text:
    Heitman Trust Company, Appellee, v. Harry Lanski et al., Defendants. Appeal of Columbus Park Hotel Building Corporation, Appellant.
    Gen. No. 37,384.

      Opinion filed June 11, 1934.
    H. J. Rosenberg, for appellant; Samuel Jastromb, of counsel.
    Berger & Newmark, for appellee; Lawrence S. New-mark and Gerald G. Bolotin, of counsel.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.

This appeal is by the Columbus Park Hotel Building-Corporation from an order entered November 3, 1933, which dismissed its petition for want of equity. The facts are not in dispute. May 9, 1933, the Heitman Trust Company as trustee filed its bill to foreclose a trust deed executed July 15, 1928, conveying to complainant trust company certain premises in the City of Chicago, county of Cook, to secure an issue of bonds to the aggregate amount of $165,000. The trust deed was executed and delivered by Harry Lanski and Anna Mae Lanski, his wife, the then owners of the premises. The bill alleged that default had been made in the payment of the bonds, taxes and assessments; that the premises were located at 311-313 North Central avenue and are improved by a three-story brick building containing 105 rooms, operated as a hotel building and rented from day to day and from week to week to transient tenants; that these premises were scant and meager security for the protection of the indebtedness and did not exceed $102,000 in value, which was much less than the total indebtedness secured by the trust deed. The bill prayed for the appointment of a receiver and for the foreclosure of the trust deed. The bill was duly verified and a copy of the trust deed which contained numerous covenants was attached to the bill and made a part of it.

May 19, 1933 (due notice having been served) on motion of the trustee, an order was entered finding that the trust deed pledged the rents, issues and profits of the premises as additional security, and that the premises were scant and meager security for the protection of the indebtedness, and adjudging that a receiver be appointed of the real estate and of its rents, issues and profits. The order directed that the grantors and all persons claiming through them should attorn to the receiver; that the receiver might have power to make leases of the real estate as he might from time to time deem advisable, to make necessary and needful repairs, subject to the approval of the court, to pay taxes and redeem the premises from tax sales, and that he be vested with the general powers of a receiver in chancery. No appeal was taken from this order, nor does the record indicate that any objection was made to the entry of it.

May 25th the Columbus Park Hotel Building Corporation, the owner of the equity, filed its petition, setting up these former proceedings and stating in substance that the premises were improved with a three-story building and high basement, containing approximately 102 hotel rooms; that petitioner had been conducting the business of a hotel on the premises for a period of four years and was in exclusive possession of the premises, other occupants being its guests; that it owned the furniture and equipment and all personal property necessary for the proper conduct of the business in which it had invested approximately $25,000; that it had a trained organization familiar with the operation of a hotel; that the sums paid by guests for services rendered included not only compensation for the use of that portion of the premises occupied by such guests but alsq for services rendered to them as guests; that it desired to continue to operate the business of the hotel upon the premises and was willing to pay a reasonable commercial rental; that it believed such sum to be $500 a month plus one-third of the gross income in excess of $2,500, which it offered to pay to the receiver as such commercial rental for the premises, or such sum as the court might deem proper after a hearing; that the premises were not susceptible of successful operation except as a hotel; that the receiver had no authority, right or power to do anything with the premises other than lease the same for such purpose for the reason that he was receiver ££ solely of the res, consisting of the building upon the premises involved herein,” and that in order to successfully operate a hotel upon the premises it was necessary that the receiver have the personal property and equipment then upon the premises, in which he had no right, title or interest of any kind; that such personal property was in no way subject to the lien of the trust deed and it was impractical and impossible for the receiver to obtain the personal property necessary for the proper operation of the hotel upon the premises; “that the conduct of a hotel is a highly hazardous and speculative commercial enterprise which the receiver has no authority in law to conduct, and which the court in the foreclosure of the trust deed involved in this cause has no authority to confer upon such receiver ’ ’; that in view of all the conditions the best interests of all the parties would be preserved by permitting the petitioner to operate the business and to pay a reasonable rental; that upon the qualification of the receiver, petitioner made known its position by written communication (which is set up in full in the petition) and that thereafter it was decided the issues raised should be submitted to the court for decision by presentation of the petition.

The petition requests that pending its hearing the receiver should be instructed to desist from disturbing the guests of the hotel by service of notice, etc.; “that upon a hearing hereof it may be adjudged and decreed that your petitioner is the owner of the premises involved herein and is operating thereon a hotel which constitutes a hazardous and speculative enterprise, and that the said premises for its highest and best use should be operated as such hotel; that it may be further adjudged and decreed that the receiver has no power or authority in law to conduct such enterprise upon the said premises, and that your petitioner should be permitted to continue in the operation of such hotel business upon said premises upon paying a reasonable commercial rental therefor to said receiver.” The petition also prays for other relief and is duly verified.

The trustee in its answer admitted the allegations as to the construction of the building and possession, denied knowledge of the ownership of the personal property, denied that $500 a month plus one-third of the gross income in excess of $2,500 was reasonable rental, alleged, on the contrary that it was grossly unfair, denied that the receiver was without authority, right or power to do anything with the premises other than to lease the same, asserted that it was not only receiver of the res but also of the furniture and equipment, denied that it was without right, title or interest to any of the personal property; asserted that the personal property was subject to the lien sought to be foreclosed, denied that it was practically impossible for the receiver to obtain personal property necessary for the proper operation of the hotel upon the premises, and denied that the operation of a hotel was hazardous and speculative and that it was without authority at law to conduct such enterprise as alleged; averred that the original loan was for the purpose of constructing the hotel building and that for the protection of the owners of the bonds the grantors had covenanted under article 18 of the deed, as follows:

“Article 18. The party of the first part and for their heirs, administrators, executors or assigns, do hereby agree immediately upon the erection of the building, to completely furnish the building erected or to be erected upon the premises hereinabove described, and to keep the same so completely furnished until this trust deed shall be duly released, so that said building during all such time may be operated furnished, or as a furnished hotel or apartment hotel.”

The answer alleged that the grantors were bound by the terms of the trust deed to keep the building completely furnished until the trust deed was duly released, so that the building would be operated as a furnished hotel or apartment hotel; that by reason of this provision the receiver was not only receiver of the building but of the equipment and furniture placed in the building by the makers of the trust deed; asserted that after the appointment of the receiver, petitioner refused to deliver possession but insisted that the receiver enter into a lease and that the receiver did not obtain possession until May 25, 1933, when after hearing before the court possession was turned over to the receiver; that the receiver had therefore been in possession of the premises only 10 days and had not had sufficient opportunity to determine its actual rental value. The answer also denied the operation of the hotel was so highly hazardous as to prevent the receiver from operating for a reasonable period of time to determine its reasonable rental value and determine whether any other offer could be obtained; and set up that there had been a default in general taxes levied on the premises for the year 1928 and subsequent years, and that the general taxes then due exceeded $12,000; that under the terms of the Skarda bill receivers might be appointed to operate hotel apartments and any and all properties for the sole purpose of collecting the income therefrom and using the income to reduce and pay the taxes due upon the premises. The trustee asked the prayer of the petition be denied.

Upon a hearing of the petition and the answer, the order appealed from .was entered.

Appellant has submitted a brief and has been heard in oral argument against the order. Although other cases are cited, reliance is placed upon Whitley v. Challis, 1 Ch. (Eng.) 64 (1892), a case clearly distinguishable in that there the bill was not brought to foreclose a trust deed or mortgage, but rather the suit was based on an agreement by which one of the parties orally agreed to execute a valid mortgage which would be in such form and contain such powers, covenants and provisions as the solicitor or counsel of the mortgagee should require. The mortgage was in fact never executed, although a hotel was built upon the premises and a hotel was conducted on these and adjoining premises not subject to the agreement. The mortgagee brought an action for sale or foreclosure and a receiver was appointed. The order appointing the receiver provided that he should also “manage the business carried on upon the said premises.” The appeal was brought for the purpose of having this part of the order stricken out. Lord Justice Lindley pointed out that the solution of the question depended upon what rights the mortgagee got as security, said that he did not have a legal mortgage; he had only an agreement for a mortgage and that agreement was the measure of his rights. The court was of the opinion that under the circumstances the oral agreement to make a mortgage did not include the conveyance of the good will and business of the hotel; and it was held that the court was without power to appoint a receiver for the business upon the facts disclosed. It is apparent that the main question raised by the petition in this case was not involved there, namely, whether the operation of a hotel is so highly hazardous and speculative that a court is without authority or power to authorize a receiver to conduct a business of that kind. The trustee contends (plausibly) that while the case below was brought by petitioner upon that theory, such theory has been abandoned by him in this court. This, of course, petitioner has no right to do. Chicago v. University of Chicago, 228 Ill. 605 ; Levy v. Standard Plunger Elevator Co., 296 Ill. 295. Whether or not a court of chancery may authorize receivers to operate a hotel business or any other business depends upon the circumstances of each particular case. It may be conceded that ordinarily the power to permit a receiver to carry on any business ought to be exercised with great care and caution. Chicago Title & Trust Co. v. Arnold, 268 Ill. App. 450; Makeel v. Hotchkiss, 190 Ill. 311; First Nat. Bank of Sam Francisco v. Detroit Trust Co., 248 Fed. 16. The question is ordinarily one which concerns a purely administrative duty and is not the proper subject of appeal unless abuse of discretion is shown. Mercantile Trust Co. v. Farmers’ Loan & Trust Co., 81 Fed. 254; Rockwell Lime Co. v. Schlegel, 270 Ill. App. 598. Here, under section 18 of the trust deed, we think the court was not without power to grant to the receiver the control of the personal property and temporarily, at least, to authorize him to carry on the business of conducting a hotel upon the premises. Section 18 of the trust deed grants to the trustee the express power to do this for the purpose of securing the debt due to the bondholders who furnished the money by which the construction of the hotel building was made possible, and the owners by express covenant agreed “to completely furnish” the building erected “and to keep the same so completely furnished until this trust deed shall be duly released, so that said building, during all such time, may be operated furnished or as a furnished hotel or apartment hotel.”

