text:
    People of the State of Illinois ex rel. Edward J. Barrett, Plaintiff, v. Cody Trust Company, Defendant. Life Insurance Company of Virginia, Appellant, v. Charles H. Albers and State Mutual Life Assurance Company, Appellees.
    Gen. No. 39,702.

      Opinion filed March 16, 1938.
    Castle, Williams & McCarthy, of Chicago, for appellant ; Frank J. Madden and Robert R. Hanley, both of Chicago, of counsel.
    George A. Novak, of Chicago, for appellee Charles H. Albers.
    Deerees, Buckingham, Jones & Hoffman, for appellee State Mut. Life Assur. Co.; Vincent O’Brien and John Merrill Baker, both of Chicago, of counsel.
   Mr. Justice Denis E. Sullivan

delivered the opinion of the court.

This is an appeal from a decree of the circuit court overruling exceptions to the master’s supplemental report and denying certain relief sought by the petitioner, the Life Insurance Company of Virginia, against the respondent, Charles H. Albers, receiver of Cody Trust Company. The trial court in confirming the master’s report found that the petitioner had traced $769.88 of its claim into the general bank accounts of the Cody Trust Company and that it was entitled to a preferred claim to that extent and to a general claim as to the balance; that no part of the claim of petitioner was a charge against the securities deposited by Cody Trust Company with the auditor of public accounts pursuant to the Trust Companies Act, because the moneys were received by the Trust Company as “agent” and not as “trustee.”

The evidence shows that Charles H. Albers was appointed a receiver of the Cody Trust Company and whilst he was in possession and liquidating the same the intervening petitioner, Life Insurance Company of Virginia, with the consent of the court filed a petition asking that a certain claim for moneys ag'ainst the Cody Trust Company be considered as a trust fund to be paid out of the deposit of $200,000 in securities in the hands of the State auditor which had been deposited by the Cody Trust Company, according to the provisions of the statute, enabling them to do business.

The answers of the receiver and the State Mutual Life Assurance Company were filed to the petition in which they admit practically all the facts, but contended the relationship between Cody Trust Company and the Life Insurance Company of Virginia was not that of trustee and cestui que trustent but, on the contrary," it was a contractual relationship entered into for the purchase and sale of mortgages, as shown by their written contract.

The master and the trial court found that the sums aggregating $16,724.70, for which claim is made, were received by the Cody Trust Company as agent and not as trustee.

The trial court also found that at the time of the closing of the Cody Trust Company on December 12, 1933, there was no cash on hand, but there was due it from some other banks various sums making a total of $769.88, being assets of Cody Trust Company in their general bank accounts, but not in their trust accounts ; that at no time prior to the closing of the Cody Trust Company was there a lesser amount than $769.88 due the Cody Trust Company from banks in its general bank account from the time of the accrual of the claim of the Life Insurance Company of Virginia to the date of the closing of the Cody Trust Company; that the funds collected from time to time on behalf of the Life Insurance Company of Virginia were deposited in said banks and the court allowed such amount as the money of the Cody Trust Company, which had been identified by such bank deposits as belonging to the petitioner.

The claim against the Cody Trust Company by petitioner was for money collected from various principal notes and interest coupons which were forwarded to the Cody Trust Company, as agent for the collection and remittance, amounted to $16,724.70 and that the said claim did not therefore charge against the securities deposited by the Cody Trust Company with the auditor of public accounts pursuant to the Trust Companies Act.

Petitioner’s contention is that all the transactions it had with the Cody Trust Company were as trustee; that inasmuch as the Cody Trust Company was named as trustee in the mortgage deeds, that their transactions with them were as fiduciaries which brought all their transactions within the purview and intention of the statutes of Illinois with relation to trust companies; that the securities amounting to $200,000 deposited with the State auditor were intended as security for them and that their claim against the Cody Trust Company should be protected by said deposit in the auditor’s office and the claim should be allowed to be paid out of said fund as a preferred claim.

The receiver and the Mutual Life Assurance Company, the other appellee, take the position that the claim of the Cody Trust Company was not a preferred claim; that the transaction between the Life Insurance Company of Virginia and the Cody Trust Company was merely that of principal and agent; that the amount of the claim is admitted and should be allowed as a general claim but not as a preferred claim protected by the deposits of securities in the state auditor’s office.

The contention of the State Mutual Life Assurance Company is that the securities deposited with the auditor are for the benefit of express trust creditors and they join with the receiver in opposing the claim of the Life Insurance Company of Virginia.

It appears from the stipulations entered into that the Cody Trust Company was by its charter empowered to-transact the following business: “To loan money, buy and sell securities, accept and execute trusts and to do all things necessary and proper to carry on a general trust company business.” The relationship between the Life Insurance Company of Virginia and the Cody Trust Company was expressed in a written contract. The substance of which is as follows:

The Cody Trust Company is designated as party of the first part, hereinafter called Correspondent, and the Life Insurance Company of Virginia is designated as party of the second part, hereinafter called the Company.

The contract provides that the Correspondent desires to submit to the Company for purchase, notes or bonds secured by mortgages or trust deeds on city real estate and the Company is willing to examine such securities with a view to purchasing" same upon the terms and conditions set forth.

The contract further provides that the said party of the first part shall act as Correspondent for the Company in the city of Chicago and other territory in which the Correspondent may operate for the purpose of submitting loans secured by mortgages or deeds of trust for sale to the Company, and shall act as agent in the collection and remittance of principal and interest as they become due on such loans as may be purchased; that it is not intended by this agreement to confer upon this Correspondent the exclusive right to submit loans to the Company in the aforesaid territory.

The contract further provides that no loan offered by the Correspondent shall exceed 60 per cent of the conservative value of the property and each loan shall be evidenced by notes or bonds secured by mortgage or trust deed which shall be a first lien upon improved city real estate, and on forms and terms approved by the Company; that the Correspondent guarantees to protect and save harmless the Company from loss by reason of any mechanic’s, builder’s, supply, material-man’s or other similar liens affecting any property upon which a loan may be made.

The contract further provides that the title policies issued direct to the Company shall be furnished with all loan papers, acceptable to the Company, or in lieu thereof complete abstracts of title with a certificate of title by a competent and reliable attorney acceptable to the Company; the title in each case to be continued to the dates on which the loans are assigned to the Company. In every case where no title insurance policy is furnished, the Correspondent guarantees to protect and hold harmless the Company from all loss or damage by reason of any lien or incumbrance upon or defect in the title to the property securing such loan.

The contract further provides that all expenses of every kind incurred in connection with the purchasing and transferring of any loan, including appraisal of the property, recording of assignment or otherwise, shall be paid by the Correspondent; that all loans must be closed and all sums of money necessary for that purpose advanced by the Correspondent and the necessary papers recorded before submitting them to the Company; that if the mortgage or deed of trust has not been returned, recorder’s receipt shall be furnished and if requested by the Company, a copy of such filed mortgage or deed of trust; that a mortgage note assigned to the Company, a survey of the property, estoppel certificate by the original mortgagor and by the owner of the fee at time of assignment if other than the original mortgagor, owner’s affidavit as to title, policies of insurance and such other papers as the Company may require shall also be furnished; that all abstracts, certificates, policies of insurance and other ' papers shall be satisfactory to the Company and shall be lodged with and retained by it, together with the mortgage or deed of trust and mortgage note, until the respective loans are fully paid and satisfied; that upon acceptance of the loan by the Company and receipt and approval of all the papers pertaining thereto, the Company shall send remittance to the Correspondent or deposit same to its credit in a bank to be named, if so directed, by the Correspondent.

The contract further provides that until the said mortgage loans so purchased by the Company are paid in full, the Correspondent will attend to the collection of all interest thereon on the due dates of such interest payments, and will promptly remit the same to the Company, without deduction (except as hereinafter provided) in New York Exchange; and will collect the principal of the said loans or portions thereof when and as the same mature, together with interest accrued and unpaid thereon, and will promptly remit the same to the Company without deduction in New York Exchange; and the said Correspondent will see that all buildings upon the premises covered by said mortgage loans are kept adequately insured for the benefit of the Company against loss by fire in insurance companies satisfactory to the Company, for an amount sufficient to avoid coinsurance, and to give protection equal to the amount of the respective mortgage loans; and the said Correspondent will see to it that all taxes and assessments levied upon said premises covered by said mortgage loans are duly paid in accordance with the provisions of the said mortgages or trust deeds, and will at least once a year examine all necessary tax books to ascertain such payment, and will notify the Company immediately if any of such taxes and assessments have been left unpaid, specifying the same in detail.

The contract further provides that in consideration of services rendered by the Correspondent as herein provided, the Company hereby agrees that the Correspondent may deduct and retain from any interest collected any amount in excess of the net rate at which the Company may have agreed to purchase or renew the said loans in full payment for all services rendered or expenses incurred.

The contract further provides that if any of said mortgage loans are not paid in full as to principal and interest, when due, or in case of any other default in the conditions thereof, the Correspondent shall have the privilege either of repurchasing same, paying therefor the amount of the principal then unpaid together with all accrued and unpaid interest and any other costs or expenses properly chargeable thereto, or of exchanging such delinquent loans, without expense to the Company, for other mortgage loans of substantially like amount drawing the then prevailing current interest rate and which shall be satisfactory to meet the approval of the Company; but in any such case the Company may elect which of such alternative privileges the Correspondent may exercise; the foregoing provisions of this paragraph shall not be interpreted as a legal guarantee by the Correspondent of the loans covered by this agreement.

