source: Caselaw Access Project

author: Mr. Presiding Jhstic Burke

license: Public Domain

text:
    Chicago, Burlington and Quincy Railroad Company, Appellee, v. California Wine Company, Appellant.
    Gen. No. 41,818.
    Opinion filed March 18, 1942.
    Allen H. Schultz, of Chicago, for appellant.
    Eldon M. Martin, James A. Gillen, John H. O’Neil and Robert H. Bierma, all of Chicago, for appellee.
   Mr. Presiding Jhstic Burke

delivered the opinion of the court.

On January 16, 1939, Chicago, Burlington & Quincy Railroad Company filed a complaint in the superior court of Cook county against the California Wine Company, asking judgment for the difference between the amounts paid by defendant on shipments of brandy from points in California to Chicago, and the rates allegedly applicable to such shipments in accordance with the tariffs on file. In its answer defendant asserted that it paid the proper rates. A trial before the court without a jury resulted in a judgment against defendant in the sum of $13,529.31. Defendant appealed. The case was tried on the pleadings, a stipulation of facts and two exhibits. Hence there is no dispute as to the facts.

Plaintiff is an interstate carrier by railroad, and in connection with other such carriers it transports property between Fresno and Bear Creek, California, and Chicago. It is subject to the provisions of an Act of Congress (1887) known as “An Act to regulate interstate commerce” and all acts amendatory thereof and supplementary thereto. Defendant is a corporation organized under the laws of Illinois. The first shipment was made on January 28, 1936, and the last on March 3, 1939. One shipment was from Bear Creek and 34 were from Fresno, a total of 35 shipments. We are asked to determine the rate applicable to the commodity shipped by defendant and transported by plaintiff. The trial court sustained plaintiff’s contention that the commodity was “Brandy,” and that the rate published in tariff item 2970 was applicable. Defendant admits that the commodity transported was “Brandy” within the description of item 2970. Plaintiff’s tariffs also carry items 2950 and 1060, naming a rate on “Grape Alcohol (Spirits of Wine or White Brandy) ” which is lower than the rate on “Brandy.” Defendant contends that the “Brandy” so shipped can also be properly described as “Grape Alcohol (Spirits of Wine . . .) ” and that therefore, it is entitled to the lower rate. Tariff items 2950, 1060 and 1060B (which defendant maintains are applicable), read:

“2950 Liquors, viz.: Alcohol (other than denatured or wood), including Grape Alcohol (Spirits of Wine or White Brandy) . . . (Effective June 30, 1935.)
111060 Alcohols, other than alcoholic liquors, viz.: Alcohol (other than denatured or wood), including Grape Alcohol (Spirits of Wine or White Brandy). . . . (Effective June 30, 1937.)
“1060B Alcohols, other than alcoholic liquors, viz.: Alcohol 1ST. O. S. in glass or metal cans, boxed, in bulk in barrels or drums, or in tank cars, actual weight per gallon. (Effective May 1, 1939).”
Tariff item 2970 for which plaintiff contends, reads:
“2970 Liquors, viz.: Brandy (California), in glass, earthenware or metal cans, boxed, or in bulk in barrels, . . . (Effective June 30, 1935.)
“2970 Liquors, viz.: Brandy, in glass, earthenware or metal cans, boxed, or in bulk in barrels . . . (Effective December 1,1935).”

The commodity shipped is the product of. distilleries, registered with and authorized by the United States Treasury Department to so operate. The distilleries are located at or near Fresno, California. The product was produced between 1934 and 1937 by the distillation, solely, of the fermented juice or mash of grapes, plums, prunes and other fruits, and was distilled at less than 190 degrees proof. The product was then reduced in proof in the distillery, by the addition of distilled water, to an alcoholic proof ranging from 101 to 103 degrees proof and was invoiced to defendant as “Brandy.” The coloring and flavoring matter, such as caramel, was added to the product in the distillery. It was stored for periods ranging from 7 days to 4 years in charred oak barrels in an Internal Revenue Bonded Warehouse, operated under the regulations of the Bureau of Internal Revenue for the storage of distilled spirits other than alcohol on which the tax has not been paid. During the periods of storage the product gained an additional brown color due to the chemical reaction from contact with the charred oak barrels. The product, in the same barrels, was transported and delivered by plaintiff and its connecting lines to defendant at Chicago. At the time of such transportation the alcoholic proof of the product ranged from 101 to 103 degrees. The barrels so transported were marked, branded or labeled “Brandy” in conformity with the regulations of the United States Treasury. At the time of the movement of these barrels there' was in effect a tariff published by plaintiff and its connecting lines, and on file with the interstate commerce commission, containing rules and regulations governing the transportation of alcohols and other inflammables. One shipment moved under the provisions of the rules and regulations concerning the transportation of alcohols and other inflammables. This shipment, consisting of 40 barrels of Crape Alcohol of 184 degrees proof and of a coloring different from the commodity here in issue, moved in a Southern Pacific car on March 11, 1936. None of the other shipments moved under such rules and regulations. The product here in issue, upon delivery to the defendant, was reduced by the addition of distilled water to 86 to 90 degrees proof by the Lawrence Warehouse Company, for the account of the defendant, and then bottled and labeled, all under the rules and regulations of the United States Treasury Department. The internal revenue tax paid by the defendant to the United States Treasury Department, when the product shipped was withdrawn from bond, was the tax applicable only to “Brandy.” The defendant then sold this product in bottles labeled “Brandy” and it reached the general public for consumption as “Brandy.”

Defendant asserts that where two tariff rates apply to the same item, the shipper is entitled to the one specifying the lower rates. This principle is enunciated in United States v. Gulf Refining Co., 268 U. S. 542, where at page 546, the court said:

“And where two descriptions and tariffs are equally appropriate the shipper is entitled to have applied the one specifying the lower rates. ’ ’ Plaintiff accepts this statement as the law, but insists that it had no application to the factual situation before us, and that in order for defendant to succeed in its appeal it must show an error of law affecting the judgment, or an error of fact in that the judgment appealed from is not sustained by the evidence, or is against the weight of the evidence. This is the requirement of paragraph 3, section 92 of the Civil Practice Act (sec. 216, ch. 110, Ill. Rev. Stat. 1941 [Jones Ill. Stats. Ann. 104.092].) Under the principle laid down in the Gulf Refining Go. case, it becomes necessary for defendant to establish that the two descriptions in the tariff items under discussion are “equally appropriate” to the same commodity. Defendant argues that “Brandy” is Spirits of Wine. He quotes Webster’s New International Dictionary (2d Ed. 1934) 326, as defining “Brandy” as “A spirituous liquor distilled from wine.” He also gives an excerpt from an article on “Brandy” written by Peter Valuer, an official of the United States Bureau of Internal Revenue. He states that this article is recognized as an official pronouncement on the “Brandy” situation in this country. It was published in March 1939, in a magazine called Industrial and Engineering Chemistry. Valuer says: “The general term ‘brandy’ is applied to the product obtained from distilling wine or the fermented juice of any fruit.” Defendant also supports his position by quoting from Regulations No. 5 issued by the Treasury Department, Federal Alcohol Administration, wherein brandy is defined as:

“A distillate, or a mixture of distillates, obtained solely from the fermented juice or mash of fruit (1) distilled at less than 190 degrees proof in such manner that the distillate possesses the taste, aroma, and characteristics generally attributed to brandy; . . . .” Article 1, section 2 (2) of the Illinois Liquor Control Act defines Spirits as:

