also serving as firemen at the time of such adoption of said act, and that such firemen were never discharged or removed under the rules of the board; that they were still serving at the time of the alleged appointment of the petitioner. The answer further alleges that on May 2, 1935, when the present members of the board were appointed to office, there was no so-called “roster” on file in the office of the board which showed that the petitioner had ever taken or passed any examination for a position in the fire department, or that the petitioner had ever been appointed on the department. The answer further alleges that neither the rules of the board nor the Fire and Police Commissioners ’ Act provides for the keeping of any “roster of permanent members,” but alleges that the act provides that an “Eligible Register,” shall be kept showing the results of all examinations taken before the board and containing the names of those who are eligible for appointment to positions in the fire department, and that such eligible register is not a “roster of permanent members.” The answer also alleges that section 2, rule eight, of said board provides that a civil list shall be kept of all persons in the classified service, but that no eligible register or civil list was on file with the board on May 4, 1935, or kept by the board.

The answer denies that the petitioner was a de jure member of the fire department at or prior to the time that the petition of mandamus was filed, or that petitioner was ever appointed a fireman under the rules of the board or the provisions of the Fire and Police Commissioners ’ Act.

The answer alleges that at the time of the alleged temporary appointment of the petitioner that the board attempted to appoint 13 persons to the office of firemen, but that the ordinance creating the fire department then in force, provided for only 10' firemen; that it is impossible to determine which 10 of the 13 so named, were legally appointed firemen. The answer also sets forth, verbatim, the minutes of the board and that such minutes, or records, show the only action taken by the board relative to the appointment of petitioner to the office of fireman.

There was a replication filed and the issue was made whether the records of the board show the appointment of the petitioner, a city fireman, as alleged in his petition for mandamus.

We state at this point that while the stipulation of the parties admits that the petitioner took the examinations for city fireman, as required by the rules and regulations of the board, it is contended by the defendants that there is no record of the board showing, by reason of the petitioner having taken the examinations, that he was appointed either temporarily or permanently a city fireman. This point of the absence or existence of a record of the board showing appointment of the petitioner is a matter of dispute between the parties.

Section 14 of the Fire and Police Commissioners’ Act, Ill. State Bar Stats. 1935, ch. 24, fí 971; Jones Ill. Stats. Ann. 21.724, provides as follows: 1 ‘ Such board may employ a secretary, or may designate one of its own members to act as such. He, as such secretary, shall keep the minutes of its proceedings, shall be the custodian of all papers pertaining to the business of such board, keep a record of all examinations held and shall perform such other duties as such board shall prescribe.” The board appointed the city clerk of Kankakee, secretary of the board.

The petitioner was the first witness at the hearing of the case. He testified that on June 7, 1933, the chairman of the board said that, “I was placed on the fire department.” This testimony was objected to as not being the best evidence. The court held that the record of the board was the best evidence to prove the appointment of the petitioner as fireman, but took under advisement a motion to strike the answer of the petitioner from the record. Thereupon, the petitioner called the deputy city clerk as a witness, who identified certain records and documents. At the conclusion of her testimony, they were introduced in evidence as petitioner’s exhibits and will be referred to by number, as they appear in the record. No. 2 is the examination paper and answers, dated May 26, 1933. No. 3 is covered by stipulation of the parties which recites, “Petitioner’s name is registered as No. 126, as applicant for examination to be held by fire and police commissioners on May 26, 1933, at City Hall Building at Kankakee; that register of names is kept by secretary of the commission for purpose of registering applicants for positions.” No. 4 is an application by petitioner for a position on fire department. No. 5 is a medical examination, report on physical condition of petitioner.

Petitioner’s exhibit No. 6 is the minutes of the meeting of the board of fire and police commissioners held August 5, 1933, the material part of which is as follows: “Moved by Member Klaiss, seconded by Member Halsey, that the police and firemen be given permanent assignments except John Berg, who was to be made chief. Motion carried.”

