text:
    Lyman Everingham v. The National City Bank of Ottawa.

      Attachment—Levy of Execution and Writs—Successive Levies—Priority of Lien—Pro Rata Distribution of Proceeds of Property Attached—Levy of Execution for Purposes of Security—Fraud.

    1. An attempt to make use of an execution for purposes of security merely, even without any actual fraudulent intent, renders it constructively fraudulent as to junior executions and writs.
    2. The levy of an execution by the direction of the plaintiff on certain property, does not suspend the lien of the writ on all other property of the defendant.
    8. An officer, notwithstanding a prior levy, has power, at any time before the return day, to make such further levy as may be necessary to satisfy the plaintiff’s claim.
    4. The levy of an execution upon real estate of sufficient value to satisfy the judgment, does not, like a levy on sufficient personal property, operate, while undisposed of, as such a satisfaction of tho judgment as to bar an attempt to enforce its collection in any other manner.
    ñ. Where one of several creditors has recovered separate judgments against the common debtor upon different evidences held for one and the1 same debt, he is entitled to receive a pro rata dividend on but one of such judgments ouo of the proceeds of property attached.
    [Opinion filed January 7, 1888.]
    Appeal from the Circuit Court of La Salle County; the Hon. Charles Blanchard, Judge, presiding.
    In February, 1884, William Butters executed to Ann Armour a mortgage upon 207 acres of land in- La Salle County, to secure the payment of $3,000 in five years, with seven per cent, interest, and said mortgage is still a valid and subsisting lien upon said land.
    On February 9, 1887, the firm of Hash, Wright & Company, obtained a judgment by confession in the Circuit Court of La Salle County for $3,626.21 and costs against said William Butters and James B. Butters, and on the same day execution was issued on the judgment and levied on the real estate above mentioned; and at the date of the hearing in the Circuit Court of the matter at bar, there was still due and unpaid upon said judgment the sum of $1,700.
    On February 11,1887, said William Butters executed to one John H. Druitt a warranty deed to said land, for the expressed consideration of $2,000, which deed was duly filed for record on the next day.
    On February 14, 1887, the Hational City Bank of Ottawa recovered a judgment by confession in the Circuit Court of La Salle County against William Butters and James B. Butters for $3,102.22 and costs, upon which execution was issued on the same day and placed in the hands of D. B. Snow, the plaintiff’s attorney, who directed the Sheriff to levy it upon said 207 acres of real estate and informed the Sheriff that he was about to file a hill in chancery in aid of the levy. Ho other directions were given to the Sheriff concerning this execution until March 11, 1887, as hereinafter mentioned.

      On the same day the National City Bank, by the same attorney, filed a bill in chancery in the Circuit Court in aid of the levy, alleging that the title to this real estate had been in the defendant William Butters, but that said William Butters had made a fraudulent conveyance thereof to John II. Druitt. The bill also alleged that the defendants in the execution had no other property subject to execution of sufficient value to satisfy the judgment. The prayer of the bill was that the conveyance from Butters to Druitt be adjudged fraudulent and void, and that the land be subjected to sale under the execution. This bill was prosecuted until March 25, 1887, when it was dismissed without prejudice.
    On February 16, 1887, the National City Bank of Ottawa, by the same attorney, commenced a suit in attachment in the Circuit Court, returnable to the March term, 1887, against James R. Butters, for §1,000, and on the same day D. B. Snow, the plaintiff’s attorney, delivered the writ of attachment to the Sheriff and directed him to levy it upon the personal property, the proceeds of which are now in controversy, which the Sheriff accordingly did. Judgment for §1,000 and costs "was duly entered against the defendant on the 22d day of March, 1887.
    On February 18,1887, Lyman Everingham commenced an action of assumpsit by capias in the Circuit Court against William Butters and James It. Butters, returnable to the March term, 1887, upon which such proceedings were had that on March 21, 1887, the capias was quashed and judgment entered against the defendants for §5,077,77 and costs, upon which execution was issued, and returned, no property found or money made. The judgment was rendered upon a promissory note, executed by the defendants January 11, 1887, as collateral security for moneys to be thereafter advanced by the plaintiff to James R. Butters, which moneys formed the consideration of the judgment next hereinafter mentioned.
    On March 2, 1887, Lyman Everingham commenced in the Circuit Court a suit in attachment, returnable to the March term, 1887, against James R. Butters, and the writ issued in that suit was, on the same day, levied upon the same personal property which had been levied upon under the attachment of February 16, 1887, in favor of the National City Bank. Judgment for §5,420 and costs was duly entered in this suit on March 16, 1887, and a special execution was issued under which the property attached was sold.
    On March 11,1887, the National City Bank, by its attorney, directed the Sheriff to levy the execution of February 14,1887, for §3,102.22, upon the personal property which had been levied upon under the writs of attachment, which the Sheriff accordingly did, and the property was sold under that execution, as well as under the special execution in favor of Everingham, on the 26th day of March, 1887, the amount realized by the sale being §4,318.80, and, after deducting all costs and expenses, there was left in the Sheriff’s hands for distribution to the judgment creditors the sum of §4,174.16.
    On March 25, 1887, the attorney of the National City Bank directed the Sheriff to release the levy on the real estate, and dismissed the bill in chancery without prejudice; and on March 26, 1SS7, Everingham filed his bill in chancery to set aside the sale of the real estate from William Butters to John Druitt, and to subject the land to the satisfaction of his judgment for §5,077.77 against William Butters and James B. Butters.
    Upon the foregoing facts it was claimed by Lyman Everingham that although the execution of February 14, 1887, for §3,102.22 in favor of the National City Bank, was the first writ placed in the Sheriff’s hands, yet by reason of the directions given to the Sheriff by its attorney to levy on the real estate, the prosecution of the bill in chancery in aid of the levy, and the levy made February 16, 1887, upon the personal property by direction of its attorney, under its own writ of attachment, which was junior to its execution of February 14, 1887, the lien of the latter writ was voluntarily waived or suspended, and that the proceeds of the execution sale should therefore be applied pro rata upon the judgment of §1,000 in favor of the bank, and the judgments of §5,420 and §5,077.77 in favor of Everingham, and that no portion of the proceeds should be applied upon the execution of February 14, 1887, for §3,102.22.

      But the court below held that the judgment for $3,102.22 in favor of the bank must first be paid in full, and that inasmuch as Everingham’s judgment of $5,077-77 against William Butters and James B. Butters was merely collateral security for the judgment of $5,420 against James B. Butters, only the latter judgment could participate in the proceeds, and that therefore the balance of the fund, after paying the said judgment of $3,102.22, should be applied pro rata upon the judgment of $1,000 in favor of the bank, and that of $5,420 in favor of Everingham.
    This action of the court, it is insisted, was erroneous, and in support of such position the following propositions are urged:

      First: That any directions, express or implied, given by plaintiff to the Sheriff, by reason of which a levy upon property under an execution is delayed, operate, while such directions are in force, to suspend the lien of the writ.

      Second: That the directions, given by Snow, the attorney of the National City Bank, to the Sheriff, were equivalent to directions not to levy upon the personal property in question until March 11, 1887, and therefore operated to suspend the lien of the execution until that date.

      Third: That the conduct of the bank’s attorney from February 14th to March 11th is conclusive evidence that during that time it was not seeking to enforce the execution of February 14tli against this personal property, and therefore the lien of the execution upon it during that time was suspended.

      Fourth; That the levy on the real estate and the tiling of the bill in aid were inconsistent with a levy on the personal property, and therefore suspended the lien.

      Fifth: That the action of the bank with respect to its levies being such as would have a tendency to mislead and hinder Everingham in the collection of his debt, the bank is estopped from asserting a right to levy on the personal property under its senior execution.

      Sixth: That the judgment of $5,077.77 in favor of Everingham was one upon which Everingham was entitled to a pro rata share of the fund.