“The word ‘spirits’ means any beverage which contains alcohol obtained by distillation, mixed with water or other substance in solution, and includes brandy, rum, whiskey, gin, or other spirituous liquors, and such liquors when rectified, blended or otherwise mixed with alcohol'or other substance.” The definition of Crape Brandy in paragraph 3 (j) of Regulations No. 7, Internal Revenue, Production of Brandy (1930) is:

“ ‘Crape Brandy’ means the product resulting from the distillation of fermented grape juice, to which water may have been added prior to, during, or after fermentation, for the sole purpose of facilitating the fermentation and economical distillation thereof, and shall be held to include the product from grapes or their residues commonly known as grape brandy, and shall include commercial grape brandy which may have been colored with burnt sugar or caramel.” In section 3036, 26 U.S.C.A., as amended by the Revenue Act of 1939, Wine Spirits is defined as:

“The wine spirits mentioned in section 3032 (a) is the product resulting from the distillation of fermented grape juice, to which water may have been added prior to, during, or after fermentation, for the sole purpose of facilitating the fermentation and economical distillation thereof, and shall be held to include the product from grapes or their residues commonly known as grape brandy, and shall include commercial grape brandy which may have been colored with burnt sugar or caramel.” From these authorities defendant draws the conclusion that brandy is a spirit of wine, and consequently means the same as the phrase “Spirits of Wine.” Defendant declares that the technical terms used in the tariff must be given their full meaning. Plaintiff agrees with this statement and inquires “how better can one arrive at the full meaning of a term than by an examination of the technical definitions incorporated in the regulations of the United States Treasury Department?” Such regulations are held to have the force and effect of law when not in conflict with statutory provisions. (Daeuffer-Lieberman Brewing Co., Inc. v. United States, 36 F. (2d) 568, 570; Shapiro v. Lyle, 30 F. (2d) 971, 973.) Plaintiff urges that assuming that “Brandy” and “Grape Alcohol (Spirits of Wine . . .)” are the same commodity, the principle of the Gulf Refining Company case is nevertheless inapplicable. Plaintiff calls attention to the fact that the commodity was invoiced to the defendant as Brandy, sold by the defendant as Brandy and that it reached the general public for consumption as Brandy. Plaintiff also states that such a designation fixes the identity of the commodity in determining the applicable rate for transportation purposes, citing the case of Mead Johnson & Co. v. Atlantic Coast Line R. R. Co., 168 I. C. C. 157, where at page 158 the Interstate Commerce Commission said:

‘ ‘ This commission has held in a number of decisions that the manufacturer’s description of a commodity for sales purposes also fixes its identity for transportation purposes. If a manufacturer finds it advantageous to describe his product in a manner calculated to give purchasers the impression that it is a different and higher-grade article than it actually is, he can not consistently complain if the carriers accept that description as a basis for the assessment of freight charges. Andrews Soap Co. v. P. C. & St. L. Ry. Co., 4 I. C. C. 41; Glidden & Co. v. Akron, C. & Y. Ry. Co., 153 I. C. C. 684. We find that Dextri-Maltose is properly classified under the southern and official classifications as prepared food not otherwise indexed by name. ’ ’ Plaintiff insists that if it be assumed that the “Brandy” description and the “Grape Alcohol (Spirits of Wine . . .)” description are equally appropriate to the same commodity, the principle of the Mead Johnson & Company case requires that the “Brandy” rate be assessed even though it is higher than the rate on “Grape Alcohol (Spirits of Wine •\ . .),” since the commodity was invoiced to the defendant as “Brandy” and was sold as “Brandy.”

Plaintiff argues that “Brandy” is not “Grape Alcohol (Spirits of Wine . . .).” Defendant admits that the commodity is “Brandy” within the meaning of the ■tariff description in item 2970. Defendant maintains that it has shown that the commodity is both, “Brandy” and also “Spirits of Wine,” and that under the rule set out in the Gulf Refining Company case, the shipper is entitled to the lower of the two published rates equally applicable to the same shipment, and that hence the judgment should be reversed and judgment entered for the defendant. The record shows that defendant made certain shipments, not involved in this proceeding, of a commodity of a coloring and alcoholic proof different from the commodity here in issue. Defendant shipped this other commodity in steel drums and labeled it inflammable alcohol in accordance with the requirements of plaintiff’s tariffs. On this shipment plaintiff applied and defendant paid the “Grape Alcohol (Spirits of Wine . . .) ” rate. Defendant then made shipments of the commodity in issue. The latter shipments were not in steel drums and defendant did not label the commodity as inflammable alcohol. Plaintiff states that the commodity here in issue was “Brandy” and not “Grape Alcohol (Spirits of Wine . . .).” In further support of its contention that the commodity is “Brandy” and not “Grape Alcohol (Spirits of Wine . . .),” plaintiff points out that defendant purchased the commodity as “Brandy” and not as “Grape Alcohol (Spirits of Wine . . .)”; that defendant paid the United States Internal Revenue Department the tax applicable only to “Brandy”; that defendant put the commodity in bottles labeled “Brandy” and not “Grape Alcohol (Spirits of Wine . . .)”; that defendant sold the commodity as “Brandy” and not as “Grape Alcohol (Spirits of Wine . . .),” and that the commodity was stored in California in an Internal Revenue bonded warehouse operated under the regulations of the Bureau of Internal Revenue for the storage of distilled spirits other than alcohol on which the tax has not been paid. We agree with the contention of plaintiff that “Brandy” is not “Grape Alcohol (Spirits of Wine . . .).” Answering defendant’s contention that section 3036, 26 U.S.C.A. supports its claim that “Brandy” and “Grape Alcohol (Spirits of Wine . . .) ” are identical, plaintiff calls attention to the fact that this statute defines “Wine Spirits” and that its effect is merely to prove that “Wine Spirits” and “Brandy” are the same commodity and that it does not prove that “Grape Alcohol (Spirits of Wine . . .)” and “Brandy” are the same commodity. Plaintiff invites attention to section 3124 (a) U.S.C.A., which defines alcohol as “that substance known as ethyl alcohol, hydrated oxide of ethyl, or spirit of wine from whatever source or whatever processes produced,” and to article 4 (b) of Regulation No. 3 defining alcohol as “that substance known as ethyl, hydrated oxide of ethyl, or spirit of wine, from whatever source or process produced, having a proof of 160 degrees or more, and does not include the substances commonly known as whiskey, brandy, rum or gin. ’ ’ The last mentioned definition makes it patent to us that “Brandy” (or wine spirits) is the direct antithesis of “Grape Alcohol (Spirits of Wine ...).” We agree with the plaintiff that the grammatical construction of “Grape Alcohol (Spirits of Wine . . .)” indicates that “Spirits of Wine” is simply a type of the generic commodity “Alcohol” and is not “Brandy.” We also agree with plaintiff that the storage of the commodity in the Internal Revenue bonded warehouse operated for the storage of distilled spirits other than alcohol, the payment by defendant of the tax applicable only to “Brandy,” defendant’s whole conduct, and the United States Treasury Department Regulations clearly demonstrate that the commodity in issue is “Brandy” and not “Grape Alcohol (Spirits of Wine . . .) ”; also that the principle of the Mead Johnson & Co. case operates to prevent defendant from complaining against the acceptance by the carriers of the description given to the commodity by the defendant in selling it to the public.

