text:
    Grover W. Watson, Trustee, Complainant and Appellee, v. Laura E. Willerton et al., Defendants. Amos Wilson, Administrator of the Estate of Louisa Wilson, Deceased, Appellant.
    Gen. No. 8,417.

      Heard in this court at the October term, 1929.
    Opinion filed June 11, 1930.
    F. K. Lemon and L. O. Williams, for appellant.
    Herrick & Herrick, for appellee.
   Mr. Justice Niehaus

delivered the opinion of the court.

In this case the appellee Grover W. Watson filed a hill in equity in the circuit court of DeWitt county alleging that on the 6th day of March, 1928, Smith Fuller and his wife, and Kempton S. Fuller and his wife, being then the owners and in possession of certain real estate, namely 211 acres of land in DeWitt county, made, executed and acknowledged and delivered to him their certain warranty deed; and thereby conveyed to him the land referred to in fee simple; subject however to an easement theretofore granted to the Ozark Pipe Line Corporation and to a mortgage of $21,000 payable to the Illinois Joint Land Stock Bank of Monticello, Illinois. The appellee further avers in his bill that while the deed of conveyance referred to upon its face is a statutory warranty deed in the usual form, that the conveyance was made to and accepted by the appellee for the benefit of the creditors of the grantors Smith Fuller and Kempton S. Fuller; it being then and there agreed between the grantors and the grantee, that the real estate in question should be sold; and that after the payment of the costs and expenses of the trust involved, the proceeds of said real estate received by the appellee should be distributed and paid out ratably and equally between all the creditors of said Smith Fuller and Kempton S. Fuller, except such creditors as hold mortgage liens upon the aforesaid real estate. It is also alleged in the bill that the appellant Amos Wilson, as administrator of the Estate of Louisa Wilson, deceased, is among the other creditors. The appellee further avers in the bill that on pr about the 6th day of August, 1928, he sold the aforesaid premises and made a contract for that purpose in writing with one James S. Sullivan of the county of McLean and State of Illinois on the 10th day of August, 1928; that in said written contract of sale the said purchaser Sullivan agreed to pay the sum of $25,320; and that the purchaser Sullivan also agreed to assume the amount of the principal debt due on the mortgage to the Illinois Joint Stock Land Bank as of March 1, 1929. The appellee further alleges that the price which the premises were sold for to Sullivan was the fair and reasonable cash market value of the same at that time; and that the contract of sale is fair, just and equitable and made for the benefit of the creditors of Smith Fuller and Kempton S. Fuller. It is further alleged in the bill that on or about the 30th day of April, 1928, and subsequent to the execution and delivery of the warranty deed to the appellee, the appellant Amos Wilson, as administrator of the estate of Louisa Wilson, deceased, recovered a judgment in the circuit court of DeWitt county for the sum of $9,366.60 and costs, against appellee’s grantors Kempton S. Fuller and Smith Fuller, and that said judgment has never been paid and still remains in full force and effect and has not been in any part satisfied; that the purchaser Sullivan has made objection to the appellee’s title of the premises in question as trustee on account of the supposed lien of the judgment referred to and requested the appellant as administrator to release the aforesaid premises from any alleged claim or lien which he might claim by virtue of said judgment; and that the appellee has made a demand upon said appellant as administrator that he execute a release or disclaim any right, title or interest or claim by virtue of the aforesaid judgment against the premises in question; that said Amos Wilson as such administrator has refused to execute any such disclaimer;' or to execute any reléase of the alleged lien of the aforesaid judgment; but that the appellant as administrator improperly contends, that such judgment is a lien upon the aforesaid premises ; and that he is entitled as administrator to be paid out of the proceeds of .the sale of the aforesaid premises pro tanto as far as said purchase price will extend ; and prior to any distribution that might be made of such proceeds of the sale amongst the several unsecured creditors of the said Kempton S. Fuller and Smith Fuller. And it is further alleged in the bill, that to pay the proceeds of said sale to the appellant as such administrator, under the claim made by him, would result in defeating the purpose for which said conveyance was made to him, and would result in none of the other creditors receiving anything out of the proceeds of said sale of the premises. It is also averred in the bill that while the judgment referred to constitutes no lien upon the premises in question nor any part thereof, nor upon the proceeds which may be obtained by the appellee out of the sale of said premises, yet the said judgment by reason of the claim of the appellant constitutes a cloud upon the appellee’s title; and that the appellee would be unable to close the trade with the purchaser Sullivan without procuring an adjudication upon the alleged claim of the appellant. The bill prays for an adjudication and decree that the conveyance made to the appellee by the grantors Smith Fuller and Kempton S. Fuller was a just and equitable conveyance, and made solely for the benefit of "the unsecured creditors of said grantors; and that the judgment of the appellant administrator is not a lien upon the real estate conveyed or any part thereof; and is not a lien upon the proceeds derived from the sale of the premises; and that the appellant as administrator has no other claim against the proceeds of the sale of the premises other than his claim as an unsecured creditor to share ratably and equitably with the other creditors of the said grantors; and the bill further prays that it be decreed by the court that the premises were sold for a fair, full, ample consideration ; and that the said contract between complainant and the purchaser Sullivan is a fair, just and reasonable contract; and that the court approve the making and delivery of said contract and direct the complainant to proceed to carry out said contract; and to make conveyance of the premises in accordance with the terms of the contract; and receive and collect the purchase price of the premises sold from the purchaser and distribute the same pro tanto among the aforesaid creditors of Smith Fuller and Kempton S. Fuller ratably and that the court further adjudicate and determine who the unsecured creditors of Smith Fuller and Kempton S. Fuller are.

The appellant as administrator filed an answer to the bill of complaint; and in the answer admits the recovery of the judgment in the amount stated in the bill; and avers that the same became a lien on all the right, title and interest of Kempton S. Fuller and Smith Fuller in all of the premises in question, subject to the rights of the Illinois Joint Stock Land Bank of Monticello for $21,000; and the answer denies that the complainant as trustee has any right or authority whatever in law to sell said land and distribute the proceeds among all the creditors; and further avers that the appellant as administrator was a judgment creditor; and had a lien upon said premises, which should be satisfied before any distribution of the pro-coeds of the sale is made by the complainant. The answer also alleges that' the attempted sale by the appellee as set forth in the bill of complaint is void and of no effect; and, as a matter of law, is subject to all the rights of the. appellant as a judgment creditor; and also avers that the appellee had full and complete knowledge of the appellant’s judgment as it appeared of record in the circuit court of DeWitt county, before he entered into the contract of sale referred to; and that it was made by the appellee with full knowledge and notice of the rights and contentions of the appellant as a judgment creditor; and asks for an accounting between the appellee and the appellant for any moneys that have accrued to the appellee which came into the hands of appellee by virtue of the alleged trusteeship in the premises. The answer also denies that the price for which the land is purported to have been sold was a fair and reasonable price, and the then cash market value of said premises; and denies that the contract was fair and equitable; and admits that he refused to execute any release or disclaimer demanded of him by the appellee as such pretended trustee.

An amendment was later filed to the answer, in which it is alleged that the conveyance and the trust thereby created was void and of no effect because in conflict with section 9 of chapter 59 of Cahill’s Revised Statutes, ¶ 9, which provides that “all declarations or creations of trust or confidences in any land, tenements and hereditaments shall be manifested and proved by some writing signed by the party who is by law enabled to declare such trust, or by his last will in writing; or else they shall be utterly void and of no effect.” And the answer was also amended by an additional averment that the conveyance and trust created thereby was in conflict with section 4 of chapter 59 of Cahill’s Revised Statutes, ¶ 4, which provides that “every gift, grant, conveyance, assignment or transfer, or charge upon any estate, real or personal, or right or claim in action, or any rent or profit thereof, made with the intent to disturb, delay, hinder or defraud creditors or other persons, and every bond or other evidence of debt given, suit commenced, decree or judgment suffered, with like intent, shall be void as against creditors, purchasers and other persons.”

The appellant also filed a cross-bill, praying that the conveyance to the appellee be declared fraudulent, null and void as against the appellant, praying for the appointment of a receiver and for an accounting and for an adjudication that the appellant’s judgment be declared to be a lien upon the premises in question.

A demurrer was filed to the cross-bill by the appellee, which was afterwards withdrawn by leave of court; and thereupon upon the motion of the appellee the cross-bill was stricken.

The cause was thereupon referred to a special master to take the evidence and report his conclusions; the special master reported the evidence taken, together with his conclusions, to which objections were filed; and the objections were overruled; and it was ordered by the court that the objections stand as exceptions.

Upon the hearing of the cause on the exceptions to the special master’s report, the exceptions were overruled; and the special master’s report and his conclusions approved by the court; and a decree was entered granting the relief prayed for in the bill. This appeal is prosecuted from the decree.

The record discloses that the proofs, made in the case sustain the material averments in the bill concerning the nature and purpose of the trust conveyance of the property of the grantors to appellee; aiid the sale of the same made by the appellee as trustee to James S. Sullivan; and that the amount of the purchase price to be paid therefor represents the fair cash market value of the property.