      Messrs. Duncan, O’Conor & Gilbert, for appellant.
    It is well settled that a delivery of an execution to an officer, with instructions to him at the same time to do nothing under it, is really no delivery and confers no rights upon the creditor. Freeman on Executions, Sec. 206; Gilmore v. Davis, 84 Ill. 487; Koren v. Roemheld, 6 Ill. App. 275; Baldwin v. Freydendall, 10 Ill. App. 106; Kellogg v. Griffin, 17 Johns. 274; Knower v. Bernard, 5 Hill. 377.
    That the execution is the writ of the plaintiff a.nd is under his complete dominion and control is well settled. The officer is bound at all times to respect the interests and wishes of the plaintiff, and all directions of the plaintiff not savoring of fraud, nor undue rigor and oppression, must he obeyed, or the officer will he liable for injurious consequences flowing from his disobedience. Freeman on Executions, Secs. 21, 108; Godfrey v. Gibbons, 22 Wend. 569; Reddick v. Cloud, 2 Gilm. 670; Morgan v. People, 59 Ill. 58.
    As is said in Freeman on Executions, Sec. 206, supra, it is sufficient to avoid a writ to show “that the plaintiff gave some direction to stay the execution of the writ, or did some act from which it may he inferred that he did not intend to compel a saleP

    That the bank did not, from February 14th to March lltli, have any intention of compelling a sale of his personal property under its senior writ, is established beyond all question. That the existence of this personal property was known to the bank on February 16th is conclusively shown by the, fact that the bank’s attorney, Snow, caused the writ of attachment to be levied upon it on that date. It ■ might, therefore, have directed the Sheriff to levy the execution upon it and sell it, and such sale could have been made and the execution satisfied as early as February 26tli, at least a week prior to the attachment in favor of Everingham. Yet it not only failed to direct the Sheriff to levy upon it under the execution, but it did direct him to seize it under the attachment, an act entirely inconsistent with its seizure under the execution. The intention of the hank, as manifested by its conduct, clearly was to use this senior execution as a mortgage upon the ¡personal property while it was pursuing its bill in equity, and to thereby deter other attaching creditors from levying.
    There was an express direction to levy upon the personal property under a junior writ of the same plaintiff. If this is not equivalent to an express direction not to levy this senior writ upon this personal property, then, in law, an express direction can have no equivalent.
    The law is well settled that a levy upon personal property of sufficient value to satisfy the writ is a satisfaction of the judgment. Freeman on Executions, Sec. 269; Harris v. Evans, 81 Ill. 419; Trenary v. Cleever, 48 Ill. 28; Smith v. Hughes, 24 Ill. 270; Montgomery v. Wayne, 14 Ill. 373; Ambrose v. Weed, 11 Ill. 488.
    A senior execution creditor has no right to shift his levies to the prejudice of subsequent creditors. Smith v. Hughes, 24 Ill. 270; Dean v. Patton, 13 Serg. & R. 345.
    While the levies under discussion in the above cited cases were levies upon personal property, the language used is applicable to the case at bar. Had the bank levied its execution upon the personal property in the first instance, it is clear, from the authorities we have already cited, it would not have been permitted to release that levy for the purpose of making a new levy upon real estate and filing a bill in chancery in aid' of the levy. The personal property, being of sufficient value-to satisfy the writ, would have been appropriated by law to the payment of the debt, and the levy upon it would have protected the defendants against being harassed by another suit.
    Messrs. D. B. Snow and Mayo & Widmer, for appellee.
    ££The plaintiff is not obliged, in order to preserve the lien of his execution, to advise or direct the Sheriff what to do or how to proceed, even though applied to by the Sheriff for that purpose. He is only obliged to avoid such interference with the officer as would render it improper for the latter to enforce immediate payment. ” Koren v. Roemhold, 6 Ill. App. 275.
    <£ In all cases where the first execution has lost its preference something was said by the plaintiff or his attorney at the time the execution was issued, or at some subsequent period, from which the Sheriff could reasonably infer that he was authorized to give indulgence instead of complying with the writ. ” Herkimer County Bank v. Brown, 6 Hill, 232. See also, McCoy v. Beed, 5 Watts, 300; Howell v. Alkyn, 2 Bawle, 285; Brown’s Appeal, 26 Pa. St. 490.
    A levy upon real estate sufficient to satisfy the debt does not, as in case of levy on personal property, operate even ;prima facie as a satisfaction of the execution. Such levy upon real estate does not even suspend the writ, nor does it, while undisposed of, operate to bar collection in any other manner. Herrick v. Swartwout, 72 Ill. 340; Gregory v. Stark, 3 Scam. 611; Gold v. Johnson, 59 Ill. 62; Robinson v. Brown, 82 Ill. 279.
    As to successive levies upon the same writ, it is laid down in Freeman on Executions, Sec. 253, that “even where an officer in the first instance finds sufficient property, various causes may arise prompting him to levy upon a part only. The levy upon this part is no waiver of the right to make a further levy at a subsequent period. In fact, the general rule prevails without exception, that an officer, notwithstanding this prior levy, has, at any time before the return day, the power to make such further seizure as may be necessary to satisfy the plaintiff’s debt.” Montgomery v. Wayne, 14 Ill. 373; Marshall v. Morris, 13 Ga. 185.
   Baker, J.

In respect to personal property, the general rule is that executions are to be satisfied in the order of their priority, the writ first delivered to the officer taking precedence" as the first lien, and the others following in the order in which they are received. This rule obtains even though the first seizure may have been made on a subsequent execution; and if the Sheriff has more than one execution in his hands he should apply the proceeds of sale on the elder writ, for the sale is not for the benefit of the particular writ which is first levied, or under which the sale is made, but for the benefit of all the writs in his hands in the order in which they rank as liens upon the personalty.

So, also, a fieri facias delivered to a Sheriff takes preference of an attachment levied before they?, fa. but after such delivery. Freeman on Executions, Sec. 196; Herman on Executions, Sec. 183; Rogers v. Dickey, 1 Gil. 636; Leach v. Pine, 41 Ill. 65; Lawrence v. McIntire, 83 Ill. 399.

This much seems to be conceded in this case; but the contention of appellant is, that as the attorney for appellee gave to the Sheriff a description of the real estate and told him to levy appellee’s execution thereon, and at the same time informed him that he was about to file a bill in chancery in aid of such levy, and actually did file such bill, therefore appellee lost the right to levy its senior execution on the personal property and assert a priority over the junior writs, because the levy on real estate and the exhibiting of the bill in aid were inconsistent with a levy on the personal property and a suspension of the lien of the senior execution.

It is well settled doctrine, that as the object of an execution is to obtain satisfaction of the judgment on which it issues, therefore any act of the creditor, or directions from him to the Sheriff diverting the execution from this purpose, renders it dormant and inoperative against other creditors and clothes them with priority. Gilmore v. Davis, 84 Ill. 487; Koren v. Boemheld, 6 Ill. App. 275; Kellogg v. Griffin, 17 Johns. 274; Knower v. Bernard, 5 Hill, 377.

This doctrine had its origin in the Statute of 13 Elizabeth, Ch. 5, which provided that executions taken out with intent to hinder, delay, or defraud creditors, or others, should be, as against the persons sought to be hindered, delayed or defranded, utterly void.

It has been deduced from this statute that any attempt to make use of an execution, even without any actual fraudulent intent, for purposes of security merely, is a perversion óf the writ, and renders it constructively fraudulent as to junior executions and writs. It has been remarked that there is no settled rule whereby it may be determined when a senior writ Joses its preference, and that each particular case must be determined by its own peculiar circumstances.

Under the circumstances of the case in hand, the bank was guilty of no improper use of the process of the court, and by its conduct waived no legal right or lost no lien. Immediately upon recovery of judgment it sued out a fieri fiadas, and had it levied upon real estate, and on the same day filed a bill in chancery in aid of the levy, for the purpose of setting aside what it supposed to be a fraudulent conveyance of the land. It used unusual zeal and diligence in getting service and pressing the suit in aid.

The allegations of the bill were that William Butters had not sufficient personal property to satisfy the execution, and that James JEL Butters had not sufficient property liable- to execution to satisfy the judgment, and that he was virtually insolvent. It does not appear that at the time of the levy on real estate the bank had any actual notice of the personal property which was afterward seized and sold, or of its value. It may be the levy on the land was not the most effective way in which the bank could have proceeded in order to make its money and make it as quickly as possible, but probably it was not then advised of any more promising mode of procedure. In any event, what it did was in furtherance of the object of the writ, to enforce payment of its judgment. ¡Neither the bank nor its attorney directed the Sheriff not to levy on personal property. The bill in equity could only be prosecuted upon the theory, the personal property the defendants in execution had, was insufficient to satisfy the debt; and had the bank known there was sufficient of such property, it would clearly have been inconsistent in it to both file the bill and levy on the personalty. But that is not the standpoint from which this ease is to be regarded, for appellee was proceeding, as is shown by the allegations of the bill, upon the theory of an insufficiency of personalty, and there is nothing in the record to indicate it was not acting in good faith.

Besides this, a levy on real estate, even of value sufficient to pay the debt, is not prima fade a satisfaction of the execution. The levy, therefore, did not prevent. the Sheriff from seizing other property under the writ, and selling it. It will not do to say that whenever an execution is, by direction of a plaintiff, levied on' certain property, such levy is effective to suspend the lien of the writ in respect to all other property of the defendant in execution.