Petitioner’s exhibit 7 is headed, “Roster of firemen and their Percentages.” . . . Thos. Reilly, (Petitioner) 92%; lists 14 others having a passing grade of 70% or more. Roster signed, “Fred C. Klaiss, Fire and Police Commissioners.” Exhibits 8 and 9 are respectively the oath and bond of the petitioner as city fireman.

The deputy clerk testified that exhibits 4 and 5 were not in the possession or keeping of the city clerk, as secretary of the board, at any time until June 7, 1935, but that one of the commissioners brought them to the clerk on that day. The deputy testified that she did not know whether the name “Fred Klaiss” appearing on the roster was in the commissioner’s handwriting or not.

It is to be recalled that on August 5, 1933, the board passed a motion, “That the police and firemen be given permanent assignments.” The defendants introduced in evidence the minute book of the board, which is the only record of the board expressly relating to the appointment of city firemen from June 7, 1933, to May 4,1935. There are no minutes of the board showing the appointment of firemen except the minutes of the meetings of the board held on June 7, 1933, and August 5, 1933. The minutes of the meeting held on June 7,1933, state: “Upon motion of Member Klaiss, seconded by Member Halsey, that the following men be assigned to temporary duty as follows: Motion carried.” Thirteen men were named as firemen in the motion, as shown by the minutes of the meeting of June 7, 1933, two of them as extra firemen. The petitioner was not named in the motion or minutes as one of the firemen assigned to temporary duty. The 13 men thus named in the motion, were selected from the “Roster of Firemen and their Percentages.” Three of the 13 men thus assigned to temporary duty as firemen, were designated in the motion as “Captain.” The parties have stipulated that the ordinance of the city did not provide for the position of captain in the fire department. Ten of the men named in the motion have filed petitions for writs of mandamus to compel the board to place them on the fire department or on the eligible list thereof. The status of the other four petitioners for writs of the same character do not appear in the record, excepting that of the petitioner now before this court.

It is the contention of the petitioner that on May 4, 1935, the day on which it is alleged the petitioner was suspended, he was a de jure officer, and in support of this contention he relies on the exhibits introduced in evidence by him. “We contend,” it is stated by counsel for the petitioner, “that on August 5, 1933, the petitioner qualified to be appointed as a fireman inasmuch as he had passed the examinations given by the commissioners, and had filed his bond and oath, and, although the resolution of August 5, 1933, does not name the firemen appointed, we contend that the action taken on that day by the commissioners is sufficient to establish that the petitioner was duly appointed to the office of fireman.”

As applicable to this case, we are of the opinion that official action can be taken by the board of fire and police commissioners only at an official meeting of the board and its records are the only lawful evidence of its action, which record cannot be changed by parol. People v. Chicago & E. I. Ry. Co., 306 Ill. 402; Combs v. Bonnell, 33 Ky. L. 219, 109 S. W. 898; Jones v. Doherty (Tex. Civ. App.), 56 S. W. 596. The facts that the petitioner passed the examinations of the board of fire and police commissioners required of applicants for firemen, and gave bond and took the oath as a fireman, do not estop the defendant, city, from denying that he was a de jure officer, nor affect the legal rule that he must show his appointment by the records of the board. Kenneally v. City of Chicago, 220 Ill. 485; Howard v. Mueller, 252 Ill. App. 10.

It is further argued by petitioner’s counsel, “That in view of all other evidence in this record, especially all the records of the proceedings as shown in the minutes of the commissioners, petitioner’s Exhibit 7, fairly reflects the proceedings had by the commissioners and that it does not supplement any record and is a record within itself.” Exhibit 7 is the “Roster of Firemen and their Percentages.” This roster is not a record of the board showing the appointment of the petitioner as a city fireman. There is not anything in the records of the board showing that petitioner was ever appointed a city fireman and the allegations of the petitioner with reference to his temporary and permanent appointment as a fireman are not sustained by the evidence.

The judgment of the circuit court is hereby reversed.

Reversed.


text:
    In re Estate of Philip Goldberg, Deceased. Goldie Goldberg, Appellant, v. Minnie Libby Goldberg, Appellee.
    Gen. No. 9,126.

