text:
    Village of Riverside, Appellant, v. Ellen W. Reagan et al., Appellees.
    Gen. No. 36,244.
    Opinion filed April 11, 1933.
    Tehhey, Hardihg, Shermah & Rogers, for appellant ; S. Ashley Guthrie and George E. Howell, of counsel.
    Cameron & Heath, for appellees; John R. Heath, of counsel.
   Mr. Justice Gridley

delivered the opinion of the court.

By this appeal it is sought to reverse a decree of the circuit court, entered June 29, 1932, wherein the court after a hearing dismissed complainant’s bill for want of equity at its costs.

The five defendants to the bill are Ellen W. Reagan, Keturah Reagan Faurot, Ethel Reagan Hellyer, Barbara Reagan and Ruth Reagan. The bill is based upon certain provisions of the Zoning Ordinance of the complainant village of May 5, 1922, as amended, and it prays that defendants may be permanently enjoined

“(a) From maintaining said premises, or the residence thereon, and from using, and permitting the use thereof, as a dwelling for more than one family; and

“ (b) From permitting more than one. room in said residence to remain fitted out with a sink, stove, or other kitchen fixtures adapting such room to use as a kitchen for the preparation of food.”

The bill further prays that defendants may be required by- court order “to remove forthwith all such sinks, stoves and other kitchen fixtures installed in more than one room of said residence and adapting such room for use as a kitchen for the preparation of ' food.”

The record discloses that at the conclusion of the hearing of evidence as to the issues as framed by the pleadings, and after the arguments of respective counsel had been had, the court made the following “decision ’ ’:

“This bill is for an injunction to'restrain the defendants from maintaining the premises in the Village of Riverside in its present condition, alleging that it violates section 4 of the Village Zoning Ordinance. The premises in question are occupied by the owner - of the property, also by one who owns the mortgage thereon, and also by the other members of the family. After listening to the evidence and arguments of counsel, the court is of the opinion that the premises are now occupied by a single family of Herbert E. Reagan and.Ellen W. Reagan, with Ellen W. Reagan as its head, and that there is no violation of the Village Zoning Ordinance; therefore, the defendants are relieved of the charges that the building in its present condition violates section 4 of the Village Zoning Ordinance. ’ ’

In complainant’s bill, filed August 3, 1931, it is alleged in substance that the defendant Keturah Reagan Faurot owns an undivided 2/5ths interest, and the defendants Ethel Reagan Hellyer, Barbara Reagan and Ruth Reagan each own an undivided l/5th interest in the premises (describing them), situated in the Village of Riverside, Illinois; that the defendant, Ellen W. Reagan, is the holder of a mortgage from Mrs. Faurot, recorded April 8, 1926, covering an undivided 2/5ths interest in the premises; that Ellen W. Reagan is, and was at all times herein mentioned, an occupant of the premises; that at the time of the making of the alterations as hereinafter mentioned, she was “in control” of the premises with the knowledge and consent of the other defendants; that for a long time prior to the making of the alterations there was on the premises a large three-story frame building, which was adapted for use, and used, only as a residence for a single family, and which contained common living rooms and only one dining room and one kitchen for the use of the family occupying it; that there was no other building upon the land except an outbuilding used as a barn or garage, as an accessory to the residence; that the premises are situated in “Residence District A,” as defined by an ordinance of the village of May 5, 1922, as amended, and hereinafter referred to as the “Zoning Ordinance”; and that section 4 of the ordinance contains the following provisions defining and restricting the use of premises in said “Residence District A”:

“Section 4. Residence District ‘A’, Within the bounds of Residence District ‘A’ no building or premises shall be used and no building shall be erected, remodeled or altered which is arranged, intended or designed to be used except for one or more of the following uses:

“First: Dwellings or buildings for residential purposes of a single family only, including office of physician, surgeon or other professional practitioner, when situated in the same dwelling or building used by such physician, surgeon or other professional practitioner as his private residence or dwelling;

“Second: Churches, Schools not conducted for profit, and Libraries;

‘ ‘ Third : Accessory uses customarily incident to the above uses, including uses for professions and home occupations engaged in by the occupants of a dwelling in such dwelling, not involving the conduct of a retail business on the premises, but not including, however, garages arranged or designed to accommodate more than four motor vehicles.”

It is further alleged in the bill that during the months of April and May,. 1931, Ellen W. Reagan, with the knowledge and consent of the other defendants and with a view of making said residence adapted to use as a “three family dwelling” in violation of the terms of said Zoning Ordinance, “made alterations therein”; that the alterations “included particularly the installation of sinks and kitchen fixtures, respectively, in two rooms — one on the second floor and one on the third floor, and that each of the rooms was fitted out and made adaptable for use as a kitchen”; that in addition, “a large number (more than four) of new electric outlets was made, and the rear porches on the second and third floors were inclosed, and, as complainant is informed and believes, a stove has been installed in each of said rooms for the preparation of food”; that the result of the alterations “has been to transform said residence into a building suitable for use as a dwelling by three separate families,” each of which has been provided with separate sleeping and eating quarters and separate kitchens for the preparation of its food; that defendants “intend to use, and permit the use of, said building as a dwelling for three families unless restrained by this court”; that no permits were applied for, or issued by complainant, for the making of said alterations, and complainant was not advised that they had been made until about May 14, 1931, when certain complaints were made to the village manager, one O’Brien, that “the effect of them might be to transform said building into a three family dwelling, contrary to the provisions of the Zoning Ordinance”; that about June 1, 1931, O’Brien, as such manager, after interviewing the plumbing contractor who had installed said kitchen fixtures, reported to complainant’s board of trustees as to the complaints, etc.; that on June 7, at the request of the board, O’Brien made an inspection of the premises and “found said alterations to be substantially of the nature hereinbefore set forth”; that thereafter on June 16, O’Brien wrote Ellen W. Reagan a letter stating in part that “the Board deems these alterations to constitute a violation of the Zoning* Ordinance, which prohibits the construction on your property of a dwelling for the use of more than one family,” and that he (O’Brien) had been instructed “to notify you to remove all sinks and fixtures installed for the purpose of making more than one room in your house adapted for use as a kitchen, and to make such other changes as may be required to make your house conform to the regulations of the Zoning Ordinance,” and further stating that “these changes must be made within 10 days, or the Village will be required to take such steps as may be necessary to enforce compliance with the ordinance”; that thereafter, in reply to the letter, complainant received a request from the attorney for Mrs. Reagan for a reconsideration of the matter, which request was denied; that thereafter on July 10, 1931, O’Brien sent a written notice to Mrs. Reagan, stating in part that the board of trustees, after full consideration, “has been unable to modify its original conclusion that these alterations constitute a violation of the Zoning Ordinance,” and that, therefore, you are notified that “the kitchen fixtures mentioned in my letter of June 16th must be removed, and that, if this is not done within the next week, I have been instructed to turn the matter over to the Village Attorney for appropriate action.”

It is further alleged in the bill that although more than a week has elapsed since the notice was sent, no reply thereto has been received; that the changes in the premises have not been made; that complainant has no adequate relief except in a court of equity; and that unless an injunction is granted as prayed, defendants will be enabled to maintain a three-family dwelling upon the premises, in violation of the Zoning Ordinance to the irreparable injury of complainant and the property owners in Residence District “A.” •

In the answer of the defendants, filed September 22, 1931, and as amended, they admitted the passage of the Zoning Ordinance, that it was in full force and effect when said alterations or interior changes were made, that section 4 of the ordinance is in the language as set out in the bill, and that the premises are situated in “Residence District A,” as created by the ordinance. They further admitted that the allegations as to the title of the premises, and as to Mrs. Ellen W. Reagan being an occupant and in control thereof, are substantially true. They alleged in substance that Mrs. Reagan’s occupancy is a “joint” one with the other defendants and “with her other children hereinafter named”; that the title to the premises descended, upon the death prior to 1917 of Ethel MacArthur Reagan (their mother) to Archibald, Keturah, Ethel, Barbara and Ruth Reagan; that Ethel MacArthur Reagan also left her surviving her husband, Herbert E. Reagan; that in 1917 Herbert E. Reagan, then living with his said children in the building, married as his second wife Ellen Ware Goddard (sued as Ellen W. Reagan); that she was then the widow of Joseph Sterling Goddard, deceased, and by him had had five children, viz., Caroline, Elizabeth, Joseph Sterling, Jr., Lester and Jacqueline Goddard; that after the marriage of Herbert E. Reagan and Ellen W. Goddard (Reagan) they resided in said building with the five children of Herbert E. by his former marriage, and with the five children of Ellen W., by her former marriage; that while so residing there were born to Herbert E. and Ellen W. Reagan two other children, viz., Herbert E. Reagan, Jr., and Benjamin Reagan; that thereafter Herbert E. (until his death) and his wife, Ellen W., continued to live in the building as their home with the said 12 children; that thereafter Herbert E. Reagan died, leaving him surviving his widow, Ellen W. Reagan, the five children by his first marriage, and the two children by his second marriage; that thereafter Ellen W. Reagan continued to reside in the dwelling house with said 12 children; that thereafter Archibald Reagan attained his majority and left the home and has since resided elsewhere; that he conveyed to his sister, Keturah, his interest in the premises and thereby the title to the premises became vested, and still so remains, as follows: An undivided 2/5ths in Keturah and an undivided l/5th each in Ethel, Barbara and Ruth Reagan; that to obtain the means for the purchase of said l/5th interest from Archibald, Keturah borrowed money from her stepmother, Ellen W. Reagan, and executed to her a mortgage upon said 2/5ths interest, which mortgage is still outstanding; that thereafter Keturah Reagan married George S. Faurot and they established their home elsewhere; that Ethel Reagan married George S. Hellyer and they are now domiciled in said building; that of the Goddard children, two have married — Caroline to Robert F. Grimm, and Elizabeth to John H. Silverthorne, and each with her husband is now domiciled in said building; that it is now also the home of Ellen W. Reagan; of her stepdaughters, Barbara and Ruth Reagan; of her sons, Lester O. Goddard and Joseph S. Goddard, Jr.; of her daughter, Jacqueline Goddard; and of her sons, Herbert E. Jr., and Benjamin Reagan; and that the premises “are not occupied by more than Vine family but are now occupied by a group, closely related and living together with provisions for partial separation, and constituting, as defendants believe, a single family.”

