text:
    Louis E. Bower, Inc., Appellant, v. Joseph Silverstein, Appellee.
    Gen. No. 40,316.

      Opinion filed December 30, 1938.
    Rehearing denied January 13, 1939.
    William M. Johnson, of Chicago, for appellant.
    Freeman & Freeman, of Chicago, for appellee; Earl Freeman, of counsel.
   Mr. Justice Friend

delivered the opinion of the court.

In November, 1935, Louis E. Bower, Inc., plaintiff, secured a tort judgment by default against defendant in the sum of $450, with a special finding of malice. Subsequently, October 27, 1937, defendant was taken into custody on a capias ad satisfaciendum, and thereafter released on bond. December 7, 1937, defendant filed a petition in the municipal court in the nature of a writ of audita querela and a writ of error coram nobis, asking that the judgment of November 7, 1935, be satisfied of record, or in the alternative, that it be vacated and that a trial be had on the merits. In April, 1938, the court impaneled a jury which returned a verdict finding that the judgment of November 7, 1935, had been satisfied. Judgment was entered on the verdict and the capias was ordered quashed. Plaintiff appeals on the common law record, no stenographic record of proceedings had before the court and jury having* been preserved.

The petition in the nature of a writ of audita querela or writ of error coram nobis alleged in substance that a default judgment had been entered against petitioner in the sum of $450 and costs, together with a special -finding of malice; that defendant was first apprised of the entry of judgment against him October 8, 1937, when he was apprehended on a capias issued by the municipal court; that the judgment was fraudulently and erroneously entered, for the following reasons: that when suit was filed against him August 16, 1934, defendant employed counsel to represent him, and filed his appearance and affidavit of merits; that the hearing of the cause was continued from time to time, during which defendant appeared in court with his attorneys, ready for trial, on several occasions, and in each instance plaintiff secured continuances of the case; that November 8, 1934, and again April 22, 1935, the cause was dismissed for want of prosecution, because of plaintiff’s failure to appear; that in September, 1935, defendant had a conversation with Louis E. Bower, president of plaintiff corporation, and asked him why he was pressing the suit, since all indebtedness due and owing from defendant had been settled long prior thereto; that Bower admitted that defendant was not indebted to plaintiff, and advised defendant that he should not pay any further attention to the suit then pending and that the reason plaintiff did not appear in court on the dates to which the cause was continued was because there was nothing due and owing plaintiff, and that Bower then and there informed defendant that he would instruct his attorney to dismiss the case; that, relying upon these promises, defendant left the city for South Haven, Michigan, where he had established his residence and place of business, and did not return to Chicago until October, 1936; that in October, 1937, defendant met Bower on the street, and in the course of a friendly conversation with him, gave Bower his business card, upon request, containing his address; that the next day the bailiff of the municipal court arrested defendant on the capias theretofore issued; that upon checking into the records of the litigation, defendant found that, contrary to his promises and representations, Bower had perpetrated a fraud upon the court by prosecuting the suit and securing the judgment, whereupon defendant consulted his attorneys who advised him that they had sought to get in touch with him to advise him that plaintiff was pressing the action, but did not know defendant’s whereabouts.

It is further alleged that December 15, 1932, Harry Freeman, of the firm of Freeman & Freeman, as counsel for defendant, issued to Louis E. Bower his check in the sum of $1,100, bearing on the back thereof the following indorsement: “In full settlement, satisfaction and release of all chattel mortgages, and claims of Lewis E. Bower and Atlas Securities Company against World Battery Company and Joseph Silver-stem and WSBC Radio Station.” It is averred that this indorsement constituted full satisfaction and release of plaintiff’s claims against defendant, and particularly the claim upon which the judgment is based, because the purported chattel mortgage, upon which the litigation is predicated, is alleged to have been executed April 8, 1931, and the default upon which suit under the mortgage is alleged to have occurred August 8, 1931, all antedate Freeman’s check of December 15, 1932. It is further alleged that William Helfand, plaintiff’s attorney in all the transactions between the parties, and particularly the one involved in this case, handled the transaction for plaintiff, and is willing to testify that the judgment procured was a fraud upon the court and without any warrant in fact.

Since the record on appeal contains no stenographic record of proceedings had before the court and jury, we assume that the verdict was sustained by substantial proof of the allegations made in the petition. (Harkins v. Sherwood, 207 Ill. App. 24; Ramming v. Roland, 198 Ill. App. 91.) Section 21 of the Municipal Court Act (Ill. Rev. Stat. 1937, ch. 37, par. 376 [Jones Ill. Stats. Ann. 108.046]) vests the municipal court with power to vacate or modify a judgment at any time by petition which would be sufficient to cause the same to be vacated, set aside or modified by a bill in equity. It is evident that the allegations of fraud contained in defendant’s petition were sufficient to constitute a good bill in equity, and it has been held that courts of equity always have jurisdiction to set aside a judgment on the ground of fraud. (Nelson v. Rockwell, 14 Ill. 375; Miller v. Barto, 247 Ill. 104.) Under section 21 of the Municipal Court Act, the municipal courts have the same jurisdiction. (Izzi v. Ialongo, 248 Ill. App. 90; Schmalhausen v. Zukowski, 183 Ill. App. 305.)

The law is likewise well settled that the court has power at any time to compel the satisfaction of a judgment. It was so held in Hoag v. Starr, 69 Ill. 365, and Neal v. Handley, 116 Ill. 418, 423. Under the allegations of the petition, it appears that all of Bower’s claims against Silverstein, and particularly all claims arising out of chattel mortgages executed by defendant, were settled in full and satisfied by Freeman’s check to Bower of December 15, 1932, for $1,100, and under the petition filed by defendant, the court adopted the proper procedure prescribed in similar situations. In Harding v. Hawkins, 141 Ill. 572, after affirming the court’s power on motion to compel the entry of a satisfaction of judgment, the court said (p. 584): “In cases arising upon motion, it would seem that the same mode of trial ought to prevail as prevailed at common law in proceedings by the writ of audita querela, and such we find to be the practice. An issue is made, and sent to the jury to be tried, as any other issue of fact.”

In the case of Handley v. Moburg, 266 Ill. App. 356, a petition was filed asking the court to vacate a prior judgment and that it be satisfied of record. We there cited and relied upon Harding v. Hawkins, supra, and held that “under this alternative prayer for relief, the trial court should have impanelled a jury for the sole purpose of trying the issue raised by the petition, namely, whether the judgment had been satisfied by the sale of the automobile.” The circumstances of that case were similar to the proceedings at bar and the decision is precisely applicable to this case.

In Pyle v. Crebs, 112 Ill. App. 480, it was represented that the judgment had been paid and ought therefore to be satisfied and discharged of record. The court held that the ancient writ of audita querela, or by motion in the nature of such a writ, which obtains in the practice of this State, affords an adequate remedy and that the relief sought was fully warranted.

Plaintiff contends, however, that the writ of audita querela will not lie for matters arising before judgment, where defendant had a legal opportunity to make his defense, and defendant agrees with this principle of law, but asserts, as was alleged in his petition, that he was prevented from presenting his defense or any defense by reason of plaintiff’s fraudulent promise to dismiss the suit. In Humphreys v. Leggett, 50 U. S. 297, a like petition was filed to satisfy a judgment because defendant had been precluded from making a defense, and the court held that defendant was not guilty of laches, having lost the benefit of his defense by an accident over which he had no control, and was therefore in the same position as if the defense had arisen after judgment, entitling him to relief by audita querela, or a bill in equity for injunction.

Defendant’s counsel cite Lovejoy v. Webber, 10 Mass. 101, as precisely in point. In that case Lovejoy filed a writ of audita querela to satisfy a judgment against him, alleging that prior to the entry of the judgment he had paid the indebtedness to Webber, who thereupon promised to dismiss the action; that nevertheless Webber fraudulently proceeded with the case and recovered judgment by default. Webber demurred to the writ on the ground that it would not lie for matters Occurring prior to the entry of judgment, but the court upheld the writ and in so doing said: “If the facts averred in the writ are true, and these are now to be understood as confessed, the plaintiff in this' action, — defendant in the action wherein a judgment, as he alleges, has been fraudulently recovered against him, —■ had no opportunity of pleading the payment or discharge of the demand which he had adjusted. Before judgment was entered, indeed, the adjustment had been made, but with an understanding that the suit was thereby finally compromised, and was to be discontinued by the care of this defendant. In this the plaintiff was deceived; but the present defendant is not to avail himself of this fraud, which is pointedly, and, as he has confessed, truly alleged against him.”

In the case at bar the jnry and the court found that the judgment upon which the issuance of the capias ad satisfaciendum was predicated had been fully paid and satisfied by defendant and it would be unconscionable to subject defendant to payment a second time. Since the record does not contain a stenographic report of proceedings, no question can arise as to the sufficiency of the evidence to challenge the verdict and judgment from which this appeal is prosecuted, and therefore the judgment of the municipal court should be affirmed. It is so ordered.

Judgment affirmed.