We hold that this article must be construed to grant the right to operate a hotel upon the premises until such time as the trust deed may be released. The powers of a receiver appointed by the court certainly would not be less than those of the trustee named in the trust deed. If the article should be construed not to expressly grant such right, the right would necessarily be implied. Peek v. Trinsmaran Iron Co., 2 Chan. Div. 115; Campbell v. Lloyds, Barnetts & Bosanquets Bank, 1 Chan. Div. 136 (1891); Glouchester Banking Co. v. Budry Merthyr Coal Colliery Co., 1 Chan. Div. 629 (1895); In re Leas Hotel Co., 1 Chan. Div. 332 (1902).

For the reasons indicated the order is affirmed.

Affirmed.

O’Connor and McSurely, JJ., concur.


source: Caselaw Access Project

author: Mr. Presiding Justice Matohett

license: Public Domain

text:
    In re Estate of Maria Turner, Deceased. Appeal of Ferdinand W. Penn et al., Appellants, v. Mary Fletcher Brammer et al., Appellees.
    Gen. No. 37,440.
    Opinion filed June 11, 1934.
    Ellis & Westbrooks, Blaine Gr. Alston, De Frantz R. Williams and Claude W. B. Holman, for appellants ; Richard E. Westbrooks, of counsel.
    Leon Lecour Drolet, for appellees.
   Mr. Presiding Justice Matohett

delivered the opinion of the court.

This is an appeal by the executor and others from an order entered January 15,1934, by the circuit court of Cook county dismissing their appeal to that court from an order of the probate court of Cook county. The order of the probate court from which the appeal was prayed and allowed was entered July 14, 1933. This order vacated and set aside a previous order of the same court entered March 17, 1932. The order set aside purported to enter a table of heirship in the estate of Maria Turner, deceased, and found that said decedent left her surviving Joseph Offett, a maternal first cousin, as her only heir at law and next of kin.

The order of July 14th merely set aside the former order of March 17, 1932. It did not purport to make any affirmative determination with reference to who were or who were not the heirs of Maria Turner.

The order of the circiut court finds that the appeal of the executor and others was unauthorized in law and improper; that the circuit court was without jurisdiction of the subject matter, and that the appeal should be dismissed for that reason.

The motion to dismiss the appeal in the circuit court was made in behalf of Maria Fletcher Erammer and others (by their attorney) who are described in the order as “appellees.” They appeared for that purpose by their attorney. The executor contends, citing authorities, that since there is no showing in the record that these parties or any one of them have a legal interest as heir, legatee, creditor, etc., their attorney was without right to make a motion, and that it was therefore error for the court to entertain it.

However, the record shows, we think, a legal right in these parties to make the motion. It appears from a statement of the attorney for the executor and others who appealed that these opposing parties in whose behalf the motion was made, were petitioners in the probate court that they might be found to be heirs and next of kin of Maria Turner, and that their petition is pending and undetermined in the probate court. The appellees have a legal right to have that question heard and determined, afrd--therefore such interest in this litigation as would give them a standing to make the motion. Moreover, the order from which this appeal is prosecuted was entered upon the express finding by the circuit court that it was without jurisdiction of the subject matter of the appeal, and that is the actual question to be determined upon this record. If the court was (as it found) without jurisdiction of the subject matter, it would not make any difference whether any motion to dismiss was made or was not made. In that case jurisdiction could not be given even by consent (Conover v. Gatton, 251 Ill. 587), nor by estoppel (Elshoff v. Murray, 235 Ill. App. 488), nor by waiver {City of Aurora v. Schoeberlein, 230 Ill. 496; Peterson v. Peterson, 264 Ill. 121), and the - order might under such circumstances be entered upon the court’s own motion (Meeks v. Leach, 91 Ill.. 323).

The executor contends, citing Worsley v. Welch, 317 Ill. 90, and Healea v. Verne, 343 Ill. 325, that an appeal from an order determining a table of heirship is properly taken to the circuit court in cases where a freehold is not involved, and we agree that this is the law. In cases where the order entered is of such a nature that an appeal will lie, the procedure by which the probate court of Cook county determines the heirship of deceased persons is as provided for by statute. Cahill’s Ill. Rev. St. 1933, ch. 3, ¶ 148, act approved June 10, 1909. The jurisdiction thus conferred is exclusive, and the circuit court upon appeal may not inquire into any matter not first presented to and adjudicated in the probate court. Wahl v. Schmidt, 237 Ill. App. 372. Appeals from orders entered pursuant to-the jurisdiction thus conferred are provided for and regulated by the provisions of section 11 of the Probate Court Act. See Cahill’s Ill. Rev. St. 1933, ch. 37, ¶ 341, p. 937, which iu substance provides that appeals may be taken from the final orders, judgments and decrees of the probate court to the circuit court in all matters except certain proceedings therein excepted.

The foregoing seems to be conceded by the parties to this controversy, but the executor contends that the order from which the appeal here was taken is final and therefore appealable, while petitioners contend (and the circuit court found) that it was not final and therefore not appealable. This is the controlling question on the record. If the order from which the appeal is taken was a final order within the meaning of section 11 of the statute, then it was, as the executor contends, the duty of the circuit court to hear the matter de novo, and it was error for it to dismiss the appeal. The executor has cited authorities to this effect, which, we think it quite unnecessary to review. If the order entered was not final and appealable the circuit court was wholly without jurisdiction; and arguments of the executor to the effect that Judge Taylor of Effingham county was not eligible to act in Cook county; that the proper procedure in the probate court, if any party desired to have the order of March 17, 1932, vacated would have been to proceed by motion upon petition and hearing, and the further contention of the executor that the order which set aside this first finding violated the Constitution of the United States become wholly immaterial. All these questions are of interest only so far as they may possibly concern the nature of the order entered on July 14th as to whether it was final or interlocutory in its nature within the meaning of section 11 of the statute. Henry v. Flynn, 268 Ill. App. 220.

As already pointed out, section 11 expressly limits the right of appeal to orders, judgments and decrees final in their nature. Likewise, section 124 of the Administration Act (Cahill’s Ill. Rev. St. 1933, ch. 3, sec. 124, H126), which covers appeals from jurisdictions where the powers of probate courts have been exercised by the county court, has been construed as applicable only to final orders, although that statute does not by express words provide such limitation. Stevens v. Farrell, 71 Ill. App. 466; Van Sellar v. James, 113 Ill. App. 206. Also, in proceedings under section 14 of the Wills Act (Cahill’s Ill. Rev, St. 1933, ch. 148, sec. 14, If 16), although by the language of the act appeals are not specifically limited to cases in which final orders have been entered, it has been interpreted by the courts as including such limitation. Schofield v. Thomas, 226 Ill. 631, followed in Dean v. Deem, 239 Ill. 424. Likewise, the courts have interpreted section 68 of the Administration Act (Cahill’s Ill. Rev. St. 1933, ch. 3, sec. 68, If 69) in DeClerque v. Campbell, 125 Ill. App. 357, where one of the parties undertook to appeal from an order setting aside a former order allowing a claim against the estate. .

The executor contends with earnestness that this appeal is from an order final in its nature. In the first place, he says, the order of March 17th finding Joseph Offett to be the only heir at law and next of kin of Maria Turner, deceased, has been distinctly held to be an order final and appealable in its nature. He cites Young v. Fell, 221 Ill. App. 325; Henry v. Flynn, 268 Ill. App. 220; Sebree v. Sebree, 293 Ill. 228; Worsley v. Welch, 317 Ill. 90; Welch v. Worsley, 330 Ill. 172; Healea v. Verne, 343 Ill. 325; and he says that since the order of March 17, 1932, was appealable (and no appeal having been taken therefrom and the March term of the probate court having passed) the subsequent order of July 14, 1933, vacating that prior order was void and unauthorized. He cites to this point Chicago Title & Trust Co. v. Brown, 183 Ill. 42, and a large number of other cases, which in substance lay down the general rule that when in any court of law the term at which an order or judgment has been entered has passed, the court is wholly without jurisdiction to modify such order in substantial respects or to set aside the same.

We do not doubt that the order of March 17th which made an affirmative finding that Offett was the only heir was an appealable order, but that is a quite different question from the one raised as to whether a subsequent order which merely set aside this former order is or is not final in its nature. The rule as to judgments at law is that courts of law are without jurisdiction to set aside a judgment entered at a prior term of the court, but there are exceptions to that rule even in courts of general and superior jurisdiction. Burton v. Perry, 146 Ill. 71, 102; North Ave. Bldg. & Loan Ass’n v. Huber, 286 Ill. 375; 17 American & English Ency. of Law, 825-827. However, the jurisdiction conferred upon the probate court is special and statutory. There are no pleadings. Neither the parties nor the issues are defined with that precision necessary at common law. Concerning matters within its jurisdiction, the probate court exercises certain equitable powers. Moreover, the jurisdiction of the probate court over the estate of a deceased person is a continuing jurisdiction which remains with it until the estate is finally closed and distributed to the parties entitled to such distribution. Hodson v. Hodson, 277 Ill. 137; In re Estate of Fitzgerald, 272 Ill. App. 581.