And defendants further alleged in substance that during April and May, 1931, certain alterations were made in the interior of the dwelling house; that there were installed in one room on the second floor, and also in one room on the third floor, “a kitchen sink with necessary plumbing and an electric cooking stove,” so that “cooking arrangements might be made for two of the young married couples of the family”; that also “certain furniture was removed and installed/to transform bedrooms into dining rooms”; that no change in the front or exterior of the building was made; that the building has had for a period of more than 40 years, and now has, its main entrance upon and across a veranda at its front or street side; that from the veranda, upon the main floor, there was and is a French door by which entrance can be had to the original family dining room; that there was and is a carriage entrance on the northerly side of the house, fronting upon the common driveway, and a rear or kitchen door leading, to the main kitchen; that the house is about 40 years old, and remains in outward appearance a large family residence, in which there are many rooms with a common heating plant in the basement; that the house has in no respect the appearance of an apartment building, either on its exterior or in its interior; that its external aspect is unchanged and that it now appears the same as it did long prior to the adoption by the village of said Zoning Ordinance; that “it is not feasible, nor is it 'planned or desired, to .rent the separate suites of rooms to others than those in said family, because all of the house is intercommunicating”; that defendants “have assured the Village authorities that they have no intention whatever of converting said premises into three separate apartments which could be rented to or used by separate families”; that the' alterations, as made, do not constitute such a transformation of the use of said dwelling house as violates the provisions of the Zoning Ordinance; that in making the alterations de-" fendants “had no intention of violating said ordinance or in transforming the building in violation thereof”; that if the ordinance should be so construed “as to forbid defendants to continue to live together in their said dwelling house in the manner in which they are at present living therein,” then defendants say that “said, ordinance is an unreasonable one and unconstitutional and void”; that if there was any failure to apply for or secure a permit for the making of said alterations, the same was the fault of the plumber and electrician, who installed the sink and electrical outlets for the stoves, and not of defendants, who did not know of such requirements and had no purpose of evading the same; that by defendant’s acts in making the alterations, the village “has not suffered and will not suffer any injury to its property,” and that said acts “do not injuriously affect any public property or public civil rights. ’ ’ To the answer complainant filed a replication.

On the hearing before the chancellor the facts as alleged in defendant’s answer (in addition to those admitted) were substantially proved. It further appeared from defendant’s evidence that the principal defendant, Ellen W. Eeagan, was first married in 1905 to said J. Sterling Goddard; that of the five children born to them, Caroline, the eldest, was at the time of the hearing 23 years of age; that when their father died in 1916 all were of tender years; that Ellen W. Reagan married Herbert E. Reagan in 1918 and that at that time she and her five children became domiciled in the building; that at that time also Reagan’s five children were there domiciled — the oldest (Archibald) being 13 years old and the youngest (Ruth) being 5 years old; that two children, Herbert and Benjamin, thereafter were born to Herbert E. and Ellen W. Reagan; that all 12 children continued to live in the dwelling house with Herbert E. and Ellen W. Reagan, as one family, until 1922, when Mr. Reagan died; that for a considerable time thereafter the 12 children continued to live there as one family, with Ellen W. Reagan as the active head of the family, which she thereafter continued to be; that the house is a large one, old fashioned, and designed and built to accommodate a large family, having about 20 rooms, exclusive of the bathrooms; that it stands on a lot having a frontage on Nuttall Road of 100 feet and a depth of 220 feet, and is a considerable distance back from the road; that the first child to leave the home was Archibald who in 1924 took up his abode elsewhere; that thereafter Keturah married and has since lived elsewhere; that in 1927 Caroline married Robert Grimm and for a time they resided elsewhere; that in 1928 Elizabeth married John Silverthorne and for a time they resided elsewhere; that during these last mentioned years the other eight children continued to live in the family home, which was managed by Ellen W. Reagan; that during the spring of 1931, it was arranged, with the consent,of Mrs. Reagan and the other children, that Caroline, her husband (Robert Grimm), and their two-year-old child, and also that Elizabeth, her husband (John Silverthorne) and their baby, should return to the family home to live, and it was also arranged that Ethel (who had been at college and was about to be married to George Hellyer) after her marriage should live with her husband in the family home; that these arrangements subsequently were consummated, and were the occasion or cause for the alterations being made under the supervision and direction of Ellen W. Reagan; that prior to the hearing a baby was born to the Hellyers; and that at the time of the hearing there were 17 persons, bearing such relations to each other as shown, living in the family home.

In the Century dictionary the word “family” is defined as:

“The collective body of persons who form one household under one head and one domestic government, including parents, children, servants and as sometimes used even lodgers or boarders.”

In Webster’s dictionary the definition is:

“The collective body of persons who live in one house, and under one head or manager; a household, including parents, children and servants, and, as the case may be, lodgers or boarders.”

In the Century dictionary the word “household” is defined as:

“An organized family and whatever pertains to it as a whole; a domestic establishment”; and

“A family considered as consisting of all those who share in the privileges and duties of a common dwelling; the family, including servants and other permanent inmates. ’ ’

In Webster’s dictionary the definition of “household” is:

“Those who dwell under the same roof and compose a family.”

In Race v. Oldridge, 90 Ill. 250, 252, after quoting the definition of the word “family,” as given by Webster and others, it is said:

“Thus, it is seen that the word has a broad and comprehensive meaning in general use. Bouvier says, the word has a restricted sense, which only includes the father, mother and children; but in a more enlarged sense it includes all individuals who live under the authority of another, and includes servants of a family. Thus, it is seen, its legal meaning differs but little from its general acceptation.”

In Hogg v. Lobb’s Ex’r, 7 Houston (Delaware) 399, 400, 401, it is said:

“The rule for the construction of statutes is that unless words used in them have some special meaning in law (that is, technical meaning), they shall be taken to have been used in their ordinary sense or meaning, that sense in which "they are usually understood in common speech. Eegarding the word family then ... in this latter sense, for it has no technical meaning, we say to you that it means the household, or collection of persons, including husband, wife, children, lodgers, servants, residing together and receiving diet, lodging, etc., from a common supply, or source — and subject to rules for their government, as members of such household, with respect to such membership.”

In Norwegian Old People’s Home Society v. Wilson, 176 Ill. 94, 99, it is said:

“The word ‘family’ is used in various significations, some more restricted, others more extended, the general scope and purview of the statute or of the will having to be considered in each case. It is used to indicate, first, the whole body of persons who form one household, thus including also servants; second, the parents with their children, whether they dwell together or not; and third, the whole group of persons closely related by blood.”

In view of ¡the above definitions of the word “family,” and considering the restrictions imposed by section 4 of the Zoning Ordinance in question upon the use, erection or alteration of buildings except those dwellings or buildings for residential purposes “of a single family only,” and also considering the facts and circumstances of the present case as disclosed by the evidence, we are of the opinion that the trial court was right in holding that the dwelling house on the premises, at the time of the filing of complainant’s bill, was occupied “by a single family . . . with Ellen W. Reagan as its head” and-that defendants had not violated and were not violating said section 4 of the Zoning Ordinance, as charged in complainant’s bill. We think that the contention of complainant’s counsel, viz., that the word “family,” as used in said ordinance, means “one or more individuals, sleeping, cooking and eating on the premises as a single housekeeping unit,” is without substantial merit, because it is a too-limited meaning, especially as such a meaning is not given-in the ordinance to the word and is contrary to its meaning as defined by lexicographers and as generally understood by the public. And we are also of the opinion that there is no equity in complainant’s bill and that the court was amply justified in dismissing it for want of equity.

Accordingly, the decree appealed from is affirmed.

Affirmed.

SCALLAN, P. J., and Sullivan, J., concur.


source: Caselaw Access Project

author: Mr. Justice Sullivan

license: Public Domain

text:
    Boscoe B. Young, Administrator of the Estate of Susan Anne Potter, Deceased, Appellant, v. John W. Ostrander and John Ostrander, Jr., Appellees.
    Gen. No. 36,163.
    Opinion filed April 11, 1933.
    Loesch, Scopield, Loesch & Burke, for appellant; Edward M. Burke, of counsel.
    Roemer & Green, for appellees.
   Mr. Justice Sullivan

delivered the opinion of the court.

June 22, 1931, Boscoe B. Young, plaintiff, as administrator of the estate of Susan Anne Potter, deceased, - filed his declaration against defendants in an action of trespass on the case in which he sought to recover only the moneys expended and expenses incurred by the deceased in her lifetime in endeavoring to be cured of injuries claimed to have been caused by the wrongful act or neglect of the defendants and in which it is expressly alleged that the injured person died from the injuries sustained.

