author: Mr. Justice Dove

text:
    Towel of Aroma Park, Kankakee County, Illinois, Appellant, v. Town of Papineau, Iroquois County, Illinois, and George Gravaline, Appellees.
    Gen. No. 9,737.
    Opinion filed January 27, 1942.
    Victor Lauridsen, of Kankakee, for appellant.
    Elmer A. Taylor, of Watseka, for appellee Town of Papineau.
    Frank J. Burns, of Kankakee, for appellee George Gravaline.
   Mr. Justice Dove

delivered the opinion of the court.

Town of Aroma Park, Kankakee county commenced an action in the circuit court of that county, under section 16 of the Paupers Act, against the Town of Papineau, in Iroquois county, to recover $2,946.01 for aid furnished Alphonse Gravaline, his wife and seven children. The cause was transferred to Iroquois county on a change of venue and an amended complaint was filed adding George Gravaline, the father of Alphonse, who lived in Kankakee county, as a defendant. On motion of each of the defendants the amended complaint was dismissed for want of jurisdiction, and this appeal followed.

Section 16 of the Paupers Act, as amended by the act of March 6,1936 (Laws 1935-36, Second Spec. Session, p. 73 and as in force during the period of the aid here furnished, provided:

“If any person shall become chargeable as a pauper in any . . . town, who did not reside therein at the commencement of twelve months immediately preceding his becoming so chargeable, but did at that time reside in some other . . . town in this state, it shall be the duty of the . . . town clerk ... to send written notice by mail or otherwise to the clerk of such other . . . town in which such pauper so resided, . . . requesting the proper authorities of such . . . town, ... to remove said pauper forthwith, and to pay the expenses accrued or to accrue in taking care of the same; and such . . . town . . . where such pauper resided at the commencement of the twelve months immediately preceding such person becoming chargeable as a pauper, shall pay to the . . . town so taking care of such pauper, all reasonable charges for the same, and such amount may be recovered by suit in any court of competent jurisdiction. ’ ’

By section 15 of the same amendatory act, it is provided that in counties under township organization, the various towns, other than those lying within the corporate limits of any city, village or incorporated town having a population of more than 500,000 inhabitants, shall relieve and support all poor and indigent persons lawfully residing therein “except as herein otherwise provided,” with other exceptions not pertinent here.

As averred in the amended complaint, and admitted by the motions to dismiss, the facts are as follows: Alphonse Gravaline and his family moved from the Town of Papineau to the Town of Aroma Park on March 2,1937. They became chargeable as paupers in July of that year. Alphonse was unable to earn a livelihood in consequence of a bodily infirmity or other unavoidable cause. The children were not of sufficient ability to contribute to the support of their parents. At the commencement of 12 months immediately prior to becoming so chargeable, they lived in the Town of Papineau. Notice in compliance with section 16 was sent by the Town of Aroma Park to the Town of Papineau. The latter town did not remove the family, but supported them from October 18, 1937 to March 1, 1938, since which it has refused to either remove or support them. The Town of Aroma Park thereafter sent a further like notice to the Town of Papineau. George Gravaline was of sufficient financial ability to support Alphonse and his family, and although requested to do so by the Town of Aroma Park, refused to support them.

The question of jurisdiction necessitates a consideration of the several applicable provisions of the Paupers Act as then in force. Section 1 imposes liability for the support of every poor person unable to earn a livelihood in consequence of any bodily infirmity, idiocy, lunacy or other unavoidable cause, upon his kindred therein named. Section 2 prescribes the order in which they are liable. Among the relatives named are parents and grandparents. George Gravaline is in both these classes. Section 3 provides that upon the failure of the relatives to support such poor person, as provided by the act, it shall be the duty of the State’s Attorney to make complaint thereof to the county court of his county against the relatives liable, and prosecute the same. Section 4 authorizes the overseer of the poor of the town or precinct where the poor person resides to make such complaint, and provides that it shall be his duty to do so in all cases where there may not be a county agent or State’s Attorney, or when either of them shall refuse or neglect to make the complaint. Succeeding sections provided for summons, trial, ordering support or partial support according to ability, changes in the order of the court as circumstances require, and for enforcing payment. These provisions are prospective only. None of those sections, and no other provision of the act, or of any other statute, provides for recovery by any town against any relative of a pauper for aid already furnished, except by towns and other municipalities of more than 500,000 inhabitants, under a proviso in section 2. That proviso has no application here. Under the well-known rule of statutory construction, the provision for such recovery being limited to political units of more than 500,000 inhabitants, all other political units are excluded. “Expressio unius est exclusio alterius.” (Blakeslee’s Storage Warehouses, Inc. v. City of Chicago, 369 Ill. 480; People v. Wiersema State Bank, 361 Ill. 75.)

At common law there was no duty imposed upon kindred of any degree to support an indigent relative, except upon parents to support their offspring until they attained the age of maturity. To remedy these defects the statute of 43 Elizabeth, ch. 2, sec. 7 was passed, imposing the duty upon the father and grandfather, mother and grandmother, and the children of an indigent person. The statute of this State enlarges those classes to include grandchildren, brothers and sisters. (People v. Hill, 163 Ill. 186.) There is no constitutional or common-law obligation upon the State or any governmental unit to support poor and destitute persons. The whole matter of poor relief is purely statutory. (People ex rel. Heydenreich v. Lyons, 374 Ill 557.) The statute is the sole source upon which recovery against any relative can be predicated. The method and forum being prescribed, the designated action, — that is, an action for the future support of the indigent person by his kindred, — is the only one which can be maintained against such kindred. There being no provision for recovery against relatives on account of past aid furnished, it is manifest that as to George Gravaline the court did not have jurisdiction of the subject matter.

There is a vast difference between an action against relatives of a pauper for his future support, as provided for by section 3 and 4, et seq., where the jurisdiction is limited to the county court, and an action under section 16 by one town against another for aid already furnished under the latter section, which expressly provides for recovery in any court of competent jurisdiction. This provision gave the circuit court jurisdiction of the cause of action between the two towns, and the duty of determining whether under the admitted facts the Town of Papineau is liable under section 16.

On the merits, as between the two towns, appellant claims that under the admitted facts the Town of Papineau comes squarely within the provisions of section 16. The latter contends that the various towns are not obliged to support paupers until there has been a determination that support cannot be enforced against relatives as provided in sections 1 and 2 of the act. As between the pauper and the town where he resides this contention is answered adversely in Town of Kankakee v. McGrew, 178 Ill. 74. The Town of Papineau also urges that the provisions of sections 1, 2, 3 and 4 are mandatory and cast the primary duty of support upon the relatives, with a corresponding duty of enforcing the provisions thereof upon the town where the pauper resides, and that such town cannot recover from the town from which the pauper came without first exhausting its remedy against the relatives.

By the amendatory act of March 6, 1936, above mentioned, section 2 was amended, section 4 replaced the prior section 4 and section 16 was amended. These sections are therefore in pari materia and must be construed together. It will be noticed there is no express provision in any section of the statute requiring the town where the pauper is then present to first proceed against his relatives before notifying the town from whence he came to remove him and pay the expenses accrued or to accrue in taking care of him. It is further to be noticed that the duty of a town, under section 15, to relieve and support all poor and indigent persons lawfully residing therein, is only imposed “except as herein otherwise provided.?’ It is manifest that this exception is referable to section 16. It is equally obvious that section 16 imposes the duty on the Town of Papineau to remove the family and pay the expenses accrued or to accrue as provided therein. In Town of Bristol v. Town of Fox, 159 Ill. 500, it is held that the Town of Fox, from which the-unfortunates came, had the right to remove them, and that, having that right, even as against their consent, and failing to do so, it was not relieved from its liability to pay the necessary expenses incurred by the other town in taking care of them. The court in that case further held even if it did not have the right to remove the family, its liability for their support did not cease because they were not, or could not, be removed; that they were lawfully residing in the Town of Bristol when they were overcome by misfortune which made them paupers, and section 15 casts upon that town the duty to support them; but as they did not reside there at the commencement of the 12-months period preceding their becoming paupers, but then resided in the Town of Fox, the latter became liable for the expenses “accrued and to accrue” in taking care of them, upon notice; and that, stated in another way, it was the duty of the Town of Bristol to furnish the support and notify the Town of Fox, and it was the duty of the latter to remove the family and pay all expenses incurred up to that time as well as those which might afterward be incurred. The court then said: “We do not think it can be seriously insisted that these duties terminated with giving notice and paying expenses up to that time.” In Town of Kankakee v. McGrew, supra, the duty of a town where a pauper resides to immediately provide relief without waiting for action against relatives is recognized. The continuance of that duty by such town, and the continuing liability of the town where the pauper lived at the beginning of the 12-months period is laid down in Town of Bristol v. Town of Fox, supra.

In harmony with the views expressed in those two cases, it was held in Town of Cordova v. Village of Lesueur Center, 74 Minn. 515, 77 N. W. 430, in a suit by the first named against the latter, that a town suing the village of a pauper’s former residence for his support, need not first assert its claim against the pauper’s relatives; that the latter must respond to the former and then itself pursue its remedy against the pauper’s relatives, if he had any, and who are liable to support him.

