text:
    Hiram J. Buchanan et al., Plaintiffs, v. Harry H. Stephens et al., Appellees. Appeal of Mae Buchanan, Appellant.
    Gen. No. 41,644.
    Heard in the third division of this court for the first district at the April term, 1941.
    Opinion filed January 7, 1942.
    Harry K. Ward, of Oak Park, and Max Murdock, of Chicago, for appellant.
    Philip Baim and Robert L. Pendergast, both of Chicago, for certain appellee.
   Mr. Justice Kiley

delivered the opinion of the court.

This is the second appeal in this case. The first appeal was brought by the defendant Harry H. Stephens from an order entered in the trial court June 9, 1939, denying his petition to vacate and set aside the judgment by confession entered December 22, 1938, and denying him leave to defend. This court reversed that order of the trial court and remanded the cause with directions. The mandate directed the trial court, among other things, “to open said judgment to the extent of permitting the defendant to enter his appearance, file proper pleadings and the evidence to be presented and the cause tried on the issues presented by the plaintiffs and defendant, the present judgment to stand as security until the final determination of the suit, and for such other and further proceedings as to law and justice shall appertain. And it is further considered by the Court that the said Appellant recover of and from the said Appellees his costs by him in this behalf expended to be taxed, and that he have execution therefor.”

The mandate of this court in that appeal was filed in the superior court May 7, 1940, and there the following proceedings with which we are concerned were had:

1. May 17, 1940, defendant filed an appearance and a motion to dismiss. The motion presented as reasons for dismissal:
(a) That the notes were outlawed by the statute of limitations; and
(b) That the plaintiffs were nonresidents and had not filed the statutory security for costs before or after commencing suit.
2. May 21, 1940, plaintiff filed a motion for a rule upon defendants to file proper pleadings as required by the mandate.
3. June 28, 1940, an order was entered pursuant to defendant’s motion to dismiss, which required Mae Buchanan, the sole surviving plaintiff, to file a cost bond for $200 to be approved by the court within 10 .days and provided for dismissal of plaintiff’s cause in the event of failure to comply with said requirement. It also provided that the plaintiff be given leave upon approval of the cost bond, to file an amended complaint by July 18,1940, the defendant to plead or answer 10 days thereafter.
4. July 18, 1940, plaintiff filed a motion to vacate the order of June 28, 1940, requiring a cost bond and for leave to the plaintiff to sue as a poor person. Requisite affidavits in support of said motion were filed. On that same day, July 18, 1940, the defendant' made a cross motion to dismiss, and an order was entered continuing all pending motions.
5. On September 9, 1940, an order was entered finding that plaintiff was a nonresident and had been when suit was filed; that she had failed to file and have approved by the court, the $200 cost bond ordered on June 28, 1940. The order then denied the several motions and petition of the plaintiff filed July 18, 1940, allowed defendant’s motion to dismiss plaintiff’s cause for failure to file cost bond, and entered judgment for defendant for costs.

Plaintiff brings this second appeal from the judgment of dismissal of September 9, 1940; from the order of September 9, 1940 denying the petition of plaintiff to prosecute the suit as a poor person arid denying plaintiff’s motion for a rule on the defendants to plead in accordance with the mandate of this court; from the order of June 28, 1940, requiring the security for costs; and from the order of September 9, 1940, denying plaintiff’s motion to have her affidavit of July 18, 1940, stand as a counter affidavit under rule 47 of the superior court.

The plaintiff contends that the proceedings in the trial court following the first appeal, did not comply with the mandate of this court; that plaintiff’s pleadings are sufficient to avoid the bar of the statute of limitations; that defendant’s motion for security for costs came too late; and that the trial court erred in denying plaintiff’s petition to sue as a poor person. The defendant urges in support of the judgment that his motion to dismiss comes within the directions of the mandate; that the motion for security for costs was made at the earliest opportunity; that the complaint shows on its face that it is barred by the statute of limitations; that in Illinois a nonresident is not permitted to sue as a poor person; and that plaintiff’s contentions relating to the motion for security for costs and to noncompliance with the mandate, were not raised in the trial court and cannot be considered here.

For convenience, we shall first discuss the last point urged by the defendant. The record shows that in the trial court plaintiff made a motion for a rule on the defendant to plead in accordance with the mandate and a motion to vacate the order requiring plaintiff’s bond for costs. Both motions were denied in the order of September 9, 1940. Plaintiff’s notice of appeal includes that order denying both motions. It is evident that plaintiff’s contentions are properly presented here.

From the record in the first appeal, it appears that a judgment herein was entered on December 22, 1938; that on January 17, 1939, defendant who was then plaintiff’s son-in-law, filed a petition setting forth that he had a good and meritorious defense and set forth the facts thereof and asked the court to vacate the judgment and for leave to file his appearance and that the petition, stand as his answer; that thereafter the defendant filed amended, second amended and third amended petitions on February 8, 1939, March 1,1939 and May 1, 1939, respectively, in each of which he presented allegations of facts in defense of plaintiff’s claim and prayed for an order vacating the judgment and for leave to appear and to have such amended petition stand as his answer. Each of such petitions was denied, and from the order denying the third amended petition the defendant prosecuted the first appeal. It is apparent that the defendant had ample opportunity prior to the first appeal herein to present his motion for security for costs, and having failed to present it, waived his right. The rule in Illinois is that a motion for a rule upon a nonresident plaintiff to give security for costs is a dilatory motion and should be made at the earliest time possible. Gregory v. Richey, 307 Ill. 219. Accordingly, the order of the trial court entered September 9, 1940, based on plaintiff’s failure to file the bond for costs, cannot stand.

It becomes unnecessary, therefore, to consider the propriety of the trial court’s ruling on plaintiff’s application to sue- as a poor person.

The order of the trial court dismissing plaintiff’s action shows that it was based upon plaintiff’s failure to file the bond for costs. The trial court apparently did not consider the other part of defendant’s motion which asserted that the complaint showed on its face that it was barred by the statute of limitations. The trial court not having considered the point, it is not before us, but, in the interest of justice, we believe that a discussion of it is necessary.

As previously stated, this case has been here before. Defendant who was appellant concluded his brief with the prayer to this court: “. . . to open the judgment and interpose a defense and remand this case with directions.” In his reply brief then, he further said:

“It is the intention of the defendant that the petition be one to open up the judgment with leave to plead and defend.”

Mr. Justice Burke in his dissenting opinion in that first appeal, pointed out that since the defendant intended his petition as one to open up and vacate the judgment by confession, the defendant had not questioned the sufficiency of plaintiff’s pleading. In the majority opinion, this court said: “From a review of these pleadings, it is quite apparent that if the defense had been permitted to offer and prove the allegations of his petition, that the statute of limitations would be a defense to the claim of the plaintiff,” and further “We think in this case that justice would be more nearly served if defendant had been given an opportunity to be heard.” It then reversed the order of the trial court and remanded the cause with directions “to open said judgment to the extent of permitting the defendant to enter Ms appearance, file proper pleadings, etc.”

It is clear from a consideration of the record of the former appeal, the decision thereon and the mandate, that this court intended to make it possible for the defendant to present evidence of the facts alleged in his petition. The defendant sought the opportunity to present that defense, but, gaining the opportunity, he failed to avail himself of it and instead of pleading his meritorious defense and proceeding to trial on the merits, he seeks to defeat plaintiff’s action by a departure from his original position and by avoiding the obvious intention of this court as expressed in its mandate. This he cannot do. The trial court properly ignored that part of defendant’s motion which attacked plaintiff’s pleading.

The orders of the superior court providing that security for costs he given by the plaintiff, dismissing her action for failure to give such security and the judgment for defendant for costs are reversed. The cause is remanded to the superior court with directions to enter an order:

First, striking defendant’s motion to dismiss;
Second, opening the judgment of December 22, 1938;
Third, permitting defendant’s third amended petition to stand as his answer herein, or in the alternative, leave to defendant to file Ms answer within 10 days after the order opening the judgment, and for such further proceedings not inconsistent with this opinion as to the trial court shall seem necessary to attain justice in this case. The judgment of December 22, 1938, shall stand as security.

Reversed and remanded with directions.

Burke, P. J., and Hebel, J., concur.


source: Caselaw Access Project

author: Mr. Justice Kiley

license: Public Domain

text:
    Dorothy Karpluk, Appellee, v. Matt Daniszewicz, Appellant.
    Gen. No. 41,662.

      Heard in the third division of this court for the first district at the April term, 1941.
    Opinion filed January 7, 1942.
    Rehearing denied January 22, 1942.
    Thomas J. O’Malley, Jr., of Chicago, for appellant.
    Seymour N. Cohen, of Chicago, for appellee.
   Mr. Justice Kiley

delivered the opinion of the court.

This is an action for damages for injuries which the plaintiff claims she suffered as a result of an assault by the defendant. A jury in the circuit court of Cook county found defendant guilty and assessed plaintiff’s damages at $2,250. The jury also returned a special finding that the assault was wilful, wanton and malicious. Defendant appeals from an order denying his motion for a directed verdict and from the judgment of the trial court entered upon the verdict.