A general demurrer was sustained to the declaration and, plaintiff electing to stand by his demurrer, defendants had judgment.

The only question presented by this record is whether or not an action to recover damages for an injury to a person survives to the extent that the administrator may recover for the benefit of the estate generally the money expended by the injured person in her lifetime in endeavoring to be cured of her injuries when the injured person died from the injuries received.

In this appeal both the plaintiff and defendants cite the same authorities and differ only in the construction and interpretation of same.

Plaintiff contends that this question has never been directly passed upon and is presented for the first time by this record and that an analysis of all the cited cases and a proper differentiation between the dictum and decidendi of those cases will compel us to the conclusion that the correct construction of paragraph 125, ch. 3, Cahill’s Illinois Revised Statutes, 1931, which provides as follows:

“In addition to the actions which survive by the common law, the following shall also survive: Actions of replevin, actions .to recover damages for an injury to the person (except slander and libel) . . .” will sustain plaintiff’s contention that he should be permitted to maintain his action.

In construing the section of the statute supra the Supreme Court of this State, beginning with the case of Holton v. Daly, 106 Ill. 131, has consistently held that where a person dies from the injuries sustained by reason of the alleged wrongful and negligent acts of others, then the suit or cause of action for the pain and suffering or expense incurred abates and is not revived by any statute in this State and if the injured person dies from causes other than the alleged wrong-fill or other negligent act then the cause of action survives.

There cannot be two recoveries for the same wrongful act. If Susan Anne Potter died as a result of the injuries she received, the Act of February 12, 1853, as amended, Cahill’s St. ch. 70, H 1 and 2, exclusively applies. This act created a cause of action which did not exist at common law and is as follows:

“An Act Requiring Compensation for Causing Death by Wrongful Act, Neglect or Default.

“Par. 1. Death — Cause of action, when survives.] Section 1. Be it enacted by the People of the State of Illinois, represented in the General Assembly, Whenever the death of a person shall be caused by wrongful act, neglect or default, and the act, neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, then and in every such ease the person who or company or corporation which would have been liable if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to felony.

“Par. 2. Action by administrator — Beneficiaries— Damages.] § 2. Every such action shall be brought by and in the names of the personal representatives of such deceased person and the amount recovered in every such action shall be for the exclusive benefit of the widow and next of kin of such deceased person, and shall be distributed to such widow and next of kin in the proportion provided by law. In relation to the distribution of personal property left by persons dying intestate and in every such action the jury may give such damages as they shall deem a fair -and just compensation with reference to the pecuniary injuries resulting from such death to the wife and next of kin of such deceased person not exceeding the sum of $10,000; Provided, that every such action shall he commenced within one year after the death of such person.”

Plaintiff does not contend that the Death by Wrongful Act statute does not apply to the instant case, but he does urge that, notwithstanding this statute, he should be permitted to maintain his action to recover the expenses incurred by the deceased Susan Anne Potter in her endeavor to be cured of her injuries. If his contention is correct then this court must hold that two recoveries may be had because of one wrongful act, inasmuch as it is conceded that the Death by Wrongful Act statute was and is in full force and effect.

Plaintiff and defendants both cite and rely on the following cases among others: Holton v. Daly, 106 Ill. 131; Chicago & E. I. R. Co. v. O’Connor, 119 Ill. 586; Devine v. Healy, 241 Ill. 34; Prouty v. City of Chicago, 250 Ill. 222; Ohnesorge v. Chicago City Ry. Co., 259 Ill. 424; Wilcox v. International Harvester Co. of America, 278 Ill. 465; Pease v. Rockford City Traction Co., 279 Ill. 513; Wilcox v. Bierd, 330 Ill. 571.

A careful study of these cases leads us to the conclusion that the law is so well settled on the only proposition of law presented in this appeal that it is unnecessary to quote at length from these decisions. As stated in Holton v. Daly, supra, “it is not to be presumed it was intended (by acts referred to) there should be two causes of action, in distinct and different rights, by the same party plaintiff, for the same wrongful act, neglect or default.”

It may well be that in this and other causes it would be more advantageous for an administrator to bring his action in behalf of the estate-generally to recover damages intermediate the injury and death; it may be true in this and other causes that an action brought in behalf of the next of kin under the Death by Wrongful Act statute would result in the recovery of only nominal damages by reason of the fact that the next of kin were only collateral and could show little or no pecuniary injury and loss; and it may also be true that the plaintiff in this cause is afforded no action at law to recover the particular damages sought to be recovered by him in this suit; yet none of these reasons or any others that have been urged can justify any holding in this case that does not accord with the doctrine of law enunciated by the Supreme Court of Illinois in 1883 and adhered to ever since. This court said in Merrihew v. Chicago City Ry. Co., 92 Ill. App. 346, 355: “If the rule announced in Holton v. Daly is to be modified in any respect, it is for the Supreme Court and not for us, to do.”

The judgment of the circuit court is affirmed.

Affirmed.

Soanlan, P. J., and Gridley, J., concur.


text:
    Kate M. Dukes, Appellee, v. Harrison & Reidy et al., Appellants.
    Gen. No. 36,190.

      Opinion filed April 11, 1933.
    Bamberger & Neither and Sommers & Sommers, for appellants.
    Monahan & Monahan, for appellee.
   Mr. Justice Sullivan

delivered the opinion of the court.

September 14, 1931, the complainant filed her bill in the superior court of Cook county, A Aging that she recovered a judgment against Harrison & Beidy, a corporation, April 30, 1927, in the superior court of Cook county for the sum of $1,500; that an execution was issued and delivered to the sheriff and return thereon was made by the sheriff “no part satisfied”; that the judgment was in full force and effect; that more than 10 days had elapsed since the return of the execution and that Harrison & Beidy, a corporation, had ceased doing business, leaving the judgment unpaid. The bill alleged further that Harrison & Beidy, a corporation, was organized under the laws of Illinois, May 27, 1919, and that the statement of incorporation set forth that Thomas A. Harrison had subscribed for 36 shares of the capital stock of the corporation and had paid $2,500 of his subscription of $3,600 and that Edward J. Beidy had subscribed for 38 shares of the capital stock and had paid $2,500 of his subscription of $3,800 but that in fact neither Thomas A. Harrison nor Edward J. Reidy had paid into the treasury of the corporation the amounts set forth in the certificate of incorporation as having been paid by them in cash.

Harrison & Reidy, a corporation, Thomas A. Harrison, Edward J. Reidy and Frank D. Collins were named defendants and a decree was prayed for requiring Thomas A. Harrison and Edward J. Reidy to pay each his pro rata share of the judgment to the extent of the unpaid portion of the stock of the corporation subscribed for by each of them under the terms of par. 53 of chapter 32 of Cahill’s Revised Statutes of Illinois, which provides as follows:

“After an adjudication of bankruptcy, or after an execution has been so returned, or has remained unsatisfied for more than ten days, after a demand made, or after dissolution or cessation of business leaving-debts unpaid, any creditor may bring suit in equity, in any court having general jurisdiction in the county in which the principal office of the corporation is located on behalf of himself and of all other creditors of the corporation, against all persons who are liable.in any way for the debts of the corporation, by joining the corporation in such suit. After exhausting the assets of such corporation, each stockholder may be required to pay his pro rata share of such debts and liabilities to the extent of the unpaid portion of the stock. . . .”

Harrison & Reidy, a corporation, Edward J. Reidy and Thomas A. Harrison were served with summons and the bill was later dismissed as to Frank D. Collins.

A special appearance for the purpose of contesting the jurisdiction of the court was filed by Harrison & Reidy, a corporation, together with a written motion to quash the service of the summons and to dismiss the corporation as a defendant. An affidavit was filed by Edward J. Reidy in support of this motion which alleged that a decree of dissolution of the Harrison & Eeidy corporation had been entered by the superior . court of Cook county, September 17, 1928, and a certificate of dissolution was filed in the office of the Secretary of State of the State of Illinois, and quoted par. 14, chapter 32 of Cahill’s Illinois Eevised Statutes, which provides:

“All corporations organized under the laws of this State, whose powers may have expired by limitation or otherwise, shall continue their corporate capacity for two years for the purpose only of collecting debts due such corporation and selling and conveying the property and effects thereof. Such corporations shall use their respective names for such purposes and shall be capable of prosecuting and' defending all suits at law or in equity.”

The affidavit also set out par. 79, chapter 32 of Cahill’s Eevised Statutes of Illinois, which provides:

“The dissolution, for any cause whatever, of any corporation, shall not take away or impair any remedy given against such corporations, its officers, or stock- ° holders, for any liabilities incurred previous to its dissolution, if suit therefore is brought and service of process had within two years after such dissolution. ’ ’

The affidavit in support of the motion to quash the service of summons as to Harrison & Eeidy, a corporation, also alleged that the complainant had filed a previous bill of complaint on January 28, 1930, in the circuit court of Cook county against the same defendants and seeking the same relief as was sought in the instant bill and that that suit was dismissed September 15, 1930, for want of prosecution.

The court denied the motion to quash as to the defendant corporation, and Harrison & Eeidy, a corporation, elected to stand upon its special appearance and motion to quash the service of summons. Answers were filed by the defendants, Thomas A. Harrison and Edward J. Eeidy, and the cause proceeded to trial.

April 23, 1932, a decree was entered, the material findings of which were:

“The defendant, Harrison & Reidy, a corporation,having failed to file its plea, answer, or demurrer to said bill of complaint as heretofore ordered by the Court, it is ordered that the said bill of complaint be, and it is hereby, taken as confessed by said defendant.