The statute expressly imposes a duty upon the Town of Papineau to remove the unfortunates from the Town of Aroma Park and to pay the expenses of their support. There is no provision for allowing one town, having a continuing liability for the support of those who move to another town and are overcome with misfortune, to shift its liability to the other town by failing to remove them, and paying for their support only up to the end of the 12-months period mentioned. To throw the burden of proceeding against relatives upon the Town of Aroma Park would be to require it to step into the shoes of the Town of Papineau and in effect nullify the provisions of section 16.

That part of the judgment dismissing the suit as to George Gravaline is affirmed. In all other respects the judgment is reversed and the cause is remanded with directions to overrule the motion of the Town of Papineau to dismiss and for such further proceedings as provided by law.

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


source: Caselaw Access Project

author: Presiding Justice McSurely.

license: Public Domain

text:
    Evan M. Hinkson, Administrator of Estate of Charlotte E. Dorn, Appellant, v. Paul H. Davis et al., Appellees.
    Gen. No. 40,705.
    opinion filed January 19, 1942;
    rehearing denied February 2, 1942.
    Rathje & Connor and Gerard' A. Connor, for appellant; Gerard A. Connor, of counsel; Townley, Campbell, dark & Miller, for appellees; J. Arthur Miller and Richard C. Bleloch, of counsel.
   Opinion by

Presiding Justice McSurely.

“Not to be published in full.’’


text:
    George L. Sparberg, Appellee, v. Isadore Cohen et al., Appellants.
    Gen. No. 41,762.
    opinion filed January 19, 1942;
    rehearing denied February 2, 1942.
    James B. Cashin and George N. Kotin, for appellants; Leon N. Miller, for appellee.
   Opinion by

Presiding Justice McSurely.

“Not to be published in full.’’


text:
    Henry Wolthausen, Appellee, v. Helene Lederer et al., Defendants. Appeal of The Shurtleff Company and Mercer Lumber Companies, Appellants.
    Gen. No. 41,802.
    Matchett, J., dissents.
    opinion filed January, 19, 1942.

      C. A. Caplow and Castle, Williams & McCarthy, for appellants; Howard B. Brintlinger, C. A. Caplow and Frederick W. Turner, Jr., of counsel; Wetten, Pegler & Dale, for appellee; James P. Haffner and. Grey-don L. Walker, of counsel.
   Opinion by

Presiding Justice McSurely.

“Not to be published, in full.”


author: Justice Matchett.

text:
    James Brown, Minor, by Herman E. Brown, His Father and Next Friend, Appellee, v. James Murray and Harry Smith, Appellants.
    Gen. No. 40,863.
    opinion filed January 19, 1942.
    John A. Bloomingston, for appellants; Werner W. Sehroeder, Corwin D. Querrey, Murphy O. Tate and Theodore W. Sehroeder, for appellee.
   Opinion by

Justice Matchett.

“Not to be published in full.”


text:
    Ira Orban, Appellee, v. City of Chicago, Appellant.
    Gen. No. 41,743.

      opinion filed January 19, 1942.
    Barnet Hodes, Corporation Counsel, for appellant; James A. Velde, Paul A. H. Shults and Barney Fagen, Assistant Corporation Counsel, of counsel; Finn & Fitzpatrick and J. W. Horwitz, for appellee; Robert S. Cook, of counsel.
   Opinion by

Justice Matchett.

“Not to be publishéd in full.”


text:
    P. H. Billeter, Appellee, v. Halsam Products Company, Appellant.
    Gen. No. 41,773.
    opinion filed January 19, 1942.
    Hurford & Feigenholtz, for appellant; Harold L. Feigenholtz and Eugene A. Busch, of counsel; Fyffe & Clarke, for appellee; John Harrington and Albert J. Smith, of counsel.
   Opinion by

Justice Matchett.

“Not to be published in full.”


text:
    George Kelch, Appellant, v. Joseph Marx, Trading as Chicago Welding and Boiler Repair Company, and George Gieb, Appellees.
    Gen. No. 41,798.
    opinion filed January 19, 1942.
    Harry George, for appellant; Eckert & Peterson, for appellees; A. R. Peterson, W. W. Ross, Jr. and W. W. Speer, Jr., of counsel.
   Opinion by

Justice Matchett.

“Not to be published in full.”


author: Justice O’Connor.

text:
    Ralph H. Jackson, Appellee, v. Meyer Katzman et al., Appellants.
    Gen. No. 41,739.
    opinion filed January 19, 1942.
    Sabath, Perlman, Goodman & Rein, for appellants; Harold A. Fein, for appellee; Lydia B. Levinson, of counsel.
   Opinion by

Justice O’Connor.

“Not to be published in full.”


author: Presiding Justice Wolfe.

text:
    Ellen McGee, Administratrix of Estate of John McGee, Deceased, Appellant, v. Everett Henry, Appellee.
    Gen. No. 9,690.
    opinion filed January 27, 1942.
    H. H. Patterson and Ray F. Faulkner, for appellant; Edmund C. Maurer, of counsel; Burke & Schenk, for appellee.
   Opinion by

Presiding Justice Wolfe.

“Not to be published, in full.’’


text:
    J. E. Barber, Administrator of Estate of Anna S. Eber, Deceased, Appellee, v. Clyde R. Northcutt, Appellant.
    Gen. No. 9,696.
    opinion filed January 27, 1942.
    Dixon, Devine, Bracken & Dixon, for appellant; Robert L. Bracken, of counsel; Gardner & Gardner, for appellee; Fred E. Gardner, of counsel.
   Opinion by

Presiding Justice Wolfe.

“Not to be published in fuU.’ ’


text:
    Dovie Wilson, Administratrix of Estate of Charles Herbert Wilson, Deceased, Appellee, v. Decatur Cartage Company and Jessie Boomer, Appellants.
    Gen. No. 9,706.
    opinion filed January 27, 1942.
    Gower, Gray & Gower, for appellants; Vernon G. Butz and David Allison, for appellee.
   Opinion by

Presiding Justice Wolfe.

“Not to be published in fuU.”


text:
    Lyle N. Grange, Appellee, v. W. W. Renton, Mayor of the City of Wheaton, Successor to William H. Caldwell, et al., Appellants.
    Gen. No. 9,708.

      opinion filed January 27, 1942.
    Willard E. Cain, for appellants; no appearance for appellee.
   Opinion by

Presiding Justice Wolfe.

“Not to be published in full.”


text:
    Clarence Sandberg, Minor, by Charles A. Sandberg, His Next Friend, Appellee, v. Marion C. Williams et al., Appellants.
    Gen. No. 9,719.
    opinion filed January 27, 1942.
    Charles A. Darling, for appellants; Arthur L. Puklin and William C. Clausen, for appellee.
   Opinion by

Presiding Justice Wolfe.

“Not to be published in full. ’ ’


text:
    Joseph Leonard, Minor, by Agatha Fitzjarrald, His Mother and Next Friend, Appellee, v. Wayne Stone, Appellant.
    Gen. No. 9,726.

      opinion filed January 27, 1942.
    Victor P. Michel, for appellant; Cassidy, Knobloek & Sloan, for appellee.
   Opinion by

Presiding Justice Wolfe.

“Hot to be published in full.”


text:
    W. J. Vierck and Herbert H. Vierck, Copartners, Trading as W. J. Vierck and Son, Appellants, v. Edith A. Lindberg, Appellee.
    Gen. No. 9,729.
    opinion filed January 27, 1942.
    Karl J. Mohr, for appellants; Frank E. Maynard, for appellee.
   Opinion by

Presiding Justice Wolfe.

“Hot to be published in full.”


text:
    William Zawada, Administrator of Estate of John Zawada, Deceased, Appellee, v. Frank O. Lowden et al., Trustees of Estate of Chicago, Rock Island and Pacific Railway Company, Appellants.
    Gen. No. 9,732.
    opinion filed January 27, 1942.
    Stafford & Sehoede and Edward C. Sehoede, for appellants; Milton V. Thompson, of counsel; Huber & Eeidy, for appellee; Isador I. Katz, of counsel.
   Opinion by

Presiding Justice Wolfe.

“Not to be published in full.”


author: Justice Dove.

text:
    Deana Crump, Appellee, v. Montgomery Ward and Company, Inc., Appellant.
    Gen. No. 9,736.
    opinion filed January 27, 1942.
    L. E. Oliphant, Jr. and Hall So Hulse, for appellant; J. A. Miller, for appellee; Henry D. Eisher, of counsel.
   Opinion by

Justice Dove.

“Not to be published in full.”


text:
    Charles B. Campbell, Jr. and Pleasant Whipple Campbell, Appellants, v. Charles H. Albers, Receiver of Citizens State Bank of Manteno, et al., Appellees. Fred H. LaRocque et al., Appellees, v. Mary Wood Campbell, Individually and as Executrix of Last Will and Testament of Winfield S. Campbell, Deceased, et al, Charles B. Campbell, Jr. and Pleasant Whipple Campbell, Appellants.
    Gen. No. 9,691.

      Opinion filed January 14, 1942.
    Rehearing denied February 27, 1942.
    Opinion modified March 26, 1942.
    W. H. Dyer and Been B. G-ower, both of Kankakee, for appellants. .
    Frank J. Burns, of Kankakee, for certain appellee.
    Claude M. Cranger, of Kankakee, for certain other appellees.
   Mr. Justice Dove

delivered the opinion of the court.

