author: Mr. Justice Friend

text:
    The People of the State of Illinois, Defendant in Error, v. William Carmen et al., Plaintiffs in Error.
    Gen. No. 39,184.

      Heard in the second division of this court for the first district at the October term, 1936.
    Opinion filed March 30, 1937.
    Rehearing denied and additional opinion filed April 16, 1937.
    Harold L. Levy and Wm. Scott Stewart, of Chicago, for certain plaintiffs in error.
    N. Rothblum, of Chicago, for certain other plaintiff in error.
    Thomas J. Courtney, State’s Attorney, for defendant in error; Edward E. Wilson, C. Vernon Thompson and William J. Lynch, Jr., Assistant State’s Attorneys, of counsel.
   Mr. Justice Friend

delivered the opinion of the court.

William Carmen, J. E. Stinson and Henry T. Sather were tried in the criminal court under an indictment consisting of 12 counts, charging conspiracy. The jury returned verdicts finding all defendants guilty. They were sentenced, under the statute, to the penitentiary for terms of not less than one year or more than five. The prosecution of this writ of error followed.

There were counts in the indictment charging that the defendants unlawfully, wilfully, fraudulently and deceitfully conspired, combined and confederated with each other, and with divers persons unknown to the grand jury unlawfully, wrongfully, wickedly, knowingly and designedly to cheat and defraud holders of obligations, securities, stock certificates and indentures of any kind or nature whatever, issued by the Great Eastern Natural Gas Company; separate counts charging that defendants conspired to so cheat and defraud one Ross J. Beatty, one Margory Cowan and one Frank J. Buckridge; counts charging conspiracy to obtain the personal property of the holders of obligations of the Great Eastern Natural Gas Company by false pretenses and also to obtain the property of Cowan, Beatty and Buckridge by false pretenses.

The case was presented to the jury under three separate transactions. It was first shown that Margory Cowan conducted a dress shop at 58 E. Washington street, Chicago. In December, 1935, defendant Stinson called at her place of business to purchase 500 shares of the Great Eastern Natural Gas Stock which she owned. Stinson told her that some of the Great Eastern stock had been sold to the Trinidad International Petroleum Company, which had purchased some land from the Great Eastern, and that there were some very valuable notes connected with the Great Eastern that were then selling on the London market, and that he wanted to acquire some stock so that he could sell it on the English market, where it was bringing around $5 a share. Stinson told Miss Cowan that the Trinidad International was successfully operating properties in the West Indies. It appears from the evidence that Miss Cowan then said to Stinson, “If you can make money on this stock, why couldn’t I?” and he replied, “Yes, you can if you have the money or if you can get the money.” Miss Cowan told him that she had had financial reverses and would have to borrow money from her sister’s bank account; that there had been sickness in her family, business was not very good, and that she had lost substantially everything she had and could not afford to lose “one dollar or even a penny.” Stinson then told her “I have already checked this, and it is absolutely O. K. Do you think I would be out buying the stock if it wasn’t?”; that he wanted to buy the stock because there was an opportunity to make some money. He thereupon gave her his card, and in leaving said “in yonr case I might raise this a little,” and offered her 50 cents a share, which would aggregate $250 for her stock.

About three days later William Carmen, who had various aliases, telephoned Miss Cowan and told her his name was Cameron; that he had just returned from New York and should have seen her on his way to New York, but that he was very busy with other stockholders and was now returning to Los Angeles; that he desired to acquire her stock and exchange it for Trinidad International Petroleum, because Mr. Dan-zinger, his superior, had sent him out to purchase stock. Following this conversation Cameron went over to see Miss Cowan at her place of business. He said it was his mission to see her about the exchange of the Great Eastern stock and the Trinidad Petroleum notes. Miss Cowan told Cameron (or Carmen) that she was not inclined to do anything about it because of her many responsibilities and sickness in the family. Cameron replied that if she would let him explain the transaction he could probably get her to see it in a different light. He represented the Trinidad International Petroleum Company as a very successful concern, took out a book and showed her the location of a great many oil wells that were operating successfully in the West Indies. Miss Cowan then asked him why, if the company was so successful, it did not retire the notes in question, and Cameron replied, “My goodness, that cannot be done until, they have been sold out,” and that the Trinidad notes were 20 per cent profit bearing notes and would be closed out in February; that the company owned valuable property in Ethiopia, and if it wasn’t for the war it would be operating there. The proposed transaction was explained to Miss Cowan as follows: She was to. give her 500 shares of stock and $1,500 in cash, and in return was to receive $2,500 and 500 shares of the Trinidad International Petroleum. This she could keep or sell, as she chose. Cameron told her that the Trinidad stock was listed on the London and New York stock exchanges, and assured her again that the company was operating extensively and producing oil in abundance from wells which it owned. Miss Cowan gave him her stock and the $1,500. Cameron said that he had been in the oil fields during the greater part of his life and knew about oil wells; that the Great Eastern was a good company, and its president was one of the cleverest men in the country and a great geologist. Miss Cowan called Cameron’s attention to the fact that Stinson had called on her, and showed him Stinson’s writing. He looked at it and said “that is strange, so many people who own Great Eastern stock have told me the same thing. They had had other people call them from New York and other places”; and that “we didn’t want this thing to be known. We wanted to keep it quiet”; that Mr. Danzinger had sent him out to clean up the situation and be through with it. He read Stinson’s paper over and remarked that, although he did not know Stinson and had never met him, Stinson had the situation right. After she had signed checks and turned over the stock to Cameron she called Stinson and asked him about the stock; he said “I spent all my money on 1,000 shares that I bought for myself.” Miss Cowan asked him if he was going to sell the stock, and Stinson said “No, I’m going to wait for it to be retired.” She then inquired whether he had ever met a man named Cameron, and he said that he had not. She told him that a man named Cameron had come in to see her, and asked Stinson whether he would recommend her going along with the transaction, and Stinson replied, “Yes, there is no uncertainty about it. ” Miss Cowan later had another conversation with Stinson, in which she told him that some of her friends were criticizing her for entering into the transaction. Stinson assured her that she •need not be concerned, that people had also criticized him. for buying the stock, and that he was not selling his stock but was waiting for it to be retired in February. Cameron again called on Miss Cowan about January 8, 1936, to tell her when the Trinidad notes would be paid, and spoke of a man having died leaving 5,000 shares of Great Eastern stock which he could probably acquire for $1 a share inasmuch as the estate wanted the matter settled quickly, and he showed Miss Cowan a pocketbook supposed to contain $2,500, told her that he would like to sell part of this new stock as money seemed plentiful, but was hard to get, and that he thought he had a man who would take this stock off his hands.

It was shown on cross-examination that Miss Cowan was 58 years of age and had been in business some 15 or 18 years. The card given Miss Cowan by Stinson read “Consolidated Realty Company.” When Cameron was arrested he had $2,000 in his pocket. Miss Cowan subsequently brought suit and they paid her $1,500 upon dismissal of the proceeding. Other relevant facts disclosed by the evidence showed that Cameron had represented the principal offices of the company as being in the Continental Building at Los Angeles, Calif., and that Danzinger, mentioned as Cameron’s superior, had been connected with large oil companies throughout the world for a period of 20 years.

The second transaction was had with Frank J. Buck-ridge, who owned 500 shares of Great Eastern stock. A man giving his name as Anderson called on Buck-ridge and said he wanted to buy this stock because there was a company on the west coast that would allow $2 for every share of Great Eastern stock, and he and his partner were going to buy up these shares. He explained to Buckridge that this company on the west coast would allow $2 a share to apply on the Trinidad International Petroleum stock, which was selling on the English exchange at $5 a share, and that there was a note that would mature in a couple of months and they would realize a profit on that note and were going to take the Great Eastern stock and put it up as collateral. Anderson called on Buckridge only once, but later contacted him over the telephone on several occasions. He told Buckridge that if he desired to sell his stock, he would have to have a certificate of right from the Wake Development Company. Early in January, 1936, Buckridg’e went to the hospital. Some one telephoned him there and said he desired to see him. Buckridge said he wasn’t in condition to talk at that time and the party calling told Buckridge that he "was leaving for Los Angeles that night and it was important that he should see him before leaving. Buckridge suggested taking a cab and coming over, but the party calling did not arrive that night. January 8, Cameron called at the hospital and told Buckridge that he represented the Wake Development Company, Los Angeles, Calif., and wanted to talk about the Trinidad International Petroleum stock. Buckridge then called Anderson and said “look here, you are trying to buy this stock; now here is a fellow telling me not to sell it, but to buy Trinidad International,” to which Anderson replied, “there must be some mistake, because I have a partner by the name of Conklin.” While at the hospital Cameron tried to explain the transaction to Buckridge and showed him letterheads containing the names of various officers represented as being engaged in some “big oil deals.” Buckridge told Cameron that he never did anything on impulse, especially if he was suspicious; that he had requested a friend of his in Philadelphia to check on the matter and make inquiries at Wilmington and see what information could be obtained about the Great Eastern Natural Gas Company, or find out something about the Wake Development Company; that he had been advised that these concerns did not not even have an office in Wilmington, but only a telephone in a room with many other telephones. Buckridge also told Cameron that he had checked on the New York office and couldn’t secure any information from the vice president or the executives of the Great Eastern Natural Gas Company; that he had written to Los Angeles and had been advised that if he could get 50 cents a share for the Great Eastern stock he had better take it, because “this thing looks fishy,” inasmuch as inquiry disclosed that the Wake Development Company and the Trinidad International Petroleum Company were all in the same office and their affairs were in charge of the same people. Finally Buckridge told Cameron that before putting any money into the matter he wished to think it over further, and Cameron said “I am going to Cincinnati tonight.” Buckridge then called his attention to the fact that he had said he was going to Los Angeles, and Cameron said “My plans are changed, I am going to Cincinnati and from there to Dayton and then to Detroit; when you decide to buy this stuff or make this exchange and get your rights, write the Wake Development Company and send a check at that time for $1,500.” Cameron then asked Buckridge if he had $1,500, and upon Buck-ridge’s assurance that he did, Cameron explained that there would be an allowance of $2 a share for every share of Great Eastern owned, and there was $3 a share for every share of Trinidad International; that for every share there was a pound note that would mature in February, or at the very latest in March, and that Buckridge would realize a five pound note for every share. He told Buckridge the stock was listed on the English exchange, and was being quoted at a pound, which was equivalent to $5 in American money; and that there were oil lands in Mexico. When asked why Trinidad International was so generous in allowing $2 for the Great Eastern, Cameron explained that one of the stockholders held an option and owned the property in Mexico, which in turn owned all the surrounding property, and it was taking in this stockholder because he had more than 200,000 shares of the Great Eastern Natural Gas stock. Buckridge asked Cameron if he knew Anderson, and Cameron said that he did not and in fact he did not know anybody in Chicago, and he said to Buckridge “don’t have anything to do with them, they couldn’t do anything with the stock anyway unless they had the rights.” At the trial Buckridge pointed out defendant Henry T. Sather as being the man who called on him and gave his name as Anderson.