Defendant maintains that the change in the tariff description on June 30,1937, and again on May 1,1939, shows- definitely the position of the Tariff Committee with respect to the meaning of the phrase Spirits of Wine. Defendant calls attention to the fact that the first change on June 30, 1937, eliminated the word “Liquors” and inserted the word “Alcohols”; that, after the change on June 30, 1937, the description still retained the phrase “Spirits of Wine”; that this phrase was eliminated in the description given on May 1, 1939, and argues that the reason for this elimination may logically be construed to have resulted from the conflict in having two descriptions for the same item, which item is the subject matter in issue in this case. As the shipments involved in the case at bar embrace the period from January 28,1936 to March 3, 1939, inclusive, the tariff rate which became effective on May 1, 1939 does not apply. Plaintiff quotes from Chicago Great Western R. Co. v. Farmers’ Shipping Ass’n, 59 F. (2d) 657, 659, that “A railroad company tariff has the force and effect of a statute and in determining the meaning thereof the usual rules of construction commonly applied to statutes and contracts are applicable.” Plaintiff insists that as no ambiguity exists there is no room for construction of the language used in the tariffs. In answering plaintiff, citation of section 3124 (a) 26 U.S.C.A., and article 4 (b) of Regulation No. 3, defendant states that these definitions cover the production of industrial alcohol; that they do not apply to the instant case as the product here involved was not to be used for industrial purposes and was not manufactured in accordance with the rules and regulations applied to the manufacturer of alcohol for industrial purposes. Replying to the assertion of plaintiff that defendant paid the United States Internal Revenue Department tax applicable only to “Brandy,” defendant states that this argument cannot prevail because this tax also applies to “Spirits of Wine,” which defendant urges is defined to be the same product as “B'randy.” We have studied the record, the briefs and the authorities cited and are convinced that “Brandy” is not “Grape Alcohol (Spirits of Wine . . .).” Defendant did not pay the rate applicable to the commodity “Brandy” which it shipped and the court ruled correctly in finding the issues against the defendant and entering judgment accordingly. Therefore the judgment of the superior court of Cook county is affirmed.

Judgment affirmed.

Hebel and Kiley, JJ., concur.


author: Mr. Presiding Justice Burke

text:
    Francis Corby, Appellee, v. Frank M. Dooley, Appellant.
    Gen. No. 41,870.
    Opinion filed March 18, 1941.
    John T. Murray and John D. King, both of Chicago, for appellant; John D. King, of Chicago, of counsel.
    Joseph J. Sullivan and Gregory A. Gelderman, both of Chicago, for appellee.
   Mr. Presiding Justice Burke

delivered the opinion of the court.

In a statement of claim filed in the municipal court of Chicago on January 17, 1938, Francis Corby, alleged that on October 25, 1925, he paid Frank M. Dooley, the sum of $10,000 as his (plaintiff’s) proportionate share of the purchase of certain real estate in Miami, Florida; that defendant failed to purchase the real estate; that he thereby became obligated to pay plaintiff the sum of $10,000; that on August 24, 1926, defendant paid plaintiff $5,000, on October 1, 1928, $1,000, and on September 17, 1929, $500; that thereafter defendant promised to repay the balance of $3,500 and failed so to do, and plaintiff asked judgment for $3,500, with interest at 5 per cent because of an unreasonable and vexatious delay. Defendant pleaded various defenses. The cause was tried before the court and a jury. On March 31, 1939, the jury returned a verdict reading: ‘ ‘ The court finds the issues against the plaintiff.” On the same day (March 31, 1939) the court entered judgment on the verdict, entertained a motion by plaintiff for a new trial and continued the hearing on such motion to April 14, 1939. The record does not show that any action was taken on April 14, 1939. On June 9, 1939, the court (Judge Bonelli presiding) denied the motion for a new trial. On July 7, 1939, plaintiff moved to vacate the order of June 9, 1939, and the court continued the motion without setting it for any date. Following the order of July 7, 1939, appears the notation: 11 Exception by defendant.” On July 11,1939, the court (Judge Bonelli presiding), denied plaintiff’s motion to vacate the order of June 9, 1939. On July 13, 1939, the court (Judge Bonelli presiding) entered an order reading: “Now comes the plaintiff in this cause and moves the court to vacate the orders of July 11,1939 and June 9, 1939, and to vacate the judgment on verdict of March 31, 1939, and for a new trial, and the court being fully advised in the premises sustains said motion. Now come the parties to this cause; thereupon it is ordered that this cause he and the same is hereby transferred to the Chief Justice for reassignment for immediate trial.” The record does not show any further proceedings until December 8, 1939, when the court (Judge Oscar S. Caplah presiding) entered the following order: “Now comes the plaintiff in this cause and moves the court for leave to file interrogatories instanter and for rule on defendant to answer interrogatories in thirty days, and the court being fully advised in the premises sustains said motion.” On December 8,1939, sixteen interrogatories were filed by plaintiff. These interrogatories related to the merits of the case. On January 6, 1940, defendant filed his sworn answers to the sixteen interrogatories. The record does not show that defendant objected to the order allowing the filing of the interrogatories, or to the rule on him to answer the same. On May 10, 1940 (Judge Cecil 0. Smith presiding), defendant moved to strike the cause from the trial call. The court entered the motion and continued it to May 13, 1940. On May 13,1940 (Judge Smith presiding) the motion was postponed to May 14,1940. The same judge presiding, the motion was postponed to May 27,1940. On May 27, 1940, the same judge presiding, the motion was postponed to June 5,1940. On June 7,1940, the same judge presiding, the following order was entered: “This cause coming on for hearing upon the motion of the defendant heretofore entered herein to strike the above entitled cause from the trial call because of the lack of jurisdiction of this court to hear said action and the court being fully advised in the premises sustains said motion, to which plaintiff takes exception.” On June 19, 1940, Judge J. J. Sonsteby presiding, the plaintiff moved to correct the record. The court entered the order and assigned it to Judge Smith, to be heard on July 8,1940. Nothing is stated as to what record was to be corrected or how it was to be corrected. On July 8, 1940, Judge Smith presiding, the motion to correct the record was continued to July, 9, 1940. On that day (Judge Eugene J. Holland presiding) the motion to correct the record was continued to July 11, 1940. On July 11, 1940 (Judge Smith presiding) the motion was continued to July 12, 1940. On July 12, 1940 (Judge Smith presiding) the motion was continued to July 22, 1940. Nothing further occurred until July 27,1940, when the court (Judge William V. Daly presiding) ordered that “This cause be and the same is hereby set for hearing January 3, 1941. ” It does not appear that any ruling was made on the motion to correct the record. The record does not show that any order was entered on January 3, 1941. On February 11, 1941, defendant filed a document reading: “Objection to jurisdiction of court to proceed. Now comes the defendant in his own person specially limiting his appearance to question the jurisdiction of this court to further proceed in the hearing of this cause, for the following reasons: First: The judgment of the court entered on March 31, 1939, is final and not appealed from. Second: The order of June 9, 1939,' denying a motion for a new trial is a final appealable order and was not appealed from by the plaintiff. Third: The order of July 11, 1939, denying the motion to vacate the order of June 9, 1939, is a final and appealable order and was not appealed from by the plaintiff. Fourth: The court was without jurisdiction to vacate the said judgment of March 31, 1939, or to vacate the order of June 9, 1939, or the order of July 11, 1939. Fifth: The order of Judge Smith entered on June 7, 1940, was a final appealable order and was not appealed from and the court therefore is without jurisdiction to proceed herein.” On February 11, 1941, the defendant filed a document reading: “Objection to impanelling of jury. And now again comes the defendant in his own proper person, specially limiting his appearance to object to the jurisdiction of this court to further proceed in the hearing of this cause and objects to the impanelling a jury herein and objects to the jury being sworn to try the alleged issues herein, the issues being fully determined by the verdict of the jury returned and entered herein on March 31, 1939.” On the same day the court (Judge Daly presiding) overruled the objection of defendant to the jurisdiction of the court and to the impanelling of a jury. The second trial before a jury (Judge Daly presiding) commencing February 11, 1941, resulted in the return of a verdict on February 17, 1941, finding the issues against the defendant, with damages assessed at $2,500. On February 18, 1941, defendant filed a motion in arrest of -judgment and a motion non obstante veredicto. These two motions relied on the five points embraced in the document called, “Objection to jurisdiction of court to proceed,” which was filed on February 11, 1941. Defendant’s motions were continued on five occasions. On April 9,1941, the court (Judge Daly presiding) denied the motions for judgment notwithstanding the verdict and in arrest of judgment, and entered judgment on the verdict for the plaintiff in the sum of $2,500. On April 23, 1941, the court (Judge Daly presiding) entered the following order: “Upon due notice to plaintiff, this cause coming on to be heard on defendant’s motion to strike from the records all rulings, orders, judgments and proceedings entered herein, by the court, subsequent to July 11, 1939, to restore to the record the judgment entered in said cause on March 31, 1939, in favor of the defendant and against the plaintiff for costs, it is ordered and adjudged by the court that said motion be, and the same is hereby overruled, to which order overruling said motion the defendant duly excepts.” Defendant appeals from this latter order and prays that such order be reversed and that we direct the trial court to strike from the record all rulings, orders, judgments and proceedings entered subsequent to July 11, 1939, and to restore to the record the judgment in favor of defendant of March 31, 1939. The transcript of the testimony has not been brought up. There is no claim that any errors were committed in the trial, or that the jury was not properly instructed. At the request of plaintiff, the transcript of the colloquy between the court and the respective attorneys on the argument of the motion for judgment notwithstanding the verdict was included in the record.