The questions in this case arise out of dealings by the trustees of a testamentary trust with funds of the trust estate. On June 23,1938, appellants, who are the beneficiaries of the trust, brought suit in the circuit court of Kankakee county against the trustees, the legal representatives, legatees and devisees of the deceased sureties on their bond, the legal representative, legatees and devisees of a deceased legatee of one of such sureties, and the receiver of the Citizens’ State Bank of Manteno, for an accounting, removal of the trustees, payment of all moneys received by them, with interest, and the appointment of new trustees.

Upon appellants’ motion and over objection of appellees, the suit was consolidated with another proceeding in the same court wherein appellants were parties defendant and the trustees were appointed as such in July 1923, under their bill of complaint for that purpose. The trustees thereafter made five ex parte reports of their acts and doings, the last of which was filed six days before appellants filed their suit. The cause is presented here by an appeal of the beneficiaries of the trust from certain portions of the decree and cross-appeals by the other parties. The transactions involved are an investment by the trustees in three $1,000 first mortgage bonds of the Hotel Sherman Company, and moneys deposited in the bank named.

Winfield S. Campbell, grandfather of appellants, was formerly a resident of this State. He was one of the founders and was a director of the Citizens’ State Bank of Manteno until he became a resident of the State of Idaho, where he died testate on November 17, 1922. His last will was admitted to probate in that State. The will gave to appellees Fred H. LaRocque and Frank M. Wright, of Manteno, Illinois, in trust for the benefit of appellants, the testator’s 10 shares of stock in the bank, with all dividends and increments therefrom, the dividends or increments to be kept until January 1, 1939; also one half the residue of the estate, “to have, to loan and care for” during the same period. The corpus of the trust, and the dividends, increments or interest were to be divided equally between the beneficiaries on January 1, 1939, less reasonable compensation for services of the trustees. The trustees named were respectively the cashier and the president of the bank until it was closed by the auditor of public accounts on December 22, 1931.

The decree by which the trustees were appointed found the bank stock was worth $4,000, and the remainder of the trust estate was about $10,000. They gave bond in the amount of $20,000 with Leon Euziere and Henry LaBoccjue as sureties. The property received by the trustees from the Campbell estate consisted of the bank stock and $8,650 cash. Each of the sureties and one of the legatees of Euziere died before appellants’ suit was brought. No claim by any of the parties hereto was ever filed against any of their estates, which remain unsettled and undistributed.

When the bank closed, a claim by the trustees for $9,401.15, as cash on deposit, was filed and allowed as a general claim. The receiver made periodical payments of 62% per cent. The decree appealed from, entered January 27, 1941, finds the allowance as a general claim was through error, and that the claim should have been allowed as preferred. It orders the receiver to pay appellants, in the course of administration, the unpaid balance of $3,525.49 as a preferred claim, without interest. The decree finds the Hotel Sherman Company bonds were purchased by the Citizens’ State Bank of Manteno from the First National Bank of Chicago, and that the dealings of the trustees were with the Manteno bank. It further finds that as the period of the trust had expired, there was no occasion to appoint new trustees. It overrules appellants’ objections to and approves the five current reports of the trustees; orders them to turn over to appellants, as shown on hand by the last two current reports, $5,268.75 in United States Savings Bonds; $2,250 in new bonds and $750 in stock of the New Sherman Hotel Company, acquired by the trustees through a receivership and reorganization of the hotel company under section 77B of the Bankruptcy Act, in place of the three $1,000 bonds purchased by them; and $716.88 cash, being $705.08 paid by the receiver since the date of the last trustees’ report and $11.80 then on hand. It further finds that as no claim was filed against the estate of either surety on the trustees’ bond, the legal representative, “heirs” and devisees are under no liability and dismisses the suit as to them. The decree further orders that neither the receiver nor the trustees be required to pay any interest on any trust funds held by them except interest actually collected, as shown by the trustees’ reports and included in the current value of the United States bonds; and that the trustees be paid such fees for themselves and their attorneys as may be allowed by the court upon the filing of their final report, to be filed within 30 days.

The beneficiaries of the trust claim by their assignments of error that the court erred in refusing to order the defendants to pay all the moneys of the trust, including the amount expended in the purchase of the Hotel Sherman Company bonds, and all moneys deposited in the bank, with five per cent compound interest, except as to two real estate loans made and collected; in ordering the trustees to turn over and appellants to receive the stock and bonds in the New Hotel Sherman Company; in overruling the objections to the trustees’ reports; in dismissing the suit as to the legal representatives, legatees and devisees of the deceased sureties; in ordering that the trustees be paid compensation as provided in the decree; and in refusing to remove them as trustees.

The receiver’s cross-appeal is from that portion of the decree allowing the $3,525.49 as a preferred claim. The cross errors urged by the other defendants are based upon the court’s refusal tó dismiss the complaint for an alleged want of jurisdiction; in striking portions of their answer alleging estoppel by claiming benefits of the alleged breaches of trust; and the findings as to the purchase of the Hotel Sherman Company bonds.

As to the alleged want of jurisdiction, the claim is that the trustees’ bond was void and the basis of no legal liability; and that the trial court had no jurisdiction in either of the consolidated cases. This claim is based upon a statute of the State of Idaho (Civil Code, ch. 283, sec. 7721) which provides:

“Where any trust has been created by or under any will to continue after distribution the Probate Court shall not lose its jurisdiction of the estate by final distribution, but shall retain jurisdiction thereof for the purpose of the settlement of accounts under the trust,. and any trustee created by any will, or appointed to execute any trust created by any will, may from time to time pending the execution of his trust, or may at the determination thereof render and pray for the settlement of his accounts as such trustee before the Probate Court in which the will was probated, and in the manner provided for the settlement of the accounts of executors and administrators.”

In Estate of Beckwith v. Cooper, 258 Ill. App. 411, cited by appellees, the will of an Iowa testator appointed trustees residing in that State, with a requirement they should report annually to the probate court of Henry county, Iowa. The trustees qualified in that court, and later moved to Illinois, where one of them died. This court held the circuit court of Kane County, Illinois, had no authority to appoint his successor. That case obviously has no application here.

The force and obligation which the laws of one country have in another depends solely on the laws of the latter. The several States, except as restrained and limited by the Federal constitution, possess and exercisé the authority of independent States, and laws are without force beyond the jurisdiction of the State which enacted them, and have no extraterritorial effect except by comity. (Huntington v. Attrill, 146 U. S. 657; Paul v. Virginia, 8 Wall. (75 U. S.) 168.) How far foreign laws should be enforced under the doctrine of comity depends upon whether any wrong will be done a citizen of the domestic State, whether the policies of its laws will be contravened or impaired, or whether the court can do complete justice to those affected by the decree. (Edwards v. Schillinger, 245 Ill. 231.) The trustees in this case were not appointed by the probate court in the State of Idaho, and it could not obtain jurisdiction of them except by their voluntary appearance. How appellants could maintain an action there is not suggested.

In Farmers’ Loan & Trust Co. v. Ferris, 67 App. Div. 1, 73 N. Y. S. 475, under a situation analogous to this case, the court said:

“The Courts of South Carolina cannot obtain jurisdiction over the plaintiff (the trustee) except by voluntary appearance. The trust fund and the administration being here, the trustee being a corporation of this state, and the court having jurisdiction of the parties, it may properly exercise jurisdiction, and direct how the fund shall be distributed; and its decree, when complied with by the plaintiff, will relieve it from liability. ’ ’ A similar holding as to jurisdiction in a suit to recover trust property or compel an accounting by foreign executors and trustees as to assets with a situs in the State, appears in Squire v. Houghton, 131 Misc. 129, 226 N. Y. S. 162.

In re Will of Risher, 227 Wis. 104, 277 N. W. 160, 115 A. L. R. 790, the will of a Wisconsin testator appointed a trust company of Pittsburgh, Pennsylvania, trustee under the will. The question was as to which State had jurisdiction of the trust. The court held the intention of the testator was the supreme test; that the title and right of the trustee comes exclusively from the will, not from proceedings on the will taken in the Wisconsin court, neither probate of the will nor letters of trusteeship being the foundation, but the will itself; citing In re Ripley, 101 Misc. 465, 167 N. Y. S. 162. The opinion quotes Restatement, Conflict of Laws, sec. 298, comment C:

“If the testator appoints as trustee a trust company of another state, presumptively his intention is that the trust should be administered in the latter state. The trust will, therefore, be administered according to the law of the latter state.”

It further quotes section 299 of the Restatement: “The administration of a trust of movables is supervised by the courts of that state only in which the administration of the trust is located.” The court said: “The location of the administration of a trust, or the situs of a trust, means the place of the performance of the active duties of the trustee.” A contention that the Wisconsin court had jurisdiction of the trust was denied. In our opinion the doctrine of the above-mentioned cases is sound. Our conclusion is that the circuit court of Kankakee county had jurisdiction in both cases. When a defendant is liable, in consequence of a contract or as a trustee or as a holder of a legal title acquired by a species of mala tides practiced on the plaintiff, the principles of equity give a court jurisdiction wherever the person may be found. (Bevans v. Murray, 251 Ill. 603.) In the early case of Enos v. Hunter, 4 Gilm. (9 Ill.) 211, the court said:

‘ ‘ Where the relief sought could be effected by acting directly upon the person of the defendant, the court of chancery has never hesitated to entertain the bill where the defendant is found within its jurisdiction, whether the subject matter of the controversy be within its control or not.” It is obvious that complete justice can be done in this proceeding and there is no occasion for applying the doctrine of comity. The contention as to want of jurisdiction is without merit.