On the night of July 24, 1938, the plaintiff was standing on the sidewalk in front of a store next to defendant’s tavern on Chicago avenue in the city of Chicago. She was engaged in conversation with Mr. Kostiw, owner of the store and also owner of the dog then in the custody of the plaintiff and held by a leash attached to plaintiff’s wrist. Defendant was standing in front of his tavern, hands behind him and leaning against the wall. Suddenly an incident occurred, as a result of which plaintiff was injured. Defendant’s testimony is that the dog, an unfriendly animal, made a movement as though to jump at him and defendant tried to kick the dog; that Kostiw then struck the defendant who retaliated, knocking the former to the sidewalk; that in falling, Kostiw fell upon plaintiff throwing her upon the sidewalk. . He denies that he struck the plaintiff. Plaintiff contends that the defendant, without provocation, seized the dog’s tail and lifting the animal up whirled it in the air and dropped it; that Kostiw then remonstrated with the defendant and was struck down; and that when the plaintiff protested, defendant struck her, knocked her down, struck her twice again and then seizing the leash dragged her across the walk.

There was evidence to support the plaintiff’s case and the trial judge properly denied defendant’s motion for a directed verdict.

Defendant’s principal complaint is that the verdict is excessive. Viewed alone from the point of plaintiff’s actual expenses which appeared to be less than $100, the complaint seems reasonable. Plaintiff’s injuries, however, were rather serious. The evidence shows injuries to her head, shoulder and abdomen, with more serious injuries in the pelvic region and a sacroiliac sprain requiring plaintiff’s continued use of a sacroiliac belt. The doctor testified that there is no permanent cure for a sacroiliac sprain. A consideration of these injuries lessens the force of defendant’s complaint.

Most important in this case, however, is the action of the jury, finding in a special verdict that the defendant’s assault upon plaintiff was wilful, wanton and malicious. Because of this finding defendant’s assault became a proper subject of punitive damages. Drohn v. Brewer, 77 Ill. 280. In addition to allowing plaintiff her actual expenses and compensating her for the injury she received, the jury was justified in punishing the defendant for his malicious assault upon a woman. The law considers that such punishment should serve to protect plaintiff and other women against like assaults, Shea v. Cassidy, 257 Ill. App. 557.

The defendant contends that the evidence shows that the incident was a “flare-up” affair, unpremeditated and that no punitive damages should have been allowed. He relies principally upon the case of Steeve v. Smith, 153 Ill. App. 630 to support that contention. In that case the court said that nothing malicious or premeditated was present in the assault and that, therefore, the jury was not warranted in awarding vindictive damages; and that considering Mrs. Steeve’s injuries only, the damages were grossly excessive. In distinguishing that case and the other cases cited by the defendant, it will suffice to say that here Mrs. Karpiuk suffered injuries, there was no provocation for the assault, and the jury returned the special verdict discussed hereinabove. While defendant makes no special point of it in his argument against punitive damages, he complains no charge was made by plaintiff that the assault was premeditated. Such a charge is not necessary if the facts alleged and the proof be such as to warrant their assessment. Taneski v. St. Louis M. B. T. Ry. Co., 230 Ill. App. 300. The jury found such facts present here.

No motion was made to set aside the special finding of the jury, nor was error assigned on such finding, consequently, this court is conclusively bound by such special finding. Taake v. Eichhorst, 344 Ill. 508. Viewed in the light of these circumstances, we believe the damages assessed against the defendant and in favor of plaintiff were not excessive.

During the trial plaintiff fainted in the presence of the jury. Defendant’s counsel made a motion to withdraw a juror and “take the case from the jury under the conditions.” The trial judge denied the motion saying that he saw the entire occurrence and was of the opinion that the swoon was not pretended. It is not contended by defendant that the faint was simulated. The trial court having determined that the fainting was not pretended, we cannot say that plaintiff was attempting to influence the jury. There was no error in denying defendant’s motion. Gourley v. Chicago & E. I. Ry. Co., 295 Ill. App. 160.

For the reasons given the order denying defendant’s motion for a directed verdict and the judgment of the circuit court are affirmed.

Order and judgment affirmed.

Burke, P. J., and Hebel, J., concur.


text:
    Katherine M. Rockhold, Appellant, v. Thomas J. O’Brien et al., Appellees.
    Gen. No. 41,671.

      Heard in the third division of this court for the first district at the April term, 1941.
    Opinion filed January 7, 1942.
    David K. Tone, of Chicago, for appellant.
    A. F. W. Siebel and Arthur F. Siebel, both of Chicago, for appellees.
   Mr. Justice Kiley

delivered the opinion of the court.

This is an appeal from a judgment entered in favor of the defendants in the municipal court of Chicago upon the several motions' of the defendants to strike plaintiff’s statement of claim and to dismiss her contract action for rent.

The plaintiff alleges in her statement of claim the execution of a lease between her and the Snider-Cazel Drug Co., for two years from April 13, 1938 at a monthly rental of $160, payable on the first day of each month in advance. She further alleges that the lessee lost its right to possession under the terms of the lease by defaulting in the payment of rent for March and April 1940; that the lessee thereafter, about April 17th, turned possession and the keys of the premises over to Sheriff O’Brien without plaintiff’s written consent as required by the lease; that O’Brien entered to make a levy on lessee’s goods by virtue of an execution placed in his hands by the defendant McKesson & Robbins, Inc., judgment creditor of the lessee Snider-Cazel Drug Co.; that O’Brien acted under the direction of the defendants Siebel and Siebel, attorneys for the corporate defendant, and who were employed as such by the defendant Scofield, credit manager of the corporate defendant.

Plaintiff’s statement of claim further alleges that her. agent on April 19,1940, found O’Brien in possession of the premises, demanded possession of him but was refused; that on April 30th, plaintiff’s agent made demand in writing of O’Brien, the Siebels and McKesson & Robbins, Inc. and gave notice in writing of plaintiff’s intention to hold them for damages including rental, for excluding her from possession; that O’Brien stored lessee’s merchandise in the premises and remained in possession together with the other defendants until May 6, 1940, when he sold the merchandise at auction to the Siebels who acted for the corporate defendant; that O’Brien then refused to deliver possession and the keys of the premises to plaintiff’s agent, but delivered same to the Siebels who remained in possession until May 22nd, when plaintiff’s agent was given possession and the keys; that during all that time the merchandise levied upon and sold was stored in the premises; that Scofield told plaintiff’s agent that the corporate defendant was willing to pay a reasonable rental for the occupancy of O’Brien before the sale, and of the other defendants following the sale, but that Scofield failed and refused to pay. The plaintiff then asks judgment against the defendants for $374.66, being the sum of the rental specified in the lease for the period from April 17 to April 30, 1940- and double that rental from April 30 to May 22, 1940.

A copy of the lease is attached to the statement of claim. The provisions upon which plaintiff relies, and to which we shall refer hereinafter, are contained in said lease.

Bach defendant filed a motion to strike the statement of claim. The motion of the corporate defendant is on the ground that the municipal court of Chicago has no jurisdiction to entertain plaintiff’s suit against it. The motion of the attorneys Siebel and Siebel rests upon their contention that the statement of claim is insufficient to charge them, because it shows that they acted only as attorneys for the corporate defendant and its trustee and are not liable as individuals. Scofield’s motion claims insufficiency of the statement of claim, because it shows that he acted only as agent for the corporate defendant and its trustee and not as an individual. Sheriff O’Brien contends in his motion that his entry did not terminate the lease and that he therefore occupied plaintiff’s premises under the lease of the Snider-Cazel Drug Co., judgment debtor, and that O’Brien is not liable to the plaintiff and that her statement of claim is insufficient as to him.

All of these motions were sustained by the trial court and judgment entered against the plaintiff for costs.

The motion of the defendant McKesson & Robbins, Inc., states that it is in custody of the United States District Court for the southern district of New York in a bankruptcy proceeding and that William Wardell is its trustee; that a restraining order issued' therein enjoining all persons in the United States from suing the corporate defendant. The record does not show that plaintiff was a party to the bankruptcy proceedings nor does it disclose that she submitted to the jurisdiction of the New York federal court; and the record is silent as to whether an ancillary proceeding has been instituted in this district of the federal court pursuant to such primary bankruptcy proceeding, and whether plaintiff has been served with process in such-ancillary proceeding.

It appears from plaintiff’s statement of claim that McKesson & Robbins, Inc., during the period covered by this suit, was doing a wholesale drug business under a license from the State of Illinois; that it sued SniderCazel Drug Co. in the municipal court of Chicago and recovered judgment therein; that it caused an execution to issue upon that judgment, placed it in the hands of the sheriff of Cook county and caused a levy to be made pursuant thereto upon the merchandise of the judgment debtor. Now, however, the corporate defendant insists that the municipal court of Chicago has no jurisdiction of a suit against it for use and occupation of premises as an incident of its business as a licensee in Illinois.