Even in regard to personalty, where a levy sufficient to pay the indebtedness operates sub modo as a satisfaction, it may turn out the property seized belongs to another person, or is exempt from forced sale, or is insufficient to satisfy the debt, or is removed from the possession or control of the Sheriff by the act of the defendant in execution. The rule prevails, without exception, that an officer, notwithstanding a prior levy, has, at any time before the return day, power to make such further seizure as may be necessary to satisfy the plaintiff’s debt. Freeman on Executions, Sec. 253; Montgomery v. Wayne, 14 Ill. 373. But here, as the first levy was upon real estate, the case is all the stronger for appellee, as such levy, regardless of the question of value of property, did not, like a levy on sufficient personal property, operate, while undisposed of, as such a satisfaction of the judgment as to bar an attempt to enforce collection in any other manner. Herrick v. Swartwout, 72 Ill. 340. In Deloach & Wilcoxson v. Myrick, 6 Ga. 410, a fieri facias had been levied on lands and the levy afterward dismissed by order of plaintiff’s attorney and a levy made upon a negro boy, and intermediate the two levies the boy had been sold to Deloach & Wilcoxson, and it was decided they could not hold the boy as against the lien of the plaintiff in execution. See also, Hammond v. Myrick, 14 Ga. 77, and Hogshead v. Caruth, 5 Yerg. 227.

The logic of appellants’ claim made herein would lead to the conclusion that a direction to levy upon, particular property would be effective to suspend the lien of the execution as to all other property of the execution debtor. Herein, we .think, lies the fallacy of his argument. It is true that from February 14th to March 11th the bank was not seeking to enforce its execution of February 14th against the personal property upon which it was subsequently levied, but, in our opinion, the conclusion does not follow therefrom that during that time the lien of the execution was dormant and constructively fraudulent as to such personal property.

That which the rule deduced from the Statute of Elizabeth is leveled against, is the perversion of the writ of fieri facias from its legitimate purpose of enforcing payment, and there is no such perversion when there is an absolute intention of collecting the judgment, and a levy is made in good faith which is afterward abandoned and a new levy made on other property, upon discovery of the fact the first levy is, or probably will prove to be, ineffective.

In this case the bank seems to have been more than ordinarily diligent and industrious in its efforts to enforce payment through its senior execution. At the time of the levy on the land it was already incumbered by a valid mortgage lien and a prior judgment lien, amounting together to about one half its value. As soon as it was ascertained from the depositions taken in the chancery suit that the conveyance to Druitt was probably T)ona fide and for a valuable consideration, the bank forthwith directed a levy upon the personal property, and shortly thereafter reAased the levy on the land and dismissed its bill in aid of such levy.

The fact that the bank supposed, at the time of the first levy and for a month thereafter, that it would be able to make its debt out of the realty, and did not during that time either intend or seek to subject the personal property in satisfaction of such debt, was not an abuse of the process of the court. The law does not punish the plaintiff in a senior execution for making an ineffectual levy by forfeiting his prior lien upon all property not included in such levy; all that it requires of him is, that he should act in good faith and retrace his steps during the lifetime of his senior execution and before the personal property has been actually sold by virtue of a junior writ.

If we are right in our conclusions, then appellant can take nothing by his claim that the direction to the Sheriff to levy the bank attachment writ of February 16th upon the personal property, was, by necessary implication, a direction to do nothing to overthrow the effect of that levy, and, therefore, a command not to levy the senior execution upon it. Besides this, as is well answered by appellee, in no other certain way than by this attachment could the bank share pro rata with other creditors of James B. Butters in any surplus of proceeds of sale of the personal property, levied upon, over and above the amount sufficient to satisfy its senior execution of February 14th.

It is further objected to the order of distribution made by the Circuit Court, that the Everingham judgment for $5,077.77 was a judgment upon which he was entitled to receive a •p?v rata share of the fund derived from the sale of the personalty. Appellant bases his claim in this regard upon two grounds. One is, that Sec. 37 of the Attachment Act, without any ambiguity of language, provides in express terms:

“ All judgments in attachment against the same defendant, returnable at the same term, and all judgments in suits by summons, capias or attachment against such defendant, recovered at that term, or at the term when the judgment in the first attachment upon which judgment shall be recovered is rendered, shall share pro rata, according to the amount of the several judgments, in the proceeds of the property attached, either in the hands of a garnishee or otherwise.”

The other ground relied upon is, that Everingham held the note upon which the $5,077.77 judgment was rendered as collateral security for the James B. Butters indebtedness to him, and that he should be permitted to enjoy the benefit of the right for which he contracted, to pursue both his remedies until the amount actually due him is paid; and that otherwise the security which he supposed he obtained is rendered nugatory, and the judgment which he holds as security is declared canceled.

Sec. 41 of the Attachment Act provides that the act shall be construed in all courts in the most liberal manner for the detection of fraud. In H. & St. J. R, R. Co. v. Crane, 102 Ill. 249, it was held that our statute relating to attachments, from its provisions and the spirit of the whole act, is entitled to and should receive a liberal and not a strict construction. It is plainly the intention and policy of the statute that all creditors who avail themselves of the right given to participate in the proceeds of the property attached byrecovering judgment in conformity with the requirements of the statute shall be placed upon an equality, and that the proceeds of the property attached shall be distributed among them equally and impartially in proportion to the amounts of their respective debts.

There was but one indebtedness due from James B. Butters to appellant, and that was merged in the judgment of $5,420, and the order of distribution made by the court directed that such judgment should receive its fro rata share of the residue of the fund left after paying off the execution which was a prior lien upon the fund. The judgment of $5,077.77 against William Butters and James B. Butters was a mere collateral security for the judgment against James B. Butters alone. The security it afforded consisted in the liability it imposed upon William Butters for the payment of the debt of James B. Butters. In respect to James B. Butters it was but a second judgment for the same debt. It would be a plain evasion of the intendment of the statute and a fraud and wrong upon the rights of other creditors, if one creditor should be allowed to recover separate judgments against the common debtor, upon divers evidences held for one and the same debt, and 'then be permitted .to receive a fro rata dividend upon each of such judgments. Such an interpretation of the statute would be a prolific source of fraud and injustice, and would render inoperative the legislative intention. We think the order of the court in-the premises was right. We find no error in the record, and the judgment will be affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Baker, J.

license: Public Domain

text:
    The City of Elgin v. Smith Hoag.

      Municipal Corporations—Damages for Flooding Plaintiff's Premises— Instructions—Evident-—Neto Trial.

    In an action against, a municipal corporation to recover damages for flood-ding the plaintiff’s house and premises, it is held: That an instruction need not contain an hypothesis which is not raised by the evidence; that an instruction asked by the defendant, touching the contamination of the water, was properly refused; that the verdict for the nlaintiff is supported by the evidence; and that the newly discovered evidence, being merely cumulative, is not sufficient ground for a new trial.
    [Opinion filed January 7, 1888.]
    Appeal from the Circuit Court of Kane County; the Hon. Isaac G. Wilson, Judge, presiding.
    Messrs. F. W. Joslyn, City Attorney, and R. M. Ireland, for appellant.
    Messrs. Botsford & Wayne, for appellee.
   Baker, J.

This is an appeal by the City of Elgin from a judgment of the Circuit Court of Kane County for §300 damages, rendered in an action on the case prosecuted against it by Smith Hoag, for flooding and injuring his house and premises, by collecting large quantities of unusual and unnatural surface water and conducting it by means of ditches and sewer into his premises, thereby undermining the foundations of his building and otherwise injuring the premises.

There are four grounds upon which a reversal is claimed. The first instruction for the plaintiff below is as follows:

“If the jury believe from the evidence that after the plaintiff’s purchase of the lot in question he constructed a water-shoot or box over his premises, which was of sufficient capacity to protect his building and premises from being flooded and damaged by water, which flowed through the sewer which terminated at the west line of his lot, but that subsequently to such purchase and construction of such water-shoot or box, the defendant, in improving or changing the grade of its streets, altered and diverted the usual and natural watercourses thereon and over them, so that thereby increased and unnatural quantities of surface water, not accustomed to flow upon the plaintiff’s premises, was flown over and upon the same, and which damaged his building and premises, then he is entitled to recover in this action damages, if any, the proof shows he sustained in consequence of such increased and unnatural flow.”

It is objected to this instruction that, although the water-shoot or box when first constructed may have been amply sufficient to protect the building and premises, yet it may well have rotted or been taken away during the nearly ten years that have elapsed since it was placed there. Suffice it to say that if, as matter of fact, it had been removed or was rotted, then appellant should have introduced testimony to establish such fact. The instruction was based upon the evidence that was before the jury, and was not erroneous.