Various errors are assigned by the appellant for reversal of the decree. It is contended that the deed of conveyance in question to the appellee was void because it was a voluntary conveyance of land made by the grantors when they were insolvent, and was a fraud upon appellant’s rights as an existing creditor. The evidence does show that the conveyance in question was a transfer of all their property; and was made by the grantors when they were insolvent; but also that it was made in trust for the benefit of the creditors of the grantors, including the appellant; and was in its nature and effect a common-law assignment of all the property of the insolvent grantors to secure an equal distribution of the avails thereof among the unsecured creditors pro tanto.

In Weber v. Mick, 131 Ill. 520, the Supreme Court in passing on the nature and effect of such assignments of property adopts the definition given by Burrill in his Treatise on Assignments, which is as follows: “Voluntary assignments for the benefit of creditors are transfers, without compulsion of law by debtors, of some or all of their property, to an assignee or assignees, in trust to apply the same, or the proceeds thereof, to the payment of some or all their debts, and to return the surplus, if any, to the debtor. Such assignments are termed voluntary, to distinguish them from such as are made by compulsion of law, as under statutes of bankruptcy and insolvency; . . . voluntary assignments for the benefit of creditors are in many respects peculiar to American law and practice, and have in this country acquired a technical signification; . . . a voluntary assignment for the benefit of creditors implies a trust, and contemplates the intervention of a trustee.” Walker v. Ross, 150 Ill. 50. Common-law assignments for the benefit o.f creditors may be legally made notwithstanding the fact that the National Bankruptcy Act suspended the- statute concerning voluntary assignments for the benefit of creditors. Pogue v. Rowe, 236 Ill. 157. :

Concerning the question of fraud raised by appellant, it may be pointed out what Lord Ellenborough said concerning the legal propriety of conveyance like the one in question. In the case of Pickcstock v. Lyster, 3 Maule & Selwyn 371, Lord Ellenborough said, that an assignment for the benefit of creditors was, “an act of duty rather than a fraud, when no purpose of fraud is proved. The act arises out of discharge of the moral duties attached to the assignor’s character of debtor, to make the fund available for the whole body of creditors.” Cardiff Gypsum Plaster Co. v. Hales Coal & Material Co., 239 Ill. App. 16.

Concerning the contention made, of hindering or delaying creditors in the collection of their claim by a transfer of property of this character, it was held in Feltenstein v. Stein, 157 Ill. 19, as follows: “Where the assignment is general in its character, and fair on its face, as placing all the debtor’s property in the hands of the assignee for equal pro rata distribution among the creditors, the mere fact, that it delays particular creditors in the enforcement of their claims by the ordinary process of law, does not make it fraudulent and void. Such delay is a necessary incident in the discharge by the assignor of his duty to his creditors.’'’ And such a transfer of the property of an insolvent debtor will be carried into effect even though there are no assenting creditors. Thompson Co. v. Whitehead, 185 Ill. 454.

It is also contended that the trust involved is an express trust and therefore inasmuch as there is no writing manifesting the trust, it is void because in conflict with the. provisions of the statute of frauds, which are pleaded in defense in the answer of the appellant. It may be stated concerning this contention of appellant, that the defense of the statute of fraud is not available to him in this cause, because he is not a party to the trust agreement. The defense of the statute of frauds was available to the appellee, the deed being an absolute transfer of the property to him, but the appellee having waived it by his declaration of trust in the bill of complaint, it is not available to any party who is not a party to the trust agreement. People v. Tombaugh, 303 Ill. 591; Pasquay v. Pasquay, 235 Ill. 48. The purpose of the statute of frauds, requiring express trusts to be manifested or proved in writing, is for the benefit of those claiming title under the deeds or other instruments absolute on their face and not for the benefit of those seeking to defeat the operation of such deed. Allen v. Woodruff, 96 Ill. 11; Myers v. Myers, 167 Ill. 52. Where the trustee does not plead the statute of frauds, it is waived by the trustee, and no other party to the suit can insist on the statute as against their adversaries. Myers v. Myers, supra. In the case last cited it was held where the statute of frauds is moved by the trustee, an express trust may be established by parole proof. Where the statute of frauds is waived by the party who may invoke it, the case must be considered and decided without reference thereto. Clayton v. Lemen, 233 Ill. 435; Willis v. Zorger, 258 Ill. 574; Cohen v. Friedman, 259 Ill. 416; Lee v. Bermingham, 199 Ill. App. 497. An assignment for the benefit of creditors is a trust within the jurisdiction of a court of equity to guard and protect. Reardon v. Taft, 235 Ill. App. 75. And under such assignment or conveyance for the benefit of creditors as soon as the assignee accepts it, he becomes a trustee for the creditors, and they may compel the execution of the trust in a court of chancery. Reardon v. Taft, supra; Howell v. Moores, 127 Ill. 67; Howe v. Warren, 154 Ill. 227; Gibson v. Rees, 50 Ill. 383. The owner of the property creating the trust is the only necessary party to the trust agreement. Bergman v. Bergman, 323 Ill. 73. In this case the trustee made a declaration of the trust in the bill of complaint which he filed in this cause; and it was competent and legally effective to express the trust in that way. Fox v. Fox, 250 Ill. 384; White v. Ross, 160 Ill. 56; Myers v. Myers, supra.

It is also contended by the appellant that the trust conveyance is void because in the-creation of the trust in question no express power is given to dispose of the property by sale to carry into effect the purpose of the trust. In an assignment for the benefit of creditors however, the power of the sale of the property is necessarily implied. Cherry v. Greene, 115 Ill. 591; Illinois Christian Mission Society v. American Christian Mission Society, 277 Ill. 193.

It is also argued that under the trust agreement the trustee has discretion to sell the property on credit, and that such discretion invalidated the trust as an assignment for the benefit of a creditor. It is sufficient to say concerning this point that no such inference can reasonably be drawn from the trust agreement as established by the declaration of trust in the bill of complaint and by the evidence; moreover it appears from the bill of complaint and the evidence that the trustee has not sold the property on credit; but that under the contract of sale, the money constituting the purchase price will all have been paid to the appellee when the deed conveying the property to Sullivan is delivered.

'■ Concerning the error assigned on striking of the cross-bill from the files, it may be said that while the legal propriety of this action of the court may be open to "question, there is no' reversal error involved, inasmuch as the record clearly discloses that the appellant was not entitled to any relief under Ms cross-bill; and that all his rights as creditor could be and were adjudicated under the issues raised by his answer.

For the reasons stated, the decree is affirmed.

Decree affirmed.


source: Caselaw Access Project

author: Mr. Justice Niehaus

license: Public Domain

text:
    Harry Fishwick et al., Appellees, v. John L. Lewis, Appellant.
    Gen. No. 8,426.
    Heard in this court at the April term, 1930.
    Opinion filed June 21, 1930.
    Henry Warrum, Charles E. Feirich, Moses Pulverman and Gillespie, Burke & Gillespie, for appellant.
    A. C. Lewis, Floyd E. Thompson, Joseph A. Londrigan and Roy C. Martin., for appellees.
   Mr. Justice Niehaus

delivered the opinion of the court.

In this case, an appeal is prosecuted by John L. Lewis, president of the United Mine Workers of America, from the order of the circuit court of Sangamon county denying a motion to dissolve a temporary injunction based upon the allegations of a bill in equity filed by Harry Fishwick, president of the 12th District of the United Mine Workers of America, and others, to restrain the appellant John L. Lewis and the officers and representatives of the United Mine workers of America from revoking or attempting to revoke, or carrying into execution any order purporting to revoke the charter of District No. 12; and from deposing and suspending or removing from office or claiming that they have deposed or removed from office any of the complainants in the bill referred to; and from interfering with the performance of the duties of the officers of District No. 12; and from setting up or attempting to set up a provisional government for said district.

The only question involved in the appeal is the legal propriety of the order denying appellant’s motion to dissolve the temporary injunction. In review of the case we shall confine ourselves to a consideration of the questions that have a direct bearing upon matter appealed from.

The material facts pertaining to this controversy as summarized in the decision of the chancellor who passed upon the motion to dissolve the injunction and as they are set forth in the abstract, are as follows:

“The United Mine Workers of America is a voluntary unincorporated labor organization among workmen in and around the coal mines on the American continent and is international in its scope. Its jurisdiction is divided into districts, subdistricts and local unions. At intervals, since 1890, it has adopted written constitutions for its government. The last one was adopted in January, 1927, and expressly provided (sec. 13, art. XX) that it shall be in effect until March 31, 1929, and can be amended only by a majority vote of the delegates attending the regular international convention. Under the constitution international conventions are to be held biennially on the fourth Tuesday in January, and a regular convention was due in January, 1929. No such convention was held, but by the direction of the international executive board, a referendum vote of the membership of the United Mine Workers of America was taken through the local unions on the question of an indefinite postponement of the international convention. The result of the referendum vote showed that a majority had voted in favor of such postponement, although a substantial minority of the membership had voted against it. •

“The 12th District of the United Mine Workers of America is a district chartered by the international organization with jurisdiction over the territorial area of the State of Illinois and with a membership confined to mine workers within that area. The district is, in turn, divided into subdistricts and local unions. Under the charter provisions, as well as under the constitutional provisions of the United Mine Workers of America, all districts, subdistricts and local unions are under the jurisdiction of the international union and subject to the laws and to the rulings of the international executive board. Districts have the power to enact such laws for their government as do not conflict with the laws or rulings of the international union or with any joint agreements. The charter of a district can be revoked only by the international president, whose action is subject to the approval of the international executive board.