Defendant maintains that when the court (Judge Bonelli presiding) on July 13,1939, vacated the judgment of March 31, 1939, successive motions having been denied, he acted without jurisdiction, his orders being null and void, and all proceedings thereafter were null and void; that the first judgment was not appealed from; that it was not set aside by a motion in the nature of a writ of error coram nobis, and that it was not set aside by a petition equivalent to a complaint in equity. Defendant asserts that a judgment in the municipal court becomes final after 30 days from its entry and can only be set aside by that court by a petition taking the place of a complaint in chancery, or upon a motion in the nature of a writ of error coram nobis; that such motion or petition to vacate constitutes a new suit wherein the one opposing the motion should be required to join issue, and that upon issue joined the facts should be determined following a hearing. Defendant also makes the statement that jurisdiction of the subject matter cannot be waived or conferred by consent or by silence of counsel. He concludes by saying that a second motion for a new trial will not be entertained. Plaintiff replies to these contentions by asserting that the court had jurisdiction of both the parties and the subject matter, and that the judgment in his favor should stand. Jurisdiction of the subject matter is conferred by law and does not rest solely upon the averments in a pleading. Jurisdiction is the power to hear and determine the subject matter in controversy between the parties to a suit. If the law confers the power to render a judgment or decree, then the court has jurisdiction. Jurisdiction of a particular matter does not mean simply jurisdiction of the particular case then occupying the attention of the court, but jurisdiction of the class of cases to which the particular case belongs. Jurisdiction does not depend upon the rightfulness of the decision. It is not lost because of an erroneous decision, however erroneous that decision may be. (O’Brien v. People ex rel. Kellogg Switchboard & Supply Co., 216 Ill. 354, 363.) Both parties in the instant case were quite informal in presenting their motions. The motions were oral. The record shows that on July 7, 1939, at which time plaintiff moved to vacate the order of June 9, 1939, the defendant excepted. The record does not show the nature of his exception. The order of July 13, 1939,, which vacated the first judgment and awarded a new trial to plaintiff, does not show that there was any argument against the granting of such motion, or against the further order entered at the same time transferring the cause for “immediate trial.” The presumption is that the action of the court in granting the new trial was in accordance with the law. The burden is- upon the party appealing to show that the allowance of the new trial was improper. Although the record does not show that the defendant assented to the order of July 13, 1939, which granted the new trial, it does not show that he voiced any objection. Five months after the entry of the order allowing the new trial, plaintiff procured an order permitting him to file interrogatories and a rule on the defendant to answer the same. Here also the record is barren of any objection by defendant. On January 6, 1940, approximately six months after the entry of the order granting the new trial, defendant filed sixteen answers to the interrogatories propounded by plaintiff. These interrogatories and answers related to the merits of the case. They clearly show that at that time defendant recognized that the court had jurisdiction of the subject matter and of his person. On May 10, 1940, ten months following the entry of the order allowing the new trial, defendant moved to strike the cause from the trial call. This motion was postponed three times, and on June 7, 1940, the court (Judge Smiíh presiding) sustained the motion of defendant to strike the cause from the trial call “because of the lack of jurisdiction of this court to hear said action. ’ ’ It will be observed that defendant’s motion was merely to strike the cause from the trial call. Defendant appears to consider that the allowance of this motion had the effect of disposing of the case. It is obvious that all the court was asked to do and all that it did do was to strike the cause from the trial call. The cause remained pending and undetermined. Defendant’s motion to strike the cause from the trial call did not assign any ground therefor. In passing on the motion the court stated that it was a motion of defendant to strike the cause from the trial call because of lack of jurisdiction of the court to hear the action. This statement by the court did not, in fact, deprive the court of jurisdiction because what the court actually did was to strike the cause from the trial call. We have examined the record closely and find that the jurisdiction of the court is mentioned for the first time in the order of June 7,1940, almost eleven months after the entry of the order allowing the new trial. The first time the defendant adequately objected to the jurisdiction of the court was on February 11,1941, eighteen months after the entry of the order allowing the new trial. Defendant has not brought before us any record showing that he objected in due time, and the record that he does bring shows that he recognized that the court had jurisdiction. It is manifest that the court had jurisdiction of the subject matter. The actions of the defendant do not show that he complained about the manner in which the court exercised its jurisdiction. In fact, he accepted the orders of the court as being proper and regular. The presumption is that the court acted in accordance with the law and the facts presented to it. Not having objected to the entry of the order granting the new trial, and having by his subsequent conduct recognized the validity of such order, and the court having general jurisdiction of the subject matter, the defendant will not be permitted to challenge such order.

Therefore, the judgment entered by the municipal court of Chicago on April 9, 1941, for the plaintiff and against the defendant in the sum of $2,500 is affirmed.

Judgment affirmed.

Hebel and Kiley, JJ., concur.


text:
    Letha Sullivan, Appellee, v. Coca Cola Bottling Company of Chicago, Inc., Appellant.
    Gen. No. 41,965.

      Opinion filed March 18, 1942.
    W. Harold Rutherford, of Chicago, for appellant; Richard E. Keogh, of Chicago, of counsel.
    Robert Irmiger, of Chicago, for appellee; James J. Cusack, Jr. and John F. Cusack, both of Chicago, of counsel.
   Mr. Presiding Justice Burke

delivered the opinion of the court.