As to the liability of the legal representatives, legatees and devisees under the trustees’ bond, the question is settled adversely to the contention of appellees by the decision in Union Trust Co. v. Shoemaker, 258 Ill. 564. In that case it is held that section 67 of the Administration Act, in force during the trust period here involved, which provided for filing claims against estates of decedents within one year after the issuance of letters, had no application to claims dependent upon a contingency which may or may not ripen into a liability; that the limitation under section 70 of the Administration Act is not a general limitation upon all remedies against the property of deceased persons; that such limitation, as reduced to one year by the statute of 1903, does not apply to actions against heirs, devisees or legatees to subject property of the estate received by them to the payment of contingent liabilities of the deceased; and that such actions, if otherwise maintainable, are subject only to the general statute" of limitations. Manifestly, the liability on the trustee’s bond has not expired by the general statute of limitations, and laches cannot be imputed to appellants while the bond is in force. (Trustees of Danvers Literary & Library Ass’n v. Skaggs, 280 Ill. App. 125; Lynn v. Worthington, 266 Ill. 414.) Appellants are not estopped by the court’s approval of the ex parte reports of the trustees. (People v. Canton Nat. Bank, 288 Ill. App. 418.) The holdings in the Shoemaker case are approved in Chicago Title & Trust Co. v. Fine Arts Building, 288 Ill. 142, and Sanders v. Merchants State Bank of Centralia, 349 Ill. 547. This suit is not a claim against the estates of the deceased sureties or their legal representatives to participate as a claimant against the estates in the distribution of assets thereof, but its object is to reach the shares of the distributees. The property of each of the sureties in this case is still in process of administration, undistributed, and we observe no reason why it cannot be reached through this proceeding in equity for any liability of the sureties for a breach of the bond, which liability remains contingent until such a breach is established. The legal representatives and the distributees are necessary parties. The doctrine of equity contemplates complete relief and does not require appellants to wait until distribution has been made and then attempt to recover from the distributees. It is to be observed that this is not a proceeding under sections 10, 11 or 12 of the statute of frauds and perjuries, to reach real estate in the hands of devisees. Those sections have no application here and they do not limit the liability of personal representatives, heirs or legatees in a suit like this. (Albers v. Redeker, 295 Ill. App. 614 (Abst.).) The court erred in dismissing the suit as to the defendants above mentioned.

There is no virtue in the claim that appellants, by their complaint claimed the interest paid by the bank on deposits which was included in the $9,401.15 on deposit at the time the bank closed and are thereby es-topped from objecting to the deposits, or that they have changed their position in this court by repudiating such interest. The complaint does not bear any such interpretation. After alleging illegal and unlawful deposits in the bank and unauthorized investment in the hotel bonds, it alleges liability for the trust funds so misused and not invested as provided by the will, with lawful interest from the date or dates of such misuse. The prayer of the complaint is for an accounting and payment of the amounts found due, and upon failure of the other defendants to bring the amount into court that the receiver be ordered to pay the balance remaining due of the sum of $9,401.15, and the amount invested in the hotel bonds, “plus legal interest on all of said funcls from the dates that said moneys were deposited in said bank. ’ ’ Under the antecedent allegations, the words “the balance remaining due of the sum of $9,401.15 were plainly meant as the balance of the deposits. This is borne out by the language of the subsequent prayer for interest. The complaint does not adopt or ratify the deposits or seek to recover the specific interest paid by the bank, but the claim is for the amounts deposited and the amount invested in the hotel bonds, with interest, on account of liability under the trust during the period of such deposits. Whether the defendants use the interest received from the bank in partial discharge of their liability is at their option, bnt the complaint does not ask that they be required to do so.

The three Hotel Sherman Company boinds were part of an issue of $8,750,000 first mortgage serial bonds, dated July 1, 1926, equally secured by the real estate, leaseholds and buildings of three hotel properties in the city of Chicago. The bonds in controversy were due January 1, 1938. Mr. Wright testified he had very little to do with the trust and left it to Mr. LaRocque, feeling he was competent and having great confidence in his judgment. While in Chicago on April 23, 1930, Mr. LaRocque purchased the three bonds from the First National Bank of Chicago on the account of the Citizens’ State Bank of Manteno, at $98.46 per $100 face value and accrued interest, less 14 of one per cent. The bonds were left for safekeeping with the First National Bank, which issued a receipt therefor to the Citizens’ State Bank of Manteno. On April 25th the account of the trustees in the latter bank was debited with $3,005.13 for the purchase of the bonds by the trustees. This was at the same price paid for the bonds by the Citizens’ State Bank except that it included interest for the two intervening days and the discount of 14 of 1 per cent, or $7.70 more than the bank paid for them. The bonds did not leave the Chicago bank, but were retained by it as the property of the Citizens’ State Bank until they were-sent to the receiver about March 6,1932, who delivered them to the trustees. The bond record cards of the Citizens’ State Bank for each of the three bonds show at the bottom: “Sold to W. C. Campbell Estate 4/25/30. Delivered Mar. 6-32 to Fred H.- LaRocque, Trustee.” It was stipulated that no known sales of Hotel Sherman Company bonds on the open market were made on the Chicago or New York stock exchanges on April 24, 1930 or March 6, 1932; and that on February 2, 1932, the price bid was $28 and on March 5,1932, it was $29.

When the bonds were purchased from the First National Bank on April 23, 1930, the taxes on the hotel properties were in default for the years 1928 and 1929. On May 9, 1932, the National-Cash Register Company filed a bill in equity in the United States District Court for the appointment of a receiver for the hotel company and a receiver was appointed upon the bill confessed. On October 14, 1932, the trustee under the deed of trust filed a foreclosure suit in the same court for default in failure to deposit instalments of principal and interest. The result of these proceedings was a reorganization of the hotel company under section 77B of the Bankruptcy Act, through which the trustees received the new bonds and stock already mentioned. The taxes on the properties for 1928 and 1929 were assessed at $540,758.99. Of this amount $158,216.61 was still unpaid when the receiver was appointed by the United States District Court. The passage of the Act of June 27, 1930 (Laws 1930, First Spec. Sess., p. 61) providing that taxes for 1928 and 1929 should respectively be deemed delinquent on July 10, 1930, and April 1,1931, did not change the fact that when the bonds were purchased the taxes were delinquent under the law then in force. It is an evidence, howeyer, of the conditions which then prevailed.

LaRocque testified he made no inquiry about taxes when he bought the bonds; that he told an employee of the First National Bank he wanted a safe investment of $3,000 for a trust estate, and the employee recommended Marshall Field and Company or Hotel Sherman; and that he bought the bonds on that recommendation. So far as the record shows, he made no investigation or any independent inquiry abput the bonds, but purchased them from the party wfio had them to sell without any effort to learn anything about them. The fact that he told the employee of the bank with which he dealt in mailing the purchase that he wanted an investment for a trust estate does not change the character of the transaction as carried out. The bonds were purchased in the name of the Citizens’ State Bank and were sold two days after ward to the trustees at a profit. The claim that the bank acted merely as an agent of the trustees is untenable.

While it is stipulated that the underlying security for the bonds had been appraised at something over $18,000,000 at the date of the bond issue, that fact is of no avail to the defendants in this proceeding. We take judicial notice of the inflated values of that period, and the corresponding deflated values in the widespread depression starting in the autumn of 1929; and so far as the record shows the trustees did not rely upon the appraisement or even know of it. The taxes in default when the bonds were purchased, the suits in the United States District Court, in a little more than two -years after the purchase of the bonds, with the resulting reorganization in bankruptcy, show the bonds were not a safe investment, and the facts indicate that a proper investigation would have so disclosed. Section 1 of the act concerning the powers of trustees (Ill. Bev. Stat. 1941, ch. 148, par. 32 [Jones Ill. Stats. Ann. 135.05]) which provides that investments of trust funds by trustees may be in first mortgage bonds of any corporation upon which no default in payment of interest shall have occurred for a period of five years, does not purport to sanction or permit such an investment where the bonds are otherwise unsafe, or to excuse the trustees from making a proper investigation as to the safety and propriety of such an investment. The statute was designed to protect the beneficiary and not to shield the trustee from an improper investment through a failure to perform the duties of his trust. The provision as to no default in interest was manifestly meant as a limitation on the power to invest, and not as exonerating trustees from the full performance of their duties. Liability attaches in the case of such neglect. (In re Estate of Sanders, 304 Ill. App. 57.) Trustees may not purchase, with trust funds, securities from an institution of which they are the managing officers. In such case the trustees and the bank are each liable. (Kinney v. Lindgren, 373 Ill. 415; Bennett v. Weber, 323 Ill. 283; In re Estate of Sargent, 276 Ill. App. 312; Michoud v. Girod, 4 How. (45 U. S.) 503.)

The other transaction relates to deposits in the Citizens’ State Bank. All the moneys of the trust were deposited in a savings account at interest. It was all kept in that account until the bank closed, except the amounts used in the purchase of the hotel bonds; $3,750 withdrawn on November 29, 1924 for the purchase from the bank of the Charles Weber 6 per cent real estate mortgage, replaced in the account on August 2, 1928 when the mortgage was paid; $1,000 for purchase of the J. T. Smith mortgage on July 2, 1925, and likewise replaced on January 29, 1927; and a $900 Liberty Bond purchased November 3, 1932, and sold November 11,1935.