“That neither of the defendants, Edward J. Reidy nor Thomas A. Harrison, paid the amount agreed by them to be paid upon their respective subscriptions to the capital stock of said corporation and that each of them owe more than the sum of Fifteen Hundred Dollars ($1,500.00) upon their respective subscriptions to said capital stock.

“Now, Therefore, in consideration thereof, It Is Hereby Ordered, Adjudged and Decreed, that the defendants, Edward J. Reidy and Thomas A. Harrison each pay his pro-rata share of the said judgment of the complainant, Kate M. Dukes, to the extent of the unpaid portion of the stock of said corporation so □subscribed for by each of them; that is to say, that said defendants, Edward J. Reidy and Thomas A. Harrison pay to the complainant, Kate M. Dukes, the amount of her said judgment, Fifteen Hundred Dollars ($1,500.00), and that the Clerk issue an execution in favor of said- complainant as at common law, directed to the Sheriff of the County of Cook, commanding him that of the goods, chattels, lands and tenements of said defendants, Edward J. Reidy and Thomas A. Harrison, in his County, he shall cause to be made the said sum of Fifteen Hundred Dollars ($1,500.00) and the complainant’s costs,of this proceeding, to be taxed by the Clerk of this Court and that said execution or fieri facias be in the form usually issued by the Clerk of this Court in common law proceedings.”

The defendant corporation contends that except for section 14 of the Corporation Act, Cahill’s St. ch. 32, ti 14, the decree of September 17, 1928, of the superior court dissolving the corporation, would have effectually terminated the existence of the corporation for all purposes and that, therefore, after the expiration of the two-year period provided by section 14, the corporation was legally extinct and could not sue or be sued and no person could legally be served with or accept service of summons directed to the corporation.

The complainant contends that notwithstanding the fact that the instant bill of complaint was filed September 14, 1931, which was more than two years after the entry of the decree of dissolution of the corporation by the superior court September 17, 1928, it still had the right to maintain this action because it was brought within one year after her bill of complaint, which was filed January 28, 1930, in the circuit court of Cook county, and which was in words and figures identical with the bill in this cause, was dismissed for want of prosecution September 15, 1930. In support of this contention the complainant relies on par. 26, chapter 83 of Cahill’s Illinois Revised Statutes on Limitations, which provides as follows:

“An act to amend an Act entitled ‘An Act in regard to limitations,’ approved April 4,1872; in force July 1, 1872. In any of the actions specified in any of the sections of said Act, if judgment shall be given for the plaintiff, and the same be reversed by writ of error, or upon appeal; or if a verdict pass for the plaintiff, and, upon matter alleged in arrest of judgment, the judgment be given against the plaintiff; or, if the plaintiff be nonsuited, then, if the time limited for bringing such action shall have expired during the pendency of such suit, the said plaintiff, his or her heirs, executors, or administrators, as the case shall require, may commence a new action within one year after such judgment reversed or given against the plaintiff, and not after.”

The defendant corporation contends that paragraph 26 of the-Limitations Act is inapplicable to the instant suit and that no suit or action can be brought against a corporation that has been legally dissolved unless the suit or action is commenced within two years of the dissolution, as provided in sections 14 and 79 of the Corporation Act, Cahill’s St. ch. 32, UTi 14 and 79. The complainant contends that her second bill came within the purview of paragraph 26 of the Limitations Act, and that under the terms of that statute the running of the two-year limitation provided in section 14 of the Corporation Act was tolled for an additional year.

No authorities are cited by either the defendant corporation or by the complainant for or against the contention that paragraph 26 of the Limitations Act is inapplicable to section 14 of the Corporation Act.

The complainant refers to paragraph 26 of the Limitations Act and apparently has an abiding faith that that paragraph confers jurisdiction on the court in this case. No argument is made and no reasons are given to support her contention that this paragraph does apply to section 14 of the Corporation Act. It is simply taken for granted.

The defendant corporation contends that section 14 of the Corporation Act is not a statute of limitation of action, and that neither paragraph 26 nor any other section of the Limitations Act refers to or is applicable to sections 14 or 79 of the Corporation Act; that section 14 places a definite limit on corporate capacity to sue and be sued; that it provides that corporations whose powers have expired by limitation or otherwise shall continue their corporate capacity for two years for the piirpose only of collecting debts due such corporations and selling and conveying the property and effects thereof and for such purpose may prosecute or defend all suits in the corporate name; that after that period of two years has expired the corporation is legally dead for all purposes and that there is nothing in any provision of the Limitations Act which revives it for any purpose; that it has no corporate capacity of any kind, no officers or agents, and therefore cannot be sued or brought within the jurisdiction of the court by the delivery of a summons to one of its former officers. It will be noted that paragraph 26 is limited by its terms to “any of the actions specified in any of the sections of this act.” (Limitations Act.)

The question whether or not paragraph 26 of the Limitations Act is applicable to section 14 of the Corporation Act has not heretofore been decided by the Supreme or Appellate Courts of this State. The case of Bishop v. Chicago Rys. Co., 303 Ill. 273, 276, 277, which upheld the constitutionality of section 26, supra, and in which the Supreme Court was called upon to construe that section with reference to its application to the Injuries Act of 1853, held:

“Appellee contends, also, that section 2 of the amendatory act (called in the briefs section 25 of the Limitations Act), is not applicable to actions arising under sections 1 and 2 of the Injuries Act, to which class the action in this case belongs. This question is not free from difficulty. No right existed at common law to recover for the wrongful death of a person. The Injuries Act passed by the legislature of this State in 1853 created such a cause of action for the first time in this State. This statute provides the parties in whose name the suit shall be brought and what shall be done with (Fe proceeds of a judgment recovered thereunder. It fixes the time in which such action shall be brought. Originally the act provided that suit should be brought within two years after the death of the deceased. By amendment in 1903 this was reduced to one year. The limitation of the right to sue, fixing the exercise of such right within a year, is not a statute of limitations but is a condition of the liability itself. Where action is brought under the Injuries Act in death cases the plaintiff must bring himself within the conditions of the act. (Hartray v. Chicago Railways Co., 290 Ill. 85; Carlin v. Peerless Gas Light Co., 283 id. 142.) It is seen, therefore, that the statute which creates the right, — that is, the Injuries Act, — places a limitation, not on defenses to the right of action but upon the right of action itself. The Statute of Limitations may be styled a defense statute; the Injuries Act is purely and simply a liability statute. The provision of the Injuries Act requiring that suit be brought within a year after the death not being a limitation statute, section 2 of the 1873 amendment to the Limitations Act cannot be said to be applicable to cases arising under the Injuries Act unless the right of action in such cases can be seen to be included within the classes of cases embraced by the Limitations Act.

“The Act of 1873 referred to is, as designated in its title, ‘An act to amend an act in regard to limitations.’ Section 2 of the act expresses in plain language the intention of the legislature that its provisions shall apply to ‘the actions specified in any of the sections of said act,’ — the Limitations Act.” (The paragraph of the Limitations Act referred to as section 2 of the amendatory act and section 25 of the Limitations Act is paragraph 26 of the 1931 edition of Cahill’s Revised Statutes of Illinois on Limitations.)

The reasoning of the Supreme Court applies with equal force to the instant case and it is our opinion that paragraph 26 of the Limitations Act has no application to sections 53 or 14 of the Corporations Act under which this suit was brought.

Even though paragraph 26 of the Limitations Act were held to be applicable to section 14 of the Corporation Act, the complainant could not maintain this action. The second bill was filed within one year from the time the first bill of complainant was nonsuited but the provisions of paragraph 26 seem to have been misunderstood or misconstrued by the complainant. It provides that “if the complainant be nonsuited then, if the time limited for bringing such action shall have expired during the pendency of such suit, the said plaintiff . . . may commence a new action within one year after such judgment reversed or given against the plaintiff, and not after.”

The time for bringing this action did not expire during the pendency of the first bill of complaint. The decree dissolving the defendant corporation was entered September 17, 1928, and the original bill was nonsuited September 15, 1930. The two-yeaf period after dissolution in which suits might be brought against the corporation had not elapsed at the time of the nonsuit and there was no suit pending at the expiration of the time provided by statute for bringing this action.

After quoting section 2 of the Limitations Act, Ca-hill’s St. ch. 83, fí 26, this court in Wiggins Ferry Co. v. Gardner, 91 Ill. App. 20, 22, held:

‘‘ This statute, giving to a plaintiff who has suffered nonsuit one year after he has been nonsuited in which to commence a new action, gives that right only in cases where the time limited for bringing such action has expired ‘ during the pendency ’ of the suit in which such plaintiff was nonsuited.. If at the time of the nonsuit there remained unexpired any portion of the time limited for bringing such action, then the provisions of this statute do not apply.”

The defendants further contend that if the contention that the defendant corporation cannot legally be made a party defendant to this suit is held to be meritorious then the entire case of complainant falls because of section 53 of the Corporation Act, Cahill’s St. ch. 32, U 53, which makes it necessary to join the corporation a-s a party defendant. The right of creditors to bring a suit of this nature is conferred by section 53 of chapter 32, which provides that the corporation shall be made a party defendant. The complainant creditor must bring her suit within the provisions of that section if she wishes to avail herself of the remedy provided therein. Section 53 of the Corporation Act must be construed with sections 14 and 79 of the same act, and it is apparent that complainant cannot avail herself of the remedy provided by this statute for the reason that her bill of complaint was not filed until September 14,1931, which was more than two years after the dissolution of the corporation.