A motion in the probate court to set aside a judgment or order entered at a prior term of the court calls for the exercise of these equitable powers of the court. The jurisdiction is not in its nature unlike that exercised by courts of general and superior jurisdiction where a motion is made to set aside a judgment entered by confession. In a certain sense therefore, it may be said that orders and decrees of a probate court entered prior to the final settlement of the estate partake somewhat of the nature of interlocutory orders, and this rule would seem to be particularly appropriate where, as here, the jurisdiction conferred by the statute grants power to make a determination or judgment which is only prima facie correct. The intention of the legislature in the enactment of the statute and the purpose for which the power was created are perfectly apparent. The reason for the rule which limits appeals in this class of cases to orders, judgments and decrees final and determinative in their nature is also apparent. As was said in Schofield v. Thomas, 226 Ill. 631:

‘ ‘ This court will not determine a case by piecemeal. Whether the probate court erroneously vacated its former order will not be determined by this court until the case has finally been determined below and the whole record is properly presented for review.” That case involved an order which set aside a prior order granting probate of a will upon a petition which alleged fraud in order that the application for probate should be reset for hearing. The court held that the order which set aside the former order was not determinative of any rights, and that it was not a final order from which an appeal would lie. The question there is clearly analogous, we think, to the one raised here. A careful consideration of the cases upon which the executor relies indicates, we think, that none of them is inconsistent with this theory. Thus in Yo%mg v. Fell, 221 Ill. App. 325, the court not only vacated the former finding of heirship but went further and entered an affirmative order declaring a different heir-ship. In Welch v. Worsley, 330 Ill. 172, the order did not as here vacate a former order without, making any finding, but dismissed and denied a petition asking that a former order should be vacated. In Sebree v. Sebree, 293 Ill.. 228, the probate court of -Cook county set aside a former finding as to heirsMp and made a further finding declaring a different heirship.

In Healea v. Verne, 343 Ill. 325, the probate court entered an order revoking the appointment of an administratrix on the ground that her claim of heirship was fraudulent. She appealed to the circuit court and afterward to the Appellate and Supreme Courts. The Supreme Court found that she was the sole heir and entitled to the appointment and that a finding of that kind entered by the circuit court on remandment was res adjudicata on the question of heirship in the subsequent partition suit between the same parties. The report of the case as it' appears in In re Estate of Healea v. Healea, 254 Ill. App. 334, shows that the order appealed from was one which not only vacated the prior judgment but made an affirmative finding of a different heirship which was therefore final.

It is apparent, we think, from a consideration of all these cases that orders, judgments and decrees of the probate court will be regarded as final only when they affirmatively determine the rights of contesting parties on the record. The order here appealed from did not make such determination. There is nothing in the record which indicates upon what theory the trial court set aside the finding made at a prior term. It might have been, for aught we can determine, that upon examination of its own record it found that it was wholly without jurisdiction to enter the order of March 17th.

There is notMng in this record (contrary to the contention of the executor) which shows whether the court acted with or without a petition by any interested party, but it does clearly appear that so far as the question of heirship of Maria Turner is concerned the order appealed from left every question of any claimant whatsoever wholly undetermined, and that Joseph Offett might if he desired produce evidence that would satisfy the court that he was the cousin and only heir at law and next of kin of the deceased. Until that question was determined in the probate court, the circuit court was wholly without jurisdiction, and for that reason properly dismissed the appeal.

The judgment is therefore affirmed.

Affirmed.

O’Connor and MoSurbly, JJ., concur.


author: Mr. Justice McSurely

text:
    In re Estate of Hannah Schwartz, Deceased, Appellee. Appeal of B’Nai Zion Talmud Torah et al., Appellants.
    Gen. No. 37,396.

      Opinion filed June 11, 1934.
    Shulman, Shulman & Abrams and Louis Jaefie, for appellants; Meyer Abrams, of counsel.
    Milton H. Weiss, for appellee.
   Mr. Justice McSurely

delivered the opinion of the court.

In the last will and testament of Hannah Schwartz three institutions or societies, hereafter called defendants, were given money legacies and her estate was probated in the probate court of this county. The defendants filed a petition requesting the probate court to order the executrix to file a petition to sell real estate belonging to the estate, and to pay debts and the legacies; and the court thereupon ordered the executrix to file her petition to sell the real estate. From this order the executrix appealed to the circuit court, which reversed the order of the probate court, and the defendants appeal to this court.

Defendants in their brief question the appealability of the order entered in the probate court and the jurisdiction of the circuit court. These points seemingly find support in McCollister v. Greene County Nat. Bank, 171 Ill. 608; Swayer v. Wiemers, 182 Ill. App. 651; In re Estate of Duffield, 258 Ill. App. 78. However, we prefer to pass upon the merits of the issue presented in the circuit court, as both parties stipulated as to that issue and have requested this court to pass upon the same.

The circuit court was of the opinion that the will did not make the legacies a charge upon the real estate and that as there was no personal property in the estate with which to pay these legacies, they had lapsed.

The rule touching the question at issue is stated in Heslop v. Gatton, 71 Ill. 528:

“It seems to be the settled rule, that when a person dies, leaving a will, and personal and real property, his debts and pecuniary legacies bequeathed by the will are to be paid from his personal property; and in case of a deficiency of personal property the legacies must abate, unless he charges his real estate with their payment. The charge upon the real estate may be made by the testator, either by express directions to that effect contained in the will, or the intention thus to charge it may be implied from the whole will, taken together. ’ ’

Does the language of the instant will show an intention on the part of the testatrix that in case of deficiency of the personal property to pay legacies they should be charged against the real estate ? The will is in substance as follows. After directing that the debts and funeral expenses be paid, there is a bequest to each of the three named defendants; the fifth clause reads:

“I give, devise and bequeath unto my dear Shirley Schwartz Abedor, wife of Louis T. Abedor, all the rest, residue and remainder of my estate of every kind, nature and sort whatsoever, real, personal or mixed, legal or equitable and wheresoever situated which I may own, possess, hold, be seized of or entitled to at the time of my death, together with the income, rents, profits, interest and incurrment thereof or which may arise or accrue therefrom including therein any and all property in connection with which I may have the power of appointment.”

In Williams v. Williams, 189 Ill. 500, the court said: “It is a general rule well established by both English and American decisions that, if legacies are givén generally, and the residue of the real and personal estate is afterwards given in one mass, the legacies are a charge upon the residuary real as well as personal estate. (13 Am. & Eng. Ency. of Law, 1st ed., p. 117.) ” In that case the will, after giving specific legacies, provided that “the rest, residue and remainder of my estate” shall be given in one mass to the sons and daughters. It was there held that the legacies must be a charge on the residuary real estate. Similar language in the will involved in Heylin v. Woods, 261 Ill. App. 429, was construed to make the legacies a charge on the real estate. In Simonsen v. Hutchinson, 231 Ill. 508, the testatrix left certain legacies, and “all the rest and residue of my estate that shall remain after the satisfaction of the above legacies ... I give, devise and bequeath” to certain relatives. It was held that this language clearly manifested an intention of the testatrix to charge the real estate with the payment of the legacies.

The executrix cites Wentworth v. Read, 166 Ill. 139, and Haynes v. McDonald, 252 Ill. 236, as holding to the contrary; but in these cases there was no residuary clause in the will from which it could be inferred that the residuum of the estate, after paying the legacies, was devised or bequeathed in a particular way.

Although it is the prevailing rule that where pecuniary legacies are given generally and there is a gift of the residue of the real and personal estate, the whole being blended in one mass, the legacies are a charge on the residuary estate both real and personal, yet this is not an inflexible rule. The question always is, What did the testator intend 1 And this is to be determined not only from the language of the will, but in the light of the testator’s surroundings and circumstances and the state and condition of his family and property at the time the will was executed. Alderman v. Dystrup, 293 Ill. 504; Jenne v. Jenne, 271 Ill. 526; Stokes v. Johnson, 352 Ill. 371.

The circumstances involved in these cases are different from those now before us. In the first of these it was shown that at the time the will was executed the testator owned personal property of a value much greater than would be required to pay debts, costs and pecuniary legacies. In the second case the language of the will limited payment of the legacies to the personal property; and in the last case the legacies were specifically charged upon the personal property, none of the lands involved passing by the residuary clause of the will.

In the instant case the inventory shows no personal property in the estate out of which to pay legacies, The case calls for the application of the general rule mhiring the legacies a charge on the real estate.

The circuit court was in error in holding that the legacies were not a charge on the real estate, and we hold that the order of the probate court requiring the executrix to file a petition to sell the real estate was proper.

The order of the circuit court is reversed.

Reversed.

Matchett, P. J., and O’Connor, J., concur.


text:
    The People of the State of Illinois, Defendant in Error, v. John Wooley, Plaintiff in Error.
    Gen. No. 37,416.

      Opinion filed June 11, 1934.
    George W. Blackwell and Edward H. Morris, for plaintiff in error.
    Thomas J. Courtney, State’s Attorney, for defendant in error; Edward E. Wilson, J. Albert Woll and Henry E. Seyearth, Assistant State’s Attorneys, of counsel.
   Mr. Justice McSurely

delivered the opinion of the court.

Defendant was charged with violation of what is known as the Lottery Act (par. 401, eh. 38/ Criminal Code, Cahill, 1933). Upon trial he was found guilty and fined $300. He seeks a reversal of the judgment. The evidence has not been preserved by bill of exceptions and we are asked to pass upon the common law record only.

The statute provides that “Whoever sets up or promotes any lottery for money, or by way of lottery disposes of any property of value,” shall for such offense be fined.

Defendant says that the information filed against him stated no offense, in that it omitted the words “for money ... or of any property of value.” The information charges that defendant “did then and there unlawfully and wilfully set up and promote a lottery commonly called a policy located at 505 E. 31st Street within the City of Chicago, County of Cook and State of Illinois, in violation of Par. 406, Chap. 38, contrary to the form of the statute (Smith-Hurd.) ”

The information is sufficient if the defendant is so notified of the charge as to be able to prepare his defense and the jury can understand the offense and the court pass sentence in case of conviction. People v. Donaldson, 341 Ill. 369. In People v. Cohen, 303 Ill. 523, it was said: “Great niceties and strictness of pleading should only be countenanced and supported when it is apparent that the defendant may be surprised on the trial, or unable to meet the charge or make preparations for his defense for want of great certainty or particularity.”