The third transaction was had with Boss J. Beatty, who on January 4,1936, received a telephone call from a man by the name of Stinson, whom he had known before. Stinson called on Beatty and said “I know we owe you some money and haven’t been able to pay it, but we have a matter I want to discuss with you.” Beatty insisted that his son be present at the conversation. Accordingly, with his son, he went to see Stinson in Harris’s office. It appears from the evidence that Harris was an alias for Sather, otherwise known as Anderson. When they reached the office nobody was there except Stinson, but later Harris came in. Stinson told Beatty that he had had “a sort of break across his path”; that he had bought some Great Eastern stock several days before and that he thought he was making a good investment but it had dwindled down so that it was practically of no value; but that he received a letter from the Wake Development Company of Los Angeles telling him that from the record it knew he was a holder of some stock in the Great Eastern Company; that it was underwriting it and had a plan whereby it had use for the stock and would have a representative call on Stinson and present the plan; that Cameron had come to see him and told him how to handle the Great Eastern stock and exchange it for Trinidad International Petroleum; that a value of $2 a share had been placed on Great Eastern for purposes of the exchange, and in order to consummate the deal the offer had been raised to $3. Stinson told Beatty this sounded very good to him, inasmuch as the Trinidad Company did business all over the world and were international in character; that it had tremendous holdings of oil lands, and the fact that these notes of $5 value were going to be called in four instalments during the month of February would result in the return of practically all the money during that month, with the result that they would have the Trinidad Petroleum stock free to sell or hold, as they chose; that he, Cameron, had 5,000 shares, but did not have the money to invest, and wanted to explain the transaction to see what Beatty thought about it. Stinson told Beatty that Cameron, who presented the plan, was likely to come in any minute, and while they were talking the arrival of Cameron was announced. Stinson told Cameron that he had been telling Beatty about the deal, that he couldn’t raise the money, that he might as well be frank and tell Cameron that he owed Beatty money, and that if he could get Beatty into the deal it would enable him to pay his obligation to Beatty. Cameron said he thought it could be arranged, and told Stinson “I haven’t much time to spare, I have a great many stockholders of the Great Eastern Natural Gas Company to be called on to present this proposition to them, and they either accept it, sign the acceptance on this stock, or acknowledge on the back of it that it has been presented to them and they declined it.” Cameron said that he represented the Wake Development Company of Los Angeles, the underwriters of this deal, and that it was more or less connected with the Doheny outfit on the Pacific coast, and also with Mr. Danzinger, a prominent oil operator in different parts of the country. Cameron told of his travels, that he had spent much time in Paris and London, and about the holdings of the Trinidad Company in different parts of the world, and about Mussolini having oil lands that Danzinger had tied up for the benefit of this company ; that Mussolini and Danzinger were close friends and had entered into a deal covering an enormous field in Ethiopia, which it couldn’t operate because of the existing war between Italy and Ethiopia; he said “after while we will get around it,” and that there was no doubt but that it would increase the value of the Trinidad International Petroleum stock at least one hundred million, and that if they would hold their stock they would make a great profit. He also explained that the reason that the stock wasn’t listed in this country was that it was financed in London, but that it. was listed oh the board of trade in London. After Harris, Stinson’s associate, had listened to practically all the conversation, he arose and passed Beatty’s chair, saying “I guess there is no need of my staying here any longer, I will go out and see if I can earn an honest dollar.” Before Cameron came in Stinson had told Beatty that the stock was listed in London, and said “I went out and bought a New York paper, in order to check it up. Excuse me, I will go into one of the other offices and I will get the paper,” and he procured it and showed Beatty the name “Trinidad” listed there at so many pence and shillings, and said that this was their stock; also that the Great Eastern Company had big holdings in Mexico and New Mexico, and large holdings in the vicinity of the Trinidad Petroleum lands; all of which made it necessary that it get control of these properties.

Stinson had sought to interest Beatty to the extent of. $15,000, and after these various conversations Beatty told him that he would see if he could raise the money. Stinson called again the following day. Cameron was expected, but before he came Stinson told Beatty he wanted to talk about how they would divide the contemplated profit of $50,000. A receipt had been signed by J. E. Stinson and one by W. C. Cameron for the Wake Development Company. A letter had been written to the Wake Development Company signed by Stinson, and a power of attorney by Stinson to Beatty. All these documents were received in evidence. While Stinson was seeking to consummate this deal the police officers came in and arrested him.

William S. O’Neill, a police officer assigned to the blue sky department of the State’s attorney’s office, went to a room at No. 1 LaSalle street, which Beatty occupied. After waiting there a while Stinson came in, followed by Carmen, or Carter, as he was also known. Carmen told Beatty that he wanted to see what he could do for his friend Stinson; that.he was an agent for the Trinidad Company, working for the Wake Development Company; that he had just met Stinson a couple of days before, and had taken a liking to him; then again related the value of the respective shares of stock, spoke of Danzinger, the Ethiopian situation and oil properties in Mexico, and of the various valuable holdings of the company. Carmen then called a stenographer and dictated a power of attorney and told the Beattys to draw their check for $15,000 and send it with the power of attorney to the Wake Development Company in Los Angeles. He said the oil well was owned by the Trinidad International Company and-that it was the greatest oil well in the world. After Carmen drew up the power of attorney and asked that check for $15,000 be drawn payable to the Wake Development Company he got up, put on his coat and said he was in a hurry to get away. The officer placed him and also Stinson under arrest. When they reached the State’s attorney’s office the officer asked Carter his name. Carter said that it was either Carmen or Carter, and that he had no particular abode. Later on he told the officer that he lived at the Morrison hotel. He finally changed it to the Stevens hotel, and then said “I am at the Morrison but I didn’t stay there last night.” The officer then asked him what his real name was. He said “I use so many names I don’t know what name I am registered under.” The officer then told him that he was arrested on charges of selling Trinidad International Petroleum, and Carmen said “if you are going to lock me up I will tell you where I live,” and asked to be taken to the Congress hotel. The officer took him there, and as he entered the lobby Carmen said “you don’t know what name I am under here, let me get the key.” He procured the key and went up to room M 52, inserted the key in the door and opened it and then pointed to his luggage, consisting of four or five bags. Almost immediately thereafter the telephone rang. Carmen answered and the officer said, “Tell whoever that is to come up,” but he heard Carmen say: “Nope, he isn’t here. I tell you he isn’t here, but he is over at the State’s attorney’s office. I am up here with a couple of coppers, the joint is hot.” The officer then asked Carmen who called and he said “Some guy,” and shortly thereafter there was a knock at the door and Harris, or Anderson, smoking a cigar, entered and said: “I am just in time,” and the officer told him to come in and sit down and close the' door, and upon being asked his name Harris replied ‘ ‘ Oh, I am in the wrong place, I will be going,” to which the officer replied “wait a minute, what is your name and who is this man?” Harris replied “I don’t know him. I never saw him in my life.” Then Carmen spoke up and said: “Oh, tell them everything. They’ve got our play house knocked over. They know all about the racket.” Carmen then said to Harris: “Did you want the hotel to fall down on your head, I told you the place was hot and full of coppers, but you came in, so sit down and make yourself at home.” Thereupon Harris, or Anderson, alias Sather, said: “Gee, I figured you were throwing a little party and celebration and didn’t want me in, that’s why I came up.” The next day Miss Cowan was brought into the room where Carmen, Anderson or Harris were seated, and Carmen looked at her and said: “That was a lousy touch, I will kick that touch back to her. I never went in for shawl touches in my life.” The officer testified that he inquired what “shawl touches” meant, and Carmen said that was “taking money from an old woman.” While still in the custody of the police, January 11, 1936, Carmen told the officers that his right name was “Carter,” but that he also used the names “Calvert” and “Cameron”; that he was registered at the Congress hotel under the name of Calvert, and at the Morrison hotel under the name of Carmen. He also told the officers that Danzinger, the proprietor of the Wake Development Company, was in Europe at the time, and that Alda Fallmer was a stenographer and clerk at the Wake Development Company, in Los Angeles, and was a sister-in-law of Danzinger and one of the officers of the Trinidad International Petroleum Company. The officers asked Carter if the stock was listed on the London exchange and he said it was not, that in fact it was not listed on any exchange. Carter also told the officers that the pound notes referred to in the various conversations were not listed anywhere; that they were just a kind of a “come on” to give prospective purchasers the idea of an extra bonus; and that they did not have any oil wells anywhere in operation, but intended to develop some later.