The attempted service of summons on the defendant-corporation did not confer jurisdiction on the court and the motion to quash the service of the summons and to dismiss Harrison & Eeidy, a corporation, as a party defendant should have been allowed. Other points have been urged but it is unnecessary to consider them.

For the reasons stated the decree of the superior court of Cook county is reversed.

Reversed.

Scanlan, P. J., and G-ridley, J,, concur.


text:
    Chapin & Gore, Inc., Appellee, v. Estate of John Powers, Deceased, Appellant.
    Gen. No. 36,205.

      Opinion filed April 11, 1933.
    Rehearing denied April 24, 1933.
    Htjtsoh, Traeger & Bolger, for appellant; Willis W, Hutsoh, of counsel.

      Smith & Wallace, Hubert E." Page and R. H. Wehmhoff, for appellee.
   Mr. Justice Sullivan

delivered the opinion» of the court.

Chapin & Gore, Inc., filed its claim October 9, 1930, in the probate court of Cook county against the estate of John Powers, deceased (John Powers died May 19, 1930), based upon the following instruments:

“$1721.30 Chicago, June 12, 1914

On demand after date we promise to pay to the order of Chapin & Gore Seventeen hundred twenty-one and. 30/100 Dollars at our office, #67 East Adams Street. Value received with interest at six per cent per annum.

No..........due..........Sgd. Walter J. Powers

John Powers.”

Indorsed on hack, “Paid Nov. 14th, 1920 $103.27.” “$5407.50 Chicago, June 12,1914

On demand after date we promise to pay to the order of Chapin & Gore fifty-four hundred seven and 50/100 Dollars at our office #67 E. Adams Street. Value received with interest at six per cent per annum.

No..........due..........Sgd. Walter J. Powers

John Powers.”

Indorsed on back, “Paid Nov. 14th, 1920, $324.45.”

The total of this claim at the time of filing, including principal and interest, was $13,544.65. The indorsements on the back of these notes were shown by the evidence to have been made in the handwriting of Mr. Pearson, cashier of the claimant. These amounts are the equivalent of interest for one year on the principal of the respective notes at six per cent.

It will be observed that both notes are dated June 12, 1914, and are payable on demand and that the claim was not filed until October 9, 1930, that is, more than 16 years after the cause of action accrued, about five months after the death of John Powers, and within about 35 days of the time when it would have been barred even were the statute of limitations tolled by the alleged payment.

After a hearing in the probate court the claim was disallowed, and the claimant appealed to the circuit court of Cook county where a trial de novo was had without a jury and the claim was allowed and judgment entered against the estate of John Powers, deceased, for $14,442.58. This appeal followed.

The claimant contends that November 14,1920, John Powers paid $103.27 on one note, and $324.45 on the other note, and that on that date such payment was indorsed on the back of the respective notes, and that such payment tolled the running of the statute of limitations. 0

The defendant contends that the notes being payable on demand a cause of action arose at the time they were dated, and that on their face they are barred by the statute of limitations; that to remove the bar the burden was upon claimant to prove by proper evidence that such a payment was made.

No issue is raised on the pleadings or in respect to the consideration or terms of the notes.

The claimant relies on the testimony of the witness Pearson, the entries in the so-called “Bills Receivable Book,” and the indorsement of payment on the notes by the witness Pearson to prove that John Powers made such payment November 14, 1920, as would toll the statute.

Objection was made on the trial to the admissibility of the indorsement of payment on the notes by the cashier or agent of the payee on the ground that such indorsements were self serving, and were not binding on John Powers in his lifetime, and were even less binding on his estaté after his death.

Objection was urged to the admission in evidence of the entries in the bills receivable book on the ground that the entries in that book were not original entries in a book kept in the regular course of business of the claimant, and that the entries offered were admittedly copies of other entries that had been previously made and for some reason or other destroyed.

Objection was made to the entire testimony of the witness Pearson, on the ground first, that he was disqualified as a witness under section 2 of the Evidence Act, Cahill’s St. ch. 51, 2, which is as follows:

“No party to any civil action, suit or proceeding, or person directly interested in the event thereof, shall be allowed to testify therein of his own motion, or in his own behalf, by virtue of the foregoing section, when any adverse party sues or defends as the trustee or conservator of any idiot, habitual drunkard, lunatic or distracted person, or as the executor, administrator, heir, legatee or devisee of any deceased person . . . unless when called as a witness by such adverse party so suing or defending . . .. ,” inasmuch as he was a stockholder, director and officer of the claimant corporation ; and, second, that once his status as an interested person under the statute had been established, he could not divest himself of his ownership of his stock and relinquish his offices in the corporation in any manner that would render him a competent witness.

The claimant offered evidence to show that Pearson was only a nominal stockholder and that he had no pecuniary interest in the claimant corporation at the time of the trials in the probate or circuit courts, nor at any other time since the one share of stock was issued in his name in 1918, and immediately indorsed by him in blank and turned over to Charles J. Hermann, who was the controlling owner of the stock of Chapin & Gore (hereafter referred to as the claimant).

We will assume for the purpose of considering all of the evidence presented that the trial court ruled properly on these objections and that whatever force there was to the objection went to the credibility rather than to the competency of the witness Pearson, the indorsements on* the notes and the entries in the bills receivable book.

For a proper understanding and determination of the issues presented in this case it is necessary that we examine the evidence bearing upon the question of the alleged payment carefully and fully.

Louis W. Pearson testified that he was the cashier of the claimant prior to 1914, and continuously from 1914 to the time of the trial in the circuit court; that the claimant kept a book that was called the bills receivable record and that that book contained an account of all notes in the possession of the claimant and the terms of payment of same, and that whenever a payment was made on any of the notes an entry of the payment was made in the bills receivable book; that all of the entries in this book that had to do with the Powers’ notes were made in the witness’ handwriting; that he made the entries in this book June 12, 1914, evidencing these notes and their terms; that on or about November 14, 1920, he made on the backs of the respective notes- the indorsements appearing thereon; that at the time of the indorsement of November 14, 1920, on the notes and of the entries of the same date in the bills receivable book, the claimant also kept1 a cash book and ledger; that all the books and records in which this payment was entered except the bills receivable book were destroyed by the witness five or six years before the trial; that in the regular course of business of the claimant the entries appearing in the bills receivable book were entered in the cash book and the ledger interest account; that Charles J. Hermann, who was the principal stockholder and practically the sole owner of this corporation permanently moved to California in 1920 and has remained there ever since, leaving the witness Pearson in sole charge of the business for the purpose of liquidating same; that Pearson was 77 years old in December, 1931, and that the claimant ceased doing business right after prohibition went into effect; that Pearson saw John Powers in the office several times, but that he never saw Walter Powers there; that no suit was ever brought on these notes against Walter Powers and that John Powers was not sued on these notes during his lifetime; that for several years prior to the time of filing this claim in the probate court the account against Powers was the only live' account in the bills receivable record; that he did not remember seeing Walter Powers or John Powers or anyone from his office November 14, 1920, which was Sunday, nor did he recall seeing either John or Walter Powers in the claimant’s office any time, during November, 1920; that they must have sent a messenger or office boy with the money; that, if they did not, he would put no entry on that book without the money; that he knew that the payment was made to him in the claimant’s office.

For a clearer conception of the evidence of the witness Pearson as to the payment claimed to have been made by John Powers, or, some one authorized by him to make such payment, and the circumstances under which the payment was made, we repeat that portion of his testimony:

“The Court: I asked you, do you know anything about it? Answer yes or no.

“The Witness: To my best knowledge and belief it was John Powers.

“Mr. Hutson: I object to his belief; he has simply testified from his record, and the witness naturally thinks so.

“The Witness: Tes, I have some recollection as to payment.

‘ ‘ The Court: What is that recollection ?

“The Witness: It was paid by someone. I can’t say exactly whether John Powers or someone was sent in with it or paid by mail or not. I remember distinctly it surprised me when I received the money— received one year’s interest.

“The Court; What was the amount of the money?

“The Witness: Well the interest.

“The Court: In what form?

‘ ‘ The Witness: It may have been checks, currency or mixed together.

“Mr. Hutson: I object to ‘it may have been.’

‘ ‘ The Witness: I cannot remember.

“The Court: Wait a minute. That is your full recollection of the matter or do you remember anything else?

‘ ‘ The Witness: I remember it was paid; that is as far as I know; either by John Powers or someone he sent there to pay it. Nobody else I know would pay it.

‘ ‘ The Court: That last statement that nobody else would pay it may be stricken out.

“Q. Do you know whether Walter Powers made a payment?

“A. No, I don’t. Walter Powers did not make any payment. ’ ’

The witness testified that when he was a witness in this case in the probate court he made the following answers to questions that were asked him there:

“Judge Horner asked me: ‘Did John Powers pay you that money at that time?’ and I answered, ‘I have forgotten whether he paid personally or not. I do not know.’ Then Judge Horner asked: ‘In what way did it come from him?’ and I answered, ‘I do not know. It could not come from anybody else.’ Judge Horner then said: ‘Who told you it came from him?’ ‘A. I do not know of anybody else who would pay it but him. ’ Mr. Page then asked me: ‘How many accounts did ybu have at that time to look after?’ and I answered ‘Fully one thousand or more.’ Mr. Page then asked: ‘Do you remember every incident of payment on those accounts which occurred in 1920?’ and I answered ‘No, sir. There were so many of them, just like a bank in them days. ’

‘<1 was then asked: ‘Are you. certain the payments were made at that time when you made the entries ? ’ and I answered, ‘Tes, sir.’