It is also complained that the court refused one of the instructions asked by appellant. That instruction was as follows:

“The City of Elgin is not liable in this action for any unfavorable effect upon the quality of water in the creek, of which testimony has been given in this case, occasioned by reason of any privies or barns being placed on or near said creek, or by reason of any waste being discharged into the same from the packing factory, unless the jury believe from the evidence, that such privies or barns were so placed, or such water discharged, under the direction of said city, or its officers having charge of such matters, or with its express ratification and consent.”

The second count of the declaration alleges that the defendant concentrated, directed and augmented the flow of the surface water into unusual and unnatural channels, and conducted the same into and upon the premises of the plaintiff, such surface water then and there being rendered foul, noxious and loathsome by carrying the drainage from numerous privies, cesspools, pig styes and barnyards along and in its courses, so that the same was spread out over and upon the said premises of plaintiff. Plainly the city would not have been liable for any ill effects produced by the contamination of the waters of the original and natural brook by third parties, without such contamination was by its direction, or with its consent, or had been notified of it. But the evidence tends to prove that plaintiff constructed a closed box sewer through his lot, sufficient in capacity for the ordinary and usual water of the natural stream and for all natural drainage purposes, and that "but for the increased and unaccustomed water conducted to it by the city through the sewer across State Street, such box sewer, which extended from the mouth of the city sewer at State Street, would have carried the water over plaintiff’s lot without harm to his building and premises, and without spreading out upon his lot and in the basement of his building, and rendering them foul, unwholesome and offensive. If the. additional water caused the bursting and overflow of the water box, and thereby the basement and lot were flooded, and covered with the filth and slush contained in the mixture composed of both the ordinary and the unusual water, then the foul, noxious and unwholesome character of such compound was a proper element, under the declaration, to be»considered by the jury.

It may be that the instruction in question would have been good enough law under the circumstances of many cases, but in this case it would virtually have excluded from the jury a matter proper for their consideration. There was no error in refusing it.

We are asked to reverse the judgment on the ground the verdict was against the weight of the evidence. There were many witnesses examined at the trial, and the evidence was conflicting.

To quite an extent the matters at issue called for the opinions and judgments of the witnesses, and there was very considerable diversity therein. It would be useless to discuss the particular facts of the case. We have examined the testimony and are unable to hold that it would justify us in setting aside a verdict of a jury which has passed the scrutiny of a circuit judge and been approved.

The newly discovered evidence stated in the affidavits filed with the motion for a new trial was merely cumulative, and the trial judge properly refused to give a new trial on that ground.

We find no error in the record, and the judgment must be affirmed.

Judgment affirmed.


text:
    C. Aultman & Company v. Franklin Connor.

      Negotiable Instruments—Action on Note—Accord and Satisfaction— Plea of NulTiel Corporation—-Presumption of Payment—Instructions.

    1. In an action brought by a corporation on a promissory note, it is held: That the issue of an accord and satisfaction, which is the real and substantial matter in controversy, was not fairly presented to the jury; that the defense made on the plea of rml tiel corporation probably misled the jury; and that certain of the instructions .were misleading.
    2. The presumption of payment of a promissory note does not arise upon a failure to make a demand at maturity, or within any period of time thereafter less than that fixed by the Statute of Limitations.
    3. An instruction which singles out certain circumstances in evidence and ignores others, is improper.
    4. Words or terms from a foreign language should not be used in an instruction without fully explaining their meaning, unless such words are in common use among the people.
    [Opinion filed January 7, 1888.]
    Appeal from the County Court of Peoria County; the Hon. Lawrence W. James, Judge, presiding.
    Messrs. Cratty Brothers and Fuller & Gallup, for appellants.
    Messrs. Muckle & Whiting, for appellee.
   Baker, J.

This suit was by C. Aultman & Company, claiming to be a corporation under the laws of the State of Ohio, against Franklin Connor, upon a promissory note for §139, dated November 9, 1875, and due on or before the first day of January, 1877; said note having been executed by said Connor and one Henry Yanarsdall, jointly. The pleas interposed were non asswm/psii, nut tiel corporation, payment, and accord and satisfaction. The verdict and judgment were for Connor, defendant below and appellee 'here.

To say the very least, it is extremely doubtful if the evidence at the trial would have justified the jury in finding there had been an accord and satisfaction of the note, and would sufficiently have sustained a verdict for appellee upon that ground.

It is plain, however, from the record, that the issue of accord and satisfaction, which is the real and substantial matter in controversy in this suit, was not fairly presented to the jury. In view of the instructions given on the trial, appellee virtually admits this, and concedes the assignment of error that the court below erred in refusing a new trial, when he says, in his brief: “We think a corporate existence de facto of C. Aultman & Company clearly established, and if this were the only question to be determined by the jury, they would have found no difficulty in finding, under the evidence and instructions of the court, the corporate existence of appellant.” After thus yielding the point of the corporate existence of C. Aultman & Company he claims the conclusion of the jury was based upon the plea of- accord and satisfaction, and argues at considerable length the testimony tending to sustain such plea,and urges that, as the questions were all questions of fact, this court would not reverse the verdict of the jury, there being a conflict of evidence, even though it might be against the weight of the evidence, without it is apparent that the jury have been actuated by passions or prejudice.” It seems from the record that appellee at the trial made his principal defense under the plea of nul tiel corporation, and that it is most probable, in view of the evidence and the instructions of the court, that the verdict of the jury was predicated upon that plea. Six out of the nine instructions given at the request of appellee had reference only to the issue formed upon the plea denying the corporate existence of the plaintiff. It would be unjust that appellee should gain his case before the jury upon one issue, and then be allowed to gain his case here, upon the ground the jury had found a wholly different issue in his favor.

The 5th, 6th, 7th, 8th and 9th instructions for appellee were objectionable and were well calculated to, and probable did. mystify and mislead the jury, on account of the frequent repetition of, and changes rung upon the expressions “ corporation de jure” and “corporation de facto” In this State legal proceedings are required to be in the English language, and in the administration of justice it is, perhaps, of as much importance that this requirement should be observed in the instructions of the court to the jury, as in any other part of the procedure of the courts. There is no presumption of either law or fact that jurors are either versed in the Lai in language, or are acquainted with the meaning of.the law terms or maxims of the law that are derived from and expressed in a foreign language, no matter how familiar such terms and maxims may be to members of the bar who have made the science of the law a special study. In saying this we disclaim any intention of holding, or even intimating, that the mere use of a Latin word or law term in an instruction will render it erroneous. But such words or terms, unless they are in general use among common people, should not be so used without fully explaining their signification to the jury, and especially should this be done when the manner in which such words or terms are used, and the prominence given them, makes them the very gist of the instructions. Instructions should not be unintelligible to the jury, or obscure, or difficult of being understood by them. Moshier v. Kitchell, 87 Ill. 18.

The 5tli instruction was erroneous on the further ground that it singled out certain circumstances of proof, at the same time wholly ignoring other circumstances in evidence, and among these latter the very salient fact that the laws of the State of Ohio authorized the formation of corporations, such as 0. Aultman & Company claimed to be, and then told the jury that “such facts alone would not make them a corporation either de jure or de facto.” This mode of instructing juries has time and again been held to be improper.

The 3d instruction for appellee told the jury that if they believed from the evidence that from the time when it is claimed the note was paid until about the commencement of the suit the plaintiff made no demands on the makers of the note for payment and took no steps to collect the same, then such facts were proper for consideration in determining whether the note was paid. This was clearly erroneous. In the first place there is no presumption of payment arising out of the more fact the payee of a note does not sue or demand payment at maturity, or within any period of time thereafter less than that fixed by the Statute of Limitations as a bar. Such presumption only arises when the bar of the statute can be interposed. In the second place, undue prominence was given by the instruction to a slight and wholly inconclusive circumstance.

For the errors indicated herein the judgment is reversed and the cause remanded.

Reversed 'and remanded.


author: Lacey, J.

text:
    The People of the State of Illinois, for use, etc., v. Edward R. Allen, Survivor, etc.

      Administration—Action of Debt on Administrator's Bond—Accounts— Alloicancc to Administrator—Instructions—-Error, without Prejudice.

    In an action of debt on an administrator’s bond, charging a devastavit of a portion of the estate, it is held: That there is no warrant of law for allowing an administrator, as compensation for his services, a sum exceeding six per cent, on the amount of the personal estate; that certain of the instructions were erroneous; and that the recovery of a certain judgment against the estate had taken that amount out of the administration.
    [Opinion filed January 7, 1888.]
    Appeal from the City Court of Aurora; the Hon. Charles Kellum, Judge, presiding.
    Mr. Samuel Alschuler, for appellant.
    Mr. Charles Wheaton, for appellee.
   Lacey, J.