In a complaint filed in the superior court of Cook county, Letha Sullivan sought damages for personal injuries suffered on February 2, 1940, when she purchased and drank a bottle of Coca Cola, containing a foreign substance which rendered the Coca Cola unfit for human consumption. Defendant’s answer traversed the material allegations of the complaint. A trial before the court and a jury resulted in a verdict against the defendant for $750. Motions for a directed verdict, a new trial and in arrest of judgment were overruled and judgment was entered on the verdict, to reverse which this appeal is prosecuted. Defendant asserts that the mere fact that an accident resulting in an injury has occurred does not authorize the presumption or inference that it was negligent and that it was plaintiff’s duty to show by competent testimony that the foreign substance alleged to have been found in the bottle might or could be .injurious. Plaintiff answers that defendant was negligent and breached its implied warranty by offering to plaintiff a drink containing a foreign object; that plaintiff became ill immediately after drinking the Coca Cola, and that whether or not the Coca Cola caused her illness was a question of fact for the jury.

On February 2, 1940, plaintiff, a married woman 42 years of age, went to the Wedgewood Pharmacy at 64th street and Woodlawn avenue, Chicago. The proprietor, David Levy, a pharmacist, waited on her. She purchased a bottle of Coca Cola. Levy has been a druggist for 23 years and has occupied the store at 64th street and Woodlawn avenue for about 4 years. Plaintiff came to the drug store almost every day for a period of three or four years and on each occasion purchased and drank a bottle of Coca Cola. She always bought bottled Coca Cola. When Levy served it to her, he opened the bottle, poured the contents into a glass and placed the glass on the fountain counter. At about 2:30 p.m. on the afternoon of February 2, 1940, Levy poured the contents of a bottle of Coca Cola into a glass. Plaintiff took a drink from it and noticed that it did not taste right and that it had a metallic taste. She then purchased a package of cigarettes from the druggist. She lit a cigarette ahd took a puff. She thought she might be imagining the metallic taste in the Coca Cola, which was the reason why she smoked the cigarette. She again picked "up the glass, took another sip and found that it had the same taste. After drinking the Coca Cola she became very ill and suffered nausea. She testified that the druggist picked the bottle up from behind the soda fountain and held it up, at which time she saw there was something in the bottom of the bottle. She started for the door, and as she reached it, vomited in the doorway. She went home and to bed. She was very ill. When her husband came home from work that evening he called Dr. Raymond Thoma, who attended her at home. When the doctor called she was very sick to her stomach and nauseated. On the following day her face and forehead broke out and she had dysentery. She was nauseated continuously until February 10th. She could not do her housework and had to remain in bed most of the time. She felt dizzy. The only thing she could eat was toast and tea. She tried to drink orange juice and it made her sick. On February 10,1940, she visited the doctor at his office. She was quite sick for 18 days. The first week of her illness was the worst. She saw Dr. Thoma about her illness on the average of once every two or three months up to the time of the trial, which began on June 10, 1941. He' gave her medicine and treatments for her nerves. He also gave her “shots in the arm” for her nervous condition. . Prior to February 2, 1940, she had never been sick from drinking Coca Cola. She testified that she became-sick “right away after I tasted the Coca Cola.” She did not become sick until she drank from the contents of the Coca Cola bottle. She had not suffered from any stomach trouble before. On cross-examination, she was asked as to what her doctor told her, and she answered, “he told me that the Coca Cola did make me sick.” The bottle was admitted in evidence and contained the metallic base of an automobile electric light bulb. Another bottle of Coca Cola opened by the druggist at the same time, tasted “all right.” The testimony of the druggist, David Levy, corroborated that of plaintiff. He testified that he drank from the bottle; that after drinking from it he became sick and had to take a dose of milk of magnesia; that he vomited; that he saw in the Coca Cola bottle from the contents of which plaintiff and himself had been drinking, part of an electric light bulb; that he kept the bottle of Coca Cola with the foreign substance in it from the time of the happening of the accident until about two weeks before the trial, when he delivered it to her for use in the trial. Counsel for plaintiff stated that the attending physician, Dr. Thoma, would testify. He did not arrive and the case was submitted to the jury without his testimony. Defendant introduced Henry A. Dirk-sen, who has been superintendent of its plant for 15 years. He testified that he is and was in complete charge in February 1940 of all the bottling operations of defendant. With the aid of pictures he described how Coca Cola is bottled and what precautions are taken to guard against foreign substances. He testified that the coloring used in Coca Cola is burnt sugar; that in the bottling of Coca Cola charged water is put into the bottle, which was charged with CO2 gas; that the empty Coca Cola bottles are refilled; that the empty bottles arrive at the plant containing cigarette stubs, matches, pencils, paper wadded into the bottles, and other things; that the bottles are placed in an automatic bottle washer in the condition in which they are received at the plant and the aforementioned articles are washed out by this machine. He further stated that as the bottles leave the washer an employee inspects them at the rate of 8400 per hour; that the inspector discards broken bottles; that if the inspector should miss something in the bottle, there is no one else to catch it before it is bottled, and that each individual bottle is not inspected after it is filled.

The jurors had before them the undisputed testimony that plaintiff had been drinking a bottle of Coca Cola in Levy’s Drug Store almost every day for three years; that she never became ill from drinking such Coca Cola; that she had enjoyed good health; that on February 2,1940, she became ill after drinking a bottle of Coca Cola; that the druggist observed that she became ill; that he also drank from the contents of the same bottle and that he became ill; that the Coca Cola had a metallic taste; that the bottle contained the metallic base of an automobile electric light bulb; that she started to go home and vomited; that the druggist also vomited; that she went home and took to bed; that she was attended by a physician that evening; that she was nauseated for a considerable period of time; that she had dysentery; that she suffered from headaches; that her face broke out and that she was suffering from the same complaint at the time of the trial. The testimony of the druggist corroborated that of plaintiff. He testified that he purchased all of his bottled Coca Cola from defendant and that the empty bottles were returned to defendant. Defendant introduced the testimony of its plant superintendent, who exhibited photographs showing the operation of cleaning, sterilizing and bottling. From his testimony it appears that bottles returned to be refilled frequently contain foreign substances. These bottles are placed in an automatic washer and pass before an employee who inspects them at the rate of 8400 an hour. He discards broken bottles. Should he miss seeing a foreign substance in a bottle, there is no one else to catch it before it is bottled. The bottles are again inspected after they are filled, but each bottle is not individually inspected.

Defendant cites the case- of Rotche v. Buick Motor Co., 358 Ill. 507, for the proposition that the mere fact that an accident resulting in an injury has occurred, does not authorize a presumption or inference that the defendant was negligent, and that the burden is upon the plaintiff to prove by competent evidence that defendant was guilty of negligence. Defendant leans heavily on the case of Bowman v. Woodway Stores, 345 Ill. 110. We are of the opinion that the two cases relied on by defendant are not applicable to the factual situation before us. The testimony of plaintiff and the pharmacist shows that her illness was caused by the contents of the bottle of Coca Cola. This bottle contained in addition to the Coca Cola, the metallic base of an automobile electric light bulb. The jury had a right to infer that the metallic taste which sickened plaintiff was caused by this foreign substance. Mr. Levy’s testimony establishes that the bottle of Coca Cola was purchased from the defendant. Defendant knew that it would be resold to the general public. While Dr. Thoma did not testify, the record shows that in answer to a question propounded by counsel for the defendant, plaintiff stated that “he [Dr. Thoma] told me that the Coca Cola did make me sick.” While this was hearsay, it was brought out by the defendant and the jury had a right to consider it. We are satisfied that the testimony presented a question of fact for the jury.