      Dove, J., dissenting.
    Opinion filed January 18, 1937.
    Shulman, Shulman & Abrams and Raymond Faiwell, all of Chicago, for appellant.
    Edward J. McArdle, Jr., of Chicago, for appellee.
    Harry C. Kinne, pro se.

   Mr. Justice Wolfe

delivered the opinion of the court.

This case is brought to this court on appeal from a decree of the circuit court of Lake county, in which the appellee, Minnie Libby Goldberg, was declared to be the legal widow and heir at law of Philip Goldberg, deceased.

For a great many years, Philip Goldberg lived in Highland Park in Lake county, Illinois. His first wife was Minnie Libby Goldberg. Minnie Libby Goldberg was adjudged to be insane on August 22, 1906. She was committed to the Elgin Hospital for the insane at that time, and has remained in this institution as an insane person up until the day of the trial of this case. Philip Goldberg, now deceased, filed his bill for divorce June 28, 1909, in the circuit court of Cook county, charging his wife with extreme and repeated cruelty. He alleged that the acts of cruelty were committed prior to the time that she became insane. In his bill, he alleged that he was a bona fide resident of Cook county, State of Illinois, for more than a year. The defendant, Minnie Libby Goldberg, was personally served with a summons to appear and defend the suit. On motion of the complainant’s attorney, the trial court appointed Harry C. Kinne, an attorney at law, as guardian ad litem to represent Mrs. Goldberg in the divorce proceeding. An answer was filed by Mr. Kinne alleging that Mrs. Goldberg was an insane person, who was confined in the Elgin State Hospital for the insane. The answer denied each and every material allegation of the bill and called for strict proof of the same.

A hearing was had on the bill and answer before the court. Philip Goldberg testified that he had been an actual resident of the State of Illinois for 25 or more years, and for the past three years had been an actual resident of Cook county and that he lived at 238 West 14th street in Chicago, Illinois. He proved several instances of his wife’s severe and repeated cruelty toward him, prior to the time that she was adjudged insane. On July 29, 1909, the court entered a decree finding that Philip Goldberg was an actual resident of the city of Chicago, and a resident of the State of Illinois, for more than one year prior to the filing of his bill for a divorce. The divorce was granted.

Shortly after Philip Goldberg obtained his decree of divorce from Minnie Libby Goldberg, he was married to Goldie F. Davidson, in the city of Kenosha, Wisconsin, and they lived together as husband and wife until the death of Philip Goldberg.

After the death of Philip Goldberg, letters of administration were taken out on his estate in probate court of Lake county. Minnie Libby Goldberg, through her attorney, asked the probate court of said county to declare that the divorce proceeding held in Cook county in 1909, — wherein Philip Goldberg was the complainant and Minnie Libby Goldberg the defendant, — be held null and void, because Philip Goldberg* and his attorney had perpetrated a fraud upon the circuit court of Cook county in that, at the time of said divorce proceeding, the said Philip Goldberg was not a resident of Cook county, but was a bona fide resident of Lake county; and that said circuit court did not have jurisdiction in the case. A hearing* was had before the probate court and the court found against Minnie Libby Goldberg*. The case was appealed to the circuit court of said county and after a hearing before the court, the court found in favor of Minnie Libby Goldberg. An order was signed finding that at the time of said divorce proceedings, the said Philip Goldberg* was not a resident of Cook county, but a resident of Lake county, and that said Philip Goldberg* and Harry C. Kinne, the attorney and guardian ad litem for Minnie Libby Goldberg, in said divorce proceedings, had perpetrated a fraud upon the court and induced the court to take jurisdiction of the case and grant the divorce, and that the court was without jurisdiction to hear said case and said decree was null and void, and that Minnie Libby Goldberg* is the lawful widow and an heir at law of Philip Goldberg, deceased. ■ It was from this order that this appeal has been perfected.