This was an action of debt commenced by the appellant against the appellee, security on the administrator’s bond of Otto Groch, deceased, administrator of the estate of Bobert Groch, deceased, dated August 15,1871. The declarations shows that Otto Groch continued to act as administrator till May 26, 1873, when the said administrator died, he being a non-resident of the State of Illinois.

It is sought by the declaration and proof to charge the said administrator with a devastavit of a portion of the estate, to the injury of Michael Stenger for whose use the suit is brought, he being a decretal creditor of the estate by decree in the City Court of Aurora, Kane County, Illinois, in the sum of 89,000 (reduced by credits to $1,500) and costs, which, on the 4th March, 1875, wras filed in the office of the Kane County Court, as of seventh class claims, to be paid in due course of administration, and to hold the appellee, his surety, responsible for the loss.

It appears that appellee on the death of the said Otto Groch was duly appointed administrator d,e ho?iis non of the said estate of Bobert Groch, deceased, and was made a party to the suit of foreclosure of said Stenger in the said Court of Common Pleas, in said City Court above alluded to. There was a plea of the general issue and an agreement that all defenses might be introduced in evidence thereunder. There was a trial by jury and verdict for the appellee and judgment on the verdict and this appeal is taken seeking to reverse such judgment. This case was in this court before, reported in 8 Ill. App. 17. The case has also been to the Supreme Court, 86 Ill. 166.

It will probably make the points really in issue in this case plainer and more easily understood to refer to the state of the accounts.

First, the appellant seeks to charge the administrator, Otto Groch, as follows: Sale bill of personal property of the estate $1,730.07; accounts collected for brick and lime belonging to the estate of Bobert Groch a total sum of $888.42, making .a total of $2,618.49. To off set this account the appellee claims credit for $500 collected by .Stenger in suit for money wrongfully received for brick on which the latter had. a mortgage lien; balance of money received by appellee as administrator de lonis non §1,039.85; by money paid out by Otto Groch himselfj $530; by money paid by Otto Groch per appellee, 8355.75; by services as administrator, §125, making a total of §2,550.60; thus leaving a small balance in appellant’s favor of 867.69.

But the administrator disputes certain of the appellee’s items of set off. First, claims that the item said to have been paid by Otto Groch by the hands of appellee, §355.75, is too large by §210; challenges also about §79.10 of the items paid out by Otto Groch for traveling expenses and to certain persons—Cassidy, O’Connor and Clems. If these items of the appellee’s account were stricken out, then the balance apparently recoverable would be §356.79. This is liable to reduction, and it is strenuously contended for by appellee in the account said to have been collected by Otto from Tarble and Gillett on brick account of $125.70, appellee insisting that the Tarble and Gillett accounts were for the same thing, and that only $50 was paid by Tarble.

If the jury should so find, then the claim of plaintiff would be reduced §75.70, and, if the §79.10 should not be deducted, to $201.94, and if the appellee should, by receipts or evidence, show that the $210 claimed to have been by Otto of the money received back from the appellee, then there would remain nothing due. But these questions should be passed on by the jury without being wrongly directed as to other matters which were liable to defeat the apipellant’s cause of action, even if he succeeded on the disputed claims above set forth. What were these? The first was the claim that the administrator, Otto Groch, was entitled to the sum of $300 or $400 for a reasonable compensation for time and labor honestly and necessarily devoted to the business of settling up the estate, in addition to all his other reasonable and proper charges in so doing, and so the court instructed the jury on the part of appellee, if the jury believe, from the evidence in this case, that the charge of §300 or $400 was reasonable. Thus the 9th instruction was erroneous and contrary to the provisions of the statute. Gross Statute 1872, Chap. 109, Sec. 74.

There is no warrant of law for allowing an administrator as compensation for his services a sum exceeding six per cent, on the amount of the personal estate. So held in Askew v. Hudgens, 99 Ill. 468; Hough v. Harvey, 71 Ill. 72. It is not seriously contended by counsel for appellee that the instruction was correct, but it is insisted that it could do no harm, as the appellee must have succeeded at all events. We are not convinced that he would, had it not been for this and other erro, neons instructions.

The second claim set up by the appellee was, that the entire account sought to be charged against Otto for brick should be deducted from the debtor side of'the account, notwithstanding Stenger only recovered a judgment against appellee as administrator de bonis non of the estate for $500, though the entire account might exceed that sum; and also it is insisted that some of the items proved showed that the amount received on them was for brick and lime, without distinguishing how much was for the one and how much was for the olher; tiie entire item should be rejected.

The court below instructed the jury to the same effect.

These instructions were 4, 5, 10 and 15 given for appellee and were erroneous. The Supreme Court fully settled that question in this case, 86 Ill. 166. The court below should have obeyed the opinion of the Supreme Court as there expressed.

There it was decided that the issues in the case of Stenger against Allen in which $500 was recovered for brick converted, on which he had a lien, were not the same as in this case, neither were the parties. There seems to be great confusion about the effect that judgment should have on the issues in this case.

It appears that Michael Stenger, during the life of Robert Groch, and at his death, held a chattel mortgage on the brick, the accounts for which were collected by Otto Groch, administrator. That the mortgagor claimed the money arising from the sale of the brick belonging to him, or at least that he had a lien on it ahead of all creditors of Robert’s estate. He instituted suit and recovered judgment against the appellee, the then administrator, for $500. Allen, the appellee, afterward paid it. This recovery had the effect to take that much out of the administration of the estate, as though it had never been in the administration.

Though the administrator still held the money for the payment of Stenger’s judgment he did it in the capacity of trustee for him and not as administrator. Hence this §500 should be deducted from the account of Otto. He should not be charged with it, neither should appellee be credited with it in his account as money received by him from the former administrator and not wasted as money of the estate. It should be laid out of the reckoning as to both sides. It was in no legal sense money of the estate for any purpose, other than to pay it to Stenger. Stenger being bound by the amount of the judgment could never claim any more on account of his mortgage on the brick. If, fortunately, the administrator received any more money on the accounts for brick sold than §500, the amount recovered, who would that money belong to—the administrator in person or to him as administrator ? Clearly to the estate. The parties who paid in the money are mot claiming it, nor could they; for they got value received for it. Why, then, should it be so blended with the accoiint for lime as to have the effect to relieve the administrator from accounting for money received by him upon which Stenger never had any claim?

Whatever Stenger did not take out of the hands of the administrator by means of the suit, would and ought to remain there and be used for the benefit of the estate. The Stenger .judgment only estops the administrator from disputing the validity of the judgment, and the question as to whether the appellants could dispute its validity in this case does not arise, as they are not seeking to do so. It is only a shield in favor of appellee to the amount recovered, and nothing more. These instructions compelled the jury to wrongfully reject about $169 of the account received by the administrator for brick and lime from the charges against him where the amount of each could not be distinguished.

It appears from the evidence that the appellee, at the time he signed Otto Groch’s bond, required all the estate money to be deposited in a bank to his credit, as a condition of going on the bond. And it is agreed by counsel that §1,895.60 was so deposited. This amount is entitled to the following credits, for the purpose only of showing how much went into the hands of the administrator de bonis non, and as a consequence not devastated by Otto, to wit:

First, the §500' Stenger judgment; second, $355.75, paid out to and for the benefit of Otto and the order of Brown, his attorney.

That leaves $1,039.85 in the hands of appellee, of which there is no controversy.

But this would leave Otto to account for, in some wav', the sum of $210, that was paid directly back to him by appellee, the custodian, the same as he should do for any moneys never paid into the hands of the custodian or other payments by him for which credits are claimed. The paying over to the custodian and receiving it back could make no difference.

. We can not see the object the appellant could have in introducing in evidence the reports of the administrator de bonis non, showing that he charged himself with $1,136 from the former administrator, as that would increase the amount not devastated nearly $100 to their disadvantage. If with the view of deducting the §500 judgment from that amount, it would not be permissible under the evidence, for evidently that had already been taken out. As the ruling out the offered evidence did not injure, but benefited appellants, it can not be assigned for error, even if otherwise competent. The brick money represented in the judgment never belonged to the-estate and it is not to be presumed that the administrator would charge himself with it.

As to the question of the sufficiency of the evidence on the issues indicated we will simply say that it is a question for the court below and the jury.

Judgment reversed and cause remanded.

Reversed and remanded


author: Mr. Justice Jett

text:
    Phenix Banking Company, Defendant in Error, v. Hannah M. Owens, Impleaded, Plaintiff in Error.
    Gen. No. 7,810.