On oral argument defendants’ counsel confined himself to the single contention that the judgment ought to be reversed because the State failed to prove that the representations made were false, and he conceded that if such proof had been adduced under any count of the indictment the conviction could be sustained.

The State relies principally upon two decisions. The first of these is People v. Strosnider, 264 Ill. 434. In that case an indictment was returned against Strosnider and several others. It consisted of two counts, the second of which was nolle prossed, and the trial proceeded on the first count charging defendants with obtaining money by means of the confidence game. William T. Kirby conducted a private bank in Chicago, and during the summer of 1912 became acquainted with a stranger whom he afterward knew as Charles Kissell. Kissell represented to Kirby that he had a brother-in-law connected with a large corporation who wished to discuss an important business proposition. By appointment Kirby and Kissell proceeded to the Grand Pacific hotel, where they met Strosnider, who, after obtaining- Kirby’s promise of secrecy, told him that he was a confidential man in the employ of the Western Union Telegraph Company and had been transferred to Chicago to decipher codes for transmitting and receiving the results of horse races from the various race tracks of the country, and a plan was outlined by which Kirby and Kissell were to station themselves in a drug store in the vicinity of a bookmaking establishment where bets could be placed, receive the results of the races from Strosnider by telephone and thereafter place bets on the winning horse on information telephoned by Strosnider. Through this means Kirby was induced to place a bet of $20,000 on “Lucky George,” a horse that finished second. Immediately after the race Strosnider met Kirby and said he must have misunderstood the telephone message, inasmuch as his advice was to bet on the horse to place and not to win. Strosnider tried to induce Kirby to place another bet the following day and assured him that they would recover the money lost, but Kirby said he had no more money, and Strosnider thereupon promised to obtain money from a friend in Milwaukee, return the $20,000 to Kirby and use the balance for placing some additional bets. Shortly thereafter Strosnider disappeared, and Kirby never again saw him or Kissell until after they were apprehended. In that case the contention was likewise made that the verdict was not sustained by the evidence, upon the assumption that there was no proof that any of the representations made to Kirby, which induced him to bet $20,000 on “Lucky George,” were false and that consequently the corpus delicti of the crime, with which Strosnider was charged, was not proven. In discussing this contention, the court said (p. 450):

“It may be conceded that there is no direct evidence showing the falsity of the statements and representations made by plaintiff in error to Kirby to induce him to bet on Lucky George at the alleged pool room, and that it was necessary to prove the falsity of such statements or representations in order to establish the corpus delicti of the crime, still it was not necessary to prove such matters by direct evidence. The corpus delicti may be proven by circumstantial evidence. (People v. See, 258 Ill. 152; People v. Hotz, 261 id. 239.) The circumstances disclosed by the evidence in this case fully warranted the jury in believing that the various statements and representations made by plaintiff in error to Kirby concerning his connection with the Western Union Telegraph Company and his ability to learn the results of horse races before such information was communicated to pool rooms were false. In our judgment the evidence conclusively shows that Kirby was the victim of a fraudulent scheme, in the execution of which plaintiff in error took an active, prominent part; that as a part of this scheme the rooms at 1710 Michigan avenue were arranged by plaintiff in error and his associates to represent a pool room where bets could be made upon the results of horse races, but that the apparent bet there made with Kirby was, in fact, a swindling operation, in which advantage was taken of the confidence reposed by Kirby in plaintiff in error. No attempt was made by plaintiff in error to explain any of the circumstances which, in the absence of explanation, inevitably lead to the conclusion that plaintiff in error is guilty of the crime of which he was convicted.” This decision was followed by People v. Harrington, 310 Ill. 613, wherein one Rutkauskas, of Lithuanian descent, became acquainted with Harrington and one Lebecki. About a year after the parties met Lebecki told Ratkauskas that Harrington was a broker and did business in Wall street, New York, bought buildings, stocks and other things, and that' he had some investments that would pay 50 per cent for every $100 invested within a period of six weeks. Rutkauskas invested $150 and his brother and one John Stapits each invested $100. This money was paid to Harrington, who assured them that it was a good investment, and that they “will make lots of money.” From time to time thereafter Rutkauskas and various others made investments with Harrington, which ultimately totaled $30,000, and Rutkauskas himself invested $1,200 of this amount. Defendants were charged with obtaining money by means of the confidence game, and it was there likewise contended that the State had not proved the falsity of the statements made by defendants to their victims. The court cited People v. Strosnider, supra, and said that the gist of the crime is the obtaining of the confidence of the victim by' some false representation, and that the fact that the representations made were false may be proven by circumstantial evidence. In discussing the question under consideration the court said (p. 616):
“The returns which plaintiffs in error promised were many times larger than returns ordinarily expected from legitimate undertaldngs, and the natural inference to be drawn by any well-informed person would be that the proposition offered by plaintiffs in error was fraudulent. Plaintiffs in error represented to their customers that they had connections with Wall street and that they made these extraordinary returns by dealing in stocks and real estate. If these statements were true plaintiffs in error could have proven their truth. With nothing but the description of the scheme before them the jury were fully warranted in believing the statements were false.”

In respect to the extravagance of the representations made by the defendants in this proceeding, it may likewise be said that the returns promised “were many times larger than those ordinarily expected from legitimate undertakings.” Moreover, Carter admitted the statements were false and that was admissible against him; and there is evidence that the other defendants told Miss Cowan and Mr. Buckridge that they were trying to reach all those who owned Great Eastern stock. In the nature of things it would be impossible for the State to show the falsity of representations that these oil companies had properties in Ethiopia and the West Indies, that Danzinger was a close friend of Mussolini’s, that operations of wells in Ethiopia were temporarily delayed because of the Italian-Ethiopian war, that these companies had valuable properties in Mexico and New Mexico, and that their securities were listed on the London exchange. None of the defendants took the stand to explain these extravagant representations or any of the circumstances testified to by the State’s witnesses, and we think the jury were fully warranted, in the absence of any countervailing proof or explanation, in believing that the representations were false.

Various other points are urged as ground for reversal, but we find in them no convincing reasons for reversal. Upon the evidence presented, the jury could not well have arrived at any other verdict. Therefore the judgment of the criminal court is affirmed.

Affirmed.

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

Additional Opinion Upon Petition for Rehearing.

Plaintiff in error, J. E. Stinson, filed a petition for rehearing in which his present counsel, who came into the proceeding since the opinion was filed for the sole purpose of presenting the petition for rehearing, asserts that we “necessarily must have overlooked the fact that instruction No. 9, given at the instance of the State, told the jury that in the event the jurors signed the verdict finding defendants guilty of conspiracy ‘it then became the province of the court to determine the punishment to be given, which cannot be in this instance more than one year in the county jail or a fine not to exceed $2,000, or both.’ ”

The original briefs.were prepared and filed by able counsel who represented all the defendants, including Stinson, and no criticism whatsoever was made as to any instruction. The first mention of the foregoing instruction is contained in Stinson’s petition for rehearing.

Eule 13 of the Appellate Court provides the time within which petition for rehearing shall be filed, and that “such petition shall state concisely the points supposed to have been overlooked or misapprehended by the court, with proper reference to the particular portion of the original abstract and brief relied upon. ’ ’ (Italics ours.)

The rule is well established that a petition for rehearing may not raise new points. (Scott v. Scott, 307 Ill. 586.) The right to rehearing is not statutory, hut is based upon the desire of the court to correct inadvertent errors. (Vickers v. Tyndall, 168 Ill. 616.) It has been the general practice of courts of review, whén petitions for rehearing are presented, to pass only on points raised in the original briefs. Errors of record not argued are considered waived, upon the theory that if a party does not feel aggrieved by reason of an error the court will not be required to search the record for possible errors not raised. In Hughes v. People, 223 Ill. 417, it was held that an error which was not pointed out in the printed brief cannot afterward be raised either by reply brief, oral, printed argument, or on petition for rehearing.