A study of United States Supreme Court cases on the subject shows that the New York Federal Court had no power to restrain plaintiff who was not a party to the bankruptcy proceeding, did not submit to its jurisdiction and is a resident of this distant jurisdiction. Acme Harvester Co. v. Beekman Lumber Co., 222 U. S. 300. By the general rule the jurisdiction of federal district courts in personam has been limited to the district of which the defendant is an inhabitant or in which he can be found. Robertson v. Railroad Labor Board, 268 U. S. 619. In bankruptcy proceedings a federal district court may in the primary suit reach into other jurisdictions, beyond its territorial limits by means of an ancillary proceeding, but as we have said before, apparently plaintiff who is a resident here, has not been served with process in any such proceeding and consequently the restraining order on which the defendant corporation depends is unavailing against her. Acme Harvester Co. v. Beekman Lumber Co., supra. In any event the restraining order did not affect the jurisdiction of the Municipal Court. The tnotion of the corporate defendant based upon such restraining order should have been denied. The ruling of the trial court upon such motion was erroneous.

The motion of the defendants A. F. W. Siebel, Arthur Siebel and C. P. Scofield rests upon the alleged insufficiency of plaintiff’s statement of claim as to them. They claim immunity because the defendants Siebel and Siebel were acting as attorneys, and Scofield as agent for the defendant corporation and Wardell, its trustee. There is no allegation in the statement of claim that Siebel and Siebel as individuals assumed any obligation for rent; or that they exceeded their authority as attorneys. On the contrary plaintiff charges that they were acting as attorneys for the corporate defendant. Clearly, therefore, no cause of action is stated against them. Treece v. Reinhart-Smith Grocer Co., 197 Ill. App. 40, 7 C. J. S. 833. The motion to dismiss as to Siebel and Siebel was properly sustained. The statement of claim charges that Scofield, credit manager of McKesson & Robbins, Inc., told plaintiff’s agent that the corporate defendant was willing to pay a reasonable rental for said premises during the time the same was occupied by the sheriff and such corporation, during the levy, sale and storage of the goods. There is no charge that Scofield acted without authority or in excess thereof; nor is it alleged that he bound himself personally for the rent, although the statement of claim after stating that he promised that the corporation was willing to pay the rent, goes on to charge that Scofield failed and refused to pay. Not only does the statement of claim not allege facts sufficient to bind Scofield personally, it positively alleges that Scofield acted on behalf of defendant McKesson & Robbins, Inc. It follows, therefore, that if plaintiff proved the allegations of her statement of claim and that she accepted Scofield’s offer, the corporation, and not Scofield, would be liable. Golden v. Ellwood, 299 Ill. 73, 3 C. J. S. 115. The trial court properly sustained the motion to dismiss as to Scofield.

The motion of the defendant O’Brien, as hereinbefore pointed out, rests solely upon the contention that Snider-Cazel Drug Co. was in possession as lessee and that O ’Brien occupied under said tenancy. The test of the statement of claim, therefore, as to O’Brien, is whether it sufficiently alleges facts establishing a termination of the lease by Snider-Cazel Drug Co. prior to O’Brien’s entry into the premises. If Snider-Cazel Drug Co. had no right to possession when O’Brien entered, the contention of the latter must fail. In the beginning we find that though the statement of claim alleges that the lease ran for two years from April 13, 1938, the face of the lease shows that the termination date is April 30, 1940. It is evident then, that any possession by O’Brien after April 30, 1940, could not have been under Snider-Cazel Drug Co. by virtue of the existing lease and therefore as to the period between April 30th and May 6th, when he gave up possession, the sheriff’s motion is not effective. The statement of claim sets forth the clause which provides for termination of the lease for nonpayment of rent, at the election of the lessor; the consequent obligation of the lessee to surrender possession immediately; and the concurrent right of the plaintiff to enter and expel anyone in possession. The charge is then made of the default by Snider-Cazel Drug Co., lessee, in the payment of rent for March and April 1940. The statement of claim further sets out the provision against subletting without plaintiff’s written consent and follows with the allegation that the lessee delivered-possession and the key of the premises to O’Brien without the knowledge or consent of plaintiff on or about April 17th.

The defendant relies upon the case of People for use of Wilkinson Co. v. Gilbert, 64 Ill. App. 203 to sustain the judgment of the trial court. In that case and the case at bar, the theories of the respective plaintiffs differ as to whose act terminated the lease; there the entry of the sheriff, here the default of the lessee. In that case the court said there was no allegation made which would justify the inference that the lease was terminated. Here, the plaintiff charges default in payment of rent by the Snider-Cazel Drug Co. and its delivery of possession and the key to O’Brien. In the Gilbert case there was no allegation made of a voluntary surrender of the premises to the sheriff. Here, there is the allegation of delivery by the lessee to the sheriff of both possession and key to the premises. In that case no allegation was made of a breach of condition for which the landlord’s right of entry ensued. Here, there is the allegation of non-payment of rent by the lessee and the landlord’s right to enter. The Gilbert case is clearly not decisive of the case at bar, although findings in it aid in determining the question here.

The defendant O’Brien further contends that arrearage of rent alone does not terminate a lease, but that an act of the landlord thereon is necessary and he cites cases to substantiate this contention. We are concerned with the statement of claim only and are of the opinion that the averment as to the lessee’s relinquishment of possession.to O’Brien, with the reasonable inferences therefrom, sufficiently allege belief in Snider-Cazel Drug Co. that the lease was terminated.O’Brien also claims that the automatic provision of the lease for nonpayment of rent was waived by the plaintiff because she permitted the lessee to remain in possession following the default in payment of rent for March and April. That claim is a matter of defense. We have decided that the statement of claim sufficiently alleges termination of the lease and we need not, therefore, consider the remaining points raised by the defendant which pertain to the rights and immunities of the sheriff under the lease of Snider-Cazel Drug Co. In conclusion we hold that the statement of claims sufficiently alleges a termination of the lease of Snider-Cazel Drug Co. and also by the averment set out hereinbefore sufficiently states a cause of action against the defendant Thomas J. O’Brien.

There are allegations in the statement of claim against O’Brien and the other defendants which seem to be founded in tort, but the plaintiff seeks only rent, and while she urges in one point the liability of the defendants in tort, the only matter before us is the sufficiency of the complaint in the contract action.

Upon the various motions to dismiss, therefore, we have decided that the motions as to A. F. Siebel, Arthur Siebel and C. P. Scofield were properly sustained, but the motions of the defendants Thomas J. O’Brien and McKesson & Robbins, Inc. should have' been denied. The judgment of the municipal court is, therefore, affirmed as to the defendants A. F. W. Siebel, Arthur Siebel and C. P. Scofield; and is reversed as to Thomas J. O’Brien and McKesson & Robbins, Inc. and remanded with directions to overrule the motions of McKesson & Bobbins, Inc. and Thomas J. O’Brien to strike the statement of claim, and for further proceedings not inconsistent with this opinion.

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

Burke, P. J., and Hebel, J., concur.


author: Mr. Presiding Justice Huffman Mr. Justice Dove

text:
    Elmira Swain, Appellee, v. William Hoberg, Appellant.
    Gen. No. 9,707.
    Dove, J., dissenting.
    Heard in this court at the October term, 1941.
    Opinion filed January 14, 1942.
    Arthur H. Shay, and Courtney Arthur, both of Streator, for appellant.
    Hollerich & Hurley, of La Salle, and H. L. Richolson, of Ottawa, for appellee.
   Mr. Presiding Justice Huffman

delivered the opinion of the court.

This case was previously before this court and reported in 281 Ill. App. 203. Appellee in that case is the appellee in this appeal. The action arose out of a collision between an automobile in which appellee was riding and an automobile owned by appellant which at the time was being operated by a cousin of appellant’s wife. On the former appeal, the judgment was reversed and the cause remanded on the ground the agency between appellant and the person operating his car was not established. That being the first consideration, the question of negligence of the respective parties was not considered.

Upon this appeal, appellant makes no assignment of errors relied upon for reversal. Subsequent to the time the case had been reached on call and assigned for opinion, appellee filed her motion to dismiss the appeal on the ground that appellant had made no assignment of errors as required by the rules. Appellant thereafter filed his countermotion, setting up among other things that appellee’s motion came too late and could not be considered, because not filed until after the case had been reached on call and taken under advisement by the court for opinion. Appellant further urged that the statement of facts in his brief constituted a reasonable compliance with the rules; that appellee by filing her brief admitted the appellant’s brief was sufficient; and that an assignment of errors was not jurisdictional. Appellant asks that in the event the court should determine that he should make a statement of the errors relied upon for reversal, he be given leave to reprint his brief and argument with such assignment incorporated therein, and file same within a short day to be fixed by the court.

Under the former Practice Act, the Supreme Court in the case of Armour v. Pennsylvania R. Co., 353 Ill. 575, at page 580 of the opinion, in speaking of the necessity for an assignment of errors, uses the following language: “An assignment of errors is not a mere matter of form that may be waived or dispensed with by the agreement of the parties; but it is essential to a review of the cause and in its absence the appeal or writ of error will be dismissed.” The same court in discussing this question under the present Practice Act, in the case of Gyure v. Sloan Valve Co., 367 Ill. 489, at page 492, uses the following language: “Under the former Practice act it was necessary that the assignment of errors be written upon or attached to the record. Such assignment performed the same office as a declaration in a court of original jurisdiction, and it was equally essential to form an issue in the reviewing court. The requirement was not a mere matter of form, but was one of substance. A failure to comply with it necessitated a dismissal of the appeal. . . . This requirement was eliminated by rule 36, leaving the stated provision of rule 39 as the only method of presenting an issue to a reviewing court. The importance of complying with the requirement is obvious, since without doing so an appeal is in the same condition as it would have been under the former act if no errors were assigned on the record.”