Burke, P. J., and John J. Sullivan, J., concur.


source: Caselaw Access Project

author: Mr. Justice John J. Sullivan

license: Public Domain

text:
    2760 Milwaukee Avenue Building Corporation, Appellant, v. Robin Redbreast Hosiery Company, Inc., Appellee.
    Gen. No. 40,092.

      Opinion filed December 30, 1938.
    Thomas Hart Fisher and Willard C. Walters, both of Chicago, for appellant.

      Pritzker & Pritzker, of Chicago, for appellee; Nicholas J. Pritzker and Stanford Clinton, of Chicago, of counsel.
   Mr. Justice John J. Sullivan

delivered the opinion of the court.

On December 1,1937, plaintiff, 2760 Milwaukee Avenue Building Corporation, commenced an action of forcible detainer against defendant, Robin Redbreast Hosiery Company, for the recovery of the possession of the premises at 2758 Milwaukee avenue, Chicago, and joined therein its claim for $2,000 damages for the unlawful withholding of the possession of said premises from September 1, 1937, to November 30, 1937. In a trial by the court without a jury judgment was entered December 30, 1937, in favor of defendant and against plaintiff as to both of the latter’s claims. Plaintiff appeals only from that portion of the judgment denying its claim against defendant for damages for wrongfully withholding possession of the store in question during the period aforesaid.

The parties entered into a written lease of the above described premises on May 24, 1934, for a term of 9 years and 2 months, commencing June 1, 1934. Defendant, as lessee, agreed to pay as rent therefor $110,000 payable in 110 monthly instalments of $1,000, and a certain percentage of its gross annual receipts, which latter are not involved in this proceeding.' Under par. 2 of the lease the monthly rental instalments of $1,000 were due and payable in advance on the first day of each month during the demised term.

The lease contained the following additional pertinent provisions:

“Tenant Waives Notice:

“Par. 12. The Tenant expressly waives the service of any notice of intention to terminate this lease or for possession of said premises because of default in the payment of rent; and in case of any other default hereunder, continuing for ten (10) days after written notice thereof, waives service of any demand for possession, or of any and every other notice or demand which may be prescribed by any law of the State in which said premises are located.

£ £

“Payments After Termination:

“Par. 16. No payments of money by the Tenant to the Landlord after the termination of this lease, in any manner, or after the giving of any notice (other than a demand for the payment of money) by the Landlord to the Tenant, shall reinstate, continue or extend the term of this lease or affect any notice given to the Tenant prior to the payment of such money, it being agreed that after the service of notice or the commencement of a suit or after a final judgment granting the Landlord possession of said premises, the Landlord may receive and collect any sums of rent due, or any other sums of money due under the terms of this lease, and the payment of such sums of money, whether as rent or otherwise, shall not waive said notice or in any manner affect any pending suit or any judgment theretofore obtained.

£ £

“Withholding of Premises:

“Par. 20. Should the Tenant withhold possession of the premises from the Landlord, after the termination of said lease, whether by lapse of time or by election of either party or in any other manner provided herein or by law and except in case of termination through lapse of time after written notice to vacate the premises has been given by the Landlord, the damages for which the Tenant shall be liable to the Landlord for such detention shall be and hereby are liquidated at a sum equal to double the rate of rental stipulated herein for the period of such detention; further, should the Tenant remain in the demised premises after the termination of this lease, then in that event the Landlord may elect to consider such withholding of the premises as a holdover of this lease, and treat said tenant as a tenant for another year on the same terms and conditions as are contracted in this lease.”

Defendant entered into possession of the premises as tenant on June 1,1934, and paid the $1,000 monthly instalments of rent due to and including August, 1937. The monthly instalment of rent due September 1, 1937, not having been paid by September 20, 1937, plaintiff on the last mentioned date sent the following telegram to defendant’s home office in New York City:

“Air mail tonight without fail rent check 2760 Milwaukee avenue or formal demand will follow. ’ ’

The September rent check not having been forwarded by defendant in response to said telegram, plaintiff on September 22, 1937, wrote this letter to defendant: “We have not as yet received your rent check for the month of September, 1937.

“In accordance with the terms of your lease you are in default. This is to notify you that we elect to, and do hereby, terminate and cancel your lease and the undersigned hereby demands possession of the above premises.”

It is undisputed that the $1,000 monthly instalment for September, 1937, was received by plaintiff on September 25 or 26, 1937, and retained by it, that the instalment for October, 1937, was received by plaintiff October 2, 1937, and retained by it and that it also received the $1,000 monthly instalments for November and December, 1937. On October 11, 1937, plaintiff wrote a letter to defendant to the effect that the monthly instalments of $1,000 received by it for September and October were not accepted as rent but on account of the damages stipulated in par. 20 of the lease.

It is also undisputed that defendant regularly and customarily paid its monthly instalment of rent after the first day of each month, which was the due date provided in the lease. The course of dealings between the parties in this respect is illustrated by the following table:

Instalment Date of Payment
November, 1934 November 12, 1934
December, 1934 December 15, 1934
May, 1935 May 3, 1935
June, 1935 June 3, 1935
July, ,1935 July 3, 1935
August, 1935 August 5, 1935
September, 1935 September 9, 1935
October, 1935 October 11, 1935
November, 1935 November 11, 1935
December, 1935 December 4, 1935
January, 1936 January 6, 1936
February, 1936 February 18, 1936
March, 1936 March 17, 1936
April, 1936 April 17, 1936
May, 1936 May 18, 1936
June, 1936 June 16, 1936
July, 1936 July 17, 1936
August, 1936 August 15, 1936
September, 1936 September 3, 1936
October, 1936 October 20, 1936
November, 1936 November 18, 1936
December, 1936 December 18, 1936
January, 1937 January 27, 1937
February, 1937 February 3, 1937
March, 1937 March 4, 1937
April, 1937 April 6, 1937
May, 1937 May 4, 1937
June, 1937 June 10, 1937
July, 1937 July 15, 1937
August, 1937 August 20, 1937

Plaintiff contends that “the letter of its agent dated September 22, 1937, was effective to terminate the defendant’s lease and therefore the defendant was liable to the plaintiff for the use and occupation of the premises until such time as possession was delivered over to the plaintiff at the rate of $2,000 per month as provided in paragraph 20 of the lease; and that by virtue of paragraph 16 of the lease the acceptance of $1,000 on two occasions after notice of the termination of the lease, where such acceptance was accompanied by a statement that the $1,000 was not accepted as rent, did not cure the defendant’s default under the lease and avoid the termination theretofore declared.”

The only theory advanced by defendant in its brief which we deem it necessary to consider is that “since unlawful withholding of possession of the premises is the basis of both the claim for possession and the claim for damages, the acquiescence of the plaintiff in that part of the judgment below denying it possession of the premises in controversy precludes and estops plaintiff from appealing on the question of damages.”

This proceeding when instituted was not merely a suit for damages but was a joint action in which plaintiff sought primarily to recover possession of the premises which it claimed were being unlawfully withheld and also to recover damages for the refusal of defendant to surrender possession thereof after the alleged forfeiture of the lease. As heretofore stated plaintiff has limited its appeal to the adverse finding and judgment of the trial court on the question of damages it claims should have been awarded it by reason of defendant’s wrongful withholding*. The adverse finding and judgment of the trial court on the paramount question of plaintiff’s right to possession of the store, which it has not and cannot now appeal from, is a final adjudication. Plaintiff having acquiesced in the judgment on the issue as to whether it or defendant had the right to possession, is not its appeal only from that portion of the judgment which denied it an award of damages to say the least inconsistent? Both its claim to the right to possession and its claim for damages arose from the same alleged unlawful withholding of possession by defendant. If defendant unlawfully withheld the premises, then plaintiff was entitled to recover possession of same and an award of damages. If, on the other hand, defendant’s withholding of possession was lawful, as the trial court held, then plaintiff was entitled neither to possession nor damages.

Plaintiff’s acquiescence in the judgment of the trial court that defendant was rightfully in possession of the premises and that plaintiff was not entitled to recover possession thereof, is absolutely inconsistent with this appeal on the question of damages alone. "What would be the result if this court reversed the judgment of the trial court on the question of damages and entered judgment here in favor of plaintiff for the damages claimed? Then there would be in this cause two final adjudications. One a judgment of the trial court that defendant was not wrongfully withholding possession of the premises and was entitled to retain possession thereof and the other the judgment of this court that defendant was wrongfully withholding possession of the premises and that plaintiff was entitled for that reason to recover damages from defendant.

Regardless of the several provisions of the lease and the notice to defendant of the termination thereof, which plaintiff relies upon to sustain its claim for damages, we are impelled to hold that, its right to recover damages being so inseparably bound up with and dependent upon its establishment of its right to possession, its failure to bring up the entire judgment for review constitutes a waiver of its right to appeal from the judgment only in so far as it denied the damages claimed.