Section 5 of chapter 40, Ill. State Bar Stats. 1935, H 6; Jones Ill. Stats. Ann. 109.173 (Smith-Hurd Annotated Statutes) relative to the venue in a divorce proceeding is as follows: “The proceedings shall be had in the county where the plaintiff resides, but process may be directed to any county in the State.” This section of the statute is mandatory in regard to where the complainant in a divorce proceeding must file his suit, and to give the court jurisdiction, the plaintiff must reside in the county in which he filed his suit. This court in the case of Sommers v. Sommers, 16 Ill. App. 77, so held, and to the same effect is the case Way v. Way, 64 Ill. 406. Horix v. Horix, 256 Ill. App. 436.

At the hearing before the circuit court, the appellee introduced numerous witnesses to testify to the place of residence of Philip Goldberg at the time he filed his divorce proceeding in the circuit court of Cook county. To review this evidence would serve no material purpose, but we have read the abstract and also the record of the testimony of the various witnesses who testified in the case, and it is our conclusion that the evidence clearly shows, and we so find, as a matter of fact, that at the time Philip Goldberg filed his suit for a divorce in Cook county, and at the time of the hearing of the same in said court, he was not a resident of Cook county, but was a bona fide resident of Lake county.

The question then arises in what court can the validity of this divorce proceeding be questioned. Is it necessary to file a bill of review, or some other appropriate action in Cook county to question the validity of this divorce, or can it be raised, as it is done, in this case by a collateral attack? It is insisted by the appellant that a divorce decree procured by fraud cannot be collaterally attacked and the recitals in the decree are conclusive in our courts. There are many cases that hold that this is the correct rule, but there are exceptions to this rule and the main one is that where the fraud which gives the court, only colorable jurisdiction, renders the decree void and subject to collateral attack. From the evidence in this case, it is our opinion that Philip Goldberg perpetrated a fraud upon the circuit court of Cook county, and gave it only colorable jurisdiction to hear his case, and that the decree rendered by the said court was void and subject to collateral attack. Our courts have frequently held that a decree will not be set aside upon the ground that it was obtained by false evidence, but only for fraud that gives the court colorable jurisdiction. Evans v. Woods-worth, 213 Ill. 404; Caswell v. Caswell, 120 Ill. 377. The case of Field v. Field, 215 Ill. 496, is, in many respects, similar to the one now before us. The action was brought in the probate court in Cook county by the appellee, to have a widow’s award allowed, as fixed by the appraisers of the estate of James H. Field. It appears that Frances C. Field was married to James H. Field; that James H. Field in December, 1878, filed a suit for a divorce in Boone county, Nebraska, in which he alleged he was a resident of Nebraska one year and was then a resident of Boone county in said State. He was granted a divorce on the hearing of his case. In April, 1879, he married Cloe M. Field and they lived together until his death, which occurred in 1894. The only question to be determined, was: who was the lawful widow of James H. Field at the time of his death? The court recites the facts as appearing- from the evidence and found, that James H. Field was not a resident of the State of Nebraska, but was a resident of Cook county, at the time he filed his suit for a divorce. In discussing the case, the court used this language: “Appellee denies that she ever had notice of the decree in the.State of Nebraska until after the death of Field, (and in this contention she is not contradicted,) but admits that she knew that James H. Field lived at the home of the appellant’s mother in Chicago, from the time he deserted her, for several years, and was later living with the appellant for some years prior to and until the time of his death. If the courts in Nebraska did not have jurisdiction of the parties and of the subject matter, then the decree rendered in that State is void. Courts of this State may inquire into the proceedings, judgments and decrees of a court of another State to determine if that court had jurisdiction of the subject matter and of the parties, and there can be no question but that all judgments and decrees rendered by a court without such jurisdiction are void and have no binding effect upon the party aggrieved. There can be no other conclusion reached, in the face of this record, than that Field went to Nebraska for the express purpose of obtaining a divorce from his wife, and that in doing so he concealed his actions from her and practiced fraud upon the court by stating that he did not know her actual place of residence, when, in fact, he did know and was in constant communication with a part of the family. By his actions we have no hesitancy in stating that he was guilty of practicing fraud upon the courts of Nebraska and upon the public in general in obtaining his decree, and that the Nebraska court was without jurisdiction.”