We do not wish to imply that there is any merit to the criticism made of the instruction, but under the circumstances we feel that the settled rule should be adhered to. The petition is therefore denied.

Petition for rehearing denied.


source: Caselaw Access Project

author: Mr. Presiding Justice Huffman

license: Public Domain

text:
    Clarence E. Bachellor and Thomas E. Robinson, Appellees, v. Albert Dockterman et al., Appellants.
    Gen. No. 9,203.

      Heard in this court at the May term, 1937.
    Opinion filed September 9, 1937.
    Ray I. Klingbiel, of East Moline, for appellant Albert Dockterman.
    Herman H. Rimmerman, of Rock Island, for appellant Milo Dockterman.
    Ben A. Stewart, of Chicago, for appellant I. C. Gellman; Ben A. Stewart, of counsel.
    Murphy & Murphy, of Rock Island, for appellees.
   Mr. Presiding Justice Huffman

delivered the opinion of the court.

Appellees were judgment creditors of Albert Dockterman pursuant to a judgment recovered on June 12, 1933, in the circuit court of Whiteside county. A transcript of this judgment was filed in the office of the clerk of the circuit court of Rock Island county, during the same month. On June 1, 1933, Dockterman conveyed to appellant Gellman lot 28 in Exposition Park addition to the city of Rock Island. On October 4,1934, Gellman conveyed this lot to Milo Dockterman, who subsequently executed a contract for sale of the premises to Frank Zarub.

On October 30, 1934, appellees brought a suit in the circuit court of Eock Island county, designated as case No. 14,258, against Albert Dockterman, Anna Taxman, Grellman and others, to set aside deeds to certain tracts of land, including said lot 28, on the grounds that the same were fraudulent and made with the intent and for the purpose of defrauding appellees of their judgment and thereby hindering and preventing them from reaching said lands by legal process. To this complaint Grellman filed his answer, setting up that the deed for lot 28 was taken to secure indebtedness due him from Albert Dockterman, denying all fraud and collusion charged, together with other allegations going toward the establishment of his rights in said lot.

While the above suit was pending, appellees brought a second suit in the same court, directed only toward lot 28, praying for the same relief with respect to said lot, as in the first suit. In this second suit, Grellman was not made a party defendant. The second suit was referred to the master, who reported in favor of appellees. Objections to the report were overruled by the master. Subsequently, Grellman filed his verified petition in the trial court for leave to be made a party defendant to the second suit, setting up that the subject matter of both the first and second suits with respect to lot 28 was the same; that the judgment indebtedness upon which relief was being sought was the same; and that he had filed an answer to the first suit which was then pending and undetermined. He set up the indebtedness due him by Albert Dockterman in the sum of $7,350, with failure to pay; the conveyance of lot 28 on June 1, 1933, because of said indebtedness; that the lot was then subject to a mortgage of $2,000. and taxes and special assessments in the approximate sum of $200; that after taking the deed to the lot, he discharged the mortgage indebtedness by a compromise settlement, and paid the delinquent taxes; that the lot is improved by a frame dwelling worth about $1,500; that he subsequently conveyed the lot to Milo Dockterman for that sum of money, upon which purchase price he had received $100 upon the principal and $45 on account of interest; that he received no security for the payment of the purchase price from the said Milo Doekterman. He further set up his claim to the right to a lien thereon for the unpaid purchase price; and further his right to be subrogated to the holder of the mortgage indebtedness which he had discharged. The court denied appellant leave to be made a party defendant to this proceeding, and entered a decree in favor of appellees with respect to lot 28, holding that the deed from Albert Doekterman to Gellman, the deed from Gellman to Milo Doekterman, and the contract of sale from Milo Doekterman to Frank Zarub, should all be set aside, vacated and held as null and void as to appellees’ rights as judgment creditors of Albert Doekterman. Whereupon, Albert Doekterman, Milo Doekterman, and Gellman have prosecuted this appeal.

A party intervening must show that he has a substantial interest in the subject matter of the suit, and of such a character that his rights will be directly affected by the decree entered. He takes the suit as he finds it, and may not insist upon a change in the issues. It appears that Gellman claims the transactions were bona fide and not fraudulent. This was the subject matter of the litigation. Gellman being charged with fraud and collusion in the transfers of property in which he claims a beneficial interest, it is thus apparent that his becoming a party to the suit would have in no way resulted in changing the issues between the parties or in raising new issues. Persons claiming a substantial legal or beneficial interest in the subject matter of a suit in equity, when such rights will be materially affected by the decree, should be made parties. Schumacher v. Klitzing, 353 Ill. 530, 532; Gaumer v. Snedeher, 330 Ill. 511, 515; Riley v. Webb, 272 Ill. 537; Cowan v. Kane, 211 Ill. 572, 577. A full and complete determination of this case cannot be had without a finding on the question of fraud and collusion between Albert Doekterman and Gellman, and between Gellman and Milo Doekterman, with reference to the deeds. His rights as claimed appear to be so involved in this proceeding, that a final determination thereof must affect them.

The question is, not whether his rights are such as to prevail — this question can only be determined by a hearing upon the merits. All that can be determined in this appeal is whether Gellman has shown by his petition such an interest in the subject matter of the litigation as to entitle him to the right to intervene.

In equity, although no one is entitled to be made or become a party to a suit who has not an interest in its object, yet it is the usual and better practice to permit strangers to the litigation who claim an interest in the subject matter, to intervene and assert their titles on their own behalf. This is especially true where it appears that a decree cannot be rendered without affecting such person’s rights as claimed. Under such circumstances it is proper to permit such person to intervene in order that all questions may be finally determined and an effective decree rendered.

Gellman cannot be considered a mere interloper or intermeddler. He claims a substantial interest in the litigation. The deeds sought to be set aside affect property in which he asserts an equitable interest, growing out of the conveyances sought to be set aside. Under such circumstances, he should have been permitted to intervene and become a party defendant and heard on the merits. Wightman v. Evanston Yaryan Co., 217 Ill. 371, 377; Shannahan v. Stevens, 139 Ill. 428; Hartsell v. Hungate, 223 Ill. App. 346, 350; Ill. State Bar Stats. 1935, ch. 110, ¶ 153; Jones Ill. Stats. Ann. 104.025 (sec. 149, ch. 110, Smith-Hurd 1935).

For the reasons above assigned the decree herein is reversed and the cause remanded.

Reversed and remanded.


text:
    The Union Central Life Insurance Company of Cincinnati, Ohio, Appellant, v. William O. Anderson et al., Appellees.
    Gen. No. 9,226.

      Heard in this court at the May term, 1937.
    Opinion filed September 9, 1937.
    Bert E. McLaughlin and Wallace Thompson, both of Galesburg, for appellant.
    Clarence W. Heyl, of Peoria, for appellees; Hudson R. Sours, of counsel.
   Mr. Presiding Justice Huffman

delivered the opinion of the court.

An extended statement in this case is considered necessary in order to properly present same. Appellee William 0. Anderson and wife became indebted to appellant on March 1, 1926, in the sum of $13,000, which indebtedness was secured by a mortgage on certain real estate located in Knox county, Illinois. The debt was due April 1, 1936. The mortgagors became in default and appellant brought a suit for foreclosure at the June term, 1935, of the circuit court of said county. The mortgagors answered the complaint, denying appellant’s right to foreclose, and filed counterclaim, setting up that appellant had entered into a composition agreement for the settlement of the debt in accordance with an application by the mortgagors with the Federal Land Bank of St. Louis, for a loan on the premises sufficient to discharge this and other obligations. It appears that on August 28, 1934, appellant executed an instrument then in use by the Federal Land Bank relative to composition agreements between creditors and debtors. In this instrument appellant agreed to accept the sum of $8,400 in full satisfaction of the mortgage indebtedness, and agreed that such sum might be paid in Federal Farm Mortgage Corporation bonds. No expiration date was fixed in the instrument. The mortgagors set up that the agreement signed by appellant together with those secured from other creditors were delivered to the Federal Land Bank of St. Louis, and that they had expended divers sums of money in and about the above transactions, and charged that appellant negligently delayed sending abstract of title to the premises to the Federal Land Bank until about November 21, 1934. The mortgagors claimed that appellant refused to accept Federal Farm Mortgage Corporation bonds in payment of the debt, and therefore that although the mortgagors and the land bank had been at all times ready and willing to deliver to appellant $8,400 in Federal Farm Mortgage bonds, that appellant had refused to accept the same, to the mortgagors’ injury and damage sustained, of $10,000. The prayer of the counterclaim was to the effect that the court should by its decree order appellant to carry out its contract and accept the above sum of money in Farm Mortgage bonds, that it be enjoined from further prosecuting the foreclosure suit, and that the mortgagors recover damages and attorney fees resulting from appellant’s refusal to carry out its agreement.