“The principal offices provided by the international constitution are president, vice president and secretary-treasurer. An executive board is composed of those officers, together with one member from each district. The defendant John L. Lewis, is president; Phillip Murray, vice president, and Thomas Kennedy, secretary-treasurer. Among the duties of the president is to preside over all international conventions and meetings of the international executive board, and to interpret the meaning of the international constitution, 'but his interpretation shall be subject to repeal by the international executive board.’ The international constitution vests in the international president the power to suspend or remove for cause any international officer or appointive employee. But it does not impower or authorize him to remove or suspend a district or subdistrict official. When a charge against a district or subdistrict official is made, it must be lodged with the executive board of the branch of which the accused is an officer. The decision of such board is final, unless appealed from as provided in sec. 3 of art. III. An examination of the last-mentioned section will disclose that the right of appeal is granted only to individual members and to branches of the organization and that an appeal by an individual ends with the decision of the district executive board, while an appeal by a branch of the organization ends with the international executive board, except that, if the appeal of an individual member involves his membership, then successive appeals may be taken to the international convention.

“Under the charter powers granted District No. 12, it adopted a constitution for the government of the district, and provided for the election of president, vice president, secretary-treasurer and an executive board for the collection from its members of fees, dues, and other revenues, for the establishment and custody of funds for beneficent purposes, for the acquisition of property, the discipline of members, and the continuance of its constitution until modified or changed by regular constitutional district conventions. The district comprises 10 subdistricts and more than 300 local unions with membership of approximately 50,000. It has acquired and owns a large office building in the City of Springfield, and loaned the international union $50,000. It claims to have advanced, at the request and for the use and benefit of the international union, divers other large sums of money, which are now due and payable. It has many thousands of dollars deposited in banks to its credit, and has entered into valuable and long-time leases of portions of its office buildings with tenants. It has an agreement of great advantage with various coal operators of Illinois with respect to wages and employment. It conducts a legal department at much expense for the assistance of miners, who have claims arising under the Workmen’s Compensation Act. Subdistricts and local unions of District No. 12 have also acquired and hold property. On October 19, John L. Lewis, president of the international union, by an executive order issued at Indianapolis, Indiana, and addressed to Harry Fishwiek, president, and all members of the executive board, District No. 12, United Mine Workers of America, purported to revoke the charter of said District No. 12. The order sets forth in detail the reasons for such revocation, and are in brief: (1) that the executive board of District No. 12 is insubordinate to the laws of the United Mine Workers of America, and the rulings of the international executive board; (2) that the executive board of District No. 12 refuses to execute the decision of the international executive board, declaring Ueorge Stouffer ineligible to be a member of the district executive board; (3) the district executive board reallocated the local unions in subdistrict No. 9 in defiance of the ruling of the international executive board; (4) through its official publication, The Illinois Miner, the district board has circulated among the membership, misrepresentations, untruths, and slander concerning the international union; and (5) executive board has improperly used large sums of money to influence elections and for other improper purposes.

“The executive order interpreted the effect of the revocation of the charter in the following language: ‘This order revoking the charter of District No. 12 does not, in any manner affect the charters or status of the officers of the various subdistrict organizations now functioning within District No. 12, nor in any way affect the charter of local unions of mine workers in District No. 12. Said subdistricts and local unions will continue to function in their usual manner and retain as usual "in their possession all moneys, real estate and other valuable property heretofore accumulated and in their possession. Concurrently with the revocation of the district charter, the international union is setting up a provisional district organization and appointing officers of said provisional district to take over the business of District No. 12, assume the obligations of the joint wage agreement, and its protection, and carry on in every particular the beneficent activities of a district union. Mr. Frank Hefferly of Collinsville, Illinois, has been appointed president of the Provisional District 12, United Mine Workers of America. Mr. Joseph P. Groett of Peoria, Illinois, has been appointed vice president of Provisional District 12, United Mine Workers of America. Mr. John T. Jones of West Frankfort, Illinois, has been appointed secretary-treasurer of Provisional District 12, United Mine Workers of America.

“The deposed officers and-agents of District 12 will turn over to the designated officers of the provisional district the charter, books, records, seals, moneys, real estate and all other property in their possession belonging to District 12, United Mine Workers of America. The provisional officers will furnish receipt for such property and retain it in their custody and possession for the use and protection of the membership of the local unions of Provisional District 12, United Mine Workers of America.”

It is apparent from the facts herein set forth, and from the answer of the appellant Lewis to the bill of complaint, that the real purpose of the executive order issued by the appellant in revoking the charter of District 12', was not to put the district out of existence as a member of the United Mine Workers of America; but as stated in the answer, namely, that: “the sole and only effect of the revocation of the charter of said district is the revocation of the power vested in the executive officers and executive board of said district to administer the affairs thereof, and as incidental thereto, to remove the executive officers and the executive board of the district from the respective offices held by them; and to vest the powers of the executive officers and executive board of such district ... in the provisional officers, as appointed by the international president.”

This situation presents the question whether or not the appellant, as president of the United Mine Workers of America, acting under the constitution of that organization (assuming that the constitution was in force and effect at the time of the issuance of the order of revocation), had the power and the legal right, by means of a revocation of the charter of District No. 12, to remove the officers of District No. 12, and substitute therefor officers of his own selection, and whether he had the power by his executive order to cause the property real and personal held by the officers of District No. 12 as trustees for the benefit of the membership of the district, to be transferred into the custody and control of the officers and trustees selected and appointed by him. .

From the facts recited, it is evident that a number of questions for final judicial determination are involved in this controversy, which not only concern the validity of the act of the appellant as president of the United Mine Workers of America, in revoking the charter of District No. 12 and removing the officers of the district and substituting the persons appointed by him in their places, but which also concern the validity of a revocation order which continues the district in existence without a charter as a functioning member of the United Mine Workers of America by an executive order. It is apparent also from the facts recited that there are property rights involved with reference to the real and personal property of District No. 12, which are held in trust by the officers of District 12, and which are affected by the executive order of removal of the officers of District No. 12. It is this feature of the controversy that brings this case into the jurisdiction of a court of equity. Courts of equity always take jurisdiction in a controversy of this character for the purpose of protecting property rights and the proper execution of any trust that may be involved. Lord v. Equitable Life Assur. Soc., 194 N. Y. 212, 22 L. R. A. (N. S.) 420. If the act of the appellant is illegal it may involve serious consequences to property and property rights of District No. 12, and may result in irreparable loss to the district, and its membership.

A motion to dissolve a temporary injunction is not necessarily a hearing on the merits, but presents the question whether it is advisable to preserve the status quo of the matters in controversy by a continuance of the temporary injunction until a final hearing on the merits of the case. Whether the status quo should be preserved until the final, hearing depends not only upon the probability that’a case will be made out on a final hearing, but also upon the relative injury that might be sustained by the parties by the action of the chancellor in granting or. refusing the motion. Barrell v. Lake Forest Water Co., 200 Ill. App. 529; Russell v. Farley, 105 U. S. 433; Kerr on Injunctions, 209, 210. Where the sole object for which the temporary injunction is sought is the preservation of a fund in controversy or the maintenance of the status quo until the question of the right between the parties can be decided on final hearing, the injunction is properly allowed or maintained even where there may be a serious doubt as to the ultimate success of the complaint. Harriman v. Northern Securities Co., 132 Fed. 464. To the same effect is the holding in City of Newton v. Levis, 25 C. C. A. 161, 79 Fed. 715 and Rago v. Village of Melrose Park, 161 Ill. App. 18; Young v. Federal Union Surety Co., 183 Ill. App. 278. In the latter case the cpurt refers to City of Newton v. Levis, supra, and quotes the language of the court in deciding the principle which is here involved. The court said in that case: “The granting or withholding of a preliminary injunction rests in the sound judicial discretion of the court, and the only question presented by this appeal is whether or not the court below erred .in the exercise of that discretion under the established legal principles which should have guided it. The propriety of his action must be considered from the standpoint of that court. . . . The controlling reason for the existence of the right to issue a preliminary' injunction is that the court may thereby prevent such a change of the conditions and relations of persons and property during the litigation, as may result in irremediable injury to some of the parties before their claims can be investigated and adjudicated. When the questions to be ultimately decided are serious and’ doubtful, the legal discretion of the judge in granting the writ should be influenced largely by the consideration that the injury to the moving party will be certain, great and irreparable if the motion is denied. . . . A preliminary injunction maintaining the status quo may properly issue whenever the questions of law or fact to be ultimately determined in a suit are grave and difficult and if the injury to the moving party will be immediate, certain and great if it is denied, while the loss or inconvenience to the opposing party will be comparatively small and insignificant if it is granted. ’ ’

For the reasons stated, we conclude that under the facts and the law pertaining to this controversy, it was important and advisable that the status quo of the matters involved in the litigation should be preserved until the final hearing; and for that reason alone and without regard to any other, it was incumbent on the court to overrule the motion to dissolve the temporary injunction; and the order overruling the appellant’s motion to dissolve the injunction is therefore affirmed.