LaRocque testified that when land values in 1928, 1929 and 1930 were slipping, the assets of the bank were slipping, too; and that when the bank closed, its financial standing had decreased, due to declining land values; that such was not entirely the cause of the bank closing, but the reason was money could not be gotten anywhere. Under such a state of facts there was no excuse for keeping the money of the trust in the bank. (People v. Canton Nat. Bank, supra.) If there was no other available investment, it could have been invested in bonds of the United States, which were safe and permitted by the statute. Our conclusion is that the bank, of which the trustees were the managing officers, sorely needed the money of the trust, and they elected to take the risk of an investment not permitted by law to bolster up the failing condition of the bank for their own benefit. A trustee is not permitted to place himself in a position where it will be difficult for him to be honest and faithful to his trust. (Bennett v. Weber, supra; In re Estate of Sargent, supra.)

The contention of the receiver that the claim allowed as a general claim cannot be changed after the term to a preferred claim in this proceeding ignores the fact that this is not a suit by the parties who filed the claim, but is by the beneficiaries of a trust who were not parties to the other proceeding. While in general a trustee represents his cestui que trust in actions to which he is a party, it is manifest that where he and the other party to the suit are joint tort-feasors, no settlement or judgment in the suit, to which the cestui que trust is not a party, could be binding upon the latter. The bank, as well as the trustees, is charged with knowledge of the illegality of the deposits, and thereby became a trustee ex maleficio. The receiver stands in the shoes of the bank and is liable for the money so misused, as a preferred claim. (Woodhouse v. Crandall, 197 Ill. 104; People v. Dahlgren State Bank, 264 Ill. App. 513.)

In United Mut. Life Ins. Co. v. Sholtz, 121 Fla. 260, 163 So. 690, the court said: “Equity has general jurisdiction over trusts, statutory or otherwise, and if it be true that a statutory trustee has breached his duties as trustee by undertaking to consent to a judgment against him that is unlawfully prejudicial to other cestui que trustents, a court of equity may take jurisdiction for the purpose of specifically compelling both the trustee and those who have benefited by the trustee’s breach of trust to restore the status quo and thereby undo the wrong comprehended in the result of the legal proceeding complained of.” (Citing 26 R. C. L. 1362; note 30 L. R. A. 240.) That holding is applicable here. Cases cited by the receiver in which the same party who filed a claim attempted to have the judgment changed after the term at which it was entered are not in point. The chancellor could correctly order the receiver to pay the balance due on the deposits as a preferred claim.

The net result is that the trustees, the legal representatives, legatees and devisees of the sureties on their bond, and the receiver, are liable for the full amount of the trust funds, with interest at the legal rate from the respective dates of their receipt, except that the liability for interest on the Weber and the Smith loans, and on the Liberty Bonds, and other bonds of the United States, should be the actual amounts received in those instances. The bonds purchased by the trustees in violation of the law became the property of the trustees personally. The money used for the purchase must be accounted for. (In re Estate of Sanders, supra; Kinney v. Lindgren, supra; Bennett v. Weber, supra.) The chancellor erred in decreeing that the new bonds and stock in the reorganized company should be turned over to appellants. Under the circumstances shown by the record the trustees are not entitled to an allowance of fees.

The decree, in all respects, except the finding that the trustees purchased the hotel company bonds from the Citizens’ State Bank, is reversed, and the cause is remanded with directions to enter a decree in conformity with the views herein expressed.

Reversed and remanded %vith directions.


text:
    Hattie C. Druce, Appellee, v. Edward J. Druce, Appellant.
    Gen. Nos. 9,702 and 9,721.

      Opinion filed January 14, 1942.
    Rehearing denied February 27, 1942.
    K-. W. Churchill, of Grayslake, and Hall & Hulse, of Waukegan, for appellant.
    Cassels, Potter & Bentley, of Chicago, and J. A. Miller, of Waukegan, for appellee; L. H. Vogel and H. G. Marshall, both of Chicago, of counsel.
   Mr. Justice Dove

delivered the opinion of the court.

In Gen. No. 9,702 appellee procured a decree for divorce from appellant in the circuit court of Lake county on the ground of extreme and repeated cruelty, with alimony in gross of $25,000 and $1,250 solicitor’s fee, from which he has appealed. In Gen. No. 9,721 the same appellant seeks reversal of a subsequent decree awarding appellee $1,250 solicitor’s fees and $250 for expenses' in connection with the appeal in Gen. No. 9,702. For the purposes of this opinion the two causes have been consolidated in this court.

The parties were married in January 1928, after appellee had been employed as appellant’s housekeeper for about two years. Each of them had children by former marriages. No child was born of the present union. Each of them has property, the value of which, and appellant’s income, is in dispute. Appellee was- seventy years of age at the time of the hearing. Appellant was one year older. During the winter of 1932, while they were in Florida, appellant left appellee. Upon her return to Illinois she procured, without a contest, a decree for separate maintenance of $100 per month. The parties were reconciled in the autumn of that year. Their final separation took place on or about April 25, 1939. On April 26th appellee instituted a suit for separate maintenance. By an amended and supplemental complaint filed December 2, 1939, she sought a divorce.

In Gen. No. 9,702 appellant urges the complaint is insufficient to charge extreme and repeated cruelty; that the proofs fail to establish such a charge; and that the court erred in awarding alimony in gross and solicitor’s fee.

As to the sufficiency of the complaint, paragraph 6 charges: ‘ That on or about April 8, 1939, without provocation, defendant struck plaintiff with bis fist; that on or about April 15, 1939, without provocation, defendant pushed plaintiff violently against a chair, wrenching her hack, thereby causing considerable pain.” No other specific act is charged by the complaint. Appellant claims the allegation as to the alleged act on April 8th is insufficient to charge extreme cruelty, and that, therefore, the complaint charges only one act of extreme cruelty, that of April 15th, and not repeated acts of that kind, as required by the statute. However true that may be, he is in no position to assert that contention here. By joining issue and going to trial without in any way calling the attention of the court or appellee to the alleged insufficiency, he waived the defect, if any. (Section 42, Civil Practice Act, Ill. Rev. Stat. 1941, ch. 110, par. 166(3) [Jones Ill. Stats. Ann. 104.042].) He cannot now for the first time challenge the sufficiency of thecomplaint. (Connett v. Winget, 374 Ill. 531.) Furthermore, he has overlooked his statement on page 2 of his brief that: “In such complaint, filed December 2nd, 1939, plaintiff alleges two specific acts of extreme and repeated cruelty (par. 6), one on April 8th, 1939, and the other on April 15th, 1939.”

Appellee testified that on April 8, 1939, in the kitchen of their home, appellant struck her with his fist on her chest; that she was “knocked out”; that he knocked her until she had to sit down or fall down; that on April 15th, in the kitchen, such a thing occurred again; that he struck her, pushed her behind the door and jammed it against her three times, so she could not go into the other room; that as a result she was knocked unconscious, lay on the floor for some time, and had to be taken to Dr. Hoag’s office the next day-; and that she did not say or do anything on either occasion to cause appellant to do the acts mentioned; that after the alleged assault on April 15th, there were black and blue marks on the left side of her face, forehead, chest and abdomen which were visible and black; that such a thing also occurred on February 16th; that altogether she had been struck hard blows about fifteen or twenty times on a number of days, when she would either sit or fall down; that he would always “come with a lot of liquor down.” On cross-examination appellee testified the separation took place on April 25th; that up to three or four days after that, when he came back, there had been no quarrel between them at any time; that he “just left” without any reason, and before that time he had not struck her at all; that the occurrences to which she had testified happened after he left and came back. She particularly mentioned the two alleged assaults and said they were after he had left. She then said the time he struck her with his fist was on April 8th, and that thereupon she heard him tell Frank Druee in the yard that he had given her “a damn good shaking up and next time would finish her.” She later said the time appellant talked to Frank Druee was after he left on the 25th, and that the occasions when she testified he was drunk were after he left.

Flora Deely, a daughter of appellee, testified that on April 8th appellee called her by telephone; that she was crying and hysterical and said: ‘ ‘ Ed has beat me up ”; that the witness called the doctor and made an appointment for the following day; that she saw appellee two or three hours later and her arm was black and bine; that she again said appellant had struck her ; that the next day she met appellee at Dr. Hoag’s office where she received treatment, and averaged coming there for treatment once or twice a week for some time; that appellee called her on April 15th and said appellant had struck her again with a door; that she made arrangements to get her in to the doctor and saw her the next day at his office; that she was hurt through her breast and back, very sore, and the witness saw black and blue marks; and that appellee again said she had been hit with the door.

Mrs. Ada Pavey, another daughter of appellee, testified she was called by her sister and met appellee at Doctor Hoag’s office in Waukegan on April 9th; that her wrist and arm were bruised, and she said appellant had struck her with his fist; that she received medical attention at that time from Dr. Hoag; that she again met appellee at the doctor’s office on April 16th; that her back and breast were bruised; that she said appellant had hit her with the door in the kitchen, and received medical attention on that day. She testified she fixed the dates by receipts from the doctor, which they had, but no such receipts were produced.