“I was asked before Judge Horner: ‘You do not remember the time of the day you got any payment on that note of November 14, 1920, do you?’ and I answered, ‘All I can remember is that date, but I could not remember the time. ’ I was asked the further questions before Judge Horner: ‘Q. But do you not remember who told you there had been a payment on account of that note?’ And you answered ‘A. Nobody told me, the money was paid in.’ ‘Q. You answered that in that way?’ A. ‘Yes.’ ‘Q. And you were questioned:’ ‘Q. You do not know whether the payment was made by check or not, do you?’ ‘A. No, check or currency, I do not know which. ’ ‘Q. You do not know whether it was paid in cash?’ ‘A. Sometimes they were paid in cash.’ ‘Is that your answer?’ A. ‘Yes.’ ‘Q. And you were asked this question (reading):’ ‘Q. You do not know who brought the payment in?’ ‘A. I could not remember.’ ‘Q. You said that?’ A. ‘Yes.’

‘Judge Horner: He has testified that he has no recollection of who made the payments, is that right?’ ‘A. Yes, sir.’

‘Q. Was that your reply?’ ‘A. Yes, sir. To the best of my knowledge and belief the payment was made by John Powers.’ I testified before Judge Horner: ‘I could not say exactly whether the payment was all one check or currency and checks mixed. ’ And Judge Horner said to me. ‘Q. Are you able to tell whether payment was made in check or currency?’ And did you not answer: ‘A. I couldn’t tell you that.’ ”

“The Court: Nothing on the books indicates that.

‘A. The books are destroyed that have those entries in.’

“Q. You made that answer, did you? ‘A. Yes, sir.’

“The court: (reading) All right.

“Mr. Page: You know of no other record of those transactions now existing? ‘A. No, sir.’ ”

The entries on the pages of the bills receivable book that carried the Powers ’ account were as follows :

Left Page

Chapin & Core.

Bills Receivable Record.

1918

July 31, Marie Plamondon Chicago, Ill. Chapin & Core Cash 6 mos.

1914

June 12, Walter J. Powers Chicago, Ill. Chapin & Core Cash Demand

John Powers Chicago, Ill. Chapin & Core Cash Demand

Right Page

Chapin & Core

Bills Receivable Record.

Notes signed by

Walter J. Powers 6%.$5407.50 int paid 11/14/20 on note $324.45

& John Powers 6% $1721.30 int paid 11/14/20 on note $103.27

As to the entries on the bills receivable book Pearson testified as follows:

“Q. You wrote the John Powers item in 1914? A. Yes.

“Q. Long before you wrote the Marie Plamondon account? A. I didn’t put that item in there first.

“Q. Did you write the John Powers item or two items before you wrote the Marie Plamondon item? A. That Marie Plamondon item was put in afterwards.

“Q. Afterwards?' Why didn’t you put in the John Powers 1914 item at the top of the page if it was there first? A. It didn’t make any difference, we never followed the pages in rotation or the lines; we put' it in anywhere. That is sometimes we might grab it up and put it down anywhere and this came in afterwards.

“Q. Was that your answer? A. Yes.

‘ ‘ (Reading): Q. Do you know why you did not post your first account on the first line if that was the only item appearing on the page? A. We never commenced on the first line every time.

“Q. Did you answer that way? A. Yes.

“Q. You put it anywhere you liked ? A. Yes.

“(Reading): Q. You always commenced in the middle and then went back later to finish the first line ? A. . In this book we could begin anywhere we wanted to.

“Q. You answered that way, did you. A. Yes.”

The witness was interrogated further concerning his testimony before Judge Horner and he testified as follows:

“Q. There is an item Marie Plamondon?

“A. Yes, we have different items all the way through.

“Q. And what date did you put down the Marie Plamondon item?

“A. On the date right there.

“Q. Those were your answers and you said that?

“A. Yes.

“ (Reading): Q. Well, is that July 31,1918?

“A. Yes, sir.

“Q. The date appearing on there?

“A, Yes, sir.

“Q. And then you put down the upper account of Marie Plamondon in 1918? Yes, sir.

“Q. Were you asked those questions and did you make those answers ?

“A. Yes, sir.

“(Reading): Q. Before you put on the John Powers item in 1914, is that right?

“And your answer was: A. Well, that was put in ■ and this was put in at the time I received these notes. We do not run everything in rotation in the book. We use any line we want to.

“I testified before Judge Horner that I wrote the Powers item in 1914. I now say I transcribed it from some other page and put it in there in 1916; that is that I wrote in 1916 the third line ‘1914, Walter J. Powers. ’ The Plamondon item was put on first and the Powers item was transferred from another sheet; that is why it comes on the lower part of the page.

“The Court: Was the Powers item, which is the lower two items, was that put there you say in 1916, or was it put there on the date it bears on that page, 1914?

‘ ‘ The Witness: I think it was put on that page after 1914; I could not say the exact date, it is so far back. The Plamondon 1918 item was written on that page before the 1914 item. The Powers item of 1914 was transferred from another page of the bills receivable record to this page.

“The Court: And that this item on this page of the bills receivable, and dated 1914, is an exact copy of the item that was on the page that is now questioned?

“The Witness: Yes sir.

“The Court: What I want to get at is this, I do not think it shows yet: What is your recollection, if you have any, as definitely as you can recall it to mind, of what year this item, which is dated 1914 on this page, and which is under the 1918 item, what year was the 1914 item actually written in, in ink, on this page: your best recollection?

1 ‘ The Witness: Well as far as I can recollect it may have been four or five years afterwards.

‘ ‘ The Court: Four or five years after ? ’ ’

The law is well settled that an indorsement of payment on a note by the payee is inadmissible against a maker for the purpose of avoiding the bar of the statute of limitations, unless such indorsement is corroborated by other evidence of actual payment. It was held in Connelly v. Pierson, 9 Ill. 109:

“The indorsement is the ex parte act of the payee, and is favorable to his interest; for if sustained, he thereby avoids the defense, and recovers demand, which, without the indorsement would clearly be barred by the lapse of time. The evidence therefore proceeds from an interested source. A rule, that the mere indorsement should authorize the presumption that the payment was actually made, and at the time stated, would be inconvenient in its operation, and mischievous in its tendency. It would furnish the strongest inducements to the payee to fabricate testimony in his favor, which could not without great difficulty, if at all, be explained away by the maker. The payment is an affirmative act, much more easily established by the creditor than disproved by the debtor. In the opinion of the court, an indorsement of a partial payment on a note, made by the holder without the privity of the maker, is not, of itself and uncorroborated, sufficient evidence of payment to repel the defense created by the statute of limitations. It was thus expressly decided in the cases of Roseboom v. Billington, 17 Johns. 182, and Whitney v. Bigelow, 4 Pick. 110.”

In Katt v. Chapman, 248 Ill. App. 12, this court held:

“Of course, the indorsement on the note purporting to be signed by Van Meter was merely, in and of itself, not being in the handwriting of the maker, but being in the handwriting of the payee, self-serving, and was properly excluded by the court. Connelly v. Pierson, 9 Ill. 109; Simmons v. Nelson, 48 Ill. App. 520; Lowery v. Gear, 32 Ill. 383.”

An attempt was made to fortify and support the indorsements of payment on the notes by the testimony of Pearson. A careful analysis of his testimony compels us to the conclusion that he had no independent recollection of having actually received the alleged payment from anybody. His bald conclusion that he had an independent recollection viewed in the light of his entire testimony has little if any probative value and we seriously doubt whether it could be considered such corroboration of payment as would make the indorsements admissible under the rule heretofore stated. This court said in Ruhl v. Gambrill, 175 Ill. App. 641, 643:

“Appellant’s testimony is to the effect that appellee made the four payments on the note at the times stated in the respective endorsements, but his testimony was given without entering into details as to the several transactions and in such a way as to involve statements of conclusions rather than a narrative of facts involved in the supposed payments as they occurred. . . .

“Considering all the evidence offered on the trial, we are of the opinion that plaintiff failed to prove by a preponderance of the evidence, the affirmative issue made by him that appellee made the payments on the promissory note under such circumstances as to give rise to the implication of a new promise on the part of appellee to pay the balance of the note. The theory upon which part payment of a debt takes a case out of the statute is that the party making the payment intended by it to acknowledge and admit the greater debt to be due. If, therefore, it was not in the mind of the debtor to do this then the operation of the statute will not be affected by the payment.

“Payment of a part is not enough unless it is made under such circumstances that a promise to pay the remainder may be reasonably inferred from it. Tippets v. Heane, 1 Cromp. M. & R. 252; Wainman v. Kynman, 1 Exchqr. 118; Lowery v. Gear, 32 Ill. 383; Kallenbach v. Dickinson, 100 Ill. 427; Miller v. Cinnamon, 168 Ill. 447; Brown v. Lathman, 58 N. H. 30.”

Other than the indorsement on the notes and the entries in the bills receivable book the only evidence in this record presented by the claimant on the question of payment was the testimony of the witness Pearson. A thorough examination of this witness’ testimony ' fails to reveal anything that could be construed as showing or even tending to show that John Powers personally made any such payment.