      Opinion filed August 8, 1928.
    John A. Brown, for plaintiff in error.
    Brian & McManus and Harry C. Heyl, for defendant in error.
   Mr. Justice Jett

delivered the opinion of the court.

Phenix Banking Company, a corporation, defendant in error, on October 22, 1925, filed a bill in the circuit court of Stark county to foreclose a mortgage against Hannah M. Owens, plaintiff in error, and others, in which said bill it is charged, among other things, that on February 2,1921, Charles P. Owens, John T. Owens, Daniel J. Owens, Arthur P. Owens and Hannah M. Owens, all of Stark county, Illinois, being indebted to Northwestern Mutual Life Insurance Company in the sum of $40,000, executed their promissory note, making the same payable to Northwestern Mutual Life Insurance Company, at Milwaukee, Wisconsin, and delivered said note to said payee, promising to pay to its order the sum of $40,000, with interest at 6% per cent per annum, payable semiannually, said note being accepted by said company as evidence of the indebtedness alleged; that to secure the payment of principal and interest the said Charles P. Owens and Mary C. Owens, his wife, John T. Owens and Ella A, Owens, his wife, Daniel J. Owens and Maria L. Owens, his wife, and Arthur P. Owens and Hannah M„ Owens, unmarried, by their mortgage deed, dated February 2, 1921, conveyed to said Life Insurance Company, a corporation organized and existing under the laws of Wisconsin, and having its principal place of business at Milwaukee, Wisconsin, in fee simple the following described real estate, together with the appurtenances thereto belonging, to wit, the west half of the southwest quarter of section No. twenty-three (23); -the southeast quarter of section No. twenty-four (24); the northeast quarter of section No. twenty-five (25), and the northwest quarter of the northwest quarter of section twenty-six (26), all in township No. fourteen (14) north of range No. seven (7) east of the 4th P. M., in the county of Stark, Illinois. Also the following real estate situated in Bureau county, Illinois, to wit, the north twenty-seven acres of the southwest quarter of section No. thirty, township fourteen (14) north of range eight, east of the 4th P. M.

Hannah M. Owens, plaintiff in error, and all other defendants that executed the said note and mortgage, were served with summons, and she, together with other defendants in said bill, was defaulted, and the cause was referred to the master in chancery to take and report the testimony and conclusions. The evidence was taken and reported by the master and a decree of foreclosure was entered of said mortgage, finding the amount due, and ordering a master’s certificate to issue to complainant regarding same, and, in default of redemption, that premises be sold and funds to be disbursed as provided by the decree, the master to issue deed to purchaser and providing for deficiency decree.

Thereafter, on January 19, 1926, and at the same term of court to which the suit was brought, on motion of Phenix Banking Company, defendant in error, the court vacated said decree, set aside the master’s report, canceled the certificate issued by the master, and gave leave to amend the bill of complaint; the bill being amended, the court entered an order that the defendants thereto, as amended, answer the same instanter. Plaintiff in error and others failing to answer said bill as amended were defaulted, and it was on the bill as amended that the decree of the court foreclosing said mortgage was finally entered, and it is from this decree that plaintiff in error prosecutes this writ of error.

It is the. contention of the plaintiff in error that the court erred in setting aside the decree as entered on October 30, 1925, and in permitting the defendant in error to amend its bill and in ruling plaintiff in error to answer the same as amended instanter, without notice having been given of such proceedings.

The record discloses that this suit was instituted in Stark county, at its. October term, 1925; that the plaintiff in error and other defendants in said suit were served with summons to appear at said term. The motion to vacate the decree, set aside the master’s report and cancel the certificate issued by the master and for leave to amend the bill of complaint was made and allowed at the same term of court to which the suit had b'een brought.

A party in court by service of summons is bound to take notice of all steps taken in the case, and is entitled to no further notice or service under the practice in this State. Ruppe v. Glos, 251 Ill. 80. A defendant against whom a pro confesso order is entered is bound to know that the bill may be thereafter amended upon leave granted and that he may be ruled to answer the amended bill without special notice to him, and if the amendment is made and a ruling is entered, he may be defaulted a second time upon failure to answer. Niehoff v. People, 171 Ill. 243; Ruppe v. Glos, 251 Ill. 80. While it was not necessary to give notice of the setting aside of the decree, when it is had at the same term of court, however the court in the order which it entered, setting aside the decree, and granting leave to amend the bill, recites: “It appearing to the court that due and proper notice has been given to all parties in interest of the hearing of said motion.”

It is further insisted by the plaintiff in error that the court, before allowing the amendment to the bill, should have set aside the former default. The general practice is, before an amendment is allowed, for the court to set aside and vacate any default theretofore entered, yet the allowing of the' bill to be amended in effect operates as the setting aside and vacating of the default. South Chicago Brewing Co. v. Taylor, 205 Ill. 132; Lyndon v. Lyndon, 69 Ill. 43.

Plaintiff in error further contends that the court should not have ruled that she and her codefendants answer said amended bill instanter. Under the rule heretofore announced, the court did not commit any error in so ruling. The action of the court in permitting the master in chancery, with other members of the bar to testify as to what would be a usual, reasonable and customary fee to be taxed in favor of solicitors for defendant in error, is complained of by the plaintiff in .error. The record discloses that the hearing on the question of solicitors’ fees was before the court and not before the master in chancery. While it may not have been good practice for the master to testify under such circumstances, still so far as this record discloses, no prejudicial error resulted therefrom. There is nothing to disclose that the fee allowed the solicitors for the defendant in error is excessive.

It is then contended by the plaintiff in error that a person procuring a decree must preserve the evidence to support it. It has long been the practice that either the evidence should be preserved, or facts necessary to support the decree must be found therein. This point is not well taken, in as much as it is not insisted that sufficient facts were not found in the decree upon which to base the same.

Moreover, it may well be observed in passing that the plaintiff in error has not made it appear that she has been prejudiced'in any way by the vacating of the first decree and the granting of leave to amend the bill, and the entering of the second decree.

It is insisted by the defendant in error that instead of being prejudiced by the amendment to the original bill, and the entry of the second decree, the plaintiff in error was thereby benefited.

We have examined the record and we are clearly of the opinion that the plaintiff in error was not in any manner prejudiced by the action of the court in vacating the former decree and permitting the bill to be amended, and by taking the subsequent steps in the cause that necessarily followed.

In our judgment there is no reversible error to be found in this record, and for that reason the decree of the circuit court of Stark county will be affirmed, which is accordingly done.

Decree affirmed.


author: Mr. Presiding Justice Jones

text:
    Charles Benton, Appellant, v. Kaneville Community High School District No. 147 et al., Appellees.
    Gen. No. 7,867.

      Opinion filed August 15, 1928.
    E. L. Lyon, for appellant; D. W. Cookfield, of counsel.
    Worcester & Lord, for appellees.
   Mr. Presiding Justice Jones

delivered the opinion of the court.

Appellant, a resident taxpayer in appellee community high school district, filed his bill against appellees, praying for an injunction restraining the board of directors and the treasurer of said district from paying out the funds of the district for the construction of a high school upon certain premises known as the “Hayes site,” and from issuing bonds or levying taxes to raise money therefor.

Appellant contends that another site known as the “Baptist Church site” had already been selected at an election duly called and held on August 4, 1925; that without determining that additional facilities for school purposes or an additional school site was needed, and without an election to abandon the “Baptist Church site,” the school board unlawfully called and held another election on February 20, 1926, at which the “Hayes site” was declared to have been selected.

The bill alleges that a petition was duly filed with the school board more than 10 days prior to August 4, 1925, praying an election to locate a schoolhouse site ; that the requisite petition was filed to place the “Baptist Church site” on the ballot'; that the election was duly called and notice thereof posted 10 days prior to the date of the election, and that such election resulted in the selection of the “Baptist Church site.” The allegations of the bill are in apt language and embrace in detail the statutory requirements for the holding of a valid election.

The bill further sets out the proceedings taken by the school board relative to the subsequent election of February 20, 1926, and the condemnation of the “Hayes site.” It alleges that notices of that election were not posted 10 days prior thereto and charges other irregularities and defects.

The answer of appellees denies the allegations of the bill as to the alleged election of August 4, 1925, and alleges that it was not held in compliance with the statute and was wholly irregular and illegal. It denies that the election on February 20, 1926, was unlawfully called or that there was any irregularity in the proceedings or the election, but alleges that it was legal and valid in all respects. It sets out the condemnation proceeding for the “Hayes site” and alleges that in that proceeding the validity of the election of February 20,1926, was raised and the election held valid; that the holding of the court in that case is res .adjudicaba of the questions here involved; that appellant is guilty of laches in delaying to institute his suit until bonds had been issued, taxes levied, contracts let for the construction of the schoolhouse, and actual work begun upon it, and that he is estopped to maintain this suit. After a hearing, a decree was entered dismissing the bill for want of equity.