Appellant denied striking appellee on the occasions mentioned or at any other time. He denied he was ever under the influence of liquor during their married life, and testified he only took a glass of beer occasionally with a meal in hot weather. Testimony of men acquainted with him tends to corroborate his testimony that he was not a drinking man.

Dr. Hoag testified he did not treat appellee for injuries of any kind during the month of April 1939, and did not treat her for anything on April 9th or 16th; that his only treatments of her in April were on the 3rd, 6th, 11th and 18th, at her home, for arthritis and neuritis, with swollen and painful knees and wrist, followed by treatments at his office on April 20th, 22nd and 28th, and four times in May for the same condition; that on June 3, 1939, he treated her for bruises over the right shoulder, right elboxv and wrist. On cross-examination he said appellee told him appellant had caused them; that he had no idea hoxv long it takes for a bruise on a person in her physical condition to clear up; that they could have occurred some time previous and he supposed it possible for them to have occurred as long as five xveeks before.

Betty Broxvn, the housekeeper during April, testified she arrived between the 1st and 5th; that appellee xvas in bed at that time and during the following two xveeks; that she was in bed on April 8th, did not go to Waukegan on April 9th or 15th and did not show any sign of injury to her; that there was no fuss betxveen the parties on April 8th or 15th to her knowledge, and no physical encounter; that appellee was. fussing all the time, and as to any unpleasantness on the 15th, there was so much confusion that she did not know what it was all about; that prior to the time appellant left, she heard cross words and knew they were quarrelling, but as to knowing xvhether appellant struck appellee or not, she did not see anything at all.

Appellee’s testimony as to the character of her injury on April 8th does not agree xvith that of her daughters. She testified she was struck on the chest, while they testified to seeing bruises on her arm and wrist. As to the injuries on April 15th, appellee testified to visible bruises on the left side of her face and forehead, her chest and abdomen, xvhile they testified only to bruises on her chest and back. Mrs. Broxvn saw no bruises on appellee. Although she was there, she never saw any physical encounter between the parties, and the testimony of Dr. Hoag flatly contradicts the testimony of appellee and her daughters as to treatments for the alleged injuries and as to visits to his office on April 8th and 15th. We can reach no other conclusion than .that the decree is against the manifest weight of the evidence. It must accordingly be reversed.

The testimony of appellee’s daughters as to what she told them about the injuries being inflicted by appellant was clearly not a part of the res gestae and it was error to admit it. Inasmuch as the decree must be reversed upon another ground, this error need not be further discussed. So, too, the claim that the court erred in awarding alimony in gross need not be considered.

The claim that the allowance in the divorce decree of $1,250 for solicitor’s fee was error, is based upon the ground that it was not allowed upon an application filed prior to the trial. On May 1, 1939, appellee filed her motion for allowance of temporary alimony and solicitor’s fees. On May 3rd the motion for temporary alimony was denied and the matter of solicitor’s fees was reserved until the final hearing. On October 19th appellee filed a petition for temporary alimony and solicitor’s fees, and appellant filed his answer thereto; but the matter was not passed upon by the court or reserved until the final hearing. This was all during the pendency of the complaint for separate maintenance. No motion or petition to that end was filed after the filing of the amended and supplemental complaint for divorce.

It has been held that the provision of the statute is to enable the wife to maintain the suit, and it contemplates the provision shall be made in advance; and that the performance of services by a solicitor where such provision is not so made creates no liability against the husband. (Newman v. Newman, 69 Ill. 167; Anderson v. Steger, 173 Ill. 112.) Section 15 of the Divorce Act (Ill. Rev. Stat. 1941, ch. 40, par. 16 [Jones Ill. Stats. Ann. 109.183]) provides: “The court may, however, in its discretion reserve the question of the allowance of attorney’s fees and suit money until the final hearing of the case and may then make such order with reference thereto as may seem just and equitable, regardless of the disposition of the case.” The Separate Maintenance Act (ch. 68, par. 22 [Jones Ill. Stats. Ann. 109.189]) makes a like provision.

In our opinion the amended and supplemental complaint for divorce was not a mere amendment to enable appellee to sustain the claim for which the original suit was intended to be brought, as provided for in section 46 of the Civil Practice Act (ch. 110, par. 170 [Jones Ill. Stats. Ann. 104.046]), but was a separate and distinct cause of action, as also mentioned in that section. This is evidenced by the fact that divorce and separate maintenance are treated in separate chapters of the statute, and that in divorce the period of an award for alimony is not restricted, while in separate maintenance it is limited to two years. There having been no provision made for solicitor’s fees in the divorce case and the matter not having been reserved in that case until the final hearing, the chancellor erred in awarding the solicitor’s fee. However, even if the divorce proceeding was the same cause of action as the suit for separate maintenance, we think that by filing her petition on October 19th, appellee abandoned any benefit of the ruling on her motion of May 1st, and thereafter there is no indication that the court reserved the matter until the final hearing.

While the trial court had authority to make a reasonable allowance for expenses and attorney’s fees in connection with the appeal from the divorce decree, the printed brief of appellee contains only 23 pages, including the title page. We think that $1,250 for solicitor’s fees and $250 for expenses on appeal is excessive, and should not exceed $500 for solicitor’s fees nor more than $100 for expenses.

The decree in Gen. Ho. 7,902 is reversed and the cause is remanded. The decree in Gen. Ho. 7,921 is reversed and the cause is remanded with directions to proceed in accordance with the views herein expressed.

Decree in Gen. No. 9,702 reversed and cause remanded.

Decree in Gen. No. 9,721 reversed and cause remanded with directions.


text:
    Wilbur Glenn Voliva, Individually and as General Overseer of the Christian Catholic Church, Appellant, v. WCBD, Inc., Appellee.
    Gen. No. 9,713.
    Opinion filed January 14, 1942.
    Rehearing denied February 27, 1942.
    J. A. Miller, of Waukegan, and Cassels, Potter & Bentley, of Chicago, for appellant.
    Samuel R. Wittelle, of Chicago, for appellee; Andrew Gr. Haley, of Washington, D. C., of counsel.
   Mr. Justice Dove

delivered the opinion of the court.

‘The circuit court of Lake county entered a decree upon appellee’s motion, dismissing for want of equity, appellant’s complaint for an injunction restraining appellee from enforcing a requirement that appellant submit the script of his radio broadcasts over appellee’s station 48 hours in advance. Almost 30 days thereafter appellant filed a petition to vacate the decree and for leave to file an amended and supplemental complaint tendered with the petition, which was denied. He has appealed from the decree and also from the order denying him leave to file an amended and supplemental complaint.

The original complaint alleges that appellant was formerly the owner of radio station WCBD, and sold the same to appellee in 1934, retaining a proprietary interest therein; that on December 9, 1936, the contract of sale was canceled and a new agreement was entered into, one of the provisions of which is that appellant shall have the use of the facilities of the station at certain hours therein mentioned on Tuesdays, Thursdays, Sundays, Thanksgiving, Christmas and New Years days, for broadcasting, free of cost to him, with a clause: “but said broadcasts will be subject to the control of the party of the second part (appellee) in complete accord with the Communications Act of 1934 as amended and all rules and regulations of the Federal Communications Commission”; that during 1938 and 1939, appellant at various times announced his support of various candidates for both local and national offices, and was advised by appellee that unless he restricted his broadcasts to religious subjects, appellee would require written script of his broadcasts 48 hours in advance, in default of which his broadcasts would be cut off the air; that after various discussions between the parties, appellant wrote appellee on April 21, 1939 informing appellee that he would make no broadcasts for or on behalf of candidates for political office without first submitting the script 48 hours in advance, reserving the right to broadcast upon any matters involving religion without submission of script, and the right to speak concerning social, political and economic problems without any restriction, with the understanding that such broadcasts are not for the purpose of assisting or detracting from any political party or any candidates of a political party; that such addresses' should be purely in the nature of commentaries, interpretations, or criticisms of such social, political or economic problems, and that the agreement was made purely for the purpose of avoiding any trouble and that none of appellant’s rights under the terms of his contract were waived; that on or about July 21, 1940, appellant commented upon the political situation and discussed the implications arising from the actions of Franklin D. Roosevelt being a candidate for a third term as President ; that shortly thereafter appellee threatened to cut off appellant’s broadcasts unless he submitted script thereof, subject to censorship, 48 hours in advance ; that on July 31, 1940, appellee wrote him reminding him that he had concluded his letter of April 21, 1939 with the statement that he would at all times endeavor to protect to the utmost their mutual interests, and assured appellee there would be no occasion for any further trouble about the matter; that the communication from appellee stated the broadcast of July 21st digressed from the purely religious nature of a church sermon in such a glaring manner that in the protection of appellee’s interests in the operation of the station, it was forced to insist on the submission of script 48 hours in advance; that appellant is not required under the terms of the contract to submit any script, and so long as he complies with the act, and the rules and regulations of the commission, he has the right to broadcast without any interference from appellee ; that his broadcasts have not been and will not be in violation thereof; and that appellee has no right to limit them except in case of such violation. The complaint concludes with allegations that if appellee carries out its threats and does not transmit appellant’s radio broadcasts, he will lose a large portion of his radio audience; that it is impossible to determine whether he can procure the use of another radio station for the same hours, and that he has no remedy at law.