Appellant’s brief under the title “Statement of Pacts,” sets out the charges contained in the several counts of the complaint; the pleas filed thereto; a short statement of the facts in the case, which is followed by reference to the verdict returned, motions by appellant, and the judgment rendered by the court. We find no statement of errors relied upon for reversal at the conclusion of the statement of the case, nor do we find embodied therein a statement of errors which the appellant seeks to urge for reversal.

Rule 39 of the rules of practice and procedure provides that the concluding subdivision of the statement of the case shall be a brief statement of the errors- or cross errors relied upon for reversal. This shall be followed by the propositions of law and the authorities in support thereof. These two provisions clearly indicate that the errors and cross errors relied upon for reversal, should appear in a definite and distinct manner so that a reviewing court may know of what the appealing party complains.

With respect to rules of practice and procedure, it is often not so important which way a rule is, as it is important that there shall be a rule that is definite, positive, and clearly understood, so that it can be followed safely and without question. The rules regarding the preparation of briefs are neither oppressive nor technical. They are general in character, conducive to good practice and should be generally observed. A court of review will not constitute itself an agency of appellant to search the record for the purpose of discovering errors.

As individuals, there is an impulse to permit each litigant to be heard upon appeal, but the individuals are not the court. Department of Public Works & Buildings v. Legg, 374 Ill. 306, 308 et seq. Courts are legal entities, established for governmental purposes, and have a separate existence distinct from the individuals who preside over them. Rules of court are as much for the observance of the individuals performing the work of the court as they are for those who seek to bring their cases before the court for review. Otherwise, there could be no stability to the practice. The general rule has been recently announced in Department of Finance v. Bode, 376 Ill. 374, at page 376, as follows: “Rules of court are adopted to promote the work of the court and have the force of law.”

The above question has never ceased to be a troublesome one, and it should be settled either by direct holding of the Supreme Court or if necessary, by amendment to the rule. It must be assumed that the rule was promulgated for some purpose. As we construe it with reference to the point involved, the purpose was to require an appellant to set out or indicate at the conclusion of the statement of the case, what ground or grounds he wished to urge for reversal. A court of review should be entitled to be apprised wherein error is claimed to exist.

The motions of appellee and appellant came too late for the consideration of the court. The court cannot forego the rule in this case without accepting a position where it would be equally bound to forego the rule in every similar case. Such would nullify the rule and serve to obviate the necessity of any reference to errors relied upon for reversal being made by an appellant. This would produce an intolerable situation.

For the foregoing reasons, the appeal herein is dismissed.

Appeal dismissed.

Mr. Justice Dove

dissenting:

Rule 39 of the Supreme Court provides that appellant shall file a short and clear statement of the case, showing, first, the nature of the action; second, the nature of the pleadings sufficiently to show what the issues were, and to present any question subject to review arising on the pleadings; third, in cases depending upon the evidence, the leading facts which the evidence proved or tended to prove, without quotation of evidence, discussion or argument and without detail but with appropriate references to the abstract, and fourth, how the issues were decided upon the trial and what the judgment was. “The concluding subdivision of the statement of the case shall be a brief statement of the errors or cross errors relied upon for a reversal. . . .” In the instant case, the brief and argument of appellant began with an appropriate designation of this court, the term to which the case was brought, the title of the cause followed by the words in bold-faced capital letters,

“BRIEF AND ARGUMENT FOR DEFENDANT-APPELLANT.
STATEMENT OF FACTS.”

Then follows a clear and concise statement that this was an action instituted by the plaintiff against the defendant in the circuit court of LaSalle county, Illinois to recover damages for personal injuries sustained by the plaintiff in an automobile accident which occurred at the intersection of Fifth and Plum streets in Peru, Illinois on August 1, 1930. This is followed by a statement that the original declaration consisted of five counts and that later an additional count was filed, then under separate paragraphs with a heading in bold-faced capital letters, the allegations of each count and the additional count are briefly and concisely stated. This is followed by the word “Pleas” in like bold-faced capital letters at the top of page 4, and under this heading it is noted that the accident happened and the suit instituted prior to the enactment of the Civil Practice Act and that the general issue was filed and also a special plea averring that at the time of the accident the automobile involved therein was not in the possession or under the control of the defendant or of any of his servants, agents or employees, that he, the defendant, was not using or operating it, that he had not loaned it to the person who was driving it, and that it was not then being driven or operated with his permission, knowledge or consent. It appears from another paragraph following this heading, that this case was previously before this court and reported in 281 Ill. App. 203. This is followed by the word “Facts” in bold-faced capital letters, and under this heading, the leading facts, which the evidence tended to prove but without quotation, discussion or argument and without detail, but with appropriate reference to the abstract, are stated. The three concluding paragraphs of this statement are as follows, viz:

“At the close of all the evidence for plaintiff, the defendant moved the Court to instruct the jury that under the evidence plaintiff was not entitled to recover under the first count of the declaration and tendered therewith an appropriate instruction and made a similar motion and tendered a similar instruction as to each other count, including the additional count. The Court allowed the motion and gave the instruction as to the fourth count but denied all the other motions and marked the accompanying instructions refused. The defendant then moved the Court to exclude the evidence and to instruct the jury to find the defendant not guilty and tendered an appropriate instruction. The Court denied the motion and refused to give the instruction.
“At the close of all the evidence in the case, the defendant renewed each of the foregoing motions except as to the fourth count of the declaration, and tendered an appropriate instruction with each motion. The Court took these motions under advisement until after the verdict and then denied all the motions and marked all the instructions ‘refused.’
“The jury found the defendant guilty and assessed plaintiff’s damages at $4,000.00. Thereupon the defendant moved the Court for judgment finding the defendant not guilty notwithstanding the verdict and filed his points in support thereof in writing, which motion the Court denied. The defendant moved the Court to set aside the verdict and for a new trial and filed his points in support thereof in writing, which motion the Court denied. The defendant then moved the Court in arrest of judgment, which motion the Court denied. Thereupon the Court entered judgment for plaintiff against defendant for $4,243.00 and costs, including in the judgment interest to the amount of $243.00 at 5% since the date of the verdict. The defendant has perfected his appeal to this Court from that judgment.”

Following this appears the brief with appropriate headings and citations, and this is followed by an argument consisting of 15 pages with 9 subdivisions captioned in bold-faced letters, as follows:

“There is no evidence in the record to support the allegation in the declaration that the defendant’s automobile was being operated at the time of the accident by a servant or agent of the defendant.” (Page 11 of Brief and Argument.)
“The relation of master and servant is not established by the mere fact that the purpose for which the defendant purchased the automobile was the pleasure of the family and that he permitted his wife to use it for her own pleasure or that he permitted Alberta Pitzer to use it for his wife’s pleasure.” (Page 12 of Brief and Argument.)
"Tpere is no evidence in the record that Alberta Pitzer ivas an incompetent, unskillful or reckless driver of an automobile and none that the defendant knew she was.” (Page 16 of Brief and Argument.)
“There is no evidence in the record that the Hoberg automobile was being driven at a high and dangerous rate of speed.” (Page 18 of Brief and Argument.)
"The credible evidence in the record shows there was no collision.” (Page 19 of Brief and Argument.)
“It was error for the Court to instruct the jury' that plaintiff might recover without requiring it to give any consideration to the negligence of Mabel Rose-berry.” (Page 20 of Brief and Argument.)
“The evidence shows that the driver of the defendant’s car was not guilty of negligence. ’ ’ (Page 21 of Brief and Argument.)
"The accident was caused solely by the careless driving by Mabel Roseberry of the car in which plaintiff was riding.” (Page 23 of Brief and Argument.)
“The judgment is grossly excessive.” (Page 24 of Brief and Argument.)

Under each of these headings, counsel’s argument in support of each designated proposition follows and where reference is made to the evidence and where the evidence is commented upon the page of the abstract where the evidence is found is referred to. The holdings in the cases cited in the brief are also called to the attention of the court and counsel sought to apply the law of those cases to the facts as counsel contend the facts are in this case.

The record in this case discloses that appellant filed his notice of appeal and had a transcript of record prepared and filed the same in this court, together with his printed abstract, all according to the provisions of the Practice Act and the applicable rules of court. His counsel then prepared a statement, brief, and argument and served opposite counsel with copies thereof, and filed the same herein on July 26, 1941, as provided by the rules. Appellee joined in error and filed her brief and argument on October 1, 1941, in which she sought to meet the alleged errors relied upon by appellant, commented upon the authorities he cited, endeavored to distinguish the facts in this case from the facts in those cases, and presented her argument why the judgment should be sustained. Thereafter, and on October 7,1941 a reply brief was filed by counsel for appellant, and the following day this cause was reached upon the call of the docket and argued orally by counsel for both appellant and appellee, and the cause was by this court taken under advisement upon the written briefs and the oral argument of counsel. Thereafter, but on the same day, appellee made a motion to dismiss the appeal upon the ground that the concluding subdivision of appellant’s statement of the case did not contain a brief statement of the errors appellant relied upon for reversal. Counsel for appellant then filed a cross motion for leave to amend his brief and insert therein in its appropriate place a statement of his errors relied upon for reversal.