In any event, since the final unappealed adjudication of the trial court as to the right to possession of the premises was adverse to plaintiff, in our opinion it is barred from further prosecution of any claim for damages dependent upon its right to possession. We think that the principle of estoppel by verdict is peculiarly applicable to the situation here presented. In discussing the doctrine of estoppel by verdict, in Chicago Title & Trust Co. v. National Storage Co., 260 Ill. 485, the court said at p. 493: “An estoppel by verdict is but another branch of the doctrine of res judicata, and it rests upon the same principle of law, — that is, that a matter once litigated between parties to a final judgment in a court of competent jurisdiction cannot again be controverted. When this doctrine is applied to a single question or point arising in the course of litigation which has finally been adjudicated it is designated as an estoppel by verdict, and the same question or point" cannot again be litigated between the same parties in the same or any other court at law or in chancery, and neither party, nor their privies, will be permitted to allege anything- inconsistent with the finding upon that question.”

Defendant’s motion to dismiss the appeal heretofore filed and reserved to hearing is at this time denied.

For the reasons stated herein the judgment of the municipal court is affirmed.

Judgment affirmed.

Burke, P. J., and Friend, J., concur.


text:
    People of the State of Illinois ex rel. Richard O. Betts, Jr., Appellant, v. The Village of Maywood et al., Appellees.
    Gen. No. 40,200.

      Opinion filed December 30, 1938.
    Paul W. Brust and A. H. D’Anza, both of Melrose Park, for appellant.
    David B. Trott, for appellees.
   Mr. Justice John J. Sullivan

delivered the opinion of the court.

This appeal seeks to reverse the judgment of the trial court which dismissed the petition for mandamus filed by plaintiff, Richard C. Betts, Jr., to compel defendants to restore him to the position of fireman, theretofore held by him on the fire department of the village of Maywood, and to pay his salary from the date of his alleged wrongful discharge from said position.

Pursuant to the provisions of Rule 23 of the Rules of Practice of this court, this cause is brought here for review upon the following certification of questions of law and agreed statement of facts:

“1. The Village of Maywood is a Municipal Corporation organized and existing under the Laws of the State of Illinois, situated in the County of Cook and State of Illinois.

“2. Said Village of Maywood has a duly constituted Fire and Police Department organized according to the laws and statutes of the State of Illinois, and the ordinances of the Village of Maywood.

“3. That the Village of Maywood has a Board of Fire and Police Commissioners duly and lawfully organized by virtue of an act of the Legislature of the State of Illinois, entitled: ‘An Act to provide for the appointment of a Board of Fire and Police Commissioners, etc./ approved and in force April 2, 1903, as amended by act approved March 15,1933.

“4. That said Board of Fire and Police Commissioners passed certain rules which they contend are in conformity with the act above mentioned, and Section 106 of the rules provides as follows:

“ ‘All appointments to the Fire Department will be upon probation. If during the first six months of actual service, the person appointed proves in the opinion of the Fire Marshal or Fire and Police Board unfit for the position, he will be dropped from the service. ’

“5. That the Board of Fire and Police Commissioners, in conformity with said act, held or caused to be held examinations from time to time for the purpose of making a register of persons as candidates to the position of policemen and firemen in the Village of Maywood.

“6. Richard C. Betts, Jr., is a citizen of the United States and a resident of the Village of Maywood, County of Cook and State of Illinois.

“7. The said Richard C. Betts, Jr., took the examination given by said Board on or about June, 1934, and his name was placed third on the register of standing of persons who had taken the examination given by the Board of Fire and Police Commissioners of the Village of Maywood, and said register or list was not prior to November 1, 1936, canceled or superseded by any new or subsequent register or list and remained the list from which all eligibles were certified by said commissioners to serve either upon the Fire or Police Force of the Village of Maywood from June, 1934, until November 1, 1936.

“8. The said Richard C. Betts, Jr., was on June 15, 1936, number one on the list of men eligible for appointment to the Fire Department of the Village of Maywood and he was on said date certified by said Board to report for duty as a fireman on the Fire Department of the Village of Maywood.

“9. That Richard C. Betts, Jr., was appointed temporarily for a period of ninety days from June 15, 1936, to September 15, 1936, and during said period he was to take the place of other firemen who were absent from their duties during the summer vacation.

“10. On September 16, 1936, Richard C. Betts, Jr., was notified over the telephone by Fire Marshal Eugene D. Humphreville that because of his general incompetency in performing his duties as fireman, said Fire Marshal, under rule 106, considered Richard C. Betts, Jr., unfit as a permanent member of the said Fire Department of said Village.

“11. Richard C. Betts, Jr., made numerous requests that he be re-employed as a fireman and requested a hearing from the Board of Fire and Police Commissioners. Said requests were refused and on December 12, 1936, he received the following letter:

“ ‘ December 12,1936
“ ‘Mr. Richard C. Betts,
200 S. 7th Ave.,
Maywood, Ill.
“‘Dear Sir:
“ ‘In reply to your letter of November 6th, the Board of Fire and Police Commissioners of the Village of Maywood, find that you were discharged from service under Section 106 of the Rules and Regulations of the Fire Department of the Village of May-wood, Illinois.
“ ‘ This Board still upholds the action of the Fire Marshal.
“ ‘Bespectfully yours,
Elmer G. Locke,
“ ‘EGL:BG Secretary.’
“Again on January 27, 1937, a letter was sent him from the Board which is as follows:
“ ‘Board of Fire and Police Commissioners “ ‘Village of Maywood, Illinois
“ ‘January 27, 1937
“ ‘Mr. Bichard C. Betts,
200 S. 7th Ave.,
Maywood, Illinois.
“ ‘Dear Sir:
‘ ‘ ‘ This Board has received a letter from the honorable C. O. Krauser, President of the Village of May-wood, requesting that you be given a rehearing on your dismissal case.
“ ‘You are hereby notified to appear before this Board on February 9, 1937 at 8 P. M. in the office of Mr. Max Bertsch, second floor in the garage building of the American Can Company, located on 7th Avenue and St. Charles Boad in the Village of Maywood.
“ ‘Very truly yours,
(Signed) Elmer G. Locke,
Elmer G. Locke, Secretary Board of Fire and Police Commissioners. ’

“On February 9, 1937, he appeared before said Board in compliance with the letter of January 27, 1937, and an informal hearing was had of the case.

“12. After the discharge of the said Bichard C. Betts, Jr., the Board appointed Harold Wiclcman, who followed Bichard C. Betts, Jr., on the register or list eligible for position of firemen on the Fire Department of the Village of Maywood.

“13. The Board of Fire and Police Commissioners gave Richard C. Betts, Jr., an informal hearing, but did not permit him to put in any defense or present any evidence. The Commissioners merely stated that he was discharged in accordance with Section 106 heretofore mentioned for incompetency and inefficiency.

“14. Richard C. Betts, Jr., has requested repeatedly that he be reinstated either as a fireman or that he be placed on the register or list of the Board of Fire and Police Commissioners of men eligible for the Fire Department of the Village of Maywood. This the Board has refused to do.

“15. The questions of law certified to the Appellate Court are:

“1. Did the Board of Fire and Police Commissioners of the Village of Maywood have the power under the act under which they were organized to pass the following rule which is Section 106 and is in words and figures as follows:

“ ‘All appointments to the Fire Department will be upon probation. If during the first six months of actual service, the person appointed proves in the opinion of the Fire Marshal or Fire and Police Board unfit for the position, he will be dropped from the service. ’
“2. Did the Board of Fire and Police Commissioners of the Village of Maywood exceed the authority given them in the act under which they were organized in making a temporary appointment of Richard C. Betts, Jr., for ninety days?
“3. Was said appointment a permanent appointment?
“4. If the appointment was not permanent then did the rule which is section 106, even if valid, apply to such a temporary appointment, or would he first have to be permanently appointed before the probation period began to run?
“5. Was Richard C. Betts, Jr., unlawfully discharged and should he have been given a hearing by said Board of Fire and Police Commissioners of the Village of Maywood?
“6. Should his name be replaced on the register list?
“Respectfully submitted,
Paul W. Brust
A. H. D’Anza Attorneys for Plaintiff
David B. Trott Attorney for Defendant”

Plaintiff contends that “the trial court erred in dismissing the petition for mandamus and that he could only be removed or discharged for cause and that the said Board of Fire and Police Commissioners have no power, expressed or implied, under the act to make probationary appointments or rules governing same”; that “his appointment at the end of the 60 days became permanent, if it was not a permanent appointment in the first instance, and that the Fire Marshal had no right or power to summarily discharge him”; and that the “power to discharge him was solely in the Board of Fire and Police Commissioners and said Board before they could exercise said powers of discharge were compelled to give the petitioner an opportunity to be heard in his own defense after written charges had been filed aguinst him.”

To sustain the judgment of the trial court it is contended by defendants that “the provisions of Rule 106 were within the rule making power of the Board of Fire and Police Commissioners”; that “the appointment of Betts was probationary only”; that “Betts was never in the classified service”; that “under Rule 106 of the Board, Betts might be dropped from the service during the probationary period of actual service for cause specified in the rule without the investigation or hearing provided for in Section 12 of the Act”; that “the action of the Board in affirmance of the Act of the Fire Marshal was sufficient to end the rights of Betts to a position in the classified service”; that “the provisions of Section 11 of said Act as to temporary appointments to the service for a period not exceeding sixty days has no application to the facts of this case”; and that “the acts of the Fire Marshal and Board of Commissioners were not void and the acts complained of were within the discretion of these officials.”