The Field case was cited with approval in Pembleton v. Illinois Commercial Men’s Ass’n, 289 Ill. 99, 103, and they use this language: “It appears to be suggested that the provision of the Federal constitution requiring that full faith and credit shall be given in each State to the judicial proceedings of every other State, and the act of Congress passed in pursuance thereof, prevent an inquiry into the jurisdiction of the court by which the judgment offered in evidence was rendered. It has been held by the Federal courts that the record of a judgment rendered in another State may be contradicted as to the facts necessary to give the court jurisdiction, and if it be shown that such facts did not exist the record will be a nullity, notwithstanding* it may recite that they did exist; that want of jurisdiction may be shown either as to the subject matter or the person. (Thompson v. Whitman, 18 Wall. 457; Simmons v. Saul, 138 U. S. 439; National Exchange Bank v. Wiley, 195 id. 257.) This court has laid down a similar rule that the courts of this State may inquire into the proceedings, judgments or decrees of a sister State to determine whether the court had jurisdiction of the subject matter or the parties. (Field v. Field, 215 Ill. 496; Forsyth v. Barnes, 228 id. 326.) ”

People v. Sterling, 357 Ill. 354. In discussing what judgments may be collaterally attacked or when a judgment may be collaterally attacked, the courts have this to say: “If the court has jurisdiction, it is altogether immaterial, when the judgment is collaterally called in question, how grossly irregular or manifestly erroneous its proceedings may have been. The judgment cannot be regarded as a nullity, and cannot, therefore, be collaterally impeached. Such a judgment is binding upon the parties and on every other court unless reversed or annulled in a direct proceeding, and is not open to collateral attack.” In Wyman v. Hageman, 318 Ill. 64, we said: “Where the court has jurisdiction of the parties and of the subject matter in controversy and enters a final order or decree, and that order or decree is not appealed from, it cannot thereafter be collaterally attacked.” And in the recent case of Woodward v. Ruel, 355 Ill. 163, we used the following language: ‘ The judgment of a court which has jurisdiction of the subject matter and of the parties and possesses the power to render the particular judgment, even though erroneous, is immune from collateral attack.

‘ ‘ Notwithstanding these authorities and this well established principle, the appellant contends that because the decree in the Sangamon County Circuit Court was procured by fraud it must be treated as a nullity. In considering* this point it must be borne in mind that there are two classes of frauds drawn in question in cases of this kind: First, there is that kind of fraud which prevents the court from acquiring jurisdiction or merely gives it colorable jurisdiction; and second, that kind of fraud which occurred in the proceedings of the court after jurisdiction had been obtained, such as perjury, concealment, and other chicanery. The first variety of fraud will invalidate the decree, rendering it an entire nullity. On the other hand, it is well established that the second class has no such legal effect. One of the earlier cases in this State on the point is Caswell v. Caswell, 120 Ill. 377, which cites the case of Greene v. Greene, 2 Gray, 361, hereinabove quoted from, and also the case of Edson v. Edson, 108 Mass. 590. The rule is laid down as herein stated.’’

In Van Dyke v. Illinois Commercial Men’s Ass’n, 358 Ill. 458, 461, the court states: “We have held that the record of a judgment rendered in another State may be questioned as to the existence of facts recited therein which were necessary to give the court jurisdiction. If it is made to appear that such facts did not exist the judgment will be held to be a nullity. It may be shown that there was a want of jurisdiction either of the subject matter or of the person. (Pembleton v. Illinois Commercial Men’s Ass’n, 289 Ill. 99; Field v. Field, 215 id. 496; Forsyth v. Barnes, 228 id. 326.) This same rule has been laid down in Thompson v. Whitman, 18 Wall. 457, Simmons v. Saul, 138 U. S. 439, and National Exchange Bank v. Wiley, 195 id. 257. Bound up with the question as to what judgments shall receive ‘full faith and credit,’ is the question of ‘due process of law’ under the fourteenth amendment to the constitution of the United States. If the judgment was rendered without due process of law it is not entitled to the benefit of section 1, of article 4, of the constitution of the United States, which requires that ‘full faith and credit shall be given in each State to the public acts, records and judicial proceedings of every other State.’ ”