The contract further provides that the Company shall have 12 months after accepting a loan from the Correspondent in which to examine the papers, investigate the moral risk and inspect the property upon which said loan is secured; that if after such examination and inspection, the Company considers such loan unsatisfactory, the Correspondent, within 60 days after being requested so to do, will repurchase such loan on the same basis as sold, or it will substitute, without expense to the Company, other loans in substantially like amount subject to all the provisions hereof, which are acceptable to the Company and bear interest at the then prevailing current interest rate.

The contract further provides that the determination as to whether the loans offered, or the borrower, or the title to the real estate are satisfactory, shall be absolutely within the discretion of the Company, and its determination shall not be questioned by but shall be binding and conclusive upon the Correspondent.

It is quite evident from the terms of this contract that no fiduciary relationship of trustee and cestui que trust ent was established and that the Life Insurance Company of Virginia was the principal and the Cody Trust Company was the agent. The details enumerated in the terms of the contract show that both parties to the contract were dealing at “arm’s length” in the purchase and sale of the mortgages.

In our opinion the sole question to be determined is:

Are all the creditors of a trust company protected by the deposit placed with the State auditor under section 6 of the Trust Companies Act [Ill. Rev. Stat. 1937, ch. 32, § 292; Jones Ill. Stats. Ann. 135.25], or are they limited to those beneficiaries of express trusts entered into at the inception of the relationship because the corporation had been qualified under the statute to act as trustee %

This requires us to look at the act itself in order to determine whether, by its terms, it was intended that this provision of the statute should apply only to corporations authorized to accept express trusts and not to corporations who by virtue of their actions or by operation of law may find themselves declared to be constructive trustees. Ill. Rev. Stat. 1937, ch. 32, ][ 287, sec. 1 [Jones Ill. Stats. Ann. 135.20], provides:

“Section 1. That any corporation . . . incorporated under the general incorporation laws of this State . . . for the purpose of accepting and executing trusts, and any corporation now or hereafter authorized by law to accept or execute trusts, may be appointed assignee or trustee by deed, etc.”

Chapter 32, par. 292, sec. 6 of the same act [Jones Ill. Stats. Ann. 135.25], provides:

“Section 6. . . . No corporation authorized to accept and execute trusts shall, either directly or indirectly, through any officer, agent or employee of such corporation, accept or execute any trust concerning property located wholly or in part in this State without complying with the provisions of this Act. . . . ” Chapter 32, par. 294, sec. 8 [Jones Ill. Stats. Ann. 135.27], provides:

“Section 8. It shall not be lawful for any such company [that is, authorized to accept and execute trusts] to accept any trust or deposit as hereinbefore provided, after the passage of this Act, without first procuring from the Auditor of Public Accounts a certificate of authority stating that such company has complied with the requirements of this Act in respect to such deposit.”

It will also be noted that the articles of incorporation of the Cody Trust Company, among other things, permits them to “accept” and “execute” trusts.

When considering this Trust Companies Act, the Supreme Court in the case of People v. Cairo-Alexander County Bank, 363 Ill. 589, at page 592, said:

“It is claimed that the bank in question had made a deposit with the State Auditor under the provisions of the Trust Companies Act (Ill. State Bar Stat. 1935, chap. 32, p. 928; Smith’s Stat. 1935, p. 878); and that the funds in question are secured by that deposit. It is unnecessary to pursue this line of argument as the act in question is not applicable. That act can be construed only to permit corporations who have qualified under it, to accept or execute trusts, be appointed assignees or trustees by deed, executors or guardians by will, or receivers, assignees, guardians, conservators, executors, administrators or trustees under order of court. No such case is before us. No trust was created for any purpose, nor was there any trust res segregated or set aside, the record showing all funds at the bank were at all times mingled in a common till.”

In the case of Barrett v. Reuter, 289 Ill. App. 221, this court in construing* section 6 of the Trust Companies Act, at page 232, said:

“As to the contention that the clause of the Trust Companies Act ‘said deposits to be for the benefit of the creditors of said company, ’ means that the securities are to be held for the benefit of all creditors of the bank or trust company, we think it is apparent that such a construction would require us to ignore the apparent purpose which the Trust Companies Act was intended to accomplish. It would also prevent a uniform application of the act to all corporations doing a trust business. Under such a construction of the act the creditors of a trust company engaged only in doing a trust business would acquire better protection than creditors of a corporation doing a trust business and a banking* business as well. The Supreme Court has recently held that this was not the intention of the legislature in the enactment of the law. People ex rel. Barrett v. Cairo-Alexander County Bank, 363 Ill. 589.”

It is apparent from the foregoing language and that of the statute that the deposit made under section 6 does not protect all creditors of the company, but only those who are creditors as a result of an express trust accepted by the said trustee.

In construing the Trust Companies Act, the cases which have passed upon the question now before us and where recourse has been allowed to the creditors against the deposit with the State auditor, have all been cases where there has been an express trust.

In re National Bank of Ottawa, 273 Ill. App. 545, where the claimant was allowed recourse to the deposit in the State auditor’s office, there was an express trust by written declaration.

In the case of People v. Cairo-Alexander County Bank, 363 Ill. 589, from which we have heretofore quoted, the receiver sought to obtain the protection of the securities deposited pursuant to section 6 of the Trust Companies Act by transferring on the books of the bank its deposits from the commercial side of the bank to the trust department, but as the court pointed out “no trust agreement was executed,” and recourse to the fund was denied.

In People v. Canton Nat. Bank, 288 Ill. App. 418, a bank authorized to do a trust business was named trustee in a testamentary trust and accepted. On the insolvency of the bank it was held that the beneficiaries were entitled to recourse to the deposit made pursuant to section 6. The claim of the receiver of the bank that all creditors of the bank were entitled to the benefit of the securities deposited with the auditor of public accounts was denied.

It is contended by appellant here that out of the $16,724.70, collected by the Cody Trust Company in payment of notes and interest coupons forwarded to it by petitioner, it is stipulated that $5,178.05, represented moneys received by the trust company under trust deeds wherein it was named as trustee.

The trust deeds in question contain the following provision:

“. . . all of said principal and interest payments being payable in gold coin of the United States of America of or equal to the standard and value, weight or fineness, at the office of Cody Trust Company in Chicago, Illinois, and as well to insure performance of all the covenants, agreements, conditions, and to render effective all provisions herein and in said notes contained. ’ ’

Appellant claims that the fact that this last named provision is contained in the trust indenture under which it is named trustee, instead of in a separate instrument, makes Cody Trust Company trustee under an express trust of the principal and interest paid to it.

We think the trusteeship, outside of this stipulation, if any there was, became what is known in law as a resulting or constructive trust growing out of the fact •that the money that was paid into the Cody Trust Company was not remitted to the petitioner in accordance with the contract of agency entered itito between the Life Insurance Company of Virginia and the Cody Trust Company.

We do not believe the words in the Illinois Act, “trustees by deed and trustee by will” can be overlooked. That language does not permit a different kind of trusteeship than therein described. We believe that it was intended by the legislature that the trusteeships that were to be covered by the statute were those in which appointments were made either by deed or its equivalent or made by the court and accepted voluntarily in each instance by the trust companies and does not extend to “resulting” or “constructive” trusts or any other kind of trusteeship which, by operation of law, might grow out of the acts and doings of trust companies or their officers.

As to the item of $5,178.05, a different situation arises. It is agreed that this sum represented moneys received by the Cody Trust Company under trust deeds wherein it was named as trustee. In other words, the stipulation shows that the Cody Trust Company was named trustee by deed in compliance with the statute and the money they had in their possession was received by them by virtue of such appointment. Therefore, as to the item of $5,178.05', we think by virtue of said trust deed and stipulation that it brings this amount within the provision of the statute and that the securities deposited with the State auditor should be applicable as to this amount.

For the reasons herein given the decree of the circuit court is affirmed in all particulars except as to the sum of $5,178.05 and as to that amount the decree is reversed and remanded with directions that this claim should be allowed as against the securities deposited with the State auditor, and the trial court committed error in not allowing that claim.

For the reasons herein given the decree of the circuit court is affirmed in part and reversed and remanded in part with directions.

Affirmed in part and reversed and remanded in part with directions.

Hebel, P. J., and Hall, J., concur.


source: Caselaw Access Project

author: Mr. Justice Denis E. Sullivan

license: Public Domain

text:
    Rose Bryan, Appellant, v. Pilgrim National Life Insurance Company, Appellee.
    Gen. No. 39,732.
    Opinion filed March 16, 1938.
    Rehearing denied and additional opinion filed April 1, 1938.
    . Thompson, Chambers & Thompson, of Chicag’O, for appellant; Lavern W. Thompson, of counsel.
    Stebbins, McKinley & Price, of Chicago, for appellee; William McKinley and Paul E. Price, of counsel.
   Mr. Justice Denis E. Sullivan

delivered the opinion of the court.

Rose Bryan brought suit in the municipal court against defendant Pilgrim National Life Insurance Company, a corporation, in an action on a contract. The cause was tried before the court without a jury. The court disallowed plaintiff’s claim and entered judgment against plaintiff and in favor of defendant’s counterclaim in the sum of $720.63, from which judgment and finding plaintiff brings this appeal.