Defendant also complains that the court erred in refusing to instruct the jury that “while the law permits a plaintiff in a case to testify in her own behalf, nevertheless the jury have a right in weighing her evidence and determining how much credence is to be given to it, to take into consideration the fact that she is the plaintiff and that she is interested in the result of the suit. ’ ’ Defendant argues that this instruction should have been given, particularly in view of the fact that plaintiff’s testimony was supported only by the testimony of the druggist. Plaintiff calls our attention to an instruction which she asserts covered the substance of the refused instruction. This instruction reads: “However, you may consider the number of witnesses testifying on either side of any fact or issue; the interest or bias of any witness as a party to the suit or otherwise; the appearance and demeanor of the witness while on the stand, and the probability or improbability of their testimony.” The part of this instruction which tells the jurors that they may consider the interest or bias of any witness as a party to the suit or otherwise, is substantially the same as the instruction requested by defendant. We agree with plaintiff that the instruction last quoted informed the jurors that they could consider the interest or bias of the plaintiff, and that this instruction was substantially the same as the one tendered by the defendant. Therefore, the refusal to give the instruction tendered by the defendant did not constitute error.

For the reasons stated, the judgment of the superior court of' Cook county is affirmed.

Judgment affirmed.

Hebel and Kiley, JJ., concur.


author: Mr. Justice Hebel

text:
    Florence Aaron, Plaintiff, v. Mary Dausch et al., Defendants. Mary Dausch, Cross Plaintiff and Appellant, v. Florence Aaron et al., Cross Defendant and Appellees.
    Gen. No. 41,674.

      Opinion filed March 18, 1942.
    John A. Cooke and Irving G. Zazove, both of Chicago, for appellant.
    Arthur J. Goldberg, of Chicago, for certain appellee.
    Ira S. Kolb, of Chicago, for certain other appellee.
    Kirkland, Fleming, Green, Martin & Ellis and A. Edmund Peterson, all of Chicago, for certain other appellee; Andrew C. Hamilton and A. Edmund Peterson, both of Chicago, of counsel.
    Benjamin Robert Cohen, of Chicago, for certain other appellees; Saul H. Friedman, of Chicago, of counsel.
    Tannenbaum, Polikoff & Schmidt, of Chicago, for certain other appellees; Julius A. Poliicoff, of Chicago, of counsel.
    Hjrsch E. Soble, of Chicago, for certain other appellees.
    Nathan Schwartz and Kargman & Kargman, all of Chicago, for certain other appellees.
   Mr. Justice Hebel

delivered the opinion of the court.

This is an appeal by the cross plaintiff from an order of the superior court entered December 3, 1940, striking cross plaintiff’s second amended counter claim and dismissing cross plaintiff’s action, and for costs against cross plaintiff in favor of each of the cross defendants who are appellees here. ,

On May 7, 1940, a complaint was filed by Florence Aaron to foreclose a trust deed dated October 8, 1930, conveying certain real estate to Chicago Title & Trust Company to secure an indebtedness of Mary Dausch, in the sum of $8,500. Mary Dausch, a defendant, filed her appearance and answer, with a counterclaim. Her answer and counterclaim were stricken on motion and an amended answer was filed July 9, 1940. Her amended counterclaim was filed July 27, 1940. On September 17, 1940, Mary Dausch was granted leave to make additional defendants to the counterclaim, and for summons to issue and leave was also granted to file her second amended counterclaim.

The second amended counterclaim alleged in substance that Harry A. Lip sky, Seymour W. Schiff, Barney Linenthal, Barnett Faroll Isadore Ossey, Benjamin J. Schiff, Jacob Glassman, A. Oswianza, I. B. Ury, George Skurow, and S. Jesmer, acting as a bondholders ’ committee, were stockholders, officers, and employees of Schiff Trust & Savings Bank, in August 1928, and that said bank made real estate loans in Chicago, secured by first and second mortgages, in which said bank was named as trustee; that on or about August 14, 1928, Mary Dausch, a widow, obtained a loan from said Schiff Trust & Savings Bank and executed a trust deed conveying premises then owned by her and located at 651-55 Melrose avenue, Chicago, to said bank as trustee to secure the payment of a large number of notes executed by her at the request of the agents and employees of said bank; that there was a fiduciary relation existing between her and said bank and she had implicit faith and trust in all the bank’s employees, and signed all documents, trust deeds or mortgages necessary to finance the building owned by her. It was alleged that said bank sold real estate gold bonds on a large number of buildings including that owned by cross plaintiff and retained a list of the owners of the bonds sold by the said bank; and that thereafter the bank closed in the latter part of 1929, and immediately thereafter the heretofore mentioned persons designated bondholder’s committee, former officers and employees of the bank, devised and conceived a scheme to obtain large fees through wholesale foreclosures, and to obtain title to the real estate upon which said bank had made loans. This second amended counterclaim charges a large number of acts to have been done in furtherance of the alleged scheme to obtain title to properties and to deprive the bondholders of the value of their bonds.

The cross plaintiff in effect charges in her second amended counterclaim that she, as owner of the property in question, having faith and confidence in the officers and employees of the Schiff Trust and Savings Bank, accepted their offer to act as her fiduciary in financing her building in 1928; that the bank officers undertook to issue and sell real estate bonds on her building, and the bank became trustee in the trust deed given to secure their payment; that before default the bank was trustee for her, and, therefore, a confidential relationship existed; that she was ready, willing and able to meet her payments; that the bank failed in 1929, and the Schiff bondholders’ committee was organized to create defaults and bring about foreclosures so that the individual members and their affiliates could buy up bonds at a discount, squeeze out nondepositors, buy in the property cheap, and by getting the title of the equity owner, could purchase at a noncompetitive bid; that they organized a side company to represent owners, and other affiliates to manage properties foreclosed by them, and operated a sort of ‘1 shell game” on bondholders and equity owners, through friendly attorneys of their selection, so that they could discourage bondholders and owners through prolonged and confused litigation in which “they held the reins of each adversary’s chariot in the sham battle for fees and for the income and property.”

The cross plaintiff charges that cross defendants not only conspired to, but did carry out their plans and scheme to deprive her of her property; that they did it by pretending to act for her; that they had a bondholder file a foreclosure suit on a first mortgage bond; that they had cross plaintiff, an old woman of sixty-eight years of age, placed in possession and management of the property; that they advised her to use the funds to buy up bonds; that they pretended to assist her, but bought up bonds at a low price and sold them to her at a high price; that she was thereby led by them to place herself in a position where she could not meet her interest and principal payments; that they did it to cause her to create a default so they could declare a default and accelerate the maturity of the issue; that the Chicago Title and Trust Company, and the various attorneys who represented cross plaintiff, aided and abetted the cross defendants connected with the Schiff bondholders’ committee and its affiliates to carry out the scheme, and thereby became parties to the fraud and conspiracy; that various steps were taken in the perpetration of the fraud, which included the foreclosure of a second mortgage, while the first mortgage foreclosure was pending in another court, so as to squeeze out the cross plaintiff’s equity of redemption before a sale was made on the first mortgage foreclosure; that by such means a sale of $20,000 was voluntarily set aside, another for $18,000 was voluntarily set aside, and a final sale was approved to a nominee of the committee for $13,500, after a long delay, which caused interest to accumulate, and fees to multiply, resulting in a very large deficiency decree against cross plaintiff, all because she refused to accept their offer to purge her of a trumped up charge of contempt, and to give her two years’ free rent for a quitclaim deed.