In order to establish a merit system for members of the Fire and Police Departments in cities, villages and incorporated towns of a population of not less than 7,000 and not more than 200,000 “an act to provide for the appointment of a board of fire and police commissioners” was enacted in 1903. (Chapter 24, pars. 958-977, Ill. State Bar Stats. 1935 [Jones Ill. Stats. Ann. 21.711-21.730].) The following sections of such act as amended are pertinent to this proceeding:

“Section 4 (Par. 961). Such board of fire and police commissioners shall appoint all officers and members of the fire and police department of such city, [village] or incorporated towns. Provided, that all appointments to such department other than that of the lowest rank, shall be from the rank next below that to which the appointment shall be made. This Act shall not include volunteer fire departments.

“Section 5 (Par. 962). Such board of commissioners shall make rules to carry out the purpose of this act, and for appointments and removals in accordance with its provisions, and the board may, from time to time, make changes in such rules.

i i

“Section 11 (Par. 968). Said board may in order to prevent a stoppage of public business, to meet extraordinary exigencies, or to prevent material impairment of the police or fire department, make temporary appointment, to remain in force until regular appointments may be made under the provisions of this act, and not in any event to exceed sixty days.

“Section 12 (Par. 969). No officer or member of the fire or police department of any such city, [village] or incorporated town,. . . shall be removed or discharged except for cause, upon written charges, and after an opportunity to be heard in his own defense. Such charges shall be investigated by such board of fire and police commissioners, and in case such officer or member be found guilty, such board may remove or discharge him, or may suspend him not exceeding ten days without pay.”

The act being applicable to the village of Maywood, under its terms members of a board of fire and police commissioners were duly appointed and said board having been lawfully organized adopted rules “to carry out the purpose of this act” pursuant to section 5, heretofore set forth, among which was the following :

“Rule 106. All appointments to the Fire Department will be upon probation. If during the first six months of actual service, the person appointed proves in the opinion of the Fire Marshal or Fire and Police Board unfit for the position, he will be dropped from the service.”

Of the questions of law certified by the trial court the one considered most vital by the parties is that which concerns the authority of the board of fire and police commissioners (sometimes hereinafter referred to as the board) to adopt this rule.

In our opinion there is no merit in plaintiff’s contention that Rule 106 is void for want of authority of the Board under the act to adopt same. While such authority is not granted in express terms, it can readily be implied from the rule making power granted under section 5 of the statute “to carry out the purposes of this act, and for appointments and removals in accordance with its provisions.”

Section 10 of the Civil Service Act (ch. 24, par. 694, Ill. State Bar Stats. 1935 [Jones Ill. Stats. Ann. 23.049]) establishing and regulating a merit system for cities, which was enacted in 1895:, contained the following, among other provisions:

“Appointments to classified service. The head of the department or office in which a position classified under this Act is to be filled shall notify said commission of that fact, and said commission shall certify to the appointing officer the name and address of the candidate standing highest upon the register for the class or grade to which said position belongs. . . . The appointing officer shall notify said commission of each position to be filled separately, and shall fill such place by the appointment of the person certified to him by said commission therefor, which appointment shall be on probation for a period to be fixed by said rules. . . . At or before the expiration of the period of probation, the head of the department or office in which a candidate is employed may, by and with the consent.of said commission, discharge him, upon assigning in writing his reason therefor to said commission. If he is not then discharged, his appointment shall be deemed complete.” (Italics ours.)

It will be noted that the foregoing section of the Civil Service Act for cities, which was in force and effect 8 years prior to the enactment of the act involved in this controversy, expressly provided for a probationary period of employment and conferred upon the civil service commission under its rule-making power the authority to fix the duration of such period. In formulating its rule as to a probationary period and the length thereof, the board in the instant case had before it for guidance said Civil Service Act for cities providing for a probationary period and the rule adopted pursuant thereto by the Chicago civil service commission fixing said period at 6 months. Rule 106, in question here, violates no provision of the law and is strictly in keeping with the public policy of the State as reflected in the Civil Service Act, for cities passed prior to the enactment of the Board of Fire and Police Commissioners Act. Subsequent statutory enactments for civil service in park system (ch. 105, secs. 381-417, Ill. State Bar Stats. 1935 [Jones Ill. Stats. Ann. 23.081-23.117]) and for State Civil Service (ch. 126 A, Ill. State Bar Stats. 1935 [Jones Ill. Stats. Ann. 23.001 et seq.]), contain provisions for probationary periods and for their maximum duration. It must be conceded that Rule 106, adopted by the board of fire and police commissioners conforms to the policy and practice established in and by all other civil service enactments.

But it is urged that since the act under consideration does not expressly give the board the right to make probationary appointments and since the terms of the statute “are clear and precise, its sense manifest, and its consequence not absurd or palpably unjust” there can be no implication that said board had any right to make a rule providing for a probationary period or to make probationary appointments, and that it necessarily follows that plaintiff’s appointment as fireman was permanent and that he could not lawfully be removed from said position except after a proper hearing on written charges. In our opinion it is sufficient answer to plaintiff’s contention in this regard to state that in the light of the spirit and policy manifested in all the civil service enactments of the legislature, the broad powers conferred upon the board under section 5 of the act to make rules “to carry out the purpose of this act, and for appointments and removals” authorized said board to adopt Rule 106, Furthermore, since the act before us is applicable only to firemen and policemen, it may well be that because of the nature and character of their duties the legislature purposely refrained from restricting the board in its rule making power as to their appointment and removal except that the rules adopted concerning probationary appointments must be reasonable and fair. It cannot be said that Rule 106 is either unreasonable or unfair. Because of the very nature of the duties of firemen and policemen, in the performance of which the highest courage in dangerous situations is a prime requisite, we think the legislature must have intended that the ability to pass a written and physical examination should not be the final test. It is only through probationary appointments for a reasonable period, during which firemen and policemen may be observed in the actual performance of their duties in situations of danger, that their real worth and mettle may be tested. We are impelled to the conclusion that in enacting the Board of Fire and Police Commissioners Act, it was within the contemplation of the legislature that the board adopt reasonable rules as to probationary appointments.

It is next necessary to consider the circumstances under which plaintiff was appointed as well as the circumstances under which he was removed. There were only two possible legal methods by which plaintiff could be appointed under the act and the rules adopted pursuant thereto. His appointment could be by certification from the list to fill a regular position as fireman in the fire department of the village of Maywood, which presupposes a vacancy,' or temporarily for a period not to exceed 60 days. Neither method was followed in the matter of plaintiff’s appointment but the board unlawfully and in violation of the act and its own rules ordered his temporary appointment for a period of 90 days. As to such appointment, it was stipulated by the parties: “That said Richard C. Betts, Jr., was appointed temporarily for a period of ninety days from June 15,1936, to September 15,1936, and during said period he was to take the place of other firemen who were absent from their duties during the summer vacation.” By no construction, however strained, of the act of the board in appointing plaintiff, could it be held under the circumstances stated in the stipulation that plaintiff was certified as a probationary fireman to fill a regular position as fireman. Neither could it be held that he was given a temporary 60-day appointment as provided in the act, which, according to plaintiff, became permanent after said 60 days. Plaintiff’s appointment being unlawful and unauthorized, he could have been summarily discharged at any time. Neither could such appointment serve to vest him with any right to permanent tenure nor could it deprive him of the right to the first place on the list that was his before said appointment. In other words, he was entitled after his discharge to be restored to first place on the list and his standing on same considered as if he had never been certified therefrom. While the record presented to this court fails to disclose just what relief was prayed for in plaintiff’s petition for mandamus, the agreed statement of facts heretofore set forth contains the stipulation that “Richard C. Betts, Jr., has requested repeatedly that he be reinstated either as a fireman or that he be placed on the register or list of the Board of Fire and Police Commissioners of men eligible for the Fire Department of the Village of Maywood. . . . This the Board has refused to do.” and one of the questions of law certified to this court is: “Should his name be replaced on the register list?” By reason of the certification of the foregoing stipulation of facts and questions of law, we must assume that one of the material issues before the trial court was plaintiff’s right to have his name “replaced on the register list.” If plaintiff’s petition for mandamus did not include a specific prayer that his name be restored to the eligible register for firemen, he should be allowed to include such a prayer by appropriate amendment.

For the reasons stated herein the judgment of the circuit court is affirmed in so far as it denied plaintiff’s right to restoration to the position of fireman and to the payment of salary from the date of his discharge from said position but it is reversed in so far as it denied his right to be restored to his place on the eligible list of firemen, and the cause is remanded with directions that he be ordered restored to first place on the eligible list of firemen with his standing-on same considered as if he had never been certified therefrom.

Judgment affirmed in part, reversed in part and cause remanded with directions.

Burke, P. J., and Friend, J., concur.


author: Mr. Justice John J, Sullivan

text:
    John R. Baker, Appellee, v. Adelbert Brown, Appellant.
    Gen. No. 40,154.

      Former opinion filed October 18, 1938.
    Later opinion filed January 14, 1939.
    Leslie E. Salter, of Chicago, and Adelbert Brown, pro se.