Plaintiff’s statement of claim declared upon a check in the sum of $229.44, drawn in her favor by defendant and upon which payment had been stopped. Defendant admitted the execution of the check and the stopping of payment thereon and alleged that the same was given to the plaintiff because of a misunderstanding of defendant’s legal duty to plaintiff as assignee of the amounts due under a certain contract between one F. J. Siedler, deceased, and the defendant; that the assignment was never delivered and was a forgery. Defendant filed a counterclaim for $720.63, being the amount of 3 checks that it had previously delivered to plaintiff under the contract and alleged that these checks had been cashed by her.

Plaintiff’s theory is that the contract provided for the payment of accruing commissions or earnings on a percentage basis after the death of Siedler and that any ambiguity relating thereto had been interpreted by the parties in their subsequent dealings; that the assignment was unconditionally delivered by Siedler to plaintiff during Siedler’s lifetime and that it bore the genuine signature of F. J. Siedler; and, that the checks forming the basis of the counterclaim were given with full knowledge of all the facts relied upon as a defense, and that moneys thus voluntarily paid under a mistake of law cannot be recovered.

Defendant’s theory is that the check was given in payment of amounts accruing after Siedler’s death under a contract for personal service which terminated with such death; that the assignment was a gift inter vivos and was never delivered to plaintiff; and, that the signature on the assignment from Siedler to plaintiff assigning the benefits under the contract was a forgery.

Defendant in its brief ask that in addition to the statements set forth as its theory in plaintiff’s brief, that the following be added:

“If the contract is to be construed as contended by plaintiff, then as a contract prohibited by law, no act of any officer of the corporation, whether by mistake of law or fact, could bind the corporation on it.

“If the contract with Siedler be construed as contended by plaintiff, it was prohibited by law and consequently no rights could be predicated thereon.”

The abstract does not show that these last two theories of defendant appear in the pleadings in the trial court nor in the arguments at the time of the trial, and they are presented here for the first time. Therefore, these points will not be considered.

It is agreed by the parties involved in this controversy that the following facts are substantially correct:

On December 29, 1934, the Pilgrim National Life Insurance Company, defendant, entered into a contract with the Fairfield Mutual Life Insurance Company, under which the Pilgrim Company took over the business of the Fairfield Company by reinsuring the latter’s policy holders and at the time of the said consolidation Rose Bryan, plaintiff herein, was president of the Fairfield Company and F. J. Siedler was its secretary; that when the Fairfield Company was taken over, Siedler became associated with the Pilgrim Company under a certain contract dated January 1, 1935, providing* for certain percentage payments to Siedler out of subsequently paid premiums by the Fairfield Company and other policy holders. Under date of July 1, 1935, a new contract was entered into between Siedler and the Pilgrim Company, which superseded the previous one, the latter contract being the one involved in this case.

The facts further show that in accordance with the contract Siedler was to be paid a percentage, or commission, of 25 per cent of the premiums collected from the Fairfield Company policy holders for one year from the date of the reinsurance and 2% per cent for the following 9 years; that he was also to be paid a commission of 12% per cent for the first year and 2% per cent for the succeeding 9 years on premiums paid by all policy holders of all other mutual companies reinsured by the Pilgrim Company.

The facts further show that plaintiff and Siedler had been associated together in various business enterprises for many years and that he had lived at her home for 19 years prior to his death and that on July 1, 1935, he executed an assignment to plaintiff of all sums due under the contract; that after his death the Pilgrim Company paid to plaintiff, in accordance with the assignment, the monthly payments due under the contract for 3 months, to wit: balance of December, 1935, paid January 28,1936; all of January, 1936, paid February 15, 1936; all of February, 1936, paid March 13,1936; or a total of $720.63; that they also on April 10, 1936, forwarded to plaintiff by mail a check for $229.44, representing the commission on March collections, which plaintiff did not present to the bank for payment until on or about April 30th, at which time payment had been stopped by defendant. This suit is brought upon that check.

In view of the admissions made in defendants’ brief, we deem it unnecessary to consider much of the evidence. Defendant approved the facts as stated in the preceding paragraph, for in its brief on page 2, it states:

“Insofar as the facts are summarized in the plaintiff’s brief they are substantially correct except in the following particulars:

“On page 7 of the plaintiff’s brief we read:

“ ‘Siedler undoubtedly devoted his time largely, if not exclusively, to the business of locating small mutual companies and reinsuring their policyholders in the Pilgrim.’ ”

In view of the admissions, we do not think it necessary to consider many of the questions that are otherwise argued in the briefs. If as the admission states, “. . .he [meaning Siedler] executed an assignment to the plaintiff of all sums due under the contract. After his death, the Pilgrim paid to the plaintiff, in accordance with the assignment the monthly payments due under the contract for three months. . . .” Consequently, no question as to the validity of the contract or its assignments or the payments thereunder are presented to us for review. This stipulation admits all these matters and it is unnecessary for us to consider them further.

As to the questions that the action of the officers of the corporation was ultra vires and they having no power to bind said company, such questions not having-been presented in the trial court by the pleadings, argument or evidence, they cannot now be raised here for the first time.

.As the Supreme Court said in the case of Groves v. Farmers State Bank, 368 Ill. 35: “Money voluntarily paid under a claim of right to the payment, with full knowledge of all the facts by the person making the payment, and without fraud or mistake of fact, cannot be recovered back upon the ground that the claim was illegal, unless the payment was made under circumstances amounting to compulsion, and money paid under a mistake of law or an erroneous judgment cannot be recovered.”

Not only does the evidence show here that the money was voluntarily paid, but, in fact, the payments were suggested by the president of the defendant company, as shown by his letter to plaintiff under date of April 10, 1936, the postscript of which reads:

“P. S. Due to the fact that you have not called for your check, please find same enclosed.”

We do not believe there was any convincing evidence showing the assignment of the contract was a forgery. We are of the opinion that the trial court was correct in its finding that the assignment was genuine.

For the reasons herein given the judgment of the municipal court is, therefore, reversed and inasmuch as trial by jury was waived, there will be no necessity for remanding the cause. Judgment will, therefore, be entered here in favor of plaintiff and against the defendant for the amount of said check in the sum of $229.44.

Judgment reversed and judgment here for $229.44.

Hebel, P. J., and Hall, J., concur.

Addenda to Opinion Filed Eehearing Denied.

In the petition for a rehearing, which is denied, our attention is called to the statement as contained on page 4 of the opinion filed by this court, which reads: , “As to the questions that the action of the officers of the corporation was ultra vires and they having no power to bind said company, such questions not having been presented in the trial court by the pleadings, arguments or evidence, they cannot now be raised here for the first time.”

We wish to add thereto the following citations: Bittner v. Field, 354 Ill. 215; Hill v. Siffermann, 230 Ill. 19.

It has also been called to our attention that this court in its opinion did not express its views as to what legal effect the death of Siedler would have upon the rights of the parties with reference to future payments.

In the opinion filed by this court we did not intend to nor do we now pass upon any questions which may arise in the future under this contract. We intended to hold that the payments voluntarily made by the company could not be recovered and that the judgment of the trial court in this respect was contrary to the law and against the manifest weight of the evidence.

Rehearing denied.

Hebel, P. J., and Hall, J., concur.


author: Mr. Presiding Justice O’Connor

text:
    People of the State of Illinois ex rel. Wilmette State Bank, Appellee, v. Village of Wilmette et al. Bankers Life Company and Samuel K. Markham, Appellants.
    Gen. No. 39,719.

      Opinion filed March 21, 1938.
    Markman, Donovan & Sullivan, for appellants; Henry 0. Nickel, of Chicago, of counsel.
    Concannon, Dillon, Bostelman & Snook and William T. Hapeman, both of Chicago, for appellee.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.

February 8,1935, the People of the State of Illinois, on relation of the Wilmette State Bank, a corporation, filed a petition against the Village of Wilmette and certain of its officials and the officials of the Board of Local Improvements of the Village, praying that a writ of mandamus issue, commanding defendants to issue and deliver to the bank bonds in an amount of $28,200, and a warrant for $55, payable out of the deferred instalments of a special assessment. The Bankers Life Company, claiming that it was the owner of special assessment bonds of the par value of $886,000, payable out of the deferred instalments of the special assessment, was given leave to intervene. Afterward various pleadings were filed, motions made, and orders entered, and the cause submitted to the court upon a stipulation of facts. The court, entered judgment, awarding a writ of mandamus as prayed for. The judgment specified the amounts for which each bond should be issued, the date each should bear, from which date interest was to be computed, and the instalment out of which each bond was payable; it specifically provided such bonds were to be paid out of instalments 5 to :20, both inclusive, and there was also a provision for the issuance-of the voucher for $55. Neither the Village nor. any of its officials joined in this appeal, which is prosecuted solely by the defendants, the Bankers Life Company, a corporation, and Samuel K. Markman. Although the record on appeal was filed July 17, 1937, the last brief was not filed in this court until January 8, 1938.

The record discloses that on July 16, 1929, the Village of Wilmette passed an ordinance for the construction of a system of storm water sewers and for the condemnation of a parcel of private property for a pumping station site, the cost of which was to be paid by special assessment, in accordance with the provisions of the Local Improvement Act. Afterward proceedings were had which resulted in a judgment confirming the assessment for $1,606,325.16. It was payable in 20 instalments, the first instalment was $84,021.77 and the remaining 19, $79,359.64 each. Afterward the contract was let, the work done, vouchers against the first instalment and bonds against the remaining instalments were issued and delivered to the parties entitled thereto, for the payment of the work. The vouchers which were payable out of the first instalment aggregated $109,235.66, which was greatly in excess of the amount of the first instalment. $63,179.75 of these vouchers were issued and delivered to Roberts or Roberts & Co., for engineering services rendered in the making of the improvement. Vouchers for $28,255 which had been issued and delivered to Roberts were subsequently purchased by plaintiff, the Wilmette State Bank, no part of which, either principal or interest, has been paid. -Special assessment bonds totalling $69,000 were issued against some of the deferred instalments and bonds totalling $70,000 were issued against the other deferred instalments, leaving a surplus in each of the instalments from 2 to 20, both inclusive, of between $9,000 and $10,000. Just when it was first learned that the amount of the assessment confirmed in the first instalment was much less than the aggregate of the vouchers, each payable out of this instalment, does not appear, but it was about -July, 1931. This matter was taken up with the Village officials and negotiations were carried on for some time as to what should be done.