Failing to show that John Powers personally made the payment a feeble effort was made to show that some one else acting for and on behalf of John Powers made the payment. Instead of assuming its burden, and proving, as the law holds the claimant must prove, that some representative or agent acting for John Powers and with authority so to act made the payment in such manner and under such circumstances as to give rise to the implication of a new promise to pay the amount specified in the notes, Pearson testified that if John Powers did not make the payment in person it must have come in the mail or that some messenger of his must have brought it in. The claimant’s testimony was vague, confusing and indefinite. Nowhere in Pearson’s entire testimony is there the slightest indication as to who actually made the payment if any such payment was made. There is not a scintilla of evidence that any person with authority to act made the alleged payment for and in behalf of John Powers. The vague, indefinite conclusions of the witness certainly cannot supply the want of the clear, positive and convincing evidence required by law to revive this claim.

The indorsement of payment by the holder of the notes, otherwise inadmissible, was unquestionably admitted in this case on the theory that Pearson’s testimony furnished corroborative evidence of actual payment. An examination of his evidence demonstrates that it did not, in fact, furnish any legal evidence of payment by John Powers, notwithstanding the witness’ assertion that he did have an independent recollection of payment. In the absence of facts showing who made the payment and the circumstances under which the payment was made, we must infer that the basis of the witness’ testimony was the indorsements themselves and the entries in the bills receivable book rather than any independent recollection of his.

This is not the kind of clear, convincing evidence that the law insists must be presented corroborating an indorsement of payment on' a note by a payee without the privity of the maker to render such indorsement either admissible or credible. It lends no more credence to the indorsement than the indorsement would have had without it. Instead of supporting this claim by the satisfactory evidence necessary to toll the running of the statute of limitations and to prevail against the estate of the decedent, whose lips have been sealed by death, the claimant places his reliance on evidence all of which was of doubtful value. The testimony of Pearson was wholly inadequate. The indorsements were of no avail without sustaining support from Pearson’s evidence showing payment as contemplated under the law. The entries in the bills receivable book are discredited by Pearson himself as will be shown later. These three species of evidence were offered no doubt with the idea that each, though weak and unavailing in and of itself, would lend some force to the other and thus make each other competent and believable.

As to the entries in the bills receivable book it will be observed that the Plamondon entry, although under date of July 31, 1918, is at the top of the page, while the Powers account of June 14, 1914, is entered lower down on the same page. Pearson testified positively, both in the probate and circuit courts, that the entry of the Powers account as shown by the bills receivable book was the original entry and that it was made on the date it bore, and that on the date of the entry there was no ¿other entry on that page and that four years later the 1918 Plamondon account was entered above it on the same page. Realizing the inconsistency of this, he later gave several different and conflicting versions of this entry. He also testified later that this entry was not the original entry, but was a copy or transfer of the original entry; that the original entry had been destroyed and that the transfer was made in 1916,1918 or 1919.

We have examined every entry in the bills receivable book, which the witness testified was in his handwriting, and we are convinced that the witness did not tell the truth, or that he was woefully mistaken as to the Powers entry. Without the aid of the handwriting expert, who was called by the defendant, it is readily discernible with the naked eye that every entry made in this book in Pearson’s handwriting, even as late as the Everett account in 1924, was written in a clear, firm and flowing hand, except the Powers entry in 1914. The book showed no entries in his handwriting between 1924 and 1927, and the entry of payment on the Beech account made October 5, 1927, was the only specimen of Pearson’s handwriting in the book that compared at all with the Powers 1914 entry, which he testified to having made in either 1914, 1916, 1918 or 1919. This Powers entry of 1914, and the notation of payment of November 14, 1920, showed unmistakable signs of having been made at a date much later than that testified to by the witness. His handwriting as evidenced by this book was strong, firm and flowing as late as 1924, and the only entries in the book which showed marked signs of deterioration in his handwriting were the 1914 Powers entries, the November, 1920, notation of payment, and the 1927 Beech entry. Notwithstanding the fact that the trial court was impressed with the apparent sincerity and honesty of this witness, it is our opinion that this Powers account with its notation of payment as it now appears in this bills receivable book was entered at a much later date than the claimant would have us believe, and that it was valueless as far as affording any substantiation to this claim.

Walter Powers, the other maker of the note, was called as a witness by the claimant and testified that he had no independent recollection of malting the alleged payment, but that the obligation was primarily his and that if any payment was made he must have made it. The trial court concluded that if Walter Powers had made the payment he would have remembered it, and that not remembering it he did not make it.

The trial court in its oral decision of this case, after stating that the court was convinced that Pearson told the truth and that payment was in fact made, said:

“If Walter Powers did not make those payments, then John Powers, it is presumed, did so. . . . Before Walter Powers testified, I was inclined to think that the evidence did not quite sufficiently show that the payments were made by John Powers. It is true that the testimony of Mr. Pearson on that subject is a little vague and confusing and yet it does tend to show or by innuendo, at least, that the money came from John Powers.”

We are of the opinion that the trial court erred in indulging in this presumption in the absence of competent, credible and convincing evidence of facts showing that the payment was actually made. We are convinced that under our law this kind of presumption cannot be indulged as a substitute for the satisfactory and convincing evidence necessary to toll the statute and prevail against the estate of the decedent, especially when the claim is more than sixteen years old and no effort has been made to enforce it against either of the makers during that'time.

None of the cases cited by the claimant to uphold the presumption invoked by the circuit court is analogous to the case at bar. If the partial payment invoked to revive the claim is properly proven, admitted or not denied, then of course the court is warranted in presuming,' in the absence of other evidence overcoming the presumption, that there was an affirmative intention to pay based on the actual fact of payment by the maker of the notes. We can, however, discover no case that holds, where the evidence consists mainly of conclusions and merely gives rise to the conjecture and suspicion that somebody (unknown as far as the evidence goes) made or might have made such a payment as would toll the statute, even where the evidence shows that the co-maker did not make the payment, that such evidence is sufficient foundation in law for the presumption that, because somebody made the payment or might have made it, then the decedent maker of the note must have made it. The general ruling is that a fact cannot be regarded as proven where the evidence merely gives rise to the conjecture or suspicion of its existence. (17 Cyc. 754.)

The presumption of the court was not based on evidential facts, but had as its premise what was nothing more than Pearson’s presumption that payment was made by John Powers.

The notes in question in this case were on their face barred by the statute, and in order to revive this claim the burden was on the claimant to show by clear, positive and convincing evidence that the alleged payment was made by John Powers, November 14, 1920, to toll the running of the statute of limitations for 10 years from the date of payment. In Wachter v. Albee, 80 Ill. 47, 51, it is said:

“When, however, a party permits a debt to run, making no effort to collect it until the Statute of Limitations can be pleaded in bar of the action, he is in no position to call upon a court to aid him upon slight proof; on the contrary, the evidence ought to be clear and satisfactory to overcome the bar of the statute.”

The following language by this court in Katt v. Chapman, supra, is equally applicable to the facts in this case:

“Analyzing the evidence, in our judgment, it was insufficient; it may give rise to a suspicion, but it fails to convince.”

Walter Powers also testified that John Powers had been interested financially with Charles J. Hermann in various projects over a period of years, that they were intimate friends, and that John Powers had told the witness during-his lifetime that these notes had been taken care of and settled in 1923. The evidence discloses that John Powers, at least since 1920, and Walter Powers, since 1918, were abundantly able to pay these notes and a claimant cannot permit a note to remain unpaid until the maker dies or the statute can be pleaded in bar and expect the court to look upon his claim with favor. Fleming v. Mills, 182 Ill. 464:

“Stale claims against deceased estates are looked upon with suspicion and disfavor.”

Kellogg Switchboard & Supply Co. v. Dean Electric Co., 231 Fed. 194:

“The fact that the case has been permitted thus to hang about the courts for 10 years without trial, while witnesses have died and the memories of the living as to important facts have failed, must inevitably require that the party asserting shall establish his rights by clearer testimony than would be the case if he had diligently pressed his claim to a decision.”

In discussing statutory limitation in Phoebe v. Jay, 1 Ill. 268, the court said (p. 273):

“The statute of limitations was made for the purpose of quieting parties after so much time had elapsed, as affords a presumption that the evidence might be lost by death or forgetfulness. . . . The law, thereunder, discourages lawsuits after so much time has intervened as to create the presumption that witnesses have died or forgotten the transactions; or, in other words, the law favors the diligent and not the slothful. ’ ’

It is a peculiar and suspicious circumstance that, when the notes were six years past due and more than six years’ interest was past due, John Powers would pay and the claimant would be willing to accept payment for one year’s interest only when Powers was well able to pay the notes in full.

. The record in this case is lacking in the explicit proof necessary on the part of the claimant to maintain its burden, and when for 16 years this claimant failed to assert its claim when memories were fresh, before its books had been destroyed and while John Powers was still alive, the law will presume that John Powers paid the notes but neglected to have them canceled and destroyed.

In an opinion of this court in Katt v. Chapman, supra, the same learned judge who tried this case used the following language:

“Further, destructive of the claimant’s rights, is the evidence that 27 years had elapsed since the execution of the note, so that it is but reasonable to presume that it was paid. Howe v. Brown, 287 Ill. 532. In our judgment, the record does not disclose such clear and explicit proof as is necessary to dislodge the presumption of payment which the lapse of 27 years gives rise to.”

This record failed to disclose the convincing evidence of payment necessary to toll the running of the statute of limitations and it is our opinion that the claim on the notes was barred by the statute.

Some other legal questions have been presented, but inasmuch as they have only to do with the admissibility of evidence and the action of the trial court on certain propositions of law and they would not affect the result, we do not consider it necessary to discuss them.