At a meeting of the school board held on February 10, 1926, a resolution was adopted calling the election of February 20, 1926. In the preamble of the resolution it is recited among other things that the board had determined that the “Baptist Church site” is unsuitable. Appellant claims that the school board thereby recognized the legality of the election held on August 4, 1925, and is now estopped to deny its validity. If the election held on that date was illegal, the school board could not validate it by any subsequent act tending to show that the board recognized the election as valid; nor were they estopped by their action to deny its validity. The powers and duties of municipal corporations, such as cities, are of two kinds: First, public or governmental, and second, private or proprietary. But school districts are charged with duties purely governmental in character and are the agencies of the State existing for the sole purpose of performing duties in connection with the maintenance of an efficient system of free schools, and differ from cities and other municipal corporations which have power to function in certain private capacities. (Lincke v. Moline Board of Education, 245 Ill. App. 459.) The doctrine of estoppel does not apply to the exercise of governmental functions. (Otis El. Co. v. City of Chicago, 263 Ill. 419; People v. Brown, 67 Ill. 435; Washingtonian Home of Chicago v. City of Chicago, 157 Ill. 414.) Estoppel does not apply to a matter in the nature of a public right. (People ex rel. Slusser v. Gary, 196 Ill. 310.)

The record of the school board in reference to the election of August 4, 1925, showed the following entries: June 30th, “Motion made and carried that we ask a vote for $18,000,- for the purpose of buying or remodeling for high school purposes, the Baptist Church property and building on the grade school building.” July 13th, “Motion made and carried that we ask a vote of $20,000.” August 4th, “Special election held Aug. 4th.” These were the only record entries introduced in evidence which pertain to that election. Appellant undertook to show by oral testimony that the statutory proceedings necessary to a valid election had been complied with. The testimony tends to show that the ballots and other records of the election were lost.

Several witnesses testified that previous to August 4, 1925, petitions were circulated for the calling of an election to select a school site. Their testimony was vague and uncertain. It does not affirmatively appear that the petitions were signed by one-fifth of the legal voters of the school district, or that the petitions were ever filed with the school board. It was not shown that the notices of the election were posted 10 days prior thereto, and there was no competent evidence as to the result of the election. Two witnesses testified that the propositions to select the “Baptist Church site” and to issue $20,000 of bonds carried at the election, but their testimony was clearly hearsay.

One of the members of the school board testified that he posted the notices of the election. One of them was posted on July 25th, seven of them on the 26th, and the remainder on July 27th. It thus appears that only one of the' notices was posted 10 days prior to the election. His testimony is undisputed. It further appears from the testimony of this witness that the petition to place the “Baptist Church site” on the ballot was not filed with the clerk of the school board until about the 27th or 28th of July. Section 127 of the Schools Act, Cahill’s St. ch. 122, If 137, provides that such a petition shall be filed with the clerk of the board at least 10 days prior to the election.

It is contended by appellant that the testimony of this witness was incompetent, arid it is insisted that it was inadmissible because it tended to contradict the written record made by the school board. Appellant attempted to establish the validity of the election of August 4, 1925, by evidence dehors the record of the school board, and claims the right to do so because the record is silent, but insists that the same kind of evidence on behalf of appellees is incompetent. His position is inconsistent. If, because the record is silent, oral testimony was competent on his part to show that the necessary steps had been taken for a valid election, it would seem to follow that oral testimony was competent to show that such steps had not been taken. It is, however, immaterial in this case whether the testimony on behalf of appellees was or was not competent. It was incumbent upon appellant to establish the allegations of his bill by a preponderance of the evidence. This he failed to do. Even if it be conceded that the testimony on his behalf was competent, and the testimony on behalf of appellees was incompetent, upon which questions we express no opinion, the testimony on behalf of appellant was not sufficient to sustain the allegations of his bill. Under the law we must presume that the chancellor disregarded any incompetent evidence and based his findings and the decree upon the failure of appellant to establish his case.

A valid petition signed by one-fifth of the legal voters of the district was a condition precedent to the calling of the election, and the posting of notices in the manner required by law was a condition precedent to the holding of the election. The giving of notice for the length of time and in the manner required by the statute is a condition precedent essential to the election. (People v. Hartquist, 311 Ill. 127.) The requirement of notice is mandatory and jurisdictional, and unless complied with, the election is a nullity. (Roberts v. Eyman, 304 Ill. 413.) It is necessary to prove the jurisdictional facts. They cannot be assumed. (Chicago, C., C. & St. L. Ry. Co. v. Randle, 183 Ill. 364.) That jurisdictional prerequisites were complied with is not established by the presumption frequently indulged that public officers perform their duties. (Chicago & N. W. Ry. Co. v. People ex rel. Vickers, 193 Ill. 539.) Under the most favorable construction that can be given the testimony on behalf of appellant, it failed to establish compliance with the jurisdictional requirements relative to the petition and notice of the election of August 4, 1925.

The record of the school board pertaining to the election held on February 20,1926, shows a compliance with the statutory requirements for holding a valid election. It is of no moment that the petition for the holding of this election asked that the site theretofore selected be abandoned. Neither is it of any consequence that the board in its resolution determined such site was unsuitable. The petition called for the holding of an election to locate a schoolhouse site, to authorize its purchase and the building of a schoolhouse. Proper notice of the election and all the other steps necessary for a valid election are shown by the record. Appellant having failed to sustain the allegations of Ms bill, the chancellor rightly dismissed the same for want of equity, and the decree is affirmed.

Decree affirmed.


text:
    The People of the State of Illinois ex rel. H. M. Roy, County Superintendent of Highways of Knox County, Illinois, Appellant, v. Board of Supervisors of Knox County, Illinois, and Knox County, Illinois, Appellees.
    Gen. No. 7,872.
    Opinion filed August 28, 1928.
    R. D. Robinson, for appellant.
    R. C. Rice and Hardy & Hardy, for appellees.
   Mr. Presiding Justice Jones

delivered the opinion of the court.

This is a mandamus proceeding instituted by the People on relation of H. M. Boy against the Board of Supervisors of Knox County, seeking to compel said board to restore the said Boy to the office of county superintendent of highways.

Boy was duly appointed to that office on June 9,1924, and entered upon the discharge of his duties. On December 15, 1926, the county board passed the following resolution: “Whereas there is a general feeling and complaint through the county concerning the County Superintendent of Highways, and whereas we believe it is for the best interests of Knox County that a change be made in the Highway Department. Therefore be it resolved that the Board of Supervisors request that H. M. Boy, Superintendent of Highways, tender his resignation.”

At a meeting of the county board held on December 28, 1926, Boy refused to resign and made a statement and report to the board. After some discussion, the following motion was passed by a vote of 22 to 3, to wit: “That H. M. Boy, County Superintendent of Highways be hereby discharged for incompetency and failure to perform the duties of said office, and that said office is hereby declared vacant.” A further motion was passed that the county clerk be directed to give Boy and the State highway department notice of the action of the board.

At a later meeting of the board, a resolution was adopted, directing the sheriff to demand of Boy possession of the office occupied by him and also possession of an automobile belonging to the county. The next day Boy surrendered to the sheriff the highway maintenance station, the said automobile, and the keys to the office.

Boy afterwards filed his petition for a writ of mandamus, as aforesaid. A demurrer was interposed to the petition and overruled. A joint answer was then filed and issue joined. By an agreement of parties, a jury was waived and the cause was heard by the court. The evidence offered on behalf of Boy consisted of the records of the county board. The board offered no evidence. At the close of the evidence for relator, appellees moved the court to find in their favor and to dismiss the suit at relator’s costs. The court sustained the motion and entered judgment accordingly and this appeal is from that order.

The question presented here is whether or not the county board had the right to discharge the relator in the manner in which it did, without preferring specific charges and without giving the relator an opportunity to be heard upon the charges.

The Boad and Bridge Act (Cahill’s St. 1927, ch. 121, ¶ 8, subd. c) provides that any county superintendent of highways may be removed from office in the manner provided by law, either by the county board of his county or by the department of public works and buildings for incompeteney, neglect of duty or malfeasance in office. The statute is silent as to the mode of the exercise of this power, except that it provides that the incumbent may be removed in the manner provided by law. The power of removal there given requires no formal charge, no notice to the incumbent, no form of procedure or trial, and is not subject to review. (Hertel v. Boismenue, 229 Ill. 474.) The statute has made none of these formalities necessary, neither does the common law require them. (People ex rel. Stevenson v. Higgins, 15 Ill. 110; People v. Mays, 117 Ill. 257.)

