author: Mr. Presiding Justice Stone

text:
    People of the State of Illinois, Defendant in Error, v. Jack Poe, Plaintiff in Error.

      Heard in this court at the October term, 1939.
    Opinion filed March 7, 1940.
    Maurice B. Johnston, of Carlyle, for plaintiff in error.
    William R. Murphy, State’s Attorney, for defendant in error.
   Mr. Presiding Justice Stone

delivered the opinion of the court.

This case comes to this court upon a writ of error prosecuted by Jack Poe (hereinafter designated as the defendant) to review the judgment of the county court ■of Clinton county, wherein defendant pleaded guilty to an information filed against him, charging him with driving a motor vehicle while intoxicated, in violation of sec. 144, ch. 95% (Motor Vehicles) Ill. Rev. Stat. 1937 [Jones Ill. Stats. Ann. 85.176]. Upon his plea of guilty, after the trial court heard some evidence, defendant was sentenced to serve one year in the Illinois State Farm at Vandalia, and fined $100 and costs. No •court reporter having been available at the hearing, there is no stenographic record of testimony and proceedings. The record is presented to this court upon stipulation of the State’s Attorney and counsel for the defendant. After sentence was imposed motion was made to vacate and set aside the judgment entered; and certain grounds are set forth therein, upon which said motion being denied by the trial court, are urged as error for the consideration of this court.

The first contention of the defendant is that the information is fatally defective in substance, in that it charged defendant with two indivisible violations of the Criminal Code, first; in driving a motor vehicle while intoxicated, in violation of the Motor Vehicle Act; second; with having intoxicating liquor with the seal broken in the motor vehicle, in violation of the Dramshop Act, and that there was no election on the part of the prosecution as to which charge they would proceed under.

Section 144, ch. 95% (Motor Vehicles) 111. Rev. Stat. 1937 provides, “(a) It is unlawful and punishable as provided in subdivision (b) of this section for any person who is an habitual user of narcotic drugs or any person who is under the influence of intoxicating liquor or narcotic drugs to drive any vehicle within this State.” Subdivision (b) provides for punishment upon conviction of imprisonment of not less than 10 days, nor more than one year, or by fine of not less than $100, nor more than $1,000, or by both such fine and imprisonment.

Section 140, ch. 43 (Dramshops), Ill. Rev. Stat. 1937 [Jones Ill. Stats. Ann. 68.047], provides, “No person shall transport, carry, possess or have any alcoholic liquor in or upon or about any motor vehicle except in the original package and with the seal unbroken.”

The information filed against the defendant was as follows:

“That Jack Poe on the 22nd day of January, A. D. 1939, at and within the County of Clinton in the State of Illinois, aforesaid, did drive a motor vehicle upon the highways in the State of Illinois in the City of Breese, Illinois, in an intoxicated condition while under the influence of alcoholic liquor and did have a half pint of liquor in his motor car with the seal upon said bottle broken, contrary to the statutes,” etc.

No motion to quash the information was filed in the lower court and the first objection to the sufficiency of the information was by way of motion to vacate and set aside the judgment. The rule which would apply to the state of the record as we find it, where the defendant did not file a motion to quash the information, is that he waives the objection by his plea of guilty, unless the information fails to charge a crime. People v. Sprague, 288 Ill. App. 360.

Considering the question as to whether the information in the instant case charges the crime which it is alleged the defendant committed, it should be construed in the light of statutory enactments applicable thereto. Section 6, par. 716, ch. 38, Criminal Code, Ill. Rev. Stat. 1937 [Jones Ill. Stats. Ann. 37.691], is as follows: “Every indictment or accusation of the grand jury shall be deemed sufficiently technical and correct which states the offense in the terms and language of the statutes creating the offense, or so plainly that the nature of the offense may be easily understood by the jury . . . ” Together with sec. 9, par. 719 [Jones Ill. Stats. Ann. 37.694] of the same act, which provides, “All exceptions which go merely to the form of an indictment, shall be made before trial; and no motion in arrest of judgment, or writ of error, shall be sustained, for any matter not affecting the real merits of the offense charged in the indictment. . . . ”

It is fundamental in the law, that an indictment or information in the language of the statute, creating the offense, is sufficient. McCutcheon v. People, 69 Ill. 601. We are of the opinion that the information in the case at bar was sufficient.

The matter of election as to counts or charges contained in an information comes too late, if not made until after plea of guilty and sentence. People v. Stine, 199 Ill. App. 422; People v. Jones, 291 Ill. 52. The record as a whole, the information itself, the jury waiver, the evidence as presented to this court by stipulation, the docket entry of the judgment of the court and the sentence imposed indicate clearly the election to charge the defendant with the specific offense of driving a motor vehicle while intoxicated.

In addition thereto, it has been held in Illinois, that in case of misdemeanors, the practice of quashing the indictment or information for the joinder of several offenses of the same character, or of calling on the prosecution to elect on which charge it will proceed, does not exist. People v. Shapiro, 207 Ill. App. 130.

With reference to the contention of counsel for defendant, that the one count of the information charges two separate and distinct offenses, we are of the opinion that the part of the information that charges, that the defendant ‘ ‘ did have a half pint of liquor in his motor car with the seal upon said bottle broken,” may be rejected as surplusage, and may be disregarded. It has been repeatedly held that an averment in an indictment may be treated as surplusage and rejected where it can be stricken out without vitiating the indictment. People v. Preble, 316 Ill. 233; People v. Osborne, 278 Ill. 104; People v. Mackin, 159 Ill. App. 125; Snell v. People, 29 Ill. App. 470. We do not feel constrained to hold that there was any duplicity in pleading in this information.

The defendant contends secondly that the judgment of the lower court is erroneous, in that the defendant was not furnished with a copy of the information previous to the trial, as required by the 1933 act. This act is entitled, ‘ ‘ Ah act providing that persons arrested for certain offenses shall be furnished with a copy of the information or complaint upon which they are charged.” (Ill. Rev. Stat. 1937, ch. 38, par. 736a (1) [Jones Ill. Stats. Ann. 37.706]. It provides “Every person arrested upon an information or complaint for any criminal offense or for the violation of any penal ordinance of a municipal corporation of this State shall be furnished with a copy of the information or complaint upon which he is charged, not less than one hour previous to his arraignment, hearing or examination. ’

Counsel for defendant cite the case of People v. Sprague, 288 Ill. App. 360, as authority. The holding of the court in that case is hardly in point in sustaining the position of the defendant in the instant case, as in the Sprague case, defendant was tried by the court, without a jury, upon a plea of not guilty, and the' court held that the question of the failure to furnish defendant a copy of the information previous to the trial, could not be raised in the Appellate Court, where the failure to do so was called to the attention of the court only by affidavit.

There can be no question but what defendant was advised before the court accepted his plea of guilty, that he had a right to trial by jury, and to be represented by counsel, thereupon defendant said that he did not desire counsel or trial by jury. Whereupon the presiding judge told the defendant that he might go back over to the Clinton county jail and decide as to whether he wanted a jury trial. The State’s Attorney advised the defendant of the language of the charging part of the complaint. After which admonition by the court and State’s Attorney, the defendant signed the waiver of right of trial by jury. He was advised by the court of the penalty upon his plea of guilty, and asked him, if knowing the penalty, did he still want to plead guilty, to which he answered in the affirmative. Before the court passed sentence, however, he heard evidence upon the question of defendant’s guilt. At no time does defendant seem to have raised any question before sentence was passed upon him that he did not know the nature and character of the charge made against him, nor did he demand a copy of the information, upon which he was being tried. This is somewhat analogous to the situation where a defendant is not furnished with a copy of the indictment before arraignment. Had the defendant demanded a copy of said information, and if said copy had not been furnished him an hour previous to his hearing, then he might be in a position to complain in this court, but he made no such demand. It has been held in this State, that before a defendant can be required to plead, he may demand a copy of the indictment returned against him, and if the court should refuse this request, upon preserving the fact in the record, it would be error. However, if the defendant plead and go to trial, without such demand, he waives his right. McKinney v. People, 2 Gilm. 540; Kelly v. People, 132 Ill. 363.

A defendant in a criminal case cannot, in the trial court, both expressly and by implication waive certain provisions of the law, enacted for his protection, that are susceptible of being waived, particularly in misdemeanor cases and then as an apparent afterthought complain for the first time in the Appellate Court that he did not have a fair trial. We believe, upon the record as presented to us, the defendant had a fair trial.

There was ample evidence before the court as to the guilt of the defendant to justify the court in finding defendant guilty upon his plea, and we do not feel inclined to say that the sentence imposed was not justified. The judgment upon the whole record as presented to us is affirmed.

Affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    The Texas Company, Appellant, v. Denzil M. Hollingsworth et al., Appellees.

      Heard in this court at the October term, 1939.
    Opinion filed March 7, 1940.
    Rehearing denied April 15, 1940.
    Green & Palmer, of Urbana, and Walter E. Will, of Mattoon, for appellant; Henry I. Green, Oris Barth and Enos L. Phillips, all of Urbana, of counsel.
    Wham & Wham, of Centralia, for appellee Denzil M. Hollingsworth et al.
   Mr. Presiding Justice Stone

delivered the opinion of the court.