We hold that the information which charged that the defendant “unlawfully and wilfully set up and promoted a lottery,” sufficiently apprised the defendant of the character of the charge against him. In Dunn v. People, 40 Ill. 465, a lottery was defined as “a scheme for the distribution of prizes by chance.” This definition was approved in Thomas v. People, 59 Ill. 160, and in Elder v. Chapman, 176 Ill. 142, and Almy Mfg. Co. v. Chicago, 202 Ill. App. 240. In Horner v. United States, 147 U. S. 449, a scheme to float some bonds was declared to be a lottery, which was defined to be “an enterprise offering prizes, depending upon lot or chance.”

Commonwealth v. Mackay, 177 Mass. 345, presented the identical question now before us. The Massachusetts statute prohibiting a lottery is in terms like our own. In that case the complaint omitted an allegation that the lottery was “for money or other thing of value.” The court held that this was simply a defect in form, and that after trial and conviction it must be assumed that the evidence warranted a conviction of setting up an illegal, lottery within the terms of the statute.

Truitt v. People, 88 Ill. 518, cited by defendant, can be readily distinguished. There the information charged the defendant was guilty of “keeping a common gaming table without a license for the same,” omitting the words “for money or any other valuable thing.” The court held that it was no offense to keep a table for gaming when the gaming is not for money or any other valuable thing, hence the information charged no crime. In the instant case defendant was charged with promoting a lottery, and as we have seen, a lottery signifies, both in the popular and legal sense, a scheme for the distribution of prizes by chance, and the statute makes this a crime.

The information may have been defective in form, but advantage of this should have been taken before the trial. Such defects cannot be reached by a motion in arrest. Par. 743, ch. 38 (Cahill). People v. Hassil, 341 Ill. 286; People v. Glassberg, 326 Ill. 379.

The judgment entered, however, was improper. The court found the defendant “guilty in manner and form as charged in said information herein,” which was a sufficient finding, but the final judgment entered was as follows: “It is considered and adjudged by the Court that said defendant John Wooley is guilty of the criminal offense of unlawfully set up and promote a game called policy on said finding of guilty.” Defendant was not charged with setting up or promoting a game called policy, so it was error to enter a judgment finding him guilty of doing this.

For the reason last stated the judgment is reversed and the cause is remanded.

Reversed and remanded.

Matchett, P. J., and O’Connor, J., concur.


text:
    Anna Genden, Appellant, v. Dora Bailen, Appellee.
    Gen. No. 37,443.

      Opinion filed June 11, 1934.
    Irving Breakstone, for appellant.
    Golden & Golden, for appellee.
    Hoyne, O’Connor & Rubinkam, for garnishee.
   Mr. Justice McSurely

delivered the opinion of the court.

Judgment for $1,286.24 was entered against M. Bailen and Dora Bailen by virtue of a power of attorney contained in a note for $1,500 executed by both parties. Dora Bailen moved that the judgment be vacated on the ground that, as shown by her affidavit, M. Bailen, her husband, had died a few days before the entry of the judgment, and the power of attorney was joint; the trial court thereupon vacated the judgment and plaintiff appeals from that order.

While the obligation in the note was joint and several, the authority to confess judgment was joint. This is conceded. But plaintiff says the court should not have vacated the judgment but should have opened it up, letting it stand as security until the case was tried. Defendant filed no affidavit of merits and plaintiff argues that as a motion to set aside a judgment by confession is an appeal to the equitable powers of the court, the judgment should not he set aside where there is no showing of any defense upon the merits, citing Colson v. Leitch, 110 Ill. 504, and a large number of other cases.

Mayer v. Pick, 192 Ill. 561, is the leading case on this subject. There the note was joint and several — the power of attorney joint; one of the makers died before the judgment against the survivor was entered. The court, after citing a large number of cases, held that as the warrant of attorney was joint, the trial court properly vacated the judgment.

The latest case dealing with the subject is Farmers Exchange Bank of Elvaston v. Sollars, 353 Ill. 224. The facts there involved, except as to the language of the power of attorney, are almost identical with those in the instant case. There a note, with power to confess judgment, was signed by Marie Sollars and her husband, J. E. Sollars; judgment by confession was entered against Marie Sollars and garnishment proceedings were instituted and writs served upon various garnishees; Marie Sollars moved the court to vacate the judgment for the reason that J. E. Sollars had died before the judgment was entered; hence, it was claimed, the judgment against her was void as the power of attorney was joint and the court had no power or jurisdiction to enter a judgment against one of' the makers only; no affidavit of merits was filed ; the court allowed the motion and vacated the judgment. On appeal to the Appellate Court this order was affirmed in 265 Ill. App. 98; the case went by certiorari to the Supreme Court, which reasserted the rule that the power to confess judgment does not authorize confession of judgment against only one of the signers if the warrant is joint and not joint and several, citing Mayer v. Pick, supra, and Keen v. Bump, 286 Ill. 11. The Supreme Court, however, was of divided opinion -as to the power of attorney, the majority holding that it was joint and several, and the minority that it was joint. There was no disagreement upon the proposition that if the warrant was joint the judgment was void and should he vacated.

We have noted the cases cited by plaintiff — Farwell v. Huston, 151 Ill. 239, and State Bank of Clinton v. Barnett, 151 Ill. App. 79, and like cases. We are not persuaded by them to depart from the rule announced in the later case by the Supreme Court. Plaintiff takes what seems to-us an inconsistent position, namely, that the lien of a judgment admittedly void should, however, be continued in force until there was a final disposition of the cause.

We are also inclined to hold that an application to the court to vacate a judgment void upon the record is not an application to the equitable powers of the court in the sense that such words are used in a proceeding in equity. In a chancery proceeding the parties must show a willingness to do equity, but in a proceeding in a suit at law where, as we have said, a judgment is void as shown by the record, it is not necessary for the mover to do more than call attention of the trial court to the lack of jurisdiction to enter the judgment.

If a judgment is entered by confession without authority of the defendant it will be void for want of power to confess it. (Stein v. Good, 115 Ill. 93; Whitney v. Bohlen, 157 Ill. 571.) In such cases the judg-' ment is to be considered as absolutely void. (Blake v. State Bank of Freeport, 178 Ill. 182; White v. Jones, 38 Ill. 159.)

“Where it clearly appears that the plaintiff was not entitled to judgment on the notes and warrants of attorney, the court should vacate the judgment and leave him to pursue the ordinary remedy by action. But where the case is involved in doubt, or the testimony is so contradictory that the truth cannot be ascertained with reasonable certainty, the defendant should be let into a defense on the merits, the judgment in the meantime being allowed to stand as security until the merits of the case are heard and determined — all proceedings upon it however being stayed until the suit is finally determined. Lake v. Cook, 15 Ill. 353; Norton v. Allen, 69 Ill. 306; Boynton v. Renwick, 46 Ill. 280.” — Quoted from Walker v. Ensign, 1 Ill. App. 113.

Plaintiff contends that the defendant, when she moved to vacate the judgment, .entered her general appearance. In Kloeckner v. Schafer, 110 Ill. App. 391, it was held under such circumstances that the trial court erred in dismissing the suit. In the instant case the suit was not dismissed. The record shows that the court upon the same day the judgment was rendered granted leave to plaintiff to file an amended statement of claim in 10 days, defendant to plead in 10 days thereafter; plaintiff, however, did not file an amended statement of claim and the record shows that subsequently, on motion of the defendant, the suit was dismissed for failure of plaintiff to file an amended statement of claim, but this order of dismissal was subsequently vacated. We see no reason why plaintiff may not in the present case file an amended statement of claim and proceed against the defendant, Dora Bailen.

The Metropolitan Life Insurance Company was served with garnishment summons and has filed a brief in which cases are cited supporting the action of the court in vacating the judgment. The brief also correctly says that where the original judgment upon which a garnishment proceeding is founded is vacated, the garnishment proceeding falls with it. Pick v. Mutual Life Ins. Co., 94 Ill. App. 483; Baering v. Epp, 247 Ill. App. 51; Newport v. McPherson, 203 Ill. App. 208; Kirk v. Elmer H. Dearth Agency, 171 Ill. 207; Bux v. Wangelin, 216 Ill. App. 562. In the recent case of Chicago Title & Trust Co. v. LaPorte Bldg. Corp., 274 Ill. App. 335, it was held that after an order is entered discharging a garnishee, from which order an appeal is prayed and not perfected, it is the duty of the garnishee to pay the money in his hands to the person entitled thereto.

For the reasons indicated we hold that the trial court properly vacated the judgment, and this order is affirmed.

Affirmed.

Matchett, P. J., and O’Connor, J., concur.


author: Mr. Justice O’Connor

text:
    The People of the State of Illinois ex rel. Bernard F. Burgeson, Defendant in Error, v. West Chicago Park Commissioners et al., Plaintiffs in Error.
    Gen. No. 37,205.

      Opinion filed June 11, 1934.
    Rehearing denied June 25, 1934.
    Kirkland, Fleming, Green & Martin and Francis J. Vurpillat, for plaintiffs in error; Howard Ellis and David Fisher, of counsel.
    Michael F. Ktan, for defendant in error.
   Mr. Justice O’Connor

delivered the opinion of the court.