Affirmed.


author: Mr. Justice Jones

text:
    In re Estate of Warren Beckwith, Deceased et al., Appellants, v. Harry J. Cooper, Appellee.
    Gen. No. 8,188.

      Heard in this court at the February term, 1930.
    Opinion filed July 7, 1930.
    Worcester & Lord, for appellants.
    Peffers & Wing, for appellee.
   Mr. Justice Jones

delivered the opinion of the court.

The appeal in this ease is from an order of the circuit court of Kane county overruling a motion to dismiss certain proceedings there pending, wherein a testamentary trust under the will of Warren Beckwith, deceased, was being administered. There is also pending on the docket of this court another appeal bearing the same title and the General Number 8,189. The purpose of the last-mentioned appeal is to reverse an order of said circuit court appointing Harry J. Cooper as a cotrustee in the administration of the said trust. The two appeals were argued together. The general facts in both cases are the same, and by common consent, the two appeals will be considered in this opinion.

Warren Beckwith, a resident of Mt. Pleasant, county of Henry, and State of Iowa, executed a last will and testament on September 15, 1897. After making certain bequests in favor of his wife and daughter, he created a testamentary trust for the benefit of his three sons, Everett, Orville, and Warren. The sons were each to receive one-third of the annual income derived from the trust fund during their respective lives. Upon the death of any son, the trust as to one-third of the estate was to terminate and vest absolutely as follows: one-third to the widow of such son and two-thirds to his surviving children.

The testator, by said will, appointed his wife, Sarah E. Beckwith, Mt. Pleasant, Iowa, Charles W. Smith, Aurora, Illinois, and W. I. Babb, Mt. Pleasant, Iowa, as executors and exempted them from giving bond, as such executors, for the discharge of any trust or duty under the will. He directed the said executors to hold, manage, and control, invest and reinvest such trust estate. He provided that in case of the death or refusal to act of any one or more of the trustees, the “probate court” shall appoint some trusty and discreet person or persons as successor or successors in trust, who are to give sufficient bond.

The will contains the following provision:—"To the end that all persons interested in my estate may at all times be advised as to its condition, I direct my executors shall file in the probate office of Henry county, Iowa, an annual report showing the funds and property on hand and the amount received and paid out since the last report.” It is obvious that the “probate court,” which was thus empowered to appoint successors in trust, was the court of Henry county, Iowa, in which the annual reports were to be filed.

On January 29, 1903, the testator executed a codicil to his will and the 5th paragraph thereof is in the following language: “5. I hereby direct and provide that no part of the money, fund or property set apart in said will or in this codicil to my said sons, and no part of the income from the same, shall ever be liable in any way for any debts that they may at any time contract, either before or after this day, and shall never be liable for any claim or debt of any kind against them.” This provision impresses the bequest made for the benefit of the testator’s sons with all the essential elements of a spendthrift trust, and it must be considered in that light. (Wagner v. Wagner, 244 Ill. 101.)

The testator died, and on October 2, 1905, the will, including the codicil, was admitted to probate by the district court of Henry county, Iowa. The executors and trustees named in the will qualified and proceeded to the administration of the estate. Thereafter, on December 19, 1908, an order was entered in said court closing and settling the estate and discharging the executors, as such. It recited, however, that the executors are not discharged or freed from any other liabilities imposed upon them under said will, but are continued in office for the purpose of carrying out their duties as to the remaining assets of said estate with all the powers conferred upon them under the will and that they are directed to make report from time to time to that court or to such other court to which the administration of such trust may he removed.

Subsequently, Orville Beckwith, one of the sons, died leaving a widow and children. A report was made by the trustees to the district court of Henry county, Iowa, and a distribution of one-third of the trust estate was ordered to be made among said widow and children, according to their rights under the will.

Sarah E. Beckwith and W. I. Babb, two of the trustees, moved from Henry county, Iowa, to Aurora, Illinois, in 1908. The property constituting the trust fund was largely in stocks in industrial corporations in Illinois. Charles H. Smith, the third trustee, died in 1910. Mrs. Beckwith and Babb continued to act as cotrustees until Babb’s death, September 4,1925. Two months later, Mrs. Beckwith filed a bill in chancery in the circuit court of Kane county, Illinois, setting forth the creation of the trust and its administration. It alleged that the situs of the trust property was in Illinois and that the trustees also resided here, but that the property was assessed in Henry county, Iowa; that she had been advised that the court of Henry county, Iowa, no longer had jurisdiction over the administration of the trust; that the annual taxes levied in Iowa against the trust estate amounted to approximately $3,500; that if the district court of Henry county, Iowa, should appoint a trustee, he would be a resident of Iowa; that the estate would thereby suffer from wrongful taxation; and that because of her age and the condition of her health, the complainant desired the assistance of a cotrustee and recommended the appointment of Myron C. Atwood, of Aurora, Illinois, to succeed W. I. Babb. Everett Beckwith, Warren W. Beckwith, and Sarah E. Beckwith, as guardian of Warren Beckwith Jr., a minor, were made parties. The defendants answered the bill and consented to the appointment of Atwood as cotrustee. An order was entered by the circuit court of Kane county, appointing Mm and fixing Ms bond at the sum of $100,000. Atwood qualified and acted as a trustee until February 26, 1929, when he died.

Subsequent to the death of Atwood, Mrs. Beckwith filed a petition in the circuit court of Kane county, Illinois, alleging the death of Everett Beckwith, one of the sons of the testator. An order was entered directing a distribution of another one-third of the trust estate to the widow and children of Everett Beckwith. Mrs. Beckwith filed a report of her acts as trustee and requested the discharge of the estate of Atwood and the discharge of Atwood’s bond. Warren W. Beckwith, now the sole surviving son of the testator, filed a written consent to the distribution of Everett Beckwith’s share of the trust estate and consented to the discharge of Atwood’s bond.

•On May 24, 1929, Mrs. Beckwith again appeared, by counsel, in the circuit court of Kane county, Illinois, and by petition requested the appointment of Dennis H. Grady, as a cotrustee to assist in administering the remaining one-third of the trust estate. The petition alleged that it was necessary and advisable to have a cotrustee appointed; that she has consulted the surviving son with reference to a proper person to succeed Atwood and they join in the request for the appointment of Grady; that she has known Grady for many years; and that he is qualified to act and has signified his willingness to accept the appointment. Warren W. Beckwith filed a written consent to such appointment. For some reason not disclosed by the record, the court refused to appoint Grady and over the protest of Mrs. Beckwith and her son, appointed Harry J. Cooper, of Aurora, Illinois, and fixed his bond at $50,000. As a general rule, where an appointment of a particular person will engender ill feeling between trustees, or between trustees and cestui que trustents, so as to prevent beneficial co-operation in the administration of the trust, the appointment of that person should not be made. (Lorens v. Weller, 267 Ill. 230, at page 243.)

The appeal from the order denying a dismissal of proceedings is prosecuted jointly and severally by Sarah E. Beckwith, individually and as trustee, and by Warren W. Beckwith, Warren Wallace Beckwith Jr., and Vera Beckwith. Vera Beckwith is the wife of Warren W. Beckwith, and Warren Wallace Beckwith Jr. is their son. Both are interested in the preservation of the estate.

/ It was the clearly expressed wish of the testator to have the trust estate, which he created, administered by the district court of the county of his residence, to wit: Henry county, Iowa. The author of a trust, in declaring the trust, may mold and give it any shape he chooses, and he may provide for the appointment of a successor or successors to the trust on such terms as he may choose to impose. He may do this directly by naming the persons to be substituted or by giving a power of appointment. (Reichert v. Missouri & Illinois Coal Co., 231 Ill. 238; Lake v. Brown, 116 Ill. 83; 39 Cyc. 271.) And when the creator of a trust has, by express terms, conferred the power of appointment upon another, it can be exercised in no other way (Equitable Trust Co. v. Fisher, 106 Ill. 189), except by a court of competent jurisdiction in an effort to prevent a failure of the trust or of its purposes.

In this instance, the testator created a spendthrift trust for the benefit of his three sons. He had an undisputed right to have it administered wherever he chose, without regard to the wishes, desires, or convenience, either of the cestui que trustents or the trustees. Courts will always jealously guard trusts of this character. They will not inquire into the reasons or wisdom of a settlor, in creating a spendthrift trust. It will assume they are sufficient and will throw a protecting arm about the trust. (Wagner v. Wagner, supra; Wallace v, Foxwell, 250 Ill. 616.) The fact that Sarah E. Beckwith, and perhaps one or more of the other trustees, in the administration of their duties, have found it more convenient to resort to a court in Illinois than to one in Iowa, affords no excuse for the transfer ’ of such administration from one State to another, contrary to the positive directions of the creator of the trust. The creator of the trust has the right to say in what manner vacancies in the trusteeship shall be filled, and if he exercises that right, they cannot be filled in any other manner, unless there is a failure or refusal to fill them as directed. (French v. Northern Trust Co., 197 Ill. 30.)