This is an appeal from a decree of the circuit court of Marión county dismissing the complaint in the case for want of equity. The appellant herein, the Texas Company, a. corporation, will hereafter be referred to as plaintiff and the appellees will be referred to as defendants.

This controversy grows out of the following state of facts: The plaintiff holds leases for the drilling of oil and gas wells on a substantial amount of land which is described in the complaint. Between the holdings of the plaintiff the defendants hold lease on a small strip of land, being of the length of one-half mile, 33 feet in width at one end and 6 feet in width at the other, the average width of said strip being 19 feet. Just how this condition came about is not exposed in the pleadings, nor is it material. The fact remains. On this strip of land the defendants caused to be drilled 9 oil and gas wells. On either side of the strip, as offset wells the plaintiff has drilled 16 wells. The complaint in the case alleges that the wells of the defendants on said strip of land are not bottomed under said strip, but on the contrary thereof extend beyond the border lines of said strip and into land which is leased by plaintiff; that thereby the wells of defendants are producing oil which is not under the strip of land owned by defendants, but from the land on either side owned by plaintiff. It is alleged that these wells were made by use of rotary drills and that by that means it is almost impossible to sink them to the horizons which are producing in that locality, straight down, but that they will vary, as they are lowered, in different degrees. The complaint alleges that because of these facts irreparable injury is being wrought against plaintiff and that it has no remedy except in a court of equity, and prays that the defendants may be enjoined from carrying forward that which plaintiff says in its complaint is to its irreparable injury. These facts, of course, are stated upon information and belief.

With its complaint the plaintiff filed its petition for a subsurface directional survey of the nine oil and gas wells owned by defendants, and showed to the court thereby that it is the only means of finding out the truth about the situation and that it is an adequate and scientific system whereby the truth of the allegations in the petition contained may be ascertained.

Shortly after the filing of the complaint and petition, notice was given to defendants to said complaint and hearing had on said petition. Service had not then been had upon the defendants in the case. Much of the substance of the complaint was set out in the petition. The petition is supported by affidavit and states upon information and belief that the defendants are actually removing oil, gas and other hydrocarbon substances from sands under the surface of the lands leased to the plaintiff; that while the surface locations of the defendants’ wells are located on the narrow strip, yet the defendants are bringing to the surface oil and gas from the bottoms of these wells located under the surface of the lands under lease to the plaintiff.

In addition to the verification of said petition there was filed therewith three affidavits, one of Morris E. Shrader, one by William C. ICneale and one by William James. These affiants are men of large experience in matters covered by their affidavits. The affidavit of Mr. Shrader, omitting some minor parts, is as follows: “That as a result of my experience in connection with the oil industry and subsurface directional surveys of oil and gas wells in the immediate vicinity of the above described real estate, it is my opinion that no well drilled for oil and gas to a depth sufficient to reach the Benoist and McClosky horizons in said location can be drilled perfectly straight, and the bottom thereof be directly under the top of said hole; that from the surveys I have made I know, of my own knowledge, that oil and gas wells drilled with a rotary tool do wander; that from the subsurface directional surveys that I have made in the vicinity of the above described real estate, I have found that the wells so surveyed have deviated or wandered from the vertical to such an extent that the bottoms of said wells vary from two to ninety feet from a perpendicular line from the top of said well where the same enters the surface of the ground; . . . that it is practically impossible, barring accidents, for a person to drill a well on a strip of land ranging from six feet in width to twenty-five feet in width and keep the bottom of said well within said strip of land; that there have been drilled on the above described real estate nine oil and gas wells, either to the Benoist or McClosky horizons, and that it is my opinion that none of said wells are bottomed on the above described real estate, but that said wells are bottomed on adjoining real estate, in and to which the Texas Company are the owners of oil and gas mining freehold estates. I am of the opinion that a subsurface directional survey can be made of said nine wells without damage to said wells, and that such subsurface directional survey would determine the position of the bottom of said wells, and the course and direction of said wells; that in connection with any surveying operations of said wells that they can be conducted in my opinion and judgment in a manner which will only temporarily suspend production in said wells, and in a manner which will not cause damage to said wells, and that if production is temporarily stopped in said wells for the purpose of making a subsurface directional survey thereof, and the wells are thereafter again placed on production, that the rate of production will not be affected.”

Mr. Kneale’s affidavit is substantially as follows: “That I have made subsurface directional surveys of approximately thirty oil and gas wells in the Lake Centraba Salem Oil Fields, and in the immediate vicinity of the following described real estate, (describing the strip from six feet to thirty-three feet wide); that as a result of said surveys and as a result of my general experience in the oil industry and knowledge of the drilbng of wells with rotary tools, I know of my own knowledge, that oil and gas wells drilled with rotary tools do wander from the vertical; that from the subsurface directional surveys that The Texas Company have made in the vicinity of the above described real estate, I have found that the wells so surveyed have deviated or wandered from the vertical to such an extent that the bottoms of said wells vary from two to ninety feet from a perpendicular line from the top of said well where the same enters the surface of the ground.”

This affiant further stated the same facts as those in the Shrader affidavit, to the effect that it is practically impossible to drill a well on a strip of land as narrow as that in question here with rotary tools, and keep the bottom of the well within the strip. He further stated that nine oil and gas wells have been actually drilled on this strip; that they have been drilled either to the Benoist or McClosky horizons and that they have been drilled with rotary tools. He gave it as his opinion that none of them was bottomed on the strip leased to the defendants, but that all were bottomed on adjoining real estate which had been leased to The Texas Company and to which it is the owner of the oil and gas mining freehold estates.

Mr. Kneale also confirmed the statement of Mr. Shrader that such a subsurface directional survey could be made of the nine wells without damage to them and that it would determine the position of the bottoms of said wells, and their course and direction; that such survey could be conducted so as only temporarily to suspend production in said wells and in such manner as to cause no damage thereto and that when placed on production, the rate of production would not be affected by such survey.

Mr. James’ affidavit states substantially that he was an employee of the Eastman Oil Well Survey Co. with six years’ experience in directional drilling and oil well surveying, covering surveys of oil wells in the States of California, Texas, Oklahoma, Louisiana and Illinois; that he personally had made subsurface directional surveys of more than 20 oil and gas wells in the immediate vicinity of the strip in question; that as a result of his. experience in connection with the oil industry and such surveys of oil and gas wells in the immediate vicinity of the strip in question, it was his opinion that no oil or gas well could be drilled to a depth sufficient to reach the Benoist or McClosky horizons in that location perfectly straight, with the bottom thereof directly under the top of the hole; that wells so drilled with rotary tools do wander; that he had found they deviated or wandered from the vertical from 2 to 90 feet from a perpendicular line from the top of the hole; that his employer was in the business of surveying oil and gas wells to determine the true location of the bottoms thereof; that it is practically impossible to drill in a straight vertical line so that the bottom of the well will be located immediately under the top where it enters the surface of the ground. This affiant gave it as his opinion that none of the defendants’ wells is bottomed beneath the strip in question, but that all are in fact bottomed on the adjoining real estate leased to the Texas Company; that they were taking oil and gas from freehold estates belonging to the Texas Company as lessee. He also confirmed the statements of the other affiants that such surveys could be made without damage to the wells or their subsequent production.

The qualifications and experiences of the above affiants warrant serious consideration of the matters and things alleged in their affidavits.

The defendants appeared upon notice and having limited their appearances, for that purpose, moved to dismiss the petition for a subsurface directional survey. Many reasons were assigned why these motions should be allowed. Upon hearing the court allowed these motions and dismissed the petition, upon being advised by plaintiff that it had no evidence, except that which it hoped to obtain by means of the survey; the court dismissed the complaint for want of equity.

Counsel for defendants have offered a large number of so-called reasons why the decree of the lower court should be affirmed. They have argued but five of them. We shall-deal with them in the order in which they are presented.

Their first contention is that there is no appealable order in this cause. Under this head counsel say that the decree dismissing the complaint was entered at the request and consent of plaintiff. This does not appear from the record. On the contrary thereof it does appear that the court sustained the motion to dismiss and strike the petition for the subsurface directional survey, and plaintiff’s counsel then stated to the court “that proof to sustain the averments of the complaint that the bottoms of the wells drilled by the defendants, starting at the surface on the strip above described, are not located below the surface of said strip, but are located under the surface of the premises under lease to the plaintiff, could only be furnished by the proof expected and hoped by the plaintiff to be obtained by the subsurface directional survey presented in said petition, and that the plaintiff had no further or other proof on said allegations of the complaint.” The court then found that there was no proof to sustain the complaint and ordered, adjudged and decreed:

(a) “That the petition of the plaintiff herein for subsurface directional survey be and the same is hereby dismissed and stricken;
(b) “That the complaint herein be and the same is hereby dismissed for want of equity, at the costs of the plaintiff. ’ ’

Counsel make the error of complaining that this is an appeal from the order denying the subsurface survey. That is not a proper deduction from the record as the above-quoted proceedings show. While it is true that the petition was denied it is also true that the court entered a final decree disposing of the case by dismissing the bill for want of evidence and taxing the costs to the plaintiff. This leaves counsel in the position of contending for the upholding of a decree which they argue the court had no jurisdiction to enter, unless their argument is interpreted as a contention that it is the order denying the subsurface survey which is being appealed from. That was obviously not a final order. But the decree dismissing the cause and taxing costs is a final order.