The grant of power to remove an officer for a certain cause implies authority to judge of the existence of that cause (Donahue v. County of Will, 100 Ill. 94; People ex rel. Stevenson v. Higgins, supra; Wilcox v. People ex rel. Lipe, 90 Ill. 186; Hertel v. Boismenue, supra.) In such a case courts will inquire only whether the board acted within the power given by the statute and will not attempt to substitute their own judgment and discretion for that of the board. (Wilcox v. People ex rel. Lipe, supra.)

Objection is made that the action of the county board was based upon a motion instead of a resolution. The motion was acted upon and carried by roll call and expressed the will of the board as effectively as a resolution could have done. The objection is not well taken.

We are of the opinion that the county board acted within the powers conferred by the statute and the judgment of the trial court is affirmed.

Judgment affirmed.


text:
    W. W. Thayer, Plaintiff in Error, v. Adam H. Bolender, Defendant in Error.
    Gen. No. 7,876.

      Opinion filed August 28, 1928.
    Roy F. Hall and J. E. Guembel, for plaintiff in error.
    William L. Pierce, for defendant in error.
   Mr. Presiding Justice Jones

delivered the opinion of the court.

This is a suit instituted by W. W. Thayer against Adam H. Bolender to recover upon six promissory notes executed by Bolender and payable to Thayer. .On the trial the notes were numbered as plaintiff’s exhibits 1 to 6 inclusive, and are referred to by their exhibit numbers in this opinion. Four indorsements of credits appear on the back of each note and all of them are admitted to be in the handwriting of the plaintiff.

The defendant pleaded the general issue and the statute of limitations. With his pleas he filed an affidavit of defense and a notice of special defenses under the general issue. The court refused to admit exhibits 3, 4 and 6 and excluded all evidence relating to them." It admitted in evidence exhibits 1, 2, and 5, but at the conclusion of all the evidence, the court excluded the evidence relating to the said admitted exhibits 1, 2 and 5 and instructed the jury to find the issues for the defendant. Judgment was entered on the directed verdict.

The defendant executed the notes on their respective dates for money he owed the plaintiff. He testified that he afterwards renewed them; that on April 21, 1914, he and plaintiff had an accounting in which the renewal notes were fully settled and that he never made a payment on them thereafter. He introduced in evidence a receipt of that date for $83.47, which recites that it is in full of all demands to date including accounts and notes, except a due bill for merchandise of $79.50.

The plaintiff testified that these notes were not included in the settlement; that he did not have possession of them at that time as they had been delivered to his father as collateral security for an indebtedness, $1,500 of which was the obligation of the defendant; and that the defendant made payments on the notes thereafter and made no claim that they had been settled. Under the evidence, it was for the jury to determine whether or not the notes had been paid off and settled. " ,

According to the testimony of the plaintiff, the payments made on exhibits 1, 2 and 5 were made within 10 years after their respective due dates. It was therefore a question for the jury to determine whether or not the payments indorsed on the notes had been, in fact, made at the time shown by the indorsements and so as to remove the bar of the statute of limitations.

On a motion to direct a verdict the most favorable evidence for the party against whom the motion is made must be accepted as true and must be given the most favorable interpretation which it will bear. (Walldren Express & Van Co. v. Krug, 291 Ill. 472.) In passing upon such a motion the court cannot weigh the evidence but is required to view it in the light most favorable to the adverse party and to resolve all questions of fact in his favor. (Campbell v. Chicago, R. I. & P. R. Co., 243 Ill. 620; Math v. Chicago City R. Co., 243 Ill. 114.) As to exhibits 1, 2 and 5 the court erred in excluding them from the consideration of the jury and in directing a verdict against plaintiff.

The indorsements on exhibits 3, 4 and 6 purport to show payments made more than 10 years after the statute of limitations had begun to run, and the defendant claims that payments made at such times did not remove the bar of the statute. According to the testimony of the plaintiff, the first payments on each of said notes were made to him personally by defendant on the dates of the respective indorsements. His testimony with respect to the other payments is that he was owing a note for $1,500 to the Manufacturers’ National Bank which he was unable to pay; that he asked the defendant to pay him so that he could settle this indebtedness; that the.defendant thereupon said he would pay off the plaintiff’s indebtedness at the bank and the plaintiff could credit upon defendant’s notes whatever payments the defendant made on the plaintiff’s note at the bank; that the defendant did make certain payments on the bank note; and that the plaintiff got a list of such payments and credited them on the notes in suit in accordance with the agreement between the parties. A statement of the Manufacturers’ National Bank of the Bolender-Thayer note account was admitted in evidence and the credits indorsed on the notes sued on in this case correspond with the payments made by Bolender on plaintiff’s note. This proof tends to establish the payments indorsed on said notes.

' The rale of law that an indorsement on a note in the handwriting of the holder is not of itself sufficient evidence of payment to repel a defense created by the statute of limitations has no application in this case. What the trial court had to determine upon the motion for a directed verdict was, whether or not there was any evidence in the record fairly tending to support the material averments of plaintiff’s declaration. We have seen that plaintiff testified that the first indorsements on the notes represented actual payments on said notes made at the times mentioned in said indorsements, and, further, that the defendant made payments on plaintiff’s note at a bank with the understanding with plaintiff that such payments were to be indorsed on the notes involved in this case.

As a general rule, where a debtor owes several obligations and makes a payment, but does not direct on which obligation it shall be applied, the creditor may determine where he will apply it. (Wellman v. Miner, 179 Ill. 326; Royal Colliery Co. v. Alwart Bros. Coal Co., 276 Ill. 193.) In the case at bar plaintiff testified that he received a payment of $11 on August 22, 1916, and defendant at that time told him he could put it on the notes. This credit was indorsed on exhibit 4. Plaintiff testified that as each payment was made, he applied it on some one of the notes of his own selection, and no payment was applied on more than one note. He applied the payments made by defendant in the bank in the same manner. Each of the six notes bears four such separate indorsements.

There is evidence in the record fairly tending to prove that the payments indorsed on the notes marked “exhibits 1, 2 and 5” were made before the statute of limitations had become a bar, and there is also evidence fairly tending to prove that payments were made on the notes marked ‘ exhibits 3, 4 and 6 ” after the statute had become a bar. If payment upon a note, made after the bar has once become effective, will release the bar and revive the obligation, the same as if it had been made before the bar became effective, then there was sufficient evidence in this case to entitle the plaintiff to a submission of the issues to the jury on all of the notes.

In Kallenbach, Jr. v. Dickinson, 100 Ill. 427, it is said on page 446: “The point is made in argument that payment before the bar is.complete and payment afterwards, rest upon different principles, and therefore, although on the authority of Bell v. Morrison, one joint contractor cannot bind another by a payment after the bar is complete, he may do so by a payment before. It is true, in Bell v. Morrison, and in Van Keuren v. Parmelee, some stress is laid upon the fact that the debt is barred, and has therefore ceased to be obligatory, etc., but in principle it can make no difference. In either case, if the running of the statute is arrested, it is because of the new promise, express or implied; and it is that new promise, — i. e., contract,— resting upon the consideration of the old debt, in either case, where the statute is pleaded, that is replied to take the case out of the statute. The same elements of contract must exist in either case.”

In Metcalf v. Metcalf, 219 Ill. App. 96, it is held that a partial payment on the debt made by a party originally chargeable implies a new promise by the debtor to pay the debt, and this is equally true whether the payment is before or after the bar of the statute of limitations has become complete. Under these Authorities, if the payments were made as claimed, and the plaintiff was authorized to apply them, as he did, on each of the six notes, it makes no difference that some of the notes were already barred by the statute of limitations. The effect of such payments was to remove the bar. A contrary view is expressed in Aston v. Aston, 188 Ill. App. 12, but we regard the expression in that case as obiter and we are not inclined to follow it. Plaintiff had the right to have his cause on all of the notes submitted to the jury.

He contends that, under the pleadings, the defendant should not have been permitted to rely upon the statute of limitations because the affidavit of defense does not raise that issue. The same definiteness is not required in an affidavit of defense as is required in a plea. We think the language employed in the affidavit was sufficient to apprise the plaintiff of the nature of the defendant’s defense, as required by section 55 of the Practice Act, Cahill’s St. ch. 110, ¶ 55, and that he would rely on the statute of limitations as a defense.

For the errors above pointed out the judgment of the trial court is reversed and the cause remanded.

Reversed and remanded.