It is urged that the conduct of Mrs. Beckwith and her son, in attempting to transfer jurisdiction, should estop them from repudiating their action. However that may be, their wrongful conduct cannot be set up as against the trust itself. Certainly, it cannot be that one who is the beneficiary of a spendthrift trust can, through estoppel or otherwise, cause the trust to be administered in any different mode than his father directed. Moreover, one of the objectors is the wife of Warren W. Beckwith, who will be entitled, upon his death, to one-third of the remaining trust estate. Another is their minor son, about three years of age, who is also interested in the final distribution of the trust estate. No conduct has been charged against either of them, which would estop them from insisting upon the administration of the estate where the testator had placed it.

According to our view, the trustees wrongfully procured the circuit court of Kane county, Illinois, to assume jurisdiction ■ over the trust estate. The motion for the court to relinquish such jurisdiction and dismiss the proceedings should have been allowed, and this cause is reversed and remanded with directions to grant such motion and for such other orders as may be necessary in the premises.

Reversed and remanded with directions.


author: Mr. Presiding Justice Jett

text:
    Katherine Curtin, Appellant, v. Ray Mann, Appellee.
    Gen. No. 8,131.

      Heard in this court at the October term, 1929.
    Opinion filed July 19, 1930.
    Hyer & Gill, for appellant.
    Welsh & Welsh, for appellee.
   Mr. Presiding Justice Jett

delivered the opinion of the court.

This is an action on the case brought by Katherine Curtin, appellant, hereinafter referred to as plaintiff, against Bay Mann, appellee, hereinafter called defendant. The trial resulted in a verdict in favor of the defendant Mann, and after overruling motions for new trial and in arrest of judgment, the court entered judgment against the plaintiff for costs. The case is before this court on appeal.

The defendant owned two lots at the southwest corner of the intersection of 20th and Charles Streets in the City of Rockford. A small stream enters the premises about 60 feet south of the northeast corner of the property, flows in a westerly direction about 120 feet, then turns to the southwest. Over the stream the defendant had built a concrete flume or platform, extending it on to the southwest. The hutment forms had not been put in for the extension. On the finished portion of the platform, piled up and scattered about, were sectional forms, reinforcing bars, lumber, etc., and near, or at the end of the platform, were two high piles of lumber or forms, and between them a passage way some three feet wide, extending to the end of the concrete off of which the plaintiff fell into the stream.

North of this stream, and south of Charles Street, defendant had erected a barbecue stand about 25' x 35'. To the west, and back of this stand, he had built a small building in which to roast meat. West of the main building, and a little south, was a tool house about 12' x 12'. There was to the west of the buildings a finished picket fence extending south from Charles Street to a point west of the tool house; then extending east toward the tool house were posts and stringers, ready to attach the pickets to complete the fence,, the lower stringer being about 18" from the ground, and the upper one about 5'. The ground is level and covered with cinders from Charles Street south to the fence, and back of the cinders is the stream. From the tool house to the east there is no fence.

The entrance to the barbecue stand was on the north side. There was no entrance from the south. There were toilet facilities inside the building but none on the outside. There was a white light on the southwest corner of the barbecue building and a row of colored lights ran along the roof to the front of the building.

Defendant had rented the barbecue plant and premises to one Lou Smalter, who was conducting it as a barbecue stand, defendant having no interest in the management of it.

Such was the situation on June 16, 1928, when plaintiff received the injury on which the suit is based.

The plaintiff’s account of how the accident happened, as abstracted, is in substance as follows:

On June 16, 1928, I was with my husband, Mr. and Mrs. McBride, Miss Curtin and Miss O’Conner, driving along Charles Street. One of the girls suggested getting a barbecue. We turned into Bill’s place. Some one said Lou had better sandwiches, so we turned and crossed the street and into Lou’s yard. My husband was driving. The car was stopped on the west side of the barbecue, a little beyond the building where they roast the meat. Mr. McBride got out and went around in front to get the sandwiches. I said I wanted to go for a walk and did anyone want to come. Mrs. McBride and I got out. I wanted to go to the ladies’ toilet. I had never been to this barbecue before, and did not know anything about the location of the toilets — whether they were inside or out. I walked around the southwest corner of the barbecue and walked on the cinders until I finally came to the concrete. There was no barricade or obstruction along the north side of the concrete that barricaded me from going into it. I saw nothing along the north side. When I walked on the concrete, I saw long pieces of lumber and reinforced pieces lying on the concrete. When I first got onto the concrete, they were not high, just seemed to be scattered pieces around there. As I went on there, I was looking for a toilet. I walked a little bit to the east, and looked around and didn’t see any outside toilet, and I happened to turn and look west, and I saw these two lumber piles, piled up with about a three foot lane between them, and I said to Mrs. McBride: “I am going behind those lumber piles,” and she followed me, and I walked on pieces of steel that were between the lumber piles and kept on walking.

As I was going west, the lights were behind me and it was dark and I really could not see, and all I was looking for was a dark place, and thought behind the lumber pile was where I could go, and I walked and finally dropped right off. There was a shadow or dark place between these two piles, and I was going there for the purpose of relieving myself from a call of nature. There was no barricade in between these piles which- interfered with me walking between them. There were pieces of steel that I walked on and I did not see the hole as I was walking in between the two piles of lumber and didn’t know there was an end to that cement or that.there was a hole there. I didn’t know it was a creek bottom. I had never been out there in daytime, nor at night. I didn’t know whether there was a toilet inside the barbecue. I didn’t ask anyone where there was a toilet or if there were toilet facilities. I had never been there before and didn’t know anybody. The reason I went onto the slab and and into the dark place by the lumber was to answer a call of nature and I did it of my own volition. It wasn’t necessary to go across this flume on the cement platform in order to get from the car to the barbecue property for the purpose of buying sandwiches. When I came to the piles of lumber or the aisle between them, I saw it was dark ahead of me, and I went voluntarily into that darkness.

The defendant introduced no evidence, and there is no contradiction of Mrs. Curtain’s evidence in the record. Plaintiff was severely injured. The record discloses, and it is conceded, that the point at which the accident occurred was not on any part of the premises leased to Smalter.

The theory of the plaintiff seems to be that because appellee owned the premises where the barbecue was being operated by his tenant, and the premises on which the accident occurred adjoining them, the landlord not only impliedly invited the public to come upon the leased premises to deal with and purchase food and drinks of his tenant, but also impliedly invited any member of the public who came to trade with his tenant, to come upon the connecting premises belonging to the landlord to answer nature’s call, and having so extended the invitation the law made it his duty to keep the connecting premises safe for that purpose.

The bare statement of this theory ought to be sufficient to refute it, but authority refuting it is not lacking. In Morong v. Spofford, reported in L. R. A. 1915 B, 387, Spofford owned the building. A tenant had a milliner store on the second floor. The plaintiff visited the store as a customer, found no one in, and was injured while attempting to leave by a back stairway, of which defendant had retained possession when he leased the store room. The court sums up the case in the following language:—

“While there was an implied invitation from the defendant, as the owner of the premises, to the plaintiff to use the front stairway and landing leading to the Gilchrist store, and the defendant owed her the duty of exercising reasonable care to provide safe and suitable approaches thereto, we are of opinion there is no evidence which would warrant a finding that there was any invitation from the defendant to the plaintiff to open or pass through the door leading down the rear stairway, and that the defendant owed her no duty to keep the door locked. It could not be found that she had a right to assume, as the door was not locked, that it was intended that she might use it as a means of ingress to, or egress from, the premises.”

There being in law no invitation to come upon the unleased premises, there is no legal duty to keep them in safe condition for use by uninvited persons.

Plaintiff puts forth another theory on which she says she should recover. Under the head “Excavations” in her brief, she says: — “A. It is a well settled rule of law that a landowner is liable for an injury caused to a traveler by an excavation so close to a public road as to endanger those using the road in a reasonable manner and with reasonable care.” “B. The above rule applies particularly where the situation is likely to mislead the traveler. ” “C. Same rule applies to private ways.” She then concludes “D. Logically, and with more force than in the case of a private way, the rule applies to excavations adjacent to a place of public resort; particularly where the defendant is landlord of the resort premises.”

The trial court permitted the case to go to the jury on this last theory.

Now, let us see what plaintiff was required to prove to bring her case within the law as thus- stated by her. First: It would be necessary to show.that the exeavation was so close to the place of public resort as to endanger those using the place in a reasonable manner and with reasonable care, and that the plaintiff, while so using it, and in consequence of its closeness, fell into it and was injured, or, second: That the situation was such as to mislead plaintiff, while using the place of public resort in a reasonable manner and with reasonable care, into the belief that the place of public resort covered the premises on which the excavation existed, and in consequence thereof she was misled into walking into the excavation,and receiving injury, or, third: That there was a definite private way upon the premises of public resort; that she was using said private way in a reasonable manner and with reasonable care, and in consequence of such excavation being so close to such way, she fell into it and was injured; or fourth: That the defendant knew, or should have known that his premises adjacent to the place of public resort were being so constantly and habitually used by the patrons of the resort for some private purpose or convenience that the law would presume such use was with his leave or license, and with that knowledge'he created a pit for such patrons to fall into, and that while plaintiff was availing herself of such license in a reasonable manner and with reasonable care, she fell into the pit and was injured.