The construction of the improvement was commenced about May 25, 1930, and completed and accepted by the Board of Local Improvements November 17, 1931, and about a month after the acceptance of the work by the Board it filed its certificate of final cost and completion, as required by section 84 of the Local Improvement Act in the county court of Cook county in the special assessment proceeding. Notice was thereafter given in accordance with the statute, some objections were filed ivhich were afterward withdrawn, and the order entered by the county court finding that the work had been done in substantial compliance with the provisions of the ordinance. By this order it was found that the work had been finally completed and accepted by the Board, the cost thereof, together with the amount estimated by the Board required to be paid, the accruing interest on the bonds and vouchers issued to anticipate the collection of the assessment; that there was no excess to be abated, but that there was a deficiency of $55,423.

Before the filing of the briefs in the instant case plaintiff made a motion to dismiss the appeal on the ground that some of the parties defendant, who had been defaulted in the trial court, were not served with notice of appeal. Defendants’ contention is that all parties to the record were served with notice of appeal. We have heretofore denied the motion. But counsel say their motion should be reconsidered and rely upon the case of Lewis v. Renfro, 291 Ill. App. 396, in which leave to appeal from the decision was denied by the Supreme Court. They also say that the Supreme Court, in docket Nos. 24445 and 24446, dismissed appeals in those cases, “because all co-parties, including those who had been defaulted, were not served with notice of appeal.” We have no official knowledge of why the appeals were dismissed by the Supreme Court.

Some 2d years ago the writer was of opinion that where the Supreme Court denied certiorari, (which is now similar to our leave to appeal) and the question involved was necessarily a question of law, the denial of the writ by the Supreme Court was equivalent to holding that the question of law had been decided properly by this court. People v. Grant, 208 Ill. App. 235. This view was wrong. People v. Grant, 283 Ill. 391. Counsel for plaintiff say that the rule of the Supreme Court, construed as they think it should be construed, “is to facilitate the orderly disposition of the business of the Courts and to expedite the prompt administration of justice.” We think it obvious that is not the purpose of the motion made in this case. The only purpose of the motion is to prevent a review of the case by this court. Our Civil Practice Act was in the course of preparation for a number of years before it was submitted to the members of the bar throughout the State, and afterwards to the legislature. The committee which principally prepared a draft of the bill was composed of a number of practicing lawyers throughout the State, a few former and present judges and members of the faculty of the law schools of the Universities of Illinois, Chicago, Northwestern, Michigan, DePaul, Loyola, and probably others. Section 4 of the act, par. 128, ch. 110, Ill. Rev. Stat. 1937 [Jones Ill. Stats. Ann. 104.004], provides that, “This act shall be liberally construed, to the end that controversies may be speedily and finally determined according to the substantive rights of the parties and the rule that statutes in derogation of the common law must be strictly construed shall not apply to this Act or to the rules made pursuant thereto.

“No statute hereafter enacted shall be construed to limit or affect the provisions of this Act or the rules adopted in accordance therewith, unless expressly declared to supersede or take precedence of designated provisions thereof or designated rules adopted pursuant thereto.” Section 42 [Ill. Rev. Stat. 1937, ch. 110, §166; Jones Ill. Stat. Ann. 104.042] of the act provides: “(2) No pleading shall be deemed bad in substance which shall contain such information as shall reasonably inform the opposite party of the nature of the claim or defense which he is called upon to meet.

“(3) All defects in pleadings, either in form or substance, not objected to in the trial court, shall be deemed to be waived.”

Section 74 of the act [Ill. Rev. Stat. 1937, ch. 110, § 198; Jones Ill. Stat. Ann. 104.074] provides that the method of review in civil proceedings shall be by notice of appeal only, “and shall constitute a continuation of the proceeding in the court below.”

The purpose of the entire act was to simplify the procedure and the prime object of the act was to enable the parties to a cause to have the merits of their controversies passed upon by the courts — -the realities considered rather than that the matter be decided on mere technicalities which often justly bring the courts into disrepute. If the act is to be liberally construed according to the substantive rights of the parties, as it is expressly provided, this purpose will be nullified and the act guillotined by strict construction of rules of court adopted to aid the carrying of the act into effect — a strangw commentary to construe the act liberally but the rules strictly. But under any act, strict construction of the rules is not in accordance with the decisions of our Supreme Court. In People v. Davis, 357 Ill. 396, the court said (p. 400): “Rules of court should be obeyed. This, however, does not imply such unswerving obedience as to preclude reasonable action thereunder where no material harm is done to any litigant or person charged with crime. We can perceive no reason why rules of court should be interpreted or construed more strictly than statutes in general. . . . Such rules are not mandatory, for in a particular case, for good cause, they may be disregarded. ’ ’ The court there referred to People v. Feinberg, 348 Ill. 549, where the court said, “The rules are the rules of the court and are binding on each of the judges, unless in a particular case, for good cause, they may be disregarded. (People v. Smith, 275 Ill. 210.)” And such has long-been the law in this State. In Field v. Chicago, D. & V. R. Co., 68 Ill. 367, the court said (369): “But if it were true the court had violated one of its rules, we would not for that reason alone reverse, unless it was apparent that injustice had been done, which does not appear in this case. Mix Impl. v. Chandler et al., 44 Ill. 175.” And in Hunt v. Pronger, 126 Ill. App. 403, this court, speaking by Mr. Presiding Justice Adams, in an opinion filed in 1906 said (p. 407): “Even when the court acts contrary to its rules, this will not be ground for reversal, unless it is apparent that injustice has been done. Field v. Railroad Co., 68 Ill. 367.” See also Citizens Sec. & Inv. Co. v. Dennis, 236 Ill. App. 307. We think Rule 34 of the Supreme Court does not specifically require that a notice of appeal be served on a defendant who has been defaulted.

In Tuttle v. Checker Taxi Co., 274 Ill. App. 525, in discussing the mies of court we said (p. 528): “The extensions in the instant case complied with the authorized rules of the Supreme Court and of this court and the appeal is properly before us. If there seems to be some conflict between the statute (section 77) and these rules, we should bear in mind the statement of Mr. Justice Holmes in Bain Peanut Co. v. Pinson, 282 U. S. 499-501, where he says ‘The interpretation of constitutional principles must not be too literal. We must remember that the machine of government would not work if it were not allowed a little play in its joints.’ ” The Civil Practice Act and the rules enacted pursuant thereto must not be construed too literally. They will not work if a little “play in its joints is not allowed.”

Defendants, who were defaulted in the circuit court, are not, after such default, entitled to any further notice of proceedings. Rule 16, par. 2, of the circuit court of Cook county reads: “A defendant who is in default for failure to appear is not entitled to notice. ’ ’ And in Frow v. De La Vega, 15 Wallace, (82 U. S. 552) is clearly stated the position of a defaulted defendant where the court said: (p. 554) “The defaulting defendant has merely lost his standing in court. He will not be entitled to service of notices in the cause, nor to appear in it in any way. He can adduce no evidence, he cannot be heard at the final hearing.”

Rule 34 of our Supreme Court, upon which defendants most rely, does not require that a copy of the notice of appeal be served on all parties to the proceeding in the trial court. The rule requires service of notice, “upon each appellee and upon any coparty who does not appear as appellant.” Obviously this rule ought not to be so construed as to require that notice be served on the defaulted party where he does not appear by attorney or personally. Rulé 34 further provides: “If anyone entitled to service did not appear in the court below by attorney,- h'e may be served in the same manner as provided for service by mail upon attorneys.” We think this means that all those parties who appear by attorneys or who appear personally, and not those who have been defaulted, are under the rule entitled to notice of appeal. In the instant case as in all cases, the “Buie of Season” must constantly be kept in mind. Standard Oil Co. of N. J. v. United States, 221 U. S. 1; Maher v. New York C. & St. L. R. R. Co., 290 Ill. App. 267.

The administration of justice, in view of the decisions of our Supreme Court and of the provisions of the Civil Practice Act do not require the dismissal of this appeal.

Turning to the merits of the case: The position of plaintiff, the Wilmette State Bank, is that since the vouchers issued against the first instalment are greatly in excess of the amount of the assessment in the first instalment, and since there is an excess of assessment over the amount of the bonds issued against the remaining instalments, it has the right to surrender the $28,255 vouchers and demand in lieu thereof bonds of an equal amount payable out of the several deferred instalments.