Our holding on this matter naturally dovetails into the second subject discussed, by defendants, namely, that the appeal must be dismissed for want of jurisdiction of necessary parties. Again hewing* to the Une that this is an appeal from an order dismissing the complaint for want of evidence, we cannot see how counsel for the defense can complain of the jurisdiction of the court to enter this order. In the first place it is their order and they now seek to have it upheld. In the second place, the court, upon the filing of a bill in chancery might look that over-and conclude that there was no cause of action and dismiss it on its own motion without any of the defendants therein in court. In our opinion jurisdiction to enter an order in favor of a defendant, — an order which defendants are anxious to uphold, is not dependent upon the service of summons upon the defendant in whose favor that order is entered. The position of counsel would seem naturally to be under the circumstances, that they are praying the court to reverse this case and remand it so that they can be properly served with process and then come into court and have a trial in order to get the same thing, exactly, which they now have and wish to keep. We cannot see any merit in counsel’s contention that this appeal should be dismissed on the ground above stated, or on the ground that one of the owners was not made party defendant to this lawsuit. If they were contending that the decree should be reversed, or if an order had been entered adverse to them or adverse to the owner who was not served, then they might be heard.

As regards the jurisdiction to hear the petition for subsurface survey without the joinder of issue we call attention to the discovery section of our Practice Act, which we believe to be analogous to the situation in hand. Section 259.17 of that act [ch. 110, Ill. Rev. Stat. 1939; Jones Ill. Stats. Ann. 105.17] provides as follows: “Any party may, without filing an affidavit by motion seasonably made, either before or after issue joined and irrespective of the right to employ interrogatories in a complaint in equity, or to file a complaint for discovery, or to employ a subpoena duces tecum, apply for an order directing any other party to any cause or matter to file a sworn list of all the documents, including photographs, books, accounts, letters and other papers, which are, or which have been, in his possession or power, material to the merits of the matter in question in said cause. ...” If, before issue joined a banker may be ordered to bring his books into court for the inspection of the other party, or all manner of information obtained in hundreds of cases which come before courts in virtue of this section, why may not the court without joinder of issue hear and determine where truth that is undisclosed lies when the only power of disclosure rests in the power of the court. We think the cases are analogous and that the court did not err in hearing the petition for the survey upon notice to the defendants.

Circumstances in this case as in many other cases might have warranted the court in issuing* the injunction prayed for without notice. It is a practice that has long obtained.

We do not attach significance to what counsel describe as “what might have happened” if this case had gone to issue and to trial. In any event defendants could not have received more at the hands of the trial court than they did receive, and all the time it must be remembered that defendants not only did not suggest anything to the court which might have taken the place of the subsurface survey, but, on the contrary, argued all the time against it, and having succeeded in having it denied, now contend that the action of the court in denying it and in entering a decree accordingly should be affirmed. We do not find in the cases cited authority to justify this position.

It is next contended that our mining statute is not broad enough to vest a court of chancery with power to order a survey of the character in question. Much may be said on this subject. Much has been said. It has been ably discussed. However, we do not regard a decision of that question as necessary for a proper decision of this case. This observation though should be made. Counsel say that if it should be held that our mining statute is broad enough for this purpose it would clearly be unconstitutional, as obnoxious to the fourth amendment to the Federal Constitution and to the corresponding section of the State Constitution. That statement does not seem to be warranted. In some of the States, notably Oregon and California, statutes have been enacted permitting just such things as are here sought. Those statutes have stood the test of the highest court in the land. The same sections of the Constitution apply in California and in Oregon as apply in Illinois, and since the highest court has considered these statutes and held them valid, it would follow that if Illinois had such a statute it would not be in contravention of those sections of the Constitution. If a statute does not contravene the Constitution then the action of a court of equity would not, in furnishing the remedy which the statute furnishes, contravene the Constitution; that is, if a court of equity otherwise had power to afford the remedy. As said in substance in Montana Co. v. St. Louis Mining & Milling Co., 152 U. S. 160, if it was a violation of the constitutional rights of the defendants for a court of equity to order a survey of the character here sought then it would be beyond the power of the State to pass a valid statute authorizing such an order. Apparently the cases where this subject has been adjudicated, not only hold that such statutes do not contravene the Constitution, but are not invalid as being in deprivation of other property rights of citizens. Union Oil Co. of California v. Reconstruction Oil Co., 4 Cal. (2d) 541, 51 Pac. (2d) 81.

We are now brought to the question as to whether a court of chancery has inherent power to order the directional subsurface survey prayed for in the petition. Here is a complaint which states, it is true on information and belief, that a trespass is being committed against petitioner, that an irreparable injury is being imposed upon it and that in substance defendants are by the means alleged in the complaint taking from plaintiff that which belongs to plaintiff and does not belong to defendant. It is shown to the court intelligently, and supported by the best evidence which can be obtained on the question, that the matters and things alleged in the complaint are true; that there is only one way of finding out the truth of whether a trespass is being committed, whether wrong is being done, and that is by means of the directional subsurface survey prayed for. In addition to this evidence the court was surrounded by the very strong circumstance that in all human probability the matters complained of were being committed. It is highly probable, we think, that the things complained of are true. Here is a strip of land that is six feet wide at one end. Is it possible to drill oil wells on this strip of land to the depths that they must necessarily go and to which the wells in question have gone, and have them bottom on the same six foot strip ? A deviation of only three feet would put the bottom of the hole over on plaintiff’s land. We are of the opinion that these circumstances alone should at once have arrested the attention of the court. Here are the facts and the circumstances. Here is the fact not only supported by strong evidence, but by facts and circumstances which argue that the only way to find out the truth about this situation is the making of the survey prayed for.

There is no wrong without a concurrent legal remedy. Must a court of equity sit by and say that it is powerless to do a thing, — the only possible thing which can ascertain the truth, and say that it has not the power to ascertain that truth? If a wrong is being committed, it is the duty of the court to right that wrong. The answer is the court does not know whether a wrong is being committed. The obvious reply is that petitioner has shown to the court the way and the only way of determining whether the wrong is being committed. In this case, if wrong is being committed it is a tremendous thing. Untold millions in money and property may unlawfully be taken in the years to come because of a lack of necessary knowledge on which for a court to act.

It is said by counsel that a court of equity will not do that which is of no benefit to the party asking it and only an injury to the party coerced. That is perfectly true, but it does not seem to us to be applicable here. If the defendants are taking property of petitioner, either wilfully or inadvertently, and that wrong may be righted by the means sought here, can it be said that that would be of no benefit to the party asking it, and can it be said that that would work injury to the party coerced when the petition guaranties the party against any injury, offers to put up a bond for that assurance and to pay the costs of the proceeding! Counsel further say that equity is based upon moral right and natural justice. This is true, and our Supreme Court has said so, but is it not morally right and is it not justice that the fellow who is taking my property against my will should cease to do so! The question is not debatable. It is further said that a court of equity will of its own motion refuse to entertain a bill to enforce a mere valueless, abstract right. We have tried to show that this is not only not a valueless abstract right, but it is a precedent which will govern property rights, moral rights and moral justice as long as the oil fields in Illinois remain. In this case it applies to an immediate, specific right.

Counsel say that a court of equity will not exercise its extraordinary jurisdiction when it will operate inequitably or oppressively. If we follow this to a final analysis and interpret it literally we would have to say that whatever wrongs a party might be guilty of in the way of taking another’s property would work inequitably and oppressively against the taker because he would have to give up his ill-gotten gain. That maxim cannot apply to the facts and circumstances in the case at bar.

It is further urged that plaintiff has estopped itself from asldng for relief because of drilling offset wells. We are not persuaded that one who is being injured loses his remedy because he does all in his power to minimize his injury.

It is true that no Illinois court has ever passed upon a situation exactly like the one here, but it is not an unheard of thing. Other States have statutes allowing it, and the highest courts in the land have approved of those statutes. So that we know that surveys of the character here described do exist. We know in this case that the truth about the situation exists; we know that there is but one way to find it out; that is the way sought by the petition herein. Here is an inherent right, if we can attach credence to the petition, its affidavits and its circumstances. Here is an\ undisclosed truth. In our judgment a court of equity ' with its broad powers for ascertaining the truth has the right to disclose the truth in this situation. The \ petitioner has offered every safeguard to protect the \ rights of the defendants. The court could compel that ' if petitioner had not so offered. There can be no injury in allowing this petition, to be compared to the damage to plaintiff if it shall turn out upon investigation that the things alleged in the petition herein are true. Sometimes it becomes necessary to do seeming evil in order that the greater good may follow.