    John M. Lee, of Chicago, for appellee; T. C. Conrad, of Chicago, of counsel.
   Mr. Justice John J, Sullivan

delivered the opinion of the court.

This is an appeal from a judgment for $6,419.07 entered by the circuit court of Cook county against defondant, Adelbert Brown, based upon a foreign judgment rendered in the district court of Oklahoma county, State of Oklahoma. Plaintiff herein, John B. Baker, as trustee, was plaintiff in thé suit in which the foreign judgment was entered and the defendants in that action were M. E. Durham, Gordon Stater and the defendant in the instant case,. Adelbert Brown.

The only question presented for our determination is whether the trial court erred in giving full faith and credit to the foreign judgment.

The petition filed in the proceeding in which the foreign judgment was entered included 12 causes of action, the allegations of the statements of claim of each of which were identical except as to the naipes of the claimants, who were plaintiff’s assignors, the amounts sought to be recovered upon their respective claims and the amounts of certain judgments, theretofore entered and later vacated, upon which their claims were based. Said petition alleged substantially that M. E. Durham, doing business as the Taxpayers ’ Association, had contracted with the parties named in the several counts of the petition to recover for them certain taxes which they had theretofore paid under protest, for a commission of 25 per cent in some instances and 33% per cent in others; that Durham employed a law firm, the partnership of Brown & Stater, upon a fee basis of 11 per cent of the gross amount recovered, to bring suits for the refund of the taxes paid under protest; that certain refunds were procured but that the judgments under which said refunds were made were thereafter set aside by reason of fraud in their procurement and the taxpayers were compelled to pay to the county treasurer of Oklahoma county the full amount of the sums refunded.

The petition, after reciting the foregoing* facts and incorporating therein the contracts and other written exhibits relied upon, alleged specifically that “the said Brown & Stater received and took and still retain and refuse to pay to this plaintiff eleven per cent of the amount temporarily recovered by them. ’ ’ It was then alleged that there was due and owing to plaintiff for the use and benefit of the twelve taxpayer claimants “from the defendant, M. E. Durham, as an individual and as one doing business under the name of the Taxpayers Association, and from Adelbert Brown and Gordon Stater, both as individuals and as partners doing business under the name of Brown & Stater,” the sum of $4,744.39 with interest at 6 per cent from January 20, 1930, until paid. This $4,744.39 represented as to some of the claimants 25 per cent and as to others 33% per cent of the amount of the taxes recovered, which said taxpayer claimants had contracted to pay Durham and which the latter presumably received out of the money refunded as a result of the judgments which were later vacated. Eleven per cent of the gross amount of the foresaid judgments, or $2,061.64, was the amount specifically alleged to have been received and wrongfully retained by Brown. $6,419.07, the amount of the judgment entered in the case at bar against Brown, represented the original judgment for $4,744.39 entered against Brown in the Oklahoma court, accrued interest thereon and costs advanced by plaintiff in instituting this suit, less payments aggregating $375 made by Stater and a certain credit for $366.57.

Defendant, Brown, was served personally with summons in the Oklahoma proceeding and was defaulted for want of appearance. The judgment order entered in that case after finding “that Adelbert Brown and Gordon Stater as partners doing business under the firm name of Brown & Stater, are liable to the plaintiff for 11% of the gross or total amount of money obtained from the County Treasurer of Oklahoma County for the 12 taxpayers herein involved, under the original journal entries in the case of Abernathy v. Bonaparte, . . . which were subsequently set aside, which said 11% amounts to $2,061.64, with interest at 6% from January 20th, 1930, until paid . . ., and that M. E. Durham and Adelbert Brown, jointly and severally are liable to the plaintiff for said same sum of $2,061.64, with interest as aforesaid, and that said M. E. Durham and Adelbert Brown, jointly and severally, are also liable to the plaintiff for the additional sum of $2,682.75, with interest at 6% from January 20th, 1930, until paid,” ordered “that plaintiff, John R. Baker, as Trustee, do have and recover of and from the defendants, Brown & Stater, a co-partnership composed of Adelbert Brown and Gordon Stater, both of which were personally served with summons herein, the sum of $2,061.64 with interest at 6% from Jánuary 20th, 1930,” and further ordered “that the plaintiff, John R. Baker, as Trustee, do have and recover said sum of $2,061.64, with interest at the rate of 6% per annum from Januarv 20th, 1930, until paid, ... of and from M. E. Durham and Adelbert Brown and each of them and that in addition to said sum of $2,061.64, with interest . . . plaintiff do have and recover of and from M. E. Durham and Adelbert Brown and each of them the additional sum of $2,682.75, with interest at 6% from Janu-° ary 20th, 1930, making the total amount to be recovered by plaintiff from M. E. Durham and Adelbert Brown, and each of them, the sum of $4,744.39 with interest at 6% from January 20th, 1930, until paid.” (Italics ours.)

Defendant’s contentions as stated in his brief are as follows: ‘ ‘ The judgment rendered herein is based upon the foreign judgment of $4,744.39, which is the full amount Durham received, and not the eleven per cent which Brown and Stater received. This foreign judgment for $4,744.39 is void, being rendered for an amount in excess of the scope of the pleading’s and not responsive to the issues in the case.

“The foreign judgment is valid only insofar as it renders a judgment against Brown for $2,061.64, the eleven per cent paid to Brown and Stater. . . . This, however, is not the foreign judgment upon which judgment was rendered in the case at bar. ’ ’

In support of his position that the foreign judgment should be given full faith and credit by the courts of this State, plaintiff maintains “(1) that the foreign court had jurisdiction of the person and of the subject matter; (2) that the foreign petition or declaration construed in its entirety does fully support the foreign judgment sued upon; and (3) that if said petition or declaration does not fully support said foreign judgment, the defect is not jurisdictional, constitutes error only, and can only be raised by a direct attack in the foreign court.”

It is true that all of the statements of claim, as set forth in the several counts of plaintiff’s petition filed in his action in the Oklahoma court, concluded with the general allegation that “there is now due, owing and unpaid to the plaintiff, John R. Baker, as trustee, for the use and benefit” of the respective claimants, “from the defendant, M. E. Durham as an individual and as one doing business under the name of The Taxpayers Association and from Adelbert Brown and Gordon Stater, both as individuals and as partners doing business under the name of Brown & Stater,” various sums which in the aggregate amounted to $4*744.39, for which amount judgment was prayed with interest at 6 per cent from January 20, 1930, but it will be noted that such statements of claim alleged specifically that under the contract between Durham and Brown & Stater, all that Brown & Stater were to receive for conducting the litigation to recover the protested taxes was 11 per cent of the total amount of taxes recovered for the several claimants and that “the said Brown & Stater received and took, and still retain and refuse to pay to this plaintiff and those for whom this plaintiff brings this suit, 11% of the amount temporarily recovered by them. ’ ’

It should be further noted that that portion of the Oklahoma “Journal Entry of judgment” which ordered “that plaintiff John R. Baker, as Trustee, to have and recover from the defendants Brown & Stater, a copartnership composed of Adelbert Brown and Gordon Stater, both of whom were personally served with summons herein, the sum of $2,061.64, with interest at 6% from July 20th, 1930” was predicated upon the court’s finding “that Adelbert Brown and Gordon Stater, as partners doing business under the firm name of Brown & Stater, are liable to the plaintiff for 11% of the gross or total amount of money obtained from the County Treasurer of Oklahoma County for the 12 taxpayers herein involved, under the original journal entries in the case of Abernathy v. Bonaparte . . ., which were subsequently set aside, which said 11% amounts to $2,061.64 with interest at 6% from January 20th, 1930, until paid.”

As to the additional foreign judgment for $2,682.75, entered against Brown, there were no facts alleged in the petition upon which to base same. The amount of this additional judgment was added to $2,061.64, the amount for which judgment was first entered against Brown, making a total judgment against him of $4,744.39, for the recovery of which, with interest, charges and costs, the instant action was instituted, based upon the judgment for that amount entered in the Oklahoma court. .

There were sufficient facts alleged in plaintiff’s petition to support the judgment for $2,061.64 entered by the Oklahoma court against the partnership of Brown & Stater and against Brown and Stater, individually, and an action founded upon that judgment would be entitled to full faith and credit. However, as to the judgment for $4,744.39 entered against Brown in the Oklahoma proceeding, we agree with the defendant’s contention that it is void, and, therefore, not entitled in the courts of this State to the “full faith and credit” guaranteed by sec. 1 of Art. IY of the Constitution of the United States.

As heretofore shown, all the money that plaintiff in the Oklahoma action claimed and alleged that Brown and his partner, Stater, or Brown or Stater received and wrongfully withheld was $2,061.64 or 11 per cent of the total amount of the taxes refunded and later ordered returned. This represented the portion received by Brown & Stater of the proceeds of the judgments for the tax refunds, which judgments were procured by them and later vacated. No fact is averred in the petition filed in the action in the Oklahoma court from which it could be even assumed or inferred that Brown was liable to the plaintiff there or to the claimants in whose behalf plaintiff instituted that action in any amount except as shown by the facts specificalJ y alleged in said petition that “the said Brown & Stater took and still retain and refuse to pay to this plaintiff and those for whom this plaintiff brings this suit, 11% of the amount temporarily recovered by them. ’ ’ This allegation fixed the extent of defendant’s liability, regardless of general averments, conclusions or the general prayer for relief contained in the petition. “It is a well-settled rule of pleading that a specific statement of facts will always control a general statement, whether that general statement be or be not regarded as a mere conclusion of law . . . and that . . . ‘where both general and specific allegations are made respecting the same matter, the latter control.’ ” (Whitaker v. Crowder State Bank, 26 Okla. 796, 110 Pac. 776.)