Appellee had no standing to make the motion to dismiss the appeal because she filed her brief which is equivalent to a joinder in error and by so doing waived her right to dismiss the appeal. Finlen v. Foster, 211 Ill. App. 609, 621 and cases there cited. Connell v. North Town Motor Co., 297 Ill. App. 247. Having joined in error and both parties having submitted their controversy to the court, neither the motion of appellee to dismiss the appeal or the cross motion of appellant for leave to amend could be entertained without setting aside the order by which the cause was taken, and before appellees’ motion to dismiss could be considered, she should also have obtained leave to withdraw her briefs. Farrell v. West Chicago Park Com’rs, 182 Ill. 250, 252.

Without any motion then, properly made, should this court, of its motion, dismiss this appeal? Under the authorities, such an order should be entered only if there was no attempt to comply with the rules of practice. This is what the Supreme Court held in Gyure v. Sloan Valve Co., 367 Ill. 489. The concluding paragraph of the opinion in that case (p. 493) recognized that the order in which the brief presents the issues to an Appellate Court is not jurisdictional “but” continued the court, “on the other hand, a reviewing court may determine whether or not its rules have been substantially complied with, and when there is no attempt to comply with them, the appeal will not be entertained. To do so would nullify the rule. There is no attempt in this case to comply with the stated provision of rule 39.” An examination of the brief filed by appellant in the Gyure case fully sustains the holding of the court that there was no attempt to comply with the stated provision of rule 39 and that the court would have been compelled to follow and analyze the brief and argument of appellant in order to ascertain what the court was called upon to determine.

While in the instant case there was no attempt to literally comply with the stated portion of rule 39, yet a reading of appellant’s statement (particularly the three concluding paragraphs thereof) and a consideration of his argument does inform the court of the questions which were presented to the trial court and its rulings thereon, which counsel seek to have reviewed by this court. Counsel for appellee evidently so construed it. This is evidenced by the fact that they (without any motion to dismiss the appeal as was made in the Gyure case) prepared and filed in this court, a 23-page brief and argument and thereby sought to meet the contentions and argument of counsel for appellant and to sustain the rulings and judgment of the trial court.

It does not necessarily follow, however, that because the brief of appellant was sufficient to apprise opposite counsel of the question involved in this appeal and of the errors relied upon by appellant for a reversal, that this court must hold that there was a substantial compliance with the rule. The manifest purpose of the rule, according to the expression of the Supreme Court in the Gyure case (supra) is to afford courts of review an opportunity to know what they are called upon to determine without being compelled to search the brief and argument to determine the issues. And the fact that in this case the search of the brief in order to determine the issues may be comparatively simple, while in other cases, the brief might not so easily disclose the issues, would not warrant the court in making an exception here.

The majority opinion proceeds upon the theory that this court could only ascertain the issues presented to this court for determination by this appeal if connsel for appellant had followed the last paragraph of the statement as above set out, with something like the following:

Errors relied upon por reversal
1. The trial court erred in denying defendant’s motion for an instructed verdict made at the close of the evidence offered on the part of the plaintiff.
2. The trial court erred in refusing to give to the jury a peremptory instruction to find the defendant not guilty at the close of the evidence for the plaintiff.
3. The trial court erred in denying defendant’s motion for an instructed verdict made at the close of all the evidence.
4. The trial court erred in refusing to give to the jury a peremptory instruction to find the defendant not guilty at the close of all the evidence.
5. The trial court erred in denying defendant’s motion for a judgment non obstante veredicto.
6. The trial court erred in rendering judgment on the verdict.
7. The trial court erred in not sustaining defendant’s motion in arrest of judgment.
8. The trial court erred in not rendering judgment in favor of the defendant and against the plaintiff for costs.
9. The trial court erred in overruling defendant’s motion for a new trial.

How much more enlightened would this court have been had the brief of appellant contained the foregoing, or something similar? Yet this court says that such a statement is absolutely necessary before it will consider the merits of any case with the result that in this case a meritorious defense is given no consideration. It is indeed a harsh and technical construction of this rule to hold that the failure of counsel to conclude their statement with a subdivision thereof containing a brief statement of the errors relied upon for reversal precludes this court from considering the merits of a case where, from a fair consideration, of appellant’s brief, the court is fully advised, from other parts thereof, of the issues, the errors upon which appellant relies and which counsel arg-ue and contend necessitates a reversal of the judgment appealed from.

I agree with the court that rules of practice have the force of law, are adopted to promote the work of the court, and aid it in the orderly and expeditious transaction of its business. I readily assent to the statement that the rules of the Supreme Court regarding the preparation of briefs are neither oppressive nor technical, that they are conducive to good practice, and should be observed. I am in accord, too, with the statement that the bar is presumed to be aware of the rules prescribed, that some logical order for the presentment of the issues to be reviewed must be observed, that it is the duty of counsel to prepare their briefs so as to present in an orderly manner, for the consideration of the reviewing court, the questions which were presented to the trial court and that this court should not be compelled to follow and analyze a brief and argument on alleged errors not properly complained of, and that it is not the duty of a court of review to search the record for the purpose of discovering errors. In this case, however, the court is not required to search the record for the purpose of discovering anything. The abstract of record prepared by appellant and the additional one prepared by appellee are accurate and sufficient for a full understanding of the questions presented for decision, and in my opinion, an examination of the brief of appellant does disclose the errors which counsel insist require a reversal of the judgment appealed from.

If it be conceded that the brief of appellant does not even substantially comply with rule 39, then it ,was clearly the duty of this court, in the exercise of its discretion, following the oral argument on the day the case was submitted and after appellee’s motion and appellant’s cross motion had been filed, to have entered an order of its own motion, not dismissing this appeal, but vacating the order of submission and permit appellant to amend his briefs. If courts of law are to be sources of justice, and if they are to receive the respect of litigants and the bar, to which they are entitled, then the merits of controversies submitted by counsel in good faith should not be frittered away. The brief of counsel for appellant may not serve as a model, but in my opinion, the questions presented to the trial court under the pleadings and evidence, the rulings of the trial court complained of and which counsel rely upon for a reversal of the judgment against his clients sufficiently and clearly appear therefrom, and require the merits of this appeal to be passed upon by this court. I therefore respectfully dissent from the order entered by this court, of its own motion, dismissing this appeal.


author: Mr. Presiding Justice Huffman

text:
    George C. Koltz and Louise Koltz, Appellees, v. Harold Jahaaske and Lawrence J. Reher (Lawrence J. Reher, Appellant).
    Gen. No. 9,718.

      Heard in this court at the October term, 1941.
    Opinion filed January 14, 1942.
    Charles H. Borden, of Chicago, for appellant.
    Rathje & Woodward, of Wheaton, and Frank R. Sejnost, of Berwyn, for appellees; John S. Woodward, of Wheaton, of counsel.
   Mr. Presiding Justice Huffman

delivered the opinion of the court.

Mr. and Mrs. Koltz (appellees) were riding in their automobile, then being driven by Mr. Koltz. A collision occurred between their car and that of defendant, Harold Jahaaske, then being operated by said defendant. Suit was brought by appellees against Jahaaske and Lawrence J. Eeher to recover for personal injuries sustained. It was alleged that defendant Eeher was engaged in the business of selling intoxicating liquors; that he procured the intoxication of the defendant Jahaaske; and that in consequence of such intoxication, the collision occurred with the resulting damages to appellees.

The defendants were sued as joint tort-feasors. The jury returned four verdicts of guilty. One verdict was returned in favor of appellee, Louise Koltz, and against defendant Jahaaske for $15,000; one verdict was returned in favor of appellee, George C. Koltz, and against defendant Jahaaske for $4,000; one verdict was returned in favor of appellee, Louise Koltz, and against defendant Eeher for $500; and one verdict was returned in favor of appellee, George C. Koltz, and against defendant Eeher for $500. The above verdicts were received on February 21, 1941. Two months after the return of such verdicts, and the discharge of the jury, and on April 24, 1941, appellees each entered a remittitur upon their verdict against defendant Eeher in the sum of $500, and filed their motion that the court amend such verdicts to read $15,000, for appellee, Louise Koltz, and $4,000, for appellee, George Koltz. Upon such motion, the court so amended the verdicts, over the objections of defendant Eeher, and rendered judgments accordingly. It is from this action of the court that Eeher (appellant) has prosecuted this appeal. The defendant Jahaaske, brings no appeal.