Bernard F. Burges on filed his verified petition against the West Park Commissioners, its officers and the officers of the Civil Service Board of Park Commissioners, praying that a rule be entered against them to show cause why they should not be adjudged in contempt of court for their failure to comply with a writ of mandamus theretofore issued, requiring them to recognize and assign the petitioner to duty as a civil service employee of the West Park Commissioners. A rule was entered accordingly. Afterward respondents filed their joint and separate answer. There was a hearing before the court without a jury. The respondents were adjudged guilty of contempt of court and were ordered to reinstate the petitioner in his civil service position, and that on failure to do so they be committed to the county jail of Cook county not exceeding a period of six months or until they should comply with the order by reinstating petitioner in his civil service position with the park. The respondents prosecute this writ of error to reverse the judgment.

The record discloses that petitioner had been employed by the West Park Commissioners since April, 1905, and after the passage by the legislature of the civil service law applicable to parks he became a civil service employee of the commissioners; that on October 15, 1928, he took the prescribed civil service examination for concrete construction foreman, passed first on the list, and was duly certified to said position; that he faithfully performed his work and was laid off January 30, 1930; that prior to that date he was assigned to duty as “cement finisher,” performing most of the duties of concrete construction foreman but without the title or the pay therefor; that the assignment to this position was a demotion and part of his duties were thereafter performed by Walter F. Terrell under the title of “Master Mechanic,” but who was not qualified as a civil service employee; that afterward, in May, 1932, he filed his petition for a writ of mandamus to compel the Park Commissioners, its officers and employees, including the civil service board, forthwith to recognize and assign him to his proper place on the pay roll of the classified civil service as concrete construction foreman, and that he be paid his back salary; that after a hearing a writ was awarded and he was again assigned to his proper place as civil service employee and continued in his duties for about six months under the old park board, and continued to occupy his same position under the new park board for a period of about three months, until March 24, 1933, when he was again laid off and his duties were taken over by Walter F. Terrell, master mechanic, who was not a civil service employee, and other employees who were not civil service employees of the West Parks. It further appears that after he was reinstated, pursuant to the writ of mandamus by the old board, he was paid his back salary amounting to more than $4,000, and that part of the judgment was satisfied by the petitioner.

The respondents filed a verified answer in which they set up that the petitioner was laid off in good faith because of lack of funds and lack of work; that petitioner’s work was not being done by Walter F. Terrell or other employees of the Park.

Petitioner offered evidence tending to show that after he was laid off part of his duties were performed by Terrell and part by Lars Thompson, who were temporary employees of the park and not qualified under the civil service law. Respondents ’ counsel on the hearing did not cross-examine petitioner’s witnesses nor was any evidence offered on behalf of respondents, they taking the position that their verified answer set up a good defense and purged them of contempt, and that they should have been discharged on their answer. In support of this it is said that “At common law in contempt proceedings, whether criminal or civil, the sworn answer of the accused validly denying or purging the contempt, is held absolutely conclusive and entitles the defendant to be discharged.”

In a number of cases language has been used that might be construed to lay down the rule that there is a distinction between the practice in courts of law and courts of equity; that in courts of law the sworn answer, if sufficient to purge the alleged contemnor, he will be discharged and no evidence heard; while if the suit is in equity, the answer may be controverted by evidence. Crook v. People, 16 Ill. 534; Oster v. People, 192 Ill. 473; Hake v. People, 230 Ill. 174; People v. McCaffrey, 232 Ill. App. 462. But an examination of these cases and others where similar language was used discloses the fact that in none of them was this rule stated to be the rule of practice. But the true test is whether the contempt charged is civil or criminal. If the former, the sworn answer of the defendant alleged to be in contempt does not purge him, but opposing evidence may be heard; while in the latter or criminal contempt, if the sworn answer be sufficient to free him from the imputed contempt, he will be discharged. Loven v. People, 158 Ill. 159; Rothschild (& Co. v. Sieger & Sons’ Piano Mfg. Co., 256 Ill. 196; People v. Peters, 305 Ill. 223.

In the Loven case it was held that the rule that the sworn answer of the defendant in contempt proceeding must be taken as true applied only where the proceeding was brought to vindicate the majesty of the law or the dignity of the court, and not to cases involving acts treated as contempt, in the enforcement of orders and decrees, as part of the remedy sought. In that case an injunction was awarded restraining Loven from advertising certain medicines and from divulging certain secrets used in the manufacture of the medicines. It was claimed that he violated the injunction and contempt proceedings were instituted. He contended that he should be discharged on his sworn answer which denied any violation of the injunction —that the answer must be taken as true and no countervailing evidence could be heard. In denying this contention the court said (pp. 166, 167): “We think the rule thus suggested has no application to cases of this kind. There is a well recognized distinction between the practice in contempts, properly so-called, where the proceeding is brought to vindicate the majesty of the law or the dignity of the court, and eases involving acts treated as contempts, for the enforcement of orders and decrees, as a part of the remedy sought. In the former, the defendant will be discharged if, by his answers to interrogatories filed, he makes such a statement as will free him from the imputed contempt, and opposing testimony will not be heard. But as held in Crook v. People, 16 Ill. 534 (on p. 537): ‘Presented for the purposes of affording civil redress, there is no solidity in the objection to the taking proofs, on the part of the prosecution, to contradict defendant’s answers to the interrogatories filed. Such is the general, though it may not be the universal, practice, whether on a motion to show cause why the attachment should not issue, or upon hearing of the contempt. ’ ”

In the Rothchild & Co. case, supra (256 Ill. 196), it was held that in Illinois the only recognized distinction between criminal and civil or remedial contempts is that in the latter proceeding the- court will hear proofs to contradict the answer of the party charged with contempt; while in a proceeding for criminal contempt, if the party purges himself of the alleged contempt by his answer, he will be discharged. In that case it was sought to hold the defendant in contempt for violating an injunction. The court said (p. 200): ‘ ‘ The distinction between criminal and civil contempts has been recognized in this jurisdiction ever since the decision in Crook v. People, 16 Ill. 534, which was decided in 1855.” The court then cites a number of cases, including Hake v. People, 230 Ill. 174, and continuing said (p. 200):

“In the case last above cited many of the previous decisions in this State were reviewed and we sought to make the distinction between criminal and remedial contempts clear. In the early case of Crook v. People, supra, the rule was announced that in a civil contempt the court would hear proofs to contradict the answer of the party charged with the contempt, while in a proceeding at law for a criminal contempt the law is otherwise. In such cases, if the party purges himself of the alleged contempt by his answer, he is discharged. ’ ’

People v. Peters, supra (305 Ill. 223) was an original petition for a writ of mandamus filed in the Supreme Court to compel Peters, sheriff of Cook county, to take into custody certain persons adjudged guilty of contempt for refusing to obey the order and judgment of the circuit court of Cook county. Some of them had been sentenced to pay fines and to be imprisoned in the county jail. The defense interposed by the sheriff was that the persons adjudged guilty of contempt had been pardoned by the governor. The court held that the contempt involved was civil and therefore the defendants could not be pardoned by the governor, and a writ was awarded. The court there said (p. 226):

“For some purposes most authorities classify con-tempts as civil and criminal. Where the contempt proceedings are an incident to the enforcement of the judgments and decrees entered in furtherance of the remedy sought in litigation, they are usually called civil contempts. Criminal contempts are said to be something done or omitted in the presence of the court to interrupt its proceedings or lessen its dignity and authority, or out of the court’s presence in disregard or abuse of its authority. (Hake v. People, 230 Ill. 174.) The principal reason for the classification seems to arise out of the form of the proceedings in the two classes of cases.” And continuing the court said (p. 228): “We believe the authorities universally hold that a proceeding to punish a party for refusing to perform an act he was ordered to perform, which was for the benefit of or would advance the remedy of the other party to the suit, is for a civil contempt. The most frequent illustrations of civil contempts are in the violations of injunctions by doing an act the party was ordered not to do or refusing to perform an act a party was ordered to perform. We are unable to see any distinction between the contempt here involved and a contempt for violation of an injunction.” That case originated in a quo warranto proceeding instituted against the Board of Education, in Chicago, to determine what persons constituted the Board of Education. There was an order of ouster entered in that case and for the violation of that order the circuit court held certain members to be in contempt of court. And, as stated, some of them were sentenced to pay fines and to be imprisoned in the county jail. After the governor had attempted to pardon them, the original petition for mandamus was filed in the Supreme Court. All of these proceedings were at law and not in chancery, and the court made no distinction in the procedure, whether at law or in equity, but the test was whether the alleged contempt was civil or criminal. If civil, the answer of the defendants did not purge them, but opposing evidence might be heard. But if the contempt charged was what is designated criminal contempt then the sworn answer, if sufficient, purged the defendants. This seems to be the true rule and it is immaterial whether the contempt originated out of a suit in chancery or an action at law.

In the instant case the court did not err in refusing to discharge the respondents on their sworn answer because it is clear that what was sought to be accomplished was for the benefit of the petitioner, Burgeson, and therefore the contempt was civil and not criminal.

The contention that the writ of mandamus awarded against the old park board who reinstated the petitioner to his position after the writ was awarded, he being later laid off by the new board, was not binding on the new board, is without merit. The writ bound the new board as well as the old board to maintain the petitioner in his position. People v. Supervisor, 100 Ill. 332; State Board of Equalisation v. People, 191 Ill. 528; People v. DeYoung, 298 Ill. 380. In the State Board of Equalisation case, the court said (p. 541): “The law is well settled that the termination of .the office of a respondent in mandamus proceedings does not abate the writ, and that the proceedings may be continued against his successor in office without beginning de novo. (13 Ency. of Pl. & Pr. 756; People v. Supervisor, 100 Ill. 332.) ”

After the abstracts and briefs were filed in which, as above stated, the only argument made by the respondents was that they should be discharged on their answer, the court on its own motion requested that the evidence offered by the petitioner, tending to show that he had been wrongfully laid off and that after this occurred his work was being performed by temporary employees of the Park who were not under civil service, be abstracted and additional briefs filed on the question whether the evidence offered by the petitioner sustained his contention, and that has been done.