This question must be determined by a construction of the Local Improvement Act. That act provides a plan for the making of improvements such as the one involved here, and specifies the steps that are to be taken in the making of the improvement, the paying for it by a special assessment levied on the property benefited, and by a supplemental assessment, in case there is a deficiency in the assessment, to pay for the work done. The legislature, knowing the money could not all be obtained at once, provided that in case of a special assessment to defray the cost of construction of sewers, payments might be divided into not more than 20 instalments, the first of which should be payable on the 2nd of January next after the date of the first voucher issued on account of work done, and the second instalment one year thereafter, and so on until all the instalments were paid, sec. 42, par. 743, ch. 24, Ill. Rev. Stat. 1937 [Jones Ill. Stats. Ann. 76.049]. The legislature also had in mind that a contractor, in making such improvements, ordinarily would need money as the work progressed, and with this in view provided for the issuance of vouchers and bonds to the persons doing the work, title to which bonds and vouchers would pass by delivery. Section 86 of the act provides that bonds may be issued for the purpose of anticipating the collection of the second and subsequent instalments of the assessment to be paid out of the respective instalments against which the bond is issued, bearing interest at the rate of not more than 6 per cent or less than 4 per cent per annum. “Each bond shall state on its face out of which installment it is payable, and shall state, by number or other designation, the assessment to which such installment belongs”; that the principal of such bond shall not exceed in the aggregate the amount of the deferred instalments. That section further provides that, “if there be a surplus to the credit of any such installment which is not required for the payment of any vouchers or bonds issued against such installment, such surplus shall be applied toward the payment of any outstanding vouchers or bonds . . . issued, as the case may be, against any other installment or installments.” By sec. 87 it is provided that bonds may be sold or paid to the contractor who does the work at not less than their par value and interest accrued to the time of delivery; and sec. 88 provides that the payment for any improvement made under the provisions of the act to be paid out of special assessments, may be made in bonds; that if the first instalment is not collected1 when payments fall due” vouchers may be issued therefor, payable out of the first instalment when. collected, which shall bear interest at not more than 6 per cent or less than 4 per cent per annum, provided that in cities, towns and villages having a population of less than 500,000, etc., costs shall first be paid. And by sec. 90 it is provided that no person accepting such vouchers or bonds shall have any claim or lien upon the city or village for payment except from the collections of the assessment against which vouchers or bonds are issued. Under these provisions of the act any vouchers or bonds are payable only out of the specific instalments named in the vouchers or bonds, and payments are limited to the moneys collected from the specified instalments, unless there is a surplus to the credit of any instalment which is not required for the payment of any voucher or bond issued against that instalment, when such surplus may be applied toward the payment of any outstanding vouchers or bonds issued in the particular assessment.

In the instant case the vouchers owned by the Wilmette State Bank are payable out of the first instalment of the assessment in question, and the owner cannot look to any other instalment unless and until there is a surplus collected in such other instalment. And the court was not warranted in commanding the village officials to execute bonds payable out of other instalments and deliver them to the bank in lieu of the vouchers.

The Bankers Life Company and Markman owned special assessment bonds payable out of instalments other than the first instalment. They have the right to insist that no other bonds be issued against the instalment out of which their bonds are payable. Rothschild v. Village of Calumet Park, 350 Ill. 330. There would be no stability in the value of special assessment bonds if, after they were purchased, other bonds might be issued against the instalments out of which the same bonds were to be paid. One contemplating the purchase of special assessment bonds ought to be able to rely on the court records to ascertain- how many bonds were issued and outstanding against .the respective instalments; but this right would be of little value if other bonds might later be issued payable out of the same instalment.

The judgment of the circuit court of Cook county is reversed and the cause is remanded with directions to dismiss the suit.

Reversed and remanded with directions.

MoSurely and Hatchett, JJ., concur.


text:
    Charles J. R. Sproule and/or The Fidelity Life Insurance Company of Philadelphia, Appellee, v. Edward J. Taffe, Appellant.
    Gen. No. 39,830.
    Opinion filed March 21, 1938.
    Rehearing denied April 4, 1938.
    Rudniok & Wolfe, of Chicago, for appellant.
    Ivan Barton Goode, of Chicago, for appellee; George A. Gordon, of Chicago, of counsel.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.

“Charles J. R. Sproule, Trustee and/or The Fidelity Life Insurance Company of Philadelphia, a corporation,” caused judgment by confession on a written lease to be entered against Edward J. Taffe. The statement of claim alleged that the lease was attached to it and that the claim was for “rent accruing on said lease from the 1st day of March, 1937, for the months of all March and April balance, $8.75 at $37.50 per month amounting to $46.25” and claim was also made for $14.44 for attorney’s fees, making a total of $60.69, for which amount judgment was entered, a cognovit having been attached to the statement of claim. Afterward defendant filed a motion to vacate the judgment; the motion was overruled and he appeals.

The sole ground urged for reversal is that the entire proceeding, including the judgment, is so uncertain and indefinite as to require a reversal of the judgment. The lease which was prepared by the landlord or landlords recites that it is between Charles J. R. Sproule and/or the Fidelity Life Insurance Co. of Philadelphia and the tenant Taffe.

We have many times condemned in unmeasured terms the use of “and/or” as a “confusing fad,” “accuracy destroying symbol,” “pollution of the English language,” that “barbarism,” “unsightly hieroglyphic,” “verbal teratism,” and other terms of a similar character that we could think of up to this time. See Preble v. Architectural Union, 260 Ill. App. 435; Tarjan v. National Surety Co., 268 Ill. App. 232; Thibodeaux v. Uptown Motors Corp., 270 Ill. App. 191; City Nat. Bank v. Davis Hotel Corp., 280 Ill. App. 247; Gallopin v. Continental Cas. Co., 290 Ill. App. 8. Many courts of other jurisdictions have, in like terms, condemned the use of this symbol, a few of which are Clay County Abstract Co. v. McKay, 226 Ala. 394, 140 So. 407; Bell v. Wayne, 116 W. Va. 280, 181 S. E. 609; Employers’ Ins. Co. v. Tollefsen, 219 Wis. 434, 263 N. W. 376; Equitable Life Ass’n v. Hemenover, 100 Col. 231, 67 Pac. (2d) 80; State v. Dudley, 159 La. 872;. Putnam v. Industrial Comm., 80 Utah 187, 14 Pac. (2d) 973.

In the Dudley case the Supreme Court of Louisiana was endeavoring to construe a statute where the confusing symbol was used, and in the course of the opinion discussed the use of it in contracts. In this connection it was said (p. 878): “In other words such an expression in a contract amounts in effect to a direction to those charged with construing the contract to give it such interpretation as will best accord with the equity of the situation, and for that purpose to use either ‘and’ or ‘or’ and be held down to neither:”

In the Putnam case (80 Utah 187, 14 Pac. (2d) 973) the Supreme Court of Utah reversed a judgment in a workman’s compensation case, one of the grounds being that the use of “and/or” in findings and judgments rendered them too uncertain and indefinite to support the award. The court there said (p. 984): “We think the findings and judgment too uncertain to give effect to them. And, for that and other reasons stated, the award is annulled, and the cause remanded to the commission for further proceedings.”

In 11 Ency. PI. & Prac. 949, it is said: “A judgment not designating in whose favor it is rendered is void for uncertainty.”

In the instant case the judgment does not designate with any degree of certainty in whose favor it is rendered, and under the rule it is void for uncertainty; for that reason the judgment is reversed and the cause is remanded.

We think we ought to say that counsel for plaintiff or plaintiffs state they had no part in drawing the lease.

Reversed and remanded.

McSurely and Hatchett, JJ., concur.


author: Mr. Justice McSurelt

text:
    In re Estate of Frank Braje, Deceased. In re Petition of V. M. Vukmirovich, Appellant, v. Mary Braje et al., Appellees.
    Gen. No. 39,987.
    Opinion filed March 21, 1938.

      Nelson, Slater & Boodell, of Chicago, for appellant; Brennan J. Slater and Louis A. McLean, of Chicago, of counsel.
    Jarecki & Brautigam, of Chicago, for appellee Mary Braje; James J. Mejda, of Chicago, of counsel.
    Boss & Berchem, of Chicago, for certain appellee.
   Mr. Justice McSurelt

delivered the opinion of the court.

This case involves the heirship in the estate of Frank Braje, who died intestate in Chicago, September 20, 1933; October 6, 1933, Mary Braje petitioned for letters of administration, alleging that she as the widow of deceased, and her child Mirko, a minor, were the sole heirs; letters were issued to her, the Massachusetts Bonding and Insurance Company was surety on her bond, and a guardian ad litem was appointed for the minor child.

April 26, 1935, the administratrix filed her final account, which was approved and she was discharged.

December 23, 1936, the instant petition was filed in the probate court by Vukmirovich, Boyal Jugoslav Consul General, alleging that Mary Braje had never been legally married to Frank Braje nor the child adopted, and that the sole legal heirs were a brother Nicholas Braje and two sisters, Alojzia Braje Kurtalj and Frances Braje Slugecic, both residing in Jugoslavia. The petition further alleged that it was filed by the petitioner as attorney in fact on behalf of Alojzia Braje Kurtalj; that he first learned in February, 1936, that Mary Braje had been appointed administratrix by reason of the fraudulent heirship; that Mary Braje’s claim of being the widow of deceased is based on a purported marriage at Millvale, Pa., on January 27, 1914; that this marriage is void because Frank Braje, under the name of Frank Brayin, had married Clara Deckelman in Chicago on December 3, 1908, and that Frank and Clara were still married to each other at the time of the marriage ceremony of Frank and Mary on January 27, 1914; that Clara Deckelman Braje died May 7, 1923.

The petition prayed for the vacation of the order approving the final account, that the estate be reopened, a new heirship taken and a new administrator appointed. Mary Braje filed a motion to strike the petition. The probate court ordered the petition dismissed on the ground that the administratrix had been discharged, the estate closed and that the court no longer had jurisdiction.