We have here for consideration a case where a jury has returned several guilty verdicts against defendants who were sued as joint tort-feasors, and by such verdiets assessing’ several damages. This is not a common situation. However, the point was before the Supreme Court of this State in the case of St. Louis, A. & T. H. R. Co. v. South, 43 Ill. 176, 182, 92 Am. Dec. 103. The question where several damages are given by a jury against joint tort-feasors is also considered in the case of Nashville Ry. & Light Co. v. Trawich, 118 Tenn. 273, 121 Am. St. Rep. 996, where with reference to such question, it is stated on page 1000, “The great weight of authority, holds that the plaintiff may select which one of the defendants he will take judgment against, and may enter a nolle prosequi as to the others, and have his judgment against this one in the amount the jury awarded against him, and this cures the irregularity in the verdict awarding several damages.” A collection of authorities and cases cited therein appear in support of this rule, including the case of St. Louis, A. & T. H. R. Co. v. South, supra. To the same effect are the cases of Holley v. Mix, 3 Wend. (N. Y.) 350, 20 Am. Dec. 702, 705 (cited with approval in Yeazel v. Alexander, 58 Ill. 254, 264); and Warren v. Westrup, 44 Minn. 237, 20 Am. St. Rep. 578. Most of the foregoing cases cite 1 Tidd’s Practice, 682. The text writer there states: ‘ ‘ So, in trespass against several defendants, where the jury by mistake have assessed several damages, the plaintiff may cure it by entering a nolle prosequi as to one of the defendants and taking judgment against the other.” The above rule is based upon the doctrine that a tort action is several as well as joint, and since the plaintiff might originally have commenced his action against only one, so, after verdict, he may elect to take his damages against either of them; and where several damages are given, the plaintiff may cure the irregularity by entering a nolle prosequi against all except such as he wishes to take judgment against.

Appellees urge that since the jury found each defendant guilty of negligence, the trial court in amending the verdicts against appellant by raising the damages fixed therein by the jury from $500 to $4,000, in the one instance, and from $500 to $15,000, in the other, did not thereby materially change such verdicts. The court is unible to bring itself to this conclusion. The verdict is the basis for the judgment to be rendered thereon, and a court cannot render judgment in an action for unliquidated damages, for a greater amount than it is authorized to do by the verdict. The rule that a trial court is powerless to reduce the damages fixed by a jury in its verdict in an action for unliquidated damages, and render judgment for a less amount, unless the party in whose favor the verdict was rendered consents to such reduction, is so generally recognized that it may be said to be of universal application. Likewise, a trial court is without power to arbitrarily increase the verdict of a jury in a tort action which is based upon unliquidated damages, without the consent of the party to be unfavorably affected by such increase. The reason for the above rule is that such action on the part of the court in arbitrarily reducing or increasing the damages fixed by the jury in its verdict without the consent of the party unfavorably affected by such increase or decrease, would be violative of the constitutional guaranty of trial by jury. American Ry. Express Co. v. Bender, 20 Ohio App. 436, 152 N. E. 197; Dimick v. Schiedt, 293 U. S. 474, 79 L. Ed. 603; Gaither v. Wilmer, 71 Md. 361, 17 Am. St. Rep. 542; Fidelity Storage Co. v. Kingsbury, 79 F. (2d) 705; Rafferty v. Public Service Interstate Transp. Co., 13 N. J. Misc. 80, 117 Atl. 357.

There is no line of separation between the liability of joint tort-feasors. Each is liable for the whole, and the injured party may pursue jointly one or more, at his election, and after verdict may dismiss as to all but one defendant, taking judgment against him alone. Nordhaus v. Vandalia R. Co., 242 Ill. 166, 174. The release of one or the satisfaction of a judgment against one, releases all, because a plaintiff can have but one satisfaction for his injury. When a suit is against several joint wrongdoers, the degree of culpability cannot be compared. In an action against joint tortfeasors, the judgment must be for a single sum against all the parties found responsible with respect to each plaintiff, and the jury in such an action cannot apportion the damages in an attempt to sever same as to the several defendants. Cooley on Torts (Joint Wrongs, pp. 135, 136); Yeazel v. Alexander, supra, p. 264; Jones v. Stiffler, 137 Pa. Super. Ct. 455, 8 A. (2d) 455; Village of Carterville v. Cook, 129 Ill. 152, 155, 156; Consolidated Ice Machine Co. v. Keifer, 134 Ill. 481, 491 et seq.

Since plaintiffs below have entered a remittitur upon their verdicts against appellant for the full amount of damages as fixed therein, nothing remains undisposed of with respect to appellant’s liability thereon, except such as involved in this appeal. Therefore, there is no occasion to remand the cause.

For the foregoing reasons, the judgments as rendered by the court upon the verdicts against appellant are reversed.

Judgments reversed.


author: Mr. Justice Dove

text:
    Charles Harold White, Appellee, v. Florence H. White et al., Kenton R. Wright, Appellant.
    Gen. No. 9,703.

      Heard in this court at the October term, 1941.
    Opinion filed January 14, 1942.
    Roy H. Brown and Edgar H. Wilson, both of Rockford, for appellant.
    Kenworthy, Shallberg & Harper, of Moline, for certain appellee.
    Johnson, Railsback & Bozeman, of Moline, for certain other appellees.
    Henry W. Parsons, guardian ad litem, for certain other appellee.
    John O. Young, guardian ad litem, for certain other appellees.
   Mr. Justice Dove

delivered the opinion of the court.

This cause involves the construction of paragraph four of the last will of Charles E. White, deceased, late of the city of Moline, in Rock Island county. The will was executed July 29, 1927, and the testator died September 16th of that year.

The will named appellee and Peoples Savings Bank and Trust Company as executors and trustees. Upon the closing of the bank, appellee became sole trustee. After specific legacies in the second paragraph, the use of the household furnishings and the home were given the widow and unmarried daughters for their respective lives while any of the latter remained single, and then to go into the residuary estate. The taxes and upkeep were imposed upon the widow during her lifetime, and thereafter upon any unmarried daughter.

The fourth paragraph bequeathes to the trustees 1,997 shares of $100 par value preferred stock of Deere and Company, a corporation, in trust, with power to hold, manage, sell, invest and reinvest the same and the proceeds, without restriction. Through a corporate reorganization these shares were converted into 9,985 shares of $20 par value. The portion of the fourth paragraph in controversy reads: “(c) Out of the net income from said trust estate, my Trustees are to pay to my beloved wife, Carolyn V. White, the sum of Six Hundred ($600.00) Dollars per month for and during her natural life, for her own use and behoof forever, provided, however, that if she fails at any time or as she fails from time to time to pay promptly all taxes, assessments and insurance on said homestead premises, household goods and furniture, as they become due, and fails to make and pay for all repairs thereon and to bear the expenses of the upkeep and maintenance thereof, as provided in paragraph designated ‘Third’ of this, my Last Will, then my Trustees shall deduct from said monthly allowance a sufficient sum from time to time to be applied by my said Trustees for the purposes aforesaid. The remainder of the net income from time to time from the trust estate is to be paid, quarterly or oftener, to my children, Florence A. White, Charles Harold White, Clifford E. White, Lucy Marian White and Catherine Louise White, in equal shares, for and during the life of my said wife. Upon the death of my said wife, said trust estate shall terminate and the principal of said trust, with any unpaid accumulations thereon, shall he transferred and conveyed to my aforesaid children in equal shares, discharged of all trusts, after the deduction of all charges and expenses reasonably incurred in the administration of the trust. If any child of mine should die before the death of my wife, leaving issue living at the time, such issue shall take by substitution, in equal shares if more than one, the income from, and the principal of, said trust estate, which such child of mine would have taken under the trust herein declared, had he or she survived and attained a vested interest.”

The fifth paragraph provides: “All the rest, residue and remainder of my estate, of whatever kind and nature, real, personal or mixed, of which I may die seized, possessed or entitled to, I give, devise and bequeath, and the same shall be divided among my aforesaid five children, share and share alike, for their own use and behoof forever. If any child of mine shall have died leaving issue living at the time of my death, such issue shall take by substitution, in equal shares if more than one, the share which such child of mine would have taken had he or she survived me. ’ ’

The gifts in paragraphs four and five are of. approximately equal value and the gross income from the trust has been about $14,000 per annum. The testator left surviving him his widow and five children above-named. At the time of his death the sons were married and the daughters were single. Appellee, Charles Harold White, has no issue. He and his wife adopted a child, Polly Ann. Clifford E. has five children, two of them born before the testator’s death. Since his death, Catherine Louise married Wayne C. Staley and has two children. Florence A. remained a spinster. Lucy Marian married appellant, Kenton B. Wright and died September 6, 1939, leaving no surviving issue. Her husband was appointed administrator of her estate and is appellant here.

Because of no express provision in the will in case of the death of a child without issue, appellee, in his own right and as such trustee, filed a complaint in the city court of Moline for a construction of the will. Answers were filed by the respective parties above-mentioned. The contention of appellant is that the interest of Lucy Marian, his deceased wife, under paragraph four, became a vested indefeasible estate at the death of the testator. The chancellor held the testator intended to suspend the vesting of the interests under the trust until the death of the widow and that they were a contingent reminder. The decree orders and adjudges that appellant is not entitled to any portion of the corpus or income of the trust either individually or as administrator of his wife’s estate since her death; that the share in the income which would have gone to appellant’s wife and which has accumulated since her death, should be distributed to the four surviving children of the testator and continue to be so distributed during their respective lives and until the death of the widow, and that upon the death of the widow, the corpus of the trust should be divided among the four surviving children in equal portions. The decree expressly refrains from further findings as to the distribution of income from the trust estate should any other contingency occur.