For the reasons stated herein we are of the opinion that the facts as they appear in the record did not authorize the finding and judgment of the circuit court and the judgment of the circuit court is reversed with a finding of facts and judgment will be entered here for the estate for costs.

Judgment reversed with a finding of facts and judgment here for the estate of John Powers for costs.

Finding of fact: We find as ultimate facts that neither the deceased, John Powers, nor any representative nor agent of said Powers, made any payment of principal or interest on either of the two notes sued upon after the making of the said notes; and we further find that the estate of John Powers, deceased, is not indebted to Chapin & Gore, claimant, in the amount of the claim nor any part of it.

Scahlah, P. J., and Gridley, J., concur.


author: Mr. Justice Hebel

text:
    The People of the State of Illinois ex rel. Leo H. Lowe, Appellee, v. Old Colony Life Insurance Company, Defendant, v. Theresa Stengel, Appellant.
    Gen. No. 36,477.

      Opinion filed April 13, 1933.
    George D. Kimball, for appellant.
    Otto Keener, Attorney General, and William O. Clausen, Assistant Attorney General, for appellee; Schuyler, Weinpeld & Hennessey and Barrett, Barrett, Costello & Barrett, for receivers; William C. Clausen, Edward J. Hennessey and Burrell J. Cram-er, of counsel.
   Mr. Justice Hebel

delivered the opinion of the court.

This is an interlocutory appeal from an order entered on November 10, 1932, directing the receivers to accept the written proposal of the Life and Casualty Company, of Chicago for the reinsurance of the life insurance written by the Old Colony Life Insurance Company, a corporation organized under the laws of the State of Illinois.

Theresa Stengel, the appellant, a policyholder in the Old Colony Life Insurance Company, filed a bill in the superior court of Cook county on August 3, 1932, and made application for the appointment of a receiver. This insurance company and Leo H. Lowe, director of trade and commerce, were made parties to the bill, which was amended by leave of court on August 18, 1932. Leo H. Lowe filed an answer to the amended bill on October 6, 1932, admitting among other things that claims in excess of $62,000 were filed against the company, and that there were not sufficient cash reserves with which to pay the claims.

Under date of September 19,. 1932, The People of the State of Illinois, ex rel., Leo H. Lowe, as director of trade and commerce, and as provided for by Cahill’s St. ch. 73, ti 105 (2) (par. 496, sec. 2 et seq. ch. 73, Smith-Hurd Statutes of the State of Illinois), filed a bill of complaint in the circuit court of Cook county for the liquidation and dissolution of the Old Colony Life Insurance Company, and prayed for an order on the said company to show cause why a receiver should not be appointed to liquidate the business and affairs of the company. Notice of application for a receiver was filed on September 20, 1932, and the answer of the defendant, Old Colony • Life Insurance Company, was filed on September 20, 1932, admitting that an examination of the books had been made by the department of trade and commerce on August 26, 1932, and consenting to an immediate hearing on the issue as to whether a receiver be appointed.

An order was entered on the 20th day of September, 1932, by the court that a receiver be appointed, and that when appointed the receiver enter into bond for $15,000 to be approved by the court, and take possession of the books, records, property and assets of the company, and proceed to liquidate. The order also enjoined the company officials from transacting business, disposing of property and from interfering with the possession of the receiver.

On September 20, 1932, Alvin S. Keys, was designated and appointed as receiver of the company by the director of trade and commerce. Keys filed a bond in the sum of $15,000, and the appointment of Keys was confirmed by the court and his bond approved.

On October 5, 1932, an order was entered that J. A. O. Preus, having been designated and appointed by the director of trade and commerce as co-receiver with Alvin S. Keys, such appointment be ratified and confirmed, and that the bond of $15,000 filed by such co-receiver be approved. The order also directed the receivers to operate the property of the defendant and make reports from time to time as to the financial condition of this company.

On October 18, 1932, an order was entered directing the receivers to solicit written proposals for the reinsurance of the company, and that public notice be given soliciting such written proposals.

Thereafter the receivers filed a report on November 7, 1932, that publication was had for the filing of bids for the reinsurance of the company; that several companies filed bids, and that in addition to the written proposals filed prior to November 4, 1932, revised and amended proposals were filed by the Illinois Bankers Life Assurance Company of Monmouth, Illinois, Life and Casualty Company of Chicago, and State Life of Chicago; that the receivers recommended the proposal of the Life and Casualty Company as being in their judgment the most acceptable of the several proposals received by them. The court on November 10, 1932, entered an order finding that it was to the best interests of the policyholders, and all persons concerned that the proposal of the Life and Casualty Company of Chicago be accepted, and that the same be approved and the receivers ordered and directed to accept said proposal and to execute such instruments necessary to make effective the reinsurance of the policies of the Old Colony Life Insurance Company in accordance with and pursuant to said proposal. The court further directed the receivers to collect the proceeds of the check for $5,000, as a partial payment on the $35,000 cash required to be paid by said company.

On November 10, 1932, there was filed in the circuit court by the complainant Theresa Stengel the transferred case of Theresa Stengel v. Old Colony Life Insurance Company under the new case number B-253179. This transfer was made in accordance with an order entered on October 22, 1932, in the superior court of Cook county, transferring the case of that title numbered 562624 to the circuit court of Cook county, and an order was entered in the circuit court consolidating the above case with the case filed in the circuit court of Cook county.

The appellant contends that the order of November 10, 1932, authorizing the acceptance of the bid of the Life and Casualty Company of Chicago for the reinsurance of the policies in the case, is an order which gives other and further powers to the appointed receivers.

Theresa Stengel, complainant below and appellant here, charges in her amended bill of complaint filed in the superior court of Cook county that the officials of the defendant insurance company, unmindful of their duties to the policyholders and others, failed in not reinsuring the outstanding policies in other life insurance companies qualified to do business in Illinois, on terms such as would insure the policyholders of defendant company certainty of the payments provided for in their several policies; and the complainant further charges that sound life insurance compañíes were ready and willing to reinsure the policies of the holders of the defendant company without profit, provided the assets of the Old Colony Life Insurance Company were assigned to the companies, and that they would, upon conditions to be performed, pay the claims of the defendant company' and distribute any surplus funds among its stockholders.

The prayer for relief is for an accounting and for the appointment of a receiver, and that an injunction issue against the defendant and its officers, restraining them from interfering with the receiver or disposing of the assets of the defendant company, for the dissolution of the defendant company and distribution of its assets.

As to the reinsurance, the receivers were directed by the court to solicit written proposals for this purpose, and upon proper publication, bids were received and reported to the court with the recommendation by the receivers that the bid of the Life and Casualty Company of Chicago be accepted. Upon consideration of the recommendation of the receivers the court, on November 10, 1932, directed them to accept the proposal upon the conditions set forth in their petition.

The court in passing upon the question of liquidation of the defendant company, entered a decree on November 7, 1932, upon notice to all parties in interest and after an examination of the report of the receivers upon the condition of the defendant and for instruction as to the further administration and consideration of the evidence presented, approved the receivers’ report, and the court in its finding found that the condition of the business and affairs of the Old Colony Life Insurance Company was such that in the interests of its policyholders, creditors, stockholders and the public, the business and affairs of said company should be liquidated by the receivers, and decreed that the property and assets of the Old Colony Life Insurance Company be liquidated, and that the receivers proceed to liquidate the same under orders to be entered by the court from time to time, and that the orders and decrees heretofore entered be and the same are modified accordingly. The court further decreed that the receivers may at any time apply for orders to sell or dispose of the assets of the company. Therefore we must necessarily conclude that the only question remaining is that of the accounting between the parties. The essential and primary object of this proceeding is the liquidation of the assets of the defendant, and the decree is final upon that question. Chicago Life Ins. Co. v. Auditor of Public Accounts, 100 Ill. 478. Any subsequent proceedings in the disposition of this litigation will simply be to adjust the rights of the parties in and to the assets of the company, and to settle the liquidation of the company’s business.

When the appellant’s case, upon her motion, was consolidated with the case filed by the director of trade and commerce in the circuit court of Cook county she joined in the request for the appointment of a receiver and an injunction against the defendants from disposing of the property, and that the defendant company be liquidated and the proceeds resulting therefrom distributed among the persons interested. By that act she is not in a very good position to object to the entry by the court of the several orders herein mentioned. The only real objection by the appellant is that the court in accepting the recommendation of the receivers that the proposal of the Life and Casualty Company of Chicago for reinsurance be accepted, erred in not accepting a bid satisfactory to the appellant. The court exercised its discretion in adopting the recommendation of the officers of its court, and if appellant is not satisfied she is not obliged to accept as a policyholder the reinsurance offered, but still may assert her right as a policyholder in and to the assets of the company.

The decree providing that the property and assets of the defendant company be liquidated by the receivers, and further that the receivers may apply for-orders to sell and dispose of the assets, the receivers had authority to carry out the order of November 10. This order, an administrative one, does not grant other or further relief to the receivers already appointed. The sole purpose of the order was to carry out the liquidation of the defendant insurance company. Walrath v. Pyplatz, 178 Ill. App. 581. The reinsurance of the policies was for the benefit of the holders and a step to protect the policyholders in the liquidation of the company.

Other questions were raised in this proceeding, but in view of the conclusion of the court that the order was properly entered, it will not be necessary to consider them at this time. The order appealed from is therefore affirmed.

Affirmed.

Wilson, P. J., and Hall, J., concur.