The case of People v. Rogers, 348 Ill. 322, was a prosecution for perjury against Wilfred A. Rogers in falsely swearing that he was a resident of Cook county in procuring* a divorce from his wife in that county. Among other things, the court says: “Where a decree of divorce is granted upon false testimony concerning the residence of one of the parties; the decree is void as to such parties. ... If the court did not have jurisdiction of the person of his wife she might attack a decree anywhere directly or collaterally.” Among other cases cited with approval were Field v. Field, supra.

Our Appellate Courts have considered the same question in Knowlton v. Knowlton, 51 Ill. App. 71; Dunham v. Dunham, 57 Ill. App. 475; Wynn v. Wynn, 254 Ill. App. 254; Janssen v. Janssen, 269 Ill. App. 233.

The appellant in this ease in point 2 of her argument charges that the appellee is guilty of laches in not asserting* her right prior to the death of Philip Goldberg*. (The charge is made that Ellis Goldberg, the son, is an interested party in this suit, but we find nothing* in the record to sustain this charge.) Minnie Libby Goldberg was an insane person, prior to the time Philip Goldberg* fraudulently obtained his decree of divorce from her, and has remained an insane person to the present time. An insane person cannot be held accountable for any apparent negligence of laches or delay in seeking redress, through the courts or otherwise, for any wrong that may have, been done her in respect to her property, and she is not affected by the statute of limitations, which but for her insanity would bar her rights. Dodge v. Cole, 97 Ill. 338; VanBuskirk v. VanBuskirk, 148 Ill. 9.

It is our conclusion that the circuit court of Lake county properly found that Philip Goldberg, at the time he filed his suit for a divorce and the hearing of the same was not a resident of Cook county, Illinois, but was a resident of Lake county, Illinois, and that he perpetrated a fraud upon said court in procuring said divorce, and that said court did not have jurisdiction of the parties and the subject matter of the suit, and that the same' was null and void.

The court, in his opinion, found that Harry C. Kinne, the.attorney and guardian ad litem, appointed by the court to represent Minnie Libby Goldberg, an insane person, was guilty of perpetrating a fraud upon the court. Philip Goldberg in his petition for a divorce, represented that he had been a bona fide resident of Cook county, and of the State of Illinois for more than one year, and during the hearing of the case, he testified that he had been a resident of Cook county for three years and more and a resident of the State of Illinois for 25 years or more. When a client comes to an attorney and represents to him that he is a bona fide resident of the county, the attorney has the right to rely upon his statement as being true, without investigating the truthfulness of the statement, unless there are facts and circumstances which would lead the attorney to believe that his statement was false. There is nothing’ in the record in this case showing any lack of good faith on the part of the attorney for Philip Goldberg.

Harry C. Kinne, the attorney and guardian ad litem of Minnie Libby Goldberg, was granted leave to intervene in this proceeding to show that he was neither guilty of any improper professional conduct, nor had he aided or abetted in any way the fraud perpetrated upon the circuit court of Cook county. We find nothing in the record that sustains this charge. Mr. Kinne was appointed guardian ad litem to represent Mrs. Goldberg and he filed his answer setting forth that Minnie Libby Goldberg was an insane person and confined in an asylum at Elgin, Illinois. He denied each and every material allegation in the bill for divorce and called for strict proof of the same. There is no proof nor intimation in the record that Mr. Kinne had any knowledge or reason to believe that Philip Goldberg was not a bona fide resident of the city of Chicago and Cook county. The trial court erred in finding the attorney guilty of perpetrating a fraud on the court.

That part of the decree which finds Harry C. Kinne, the attorney who appeared as guardian ad litem for Minnie Libby Goldberg guilty of perpetrating a fraud on the court, at the time of the divorce proceeding, is hereby reversed. The decree in all other respects is . affirmed.

Affirmed in part and reversed in part.

Dove, J., dissenting.