The petitioner prayed an appeal to the circuit court ; that court overruled the motions to strike the petition and ordered that answers be filed, which was done; also, that all parties in interest be notified, including Frances Braje Slugecic, sister of deceased, and Nicholas Braje. The case proceeded to hearing, and after evidence the circuit court found that the order of the Probate court dismissing the petition was proper and it was confirmed and the petition of Vukmirovich ordered dismissed. Petitioner appeals to this court.

It seems to be conceded that Mary Braje was party to a marriage ceremony with Frank Braje in Millvale, Pa., on January 27, 1914, and that a male child was born of this marriage who bears the name Mirko Braje.

Most of the testimony is concerned with the identity of the man who was married to Clara Deckelman in 1908. In the license for this marriage the man’s name is given as “Brayin.” In 1915 Clara procured a divorce in Chicago from a man named ‘Bryin.” In the affidavit for the license to marry Mary on January 27, 1914, Frank Braje swore that he had never been married before. It is also in evidence that in 1920 a Clara Deckelman signed an application to marry one Gfuratich in which she stated that she had never married before. There is sufficient evidence to suggest a confusion of Frank Braje, deceased, with another man of a similar name.

It is well settled that where a marriage ceremony has been performed and the parties have lived together as husband and wife, bearing children, the presumption is that the marriage was valid and the children legitimate, and, as was said in In re Estate of Panico, 268 Ill. App. 585, 590, “the presumption is not overcome by mere proof of a prior marriage and that one of the parties thereto had not obtained a divorce, because the other party to such prior marriage may have obtained such divorce, thus terminating the marriage.” Other cases supporting this rule are Illinois Land & Loan Co. v. Bonner, 75 Ill. 315, 319; Metheny v. Bohn, 160 Ill. 263; Manning v. Spurck, 199 Ill. 447; Schmisseur v. Beatrie, 147 Ill. 210, 215; Stein v. Stein, 66 Ill. App. 526; Young v. Young, 213 Ill. App. 402, 409.

The record shows that this is not the first attack on the heirship and the validity of the marriage of Frank and Mary Braje. In 1934 Nicholas Braje, the brother, filed his petition in the probate court claiming that he and his two sisters were Frank’s real heirs and entitled to receive his estate; after hearing, the court denied the prayer of that petition; Nicholas Braje appealed to the Circuit court where witnesses were heard and evidence considered; the circuit court affirmed the findings of the probate court, holding that Mary and Mirko Braje were the only heirs at law of Frank Braje, deceased.

In April, 1935, Nicholas Braje filed another petition in the probate court again attacking the heirship of Mary and Mirko Braje; the probate court held with the widow and son; no appeal was taken from that order; shortly thereafter the estate was distributed, the widow Mary receiving about $2,000 and the son Mirko about $4,000, which is still on deposit in the First National Bank of Chicago. More than 18 months after the estate was closed the present petition was filed.

. It is argued that the status of Mary and her son Mirko has been adjudicated by these proceedings and therefore the matter is no longer in issue. Cases are cited which lend support to this view. Undoubtedly this would be true if all the parties in interest had received notice and were made parties to the petitions filed by Nicholas. The record shows that neither of the sisters, residing in Jugoslavia, was notified by publication or otherwise. We do not think it necessary to pass upon the point, although we are sympathetic to the claim that the point in issue has already been adjudicated.

We hold that the instant petitioner, wishing to attack the legality of the marriage of Frank and Mary Braje, should have done so by filing a bill in equity in the nature of a bill of review. The instant petition was filed more than 18 months after the estate was closed. Orderly procedure would seem to require that any attack at so late a date should be in some court other than the probate court. True it is that the probate court may, even after the entry of an order closing the estate, in the exercise of equitable powers, set aside any order procured by fraud or due to accident or mistake. We so held in In re Estate of Mazie, 292 Ill. App. 635 (Abst.). But that involved a fraudulent attempt by the administratrix to defeat the just claim of a creditor. Heppe v. Szczepanski, 209 Ill. 88, cited by petitioner, involved the release of a widow’s award obtained by mistake. The facts in the instant case do not present any such question. Mary innocently married Frank Braje and in asserting that she was his lawful widow was guilty of no fraud.

In Collins v. Kinnare, 89 Ill. App. 236, the facts were much like those now under consideration. There proof of heirship was duly made, the administration of the estate proceeded and at the October term, 1898, order of final distribution was entered; Margaret Collins first moved in the probate court to vacate this order, alleging that she was a niece of the deceased, a nonresident and had no notice of the death of the intestate nor of the administration of the estate until about 3 months after the final order of distribution; the probate court denied her motion to vacate this order; she then filed her bill in chancery, setting up the same facts; a demurrer to this was sustained and she appealed. The Appellate Court reversed the circuit court and held that under the circumstances her bill was properly filed in chancery.

The minor, Mirko, in this case resides with his mother in Jugoslavia, and we do not see how the probate court, long after the estate has been closed, would have jurisdiction to depose the minor as an heir. In the Heppe case, supra, on page 99, the court said it was a matter of doubt whether the probate court at a subsequent term had jurisdiction over the minors, and held that the order in that case which affected the interest of the minors was void as against them for want of jurisdiction over them by proper service of notice or process. In the order of the probate court dismissing the present petition one of the grounds stated was that the court had no jurisdiction over the parties.

Here we have an attack on a marriage — one of the parties dead five years and the other residing* abroad— and a nonresident minor who stands to lose his inheritance should the attack succeed. In a chancery proceeding many defenses, laches as an example, could be asserted. We should not be understood as encouraging the institution of chancery proceedings by petitioner. The validity of the marriage of Mary Braje has been repeatedly upheld, and repeated attacks should be stopped.

The Massachusetts Bonding and Insurance Company, surety on the bond of Mary Braje, as administratrix, filed a complaint in chancery alleging that as surety for the administratrix it would be obliged to pay whatever amounts she might be held accountable for to the deceased’s brother and sisters, and that such loss was threatened by Vukmirovich’s petition; that Mary Braje owned real estate in Chicago; that she was out of the jurisdiction of the court and asking that the bonding company’s loss, if any, be repaid to it out of the sale of this real estate. That suit was consolidated for trial with the Vulcmirovich appeal. The final order of the circuit court dismissing the Vukmirovich petition also dismissed the bonding company’s chancery suit as, in view of the dismissal of the probate appeal, no loss had resulted to it as surety.

We are of the opinion that the judgment order of the circuit court was proper and it is affirmed.

Affirmed.

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


author: Mr. Presiding J cjstice Fulton

text:
    Hazel Hand, Administratrix of Estate of Vernie Lee Hand, Deceased, Appellee, v. Arnold Greathouse, Appellant.
    Gen. No. 9,069.

      Opinion filed January 17, 1938.
    Rehearing denied April 5, 1938.
    Ralph Dempsey, of Pekin, and Patrick A. D’Arcy, for appellant.
    Cassidy & Knoblock, of Peoria, for appellee.
   Mr. Presiding J cjstice Fulton

delivered the opinion of the court.

The appellee, Hazel Hand, administratrix, etc., of the estate of Vernie Lee Hand, deceased, recovered a judgment, based on the verdict of a jury, in the circuit court of Tazewell county for $4,500, together with costs, against the appellant Arnold Q-reathouse. From that judgment the appellant has perfected an appeal to this court.

The complaint, as amended, consisted of three counts; the first count charged general negligence; the second count is substantially the same as the first but also charged excessive speed on the part of the defendant; the third count charged general negligence and also a failure to give any warning of defendants approach and that he operated his truck in such a manner that it struck plaintiff’s intestate with great force, thereby causing his death.

The defendant, Arnold Greathouse, being a minor filed an answer, by his guardian ad litem, demanding strict proof, denied that appellee was entitled to any relief, and averred that the injuries sustained by plaintiff’s intestate and his death resulting therefrom were caused by the negligence of plaintiff’s intestate at the time and place of the accident.

The evidence shows that plaintiff’s intestate was a man 40 years old, and with his 18-year-old son left his home about five o ’clock on the morning of December 28, 1935, to go on a hunting trip; that they picked up another boy, Leo Coggie, and then proceeded on their way; that he was driving a 1930 Roosevelt eight sedan car with Coggie sitting in front with him and his son Le Roy Hand and a dog occupying the rear seat; that they had chains on the rear wheels of the car when they left their home; that there was snow on the ground but the highway was clear. While driving in a southerly direction on U. S. highway 24 there was a cracking noise and the car stopped; that the chain had become wrapped around the brake drum of the left-rear wheel and around the rods; that the chain itself was not broken but the links were broken in it; that the son, Le Roy Hand, was given a pair of pliers by his father for the purpose of getting the chain untangled; that the son crawled under the car from the rear and did remove said chain and placed it somewhere; that he then went to the other side of the car and started to take off the chain from the right-rear wheel; that there were about six links of the chain broken at the top of the wheel where this chain went around it and the side of the chain where the links hook was hanging down about midway between the axle and the top of the tire ; that his father hollered to him out of the window of the car and then got out on the driver’s side of the car and came back and got under the car himself in order to remove the chain from the right-rear wheel; that his father, plaintiff’s intestate, crawled under the car on his left side and most of his body was under the car off the pavement and that he was facing west.