In vol. 45 Corpus Juris, 860, par. 285, the following rule is announced:

“If the owner of land makes an excavation thereon adjacent to a highway, or so near as to make the use of the highway unsafe or dangerous, he will be liable to a traveler who, while using ordinary care, falls into it and is injured. And liability is held to extend to cases where, although the excavation is some feet from the highway, the line of the street is indefinite by reason of the intervening space being paved, as well as to cases where one in attempting to pass an ,, obstacle placed on the sidewalk passes onto defendant’s land and falls into the excavation. Conversely, liability does not exist under this rule where the excavation is neither adjacent to the highway or sidewalk nor so close as to make the ordinary and proper use of the highway or sidewalk unsafe or dangerous; nor does liability exist when the excavation is made at such a distance from the street or highway that a person falling into it would be a trespasser before he reached it. And regardless of whether or not the excavation is so near the highway as to render the owner liable to persons injured while lawfully using it, he is not liable to a person who is injured after he reaches the excavation by crossing other premises, or while he is not attempting to follow the highway or where his departure from the traveled way is not accidental or inadvertent.”

We are of the opinion the jury was fully justified in finding that the proof failed to establish any of these theories.

On the question of contributory negligence we merely suggest that while one may expect a place of public resort to have toilet facilities, if they were not in view it would seem that the reasonable thing for a prudent patron, desiring to use them, to do, would be to inquire as to their location, and that an unreasonable and careless thing to do would be to wander around in the dark in search of them over a place covered with material plainly indicating that construction work was in progress or unfinished. Such places are not noted for their safety.

Plaintiff insists the trial court erred grievously in rejecting the evidence of two witnesses that they fell into the same excavation or pit. Waiving the failure to show or offer to show that the premises were in the same condition when these witnesses fell in as when the plaintiff fell in, the rejection of the testimony could work no injury to the plaintiff’s cause,

It was offered for two purposes, first, as tending to show defendant’s knowledge of the situation, and second, to show that it was a dangerous one.

The defendant," called as a witness for plaintiff, had already testified that he was around there practically every day and showed by his testimony that he was familiar with the fact the pit or jump-off was there. Hence, evidence tending to show his knowledge would add nothing, would be useless, a mere gesture and wholly immaterial for the purpose offered. Its value as proof that the place was a dangerous one to fall into is nil. It is a matter of common knowledge that any one falling into or stepping into an excavation like this one is likely to be injured thereby, although so far as the record shows the two witnesses whose testimony was rejected escaped without injury when they fell in. The rejection of this testimony was fully justified.

Complaint is made of the introduction of a plat and the repetition in instructions of the rule requiring the plaintiff to exercise ordinary care; of the giving of certain instructions on the part- of appellant, and the refusal and modification of certain of plaintiff’s instructions.

The plat was produced and identified by plaintiff’s witness and its inaccuracies pointed out and explained by him. It is ’not contended that it failed to show, in a general way, the situation, and with the explanations about it in the record it is difficult to see how it could have affected the verdict.

While repetition of a point or principle in a set of instructions is looked upon with disfavor, the mere repetition seldom, if ever, constitutes reversible error.

We have examined and considered the matters complained of, and the authorities cited, and find in them no sufficient basis for a reversal of the judgment in this case, and it is accordingly affirmed.

Judgment affirmed.


text:
    Farmers Bank of North Henderson, Illinois, Appellant, v. Axel W. Stenfeldt et al., Appellees.
    Gen. No. 8,098.
    Heard in this court at the October term, 1929.
    Opinion filed July 19, 1930.
    Church & Califf, for appellant.
    Walter L. Hannon, for appellees.
   Mr. Justice Jones

delivered the opinion of the court.

On January 4,1929, judgment by confession was entered in favor of plaintiff and against defendants in the circuit court of Mercer county for the sum of $2,134. Execution was issued thereon and delivered to the sheriff on the same day. At the time of the delivery of said execution, appellees were the owners of personal property, upon which said execution was levied. Various motions were made and orders entered concerning the judgment, and finally, on May 3, on motion of defendants, supported by affidavit, the judgment was vacated and the execution quashed. To reverse this order, an appeal is prosecuted.

The question is raised as to whether or not the order sought to be reviewed is appealable. The first action of the trial court was to open up the judgment and grant defendants leave to plead. Subsequently that order was vacated. Still later another order was entered granting the defendants leave to plead and preserving the lien of the judgment and execution. Lastly, on motion of' the defendants, that order was rescinded and an order entered vacating the judgment and quashing the execution without terms and without leave to the defendants to plead. Whether or not such order was intended to finally dispose of the case is not clear.

An affidavit was filed in support of the original motion to open up the judgment and for leave to plead. It asserted that the notes sued on were forgeries and were without consideration. It disclosed a meritorious defense, if proven, and under the circumstances, the trial court entered a proper order in allowing the motion. The cause then stood pending for trial, subject to the filing of appropriate pleadings. Whether or not the notes were forged instruments and given without consideration would, under such pleadings, be for the consideration of a jury and not for the court. An order opening up a judgment by confession and granting leave to plead is not a final order, but merely interlocutory, and is not appealable. (Dean v. Gerlach, 34 Ill. App. 233; Walker v. Oliver, 63 Ill. 199; Bolton v. McKinley, 22 Ill. 203, 204; Andrews & Co. v. Anchor Folding Box Mfg. Co., 210 Ill. App. 636; City of Park Ridge v. Murphy, 258 Ill. 365.)

But the trial court, after having made such an order, set it aside and entered one absolutely vacating the judgment. It went further than that. It quashed the execution and its lien instead of continuing it in force until the final determination of the suit. The difference between opening and vacating a judgment by confession should be distinguished. Courts of law exercise a sort of equitable jurisdiction over judgments by confession under warrants of attorney, in order to admit a defense upon the merits. In doing so, a rule' of practice has become well-nigh universal. Under that rule, the judgment is not vacated or set aside; it furnishes a mode of permitting a defendant a hearing on the merits, the judgment meanwhile remaining in force and standing as security. (34 C. J. 255; Bolton v. McKinley, supra.) If the defense is unsuccessful, then the original judgment stands unaffected; if it be successful, the judgment will be set aside. (Norton v. Allen, 69 Ill. 306; Hall v. Jones, 32 Ill. 38.)

Notwithstanding the distinction to be made between the terms “opening up” a judgment and “vacating” or “setting aside” a judgment, much laxity of expression is to be found in the books. This situation is recognized in King v. Brooks, 72 Pa. 363, where it is said that “Even when the order of the court is to vacate or strike off — if it is apparent on the face of the record to have been for the purpose of rehearing or retrial, it is in substance an order to open — though it is much better in all cases to employ the proper term.” So, in the instant case, we are inclined to regard the last order of the trial court by which the judgment was “vacated” as having been opened up for a trial upon the merits.

If no more had been done to the judgment than to open it up, the order would not be applicable. But the trial court’s order went further; it quashed an execution which had been levied upon the property of the defendants and the record shows that such property was not exempt. It deprived the plaintiff of its security. In this action the court erred. It has been generally held in this and in other jurisdictions, that an order or decree awarding, denying, quashing, or refusing to quash the execution is a final and an appealable order. (3 C. J. page 530; sec. 363.) Such has been the rule in Illinois since our earliest decisions. (Sloo v. State Bank of Illinois, 1 Scam. [2 Ill.] 428.) In that case, Sloo moved the court to set aside the judgment or restrain the levying of the execution upon his property. The trial court denied the motion whereupon Sloo appealed. It was contended in the Supreme Court that the order was not a final order from which an appeal could be prosecuted. It was held that the order refusing to restrain the levying of the execution was an appealable order.

A similar question was presented to the Appellate Court of the Third District in Butterfield v. Diekman, 200 Ill. App. 627, where it was urged that a judgment refusing to quash an execution is not a final judgment from which an appeal will lie. The opinion in that case reviews Sloo v. State Bank of Illinois, supra, together with other Illinois cases and announced the rule to be that a judgment on a motion to quash an execution is .a final judgment and an appeal will lie therefrom.

Bolton v. McKinley, supra, is cited in opposition to the above doctrine, but we do not think it conflicts with the established rule, for the court expressly stated that “The only question presented by this record, necessary to be considered, is whether the court below had the power to set aside the judgment by confession on a motion entered at the same term at which it was rendered.” The court was not asked to determine whether an order quashing the execution was final or not. It is apparent from the opinion that the Supreme Court considered no other question than the power of the trial court to set aside a judgment by confession and grant leave to plead. It held that such power existed and when exercised, the order was interlocutory, and not appealable. No question was raised as to the finality of an order quashing the execution.