Respondents now argue that the evidence shows there was little or no work for petitioner to do, and that the little work there was for him to perform was done by his superiors, who had a right to do it under the civil service regulations of the park commissioners. Obviously, the respondents had the legal right to lay off the petitioner if there was little or no work for him to do or if there was no money with which to pay him for his services. Counsel for the respondents say that respondents ’ sworn answer is not only a pleading but is evidence which the court should consider in conjunction with the other evidence. We think this contention is unsound. The case was not tried on the sworn petition and respondents’ sworn answer, but was heard on the evidence adduced. The answer is to be considered as a pleading and nothing more.

On the merits, counsel for respondents, in their additional briefs, correctly say: “The precise questions before this Court then are whether there was cause for laying off Burgeson, and whether the Board acted in good faith in doing so,” and that this is a question of fact to be determined from the evidence.

We have carefully considered the evidence on this question and the argument of counsel for the respondents, and it is to be regretted that, on the hearing, the merits of the controversy were not gone into by counsel then representing respondents. As stated, all of the evidence was produced by the petitioner. It is to the effect that other employees of the park commissioners were doing the work of the petitioner and that they were not under the civil service law. If they were properly appointed as temporary employees (and we must assume that they were) and there was little or no work for the petitioner to do and no funds to pay him, then some little part of the work that would ordinarily be done by the petitioner might properly be performed by the temporary employees provided such action was taken in good faith, and provided further that the park commissioners were saving money by doing the work in this manner.

Upon consideration of all the evidence we are unable to say that the action of the respondents, in laying off the petitioner and having his work or part of it done by other parties, resulted in any financial saving. This may be the fact, but if such were the case, the duty devolved on the respondents to produce the evidence.

The judgment of the superior court of Cook county is affirmed.

Judgment affirmed.

Matchett, P. J., and McSurely, J., concur.


text:
    Forest Preserve District of Cook County, Plaintiff in Error, v. Edmund Jesse, Sr., et al., Defendants in Error.
    Gen. No. 37,286.

      Opinion filed June 11, 1934.
    George A. Basta and John C. Lews, for plaintiff in error; John C. Lewe, of counsel.
    George P. Latchpord, Jr., Harry O. Rosenberg and John P. Sullivan, for defendants in error; John M. Pollock, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court. ■

On November 17, 1931, the Forest Preserve District of Cook County filed its petition to condemn seven lots. It is stipulated that the cause afterward first appeared on the trial call September 16, 1932, and from that date to June 12, 1933, it was on the; trial call 18 times; that on each of these occasions the Forest Preserve District stated it was not ready to go to trial because it did not have the money to meet the anticipated awards, and the case was continued on motion of the Forest Preserve District over objection of defendants, who were ready for trial each time the case appeared on the trial call.

Although .it is stipulated the last date the case appeared on the trial call was June 12, 1933, the record discloses that on June 21, 1933, an order was entered in which it was recited that the cause came on for trial and that three of the defendants,, who owned three of the lots sought to be condemned, were ready and demanding trial, “and the petitioner not being ready and refusing to proceed to trial, it is ordered that this cause be and the same is hereby dismissed as to property owned by said defendants, for want of prosecution.

“It is further,ordered that the hearing on the question of damages alleged to have been sustained by the above mentioned defendants by reason of the proceedings herein be and the same is hereby set for hearing on June 30th, 1933, at 10 A. M.” "Whether the petition was dismissed as to the lots owned by the other parties does not appear. June 30th the matter came on for hearing for the assessment of damages against the petitioner for costs, expenses and attorneys’ fees paid or incurred by the owners of certain of the lots, and a judgment was entered against the petitioner, the Forest Preserve District of Cook County, for such costs, expenses and attorneys’ fees, aggregating $3,175; $400 was awarded to Jesse and wife; $1,600 to Eglenicki and wife; $287.50 to Sadie L. Welby; $227.50 to Harris and wife; and $600 to Marnik and wife; owners of but four, or at most five, of the lots sought to be condemned. No point is made that the allowance is not warranted by the evidence or that the several items are excessive.

The Forest Preserve District contends that the court had no power to assess the damages because the dismissal of the proceedings, as to the lots in question, was for Avant of prosecution, and that under the statute such damages may be awarded to owners of property only where the petition is dismissed voluntarily by the petitioner, or where it refuses to pay the awards within the time mentioned in the judgment of the court where the property is ultimately condemned and taken for public use.

On the other hand, the defendants’ position is that the dismissal of the petition in the instant case was “as much a voluntary dismissal of the petition as if it had been asked for by petitioner in so many words. To hold otherwise would defeat the intention of the legislature.”

The statute under which the defendants claim they were entitled to costs, expenses and reasonable attorneys’ fees went into effect July 1, 1897. Winkleman v. Chicago, 213 Ill. 360. It is section 10 of the Eminent Domain Act, chapter 47, and is as follows:

“The judge or court shall, upon such report, proceed to adjudge and make such order as to right and justice shall pertain, ordering that petitioner enter upon such property and the use of the same upon payment of full compensation as ascertained as aforesaid, within a reasonable time to be fixed by the court, and such order, with evidence of such payment, shall constitute complete justification of the taking of such property. Provided, that in case the petitioner shall dismiss said petition before the entry of such order or shall fail to make payment of full compensation within the time named in such order, that then such court or judge shall, upon application of the defendants to said petition, or either of them, make such order in such cause for the payment by the petitioner of all costs, expenses and reasonable attorney fees of such defendant or defendants paid or incurred by such defendant or defendants in defense of said petition as upon the hearing of such application shall be right and just, and also for the payment of the taxable costs.”

The question for decision turns upon the construction of section 10, and the precise question before us has never been passed upon by any court of review in this State. We think we ought to say that we have been furnished by counsel for both sides with clear, concise and lucid briefs.

The cardinal rule of construing statutes is to ascertain the intention of the legislature. Zister v. Pollack, 262 Ill. App. 170. “The intention of the law-makers is the law. This intention is to be gathered from the necessity or reason of the enactment and the meaning of the words, enlarged or restricted according to their real intent. ... In determining the meaning of a statute the court will always have regard to existing circumstances, contemporaneous conditions, the objects sought to be attained by the statute and the necessity or want of necessity for its adoption.” Hoyne v. Danisch, 264 Ill. 467-483. “In construing a statute the courts are not confined to the literal meaning of the words. A thing within the intention is regarded within the statute though not within the letter. A thing within the letter is not within the statute if not also within the intention. When the intention can be collected from the statute, words may be modified or altered so as to obviate all inconsistency with such intention. . . . The courts are bound to presume that absurd consequences leading to great injustice were not contemplated by the legislature, and a construction should be adopted that it may be reasonable to presume was contemplated.” Uphoff v. Industrial Board, 271 Ill. 312; Van Meter v. Goldfare, 236 Ill. App. 126.

Par. 1 of section 1, chapter 131, of the statutes, which is the act in relation to the construction to be given our statutes, provides: “First — All general provisions, terms, phrases and expressions shall be liberally construed in order that the true intent and meaning of the Legislature may be fully carried out. ’ ’

Sanitary District of Chicago v. Chapin, 226 Ill. 499, was a petition to condemn land for public use. On account of the inexcusable delay of the petitioner in trying the case, the court, on motion of defendants, dismissed the proceeding and an appeal was taken to the Supreme Court. The court upheld the dismissal over the petitioner’s objection and said (p. 502): “But this proceeding is not governed by the ordinary rules of practice. The court ought in any case to be able to see that justice is done. And this case is different from the ordinary suit at law in the fact that the statute contemplates a speedy trial. ’ ’

Under the rule of construction announced in the foregoing authorities and in view of the nature of the proceeding in the instant case, we are of opinion that it was the intention of the legislature in enacting section 10 to award to property owners whose property was sought to be taken in condemnation, their costs, expenses and reasonable attorney fees incurred by them in case the petition was voluntarily dismissed by the petitioner, or where the petitioner, after an unreasonable delay, refuses to dismiss or to try the case. Otherwise the statute could be entirely nullified by the petitioner merely refusing to dismiss his case or to proceed to trial. Obviously, if the petitioner refused to dismiss its petition or to proceed to trial, the intention of the legislature would be frustrated, the defendants put to expense in the preparation of their case and be wholly without remedy.

We hold that in the instant case the dismissal of the petition under the circumstances disclosed by the record rendered petitioner liable for costs, expenses and reasonable attorney fees. • But counsel for the petitioner say that it has been held by this court and by the Supreme Court that no costs, expenses or attorney fees are allowable under section 10 unless the petitioner voluntarily dismisses the proceeding or unless the awards are not paid within the time mentioned in the judgment awarding compensation. Obviously, in the instant case, no judgment having been entered condemning the property and making award therefor, that provision of the statute is not here involved. The eases which counsel for the petitioner relies upon are City of Mound City v. Mason, 199 Ill. App. 120, and Chicago Great Western R. R. Co. v. Ashelford, 268 Ill. 87. While language is used in those opinions that would lend comfort to the petitioner, yet we are clear that the point before us was not involved or decided.