The cause was referred to the master, who found the existence of the mortgage and the indebtedness; a default in the terms thereof with respect to the páyment of taxes; the amount due thereunder; application for the federal loan; execution by the mortgagors of two mortgages to the Land Bank to secure the money to be advanced, together with a recording thereof; that the offer by appellant to accept the bonds in satisfaction of its mortgage debt should be construed as an offer to accept within a reasonable time; that five months had elapsed between the offer and the alleged tender, and that five months was longer than a reasonable time. The master reported that a decree of foreclosure should be entered in accordance with the prayer of appellant’s complaint. Objections to the master’s report were overruled and ordered to stand as exceptions in the trial court. The trial court sustained the exceptions to the master’s report and on October 2, 1936, entered a decree finding that appellant was without equity and that for a good and valuable consideration it had entered into the composition agreement as set forth in the counterclaim, whereby it had agreed to accept $8,400 in full satisfaction and settlement of its debt and claim, and that it should be required to perform the contract, and accept such sum in the manner agreed upon. The decree denied the counterclaimants any damages or attorney fees as prayed for. It ordered that upon the payment to appellant of $8,400 in money or the delivery to it of Federal Farm Mortgage Corporation bonds in the principal sum of $8,400, within 60 days, that the mortgage indebtedness as set out in the complaint should be canceled as fully paid and satisfied, the complaint dismissed as without equity, and the plaintiff therein forever barred from further proceedings with reference to the mortgage. The decree then provided that in default of the payment of money or bonds as above set out, the plaintiff should be entitled to a decree for foreclosure in accordance with the prayer of its complaint.

Appellant filed its notice of appeal from this decree on October 17, 1936, and appellees filed their notice of cross appeal on October 27th. It appears that after the above decree of October 2,1936, and filing of notice of appeal by the respective parties, the attorneys for appellant and the mortgagors entered into a series of negotiations with respect to a settlement of the case in accordance with the court’s decree. These negotiations started with a letter under date of October 29, 1936, from the attorney for appellant to the attorney for mortgagors, in which the attorney for appellant stated that if the attorney for mortgagors was willing to enter into a stipulation to permit the appeal and cross appeal to be dismissed by the local court, that he would advise his client to dismiss the suit upon payment of $8,400, and stating, that if this was not satisfactory, to advise him. The attorney for mortgagors, upon receipt of the above letter, replied that the suggested stipulation was satisfactory, that the $8,400 was then available, and that upon payment of same, appellee was to release the mortgage and satisfy the decree. Subsequently, on November 9, 1936, attorney for the mortgagors wrote the attorney for appellant stating that he had heard nothing further from him regarding the intended settlement, that he- was anxious to have the matter determined one way or the other, and if attorney for appellant did not intend to make the settlement, the.mortgagors would tender the money to the company at Cincinnati. In response to this letter, attorney for appellant wrote that he had sent the stipulation to appellant for approval, and as soon as it was returned, he would send it to the attorney for the mortgagors. On November 14, 1936, the attorney for appellant wrote to the attorney for mortgagors stating he had just received the stipulation to dismiss the suit, together with the appeal and cross appeal, from the general attorney for appellant company, and that he therewith inclosed same for signature by the mortgagors’ attorney. In this letter appellant’s attorney stated he had secured the consent of his company to receive payment of the $8,400, and requested that when same was made that it be made in money. The stipulation as submitted by appellant was as follows :

“Appeal to the Appellate Court of Illinois, Second District, from the Circuit Court of Knox County, Illinois.
“It is hereby stipulated and agreed by and between the parties to the above entitled cause, that upon the payment of the sum of Eighty-Four Hundred ($8400.00), as provided in a decree of the Circuit Court of Knox County, Illinois, in said cause entered October 2, 1936, that the above entitled suit, and the appeal and cross-appeal in said cause, may be dismissed by the presiding judge of the Circuit Court of Knox County, Illinois, without costs to either party.
“Dated this 10th day of November, 1936.
Plaintiff-Appellant
Defendants-Appellees”

The attorney for mortgagors returned the stipulation, on .November 17,- to the attorney for appellee, together with a letter in which he stated he had amended it . to provide that the mortgagee-should release the mortgage described in the complaint, and that the original mortgage and notes might be withdrawn from the master’s certificate of evidence. The attorney for appellant, upon return of the stipulation, replied that the same had been sent to the general attorney for his approval. On November 30, 1936, attorney for mortgagors wrote the attorney for appellant to the effect that he desired to make a tender and if appellant did not intend to settle the case, to please advise him at once by telephone so that the tender might he made. The matter continued along these lines until the second day of December. The attorney for appellant had not received the stipulation back from his company. Mr. William O. Anderson, and son, and Koy W. Brown representing the Land Bank, called at the office of the attorney for appellant on the áfternoon of December 2nd, 1936, and there tendered $8,400 in cash, which attorney for appellant counted and took a description thereof, but which he returned to the parties pursuant to a telegram he had received that morning from appellant company, which telegram was as follows:

“1936 Dec 2 AM 10 26
“C 41 15 Ser-Cincinnati Ohio 2 1055A
Bert E McLaughlin, Attorney at Law
220-223 Peoples Bldg

If time has expired Anderson case do not accept

TENDER OF EIGHTY FOUR HUNDRED DOLLARS

C. F. Medaris by O Raudabaugh”

Upon refusal of appellant’s attorney to accept the money, the mortgagors on the next day, December 3rd, filed their petition setting up the decree of October 2nd, entered in the foreclosure suit; that appellant had perfected its appeal therefrom by filing notice of appeal and praecipe for record; that petitioners had filed their cross appeal with good intentions; setting up the series of communications and negotiations with respect to the settlement and termination of the litigation pursuant to appellant’s suggestion; and the tender and refusal thereof. The petition further alleged that about noon on December 2nd, attorney for appellant telephoned the attorney for mortgagors, stating that he had been instructed not to accept the $8,400,- but to insist upon a default of the mortgagors’ rights with respect to the decree of October 2nd; that the suggestion and submission of the stipulation for dismissal of the suit had come from the appellant; that the mortgagors had accepted same in good faith, and relied and acted thereon accordingly; that upon being advised on December 2nd, that appellant did not intend to carry out its proposed settlement and dismissal of suit according to stipulation, the said tender of $8,400 in money was made to the attorney for appellant and refused; that thereupon the petitioners paid the money to the clerk of the court. The mortgagors further set up that they had had the money in their possession for more than 30 days awaiting delivery of the stipulation by appellant; that they had been told the same would be accepted and a settlement made as soon as the stipulation was signed and returned; that they would sustain irreparable damage and injury if appellant was not required to carry out its agreement, and prayed that the court enter an order dismissing the complaint in foreclosure according to the stipulation and agreement, that appellant be required to accept the sum of $8,400 in satisfaction of its mortgage indebtedness and release the mortgage, and the mortgagors be permitted to withdraw the original note and mortgage from the master’s certificate of evidence.

Appellant filed a reply to the above petition, which is largely a reply on the part of its attorney. The exchange of the letters and the stipulation is admitted. The attorney sets out that he used his best efforts and acted in good faith in an effort to secure the execution of the stipulation by appellant, from its general attorney prior to December 2, 1936; he denies that the stipulation is binding on appellant and charges the petitioners with delay; admits the tender of $8,400 in money on December 2nd, but avers that pursuant to instructions received from the company by telegram on that date, he was directed not to accept the tender; and denies the rights of mortgagors to have the foreclosure suit dismissed and appellant compelled to accept the above sum of money in discharge of its debt.

On January 8, 1937, the court granted the prayer of the petition of the mortgagors, as filed on December 3, 1936; finding that the money had been deposited with the clerk of the court in satisfaction of the mortgage indebtedness to appellant, in accordance with the terms of the decree of October 2, 1936; that appellant should be required to accept the same in satisfaction of its mortgage indebtedness; that the complaint of foreclosure be dismissed; that the note and mortgage attached to the master’s report might be withdrawn and true copies substituted therefor; that said note and mortgage be canceled by the clerk of the court and surrendered to the mortgagors; that the clerk pay to appellant the said sum of money and that the same should be in full settlement, satisfaction and discharge of the mortgage indebtedness. It is from the decree of the court as above entered on January 8, 1937, upon the petition of the mortgagors filed on December 3, 1936, following appellant’s refusal to accept the tender, that this appeal is prosecuted.

The trial court stated at the time of entering the decree appealed from herein, that appellant had perfected its appeal from the decree of October 2nd, by filing notice of appeal as provided by statute, together with praecipe for record, and the mortgagors had perfected a cross appeal; that as far as the circuit court was concerned, appeals by the respective parties from said decree had been perfected and the trial court had no further jurisdiction over the case, except such as might subsequently arise. The court further stated that there was nothing before it to show or indicate that the appellant had abandoned its appeal, and although the decree' directed the mortgagors to pay a certain amount within a fixed time, yet since appellant had perfected its appeal therefrom, the law did not require a useless thing to be done; and in effect held that the mortgagors under the decree of October 2nd, would not be compelled to pay the- money therein provided until such time as said decree became binding and conclusive as between the parties. The court then remarked that he did.not consider appellant to be in a position to come into equity on the next day after the expiration of the 60-day period and say that it had decided to abandon its appeal, accept the decree as entered, and have the mortgagors declared in default thereunder,-because-of their failure to pay the $8,400 prior to December 2nd, and thus enforce the concluding portion of the decree, which was to the effect that upon failure of the mortgagors to pay the money within 60 days of the date of the decree, that then the plaintiff should be entitled to a decree for foreclosure in accordance with the prayer of its complaint.