Aside from the weight of authority, it seems that the principles of justice demand the statute be so construed as to grant' appeals from orders quashing an execution and its lien. It requires no stretch of imagination to conceive a case where a plaintiff’s remedy would be entirely lost to him if his execution were quashed while he is compelled to await a trial upon the merits of his case. A defendant, if possessed of small scruples, would find it easy, under a different rule, to dispose of and conceal his property to the detriment of his creditor.

In this case the trial court should have proceeded under the original order opening up the judgment and at the same time preserving the lien of the execution until a final determination of the cause upon its merits. We have already indicated that we are constrained to hold that the' order vacating the judgment should be deemed one where the term was improperly used, and that it was really intended to open up the judgment and grant leave to the defendants to plead. The error in the case comes from quashing the execution. The judgment of the trial court must be reversed on that account, so far as it purports to quash the execution, and the cause remanded to the circuit court with directions to modify the order, so as to continue in force the execution and the lien of the levy thereunder until the final determination of the cause upon its merits.

Reversed and remanded with directions.


text:
    James L. Shane, Trading as J. L. Shane Company, Appellee, v. Eustace S. De Leon, Appellant.
    Gen. No. 8,192.
    Heard in this court at the February term, 1930.
    Opinion filed August 9, 1930.
    . McElroy & Pearson, for appellant j Walter Wm. Pearson, of counsel.

      Wm. A. Palmer and Willard Moffett, for appellee.
   Mr. Presiding Justice Jett

delivered the opinion of the court.

This suit was instituted in the circuit court of Du Page county by James L. Shane, doing business as J. L. Shane Company, appellee, hereinafter referred to as plaintiff, against Eustace S. De Leon, appellant, hereafter called defendant, to recover a balance alleged to be due upon a certain building contract.

A jury trial was had resulting in a verdict in favor of the plaintiff, and assessed his damages at $1,397.04.

Motion for new trial was made, argued and denied.

Judgment was rendered on the verdict of the jury and the defendant prosecutes this appeal.

The plaintiff declared upon the common counts! The plaintiff in his affidavit of claims sets forth that his demand is for a balance due on a contract for the construction of a house, garage, walk and driveway, and for his services ip connection therewith, which contract was completely performed by the plaintiff, on and prior to, June 4, 1927, and that there is due to the plaintiff from the defendant, after allowing to the defendant all just credits, deductions and set-offs, the sum of $1,397.04, with interest thereon at the legal rate from June 4, 1927.

To the declaration the defendant pleaded the general issue together with a plea of set-off.

In view of the state of the record, however, no cross error having been assigned, it will not be necessary for us to discuss the alleged set-off of the defendant.

The plaintiff based his right to recover on an account stated. ‘

It is the contention of the defendant /that the plaintiff cannot recover, basing his right on an account stated. If it be true that there was an account stated between the plaintiff and the defendant, then if the plaintiff made proof to that effect he would be entitled to recover. It is also the rule that it may become a question of fact, as to whether or not an account was stated between the parties.

The defendant insists that a writing relied upon as an account stated must show the balance, if any, alleged to be due from the defendant to the plaintiff.

On the part of the plaintiff, the written contract entered into by the plaintiff and the defendant for the construction of the improvement was before the jury together with the testimony on the part of the plaintiff that he built the house and garage and performed the services contemplated by the contract at the total cost thereof of $16,747.04; that he delivered to the defendant a statement bearing date March 23, 1927, showing the items that made up the total costs; also his testimony showing the amount paid on account and the balance remaining unpaid. The plaintiff did not rely altogether on his right to recover on the written evidence, but upon the agreement of the parties made subsequent to the delivery of the statement of the total costs. The plaintiff testified that three or four days after the delivery of the items constituting the total costs of the work done by the plaintiff, he received a check for $3,000 from the defendant and that he had a conversation at that time with the defendant; that the defendant then asked the plaintiff to gather together all of the paid statements, the waivers of lien, turn them over to him, and he, the defendant, would pay the balance; that at that time no question was raised by the defendant as to whether the bills were satisfactory or not; and that the plaintiff obtained the waiver of lien and delivered them to the defendant; that the defendant took possession of the house April 15, 1927.

The record discloses, on cross-examination of the plaintiff by the defendant, the following:

“Q. Well then at no time subsequent to March 23 did Mr. De Leon agree to pay you the balance of $1,397.04!
A. Yes sir.
Q. When!
A. At the time of the delivery of this check for $3;000, Mr. De Leon asked me to gather together all the paid statements paid up, all of the bills, get the waivers of lien, turn them over to him and he would pay the balance.
Q. The balance amounted to $1,397.04 — isn’t it a fact that he said, if upon examination of these bills, he found them satisfactory, he would pay the balance!
A. He did not raise the question as to whether they were satisfactory or not.”

Dick v. Zimmerman, 105 Ill. App. 615, was a case in which the plaintiff relied upon an account stated for a recovery, and in its opinion at page 617 the court said:—

“The evidence presented by appellee on the trial tended to prove an account stated. It was confined solely to that question. If there was no stating of an account, then appellee had no case. Appellee’s evidence being thus limited, the prior transactions of the parties were not in issue, unless the account stated was attacked for fraud or mistake, in which case the burden shifted to appellant. Upon this theory he put in evidence relating to the items upon which the account was based. The jury found, upon conflicting evidence, that there was an account stated and that it was not based upon fraud or mistake and we do not think such finding should be disturbed.”

It is not indispensable for the writing relied upon by the plaintiff to show the balance due from the defendant to him. That is the rule, if the delivery of the writing alone is relied upon, but if there is other evidence of a .meeting of the minds of the parties, the rule does not apply.

The meeting of the minds of the parties upon the correctness of an account stated is usually the result of a statement of account by one party and an acquiescence therein by the other. The form of the acquiescence or assent is, however, immaterial, and may be implied from the conduct of the parties and the circumstances of the case. Vol. 1 Corpus Juris 687; Dolman v. Kaw Construction Co., 103 Kan. 635, 176 Pac. 145, 2 A. L. R. 67.

Still, in order to constitute an account stated, there must in every case be proof in some form of an assent to the account, that is, a definite acknowledgment of the indebtedness in a certain sum, and the assent must be voluntary. As a general rule any admission of a balance or acknowledgment made by one party to another that a sum is due to the latter is sufficient prima facie evidence to prove an account stated. Vol. 1 Corpus Juris 687, par. 268.

In Seal Lock Co. v. Chicago Manufacturing $ Optical Co., 98 Ill. App. 637, the plaintiff had a written contract for manufacturing certain goods for the defendant. The plaintiff rendered to the defendant a bill for $752. The defendant, without making any objections to it paid $250 on account. The defendant, being in financial straits, called a meeting of its creditors, at which its attorney stated it owed plaintiff $502. The court held that the facts set forth are strong evidence of an account stated between the parties.

It is urged also by the defendant that an indebtedness arising out of a specialty cannot be made the subject of an account stated. The distinction between specialties and simple contracts is practically abolished by section 33 of the Practice Act, Cahill’s St. ch. 110, ¶ 33, which reads as follows:—

“Any deed, bond, note, covenant or other instrument under seal (except penal bonds), may be sued and declared upon or set off as heretofore or in any form of action in which such instrument .might have been sued and declared upon or set off if it had not been under seal, and demands upon simple contracts may be set off against demands upon sealed instruments, judgments or decrees.”

The record shows that while the declaration contains the common counts, it includes a count on account stated.

While the defendant stated that he was objecting to certain of the instructions given on the part of the plaintiff, he failed to point out wherein the action of the court in the giving of instructions was in any way erroneous.

No question is raised on the admission or rejection of testimony. It was a question of fact for the jury to determine whether or not the plaintiff had established his case.

In view of the state of the record, we are of the opinion that the judgment of the circuit court of Du Page county should be affirmed, which is accordingly done.

Judgment affirmed.


author: Mr. Justice Boggs

text:
    A. P. Munsen, Appellant, v. The Illinois Northern Utilities Company, Appellee.
    Gen. No. 8,213.

      Heard in this court at the May term, 1930.
    Opinion filed August 9, 1930.
    Ralph Rosen and Henry C. Warner, for appellant.
    Dixon, Devine, Bracken & Dixon, for appellee; Robert L. Bracken, of counsel.
   Mr. Justice Boggs

delivered the opinion of the court.

An action on the case was instituted by appellant against appellee in the circuit court of Lee county to recover the amount paid by appellant to Kenneth Burrows, one of his employees, under the Workmen’s Compensation Act, Cahill’s St. ch. 48, ¶ 201 et seq.