The Mason case was an appeal from a judgment of the county court in favor of a defendant in a condemnation proceeding awarding him attorney fees and costs in defending the condemnation suit. In the condemnation suit there was a judgment awarding the defendant compensation, from which he appealed to the Supreme Court where the judgment was reversed because the petition was insufficient, and the cause remanded. City of Mound City v. Mason, 262 Ill. 392. After the remandment the petitioner asked leave to file an amended petition for condemnation. The defendant objected and moved to dismiss the petition for want of power in the petitioner to condemn his property. The defendant’s motion was sustained and the petition dismissed over petitioner’s objection and the court heard evidence as to defendant’s costs and attorney fees. The judgment of the trial court awarding defendant his attorney fees and costs was reversed by the Appellate Court, which held that section 10 of the Eminent Domain Act, under which defendant claimed to be entitled to his attorney fees and expenses, did not apply except where the petitioner voluntarily dismissed the proceeding. The court there discusses the authorities including the Ashelford case, supra, 268 Ill. 87, and apparently based its decision on a quotation from that case.

In the Ashelford case the railroad company filed a petition to condemn certain property in Ogle county. There was a hearing on the merits and the jury returned a verdict awarding defendants certain compensation for their land, and for damages for land not taken. Four days after the verdict, namely, July 6, 1914, judgment was entered on the verdict which provided that the award be paid within 25 days. The judgment was in memorandum form only, and October 3, 1914, a prepared judgment was signed by the judge. It was indorsed, “Order, July 6, 1914,” and then delivered to the clerk who filed it. In the meantime, September 14, 1914, the defendant, the property owner, filed his petition in the condemnation suit alleging that the court entered this judgment on July 6th, and that the compensation be paid within 25 days, or July 31, 1914; that the compensation had not been paid, and moved that the proceeding be dismissed for failure to make the payment within the time fixed in the judgment, and that the railroad company be ordered to pay defendant $310 on account of expenses incurred by defendant in the condemnation suit. The railroad company answered the petition, denying that the judgment order was entered July 6, 1914, and alleging that the final order was not entered until October 3, 1914, at which time the railroad company tendered the amount of the award to the defendant, which was refused, and a few days later the railroad company deposited the money with the county treasurer. There was a hearing on the defendant’s petition and the railroad company’s answer; the court found the facts as stated in the defendant’s petition and ordered the railroad company to pay the property owner $275, the amount of defendant’s expenses incurred in the condemnation suit. The railroad company appealed to the Supreme Court, where the judgment of the trial court was affirmed. In that case it will be noted that the petition for condemnation was dismissed on motion of the defendant property owner over the objection of the railroad company. It sought to pay the amount of the award, the dismissal being on the ground that the compensation had not been paid within the time fixed by the judgment of the court, as required by section 10 of the Eminent Domain Act. That section provides that in case the party seeking condemnation fails “to make payment of full compensation within the time named in such order, that then such court or judge shall, upon application of the defendants to said petition, or either of them, make such order in such cause for the payment by the petitioner of all costs, expenses and reasonable attorney fees of such defendant or defendants paid or incurred by such defendant or defendants in defense of said petition as upon the hearing of such application shall be right and just, and also for the payment of the taxable costs.” This was the only provision of section 10 involved in the decision of that case. The judgment was affirmed solely on the ground that the award in the condemnation proceeding had not been paid within the time fixed in the judgment order as the statute provided. The question of the dismissal of the petition voluntarily or otherwise was in no way involved or considered.

The judgment of the circuit court of Cook county is affirmed.

Judgment affirmed.

Matchett, P. J., and McSurely, J., concur.


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    The People of the State of Illinois ex rel. John S. Rusch, Defendant in Error, v. Frank Kotwas et al., Plaintiffs in Error.
    Gen. No. 37,334.

      Opinion filed June 11, 1934.
    Nash & Ahern and Sidney H. Block, for plaintiffs in error; Michael J. Ahern and Sidney H. Block, of counsel.
    Thomas J. Courtney, State’s Attorney, for defendant in error; John F. Cashen, Jr., Assistant Attorney to Board of Election Commissioners, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.

November 8, 1932, the national election was held, and at the same time judges of the municipal court of Chicago were elected. At that election Frank Kotwas, John Basner, Frank J. Nies, Walter J. Ziober and Stephen L. Banasiak were judges and clerks of election of the first precinct of the thirteenth ward in Chicago. Afterward there was a contest involving the election of one of the judges of the municipal court. The ballots were counted and it was contended that the result showed irregularities and misconduct on the part of the judges and clerks of the precinct in question.

September 28, 1933, John S. Busch, chief clerk of the board of election commissioners of Chicago, filed a petition against the judges and clerks of the first precinct of the thirteenth ward and they were ruled to show why,they should not be adjudged guilty of contempt of court for misbehavior in their respective offices, at such election. There was a hearing in the county court of Cook county; the petition was dismissed as to Stephen L. Banasiak, and the other respondents were adjudged guilty of contempt of court. Frank Kotwas, John Basner and Frank J. Nies were each sentenced to imprisonment in the county jail for a term of six months, and the respondent Walter J. Ziober was sentenced to imprisonment in the county jail for one year. The respondents Kotwas, Basner and Nies prosecute this writ of error.

The poll books and tally sheets were received in evidence and the ballots were recounted in open court. Each of the five respondents testified and denied any wrongdoing in the canvass of the votes or the returns made by them.

The evidence shows that 12 judges of the municipal court were to be elected. There were 24 candidates, 12 on the Democratic ticket and 12 on the Republican ticket. The result of the canvass by the respondents showed that each of the Democrats received 359 straight votes and 43 split votes, or a total of 402 votes; that each of the 12 candidates on the Republican ticket received 55 straight votes and 20 split votes, making a total of 75 votes. On the recount of the votes before the county judge each of the Democratic candidates received 332 straight votes, while each of the Republicans received 50 straight votes. The highest candidate on the Democratic ticket received 46 split votes and the lowest 16, while on the Republican ticket the highest candidate received 35 split votes and the lowest 17. On the recount in the county court all of the Democratic candidates lost votes ranging from 1 23 to 53 votes, while 6 of the Republican candidates gained from 2 to 10 votes, and 6 of them lost from 3 to 8 votes.

The evidence is all to the effect that dummy sheets were used and afterward the result from these was transferred to the tally sheets and poll books. There were a number of watchers and other persons in the polling place during the canvass of the votes.

The respondent Walter J. Ziober testified in his own behalf as to how the votes were counted and, in substance, that there was no wrongdoing or misbehavior on the part of anyone. On cross-examination he was asked if he had not, on October 17, 1933, made a statement in the election commissioners ’ office where what he said was taken down by a court reporter in the presence of a number of witnesses. When the witness was asked if he had not talked to counsel for petitioner in the election commissioners’ office, counsel for the respondent, who is not respondent’s counsel in this court, said: “Tour Honor, I am going to object to any conversation with counsel outside the presence of any defendants or any of the judges and clerks or outside of the court. It is not in the presence of the court. There isn’t a confession in any statement.” The objection was overruled and the cross-examination proceeded; questions tending to impeach the witness were then put to him in an endeavor to elicit whether he had not made certain answers to certain questions put to him at that meeting. The witness denied that he was at the election commissioners’ office at the time in question, and denied making most of the incriminating statements. Afterward the petitioner in rebuttal called a number of witnesses who were present at the time, including the court reporter, and their testimony is to the effect that Ziober had stated, in the election commissioners’ office at the time in question, what took place during the canvass of the votes, tending clearly to show misbehavior on the part of the respondents. There is other evidence in the record, but we think it unnecessary to analyze it.

The court in deciding the case said: “I take it in all these cases that really what we are after is ballot thievery and actual fraud. ... In several of those cases, . . . there has been nothing but that formal proof, and standing alone without any explanation the discrepancies are so glaring that the Court, without some reasonable explanation, is forced to the conclusion that either a fraud has been committed, or else the judges and clerks have just simply disregarded their duties and have said, ‘Well, put down any figures and let us get out of here,’ in which case I feel that they have committed an actual fraud. . . .

“Now, let us take the present case. Judged by those sort of general' standards that I have laid, here is a discrepancy in the judicial count and the returns I think you will admit with me are peculiar, different than are found in any other case in that the Democratic candidates on this judicial ballot all received the same number of votes, 402.

“Now you have the outside testimony here, I mean the outside evidence, that convinced the Court a long time before the case was concluded as to what his finding would probably be. You have the confession here of one of them (Ziober). ... A confession . . made sometime ... in October, in which he detailed or in which he admitted some of the fraud that had been committed, and he says that one of the judges or one of the clerks openly there, at the board, made an objection to a certain precinct captain coming in and pencilling or marking blank ballots . . . one of the clerks calling to the attention of the judge that those men were marking ballots and the tally sheet itself, I think bears out this, that when he said there was a dispute between the two precinct captains as to who should get the benefit of the split ballots, I think the tally sheet, which is the first one I have seen in that condition, bears out the Court’s conclusion that they did arrive at some figure and split it up and said, ‘You will get so many splits and the Republicans will get so many splits.’ . . . From the statement that Mr. Ziober made before the Board of Election Commissioners and the conversation of Mr.' Kotwas, it does seem that the tally sheet and everything absolutely confirms the picture that he gave of the whole situation. ... I don’t think these men that .have taken the stand (the men called on in rebuttal by the petitioner) and said he (Ziober) was there in the Election Commissioners ’ Board room perjured themselves, but he did make that statement and in it the argument between the precinct captains, how they were to be divided, and the tally sheets show here, it looks as though they set a certain figure. . . .

“I haven’t any hesitancy about it. If there was no outside evidence here at all and there was just the discrepancies and they could offer a reasonable, plausible explanation, it always remains, were they all in on this, did the judges put it over or did the clerks? . . . but where there is outside evidence and all the circumstances in this case, I don’t hesitate, and I won’t hesitate in meting out what punishment I think is proper where the Court is sure in his own mind that an actual fraud has been perpetrated.” The court then made a finding of guilty and imposed the sentences as above statéd.