Appellant perfected its appeal 15 days after the date of the decree. This fact disclosed its unwillingness to accept payment of the money as provided for therein. Until the decree became operative as a conclusive judgment against appellant, it was not bound to accept the terms thereof, nor were the mortgagors possessed of the power to exercise any rights under the decree to compel appellant to accept payment of the money provided for therein. An appeal ordinarily suspends the execution of a decree and renders the trial court powerless to carry into effect the judgment. The existing status of a case is preserved pending an appeal. Ill. State Bar Stats. 1935, ch. 110, ¶ 202; Jones Ill. Stats. Ann. 104.074 (sec. 198, ch. 110, Smith-Hurd 1935), provides that an appeal from a judgment, order or decree of the trial court shall constitute a continuance of the case in that court.

The attorney for appellant testified that subsequent to giving notice of appeal and filing praecipe for record, he communicated with his company regarding the prosecution of appeal in this case, in view of the action of the Supreme Court in denying leave to appeal in the case of Union Cent. Life Ins. Co. v. Weber, 285 Ill. App. 568, which was the, same kind of case as this, and the same appellant. It appears that in this respect he sent the following wire to the general attorney of appellant company: “O. Baudabaugh, Central Life Insurance Co. Have just been informed that' petition for leave to appeal in suit of Union Central Life Insurance Co. v. Webber was denied October 22nd. In view of this,' shall I proceed in Anderson case. Answer by return wire. ’ and that he received an answer thereto by wire, dated October 28, 1936, which read: “Do not proceed further with appeal in Anderson case. Watch for expiration of time. C. F. Hederás.” Appellant’s attorney denies that he was watching the time in order to “trip-up” the attorney for mortgagors, and states that after the company had wired him not to proceed with the appeal, that the only thing* he could do was to make settlement, and that by “settlement” he meant carrying out the terms of the original decree. He states he had been authorized by the company to discontinue the appeal and that the stipulation sent by him to the attorney for the mortgagors bore his signature. There is disputed evidence in the record with reference to conversations by telephone and in person. Appellees claim they were using their best efforts to complete the settlement of the case and were prevented therefrom by the position of appellant’s attorney that he could not accept payment of the money until he had the stipulation back from Cincinnati; that appellant’s attorney said the case was settled, and that it would be all right to complete the settlement whenever the stipulation was received by him.

The remarks of the trial court with reference to the position of appellant, claiming it had the right to come in and announce its election to abandon its appeal at a time after the 60-day period in which the mortgagors were to pay the money had expired, and thus impose the penalty provision of the decree, at a time when the statutory period for the appeal had not expired, were appropriate to this case. Also were the remarks to the effect that the law does not require a useless thing to be done, and that so long as the appellant had signified its unwillingness to abide by the terms of the decree, there was nothing for the mortgagors to do except to await the disposition of the case by the court of review, in order to determine whether the decree should become operative as a conclusive judgment between the parties.

That part of the decree from which appellant prosecuted its appeal consisted of the portion which required it to accept $8,400 in lieu of its mortgage indebtedness, because of the composition agreement that had been entered into. This was the subject matter of the litigation. There was no controversy in this case regarding the mortgage or the default thereunder. The sole matter in dispute was whether appellant should be held to the terms of the composition agreement. The conduct of appellant is such as to raise the question of estoppel. Here it appears that appellant company directed its attorney by wire on October 28, 1936, not to proceed any further with the appeal in this case, and with instructions to watch for the expiration of time. This was prior to any of the negotiations between the parties with respect to accepting the decree of the trial court and dismissing the appeal. On October 29, the next day after the receipt of the above wire, advising the attorney not to proceed any further with the appeal, is the beginning* of the negotiations for the settlement of the foreclosure suit. On that day the attorney for appellant wrote a letter to the attorney for the mortgagors in which he stated: “I have just received your acknowledgment of the notice of filing of the praecipe for record in the above cause. I have been thinking this matter over and there is not enough involved to justify very much expense. If you are willing to enter into a stipulation to permit the appeal and cross-appeal to be dismissed by the local court as soon as it convenes in November, I will advise my client to dismiss the suit upon the payment of $8400. ’ ’ This was the provision of the decree rendered in the foreclosure suit. Since appellant had already .advised its attorney on the day previous to the letter, not to proceed any further with the appeal in the case, the negotiations and stipulation proposed and submitted by appellant, were nothing more than a mere sham and pretense. The mortgagors had no knowledge that appellant had decided to abandon its appeal and accept the decree. When appellant proposed that this be done, the mortgagors agreed, accepted the representations of appellant in good faith, and relied thereon. Under such .circumstances we are of the opinion that appellant is estopped from insisting upon any default on the part of the mortgagors under said decree.

To permit a litigant the right to take the requisite steps to perfect an appeal from a decree, and while such appeal is pending and the proceedings in the trial court in abeyance, to come into court on the day following the date fixed for payment in the decree, and be heard to say that it had elected to abandon, its appeal, and to enforce the decree in such manner as to work a penalty on the opposite party, would be contrary to equity and good conscience. Courts have the right to determine whether the language or conduct of a party, or his counsel, amounts to a waiver or estoppel, as a matter of law. This principle applies with full force in the proceedings of a cause, from its commencement to its final termination.

Representation in courts is a necessity of civilized society, and the acts of the representative must in some deg*ree be binding upon the party represented. When one puts his case in the hands of an attorney, it is a reasonable presumption that the authority conferred includes such actions as- the attorney, in his superior knowledge of the law, may decide to be legal, proper, or necessary in the prosecution of the suit, and consequently whatever adverse proceedings may be taken by the attorney, are to bé considered binding upon the client. Attorneys may waive objections with respect to pleading, or fail to file proper pleas, make admissions of fact, and of necessity make disposition of many things that arise in and about the trial of cases.

Equitable estoppels are based on the ground of promoting the equity and justice of the case, by preventing a party from asserting his rights under a general technical rule of law when he has so conducted himself that it would be contrary to equity and good conscience to permit such party to assert such rights. In equity the doctrine has been liberally applied in the suppression of fraud and the enforcement of honesty and fair dealing. That a party can affirm the existence of an appeal to promote the purpose of a recovery, and yet at the same time treat it as a nullity, in order to shut out the opposite party from a right, benefit or defense which otherwise would have been open to him, is entirely too inconsistent with reason to leave much room for dispute.

A corporation, quite as much as an individual, is held to a careful adherence to truth in its dealings with mankind, and cannot, by representations or silence, involve others in engagements and then defeat the calculations and claims which its own conduct has superinduced.

Appellant makes, reference in its brief to cases of authority and precedent, but none where the circumstances are such as exist in this case. The court cannot permit its judgments, orders and decrees to thus be made the object of a designing litigant, by permitting it to perfect an, appeal therefrom, without the intention to prosecute same, and upon the expiration of the date fixed in which the opposite party shall act in order to obtain the benefits of the decree, to then come in with the■ statement that it had elected to abandon' the appeal and enforce the penalty clause against the opposite party, who during such time was powerless to take any steps to compel a compliance with' the decree by the appellant, and who was awaiting the prosecution of the appeal and a review of the case in order that it might be determined whether such decree should become conclusive and binding between the parties. The authorities cited by appellant cannot be considered controlling under the circumstances in this case. Precedent cannot thus be permitted to embalm principle.

The decree of the trial court is affirmed.

Decree affirmed.


author: Mr. Justice Dove

text:
    Edna Nordman, Administratrix of the Estate of Oscar Thoren, Deceased, Appellee, v. Walter A. Carlson, Appellant.
    Gen. No. 9,209.

      Heard in this court at the May term, 1937.
    Opinion filed September 9, 1937.
    North, Gibboney & North, of Rockford, for appellant; Frank P. North, of counsel.
    Frank E. Maynard, of Rockford, for appellee.
   Mr. Justice Dove

delivered the opinion of the court.

Edna Nordman, administratrix of the estate of Oscar Thoren, deceased, instituted this suit against Walter A. Carlson, to recover for the alleged wrongful death of her intestate. The complaint alleged that the defendant was negligently and improperly operating his passenger automobile in an easterly direction along Rural street in Rockford on December 10, 1934, at a greater rate of speed than was then and there reasonable and proper, that deceased was walking in a northerly direction across Rural street at or about the east sidewalk line thereof at its intersection with Joslin and Summit streets and that by reason of defendant’s negligent operation of his car, plaintiff’s intestate, while in the exercise of due care and caution for his own safety, was struck and killed by defendant’s automobile. An answer was filed which admitted the allegations of the complaint to the effect that defendant was the owner and operator of an automobile which he was driving along Rural street on December 10, 1934, but denied the other allegations of the complaint. The issues thus made were submitted to a jury, resulting in a verdict and judgment for the defendant. Upon appeal, this judgment, because of certain errors which occurred upon the trial of the cause, was reversed and the cause remanded. Nordman v. Carlson, 282 Ill. App. 642. Upon the second trial there was a verdict and judgment in favor of the plaintiff for $3,500 and the defendant appeals.