All of the foregoing facts are testified to by Le Roy Hand, the son of plaintiff’s intestate, and are not disputed. He also testified to further facts, some of which are disputed as follows: that when the wheel became locked the wheels began to skid and his dad jerked the car half way off the road where it stopped of its own accord; that the right wheels of the car were then both off the concrete on the west side or the right shoulder and the left wheels on the concrete; that the pavement was 18 feet wide and that the car was two and one-half feet on the pavement at the west edge of the concrete; that the snow had been scraped off the pavement and piled on the west shoulder and where the car stopped the shoulder was clear of snow for about eight inches; that the distance from the west edge of the concrete to a ditch was about five feet; that the right wheels of the car were in the snow which was about 18 inches deep; that while his father was in the position above described attempting to remove the chain from the right wheel he, the son, was standing at the right-rear wheel of the car facing in a southwesterly direction watching his father; that after his father got under the car, another car passed on U. S. route 24, proceeding in a northerly direction; that he saw defendant’s truck coining south; that the defendant’s truck and the northbound car passed each other about 100 feet north of the rear of the Hand car; that just afterwards the defendant’s truck swerved a little to the right and hit the right-rear side of the Hand automobile; that defendant gave no warning of his approach and was traveling at about 35 or 40 miles per hour; that the headlights of defendant’s truck were lighted and the taillight of the Hand car was also lighted; that the two right wheels of the defendant’s truck were off the pavement and the front end of the truck hit the rear end of the Hand car which under the impact moved off down the road about 150 feet and then into the ditch on the east side of the highway through a fence and into an adjoining field; that the truck stopped about 15 feet south from the point of collision. The accident happened about 6:20 to 6:30 in the morning. The son further testified that the weather was clear and that he could see objects clearly for a distance of about 300 feet.

The facts most seriously in dispute were the visibility, the depth of the snow on the shoulder, the position of the cars, the distance north of the Hand car, where defendant’s truck passed the northbound car, and the speed at, which defendant was driving.

The judgment in this case cannot be sustained unless it is affirmatively shown that plaintiff’s intestate was in the exercise of due care for his own safety. At the time of this accident there was in full force and effect a provision of our statute, § 185, ch. 95%, Ill. Rev. Stat. 1937 [Jones Ill. Stats. Ann. 85.217], as follows: (a) “Upon any highway outside of a business, residence or suburban district no person shall stop, park, or leave standing any vehicle, whether attended or unattended, upon the paved or improved or main traveled part of the highway when it is practical to stop, park, or so leave such vehicle off such part of said highway, but in every event a clear and unobstructed width of at least 20 feet of such part of the highway opposite such standing vehicle shall be left for the free passage of other vehicles and a clear view of such stopped vehicle be available from a distance of 200 feet in each direction upon such highway.”

(c) “This section shall not apply to the driver of any vehicle which is disabled while on the paved or improved or main traveled portion of a public highway in such manner and to such extent that it is impossible to avoid stopping and temporarily leaving such disabled vehicle in such position.”

It has been held by our courts that this prohibition does not apply where the exigencies of the situation compel a car to stop on the pavement. Frochter v. Arenholz, 242 Ill. App. 93; Sugru v. Highland Park Yellow Cab Co., 251 Ill. App. 99. The exigencies which will excuse a person from leaving a car on the public highway in violation of the statute are those which give no choice to the driver about leaving -his ear in that position. Instances of such exigencies are an accidental break in machinery, a failure in the mechanism or parts peculiar to the car, a sudden blocking of the highway, etc. Crawford v. Cahalan, 259 Ill. App. 14.

In this case there is no such emergency proven. Conceding that the Hand car was stopped by the locking of the chain around the left-rear wheel and the brake rods, there is no testimony to show that the car could not be moved after the son had removed that chain, gotten out from under the car before plaintiff’s intestate had attempted to crawl under the car and remove the chain from the right-rear wheel. Indeed, the fact that by reason of the impact the car moved easily down the highway 150 feet then over an embankment and into a field without overturning shows conclusively that the car could have been moved. There was no positive testimony that the snow on the shoulder would prevent such action by the decedent. Although he had his son and another boy along, no attempt was made to warn approaching cars of their difficulty.

The proof does not sustain the burden placed upon the appellee to show that her intestate was in the exercise of due care and caution for his own safety just prior to and at the time of the collision, and for this reason the judgment of the circuit court is reversed and the cause remanded for a new trial.

Reversed and remanded.


author: Mr. Presiding Justice Fulton

text:
    Richard S. Cash, Administrator of Estate of Lena Vern Dyer, Deceased, Appellant, v. The New York Central Railroad Company, Appellee.
    Gen. No. 9,080.

      Opinion filed January 17, 1938.
    Rehearing denied April 5, 1938.
    Merrill F. Wehnhoff, of Decatur, and Steely, Steely, Graham & Dysert, of Danville, for appellant; W. V. Dysert, of counsel.
    Gunn, Penwell & Lindley, of Danville, for appellee.
   Mr. Presiding Justice Fulton

delivered the opinion of the court.

The appellant filed a complaint in the circuit court of Vermilion county in the first count of which he alleged in substance: that the plaintiff’s intestate, on the night of September 7, 1935, was injured and killed when the automobile in which she was riding as a guest, west on U. S. highway No. 36, about a mile south and a mile west of Chrisman, Illinois, ran head-on into the east side and about midway of a freight train standing north and south over this highway crossing at grade; that the crossing was extra-hazardous and dangerous in the nighttime, because from a point 500 feet east to a point 200 feet east of the crossing there was an elevation in the highway which threw the rays of the automobile head lights above a freight train standing on the crossing out in the country, and then when within 200 feet of said crossing the highway inclined downward so that it would shoot the rays of the headlights of an automobile below and under the box cars on said crossing. The count further alleged that the crossing had remained in this condition for a period of more than three years prior to the date of the accident, was well known by the appellee or by the exercise of due care and diligence it could and would have known of the same; that during said period several similar accidents had occurred at this same crossing; that no sufficient signal or warning device was maintained or used at said crossing to give timely warning to travelers that such an extra-hazardous crossing existed there in the nighttime, when freight trains were standing or moving over said crossing; that it was the duty of the appellee to maintain a watchman or provide some mechanical warning at such crossing; that because of the failure of the appellee to perform such duty the plaintiff’s intestate was injured and died.

The third count charged a violation of the statute that no railroad shall obstruct a public highway except for certain purposes therein set forth, and because of the stopping of the train in violation of said statute the automobile in which plaintiff’s intestate was riding ran into the side of the train and she was killed.

The fourth count is a wilful and wanton count and alleged a violation of the statute requiring all railroads to construct and maintain their crossings and approaches thereto so that at all times they shall be safe as to persons and property. It then alleged that this crossing was unsafe and was not on the level with the surface of the highway for a distance of 500 feet east thereof, and that because the tracks were below the surface of the highway for a distance of 200 feet east, the headlights of automobiles would shoot below the body of the box cars during that distance and prevent persons approaching the same from discovering said extra-dangerous condition in time to stop.

Count five is a wilful and wanton count and charged that the appellee failed to stop its train north or south of said highway crossing and in the event this could not be done that it failed to cut the train in order to open the crossing or to place some one on either side of the train with a lighted lantern in order to give timely warning.

The appellee, New York Central R. Co., moved to dismiss the complaint, and for grounds of said motion urged primarily that counts 1, 3, 4 and 5 were wholly insufficient in law and failed to state a cause of action, either for ordinary negligence or for wilful and wanton conduct.

The court granted the motion of the appellee and dismissed all four of said counts. Count 2 was dismissed by the appellant in order to prosecute this appeal from the order of dismissal by the court.

The question therefore, on this appeal is whether or not the complaint sets forth facts in any of the counts sufficient to constitute a cause of action.

The theory of the appellant’s case was based entirely upon the facts set forth in the first count of the complaint, which, briefly stated, are that the crossing upon which the appellee stopped its freight train in the nighttime on the night in question was extra-hazardous because of the fact that beginning 500 feet east of the crossing there was a rise in the pavement up to a point 200 feet east of the crossing, during which time the standing freight train would be hidden from the view of a driver of an automobile and the rays of light would shoot over and above the standing freight train until the automobile was within 200 feet of the crossing, and from that point there-was a decline in the paved highway so that the automobile lights would shoot below the box cars on the crossing. By reason of these facts appellant contends that a driver of an automobile, exercising dne care, would be deceived and would not see a standing obstruction at said crossing in sufficient time to prevent Ms colliding with the same.

It is well established that in order to sustain a verdict for damages for personal injury it is incumbent upon the plaintiff to allege and prove the existence of a duty on the part of the defendant to protect the plaintiff from the injury of which he complains, and the failure of the defendant to perform that duty, wMch failure resulted in the injury. Overstreet v. Illinois Power & Light Corp., 356 Ill. 378.

There is no contention on the part of the appellant that the appellee was not rightfully occupying the crossing at the time of the accident, nor any allegation of an absence of the usual crossing signs sufficient to give warmng of the presence of the crossing itself, but Ms complaint is based upon the theory that the railroad company must not only comply with the regulations required by statute but must also provide special warmng such as a watchman or warmng through some mechamcal device. In a very recent case, Coleman v. Chicago, B. & Q. R. Co., 287 Ill. App. 483, the court had occasion to cite and discuss a large number of authorities concermng the duties of a railway company lawfully occupying for a reasonable time a crossing of its tracks with a public Mghway and whether or not in the exercise of due care it was necessary to give special notice or warmng to the traveling public of the presence of its train upon the crossing, and as a conclusion after presenting many authorities from many jurisdictions, it said, “the very presence of the train is adequate notice and warning to any traveler, who is in the exercise of ordinary care for his own safety, that the crossing is occupied; that no additional signs, signals or warnings are required to be given by the railroad company, and that no negligence can be imputed to it for its failure so to do.”