In Gavin v. Curtin, 171 Ill. 640, our Supreme Court, speaking through Mr. Justice Boggs, wrote as follows: “There are certain general precepts or principles, denominated maxims, which a learned author declares ‘are in the strictest sense’ principia,’ — the beginnings out of which have developed the entire system of truth-known as ‘equity jurisprudence.’ (1 Pomeroy’s Eq. p. 390.) Another author of equal learning says: ‘ There are in equity several of these maxims in which the general principles of chancery jurisdiction, and the methods by which they are applied, are succinctly expressed. The first of these maxims is, that equity will not suffer a right to be without a remedy. The principle expressed by this maxim is, indeed, the foundation of equitable jurisdiction, because, as we have seen, that jurisdiction had its rise in the inability of the common law courts to meet the requirements of justice.’ Bispham’s Principles of Equity, 3d ed. p. 53.

“It is to be observed, the rights, to protect and preserve which these learned authors declare the courts of equity will provide a remedy, are not mere abstract moral rights, but rights recognized by the existing municipal law. The right possessed by the defendant in error in this case is one which belongs to the purview of municipal law and comes within the scope of juridical action, but the power of the courts of law, or their modes of procedure, are inadequate to furnish a complete remedy. It may be that an instance cannot be cited where a court of equity has been called upon to take jurisdiction and render relief in a case in all its aspects precisely the same as the case at bar, but that does not furnish a sufficient reason for declaring the jurisdiction does not exist. The expressions of this court in the case of Dodge v. Cole, 97 Ill. 338, are here in point. It was there said (p. 364) : ‘The jurisdiction of a court of equity does not depend upon the mere accident whether the court has, in some previous case or at some distant period of time, granted relief under similar circumstances, but rather upon the necessities of mankind and the great principles of natural justice, which are recognized by the courts as a part of the law of the land, and which are applicable alike to all conditions of society, all ages and all people. . . . Where it is clear the circumstances of the case in hand require an application of those principles, the fact that no precedent can be found in which relief has been granted under a similar state of facts, is no reason for refusing it.’ ”

We have given much serious concern to the mode of procedure in this matter. In this, as in other features of the case we are without precedent to guide us. We have come to the conclusion that these motions to dismiss merely tested the legal sufficiency of the petition at which they were directed. The hearing had was not a hearing on the merits of the petition. It was as if, under the old practice, a demurrer had been interposed and had been sustained by the court. The court allowed the motions and thereby held the petition legally insufficient. In this respect the court committed error which amounted to an abuse of discretion. In dismissing the complaint in pursuance of its ruling on the petition and what followed immediately thereafter, it follows, in our judgment, that the trial court committed error which must work a reversal of the case. We hold that the petition for the survey was legally sufficient.

In our judgment the petition for the survey herein is not a matter to be heard ex parte. Neither do we think that the sections of our mining act invoked here furnish direction in procedure.

The decree of the circuit court is reversed and the cause is remanded with directions to that court to deny the motions to dismiss the petition for the survey and to enter a reasonable rule on defendants to answer said petition. Upon the filing of answer the court shall make up an issue on said petition and answer and determine as a matter of fact whether said petition should be allowed. We have tried to settle the questions of law involved.

Should defendants fail or refuse to answer said petition, then the court shall allow said petition and order a directional subsurface survey under the direction of the court after exacting from petitioner ample safeguards for the protection of defendants’ rights and their security; and if it shall appear to the court upon further examination of the petition for said survey that the terms and conditions offered therein are not satisfactory to the court, the court shall make such terms and such conditions as seem meet for the proper, expeditious and efficient survey of the character prayed for in the petition.

Reversed and remanded with directions.


text:
    Noll Baking and Ice Cream Company and H. C. Bohack Company, Inc., Appellants, v. Sparks Milling Company, Appellee.

      Heard in this court at the October term, 1939.
    Opinion filed March 7, 1940.
    O ’Neill & O ’Neill, of Alton, for appellants.
    Green & Hoagland, of Alton, for appellee; E. J. Verlie, of Alton, of counsel.
   Mr. Presiding Justice Stone

delivered the opinion of the court.

Suit was brought in the lower court against the defendant appellee, Sparks Milling Company, hereafter called defendant, by Noll Baking and Ice Cream Company, plaintiff appellant, hereinafter called plaintiff, for the recovery of processing taxes collected from plaintiff by defendant, during the period when the Agricultural Adjustment Act was in effect. The original complaint was dismissed on motion. Plaintiff was given leave to file amended complaint. This was done. Subsequently, the amended complaint was amended by filing an amendment thereto.

In the meantime, a similar cause of action, based upon similar contracts was filed against the defendant company by H. C. Bohaek Company, Inc. The two causes of action were consolidated. A motion to dismiss the complaint for its failure to state a cause of action was again sustained, from which ruling and judgment of the court, the plaintiffs jointly prosecute this appeal.

The complaint alleges in haec verba the language of the contracts sued upon. Both plaintiffs and defendant recognize these numerous contracts as falling naturally into two groups, designated by them as group one and group two.

The contracts in group one, after reciting that the commodity contracted for was then subject to a tax by virtue of the Agricultural Adjustment Act, and that such tax was subject to a change or fluctuation in rate from time to time, then provided that after the date thereof, “If any tax included in the price hereof shall be decreased or abated, then, in that event, said decrease or abatement shall be deducted from the price hereof. ’ ’

The contracts in group two, after similar recitations, provided:

“ Any decrease in the processing taxes as now or hereafter imposed by any legislative or administrative branch of the United States shall inure to the benefit of the Buyer, if, as and when the benefit of such decrease has been actually realized and secured by the Seller, and shall be credited against the contract prices named in this contract to the extent — and only to the extent, that the grain used in the manufacture of the product covered by this contract is milled after the decrease in the processing tax takes effect, and to the extent that the Seller is thereby definitely relieved from the processing tax ...”

The allegations of the complaint are to the effect that in each contract a lump-sum price per barrel of flour was specified, said prices running from $7 a barrel to $8.50 a barrel. Plaintiff, Noll Baking and Ice Cream Company, claims a refund of $9,593.42 on taxes and plaintiff, H. C. Bohack Company, a total of $9,450.65. In none of the contracts sued upon was there a separate billing of the price of the commodity, and the tax imposed upon the defendant. The complaint further alleges that these contracts were entered into and performed at divers times after May 1, 1935, and prior to January 6, 1936; that during said time the processing tax, under the provisions of the Agricultural Adjustment Act, was at the rate of $1.38 per barrel of flour; that during said period of time defendant enjoined the collector of internal revenue from collecting the tax against it; and in lieu of paying said tax to such collector was required by the court to make due return and payment thereof to the registry of the court within the time prescribed for payment of the tax to the collector of internal revenue.

It was then alleged that on January 6,1936, the Agricultural Adjustment Act was declared unconstitutional by the Supreme Court of the United States, and the tax money paid into the registry of the court by the defendant, was thereupon returned to it. Allegation is then made that prior to May, 1935, other contracts between the parties had borne the following legend:

“This contract price included 30 cents per bushel tax on wheat which will be remitted by us to Internal Revenue Department. ’ ’ There is no allegation that any of the specific contracts sued upon in this suit, bore a legend.

It is contended on behalf of the plaintiffs that there was a complete understanding between the plaintiffs and defendant with reference to the tax situation arising under the contracts, that this understanding arose,

1. Out of the terms of the contracts themselves covering refunds of taxes;

2. Out of the custom and practice of inserting on the face of the contracts for a long period of time the tax items;

■ 3. Out of the interpretation placed on the contracts by the defendant miller as evidenced in the complaint by exhibits of correspondence, and

4. By reason of the fact that the defendant miller itself made a partial refund of the processing tax to both of the plaintiffs following the action of the Supreme Court in declaring the AAA unconstitutional.

Inasmuch as the last three propositions are more or less related, and may be briefly disposed of, we will discuss them first, reserving the first, and what we regard as the most important factor, for later and more particular discussion. This suit is predicated upon a number of express contracts between the contracting parties. It is fundamental in the law and sound common sense, that there cannot be an express contract and an implied contract at the same time. Walker v. Brown, 28 Ill. 378; Austin v. Wohler, 5 Ill. App. 300. There is no ambiguity in these contracts, so far as the purchase price and the processing tax is concerned, and these are the matters germane to the issues in this lawsuit. Such being the case, trade customs, and what was inserted in other contracts, would not be admissible upon a trial of the case. The rule of law that where a contract is ambiguous and has been interpreted by the parties to it, courts will regard the interpretation placed upon the contract by the parties themselves, has no application to the case at bar, for the intention of the parties to a contract is not determined by evidence aliunde, but by the language of the contract itself. Englestein v. Mints, 345 Ill. 48; Adams S Westlake Mfg. Co. v. Cook, 16 Ill. App. 161; Joliet Bottling Co. v. Joliet Citizens’ Brewing Co., 254 Ill. 215; Finch v. Theiss, 267 Ill. 65.