Cross plaintiff contends that if her second amended counterclaim is insufficient because the allegations are vague, indefinite and uncertain — as contended by cross defendants — then the court should have permitted a further amendment to supply the particulars required. The cross defendants, who filed motions to strike, contend that the second amended counterclaim is insufficient in law to state a cause of action; is vague, indefinite and uncertain; that it seeks to collaterally attack foreclosure decrees, and that- no proper measure of damages is alleged.

Cross plaintiff’s theory is that the cross defendants have entered into a conspiracy to cheat and defraud her, and that, if the allegations sustain the charge, either by facts directly alleged or by circumstances and the inferences reasonably deducible therefrom, then the court erred in striking the counterclaim, dismissing the case and rendering judgment against the cross -plaintiff. The law in this State is that a conspiracy between defendants to defraud a person of her real estate may be proven by facts and circumstances surrounding the parties at the time of the transaction, and that all persons who aid or advise in the commission of a fraudulent act by another, or who approve of it after it is done for their benefit are liable in the same manner as they would be had they themselves performed the same act. Miller v. John, 208 Ill. 173.

One of the questions called to the attention of this court is that it was argued in the trial court that the counterclaim should be dismissed because it could not be properly filed in the foreclosure suit. It would appear that section 38 of the Civil Practice Act [Jones Ill. Stats. Ann. 104.038] clearly permits the filing of such a counterclaim in a suit to foreclose a mortgage, as was held in State Bank of St. Charles v. Burr, 372 Ill. 114. In that case the Supreme Court held that a judgment obtained by the defendant mortgagor on a counterclaim filed in a foreclosure suit may, in the foreclosure decree, be set off against the mortgage indebtedness, and such action does not amount to the entry of an unconditional personal decree against the mortgagor before sale. Therefore, under this decision, the cross plaintiff seems to be supported in her contention that she may recover any amount established by the evidence under her counterclaim in this action which may be due her on the facts alleged.

Cross defendants in their motions to strike seek to apply to the counterclaim the common law test of sufficiency. Cross plaintiff cites Anderson v. Biesman & Carrick Co., 287 Ill. App. 507, and point out that in that case the court said that there has been a steady effort in this State to get away from the so-called technicalities of common-law pleading. The conclusion argued for by cross plaintiff is that her counterclaim should be tested not by the technical rules applied under the common law but by the inquiry as to whether or not the direct allegations of fact pertaining to her cause of action are such that the law infers the legal conclusion from such direct statements.

It is urged by the motions to strike the counterclaim, that certain allegations are not sufficiently specific to inform the cross defendants of the nature of the wrongs charged against them. The counter plaintiff suggests that this proposition is answered by the courts wherein they say that it is not necessary to allege evidence and that the pleading of ultimate facts is all that is necessary, citing Western-United Dairy Co. v. Nash, 293 Ill. App. 162, and Carlton v. Smith, 285 Ill. App. 380.

When we come to consider these motions to strike we must consider them the same as a demurrer prior to the Civil Practice Act. Under the Civil Practice Act a motion to strike serves the purposes of a special demurrer and all facts well pleaded are taken as admitted to be true. (New York Life Ins. Co. v. Schlieper, 284 Ill. App. 411.) As we understand it, the law by which we are to be governed in the instant case is that the general demurrer has been abolished and a general motion to dismiss because of failure to state a cause of action is not sufficient. As authority for this proposition, the case of Anderson v. Olsen, 293 Ill. App. 637 (Abst.), has been cited. We have examined the record for the purpose of determining whether the several motions of defendants set forth the several grounds upon which they seek to dismiss the second amended counterclaim, and are of the opinion that the court acted properly in determining the questions such as were called to the court’s attention by these several motions.

There seems to be a further question that was before the court and that is whether a fiduciary relationship is created when one becomes a trustee in a trust deed. In determining whether such facts are alleged to show a fiduciary relationship, it is necessary to consider what situation creates a fiduciary relationship. In the first place the trustee named in a trust deed acts for both the mortgagor and the bondholders, and until default it is the trustee for the mortgagor. Prom an examination of the counterclaim we find the allegations that in August 1928, some of the cross defendants named were stockholders, employees, officers and directors in charge of the supervision and management of the Schiff Trust & Savings Bank; that the bank was then in the business of making real estate loans secured by trust deeds on property, in which trust deeds the said Bank was named as Trustee; and that on August 14, 1928, cross plaintiff negotiated a loan through said bank, and signed and executed a trust deed conveying her premises as indicated in this opinion to said bank as trustee to secure the payment of certain notes or bonds executed by her at the request of the bank, its agents and employees. It is contended by counter plaintiff that those allegations are direct and of sufficient nature under the law to create a fiduciary relationship, because until default the bank, acting through its officers, which is named as trustee in the trust deed, was the trustee for the mortgagor who is the cross plaintiff in this case. Cross plaintiff in her counterclaim repeatedly alleged the motives and purposes with which various acts, otherwise lawful, were done. Such allegations would seem to be only conclusions, and subject to condemnation by the general rule that a mere averment that an act was done with a certain purpose or intent, without a statement of the facts showing such purpose or intent, is a conclusion of law. It is essential that the facts and circumstances, which constitute the alleged fraud, collusion or conspiracy, should be set out clearly, concisely, and with sufficient particularity to apprise the opposite party of what he is called upon to answer. (Felt v. United States Mortgage & Trust Co., 231 Ill. App. 110.) Our attention has been called to Dean v. Kirkland, 301 Ill. App. 495, where this court said:

“It is well established, however, that ‘Bad motive, by itself, then, is no tort. Malicious motives make a bad act worse, but they cannot make that a wrong which in its own essence is lawful. An act which does not amount to a legal injury cannot be actionable because it is done with a bad intent. Where one exercises a legal right only, the motive which actuates him is immaterial’.” We are of the opinion that cross plaintiff comes within this rule and that her allegations should set up facts justifying the conclusion of fraud and conspiracy for which she contends. (Doose v. Doose, 300 Ill. 134.)

With reference to cross plaintiff’s contention that she has sufficiently alleged a fiduciary relationship between the Schiff bank and its employees to her, it appears, as stated in this opinion, that her allegations are that at the time of the execution of the trust deed, there was a fiduciary relationship existing, and that she had faith and trust in all of the bank’s employees. The mere allegation of the existence of a fiduciary relationship has been expressly held to constitute a mere conclusion, and a mere assertion of faith and trust in numerous persons is insufficient. However, even if the allegation were sufficient, the existence of a fiduciary relationship at the time of the execution of the trust deed, does not imply a continuance thereof after the bank closed in 1929, and after she defaulted, and after Chicago Title & Trust Company became successor trustee in 1933.