“It is a general rule that specific averments in a pleading must be given precedence over general averments, inasmuch as the general allegations are to be deemed explained, limited, and controlled by the special allegations. ” 21 R. C. L. 450, sec. 14, 104 Okla. 57, 230 Pac. 268. The facts stated in the petition fixed the limit of relief that could be granted in the Oklahoma suit and no valid judgment could have been entered therein that went beyond the relief to which plaintiff was entitled on proof of the allegations made. (Standard Oil Co. v. Missouri, 224 U. S. 270.)

But it is argued by plaintiff that “if said petition or declaration does not fully support said foreign judgment the defect is not jurisdictional, constitutes error only, and can only be raised by a direct attack in the foreign court. ’ ’ In this contention plaintiff assumes a judgment predicated upon a petition or declaration that is merely defective in some respect. We are confronted here, however, with a judgment that is based upon issues not made by the pleadings, and the authorities generally hold such a judgment to be coram nonjudice and void. The Oklahoma judgment under consideration not only goes beyond the issue presented but is strictly at variance with the facts pleaded in support of the issue that actually was raised. The only issue raised by the petition as to Brown was whether he received and wrongfully withheld from plaintiff 11% of the proceeds of the judgments procured by him and his partner, which were later vacated. Plaintiff alleged that the amount so received was $2,061.64 and judgment entered in excess of that amount plus proper interest must be held to be a nullity. :

In Standard Sav. & L. Ass’n v. Anthony Wholesale Grocery Co., 62 Okla. 242, 162 Pac. 451, L. R. A. 1917 D 1029, where a judgment which passed upon matters entirely outside the issue raised by the pleadings was held invalid, the court said at p. 453 of the Pacific report:

“The question for our determination is, Is the personal money judgment against the defendant Nannie A. Circle void or merely voidable 1 This court, in the case of Jefferson v. Gallagher et al., 150 Pac. 1071 . . . held:

“ ‘The first fundamental requisite to the validity of a judgment is that it should have been rendered by a court having jurisdiction, for without jurisdiction the courts can do nothing, and a judgment rendered without jurisdiction is a mere nullity. The jurisdiction required is of three sorts: (1) Jurisdiction of the parties; (2) jurisdiction of the general subject-matter; (3) jurisdiction of the particular matter which the judgment professes to decide. ’

“And to the same effect is Black on Judgments (2d Ed.) vol. 1, § 242, which is as follows:

“ ‘Besides jurisdiction of the person of the defendant and of the general subject-matter of the action, it is necessary to the validity of a judgment that the court should have had jurisdiction of the precise question which its judgment assumes to grant. In other words, a judgment which passes upon matters entirely outside the issue raised in the record is so far invalid. Jurisdiction may be defined to be the right to adjudicate concerning’ the subject-matter in the given case. To constitute this there are three essentials: First, the court must have cognizance of the class of cases to which the one to be adjudged belongs; second, the proper parties must be present; and third, the point decided must be, in substance and effect, within the issue. That a court cannot go- out of its appointed sphere, and that its action is void with respect to persons who are strangers, to its proceedings, are propositions established by a multitude of authorities. A defect in a judgment arising from the fact that the matter decided was not embraced within the issue has not, it would seem, received much judicial consideration. And yet I cannot doubt that, upon general principles, such a defect must avoid a judgment. . . . The invalidity of such a decree does not proceed from any mere arbitrary rule, but it rests entirely on the ground of common justice. A judgment upon a matter outside of the issue must, of necessity, be altogether arbitrary and unjust, as it concludes a point upon which the parties have not been heard. And it is upon this very ground that the parties have been heard, or have had the opportunity of a hearing, that the law gives so conclusive an effect to matters adjudicated. ’

“Also, this court, in the case of Rogers, County Treasurer v. Bass & Harbour, 150 Pac. 706, . . . held:

“ ‘A judgment which is entirely outside of any issue made by the pleadings or the evidence in the case is a nullity’- — following the earlier case of Anglea v. McMaster et al., 17 Old. 501, 87 Pac. 660, wherein the court held:

‘A judgment which is entirely outside of the issues in the case, and upon a matter not submitted to the court for its determination, is a nullity and may be vacated and set aside at any time, on motion of a party, or any person affected thereby. ’ ’ ’

Where the foreign judgment was entered by default on such facts as were alleged in the petition, as heretofore shown, there is even greater reason for the courts of a sister State to refuse to enforce it. Defendant, Brown, who was in default in the Oklahoma proceeding, admitted therein only the facts pleaded in the petition. (Farris v. Henderson, 1 Okla. 384, 33 Pac. 380.) The defendant in default is willing that the plaintiff in the particular proceeding be granted relief where the facts pleaded in such cause warrants, but no intendment can be indulged that he is willing that other relief be granted. (White v. McFarland, 148 Mo. App. 338, 128 S. W. 23; Northern Trust Co. v. Albert Lea College, 68 Minn. 112, 71 N. W. 9.) “Facts not alleged, though proved, cannot form the basis of a judgment by default, the only allegations of the petition fixed by the default being those traversable, and issues cannot be joined on mere conclusions of law.” LeClair v. Calls Him, 106 Okla. 247, 233 Pac. 1087. (See also Choi v. Turk, 55 Okla. 499, 154 Pac. 1000.)

It is the rule generally, as well as in Oklahoma, that a judgment by default for an amount greater than that to which plaintiff is entitled to under the pleadings is void. “A judgment of the court beyond the scope of the pleadings and beyond the scope of the issues then proper is a nullity and not binding upon the parties to the action.” Nero v. Brooks, 116 Okla. 279, 244 Pac. 588. (Also to same effect is Holshouser v. Holshouser, 166 Okla. 45, 26 P. (2d) 189.) It has been repeatedly held that where a foreign judgment is as fatally defective as that here in controversy, the question of such fatal defect may be raised to defeat such foreign judgment when an action based on same is brought in a sister State.

In holding that a judgment entered in another State may be questioned as to the existence of facts recited therein which were necessary to give the court jurisdiction, our Supreme Court in Van Dyke v. Illinois Commercial Men’s Ass’n, 358 Ill. 458, said at pp. 461 and 462:

“We have held that the record of a judgment rendered in another State may be questioned as to the existence of facts recited therein which were necessary to give the court jurisdiction. If it is made to appear that such facts did not exist the judgment will be held to be a nullity. It may be shown that there was a want of jurisdiction either of the subject matter or of the person. (Pembleton v. Illinois Commercial Men’s Ass’n, 289 Ill. 99; Field v. Field, 215 id. 496; Forsyth v. Barnes, 228 id, 326.) This same rule has been laid down in Thompson v. Whitman, 18 Wall. 457, Simmons v. Saul, 138 U. S. 439, and National Exchange Bank v. Wiley, 195 id. 257.”

In Pembleton v. Illinois Commercial Men’s Ass’n, 289 Ill. 99, it was said at p. 103: “It has been held by the Federal courts that the record of a judgment rendered in another State may be contradicted as to the facts necessary to give the court jurisdiction, and if it be shown that such facts did not exist the record will be a nullity, notwithstanding it may recite that they did exist; that want of jurisdiction may be shown either as to the subject matter or the person.”

In the case at bar plaintiff relies on his Oklahoma judgment for $4,744.39. Since this judgment is not responsive to the pleadings and is at variance with the facts pleaded in the cause in which it was rendered it must be held to be void. The fact that judgment for the lesser amount of $2,061.64, less certain credits, was properly entered in the foreign proceeding and could have been sued upon in this State, does not to any extent validate the void judgment for $4,744.39. In Reynolds v. Stockton, 140 U. S. 254, 35 L. Ed. 464; the facts, briefly stated, were as follows:

“A New Jersey insurance company reinsured the risks of a New York Company, took its assets, and assumed its liability. After the failure of the New Jersey company and the appointment of a receiver in New Jersey, and an ancillary receiver in New York, suit was brought against the latter in New York, by the holders of policies in the old New York company, seeking only to subject to their claims $100,000 of securities deposited by that company with the superintendent of the insurance department. Judgment was rendered against the receiver and the New Jersey company for a million dollars. ’ ’

In holding in that case that a judgment rendered in the absence of defendant and not responsive to the issues presented by the pleadings is not entitled to full faith and credit in a sister State, the United States Supreme Court said in 140 U. S. at pp. 266, 268, 269:

“In the opinion of the Court of Errors and Appeals, the case of Munday v. Vail, 34 N. J. Law, 418, is cited. In that case, the proposition stated in the syllabus, and which is fully sustained by the opinion, is, that ‘a decree in equity, which is entirely aside of the issue in the record, is invalid, and will be treated as a nullity, even in a collateral proceeding. ’ . . . We quote from the opinion:.1 The inquiry is, Had the court jurisdiction to the extent claimed? Jurisdiction may be defined to be the right to adjudicate concerning the subject matter in the given case. To constitute this there are three essentials: First, the court must have cognizance of the class of cases to which the one to be adjudged belongs; second, the proper parties must be present; and third, the point decided must be, in substance and effect, within the issue. That a court cannot go out of its appointed sphere, and that its action is void with respect to persons who are strangers to its proceedings, are propositions established by a multitude of authorities. A defect in a judgment arising from the fact that the matter decided was not embraced within the issue has not, it would seem, received much judicial consideration. And yet I cannot doubt that, upon general principles, such a defect must avoid a judgment. It is impossible to concede that because A and B are parties to a suit, a court can decide any matter in which they are interested, whether such matter be involved in the pending litigation or not. Persons by becoming suitors do not place themselves for all purposes under the control of the court, and it is only over these particular interests which they choose to draw in question, that a power of judicial decision arises. ’ And again: ‘A judgment upon a matter outside of the issue must, of necessity, be altogether arbitrary and unjust, as it concludes a point upon which the parties have not been heard. And it is upon this very ground that the parties have been heard, or have had the opportunity of a hearing, that the law gives so conclusive an effect to matters adjudicated. And this is the principal reason why judgments become estoppels. But records or judgments are not estoppels with reference to every matter contained in them. They have such efficacy only with respect to the substance of the controversy and its essential concomitants. Thus, Lord Coke, treating of this doctrine says: ‘A matter alleged that is neither traversable nor material shall not estop.’ ”

We are impelled to hold that the foreign judgment for $4,744.39 is not entitled to full faith and credit and cannot be the basis of a judgment in this State.

For the reasons indicated herein the judgment of the circuit court is reversed and judgment is entered here in favor of defendant and against plaintiff.

Reversed and judgment here for defendant.

Friend, P. J., and Scanlan, J., concur.


author: Mr. Presiding Justice Hall

text:
    Frank R. Leonard, Trustee of Estate of William H. Sampson, Deceased, et al., Appellants, v. Chicago Title and Trust Company et al., Appellees.
    Gen. No. 39,811.

      Opinion filed January 11, 1939.
    Fry & Fry, of Chicago, for appellants.
    Pomeroy & Colitz, of Chicago, for certain appellees; Paul F. Pomeroy, Patrick B. Prescott, Jr., and Charles F. G-rimes, of Chicago, of counsel.
    Maurice J. Walsh, of Chicago, for certain other appellee.
   Mr. Presiding Justice Hall

delivered the opinion of the court.

Plaintiffs filed a complaint in the superior court of Cook county, seeking to set aside a trust agreement entered into between William H. Sampson, now deceased, and the Chicago Title & Trust Company, dated March 23,1927, and praying for the transfer of certain shares of stock mentioned in this agreement to the estate of William H. Sampson. After a hearing before the court and on July 9, 1937, the court decreed that the complaint be dismissed for want of equity, with costs of the defendants to be taxed against the plaintiffs. The court further ordered that the guardian ad litem of a minor defendant be paid the sum of $500, to be also taxed as costs against the plaintiffs. This is an appeal from that decree.

The trust agreement referred to, among other provisions, contains the following:

“First. This trust shall continue for ten (10) years from the date hereof and at the expiration of the said ten (10) years (unless sooner terminated as hereinafter provided) said seventy (70) shares of stock be assigned, transferred and conveyed by said Trustee to Charles Leo Sampson, upon the payment by Charles Leo Sampson to said William H. Sampson of the sum of Seven Thousand ($7,000) Dollars.

“Second. If the said William H. Sampson shall decease prior to the expiration of the said ten (10) year period, then said seventy shares of stock shall be assigned, transferred and conveyed by the said Trustee to said Charles Leo Sampson, upon payment by said Charles Leo Sampson of the sum of Seven Thousand ($7,000) Dollars to Raymond J. Sampson, if said Raymond J. Sampson be then living. If, however, said Raymond J. Sampson be deceased at the time of said payment then said Seven Thousand ($7,000) Dollars shall be paid to the estate of said Raymond J. Sampson.

“Third. If the payment hereinabove provided for is not paid by the said Charles Leo Sampson at the time of termination of said Trust, either by limitation of time or the death of said first party, then this Trust shall continue in force until said payment of Seven Thousand ($7,000) Dollars is made, but in no case shall the trust continue for more than twenty-five years from date hereof.”

The complaint alleges that in accordance with the agreement, the 70 shares of stock referred to therein was subsequently transferred to the Chicago Title & Trust Company, in whose possession they still remain ; that William H. Sampson died on January 4, 1932; that he left Raymond J. Sampson and Charles Leo Sampson as his only heirs at law and next of kin; that the last will and testament of William H. Sampson was subsequently admitted to probate, and that Raymond J. Sampson was appointed administrator and qualified by filing bond. The will referred to, among other provisions, contains the following:

“I give and bequeath unto my son, Charles Leo Sampson, the sum of one hundred dollars ($100). The bequest to my said son, Charles Leo Sampson, is limited to the sum of one hundred dollars because I have heretofore, from time to time, made advances to him which amount, in the aggregate, to a considerable sum of money and have also, pursuant to the provisions of a certain agreement, in writing, entered into March 23, 1927 with my said son, deposited with the Chicago Title & Trust Co. as Trustee, in trust, certificates for a total of seventy shares of the capital stock of Sampson & Ollier Electrotype Co. which Shares, when delivered to my said son, will be sufficient to give him a controlling interest in the said Sampson & Ollier Electrotype Co.”

In general, the claim of the plaintiffs, as set forth in their complaint, is that the trust agreement is void because it is a violation of the rule against perpetuities, that the document referred to as a trust agreement is nothing more than an offer on the part of William H. Sampson to sell the 70 shares of stock mentioned in the agreement, to Charles Leo Sampson for $7,000, and that because the offer was not accepted in the lifetime of William H. Sampson, it expired with William H. Sampson’s death. Further, that the document referred to as a trust agreement constituted nothing more than the naming of the Chicago Title & Trust Company as agent for William H. Sampson, which was not done during Ms lifetime, and that the agency lapsed upon the death of William H. Sampson. The above grounds for relief as set forth in the complaint are in terms, grounds for reversal advanced by plaintiffs here. Plaintiffs also insist that the court was in error in taxing the guardian ad litem fees of $500 against them.

It is here to be noted that the document referred to is dated March 23, 1927, and that William H. Sampson died on January 4, 1932, less than 5 years after the execution of the instrument.

In Millikin Nat. Bank of Decatur v. Wilson, 343 Ill. 55, the rule against the creation of perpetuities is stated as follows : “ ‘No interest subject to a condition precedent is good, unless the condition must be fulfilled, if at all, within twenty-one years after some life in being at the creation of the interest, ’ is in force in Illinois. (Kales, Estates, Future Interests, (2d ed.) sec. 652; Howe v. Hodge, 152 Ill. 252). It is an inviolable rule of law and cannot be invoked to ascertain the testator’s intention. (Dime Savings and Trust Co. v. Watson, 254 Ill. 419). A limitation that may be too remote is void from the outset. (Wigram on Wills, part 2, O’Hara’s Interpretation of Wills, pp. 379, 380: Aldendifer v. Wylie, 306 Ill. 426; Barrett v. Barrett, 255 id. 332.) To escape the application of the rule, it must appear at the time the future interest is created, that, under any conceivable combination of circumstances, the interest will necessarily vest within the period prescribed. It is not sufficient that the future interest may vest within that period.”

As we construe the document in question, it means that under any and all circumstances, payment for the shares of stock mentioned in the agreement must be made by Charles Leo Sampson within his, Charles Leo Sampson’s, lifetime, and that upon such payment the title to the stock mentioned will become vested in Mm, and that the 25-year limitation mentioned means nothing more than that under any and all circumstances the payment must be made and the trust terminated within the period of 25 years, even though Charles Leo Sampson should live more than 25 years beyond the date of the execution of the instrument. This certainly is for a life in being, and we can see nothing in the instrument which can be construed to mean that it extends beyond that period.

We are of the opinion that the trust agreement is not void because it creates a perpetuity, and that the Chicago Title & Trust Company was, by the terms of the agreement, the trustee appointed by William H. Sampson to carry out the terms of the trust.

We find nothing in the record to indicate that in the court below any objection was made to the allowance of the fees for the guardian ad litem, and our attention is not called to any evidence offered on the subject as to whether the amount of fees charged was reasonable or unreasonable.

The motion to dismiss the appeal is denied, and the decree of the superior court of Cook county is affirmed.

Decree affirmed.

Hebel and Denis E. Sullivan, JJ., concur.


text:
    American Generator and Armature Company, Inc. et al., Appellants, v. Commonwealth Edison Company, Appellee.
    Gen. No. 40,097.