The allegations of plaintiffs in their complaints is to the effect that the defendant promised to return the tax money. This is merely the conclusion of the pleader and is predicated upon certain letters written by defendant to the plaintiffs, copies of which are attached to the complaint, as exhibits. An examination of these discloses that these letters were written after the contracts involved in this case were performed, and for which there seems to have been no new consideration. Where a contract is modified by a subsequent agreement, suit must be brought upon the contracts as modified and not upon the original agreement. Iroquois Finance Co. v. Bignall Hardware Co., 102 Ill. App. 68. After time for performing the contract has passed, any new arrangement or undertaking must be supported by consideration. Lindsey v. Rosen, 255 Ill. App. 21; Board of Education Villa Grove Tp. High School Dist. No. 231 v. Barracks, 235 Ill. App. 35. By the same token, any voluntary reduction of the price of flour by the defendant after the Agricultural Adjustment Act had been held unconstitutional, and after the performance of the specific contracts sued upon, could not vary the terms of these contracts, and would in no event be admissible in evidence.

We now come to the first proposition, i. e. whether there is a right of action growing out of the terms of the contracts themselves to recover the amount of the processing tax. While the question of the recovery back of processing taxes has apparently never been passed upon by a court of last resort in Illinois, in the final analysis, this is but an old principle dressed in a new garb, the fundamentals are the same. In a well-considered case in this State, it has been held that where the parties to a contract have completely performed, even though the price paid was greater because of a mistake of law, there can be no recovery. Illinois Glass Co. v. Chicago Telephone Co., 234 Ill. 535. More specifically, where taxes are voluntarily paid, the courts will not permit a recovery thereof if it appears that the burden was shifted by the taxpayer to others. Richardson Lubricating Co. v. Kinney, 337 Ill. 122. There is no allegation in plaintiffs’ complaint that the tax was not passed on and borne by their customers.

We have carefully examined all the cases cited by counsel for plaintiffs, and find no authority in any of them for holding that plaintiffs would be entitled to recover back the amount of the processing tax, voluntarily paid, with a full knowledge of the facts. Counsel rely largely upon the decision of the New York court of appeals in Wayne County Produce Co. v. Duffy-Mott Co., Inc., 244 N. Y. 351, 155 N. E. 669. We think that case is distinguishable, however, from the instant case. In that case there was no written contract and the amount paid as tax and held to be recoverable was not included in the sale price of the product, but was in addition thereto and billed as a separate item. The court on p. 353 of their opinion there said, “This is not a case where the item of the tax is absorbed in a total or composite price to be paid at all events. In such a case the buyer is without remedy, though the annulment of the tax may increase the profit to the seller.” The conclusion is irresistible, in the instant case, that the amount of the alleged tax was included and absorbed in the price named in the contract, and paid by the buyer, including, not only the tax, but the cost of the raw product, the cost of milling and processing the flour, the shipping rate, cost of the sack or barrel and the profit of the seller, a composite price where one item could not be set apart from any of the other component elements.

In the case of G. S. Johnson Co. v. N. Sauer Milling Co., 148 Kan. 861 cited by plaintiffs, suit was brought upon certain contracts to recover back processing tax, upon the theory that there existed an express trust and that said funds constituted a trust fund which should be administered in a court of equity. The plaintiff prayed for an accounting, that defendant be decreed to be a trustee and restitution made. In this case the court held that the processing tax was a composite price, not being billed as a separate item. The court said, “The money in question was paid by the plaintiff to the defendant in accordance with the terms of a written contract. The payment was voluntarily made with full knowledge of the facts. There was no charge of fraud, coercion or mistake. , The rights of the parties are measured by the contract.” The court further held that there was no basis for the establishment of a trust on the ground of a quasi-contractual obligation.

In Moundridge Milling Co. v. Cream of Wheat Corp., 105 F. (2d) 366, also cited by plaintiffs, the court followed the reasoning of the court in the Kansas case, supra holding the price to be a composite price, and that there could be no recovery back of the processing tax.

In the case of Kerber Straw Hat Corp. v. Lincoln, 266 N. Y. 410, cited by counsel for plaintiffs, there was an agreement to sell straw hats at $5.60 per dozen, the buyer to pay present rate of duty on present valuation at port of shipment, any change in rate or advance or decline in value, necessitating a change in the anmunt of duty was for the account of the buyer. In that case the complaint further alleged that there was a difference of 10 per cent in duty paid as excess, by ruling of the United States customs court. The court held that plaintiff had an action to recover the excess paid, but there the parties had contracted specifically with reference to advance and decline, and the duty was set apart from the price of the commodity.

American Chain Co., Inc. v. Hartford-Connecticut Trust Co., 86 F. (2d) 105, is easily reconciled with the cases above cited, for in that case the seller billed its customers, adding at foot of invoice, “1/21 of the above amount represents Federal Excise Tax.”

The facts in the instant case are very similar to those in the case of Johnson v. Igleheart Bros., Inc., 95 F. (2d) 4. There too, suits were brought to recover back processing taxes, that were included in the price of flour sold, no mention being made of the amount of processing tax included in the purchase price. The language of the contracts in that case was very similar to that used in this case, the parties therein providing against either an increase or decrease in said process tax, and they used also the words, “decrease, or abatement” with reference to said tax. In the Igleheart case, the court said, “It is urged upon us, however, that notwithstanding the want of express lánguage to cover the situation presented, the court should construe the contracts as containing an implied promise to refund to the plaintiff that part of the purchase price which went to make up the processing tax. In other words, we are asked, by construction, to afford the plaintiff protection against a contingency other than that which the parties themselves provided.” In the instant case there is no claim of fraud, or mutual mistake, the parties were dealing at arms’ length, and expressly provided for any increase or decrease, or abatement of this tax, but made no provision whatsoever, for the law under which the tax was levied being nullified by the pronouncement of the courts. It is not the province of the courts to add to contracts of parties, elements which they did not themselves provide, nor to protect one of the contracting parties against a subsequent contingency, which would have been advantageous to him, had he but foreseen it. The circuit court of appeals, speaking through. Judge Major further says, in the Igle-heart case, “In the instant case the amount of the alleged tax was included and absorbed in the price named in the contract and paid by the buyer, and we think it was a price to be paid at all events.” The court then held that the plaintiff was not entitled to recover under the contracts sued upon.

We feel constrained to hold under the ruling in the Igleheart case, supra and other cases cited in this opinion, that the consolidated complaint did not state a cause of action, and the trial court did not err in dismissing it. The judgment of the lower court will be affirmed.

Judgment affirmed.


author: Justice Culbertson.

text:
    Lillian C. Meyers, Appellee, v. City of Belleville, Illinois, Appellant.
    Heard in this court at October term, 1939;
    opinion filed June 14, 1940.
    L. N. Nick Perrin, Jr., for appellant;
    Louis Beasley and Edw. C. Zulley, for appellee.
   Opinion by

Justice Culbertson.

‘ ‘Not to be published in full.”


author: Justice Wolfe.

text:
    Robert Jenkins, Appellant, v. Equitable Life Assurance Society of the United States, Appellee.
    Gen. No. 9,475.
    Heard in this court at October term, 1939;
    opinion filed April 26, 1940
    rehearing denied June 18, 1940.
    Krohn & MacDonald, Sidney Rothblatt and Harry Jaffe, for appellant;
    Stuart B. Krohn, of counsel;
    Mayer, Meyer, Austrian & Platt and Hall & Hulse, for appellee;
    Miles G. Seeley, Albert L. Hall, Harry A. Hall and Marshall Meyer of counsel.
   Opinion by Presiding

Justice Wolfe.

“Not to be published in full.’’


text:
    Julia Martoccio, Appellant, v. Thomas D. Orgo et al., Appellees.
    Gen. No. 9,482.
    Heard in this court at October term, 1939;
    opinion filed May 15, 1940
    rehearing denied June 18, 1940
    Weaver & Weaver and Charles L. Cohns, for appellant;
    Rathje & Woodward and Carlton L. Fischer, for appellees.
   Opinion by Presiding

Justice Wolfe.

“Not to be published in full.’’


author: Justice Dove.

text:
    People of the State of Illinois, Defendant in Error, v. Wayne Harshbarger, Plaintiff in Error.
    Gen. No. 9,513.

      Heard in this court at February term, 1940;
    opinion filed May 15, 1940
    rehearing denied June 18, 1940.
    C. C. Craig and I. N. Herreid, for plaintiff in error;
    R. Craig Miller, of counsel.
    Eugene D. Hardy, State’s Attorney, and Gale Mathers, Assistant State’s Attorney, for defendant in error.
   Opinion by

Justice Dove.

“Not to be published, in full.”


text:
    Tampico Farmers Elevator Company, Appellant, v. Walnut Grain Company et al., Appellees.
    Gen. No. 9,522.
    Heard in this court at February term, 1940;
    opinion filed May 15, 1940
    rehearing denied June 18, 1940.
    Sheldon & Brown, for appellant;
    Jacob Cantlin and Samuel Rubin, for appellees.
   Opinion by

Justice Dove.