Counter plaintiff alleged in her counterclaim that when she was served with summons in the first mortgage foreclosure, she was instructed by cross defendants to employ counsel, and that she did employ Lavin, who on April 14, 1933, filed her answer. He remained her attorney until October 4,1939'. Contrary to her brief, she does not allege that these or the other cross defendants had anything to do with her choice of Lavin or that they even knew Lavin at that time. She makes no charge that Lavin was disloyal to her, until November 1938, when, she alleged, he was allowed a fee by the court without opposition. Having had her own attorney, if she depended on cross defendants and took their advice for this intervening five-year period, she is not in a very good position to complain of her own so-called imprudence. She further alleges that the misconduct of cross defendants placed her in a position where she was unable to meet her. obligations, but no facts are alleged or stated. If the payment of $1,000 to purge herself of contempt, and the voluntary turning over of some bonds (the amount of which is not alleged), and the payment of some attorney’s fees and printing bills (the amounts of which are not alleged) reduced her to a position of default, then she was never in any other position. It appears from the record that she failed to allege the amount of the first mortgage, or of the amount due thereon, although said amounts ran into large figttres. She alleged that she was ready, able and willing to meet her obligations, but failed to allege what they were, or that she ever made a tender. She alleged that although she “continued to make her payments to the cross-defendants, she was served with a summons.” What payments? When? Did she instruct her own counsel Lavin to defend the first mortgage foreclosure on the ground of payment? She did not so allege, and the decree in that cause on May 10, 1934, must have then found her in default.

It appears that a number of cross plaintiff’s contentions regarding alleged “deceitful practices indulged in by cross-defendants to defraud cross-plaintiff of her property” are not alleged in her counterclaim as itemized in her brief, or are not alleged with sufficient facts and particularity to justify or necessitate the cross defendants meeting the issue by evidence on those questions. It does appear that she makes the sweeping allegation that the alleged acts of any one or more of the cross defendants were all done with the “acquiescence and approval” of each and all the cross defendants, hoping thereby to include them all in the alleged conspiracy, but the mere knowledge, acquiescence, or approval, without intentional participation, is not enough to constitute one a party to a conspiracy. (Tribune Co. v. Thompson, 342 Ill. 503.) Nowhere does cross plaintiff allege the amount of the bonds that the committee really represented. In order for them to have had an effective voice in her property affairs, they should have represented at least a majority of the bondholders. As suggested by cross defendants, she made no allegation in that regard, probably knowing the actual fact.

Under the well-established rule that decrees and orders import verity, it is our opinion that, so long as the decrees and orders in the prior cases stand, cross plaintiff cannot be permitted to recover for the alleged conspiracy, the purpose of which according to her charge, was to bring about the entry of said decrees and orders. (Keithley v. Stevens, 238 Ill. 199; Duffy v. Frankenberg, 144 Ill. App. 103.)

Furthermore, the superior court has no authority to exercise a revisory jurisdiction over the decree or orders of the circuit or federal courts (Simmons v. Hefter, 308 Ill. 292), and that is in effect what cross plaintiff was asking it to do in the instant case.

Although cross plaintiff, according to her own allegation, realized on October 19, 1938, that she had been imposed upon and that the cross defendants were all engaged in an effort to obtain the property, she not ■ only did nothing about it, but she continued to deal with said parties. Most of the things complained of, allegedly occurred after said date. Under such circumstances, it would appear that she has waived any such claims as she now seeks to assert. Until October 19, 1938, she was in possession of the property and apparently satisfied. On that date, however, a receiver was put in and she was removed, two days after she had paid over $1,000 to purge herself of contempt of court. It appears from the briefs of cross defendants that in the light of those alleged matters, the same prudence that inspired her to do something now, should have impelled her to do something on, or within a reasonable time after, October 19, 1938. The law required her to apply to the courts for relief at the earliest opportunity after the discovery of the alleged fraud. She not only did not do so, but continued to deal with the parties who to her own knowledge were allegedly trying to defraud her. Under the circumstances, she will he deemed to have been at fault herself and to have waived any such claims as she now seeks to assert. (Milwaukee Commercial Bank v. Bennett, 249 Ill. App. 456; Rogers v. Higgins, 57 Ill. 244; Knaus v. Chicago Title & Trust Co., 365 Ill. 588.)

It is urged that the cross plaintiff cannot now complain of the contempt proceeding. She did not allege what the contempt petition alleged against her, or what her defense thereto was. She alleged by way of conclusion, that the cross defendants knew that she was not in contempt of court. She further alleged that she was “instructed to go out and borrow money to purge herself of the contempt by raising $1,000 ‘which money was used by her in managing the building’, and on October 17, 1938, she did pay over the sum of $1,000 as of her requested in an effort to purge herself of contempt of court.” She does not allege to whom she paid the money. It is not clear what is meant by “which money was used by her in managing the building,” unless perchance she meant that she was accused of misappropriating $1,000, and that she actually used it in managing the building. She failed to allege, in addition to malice, a successful termination of the contempt proceeding suit in her favor and want of probable cause, both necessary for a cause of action for malicious prosecution. The allegation of the foregoing $1,000 payment is, itself, evidence of probable cause for the contempt proceeding. (Schwartz v. Schwartz, 366 Ill. 247.) It appears that she did not attempt to state any facts which would justify her in making this a part of her record.

There is a charge of fraud made against Wool and Seymour Schiff in connection with the alleged sale of the bonds to her. Cross defendants suggest that this charge is entirely insufficient, and is not a proper counterclaim here. When we come to examine the allegations in this regard, we find that they are nothing but conclusions. (Doose v. Doose, 300 Ill. 134.) She should have known and alleged specific facts, figures, and dates. She does not allege that she relied and acted upon the alleged misrepresentations. She was represented by Lavin, and presumably relied upon him, since there is no allegation that he was disloyal then. Her charge was so vague and indefinite that Wool and Seymour Schiff could not be apprised of the nature of the claim which they were called upon to meet. Furthermore, in our opinion it is not the proper subject matter of counterclaim, because neither Wool nor Seymour Schiff were parties to the complaint' filed herein. (Countiss v. Whiting, 306 Ill. App. 548; section 38 (1) Civil Practice Act [Jones Ill. Stats. Ann. 104.038].) The charges of fraud and conspiracy against Lavin and Devoe are likewise insufficient if taken without the conclusions alleged. They are not specifically charged with intentional participation in the alleged conspiracy, except perhaps by way of conclusion, and even then they are sometimes charged with intent and neglect in the same statement. Likewise, the claim against them is not the proper subject matter of counterclaim in this case. (Countiss v. Whiting, supra.)

Cross plaintiff sought leave to file a third amended counterclaim, which the court denied. A party is not entitled as of right to file an amended pleading, and a party so desiring should prepare and submit such proposed amendment to the inspection of the court. It is not error to refuse to allow an amendment which is not presented and where there are no means of determining whether the amendment will be a proper and sufficient one or not. (Dilcher v. Schorik, 207 Ill. 528; Dean v. Kirkland, 301 Ill. App. 495.) By an order of court, cross plaintiff was ruled to, and did, swear to her second amended counterclaim. In the case of sworn pleadings, greater caution has always been exercised by our courts, and the rule stated above has been more stringently enforced. As suggested by cross defendants, there is no hardship in requiring a party who has already had three opportunities to place on file a proper pleading, and who is invoking the discretion of the court, to present with her application for leave the amendments proposed to he made, or otherwise apprise the court of what they are, so that the court may intelligently determine the propriety of allowing or disallowing them.

For the reasons stated in this opinion, the judgment of the superior court is affirmed.

Judgment affirmed.

Burke, P. J., and Kiley, J., concur.