Counsel for the three respondents who prosecute this writ of error contend that “Mere proof of a discrepancy between the count, of the judges and clerks and the recount is not sufficient to sustain a finding of guilty. The burden of proof is on the petitioner to show the guilt of the respondents beyond a reasonable doubt.” Whether the discrepancy between the return made by the judges and clerks and the recount of the ballots is. so great as to warrant a finding of misbehavior on the part of the judges and clerks in the instant case, we think was a, question of fact for the court. Here each of the 12 candidates on the Democratic ticket received 402 votes and each of the Republicans 75 votes, while the recount of the ballots, in open court, shows each of the Democratic candidates received a different number of votes running from 329 to 349 votes, while the Republican candidates, instead of each receiving 75 votes as indicated by the return of the judges and clerks of election, received from 67 to 85 votes. Six of the candidates received more votes than they were entitled to, while six of them received less votes than they were entitled to. This alone is sufficient to show that the respondents did not count the ballots and that they violated their sworn duty.

In a contempt case of this kind, we think the petitioner is not required to prove the guilt of respondents beyond a reasonable doubt, but is required to produce “most convincing evidence of the truth of the charge” before the respondents could be found guilty, the proceeding being quasi criminal. Oehler v. Levy, 168 Ill. App. 41. The respondents ’ contention that ‘ ‘ The cases of the respondents should have been considered separately and independent of each other,” we think is sound, but we are also of the opinion that the court did consider the case of each before he found the respondents guilty and imposed sentence accordingly. Obviously, no one should be found guilty unless the evidence showed he was guilty as charged.

A further contention is made that the court considered incompetent evidence in determining the respondents’ guilt and improper matters of aggravation in assessing the punishment, (1) that there was no competent evidence as to the official canvass and return of the judges and clerks of the votes cast; (2) that the court improperly admitted the tally sheets in evidence; (3) there was no competent evidence to show the result of the recount before Judge Mangan in the election contest; and (4) that the statement or confession of Ziober made out of the presence of the other respondents was improperly considered as to the three respondents who procured this writ of error.

The poll books and tally sheets were admitted in evidence by stipulation of the parties. These purported to show the result of the canvass, made by the judges and clerks, of the votes cast at the election. The result of the canvass had before Judge Mangan in the election contest is in evidence but the trial court held that this was not binding on the respondents, and properly required the counting of ballots on the hearing before him. The difference between the number of votes as shown by the official recount before Judge Mangan and the recount in the instant case is trivial, and it is clear that the result of the canvass before Judge Mangan in no way affected the decision in the instant case.

The statement or confession of Ziober, as the testimony tends to show, was made in the election commissioners’ office out of the presence of the other respondents and was improperly considered as to the respondents who are prosecuting this writ of error. What Ziober said at that time obviously could not be used against the other respondents. But an examination of the record clearly discloses that this rule of law was not brought to the attention of the trial judge and it is equally clear that it never occurred to counsel for either side. Counsel for the respondents say that this evidence was admitted over objection, but we think this is not borne out by the record. Nowhere was it pointed out on the hearing that this statement or confession of Ziober should have been limited to him and that it could not be considered as to the other respondents. When counsel for the petitioner was cross-examining Ziober he asked the witness if he remembered talking to counsel in the election commissioners’ office. Thereupon counsel for respondents objected, as above quoted, “to. any conversation with counsel outside of the presence of any defendants or any of the judges and clerks or outside of the court. It is not in the presence of the Court. There isn’t a confession in any statement.” This objection was overruled and we think it clear that the contention now made is raised for, the first time in this court. Furthermore, a consideration of the court’s oral opinion in summing up the case, from which we have rather fully quoted, leads to the conclusion that the court was satisfied of the guilt of the respondents from the fact that each candidate on the Democratic ticket received the same number of votes, viz., 402, and each candidate on the Republican ticket received 75 votes, while the recount conducted by the trial judge showed that this was clearly erroneous and that the votes were not actually counted at all.

A consideration of all the evidence we think discloses the fact that none of the judges or clerks deliberately intended to steal votes, but that out of sheer exhaustion and in an endeavor to get through they,, as the trial court said, arrived “at some figure and split it up and said, ‘You will get so many splits and the Republicans will get so many splits’ — ‘Put down any figures and let us get out of here. ’ ” It must be remembered that this was a presidential election in which the ballot was large, and it was somewhere near morning after the polls closed when the municipal court ballots were reached. No complaint is made of the reasonableness of the punishment imposed, and therefore we feel we would not be warranted in disturbing the judgment on the ground that the penalty is excessive. Judges and clerks of election must understand that it is their sworn duty to honestly count the votes as cast, and their failure to do so renders them liable to the penalties of the law.

The judgment of the county court of Cook county is affirmed.

Judgment affirmed.

Matchett, P. J., and McSurely, J., concur.


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    The People of the State of Illinois ex rel. Oscar Nelson, Auditor of Public Accounts of the State of Illinois, Complainant, v. Bank of Harvey, Defendant. John W. Blair, Petitioner, Appellee, v. R. A. Pascoe, Receiver of the Bank of Harvey, Respondent, Appellant.
    Gen. No. 37,435.
    Opinion filed June 11, 1934.
    Glenn, Schwartz, Real & Browning, for appellant; J. Roy Browning and Harold E. Baily, of counsel.
    Henry T. Chace, Jr., for appellee.
   Mr. Justice O’Connor

delivered the opinion of the court.

By this appeal the receiver of the Bank of Harvey seeks to reverse an order or decree of the circuit court of Cook county ordering the receiver to set off the sum of $3,789.81, being the balance in the checking account of the Bank of Harvey standing in the name of Mrs. J. W. Blair against the balance due on the note of her husband, John W. Blair.

The record discloses that the State Bank of Harvey was closed by its board of directors January 11, 1932, and on March 1, 1932, the auditor of public accounts appointed a receiver of the bank. The appointment was later confirmed by the circuit court of Cook county.

The evidence shows that prior to 1923, John W. Blair carried a checking account with the Bank of Harvey, and on December 3, 1923, he had a balance of $2,879.14 in this account. On that date he withdrew $2,600 from his account and opened a checking account in the Bank of Harvey, for that amount, in the name of his wife, Mrs. John W. Blair. The bank delivered a signature card to him, he took it home and obtained his wife’s signature, and at the same time the wife gave him authority to draw checks against the account. The signature card was returned to the bank and a passbook issued in the name of John W. Blair, showing a deposit of $2,600. Twenty-five days thereafter, viz., December 28, 1923, Blair closed out his checking account and thereafter the only account in the bank was the one that stood in the name of Mrs. Blair, as above stated and that account was carried in the bank from 1923 until the bank closed in January, 1932.

The evidence further shows that after the account was opened for $2,600, moneys were deposited from time to time by John W. Blair, all of which belonged to him and had been obtained by him from the practice of his profession as a doctor, and from business ventures; that he drew checks on the account from time to time for many years and that checks were also drawn by his wife, principally to pay the grocer and butcher, and matters of a similar nature. The evidence further shows that Blair borrowed money from time to time from the bank after the $2,600 account was opened and deposited the proceeds of the money thus borrowed in the account standing in the name of his wife, as above stated. June 8, 1931, he borrowed $14,500 from the bank and made his collateral promissory note to the bank for that amount, due six months after date and pledged certain collateral as security. Afterwards he paid $4,500 on account of this indebtedness and on December 28, 1931, executed a new note to the bank for the balance of $10,000; he also pledged collateral as security for the payment of this note. Afterwards the bank pledged the note and collateral to the First National Bank of Chicago, with other collateral, to secure its note which was held by the latter bank at the time of the appointment of the receiver of the Bank of Harvey. March 20, 1932, Blair paid the First National Bank $6,000 on account of his note, leaving a balance due of $4,000. Some time thereafter, the receiver of the Bank of Harvey paid the balance of the indebtedness of that bank to the First National Bank and Blair’s note and most of the' collateral were returned to the receiver. The proceeds of the $14,500 note were deposited in the account. These proceeds were withdrawn by Blair and none of this money was in the bank when it closed.

Blair testified that he changed the account to his wife’s name for business reasons; that he did this because he might die suddenly as he had been affected for some time with a heart lesion, and wanted the account so that his wife could draw the money without difficulty. After Blair’s note and collateral were returned to the receiver, Blair requested the receiver to offset the balance due in the account of $3,789.81 against the $4,000 note, which request was refused. Blair also offered to pay his stock liability of $500 on account of his ownership of five shares of stock of the bank.

Blair’s petition praying that the offset be allowed, and the answer of the receiver thereto, were referred to a master in chancery who took the evidence, made up his report and recommended that the prayer of the petition be denied. Exceptions were sustained to the report and the order or decree, directing the offset, was entered.

We think all the evidence shows that from 1923, when the account was opened by Blair in the name of his wife, until the bank closed January, 1932, a period of more than eight years, all of the moneys put in the bank belonged to Blair and not to his wife. The money came from the practice of his profession as a doctor, and from investments. No money in the bank belonged to Mrs. Blair. Blair drew checks against it and Mrs. Blair drew small amounts to pay household expenses. The money being Blair’s and not Mrs. Blair’s, obviously he was entitled to have the balance in the bank set off against the amount remaining due on his note. It has long been the settled rule of law in this State that a depositor indebted to a bank which is closed on account of insolvency, may reduce his indebtedness by setting off his deposit. State ex rel. Nelson v. Bank of Harvey, 273 Ill. App. 56; McCagg v. Woodman, 28 Ill. 84; Scott v. Armstrong, 146 U. S. 499; Yardley v. Philler, 167 U. S. 344; Streeter v. Junker, 230 Ill. App. 366.

The decree of the circuit court of Cook county is affirmed.

Decree affirmed.

Matchett, P. J., and McSurely, J., concur.