The paramount rule in construing a will is to ascertain and give effect to the intention of the testator unless he has attempted to dispose of his property contrary to some rule of law or public policy. (Fay v. Fay, 336 Ill. 299; Defrees v. Brydon, 275 Ill. 530, 540; Welch v. Wheeloch, 242 Ill. 380, 385.) Appellant invokes many familiar principles of will construction applicable where there is an uncertainty as to the intention of the testator from the language employed in the instrument. When the meaning of the language is not doubtful, and the intention of the testator, as shown thereby, is clear that the gift is not to vest at the death of the testator, rules of construction used in doubtful cases have no application. (Bennett v. Bennett, 217 Ill. 434, 444; People v. Byrd, 253 Ill. 223, 227; Gray “Nature and Sources of Law” Appendix VII, 1909.) Appellant does not claim the testator’s disposition of the trust property violates any rule of law or public policy, so the first question to determine is whether, as claimed by appellee, the intention of the testator to postpone the vesting of the trust estate is clear. If it is, all rules of construction applied where the intention is not clear are of no assistance, but the paramount rule must necessarily be followed, and the intention given effect.

Counsel for appellant argue that inasmuch as the fourth paragraph of the will makes no express provision for devolution of the share of a child dying without leaving surviving issue, the claim of appellee must rest upon the theory of a gift by implication to the surviving children. The claim of appellee has no such basis. He claims that the gift to the children is contingent, with vesting postponed until the death of the testator’s widow. This has no element of a gift by implication, and there is no occasion for discussing the doctrine that where there is a substitutionary gift, persons other than those designated cannot take.

As to the intention of the testator, a significant fact is that the concluding words of the fourth paragraph: “had he or she survived and attained a vested interest,” are unlike the concluding words of the fifth paragraph, “had he or she survived me.” As the trial court aptly remarked: “It should be noticed that the language above quoted (from the fourth paragraph) was omitted from the language of the residuary clause, which is another evidence that the testator intended to place' this particular trust property in a different category.” A further indication of the intention of the testator to postpone vesting is that the cases above-mentioned had been decided prior to the execution of the will in this case. Presumably the scrivener and the testator had the benefit of the holdings in those cases in preparing the will in controversy. The will bears evidence of having been drawn by a skilled lawyer. It is fair to assume the terms employed were so used in their accepted meaning as long settled by the courts. There is nothing to indicate, or from which we could conjecture, that the testator did not understand and intend to use them in that sense.

The Supreme Court of this State has repeatedly held that under analogous provisions in a will the interests were not vested at the death of the testator. In People v. Byrd, supra, the will provided: “and if either of my said children, Anne, Lucy, William, or Francis die leaving issue, either before me or before my said wife, then the issue of the child so dying shall take the share which his, her or their parent would have taken if living at her death.” In Spengler v. Kuhn, 212 Ill. 186, the provision was: “Upon the remarriage or death of my said wife, the trust estate hereby created shall at once cease, and the trust property shall thereupon go to and the title to the real estate become vested in my children. . . . ” In Cummings v. Hamilton, 220 Ill. 480, the seventh paragraph of the will provided: “In case of the death of either Thomas H. Cummings, Sarah C. Van Horne or Harry C. Cummings (prior to the death of my husband or prior to my decease) leaving a child or children, then in that case such child or children, or the descendants of such child or children, shall inherit the share of the real estate which would have vested in their parents under the sixth and last provision above made.” In each of those cases the court found the language of the will clearly indicated the testator’s intention that the legatee or devisee was to survive the owner of the intervening interest. In the Cummings case, the court said: “We regard the expression, ‘which would have vested in their parents,’ as significant. The evident meaning thereof is, that the children (or their descendants) shall take the share of the real estate which would have vested in the parent (Harry C. Cummings) had the parent survived the life tenant, and plainly indicates the purpose of the testatrix that the real estate was not to vest in the parent unless the parent survived the life tenant.” In Ayars v. Doyle, 166 Ill. App. 414, there is a similar holding. None of those cases has even been overruled or modified. The language of the wills in the Byrd case and the Cummings case are practically on all fours with the case at bar. The decisions in those cases are controlling.

Appellee suggests that an application of the rules of construction where the intention of the testator is not clear leads to the same result, and extensively briefs and argues that proposition, but in view of our holding-above it is unnecessary to pursue the subject further. Appellant’s claims that the trial court erred in failing to construe the fifth paragraph of the will, and in approving and confirming the acts and doings of the trustee up to the time of the hearing, are not argued and must be considered as abandoned.

The decree of the trial court is correct and is affirmed.

Decree affirmed.


text:
    Fred G. Snow, Receiver of American Trust and Savings Bank of Kankakee, Appellee, and William H. Wheat, Successor Trustee of Anna M. Kerr and Robert Kerr Benefit Fund, Appellant, v. Dennis L. Hogan et al., Appellees.
    Gen. No. 9,712.
    Heard in this court at the October term, 1941.
    Opinion filed January 14, 1942.
    Green & Palmer, of Urbana and Champaign, and Eva L. Minor, of Kankakee, for appellant; Eva L. Minor, of Kankakee, and Henry I. Green, Joseph Corazza and James H. Wheat, all of Urbana and Champaign, of counsel.

      DeSelm & Schneider and Samuel H. Shapiro, both of Kankakee, for appellees.
   Mr. Justice Dove

delivered the opinion of the court.

This is a creditors’ suit in equity by Fred G. Snow, receiver of the American Trust and Savings Bank of Kankakee, Illinois, and by William H. Wheat, successor trustee of the Anna M. Kerr and Robert Kerr Benefit Trust Fund to set aside a deed from Dennis L. Hogan and his wife Ada B. Hogan, conveying property on which they resided, to their daughter Helen Neeson; a second deed of trust on the same property to secure a loan from Hogan’s brother, Gregory Hogan; and a pledge by Hogan to James S. Neeson, his son-in-law, of certificate No. 4, of a one-ninth beneficial interest in the Kankakee Theatre Trust, a common law trust. The chancellor set aside the deed, found the issues for the defendants on the other two transactions, and gave priority to the judgments of the receiver over the judgment of the trustee. The trustee has appealed from all of the decree except that portion setting aside the deed. There is no cross-appeal.

As to the deed, Hogan’s daughter claimed no interest in the property. The evidence shows Hogan had been seriously injured in an automobile accident and the deed was made with the purpose of enabling the daughter to use it in paying the two mortgages without administration or foreclosure in case he died. The court found there was no consideration for the deed, without holding it was fraudulent, and nobody questions that holding.

The claims of the plaintiffs were based on three judgments by confession in the circuit court, each entered on April 30, 1932. One of them is in favor of appellant against Dennis L. and Ada B. Hogan for $2,761.45 on a note for $2,500 dated March 30, 1927. The other two judgments are in favor of the receiver of the bank. One of them, is for $2,062.31 against Dennis L. Hogan on three notes of $600, $650 and $600 respectively, two of them dated October 18, 1929, the other dated November 13, 1929, all indorsed by Ada B. Hogan and due October 1, 1931. The other judgment is for $2,184.93 against Ada B. Hogan on two notes, one for $1,100, the other for $800, dated respectively September 18, 1929 and November 20, 1929, both indorsed by Dennis L. Hogan and due October 1, 1932. Each of the notes on which the receiver took judgment are payable to the American Trust & Savings Bank, in renewal of notes to the Legris Trust & Savings Bank, its predecessor. The American Trust & Savings Bank closed December 27, 1929.

A large part of the facts were developed by verified answers to written interrogatories. The facts disclosed by such answers and the oral testimony are as follows: Hogan owned the property deeded to Ms daughter, where he resided in the city of Kankakee, encumbered to a Building and Loan Association by a first mortgage upon which there was a balance unpaid of $1,301.50. On May 1, 1929, Hogan made a second deed of trust on the property to secure a loan of $3,600 from Ms brother. This first loan was made about 20 years previously, and was secured by successive mortgages on two other homes owned by Hogan, as they were acquired, and released as they were disposed of. It was finally secured on the premises last acquired by him, when purchased, subject to the mortgage of the Building and Loan Association, and the mortgage on the second home was at that time released. The interest was paid each year as it became due. The gross and net value of the home, in Hogan’s statement to the Legris bank, shows he included both mortgages therein.

In addition to the home, Hogan owned a music business worth about $300 the certificate of beneficial interest above mentioned, and an incumbered Indiana farm which he lost by foreclosure in 1931 or later. He at first said he thought the foreclosure was in 1928, but later corrected the date.

He borrowed from his son-in-law $3,000 on December 28, 1928; $2,000 on June 28, 1930; and $2,500 on June 1, 1931. These loans are evidenced by promissory notes. He paid interest on the first loan on December 28, 1929, and December 27, 1930. No other interest was paid. The first note bears at the bottom the words: “Certificate of stock in Kankakee Theatre Trust. ’ ’ The second note recites at the bottom: ‘ This note is secured by Certificate of stock in KKK Theatre Trust.” At the appropriate place on the certificate is an undated assignment thereof to Neeson in the usual form, signed by Hogan. There was introduced in evidence another assignment of the certificate to Neeson by Hogan, dated August 1, 1931, as collateral for the three notes, described therein. They testified the certificate was delivered without assignment to Neeson when the first loan was made; and that the assignment thereon was executed when the second loan was made. Appellant calls attention to the fact that the certificate is dated February 4, 1929, and he contends that therefore it could not have been delivered when the first loan was made. The Kankakee Theatre Trust was created on March 20, 1928. The secretary of the theatre trust testified that Hogan was the holder of a certificate for one-ninth interest at the time of its inception. There is no testimony as to when it was issued. Whether it was post dated or exchanged for a temporary interim certificate is not shown. Even if Hogan and Neeson were mistaken as to the date of the first delivery, their testimony that it was assigned on the back at the time the second note was made stands uncontroverted. Neeson had an income of $5,200 a year and there is no evidence which tends to discredit his and Hogan’s testimony that the loans were in fact made at the times and in the amounts above mentioned and that Neeson holds the certificate, not as owner, but solely as security for the loans.