“Not to be published in full.”


text:
    Clarence A. Ander, In His Own Right and as Next Friend for Mary Louise Ander and Eleanor Lucille Ander, Appellees, v. Isaac W. George and Walter Yarling, Appellants.
    Gen. No. 9,524.

      Heard in this court at February term, 1940;
    opinion filed May 15, 1940
    rehearing denied June 19, 1940.
    Alexander J. Strom, for appellants;
    James J. Barbour and John G-. Boyle, Jr., for appellees.
   Opinion by

Justice Dove.

“Not to be published in full.”


text:
    Frank Lange et al., Appellants, v. George Earl Bristle, Administrator of Estate of Lewis Bristle, Deceased, Appellee.
    Gen. Ho. 9,527.
    Heard in this court at February term; 1940;
    opinion filed May 15, 1940
    rehearing denied June 19, 1940.
    I. L. Weaver and Chas. H. Woodburn, for appellants;
    J. A. Riordan and Ward & Ward, for appellee.
   Opinion by

Justice Dove.

“Not to be .published in full.”


author: Mr. Justice Culbertson

text:
    Anna Howard, Appellant, v. A. S. Howard, Appellee.
    Heard in this court at the October term, 1939.
    Opinion filed March 7, 1940.
    Rehearing denied April 10, 1940.
    J. E. Carr, of West Frankfort, for appellant.
    Everett Lewis, of Benton, for appellee.
   Mr. Justice Culbertson

delivered the opinion of the court.

This is an appeal from the city court of Johnston city, Illinois, praying that all the entries, orders, findings and judgment, subsequent to the decree of September 14, 1938, entered by Hon. Bay D. Henson, judge of the city court of Johnston City, Illinois, in this cause, may be set aside, reversed, and declared for naught, and that the entries, findings, and decree rendered on September 14, 1938 be and remain in full force and effect.

It appears from the record in this case that on the 14th day of September, A. D. 1938, a decree of divorce was obtained in the city court of Johnston City, Williamson county, Illinois, before the Hon. Bay D. Henson, presiding judge, by Anna Howard, plaintiff appellant herein, from A. S. Howard, defendant appellee herein, upon a complaint which had been filed that day, and an entry of appearance, and upon which said complaint and the entry of appearance filed therewith, on the same day, evidence was heard and a decree granted plaintiff appellant. On the 8th day of December, 1938, the defendant appellee filed his verified motion in said court to vacate the decree filed on September 14, 1938, and to expunge the same from the record, and as grounds for the vacating of said decree and expunging same from the record, the said defendant appellee alleged that the entry of appearance was a forged entry of appearance, and that neither the plaintiff Anna Howard, nor the defendant A. S. Howard, resided within the territorial jurisdiction of the court, but that Anna Howard resided in West Frankfort, Franklin county, Illinois, and A. S. Howard resided in Springfield, Sangamon county, Illinois, and that neither of the parties resided in Johnston City, Williamson county, Illinois. To this motion to vacate the decree entered on September 14, 1938, and to expunge same from the record, the plaintiff appellant herein filed her motion to strike said motion to vacate said decree, and on the 17th day of December, 1938, a hearing was had on the motion to strike, both parties appearing by their respective counsel, and after a hearing, the court denied the plaintiff’s motion to strike the motion to vacate the decree, and proceeded to a hearing on defendant’s motion to vacate the decree entered on September 14,1938, and defendant appellee offered testimony in support of his motion to vacate said decree, and the cause was then continued until December 31,1938 for evidence of plaintiff appellant. On December 31, 1938, the hearing was resumed and no further evidence was offered, and the court thereupon, on said date, vacated and held for naught the decree of September 14, 1938, and declared said decree to be null and void and of no effect. On January 28, 1939, the plaintiff appellant, by her attorney, asked leave of court to file her motion to vacate and strike all docket entries and orders, and to expunge all entries entered in said docket in this cause subsequent to September 14, 1938, and to leave in full force and effect the decree entered in said cause on September 14,1938. Leave was given to file said motion, and same was filed, and a hearing thereon set for February 11, 1939, and on February 11, 1939, a hearing was had on said motion, and the same was denied.

It is urged on this appeal that the trial court erred in entering an order and decree vacating the judgment and decree of the court entered on September 14, 1938, after more than 60 days had elapsed from the entering of the judgment and the decree in said cause, before filing of the defendant’s motion to vacate said decree; and that the trial court erred in not sustaining the cross motion to strike the motion to vacate the decree; and that the court should have vacated all entries, orders, judgment and decree subsequent to September 14,1938, and have left the original decree in full force and effect.

In the view we take of this case the issue for determination is, did the entry of appearance filed in this case on September 14, 1938 confer jurisdiction on the court to hear and determine the case. No claim is made that jurisdiction of the defendant appellee was acquired in any other manner. A full and complete hearing was had on this issue before the trial court, and after that hearing, the trial court made a finding that the entry of appearance was a forgery, and that neither plaintiff appellant, nor defendant appellee, lived within the territorial jurisdiction of the court. We are persuaded that there was sufficient evidence upon which the court made this finding to support said finding, and that same should not be disturbed by this court. The trial court, not having had jurisdiction of the parties to this cause, at the time the decree was entered, upon being apprised of that fact very properly vacated and set aside the decree, and while it is contended by the plaintiff appellant that the court was without jurisdiction to vacate and set aside the decree of September 14, 1938 for the reason that a motion so to do was not filed until more than 60 days after the entry of said decree, we cannot agree with said contention for the reason that a decree entered without jurisdiction is void and may even be attacked collaterally (Dickey v. City of Chicago, 152 Ill. 468; Ayer v. City of Chicago, 149 Ill. 262; City of Chicago v. Nodeck, 202 Ill. 257); and a court entering a judgment against one not served with process in some mode authorized by law, and not appearing, has power to set said judgment aside either at the same or a subsequent term (Keeler v. People ex rel. Kern, 160 Ill. 179; Clark v. Daniel Hayes Co., 215 Ill. App. 350).

The action of the trial court in vacating and setting aside the decree of September 14, 1938 was right and proper, and the same is accordingly affirmed.

Judgment affirmed.


author: Per Curiam.

text:
    In re Estate of E. P. Keshner, Deceased. John A. Keshner, Executor of Estate of Edward P. Keshner, Deceased, Appellee, v. Fannie Keshner and Julia Keshner, Appellants.

      Heard in this court at the February term, 1938.
    Opinion filed March 7, 1940.
    Rehearing denied March 28, 1940.

      Jos. B. McGlynn, of East St. Louis, and John T. Thomas, of Belleville, for appellants.
    Wilbur A. Trares, of Edwardsville, and McHale & McHale, of East St. Louis, for appellee.
   Per Curiam.

Edward P. Keshner died testate December 23, 1933, leaving Fannie H. Keshner his widow, Julia Keshner, a daughter and Joseph Keshner, a son, his only heirs, John A. Keshner, a brother of deceased, qualified as executor and is referred to herein as petitioner. He filed a petition under sections 82 and 83 of the Administration Act [Ill. Bev. Stat. 1939, ch. 3; Jones Ill. Stats. Ann. 110.082, 110.083] in the probate court of St. Clair county, citing Fannie H. Keshner, Julia Keshner and Joseph Keshner to appear and show cause why they should not deliver to the petitioner stocks, bonds, notes and cash withheld by them from petitioner and particularly $7,000 Liberty Loan bonds. After a hearing in the probate court the cause was appealed to the circuit court where it was tried de novo and resulted in an order granting the prayer of the petition and directing Fannie H. Keshner and Julia Keshner to pay and deliver to petitioner within 30 days $10,119.61 and jurisdiction was retained to compel performance of the order. No order was entered against Joseph Keshner. Fannie Keshner and Julia Keshner appealed to this court and are referred to as respondents.

The order appealed from was entered August 6, 1937. Bespondents filed notice of appeal August 23, 1937 and made proof of notice August 24, thereafter. Praecipe for record was filed August 27. The transcript of proceedings was filed in this court November 10, 1937.

Petitioner moved to dismiss the appeal and respondents filed objections thereto and asked leave to file supplemental abstract. Both motions were taken with the case. The basis of petitioner’s motion was that the abstract of record did not show that the praecipe specified a report of the proceedings. The praecipe specified, among other things “report of proceedings at the trial of said canse.” The abstract recites “praecipe for record filed August 27, 1937.”

An appeal is perfected when the notice of appeal is filed in the lower court and no other step in the perfecting of an appeal is jurisdictional (Ill. Rev. Stat. 1939, ch. 110, sec. 76 (2), 200 [Jones Ill. Stats. Ann. 104.076]). The abstract must be sufficient to present fully every error relied upon and it will be taken to be accurate and sufficient for full understanding of the questions presented for decision unless the opposite party shall, in accordance with the rules, file an additional abstract making necessary corrections or additions. Section 4 of the Civil Practice Act [Jones Ill. Stats. Ann. 104.004] provides that the act shall be liberally construed to the end that controversies may be speedily and finally determined according to the substantive rights of the parties. It would not be in accordance with the spirit and intent of section 4 and other provisions of the Civil Practice Act to dismiss the appeal for failure of the abstract to show that the praecipe specified a report of the transcript of the proceedings. Other objections are urged based upon alleged defects in the abstract but they are without merit.