The declaration consisted of two counts. The first count averred that on April 4, 1927, Kenneth Burrows was employed as a common laborer, at a concrete bridge being constructed by appellant over the tracks of the Illinois Central Railroad Company; that on said date Burrows, appellant and appellee were all operating under the Workmen’s Compensation Act; that appellee was in control of certain wires for the transmission of electricity, which were suspended from poles or steel towers; that said wires formed a continuous metal circuit over which electric current was transmitted, and passed directly over said bridge; that in the course of his employment, Burrows was lawfully'upon said bridge “at a point directly under or near to a point directly under said wires which constituted the transmission line hereinabove described”; that it was the duty of appellee to maintain said wires at a sufficient elevation so as not to endanger the lives of persons engaged in the construction of said bridge, “but that the defendant maintained such wires in such close proximity to the bridge that said Kenneth Burrows, while standing on the floor of said bridge in the course of his duties as a laborer in the employ of said plaintiff in the construction of said bridge, and while he was in the exercise of all due care and caution for his own safety, struck one or more of said high voltage electric transmission wires with a steel reinforcing rod which he was handling in the course of his duties on the bridge, with the result that the electric current which was then passing through said wire or wires, left the same and passed through said steel bar, and through the hands, arms, body, legs and feet of the said Kenneth Burrows,” by means whereof he was severely burned, etc.; that there was paid to Burrows a gross sum of $2,364.04 as compensation under the Workmen’s Compensation Act, and in addition thereto there was expended on his behalf for medical, hospital bills and railroad fares, an additional sum of $299.61, etc.

The averments of the second count were substantially the same as the first, except it was averred that prior to the construction of said bridge appellee raised its wires to a height of, to wit, 13 feet above the floor of the bridge; that it was the duty of appellee to raise said wires to a greater height, but that it failed so to do, etc.

To said declaration, appellee filed a plea of the -general issue. A jury was waived and a trial was had before the court, resulting in a finding and judgment in favor of appellee. To reverse said judgment, this appeal is prosecuted.'

The record discloses that about August 1, 1926, appellant was engaged in the construction of a concrete bridge over the Illinois Central Railroad tracks on Route 2 near Henkel, Illinois. Appellee owned and was in control of wires for the transmission of electricity, which crossed the east end of said bridge, and carried 33,000 volts of electricity. Some time near the latter part of August, 1926, when said bridge had reached its highest point, these transmission wires were approximately 11 feet above the floor of said bridge. At said time, appellant’s foreman talked with a Mr. Saunders, appellee’s line foreman and requested him to raise said wires. Shortly thereafter, said wires were raised some three to five feet.

Burrows had never been employed as an electrical lineman and had never worked for any concern which distributed electricity. At the time of the accident he was some 20 years of age. While the bridge was in course of construction, appellant’s employees made use of two shacks. On the day in question, Burrows was ordered by appellant’s foreman to put the shacks in shape. A stove had to be set up in one of the shacks, and the foreman instructed Burrows to go to the bridge and get a piece of steel reinforcing rod to hold up the elbow of the stove pipe. In this connection Burrows testified:

“The rods were near the east end of the bridge. ... I pulled this bar straight back out of the bunch, pulled it towards me and worked it through my hands until I got to about the center of it, then I picked it up and set it down beside me, plumbed it beside me, one end setting on the concrete beside my foot. By - plumbing it, I mean I had it standing straight up and down. My purpose in standing it straight up and down was so I could look at it and see how fár above my head it was, so I could tell the length of it.”

It was when this rod was so erected that the electric current passed through the same, burning and causing the injuries to Burrows involved herein.

The evidence discloses and it is conceded that, under the order of the Illinois State Highway Department, appellee was required to elevate its transmission wires, where the same crossed said bridge, to 22 feet above the' floor thereof and that they were not so elevated. It is also practically conceded by counsel for appellee that, in failing to so elevate said wires, appellee was negligent. It is insisted, however, that such negligence was not the proximate cause of said injury, and that Burrows at the time and just prior to said injury, was not in the exercise of ordinary care for his own safety.

Four propositions of law submitted by appellant were refused. The one proposition submitted by appellee was marked held. The propositions ruled on required the court to determine whether the negligence of appellee proximately caused the injury to Burrows, and whether Burrows, just prior to and at the time of said injury, was in the exercise of due care.

Unless a party seeking to recover for an injury bases his action on a charge of wilful and wanton conduct, he cannot recover if he himself has been guilty of negligence which contributed to the injury. West Chicago St. R. Co. v. Liderman, 187 Ill. 463-468; Wilson v. Illinois Cent. R. Co., 210 Ill. 603-606; Chicago, W. & V. Coal Co. v. Moran, 210 Ill. 9-17; Krieger v. Aurora, E. & C. R. Co., 242 Ill. 544-547; Carson, Pirie, Scott & Co. v. Chicago Rys. Co., 309 Ill. 346-352.

It is also fundamental that if the negligence of the party sought to be charged does nothing more than furnish a condition by which the injury is made possible, and that condition causes an injury by the subsequent, independent act of a third person, the creation of the condition is not the proximate cause of the injury. Hartnett v. Boston Store, 265 Ill. 331-334; Illinois Cent. R. Co. v. Oswald, 338 Ill. 270-274.

An intervening cause is a new and independent force which breaks the causal connection between the original wrong and the injury, and itself becomes the direct and immediate cause of the injury. Pullman Palace Car Co. v. Laach, 143 Ill. 242-261; Seith v. Commonwealth Electric Co., 241 Ill. 252-259, 260; Illinois Cent. R. Co. v. Oswald, supra, 274. The cause of an injury is that which actually produces it, while the occasion is that which provides an opportunity for the causal agencies to act. Phillabaum v. Lake Erie & W. R. Co., 315 Ill. 131-135, 136; Illinois Cent. R. Co. v. Oswald, supra, 274.

The burden of proof rested on appellant to show affirmatively: (1) That appellee was guilty of the negligence charged; (2) that such negligence was the proximate cause of the injury in question;. (3) that just prior to and at the time' of said injury Burrows was in the exercise of ordinary care for his own safety.

That appellee was negligent is conceded, but it is strenuously insisted that the evidence wholly fails to prove that such negligence was the proximate cause of .said injury, or that Burrows, just prior to and at the time of said injury, was in the exercise of ordinary care for his own safety.

So far as the record discloses, the construction of said bridge was in no way' interfered with or hindered by reason of the fact that said transmission wires had not been elevated as required by the State Highway Department. There was no causal connection between the placing of said shacks in repair and the height of said wires. Burrows was ordered by his foreman to go to said bridge and get a rod to be used in making stable said stove pipe. That, in doing so, he should place said rod in contact with said wires; would be improbable. We, therefore, hold that, under the authorities above cited, the evidence fails to support the second proposition.

That Burrows was thoroughly familiar with the height and location of said transmission wires across said bridge is disclosed by his own testimony. As to his purpose in standing said rod in a perpendicular position, he testified: “The only purpose for my putting the rod up in the air was to see how long it was; that was my way of measuring it; just ordinary judgment, was all.”

We, therefore, hold that the evidence wholly fails to sustain the averment of due or ordinary care on the part of Burrows.

It was argued on behalf of appellant that Burrows was inexperienced in electrical work and should not be held to have been guilty of contributory negligence. In discussing a question of this character, the Supreme Court in Austin v. Public Service Co., 299 Ill. 112, at page 120 says:

“The next question which presents itself for consideration is whether deceased was in the exercise of due care and caution for his own safety at the time of the injury which caused his death. He would have been 14 years old, had he lived until June 21, 1917. He was 4½ feet tall, and was normal physically and mentally. After he completed the sixth grade at school, he left school and went to work. Before the family came to Rockdale, to live, they had lived in Chicago, and while the family lived there deceased was employed in the sausage room of Armour & Co. . . . A boy 14 years old who has been raised in a city knows as well as a man that insulated wires carried upon poles are likely to be charged with a deadly load of electricity, and that it is not safe to touch them or go where he is likely to fall into them.”

Under said holding of the Supreme Court, the contention of appellant is not sound.

Appellant’s fourth proposition of law among other things stated that Kenneth Burrows “Immediately prior to the time of the accident in question, momentarily overlooked or forgot the existence of the electric high tension wires of the Illinois Northern Utilities Company, through which an electric current of high voltage was passing, and such oversight or forgetfulness by him does not prevent a recovery by the plaintiff in this case.”

In Beidler v. Branshaw, 200 Ill. 425, the court in discussing a question of this character, at page 431, says:

“In Lovenguth v. City of Bloomington, 71 Ill. 238, it is said: A party has no right to knowingly expose himself to danger and then recover damages for an injury which he might have avoided by the use of reasonable precaution.’ . . . We are satisfied that the injury in this case was caused by the negligence of the deceased in standing so near the edge of the car that his heel was caught as the car passed the lintel in its ascent; that he knew the construction of the elevator shaft, and that the car in its ascent passed within a short distance of the lintel, and that it was without rail or guard on that side, and that he thoughtlessly stood upon the car in such a position that his heel was caught between the car and the lintel as the car passed that point, and that his negligence was of such a character as to prevent a recovery.”

As stated, Burrows was thoroughly familiar with the location of said transmission wires, and the fact that he may have been momentarily unmindful of the same would not absolve him from the duty of observing due care for his own safety. The court did not err in refusing to hold said proposition.

Counsel for appellant cited cases from other jurisdictions which would have warranted a recovery. No case, however, from this State, either supreme or appellate, was cited which would warrant such recovery, and we are satisfied that none can be found.

For the reasons above set forth, the judgment of the trial court will be affirmed.

Judgment affirmed.