It is first insisted by counsel for appellant that the trial court abused its discretion, after the evidence had been concluded in reopening the case and permitting the plaintiff to offer proof as to who were the next of kin of plaintiff’s intestate. The record discloses that after the evidence was closed and during the argument of the case by Mr. North, of counsel, representing appellant, he, Mr. North, said: ‘There is no proof of next of kin. You don’t know who the heirs are. I don’t know and I can’t find out. You can search the record. You don’t know whether he has any children or not. Now, gentlemen, possibly there has been a little slip made in the presentation of this matter” . . . . At this point, counsel for appellee interrupted the argument and upon his motion, the court, over the objection of counsel for appellant, reopened the case and proof was made that plaintiff’s intestate left him surviving his wife, Hilma Thoren, and Edna Nordman, his daughter, and Armour Thoren, his son. It has always been held to be within the sound discretion of the trial court whether or not additional evidence may be admitted after both parties have rested, or before the close of the arguments to the jury. Briggs v. Bankers Accident Ins. Co., 214 Ill. App. 181; Brelsford v. Community High School District, 328 Ill. 27. Appellant’s rights were not prejudiced, nor was he surprised or put to any disadvantage by the admission of this evidence and the ruling of the trial court was in furtherance of the due and proper administration of justice.

Counsel for appellant next insist that the trial court erroneously permitted appellee to prove, over appellant’s objections, the careful habits of the deceased. The record discloses that there was no living eyewitness to the accident except the defendant himself, and when appellee offered to prove the habits of the deceased, counsel for appellant tendered appellant to appellee as a witness. Counsel for appellant state that they have been unable to find any case in this or any other jurisdiction sustaining their contention, but call our attention to Micca v. Alton R. Co., 281 Ill. App. 216, • and the cases therein cited. It appeared in the Micca case that there was an eyewitness to the accident and this court sustained the ruling of the'trial court and held that evidence of the cautious habits of the deceased was incompetent where there is an eyewitness to the accident. The question here presented was not presented in the Micca, case.

Counsel for appellant concede that appellant was not a competent witness in his own behalf but argue that appellee could call him and make him her own witness, and that when appellant tendered himself as an eyewitness, then appellee either had to call him or be barred from proving the habits of the deceased.

The applicable provision of the statute is that no party to any civil action or person directly interested in the result thereof shall be allowed to testify therein of his own motion or in his own behalf when any adverse party defends as the administrator of any deceased person unless when called as a witness by such adverse party. Ill. State Bar Stats. 1935, ch. 51, ¶ 2; Jones Ill. Stats. Ann. 107.068. It will be noted that the statute as applicable to the facts in the instant case says that appellant should not be allowed to testify on his own motion or in his own behalf, that is, that he was an incompetent witness to testify of his own motion or his own behalf. When, therefore, appellant tendered himself to appellee as an eyewitness of the transaction under investigation, his interests were adverse to those of appellee and if appellee called him when so tendered by appellant it would be upon the motion of appellant in order to preclude appellee from resorting to secondary evidence. In the instant case, the pleadings of appellant disclosed that his defense was that the deceased was not in the exercise of due care at the time and just before he was struck and killed by appellant’s automobile and that he, appellant, was not guilty of the negligence charged in the operation of his car. The purpose of section two of the Evidence Act retaining* the incompetency of parties as witnesses where an adverse party is suing as administrator is to guard against the temptation to give false testimony in regard to the transaction in question on the. part of the surviving party and to put the two parties to a suit upon terms of equality in regard to the opportunity of giving testimony. Van Meter v. Goldfarb, 317 Ill. 620.

In Rouse v. Tomasek, 279 Ill. App. 557, the plaintiff was suing as administrator and sought to recover from the defendant for the wrongful death of his intestate. The trial court, over the objection of the defendant and notwithstanding his counsel’s statement to the court that the defendant was an eyewitness, permitted the plaintiff to testify that he was the husband and administrator of the deceased and that she was a person of careful habits. The defendant was then called as a witness in his own behalf and his counsel offered to prove the manner in which the accident occurred but upon objection by the plaintiff, he was not permitted to testify. In the Appellate Court his counsel insisted that the trial court erred in excluding the testimony of the defendant and in view of the fact that the defendant was an eyewitness to the occurrence, the trial court also erred in admitting the testimony as to decedent’s habits. In its opinion the court said: “In the case at bar, before plaintiff could recover, it was necessary that he establish the fact that the decedent was in the exercise of due and ordinary care for her safety at the time of the accident. His testimony established the presumption that she was. The plaintiff, as the record indicates, will be the beneficiary in case a recovery is had here, and in view, of the authorities, we are brought to the conclusion that he is a person having a direct interest in the event of the transaction; that having testified in his own behalf as to decedent’s careful habits, he thereby made defendant’s proffered testimony as to decedent’s conduct at the time of the accident relevant, material and proper for the purpose of rebutting this presumption. The court erred in rejecting the proffered-testimony of .the defendant with reference thereto.”

In Young v. Patrick, 323 Ill. 200, our Supreme Court said: “A defendant may not obtain the benefit of the rule prohibiting evidence of habits of care on' the part of the deceased where there is an eye-witness unless he first tender the name and address of a witness competent to testify on the trial.”

In the instant case Carlson was a competent occurrence witness only if called by the plaintiff. He was not a competent witness to testify upon his own motion. Under the authorities we are of the opinion that .the provisions of the Evidence Act, under consideration here, conferred upon the plaintiff the privilege of calling the defendant as her witness and she could have compelled him to testify but that she was not obliged to do so. Counsel for defendant in tendering the defendant himself as an eyewitness did not, within the meaning of the authorities, tender a competent witness and when it developed upon the hearing that defendant was the only surviving eyewitness and the plaintiff did not desire to avail herself of the privilege of using him for a witness, the trial court did not err in ruling that the habits of the deceased might be shown.

Counsel next insist that the court erred in giving the following instruction: “The court instructs the jury that' the law in this- state does not regulate a precise speed in miles per hour at which a -motor vehicle must at any given time or' place be run, "but' the law only states that such rate of speed must be no greater than is reasonable and proper, having regard to the traffic and the use made of the. way, or so as to endanger the life or limb or property of any person and leaves it to the jury to say under all the circumstances surrounding any given case, whether or not the automobile in question was being propelled at a speed that is reasonable and proper, having regard to the traffic and the use made of the way, or so as to endanger the life or limb or property of any person.” The criticism directed against this instruction is that it is not based upon the evidence. It is true that there is no direct testimony as to the speed at which appellant was driving just before and at the time he struck the deceased. There are facts and circumstances in evidence such as the condition of the body of the deceased, the location thereof in the street and the distance which appellant’s car traveled after striking him that tends to prove that appellant’s car was traveling at more than a moderate rate of speed. Furthermore, D. W. Easton testified that on the evening of the accident he was present at the home of the deceased after the body of the deceased had been removed there, that the defendant was also there and he, Easton, inquired of appellant how the accident happened and defendant said that he, the defendant, was driving too fast. The defendant testified that he was at the ThoreD. home shortly after the accident but denied that Easton was there and denied that he had any conversation with him there. In Van Meter v. Gurney, 240 Ill. App. 165, 190, this identical instruction was given at the request of the defendants. In the instant case counsel concede it states the law correctly and in our opinion it is not subject' to the objection urged against it.

Counsel finally insist, and say that their principal contention is, that the verdict is against the manifest weight of the evidence. The only eyewitness to the accident who survived, as hereinbefore stated, was appellant and he did not testify. The testimony, however, discloses that the deceased was, at the time of Ms death, 66 years of age, in good health, enjoying good eyesight and hearing, weighed between 180 and 200 pounds, was about five feet nine inches tall and a man of careful habits, who stopped and looked before crossing a street. He lived on the south side of Rural street in the third house east of Summit street. Rural street runs in an easterly and westerly direction. Summit street intersects Rural street on the south but does not extend north. L. D. Palmer lived on the north side of Rural street, his dwelling facing south toward the intersection of Summit street. A brother of the deceased lived on the north side of Rural street, in the second house east of Palmer’s, his house being situated at the corner of Joslin street and Rural, Joslin street intersecting Rural street on the north. The accident happened between seven and seven-thirty o’clock on the evening of December 10, 1934. There was an arc light at Davis street which intersects Rural street from the north, approximately 400 feet west of Joslin street, and another one approximately 245 feet east of Joslin street on Rural street. The body of the deceased was found in Rural street at a point about 35 feet east of the east line of Summit street if extended across Rural street and three or four feet from the north curb of Rural street. A pair of gloves and a cap of the deceased were found approximately in the center of Rural street near the east sidewalk line of the intersection of Summit street if extended north across Rural street.