There was introduced in evidence a statement on a printed form signed by Dennis L. Hogan taken from the files of the Legris bank, dated June 21, 1929, as to his financial condition, which showed as assets: cash on hand in bank, $1,300; good accounts of customers, $3,000; merchandise on hand, $200; residence, $10,000; Indiana land, $34,200; “Stock in Majestic Theatre Bldg. $12,000.00”; total, $60,700. Liabilities: notes payable to own banks, $2,100; other current debts, $1,000; debt .secured by mortgage when due, $18,000. Net worth, home, $6000; reserves, W. W. Huchins, $2,500; a total of $29,600. The instrument contains the following: “Pill all blanks. Where no answer is given, ‘No’ or ‘None’ will be taken for your answer.” On the back of the instrument under the heading: “Contingent Liability” appears the words:-“Neither have any of our assets been pledged or assigned as collateral for any of our liability (except as follows) ”: The line following is blank, as is the line after the words. “Notes payable to others.” We are not impressed with the claim of counsel for appellees that the phrase “Stock in Majestic Theatre Building $12,000.00” cannot be referred to the certificate of beneficial interest. However, the record is devoid of any testimony as to who wrote the answers to the questions in the printed form, or whether all the questions were read to or by Hogan, or as to whether he knew it contained the statement as to how the failure to fill a blank would be taken, or as to whether the sentences under ‘ ‘ Contingent Liabilities” above quoted were called to his attention. Under such a state of the record' no fraud in making the statement can he attributed to. Hogan. Having been made on June 21, 1929, it does not prove fraud on October 18th and November 13th, when the renewal notes were made, and it is not even suggested that the American Trust & Savings Bank relied upon it.

The Kankakee Theatre Trust was created between the Kankakee Theatre Company, which had determined to wind up its affairs and dissolve the corporation, and five trustees, who held part of the certificates of beneficial interest. Among the trustees were Dennis L. Hogan and W. W. Huchins. The latter was also appellant’s predecessor as trustee of the Kerr Benefit Fund. The trust agreement gave the trustees authority to convert the property into money and distribute the net proceeds among the certificate holders, with power to postpone or delay the conversation and distribution, not beyond the end of, 20 years after the death of the last surviving trustee, and with power to receive all rents and income from the property, distribute such portions at such times as they may in their discretion deem fit and proper; to use the funds on hand for the repair, improvement, protection or development of the property, or for the acquisition of any other property real or personal. It was not, therefore, merely a liquidating trust, as claimed by appellant. From the date this suit was started on May 4, 1932, to August 1938, Hogan received dividends at various times aggregating $2,750, in checks of $50 each, except a few checks of $100 each and one for $150. On the latter date payments to him were stopped at the request of the plaintiffs, since which time $1025 in dividends has been held by the trust. The decree required Neeson to credit all of these amounts on the amount of $11,296.80 due on his notes. This would leave a balance of $7,521.80 unpaid to Neeson. The decree makes no provision for crediting any payments received by Hogan before the suit was started, and there is no evidence of what amount, if any, he received, or that he received anything, during that time.

Appellant claims that the receipts by Hogan of dividends were not income, but were distributions of reserve. There is nothing in the record which even tends to show the distributions were from the corpus of the trust. It is further claimed by appellant that there was an agreement between Neeson and Hogan at the time the certificate was pledged, that Hogan was to receive the dividends, and therefore retained a secret interest which 'made the transaction fraudulent per se. The pledge agreement expressly embraces all dividends and income. The testimony of both Neeson and Hogan shows that because the latter was in straightened circumstances, Neeson merely allowed him to collect the dividends because he was contributing to Hogan’s support at the time and thought possibly Hogan could “get by” on them, and Neeson would have to support him if he did not have the dividends. There is no testimony that tends to show this was a consideration for the pledge or that it was to continue during Hogan’s lifetime, or that it was anything but a purely permissive arrangement. Neeson testified he understood it was to continue through 1930 and 1931, because Hogan needed it and did not have property enough. The fact that they said there was an agreement does not change the character of the transaction into a retention of any interest by Hogan. Being voluntary and permissive it was revocable at any time. Both Neeson and Hogan disclosed the facts without reservation or equivocation. We are convinced, as the chancellor evidently was, of the truth and sincerity of their testimony that their transactions were a pledge in good faith, for value received, without any reservation of any secret interest in Hogan. The doctrine that the retention of a secret interest in the subject matter of a transfer is fraudulent per se, laid down in Greenebaum v. Wheeler, 90 Ill. 296, Zwick v. Catavenis, 331 Ill. 240, and other cases cited by appellant, has no application here.

We do not regard the fact that the pledge was not noted as a transfer on the records of the trust as invalidating the pledge, or as evidence of any fraud, actual or constructive. The terms of the trust agreement that no “transfer” of any beneficial interest shall be effective or binding upon the trustees or affect them or the corpus of the trust unless and until the certificate be surrendered, the transfer thereof noted on their records, and a new certificate issued, manifestly does not apply to a mere pledge, which does not require the issue of a new certificate, either under the law or by custom. A notation on the records of the trust was not essential to the validity of the pledge. (Harris v. Chicago Title & Trust Co., 338 Ill. 245, 267; Allmon v. Salem Building & Loan Ass’n, 275 Ill. 336, 341.

The relationship of the parties to an alleged fraudulent transaction is merely a circumstance that may excite suspicion, but will not, of itself, amount to proof of fraud. (Third Nat. Bank, of Mt. Vernon v. Norris, 331 Ill. 230, 237; Luthy & Co. v. Paradis, 299 Ill. 380, 386.) In this case the evidence conclusively establishes the good faith of the parties and a valid consideration for each of the transactions questioned. Hogan still had his farm when he pledged the certificate to Neeson. He testified he was insolvent, but was in hopes that land prices would change and he could pay his creditors ; and that if land prices had come back he could have done so. He paid interest on the farm mortgage, and made payments to his other creditors, in that hope, with the money received from Neeson. When he executed the collateral assignment he knew the farm was lost, but it is to be noticed he had used the money received from Neeson in paying on his debts, including that to the Legris bank. The evidence shows he was merely doing what countless others did under the wide spread and disastrous depression then at its height. He was trying to ride the storm, and like thousands of others, failed through no fault of his own. He thought he could pay out, and borrowed money from Neeson in an effort to do so. His creditors got the benefit of it. No fraud can be attributed to such a course. A lack of good judgment in an honest transaction is not an element or a badge of fraud. There is an entire lack of any evidence to show that the mortgage, or the pledge of the certificate, was with any design of defeating the claims of his creditors. Clark v. Harper, 215 Ill. 24; Beidler v. Crane, 135 Ill. 92; Bear v. Bear, 145 Ill. 21, where that element was present, are not persuasive here. Appellees fully met the burden of disproving any implication of fraud as to preexisting creditors. Cases of voluntary conveyances without consideration have no relation to the facts before us. A debtor has a right to prefer one creditor when he acts without fraud, even though he devotes all his property to the preferred creditor, leaving nothing to which his other creditors can resort. There must be evidence to show a fraudulent intent before a conveyance made upon a valuable consideration may be held fraudulent. (Third Nat. Bank of Mt. Vernon v. Norris, supra; Nelson & Co. v. Leiter, 190 Ill. 414.)

The chancellor correctly decreed that the dividends above mentioned be applied on the Neeson notes, and that upon payment of the balance of $7,521.80 due thereon by the complainants, or one of them, that Hogan’s notes to Neeson be surrendered to Hogan, and that the certificate of beneficial interest be delivered to the clerk of the court, subject to levy and sale for the satisfaction' of the judgments; and that the first and second mortgage debts, and Hogan’s homestead in the residence property were superior to the rights of the complainants under their judgments.

The deed to Hogan’s daughter was executed on February 27,1932. The judgments were not obtained until April 30,1932. The deed was not void, but was good as between the parties until it was set aside. The legal title having passed before the judgments were entered, they were not liens upon the property. Appellant’s judgment was not revived before the decree. The fact that the receiver’s judgments were revived prior to that time did not make them liens, because the deed had not yet been set aside. When the creditors’ bill, by all the complainants, was filed, the lis pendens was an equitable levy and created an equitable lien on the property. The liens were thus concurrent. The fact that the seven year statutory judgment lien had expired before the decree was entered is of no importance, because none of the judgments were statutory liens, and the rights of the complainants were all based on the lien created by the lis pendens. (Davidson v. Burke, 143 Ill. 139; Union Nat. Bank v. Lane, 177 Ill. 171.) It follows that the chancellor erred in giving priority to the judgments of the receiver.

The decree is affirmed in all respects except as to that portion which gives priority to the receiver’s judgments. As to that part of the decree, it is reversed, and the cause is remanded with directions to modify the decree in that respect in accordance with the views herein stated.

Reversed in part and remanded with directions.