      Opinion filed January 11, 1939.
    Rehearing denied February 6, 1939.
    Shepard Andalman, of Chicago, for appellants; Shepard Andalman and Maxwell N. Andalman, of Chicago, of counsel.
    ScHNACKENBERG, HaNSEN & TOWLE and ISHAM, LlNcoln & Beale, both of Chicago, for appellee; Elmer J. ScHNACKENBERG, of COUllSel.
   Mr. Presiding Justice Hall

delivered the opinion of the court.

■ Plaintiff, the American Generator & Armature Co., Inc., together with a number of corporations and individuals, including the Atlantic India Rubber Works, Inc., filed a complaint and an amended complaint in the superior court of Cook county, in which it is claimed that the defendant had illegally, and without authority of law, charged the plaintiffs an excessive price for electrical energy for light and power purposes and for incandescent electric bulbs, or lamps. On October 14, 1937, upon defendant’s motion, the complaint was ordered dismissed at plaintiffs’ costs. Thereafter, on November 12,1937, the court denied a petition to vacate the order of October 14, 1937. This is an appeal from the two orders, the one of October 14, 1937, dismissing the amended complaint and the order of November 12, 1937, just above referred to.

In brief, the charge of the plaintiffs is that the defendant, a public utility engaged in the business of selling electrical energy and lamps, in its charges for electrical energy under its rates “A” or “A-2,” had included and concealed within them a charge per kilowatt hour of electricity used, the sum of $.005 for lamp service, which made the rates and practices in connection therewith, illegal; that proceedings had been instituted on September 25, 1925, before the State Utilities Commission to compel the cessation of the use of the illegal rates and practices and for reparations; that the commission had found against the petitioner in that case and that the cause was removed to the circuit court of Cook county, which, on June 26,1931, reversed the commission’s order; that a hearing on the matter was had before the circuit court of Cook county wherein the court found that the rate charged was illegal and entered a decree to that effect, which decree was affirmed by the Supreme Court in the case of Consumers Sanitary Coffee & Butter Stores v. Commerce Commission, 348 Ill. 615, but that in spite of such finding, the defendant persists in charging such illegal fees. They prayed for an injunction and an accounting.

In the motion to dismiss the complaint the defendant admits all the matters above stated, except the charge that it persists in making charges for electrical energy and lamps in violation of the order of the court, but on the other hand, in its motion to dismiss the complaint,' allege, — and the facts set forth are not disputed, — that after the decision of the Supreme Court in the case above referred to, defendant filed a petition with the Illinois commerce commission asking for the approval of certain revised schedules, entitled Bates A, A1 and A 2, and that the commission, after the taking of evidence, on November 23,1932, entered an order reciting historically all the facts in reference to these rates; that the commission found from the evidence submitted that the actual cost of furnishing the lamp service about which the controversy here is had, was .15 of a cent per kilowatt hour; that this cost was determined by taking the amount paid by certain defendants for lamps, plus expense (including overhead) of storing, handling and delivering lamps to customers; that there was next ascertained the number of kilowatt hours furnished by defendant to these customers receiving lamp service; that the expense of purchase, storage, handling and delivery of lamps was then divided by the number of kilowatt hours sold, and that the result gave the cost of .15 of a cent per kilowatt hour as the proper charge. It is also alleged in the motion to dismiss that accompanying the defendant’s application were schedules setting forth the proposed revised rates to become effective December 1, 1932, and that after a hearing the commission directed that the revised rates should be permitted to go into effect on December 1, 1932, and that with every bill rendered to each customer, such customer was notified that the obtaining of lamp service was optional, and that where the customer elected not to take the lamp service, his charge would be reduced by .15 of a cent per kilowatt hour, and that the commission’s order was further to the effect that nothing therein contained should be construed as in any way to prevent a further investigation and consideration of the charge made for lamp service • or the fixing of the charge at a different amount than $.0015 per kilowatt hour. It is further set forth in the motion to dismiss that on February 29,1936, the Atlantic India Rubber Works, a corporation and one of the plaintiffs here, filed a complaint with the Illinois commerce commission against the defendant, alleging that defendant was overcharging plaintiffs for lamp service at the rate of one-half cent per kilowatt hour of all electrical energy used for power purposes, that such charge was unfair, unjust, unreasonable and discriminatory and should be refunded, and prayed for an order to that effect, and that the complaint referred to is now and has been from the date of its filing, pending and undetermined before the Illinois commerce commission. No reason is given as to why the complaint has not been prosecuted.

It seems to be admitted by plaintiffs that the subject matter now pending before the Illinois commerce commission is the same subject matter as that involved in this proceeding. Plaintiffs insist, however, that the decision of the Supreme Court referred to “is binding upon the defendant for the benefit of the plaintiffs ’ ’; that “a violation thereof is subject to restraint”; that the circuit court had jurisdiction to enter the necessary restraining orders, and having taken jurisdiction would assess such damages and costs as might be determined to be due from the defendants. Defendant insists that the Illinois commerce commission has exclusive jurisdiction over the subject matter of the suit, that it has complied with the circuit court decree and the Supreme Court decision in the schedules filed with the commission above referred to, and by the approval by the commission of such schedules. ' It is not claimed that the new schedules are wrong.

We call attention to the following excerpts from the Public Utilities Act (Ill. Rev. Stat. 1937, ch. 111%, page 2472 [Jones Ill. Stats. Ann. 112.089, 112.090, 112.092, 112.093, 112.098]), with reference to the matters upon which plaintiffs predicate their complaint:

“Sec. 64. Complaint may be made ... by any person or corporation . . . setting forth any act or thing's done or omitted to be done in violation, or claimed to be in violation, of any provision of this Act, or of any order or rule of the commission. . . .

“Sec. 65. ... At the conclusion of such hearing the Commission shall make and render findings concerning the subject-matter and facts inquired into and enter its order based thereon. . . .

“Sec. 67. Anything in this Act to the contrary notwithstanding, the Commission may at any time, upon notice to the public utility affected, and after opportunity to be heard as provided in the ca.se of complaints, rescind, alter or amend any rule, regulation, order or decision made by it. . . .

“Sec. 68.....When no appeal is taken from, a rule, regulation, order or decision of the Commission, as herein provided, parties affected by such rule, regulation, order or decision, shall be deemed to have waived the right to have the merits of said controversy reviewed by a court and there shall be no trial of the merits of any controversy in which such rule, regulation, order or decision was made, by any court to which application may be made for a writ to enforce the same, or in any other judicial proceeding. . . .

“Sec. 72. When complaint has been made to the Commission concerning any rate or other charge of any public utility and the Commission has found, after a hearing, that the public utility has charged an excessive or unjustly discriminatory amount for its product, commodity or service, the Commission may order that the public utility make due reparation to the complainant therefor, with interest at the legal rate from the date of payment of such excessive or unjustly discriminatory amount. . . . The remedy provided in this section shall be cumulative, and in addition to any other remedy or remedies in this Act provided in case of failure of a public utility to obey a rule, regulation, order or decision of the Commission.”

As we read the record here, the same question is here involved as was involved in the case of Consumers Sanitary Coffee & Butter Stores v. Commerce Commission, supra, and as we read the statute, plaintiffs’ remedy is provided for thereby. In the Consumers case supra, in affirming the judgment of the circuit court of Cook county, the Supreme Court said:

“The lamp service charge was illegally combined with the energy charge. The amount of such illegal charge must be ascertained in order to determine what is due appellee from appellant by way of reparation under section 72 of the act concerning public utilities. (Cahill’s Stat. 1931, chap. 111a, par. 91.) It should be definitely ascertained and fixed in the commission’s order upon-the rehearing of this cause.

“The order of the circuit court in setting aside the order of the Commerce Commission and in remanding the cause to the commission for further proceedings is affirmed.”

In Great Northern Ry. Co. v. Merchants Elevator Co., 259 U. S. 285, the Supreme Court said:

“Whenever a rate, rule, or practice is attacked as unreasonable or as unjustly discriminatory, there must be preliminary resort to the Commission. Sometimes this is required because the function being exercised is in its nature administrative, in contradistinction to judicial. But, ordinarily the determining factor is not the character of the function, but the character of the controverted question and the nature of the inquiry necessary for its solution. To determine what rate, rule, or practice shall be deemed reasonable for the future is a legislative or administrative function. To determine whether a shipper has in the past been wronged by the exaction of an unreasonable or discriminatory rate is a judicial function. Preliminary resort to the Commission is required alike in the two classes of cases. It is required because the inquiry is essentially one of fact and of discretion in technical matters; and uniformity can be secured only if its determination is left to the Commission. Moreover, that determination is reached ordinarily upon voluminous and conflicting evidence, for the adequate appreciation of which acquaintance with many intricate facts of transportation is indispensable; and such acquaintance is commonly to be found only in a body of experts.”

As we view the conclusion of our Supreme Court in the Consumers case, supra, that court, in effect, adopted the same rule as that adopted by the Supreme Court of the United States. We, therefore, hold that if plaintiffs have been wronged, as alleged, their remedy is provided for by statute, as suggested by the mandate in the Consumers ease,' and that insofar as the issues presented here are concerned, that remedy, at present, is exclusive. The judgment of the superior court of Cook county in dismissing the petition is, therefore, affirmed.

Judgment affirmed.

Hebel and Denis E. Sullivan, JJ., concur.