The motion of respondent for leave to file a supplemental abstract is allowed and motion of petitioner to dismiss appeal is denied.

The evidence shows that Edward P. Keshner was for many years a stockholder and officer in the Union Trust Company of East St. Louis. He became ill in 1928 or 1929 — the exact date is not shown — and was in the hospital practically all the time from October of 1930 to the date of his death. In April, 1929, Fannie H. Keshner sold some bank stock which Edward P. Keshner had given her and received therefor $27,000. October 8, 1929, he sold 200 shares of the Union Trust Company stock for $30,450 and received a cashier’s check payable to his order for that amount. He presented the check bearing his blank indorsement to the Belleville Bank & Trust Company and after paying some indebtedness he owed the bank, he received five drafts aggregating $11,428.89 all payable to his order, dated October 8, 1929. Only three of the drafts need be further considered, those being* in amounts of $1,350, $1,401.14 and $5,000 respectively. On October 14, 1929, the three drafts were presented to the Lafayette South Side Bank & Trust Company, bearing the blank indorsement of Edward P. Keshner and the proceeds of said drafts are traceable as follows: $6,913.86 for the purchase of $7,000 U. S. Fourth Liberty Loan bonds, the balance of $792.28 was evidenced by a treasurer’s check issued by the said Lafayette South Side Bank & Trust Co. payable to Mrs. E. P. Keshner. The bonds were not registered.

The controversy is in reference to these bonds and the treasurer’s checks, or the money which they evidence.

Respondents contend Edward P. Keshner delivered the bonds to Fannie H. Keshner under circumstances amounting to a gift inter vivos. It is claimed that the treasurer’s check was made payable to Fannie H.

Keshner at the direction of Edward P. Keshner. Petitioner denies there was a gift and claims that Fannie H. Keshner and Julia Keshner acquired possession of the bonds without the knowledge or consent of Edward P. Keshner.

Petitioner called respondents as his witnesses and thereby made their evidence competent. From their testimony it appears that prior to October 14, 1929, Julia Keshner attended to some business matters for her father but the extent or nature of such transactions are not known. It is clearly established that Julia Keshner acted for her mother in all the transactions concerning the matter under inquiry.

From the testimony of respondent Julia Keshner, it appears that Edward P. Keshner delivered the three drafts to her to purchase Liberty bonds. After her father indorsed the drafts in blank, she took them to the Lafayette South Side Bank and Trust Company and purchased the bonds. The bonding department of said bank issued a statement of the sales account, showing the transaction to have been made with E. P. Keshner but Mr. Peterson, the bank representative who had charge of the sale for the bank, testified that he was not present, that there was no telephone conversation and the dealings were all with Julia Kesh-ner. She testified on direct examination that she delivered the treasurer’s check for $792.28 to her father, that he indorsed it and delivered it to Fannie Keshner, however, on cross-examination she stated that she had the treasurer’s check made payable to Fannie Keshner at the direction of her father. Her testimony is that immediately after receiving the bonds and treasurer’s check at the bank, she took them home and handed them to her father, that in the presence of her brother Joseph and herself he delivered the check and the bonds to respondent Fannie Keshner and said, “I give you these bonds for you to do the best you can with them. I do not owe a cent in the world,” that Fannie Keshner accepted the bonds and the check; that after Fannie Keshner indorsed the check she delivered it and the bonds to her and she deposited the check in the bank for respondent Fannie Keshner and placed the bonds in her safety deposit box in the National Stock Yards National Bank to be held for her mother. The evidence of Fannie Keshner and Joseph Keshner corroborates the testimony of Julia as to the delivery of the bonds and the statements made by Edward P. Keshner at time of delivery. Many impeaching questions were asked respondents for the purpose of showing their evidence in the circuit' court varied from their testimony in the probate court. Some discrepancies are shown but upon the question of delivery of the bonds and what Edward P. Keshner said there is no substantial impeachment.

In 1931, Julia Keshner converted the Liberty bonds into cash and reinvested the proceeds, less $219.94 in Bishop of Chicago bonds. The difference was given to Fannie Keshner. In November, 1932, the Bishop of Chicago bonds were converted and the money used by respondents.

Petitioner did not file an inventory but testified the only assets he had been able to discover was $150. Leo A. Keshner, a brother of deceased, held two promissory notes, one for $1,000 dated April 15, 1928 and one for $200 dated May 19 same year. These notes were filed as claims against the estate and were allowed. Fannie Keshner filed a claim against the estate for $8,500 and alleged it was for money advanced and expended for Edward P. Keshner for hospital bills, doctor bills, insurance premiums, medicine, funeral bills, attorneys’ fees, etc. This claim had not been acted upon by the probate court at the time of the hearing. .

The will was dated April 5, 1933 and directed the payment of debts and funeral expenses and he gave $100 for masses for his soul and $3,000 to Leo A. Keshner, his brother, and the remainder of real and personal property to Fannie H. Keshner.

Leo A. Keshner testified that in the latter part of 1932 while visiting Edward P. Keshner, at the hospital in Rosebud, Edward P. Keshner gave him five letters bearing dates, October 19 and November 9, 1929, September 19 and September 23, 1930 and November 13, 1932, respectively. The writings are referred to as letters and are in the form of a letter but were never sent through the mails. The one dated October 19, 1929 was addressed to Leo A. Keshner and recited: “I purchased of Lafayette South Side Bank and Trust Company through Joe Peterson, over the phone, $7,000 of U. S. 4%% Fifth Liberty Bonds, which they were to hold subject to my order and so I told my wife and daughter Julia. The bonds were billed to me in my name and without my knowledge the bonds were this date delivered to my wife and daughter, Julia, who called for them at the bank in St. Louis and who received . . . these bonds together with a cashier’s check for $792, that being balance due me from the amount of check which they took for me. My wife and Julia both said they took the bonds and $792 check and put them in a safety deposit box in National Stock Yards National Bank at National Stock Yards. My wife later procured from my room the bank’s receipt which I held in my name for the bonds. I have never seen the bonds nor the check. My wife said the bonds were put in box in sealed envelope and marked ‘property of E. P. Keshner. ’ They took bonds and check without my consent. ’ ’ Signed, B. P. Keshner.

The one dated November 9, was addressed: “To Whom It May Concern:” and recites, that on March 24, 1928 he was taken ill and that he visited a doctor who gave him a hypodermic injection which was severe and painful and that in the morning of March 24,1928, after the effects of said hypodermic injection, he thought he was paralyzed; that he suffered a complete breakdown of his nervous system and had continued so for twenty months, or up to the time of the statement; that his nerves were shattered; that he had a rupture; was sick and unable to work and that his wife insisted on him going to work and that she had taken possession of all his stock and personal property and put everything into her name without his consent and had told the children that he was not able to handle his business affairs but that he had met his obligations, was able to pay his indebtedness and wanted to continue his affairs.

The statement dated September 19, 1930 was addressed to Joseph F. Keshner, a brother, and stated that on October 14,1929, he purchased of the Lafayette South Side Bank and Trust Company through Mr. Peterson, $7,000 of U. S. Bonds and that they had been delivered to his wife and daughter at their request.

The letter of September 23 was addressed to his brother, referred to the bonds as being held by the wife and stated that all he owed was $600 on note to St. Mary’s Hospital and the two notes which the brother held, one for $1,200 and one for $1,500. The one dated November 13, 1932 referred to the indebtedness and stated that the wife and Joe had said they would pay whatever he owed.

Leo A. Keshner testified that his brothers and sister, Laura, were present at the time of the delivery of the letters; that they lived in St. Louis but none of them testified.

Respondents objected to the introduction of these exhibits. Other than the statements in the letters there is no evidence tending to dispute the testimony of respondents that the bonds and check were given by Edward P. Keshner to his wife, so in determining whether there was a gift inter vivos it is important to consider whether the statements in the letters were admissible. The statement of the bonds sales account issued by Lafayette South Side Bank & Trust Co. and the check, each bear date October 14, 1929, and the treasurer’s check bears the cancellation stamp of the bank under date of October 19, so, that if Edward P. Keshner gave the bonds and checks to his wife it occurred not later than October 19. The evidence of respondents and Joseph Keshner indicates it occurred on or immediately after October 14. There is no evidence other than the dates on the letters indicating when they were written, but accepting such dates as correct, it will be noted that the first letter was written October 19 and in view of the statement in the letter “the bonds were billed to me in my name and without my knowledge bonds were this date delivered to my wife and daughter Julia” it would appear that all the letters were written after the bonds and check had passed from the possession of the deceased.