A reading of that opinion presents a list of those cases which it is not necessary to repeat and shows the thoroughness of the investigation of that case made by the court. While the complaint in that case contained no allegation of extraordinarily hazardous or dangerous conditions complained of in this case, still the principles of law are applicable as to the duties of a railroad company where its freight train is standing upon a highway crossing.

The case of Johnson v. Sandberg, 283 Ill. App. 509, upon which appellant relies an entirely different situation was presented. In that case the defendant’s truck and trailer, in violation of a statute, were not equipped with reflectors and which, as a result of defendant’s killed engine, were standing at right angles across and were completely blocking a State highway. The defendant’s truck and trailer were not in a position where they had a lawful right to be and the duty of the driver was entirely different from that of a railroad company under the circumstances shown by the facts in this case.

We do not believe that any of the authorities cited by the appellant uphold the contention of counsel that it was the duty of the railroad company as charged in the complaint to give notice of the fact that its train was blocking the crossing at the time in question and that a failure to give such notice was the proximate cause of the collision and the consequent injury and death of plaintiff’s intestate. It is apparent that at some spot in the neighborhood of 200 feet east of the crossing the lights of an approaching automobile would have disclosed the presence of a standing- freight train upon the crossing. We believe that the great weight of authorities supports the views herein expressed and that the motion to dismiss counts 1, 3, 4 and 5 of the complaint in this case were properly sustained by the trial court and its judgment is therefore affirmed.

Affirmed,


text:
    Marie Schwanz, Administratrix of the Estate of Robert William Schwanz, Deceased, Appellee, v. Sangamo Electric Company, Appellant.
    Gen. No. 9,089.
    Opinion filed January 17, 1938.
    Rehearing denied April 5, 1938.

      A. M. Fitzgerald and L. W. Ensel, both of Springfield, for appellant; Walter T. Day, of Springfield, of counsel.
    Roy Geibe Hill and Charles McBrian, both of Springfield, for appellee.
   Mr. Presiding Justice Fulton

delivered the opinion of the court.

On June 10,1937, a jury in the circuit court of Sangamon county returned a verdict in this case finding the defendant, appellant here, guilty, and assessing the plaintiff’s damages at the sum of $3,500. Judgment was entered by the court for $2,250, deducting from the verdict of the jury the sum of $1,250, paid by M. G. Clark for a covenant not to sue him. This appeal is prosecuted to reverse said judgment.

The complaint contained but one count which alleged in substance that the appellee’s intestate, a boy of seven years, on the 25th day of September, 1935, returning from school, was walking on a sidewalk near the freight depot of the Wabash Railroad in the city of Springfield, and at a point where the driveway leading to and from the freight depot on its Monroe street side, crosses the sidewalk, and was struck, knocked down and run over by the appellant’s truck. The complaint charged the appellant with negligent operation of his truck as to speed, not having stopped at the sidewalk or not giving warning signal of his approach and failing to use a high degree of care in respect to appellee’s intestate. Due care on behalf of the appellee and appellee’s intestate was also alleged.

The facts show that Marie Schwanz was the duly appointed and qualified administratrix of the estate of Robert Schwanz, deceased; that appellee’s intestate was a boy of seven years of age, apparently in good physical condition, on his way from school to a day nursery; that he left school in the afternoon at about 3:15 and in order to reach the day nursery it was necessary for him to proceed westerly upon a sidewalk running easterly and westerly along the south side of Monroe street and also to cross a driveway leading to and from the Wabash Railroad freight depot on its Monroe street side; that the day was chilly with a drizzling rain; that the boy was wearing a leather jacket and when picked up after the accident his hands were still in the side pockets of the jacket; that the accident happened about 3:20 p. m.; that the boy’s mother worked in a factory during the day and called for the boy at the day nursery on her way home from work; that a truck, identified later on as belonging to the appellant, drove out of the driveway on the west side of the Wabash depot north across the sidewalk on to Monroe street, turned east on Monroe street, stopped momentarily at the Wabash Railroad crossing and proceeded on down the street; that immediately afterward a witness Clark backed his automobile from the south side of Monroe street into said driveway. No one seems to have seen the boy prior to the accident. One witness, Harold Ralph Scheepman, a high school student, was across Monroe street, in the company of three other students, and noticed a truck turning east on Monroe street from the freight depot drive. He testified that beneath the truck a small child was lying and that the left-hand wheel of the truck passed over the boy’s body, and then Mr. Clark, a man that worked at the Wabash depot, got into his car and backed into the driveway and his left-front wheel passed over the boy’s body; that the boy did not move after the truck passed over his body; that the body was lying in the street near the south curb line with its head facing north. The boy was wearing a leather jacket with a leather helmet. Blood was coming from both his mouth and nose. The witness Scheepman saw no other truck near that point at that time and testified that as soon as . Mr. Clark started to back into the driveway he started running to the other side of the street in order to attract the attention of Mr. Clark and keep him from running over the body.

" M. G. Clark, testified that he was division freight agent for the Wabash Bailroad; that his office was in the Wabash freight building which was a two-story brick structure built flush with the sidewalk on the south side of Monroe street; that on the afternoon in question he came down from his office with the intention of making some calls, got into his car which was parked on the south side of Monroe street in front of the freight house facing cast; that he started his motor and let it run a minute or two because it was cold and a drizzling rain was falling. Then he looked out of his rear car window and saw a truck coming out of the driveway between the freight house and lumber company on the wTest; that the truck turned on to Monroe street and drove east; that he waited for the truck to get out of his way and then started to back into the driveway; that about the time he was headed north he saw some boys running across the street toward him and hollering, “You backed over a little boy.” He immediately got out of his car and saw the boy lying about a foot in front of his front bumper. He identified the truck as one belonging to the appellant and driven by Mr. Franz.

It is strenuously urged by appellant that the appellee in this case has utterly failed to establish by competent proof the necessary elements constituting a cause of action. It insists that there is an absolute lack of testimony to show that the plaintiff’s intestate was in the exercise of due care for his own safety immediately prior to and at the time of the injury complained of, and also that there is a total lack of proof tending to show that any wrongful act on the part of appellant was the proximate cause of the injury to said intestate. It, therefore, is asking this court to reverse the judgment of the circuit court of Sangamon county and to enter judgment in this court in its favor and in bar of appellee’s action. In the alternative they ask that judgment of the circuit court be reversed and the cause remanded for a new trial.

On the question of due care the record discloses that ■the plaintiff’s intestate was a child of seven years, just on the border line of the age in which our courts have held that a child is not chargeable with contributory negligence. Since he was slightly over seven years of age he was required to exercise that degree of care and caution which boys of his age, capacity, intelligence and experience may reasonably be expected to use under like circumstances. True it is that there was no eyewitness avIio could describe the actions of the boy just prior to the accident, but the proof shows that he was dismissed from school about 3:15 in the afternoon and was traveling over the route between the school and the day nursery which he had been accustomed to travel almost every day, and a few minutes thereafter his body was found at the point heretofore described. The photographs in the record show that the freight depot was flush with the sidewalk along where the boy must travel on his route to the nursery. It seems to us that all of these facts and circumstances might be taken into consideration by the jury in determining whether or not the plaintiff’s intestate was exercising that degree of care and caution required of one of his age and experience. In the case of Wolczek v. Public Service Co. of Northern Illinois, 342 Ill. 482, the court announced the following rule: “The rule in this State is that children are not held to the same aecountabiEty as adults. This rule is applicable aEke in determining whether the child is guilty of contributory negligence or of trespass. At common law, a child under the age of seven years was conclusively presumed not responsible for Ms acts. Between the ages of seven and fourteen years he was still so presumed to be, but this presumption might be overcome by proof of the intelligence or capacity of'the cMld.”

On the further question as to the lack of proof supporting the charge of negligence on the part of the appellant, which was the proximate cause of the injury in this case, our courts have been called upon to lay down certain defimte rules in cases where there were no eyewitnesses. In the case of Devine v. Delano, 272 Ill. 166, the court stated, “The law only requires the highest proof of which the case is susceptible or that can reasonably be made.” In the case of Nordman v. Carlson, 291 Ill. App. 438, which was an action to recover damages for the death of a pedestrian struck by an automobile at a street intersection and where there was no testimony by eyewitnesses, the court permitted the question of defendant’s negligence to be submitted to the jury upon evidence showing that the deceased was in good health, enjoyed good eyesight and hearing though 66 years of age, was a man of careful habits and other proof as to the position of the deceased body, sMd marks on the pavement and other similar facts. In this case the failure of the truck driver to see or observe the child, the fact that an eyewitness saw the rear wheels of the truck pass over the body of the cMld, the location of the building, sidewalk and driveway with reference to pedestrians, the position of the child’s body upon the pavement and other items of evidence discussed in tMs opinion were all facts and circumstances which required the court to submit to the jury the question whether or not the appellant was guilty of the negligence charged. From a careful reading of all the testimony in this record, we cannot say that the finding of the jury was unreasonable or that there is no evidence to support the finding of the jury that the appellant was guilty of negligence in the operation of his truck in driving over the sidewalk from behind a brick building and not observing a seven-year-old boy passing along on the sidewalk.

The judgment of the circuit court will therefore be affirmed.

Affirmed.