The evidence further tended to prove that appellant, upon the occasion in question, was driving his car east along Rural street, that he struck the deceased with the left front fender of his car, that he proceeded some 200 feet east of the Summit street intersection, stopped his car and then backed his car on the south side of Rural street almost to the Summit street intersection, that he there got out of his car and went over to where the body of the deceased was lying on the north side of Rural street. At the time of the collision and for some time before or after, there were no cars other than the car of appellant traveling along Rural street in either direction. There was also some evidence of tire skid marks upon the north side of the pavement, which led from a point about one foot north of the center of Rural street to within a few feet of where the body of the deceased was found. There is other evidence in the record to which we have already alluded, which tended to prove that appellant was traveling at an unreasonable rate of speed. From the foregoing and other testimony found in this record, we are unable to say that the verdict of the jury was not supported by the evidence, and it is not an unreasonable inference to be drawn therefrom that appellant was guilty of the negligence charged and that the deceased was in the exercise of due care and caution for his own safety as alleged in the complaint. The general rule is that negligence and contributory negligence are questions of fact for the jury and these questions, under proper instructions, were submitted to the jury and the finding of the jury, in our opinion, is warranted by the evidence found in this record. The judgment of the circuit court will therefore be affirmed.

Judgment affirmed.


author: Mr. Justice Wolfe

text:
    F. J. Dillenburg et al., Appellees, v. Charles F. Hellgren et al., Appellants.
    Gen. No. 9,217.
    Heard in this court at the May term, 1937.
    Opinion filed September 9, 1937.
    John H. Armstrong and A. E. Butters, both of Ottawa, for appellants.
    Arthur E. Bristol, of Chicago, and Richard O. Leitch, of Plano, for certain appellee.
   Mr. Justice Wolfe

delivered the opinion of the court.

This is an appeal from an amended supplemental decree of the circuit court of Kendall county, entered February 8, 1937, amending a previous decree entered December 20, 1933. On April 8, 1933, F. J. Dillenburg et al., as holders of certain notes secured by a trust deed, filed their bill in chancery against Charles F. and Ada F. Hellgren et al., to foreclose a trust deed executed by them April 16, 1921, securing a note of that date for $5,000, due five years after date with interest at six per cent per annum. The trust deed was on a tract of land of about fourteen acres near the village of Plano in Kendall county, Illinois. The bill is in the usual form to foreclose a trust deed, and ends with a prayer that the defendants may be compelled to answer and a receiver be appointed and an accounting be taken and defendants decreed to pay whatever sum may be shown to be due on account, solicitor’s fees, etc., and in default of payment of amount found to be due, that the premises be sold and that the defendants be barred and foreclosed from the rights that they have in the premises. On December 20, 1933 a default was taken against the defendants, and a decree of foreclosure and sale entered, finding the jurisdictional facts. The decree found that the bill was taken as confessed; that the equities of the cause were with the plaintiffs, and that all material allegations of the bill of complaint were true; that Charles F. Hellgren and Ada F. Hellgren were in default in their payments and were indebted to the plaintiff in the sum of $6,089 which was a lien upon said premises. This amount was ordered paid to the plaintiffs on or before December 23, 1933, and in default of such payment the real estate be sold for cash; that the master in chancery give public notice of the time and place of said sale, and on said sale being made, to execute a certificate of purchase to such purchaser, describing the land sold, the time when the purchaser will be entitled to a deed to said land, unless the same shall be redeemed, and shall file in the office of the recorder of deeds a duplicate of such certificate.

The decree further provides that if said real estate is not redeemed according to law by the defendants within 12 months next after the date of such sale, or by judgment creditors, within 15 months, next after the date of sale, at the expiration of said 15 months the master in chancery shall execute and deliver to the purchaser a good and sufficient conveyance in fee simple for the same.

Shortly after this decree was entered, the defendants, now appellants, filed a petition in the United States. Court in Chicago under the Frazier-Lemke Act, and an order was entered in said court, restraining them from selling the land under the decree of foreclosure in the Kendall county circuit court. On June 10, 1935, an order was entered in said district court, to vacate this restraining order and allow the complainants to proceed with the sale under the foreclosure decree. On July 13, 1935, the master sold the. property. On July 18,1935, the master filed his report of sale, stating that he had sold the premises to Lauren J. Drake, assignee of the complainants in the former decree, for $6,000, and showed the cost and expenses of the sale, etc., and reported a deficiency of $728.35. It further stated that he had delivered to the purchaser a certificate of sale, and filed a true copy in the office of the recorder of deeds of Kendall county, as required by law. On July 18, 1935, the court entered a decree approving the master’s report of sale, and also a deficiency decree of $728.35 against the defendants Hellgren.

No redemption was made from the master’s sale, and on October 24, 1936, the master executed a deed to the premises which was recorded in the recorder’s office of Kendall county, Illinois. On October 28, 1936, an application was made by Lauren J. Drake for a writ of assistance, but the same was withdrawn. On December 7, 1936, Lauren J. Drake filed a petition to amend the decree entered December 20, 1933. The petition set forth the entering of that decree and the order of sale, the assignment of the interests of the complainants in the decree to the petitioner, and all of the acts which have proceeded the sale of the property.

The petition further alleged that the decree of foreclosure and sale, on December 20, 1933, and all subsequént proceedings in the case, were erroneous, in that the trust deed was executed April 16, 1921, and the proceedings to sell the mortgaged premises should have been conducted in accordance with the provisions of the “Judgment and Decree Act” of 1917, and not pursuant to the laws of 1921, and therefore pray that the decree entered on December 20, 1933 be amended by supplemental decree, which is substantially the same as the decree of 1933 in so far as the facts are found, and directs that the master shall make the sale in accordance with the “Judgment and Decree Act” of July 1, 1917.

On December 7, 1936, the appellants moved to strike the petition from the files, on the grounds that the decree of December 20, 1933 was a final decree of sale in full force and effect, and that more than five terms of court had elapsed since the said decree was entered, and that the court had no jurisdiction to change or modify the said decree. The cause was heard and taken under advisement, and the court, on February 8, 1937, entered an order granting leave to amend the decree of December 20, 1933, as per draft of decree on file, and thereupon the amended supplemental decree was entered. This decree found the facts the same as set forth in the decree of December 20, 1933, and is substantially identical with that decree, except that it directs the master in chancery to make the sale in accordance with the “Judgment and Decree Act” of July 1,1917, and that he file a certificate of the amount of the indebtedness, fees, etc., and file a copy thereof in the recorder’s office of Kendall county, and if no redemption is made by the defendants within 12 months after that date of said certificate, or judgment creditors within 15 months, that the Master proceed to sell said real estate at public auction, and report the same to the court, and upon confirmation of the sale, the master execute and deliver to the purchaser a deed of conveyance of the premises, as is provided by law. The decree then provides for the entry of a deficiency decree in the event that the real estate is not sold for a sufficient sum to settle the amount of the indebtedness found to be due. It is from this decree that this appeal is perfected.

There are three errors relied upon for reversal as set forth in the statement, brief, and arguments of the appellants, which are all to the same effect, viz., that the court was without jurisdiction to entertain the petition to amend the decree, and had no right nor authority to modify the decree as entered December 20, 1933, and to enter the decree on February 8, 1937.

It is conceded as a general proposition of law, that after a final decree of a court is entered, that the court has no authority or jurisdiction to change or modify that decree at a subsequent term of court. This is true so far as to that part of the decree which fixes the rights of the parties to the action. But, there is an exception as to the executory part thereof, which provides for the enforcement of the rights of the parties. (Totten v. Totten, 299 Ill. 43; Huber v. First Nat. Bank of Witt, 251 Ill. App. 36.) In the supplemental decree entered in this particular case, no demand has been made to modify the part of the decree which fixes the rights of the parties. The only modification is the executory part of the decree, providing for its enforcement.

In Sterling National Bank v. Martin, 213 Ill. App. 566, this court had occasion to pass upon the same question that is now presented in the case before us. In the Martin case we used this language: “No error is suggested in any finding on any subject of dispute between the parties. In each decree all matters that might be controverted, like the existence and maturity of the mortgage securing the debt, the right to foreclose the same and the right of the complainant to have a decree for the sale of the mortgaged premises to pay the debt, interest arid costs, were satisfactorily settled. Neither is there any question about the sale, the deficiency, and the appointment of a receiver, except it is insisted that the second'decree was and is entirely void because it is said the decree at the October term was final, and the court had no power to enter another decree at a subsequent term. It is true the first decree was a final, appealable decree, and the court had no power to change its findings at a subsequent term, and any attempt to do so should be held entirely ineffective and be disregarded. (Kirby v. Runals, 140 Ill. 289; Gray v. Ames, 220 Ill. 251; DeGrasse v. H. W. Gossard Co., 236 Ill. 73.) It is out of the power of the court to amend or correct a decree in any matter affecting the merits after the adjournment of the term (23 Cvc. 861). But the limitation of the court’s control to the term at which the decree was rendered does not apply to provisions inserted for the purpose of carrying the decree into effect. Such provisions may be amended or inserted at any time. (16 Cyc. 506.) ”

Many cases, both from our State and other State and Federal courts, support the above statement of the law. In the present case the court made no attempt to change the decree affecting any rights of the parties to the litigation. The only change made was for the purpose of conducting a legal sale of the mortgaged premises. It is our conclusion that the court had authority to amend its decree of December 20, 1933, and the amended supplemental decree entered February 8, 1937 was a valid and binding decree.

We find no reversible error in the case, and the decree of the circuit court of Kendall .county is hereby affirmed.

Affirmed.