To constitute a gift inter vivos three essentials must be shown by the evidence (1) intent of donor to make a gift; (2) delivery of the property by the donor to the donee; (3) acceptance by the donee. The testimony of Julia Keshner corroborated by Fannie Keshner and Joseph Keshner clearly establishes an intent on the part of the deceased to make a gift to his wife of the property in question. Their evidence standing alone also establishes delivery to the donee and acceptance by her.

In support of their evidence on the question of delivery there is corroboration in the fact that the bonds and check were always after that date in the possession or under the control of respondents. Possession of the bonds and the check would in itself constitute presumptive evidence of ownership therein. The statements in the letters questioning respondents’ right to the bonds and check would be self-serving and had the deceased in his lifetime instituted a suit against his wife and daughter for the recovery of the property the letters could not have been admitted in evidence on his behalf to prove there was no delivery (Dalby v. Maxfield, 244 Ill. 214; Oswald v. Nehls, 233 id. 438). The general rule is that where the subject matter of the gift is in the possession of the donee, declarations of the donor made in his own behalf after such delivery are not admissible to disprove the gift. In Thornton on Gifts and Advancements, p. 198, sec. 224, the rule is stated thus: “Declarations made by the donor after the time of the alleged gift in favor of the donee, or tending to admit that a donation was made of the subject-matter of the gift to the donee, are admissible on behalf of the donee and those claiming under him, to establish the fact of the gift; but such declarations are not admissible on behalf of the donor, to disprove the gift, on the ground that he cannot defeat a title he has once given, although other declarations, admitting the gift, are in evidence for the donee.” Numerous cases are cited by the author to sustain the statement of the text, among which are (Kimball v. Leland, 110 Mass. 325; Scheps v. Bowery Sav. Bank, 97 App. Div. 434, 90 N. Y. S. 26); and to this list should be added Fender v. Foust, 82 Mont. 73, 265 Pac. 15.

Petitioner contends the letters were admissible as part of the res gestae in showing* the intent of Edward P. Keshner to make a gift of the property. They were not admissible on such theory for they were in writing and mere recital of what had transpired before. The Supreme Court of this State has said that the true inquiry in determining whether statements are admissible as a part of the res gestae is whether the declaration is a verbal act illustrating, explaining or interpreting other parts of the transaction of which it itself is a part or is merely a history or part of the history of a completed past affair (McMahon v. Chicago City Ry. Co., 239 Ill. 334; Chicago West Div. Ry. Co. v. Becker, 128 Ill. 545; Montag v. People, 141 Ill. 75). Under the principles announced the letters were not admissible for the purpose of disproving the gift.

Petitioner contends Julia Keshner was serving in a fiduciary capacity. There is no evidence indicating that she did anything more than what her father directed her to do. The evidence shows without conflict that at her father’s directions she took the drafts to the bank and carried on the transaction in reference to the bonds and check. It is evident that in so doing she thought she was acting on behalf of her father for the sales account was issued in her father’s name. It does not appear from her testimony or the testimony of Mrs. Keshner that there was any intent to withhold the property from the executor upon any ground other than that it had come into their possession by a gift from the deceased.

It is said that a gift from the husband to the wife is presumably fraudulent as against creditors. That rule has no application to the facts here for to raise the presumption certain essentials must appear: (a) that the person complaining of the transfer was a creditor at the time; (b) that the grantor was then insolvent or such facts and circumstances are shown as would raise a presumption of the insolvency (Moritz v. Hoffman, 35 Ill. 553; State Bank v. Barnett, 250 id. 312). The notes of Leo A. Keshner filed as claims against the estate bear date prior to the date of the alleged gift but there is no evidence raising the presumption that Edward P. Keshner was at the time of the gift insolvent or unable to meet his indebtedness. There is no presumption of fraud arising’ out of the fact that Edward P. Keshner gave the property to his wife.

The statements in the letters not being admissible for the purpose of disproving delivery of the property to the donee, the undisputed evidence is that of the respondents that the bonds and check were given to Fannie Keshner and were not owned by Edward P. Keshner at the time of his death. For the reasons stated the judgment of the circuit court is reversed.

Judgment reversed.


text:
    C. E. Layzod, Appellee, v. Harrison Martin and Mary Foster Martin, Appellants.

      Heard in this court at the October term, 1939.
    Opinion filed March 9, 1940.
    Nealy I. Glenn, of Benton, for appellants.
    Curtis E. Smith and T. J. Layman, both of Benton, for appellee.
   Mr. Justice Culbertson

delivered the opinion of the court.

This is an appeal from the county court of Franklin county, in which the court found in favor of the appellee, C. E. Layzod (hereinafter called plaintiff), and against appellants, Harrison Martin and Mary Foster Martin (hereinafter called defendants) in an action under section 2 of the Forcible Entry and Detainer Act, ch. 57, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 109.264].

The case originated in the court of a justice of the peace and was instituted through the serving on defendants of a demand for immediate possession of the premises. A five-day demand for rent or possession was, likewise, served on defendants, but all proceedings under clause 4 of section 2 of the Forcible Entry and Detainer Act hereinabove referred to, were abandoned, and the cause proceeded under the second clause of section 2 of such Forcible Entry and Detainer Act.

In the justice court a judgment was rendered in favor of defendants, and the cause was then appealed to the county court of Franklin county where it was tried by the court without a jury. The court there found the issues in favor of plaintiff for possession of the premises. Motion for new trial on behalf of defendants was overruled, and judgment was entered against defendants for possession and for costs of suit.

Defendants contend, among other grounds, that the court below erred in excluding exhibits offered on behalf of defendants, one of which was a warranty deed (subject to a first mortgage), showing that one of the defendants, Mrs. Martin, had entered into possession of the premises pursuant to such deed; and the other exhibit, being a record of payments to the mortgagee of the premises after the delivery of such deed, and while such defendant was in possession of the premises with her former husband. Defendants, likewise, contend that the evidence does not sustain the findings of the court for a number of specific reasons. Certain misconceptions as to the function of title documents in a hearing of this character, as well as of the nature of the evidence presented at the hearing, apparently motivated the parties in the hearing below.

The evidence below simply showed that the plaintiff had obtained a deed from a third party, who was not in any manner connected with the paramount source of title, and who was not shown to have been in possession either personally or through any predecessor in title, and who, so far as shown by the evidence, may have been a stranger or volunteer who was not entitled to possession as against anyone.

Actions under the Forcible Entry and Detainer Act hereinabove referred to, are purely statutory, and must be pursued in accordance with the provisions of the act. A right of action exists under the second clause of section 2 of the act “when a peaceable entry is made and possession unlawfully withheld.” This language has been construed to mean that a peaceable entry must have been made upon the premises in the actual possession of either the plaintiff, or of those to whose rights he has succeeded, and the possession must thereafter be unlawfully withheld after demand (West Side Trust & Savings Bank v. Lopoten, 358 Ill. 631; Fitzgerald v. Quinn, 165 Ill. 354; Kaufman v. Miller, 214 Ill. App. 236).

We have searched the record and fail to find any evidence which tends to connect the title, or right of possession of plaintiff with the title of the mortgagee, or of any person who had been in actual possession or entitled to possession as against defendants. There is an assertion in the brief of plaintiff, and in a recital by the court below in its written opinion, that the plaintiff is a remote grantee of the mortgagee, but there is no evidence in the record of any character which tends to sustain such finding or conclusion. Perhaps the plaintiff on retrial may be able to establish that he is a successor in interest to the mortgagee, who may have had a right of entry for condition broken (West Side Trust & Savings Bank v. Lopoten, supra), but there is no such showing in the record.

The mere taking of a deed from a third person, without evidence showing title or possession in such third person, does not establish title or right of possession in the plaintiff (McGowan v. Glos, 258 Ill. 217, 219). Title documents may be received in evidence to show that title was conveyed to a plaintiff by a grantor in possession (Goldblatt Bros., Inc. v. Hoefeld, Inc., 284 Ill. App. 31), but if the right to possession of the premises as between the parties to the action can only be determined by adjudicating the title thereto, then the appropriate action would be ejectment (Kaufman v. Miller, supra, at 241). If, however, title documents, or other evidence, tend to establish clearly a right in a plaintiff, to possession as against a defendant, or to clarify the rights of the parties under the act, without requiring the determination of contradictory title claims, they should be considered in such proceeding. If the evidence would tend to show that plaintiff is a remote grantee of the purchaser at a sale pursuant to foreclosure of a mortgage on the premises, then the right to possession may be adjudicated in this proceeding.

In the instant case there was no evidence to sustain the conclusion of the court that plaintiff (who received a deed from a third party who was in no way connected with the title or right to possession), has the right to maintain the action under the act. If plaintiff had established his connection with the title of the purchaser at a foreclosure sale, or of some other person entitled to possession of the premises, then a judgment in his favor would have been sustained.

Under the circumstances, there being insufficient evidence to sustain the right of plaintiff to maintain his action under the Forcible Entry and Detainer Act, the judgment of the county court of Franklin county will be reversed, and this action remanded to such court for a new trial and further proceedings in this cause not inconsistent with this opinion.

The judgment of the county court of Franklin county is, therefore, reversed, and this cause is remanded to such court.

Reversed and remanded.