Appellee’s motion to dismiss is on the grounds that the complaint does not set out a cause of action; that under the terms of the act it has the right, and it is its duty, to control, regulate and supervise broadcasts over its station; that the complaint does not disclose any unreasonable exercise of such right and duty, but shows appellant agreed to such control and supervision.

Appellant’s amended and supplemental complaint, tendered with the petition to vacate the former decree, amplifies the allegations of the original complaint, and alleges, upon information and belief, that the requirement of appellee that appellant submit the script of his proposed broadcast 48 hours in advance, was not made in good faith, but was for the purpose of harassing, hampering and interfering with him, with the ultimate object of compelling him to cease using the station; and that under the creed of his church, all public sermons and religious discussions are required to be delivered extemporaneously in order that the speaker may respond to Divine guidance and inspiration. In denying the prayer of the petition, the chancellor held that the amended and supplemental complaint tendered no material issue not already decided, and denied a temporary injunction.

Appellant relies upon section 326, Title 47, U. S. 0. A., which provides:

“Nothing in this chapter shall be understood or construed to give the Commission the power of censorskip over the radio communications or signals transmitted by any radio station, and no regulation or condition shall be promulgated or fixed by the Commission which shall interfere with the right of free speech by means of radio communication. . . .”

In Trinity Methodist Church v. Federal Radio Commission, 62 F. (2d) 850, the minister of the church had repeatedly made unjustified charges against judges and the bar association, alluded slightingly to the Jews as a race, and attacked the Roman Catholic Church. The court, in holding the commission was justified in refusing to renew the license of the church, recognized the constitutional guaranty that freedom of speech and the press cannot be infringed by legislative, executive or judicial action, and went on to say: “But this does not mean that the government, through agencies established by Congress, may not refuse the renewal of a license to one who has abused it to broadcast defamatory and untrue matter. In that case, there is not a denial of the freedom of speech, but merely the application of the regulatory power of Congress in a field within the scope of its legislative authority.”

The court further said: “If it be considered that one in possession of a permit to broadcast in interstate commerce may, without let or hindrance from any source, use these facilities, reaching out, as they do, from one corner of the country to the other, to . . . offend the religious susceptibilities of thousands, inspire political distrust and civic discord, . . . then this great science, instead of a boon, will become a scourge, and the nation a theater for the display of individual passions and the collision of personal interests. This is neither censorship nor previous restraint, nor is it a whittling away of the rights guaranteed by the First Amendment, or an impairment of their free exercise. Appellant may continue to indulge his strictures upon the characters of men in public office. He may just as freely as ever criticize religious practices of which he does not approve. He may even indulge private malice or personal slander — subject, of course, to be required to answer for the abuse thereof — but he may not, as we think, demand, of right, the continued use of an instrumentality of commerce for such purposes, or any other, except in subordination to all reasonable rules and regulations Congress, acting through the Commission, may prescribe. ’ ’

The so-called Roosevelt speech, attached as an exhibit to the amended and supplemental complaint, is in a large part highly controversial. Thinly veiled as a religious dissertation, it specifically attacks the integrity of Mr. Roosevelt on becoming a candidate, charges his absolute domination of the convention that nominated him, and predicted that the country is headed for a dictatorship, with Roosevelt as the last president. This was a direct violation of his promise to refrain from such actions. While it precipitated the demand for submitting script, appellee does not rely upon it as the basis of its demand, but claims that it and the prior political broadcasts which he had agreed to abandon without first submitting the script, indicate the need for supervision over his broadcasts. In KFKB Broadcasting Ass’n, Inc. v. Federal Radio Commission, 47 F. (2d) 670, the court said:

“In considering an application for a renewal of the license, an important consideration is the past conduct of the applicant, for ‘by their fruits ye shall know them. ’ Matt. VII: 20. Especially is this true in a case like the present, where the evidence clearly justifies the conclusion that the future conduct of the station will not differ from the past.” This language is apropros here, if appellee has the right to regulate and supervise broadcasts over its station.

The 1934 contract of sale of the station which the commission refused to approve reserved to appellant the control of all broadcasts originating in his studio. The Federal Communications Commission held the effect of this reservation would be to divide the control between the licensee (appellee) and a third party (appellant), in violation of.section 310 (b) of the Communications Act, and consequently refused to approve the sale until that part of the contract was eliminated. The contract was thereupon canceled and the contract of December 9, 1936 containing the provision above quoted was entered into. (In re WCBD, Inc., 3 F. C. C. 467.)

The business of broadcasting by radio is impressed with a public interest. Licensees have a positive unqualified responsibility of serving that interest as a matter of law. (In re Farmers & Bankers Life Ins. Co. (KFBI), 2 F. C. C. 455; In re Don Lee Broadcasting System (KFRC), 2 F. C. C. 642, aff’d 76 F. (2d) 998; In re Ben S. McGlashan (KGFJ) v. Federal Communications Commission, 2 F. C. C. 145.) They must necessarily be held responsible for all program service and may not delegate their ultimate responsibility for such to others. (In re Bellingham Broadcasting Co., F. C. C. Docket No. 5478.) In the McGlashan case it was held: ‘1 The contention of counsel that licensees should not have the duty of examining into the propriety of advertising to be broadcast is manifestly contrary to law.”

In United States Broadcasting Co., Voice of Brooklyn, Inc., (WLTH) Docket No. 1967, 2 F. C. C. 208, in denying an application for renewal of a license, the Commission said: “Complete supervision and control over programs, including careful examination of their content, directly affects the rendition of a public service. The right to determine, select, supervise, and control programs is inherently incident to the privilege of holding a station license. In fact, the right becomes a responsibility of a licensee, as he must be held to strick accountability for the service rendered.”

In another case, In re Morris, 2 F. C. C. 269, the commission, in refusing renewal of a license, said:

“The Commission considers, as an element of public interest, the economic factor involved in this application. Against this, however, it must weigh the need for this service, the character of the service rendered by this station, the fact that the applicants have no control over the programs to be transmitted from their studio, and can exercise no censorship over them, and the fact that there is interference with the service of station WOW, an existing station at Omaha, Nebraska. ’ ’

The above pronouncements of the commission have the effect of rules laid down by it in the exercise of its statutory authority, and by which appellant in his contract of sale agreed to be governed. One of such rules is that the licensee must control and supervise broadcasts over its station. Failure to observe it might subject appellee to a refusal of its application for a renewal of its license at the end of the three-year period prescribed by the law. This is clearly obvious from the former ruling of the commission when appellant attempted to retain control of the broadcasts in the sale to appellee. The reasonableness of the requirement for submitting script is apparent from the facts.

The chancellor correctly held the original complaint did not state a cause of action. As to the amended and supplemental complaint, it states no additional facts which constitute a cause of action. The motion to dismiss admits well-pleaded facts but does not admit conclusions of law or inferences drawn by the pleader. (Lietzman v. Radio Broadcasting Station WCFL, 282 Ill. App. 203.) It was not until almost 30 days after the entry of the decree that appellant sought to file an amended and supplemental bill. The question of allowing an amendment in chancery is largely in the discretion of the trial court, and a refusal to allow it will not be reversed unless there has been a manifest abuse of discretion. (Walker v. Struthers, 273 Ill. 387; Foss v. People’s Gas Light & Coke Co., 241 Ill. 238.) There was no such abuse here.

The decree dismissing the complaint and the order denying the prayer of the petition to vacate it and for leave to file the amended and supplemental complaint are each affirmed.

Decree and order affirmed.


text:
    H. B. North, Appellee, v. Henry T. Hultberg et al., Skandia Coal and Lumber Company, Appellant.
    Gen. No. 9,700.

      Opinion filed January 27, 1942.
    Rehearing denied February 27, 1942.
    Welsh & Welsh, of Rockford, for appellants; C. K. Welsh, .of Rockford, of counsel.
    Hall & Dusher, of Rockford, for appellee.
   Mr. Justice Dove

delivered the opinion of the court.

Appellee brought suit in the circuit court of Winnebago county to foreclose a trust deed on the west 50 feet of lot 11 in block 7 of Washington Park subdivision in the town of Rockford, executed by Signe E. Johnson and Carl R.'Johnson, her husband, on September 4, 1930, to secure the payment of $3,000 due in three years. Appellee owned the notes. The amended complaint sought to impose liability upon successive grantees of the premises, and Slcandia Coal and Lumber Company, beneficial owner through such conveyances, and for whose benefit they were admittedly made, under an alleged oral agreement to assume and pay the debt and the taxes on the property. It was also alleged that the premises have an easement in a water system, the well and equipment of which is located on nearby property of appellant, and from which the premises in controversy receives a water supply through a pipe.

The court entered a decree finding appellant (Skandia Coal and Lumber Company), liable for the amount of the debt, including principal, interest, attorney’s fees and taxes on the premises, and ordering the makers of the notes and appellant, or some one or more of them, to pay the same and the costs of suit within 10 days; that in default of such payment the premises be sold; that in case of a deficiency the makers of the notes and appellant pay such deficiency, and in default thereof plaintiff shall have judgment and execution against them for the amount thereof and interest thereon. The decree also found that appellant is liable for all back taxes on the premises, if any, reserving for future consideration and order all matters relating to such taxes as between the parties; that there exists in favor of the premises, an easement in the water system mentioned, and continues a temporary injunction restraining disconnection thereof until the further order of the court and reserving jurisdiction to protect such easement. The appeal is from those portions of the decree.

Appellee’s motion to dismiss the appeal on the ground that the decree is not a final judgment or decree, was taken with the case, and will be first considered. As to the taxes, the court reserved for future consideration and order all matters relating thereto as between the parties. As to the alleged easement the court merely continued the temporary injunction, without any order as to the final disposition of that question. Manifestly those parts of the decree are interlocutory only and not final. Whether it is final, so as to be appealable on the question of appellant’s liability for the debt, remains to be considered.

That part of the decree relating to any deficiency is not final or appealable, because whether there will be a deficiency, or the amount thereof, obviously cannot be determined until after the sale. That question is therefore not before us. (Eggleston v. Morrison, 185 Ill. 577; Thomson v. Black, 208 Ill. 229.) This is a wholly different matter from the question of liability for the debt. In each of the above cases a judgment of the Appellate Court affirming a foreclosure decree, where liability for the debt was thereby fixed, was affirmed. The complaint in the case at bar alleges an agreement by appellant, at the time it acquired beneficial ownership of the property, to pay the mortgage debt. This allegation was traversed, and testimony heard upon the question. It is a controversial issue of fact. The decree adjudicates that issue, and orders appellant to pay plaintiff the amount of $5,585.69, which includes principal, interest and attorney’s fees.

A final judgment reviewable by appeal or error, within the meaning of the statute, is one which finally disposes of the rights of the parties either upon the entire controversy or upon some definite and separate branch thereof. (Orwig v. Conley, 322 Ill. 291; Sebree v. Sebree, 293 Ill. 228.) To be final and appealable, a decree must terminate the litigation between the parties on the merits of the case, so that, if affirmed, the trial court has only to proceed with the execution of the decree. Where the decree retains jurisdiction in the court for further consideration of controversial ■matters pertaining to the merits of the cause, it is not a final decree. (Rogers v. Barton, 375 Ill. 611 (615). In Chicago & N. W. R. Co. v. Chicago, 148 Ill. 141 at page 153, the court said: “Where a decree or judgment is final, the proceedings under it are only a mode of executing it, like the award of an execution. For example, a decree of foreclosure and sale'has been held to be final, and the subsequent report and confirmation of the sale to be merely a mode of enforcing the rights of the creditor.” Citing Whiting v. Bank of United States, 13 Pet. 6, and Grant v. Phoenix Mut. Life Ins. Co., 106 U. S. 429. The decree in the instant case decided the issue on the question of assumed liability for the debt, and did not retain jurisdiction for any further consideration of that controversy. In our opinion, it is a final decree in that respect and the motion to dismiss the appeal is denied. (Stahl v. Stahl, 220 Ill. 188.)

On the question of whether appellant is liable for the debt and taxes as having assumed and agreed to pay the same when it acquired the beneficial ownership of the premises, the record shows that Signe E. Johnson owned all of lot 11. Her husband was a plastering contractor. He built several houses on his own account, including four on separate portions of lot 11, which for convenience, will be called tracts 1, 2, 3 and 4, numbered from west to east. The foreclosure here is on tract 1. The well and equipment of the water system is on tract 3. Carl E. Johnson owed appellant $14,139 fo,r building material, a part of which was used in constructing the house on tract 1. Henry Hultberg and John H. Holstrom were respectively the secretary and the assistant secretary of appellant. Stuart E. Mattoon was the bookkeeper. In March 1931, the Johnsons executed their note and trust deed to Holstrom, as trustee, to secure the debt to appellant, conveying equities in several properties, including tract 1. During the following November, they conveyed to him tract 2 by warranty deed “subject to encumbrances now of record” and the “general taxes for 1931 and thereafter,” in connection with which a letter to Carl E. Johnson, signed by Holstrom, as assistant secretary, recited: “When Mr. Carl E. Johnson pays us his account or notes in full, the property will be deeded to him or to anyone that he might select.” In March 1932, Johnson and his wife conveyed to Holstrom, by warranty deed, tracts 1, 3 and 4, and other property. It states a consideration of one dollar and other valuable considerations in hand paid. There are no exceptions or reservations in the deed. In June 1932, Holstrom conveyed all four tracts to Mattoon. The trust deed securing the $14,139 note was released in November 1932. In February 1934, Holstrom, Hultberg and Mattoon incorporated the Skandia Real Estate Company, for the purpose of holding in its name title to the properties owned by appellant, and during the same month, Mattoon conveyed all of lot 11 to the real estate company, which held title when the foreclosure suit was filed. Each of the conveyances mentioned were for the benefit of appellant, Skandia Coal and Lumber Company.

Appellee claims the indebtedness under his trust deed and the notes were assumed by appellant and that through Holstrom it agreed to pay the same when the property was acquired from the Johnsons. Appellant claims Holstrom made no such agreement, and that even if he had done so, he had no authority to make it, and the agreement would not be binding upon appellant.

Johnson and his wife each testified he was unable to pay the debt to appellant and offered to deed the property, intending to go to Texas and engage in raising grapefruit; that the property was deeded on account of such indebtedness, with the understanding and agreement by Holstrom, for appellant, to assume and pay appellee’s mortgage, and the interest and taxes; that they were to be freed from all liability and were to have nothing further to do with the property. Johnson testified that the taking care of appellee’s mortgage was his only object in deeding the houses. Appellee testified that on one occasion Holstrom told him: “Your loan is good. We’ll take care of it, we have always treated you right, haven’t we?”; and that at another time Holstrom said: “Well, don’t foreclose it, we will take care of it.” Holstrom denied making any such agreement with the Johnsons and denied he.told appellee in any of the conversations that appellant would pay the mortgage, interest or taxes.

The complaint alleges that appellant did pay the encumbrances on the other tracts. The allegation is not traversed and stands as admitted. After the transfer appellant, through Holstrom, repeatedly promised appellee, by letters on its stationery, signed by him as assistant secretary, to pay the interest and taxes, and applied part of the rents to the payment of interest. One of the letters, dated July 25, 1935, stating an intention to pay the taxes, is signed by Holstrom as vice-president. Appellant finally paid the past due taxes on lot 11 under the act of July 26, 1939 (Ill. Eev. Stat. 1941, ch. 120, par. 337i, et seq. [Jones Ill. Stats. Ann. 119.828, et seq.]), which provides for instalment payments and eliminates interest and penalties. Prior to that time, it claimed the taxes on tract 1 could not be paid because lot 11 was assessed as one tract.

Appellant never at any time claimed or suggested that appellee should look to the property or to the Johnsons for payment of his debt. Appellee testified that at one of the conversations at appellant’s office, in the presence of Holstrom and Hultberg, he said he had taken their promises and they had not kept them; that Holstrom said there was less than one hundred dollars in the rent account; that the witness then said that if he did not receive a check or statement by 10 o’clock the next morning he would start action; that he was going to see whether they could keep his money, and that they probably had twelve or fourteen hundred dollars of his; that he had trusted them and thought they would attend to it, — pay the note and interest and pay the note when it came due, and they had done nothing; to.which no reply was made except Holstrom said that was a pretty short time, and that it was not then convenient to do so. Holstrom was then representing appellant as was Hultberg and they did not deny its liability to pay the note and interest. In August 1935, appellee wrote appellant: “Tour note for $3,000.00 secured by mortgage (on tract 1) with interest from September 4th, 1932, is due September 4th. We do not care to have it run on in its present condition, inasmuch as you are paying neither taxes or interest, and are retaining the rents. What do you propose to do about it?” The record does not show any reply to this letter, which plainly states the note was appellant’s obligation. Thus, appellant twice failed to deny liability when asserted by appellee. A well-established rule is that when a party remains silent under such circumstances, he is bound by his silence. The failure to deny liability should estop appellant from now doing so. All these circumstances strongly tend to corroborate the testimony of the J ohnsons.

Hultberg, called by appellee as a witness under section 60 of the Civil Practice Act [Jones Ill. Stats. Ann. 104.060], testified on direct examination that Holstrom was in charge of building material and real estate operations, and supervised the purchase and sale of building material, collection of rents, and the handling of the real estate account; that if a purchaser of building material could not pay for it and the property had to be taken over, Holstrom would take care of that. On cross-examination he at first testified that Holstrom had complete charge of appellant’s holdings and the right to bind it to assume a mortgage not signed by it. On further cross-examination he testified that in the capacity of assistant secretary, Holstrom had no authority to bind appellant in a promise to assume and agree to pay an encumbrance. On redirect examination, he testified that if Holstrom ever took title in his own name from a person indebted to appellant and afterward conveyed the property to it at its request he did not recall it. On recross-examination he said he knew Holstrom took title in his own name to the property in controversy for the benefit of appellant. The chancellor heard the cause in open court. He saw the witnesses, could observe their demeanor on the stand, and was in a position to judge of their credibility. His finding that appellant is liable for the debt and taxes, necessarily implies a holding that Holstrom, for appellant, did agree with the Johnsons, to pay appellee’s debt and the taxes, and that he had authority to do so. We cannot say that the holding is against the manifest weight of the evidence. Hall v. Pittenger, 365 Ill. 135. The evidence, in our opinion, sufficiently justifies the decree as to appellant’s liability and this being the only question properly before us, the decree is affirmed.

Decree affirmed.