text:
    W. H. Todt, Appellee, v. G. M. Shull and Alvira Shull, Appellants.
    Gen. No. 8,436.
    Heard in this court at the April term, 1930.
    Opinion filed January 26, 1931.
    Leslie J. Taylor and Edward E. Adams, for appellants.
    H. B. Hershey and O. J. Vogelsang, for appellee.
   Mr. Presiding Justice Shurtleff

delivered the opinion of the court.

This case is an appeal from a judgment of the circuit court in Christian county, in favor of the holder of four promissory notes.

On February 8, 1928, a judgment by confession before the clerk in vacation was entered in the circuit court of Christian county on four judgment notes executed by Q-. M. Shull and Alvira Shull, his wife, appellant, for $2,656.08, including therein $346.35 for attorney fees, provided by the notes. On March 12, 1928, the defendants, appellants, entered their motion to open up the judgment and for leave to plead. Thereafter, on October 20, 1928, this motion was allowed.

The declaration is the ordinary narr or declaration on four judgment notes. As originally drafted the first count averred that on August 10,1926, the appellants made their promissory notes and promised to pay to the order of the Standard Light Company of Decatur, Illinois, the sum of $685, due one year after date, with interest at five per cent, and that after-wards, and before maturity, said company, the payee, assigned and delivered such note to the appellee; that at the same time the appellants executed their power of attorney attached to the note, authorizing confession of judgment in any court of record, with fifteen per cent attorney’s fees, and concluded with an allegation of default.

The other counts, as originally drafted, were of similar import, but declared on three notes of $500 each, dated October 1,1926. -To the original declaration the appellants pleaded the general issue and gave notice of special matters upon which they would rely for a defense.

It was set out in the statement of these special matters that appellants did not execute or deliver any of the four notes declared upon; that the notes were blank forms when signed; that neither the Standard Light Company, Percy B. Sullivan, nor any other person, had authority to fill in blank spaces and negotiate the notes; that the alleged notes and signatures were procured through the fraud and misrepresentation of one Percy B. Sullivan; that the fraud consisted in entering into an alleged contract between the Standard Light Company of Decatur, Illinois, and the appellants for the sale of Standard generator and lighting systems, for which appellants were to act as agents in the vicinity of their farm home near Grirard, Illinois, and also to cover the payment for one of the lighting systems installed in their home. This system was to be for demonstration purposes, and to be open to the inspection of prospective purchasers. The appellants were to receive a commission of $75 on each plant sold through their efforts, the commissions to be applied on the purchase of the demonstration plant installed in their home, and if the sales should not be suffiicent to pay for the plant in this way within three years, the defendants were to pay for the plant at half price, or it was to be removed.

It was further averred that appellants were after-wards invited to go to Decatur, Illinois, by someone who claimed to be an agent of this company, and while in that city they were induced by one Percy B. Sullivan, who represented himself to be manager of the Standard Light Company, to sign three blank promissory notes of $500 each, upon the representation of said Sullivan that the papers were merely memoranda, and were to be used only for indorsing on the back thereof commissions earned by the defendants; that the blank spaces in the blank notes would not be filled in; that the note dated August 10, 1926, was procured in a similar manner; that all the blank spaces in the notes were filled in without the knowledge or consent of appellant; that W. H. Todt is not an innocent purchaser, and is not the real plaintiff; that he had knowledge, through his representative, that the notes were without consideration, and were void by reason of the inserting of amounts without the authority of the appellants.

By such special matter it was further set out that there was no consideration for any of the notes, and that the only consideration there had ever been for them had failed, the contracts between the Standard Light Company and these appellants never having been complied with by the Light Company, or Percy B. Sullivan; that at the time the alleged notes were made, no date of payment, or rate of interest, or sum of money, or figures denoting money, were written in the body or on the face of the note, and that all these matters have been inserted contrary to the agreement of appellants with Percy B. Sullivan, who claimed to be acting for the Standard Light Company; that at the date of the notes appellants were not acquainted with Sullivan or his reputation, but were induced to sign the papers, trusting in and confiding in Sullivan and his employees who assisted him in obtaining the papers in question; that Sullivan makes a business of securing the notes of farmers through the same or similar methods, and that the business of the Standard Light Company is not the selling of lighting plants, but the obtaining of blank judgment notes.

After the plea of general issue with such special matters, the appellant Gr. M. Shull filed a special plea that since the commencement of the suit he had become a bankrupt, and his estate was in the process of administration in the proper federal court, and that the debts described in the declaration were provable in bankruptcy. Afterwards, on motion of the appellee, this special plea was stricken.

There was a trial by jury and after the proofs were submitted the court instructed the jury to find a verdiet for appellee in the amount of the claim, and appellee had judgment against the appellants upon this verdict and appellants have brought the record to this court by appeal for review.

Appellee submitted his cause upon the presentation of the notes.

Appellants, by proofs, established the facts set out as special matters upon which they would rely as a defense. Appellee, who had no interest in the notes but was merely acting as agent for others, undertook to show that the notes were transferred to him by a holder in due course. Aloysius McLean, cashier of the First National Bank of Morrisonville, purchased these notes for the bank and transferred them to his brother-in-law, appellee. McLean testified as to the note for $685: I purchased that note on September 4, 1926, and paid $560 for it. Plaintiff’s Exhibit 1 is the bank draft that I issued in payment of it. As to the other three notes for $500 each he testified: I bought these from Mr. Barnes also on October 9, 1926. I issued a draft for them on October 9, 1926, for $2,000, and in return for that draft I got these three notes and my recollection is another one for $500. Plaintiff’s Exhibit A is the bank draft issued by me. In return for it I got these three notes here, A, B and C. Mr. Barnes is an attorney at Springfield. After I got these notes I just entered them up, didn’t do anything until about the time they came due. I sent them then to Harry B. Ilershey for collection. After that I authorized Hershey to turn them over to Bill Todt for collection. Mr. Todt was just acting as collector of these notes at my direction. Mr. Todt never paid me anything for these notes. Mr. G-auble and I bought the $685 note and the First National Bank the $1,500. I don’t mean to tell the jury that as cashier of the First National Bank of Morrisonville that I paid $2,000 for three $500 notes. I thought there was another note in-eluded in that. I am not dead sure. A discount was probably included in this $2,000. I judge the discount would run about 15 per cent to 18 per cent on all of the notes. If the three $500 notes had been discounted as much as 18 per cent that would be the discount from the face of the note. They drew only 5 per cent interest, of course. I don’t know what they were discounted for, but my recollection was that they were discounted for 15 per cent to 18 per cent. I do not recollect the transactions. I did not bring a record to the bank to show the transactions. My understanding is that I got the notes from Cary Barnes. I don’t remember. I talked to Cary Barnes at the time of this transaction. It was at the bank. I never heard of him buying or purchasing commercial paper. He lives at Springfield. I did not know Mr. and Mrs. Shull at that time. I made inquiry as to where they lived. The notes had a financial statement on them when I looked them over. I looked up their land and seen where it was located. The Exhibit D has the post office address in the corner.

It was just the same as it is now except the filling on it. I made no efforts to communicate with the Shulls. I did not take any time between my talk with Barnes and my trade with him later to investigate these three $500 notes any more than the statement attached to it and looking up to see where their land was located in Christian county. I am not positive whether I had some experience with Percy B. Sullivan before this time or not. I know Lee Perrine. I never knew he had any litigation over one of these Standard Light Company notes. I suppose I have known Percy B. Sullivan for two years. I knew he was selling light plants; had known he was in that business from the time we purchased a note prior to this one. That was probably when it was. I don’t remember how long prior to this one it was. It was the one of William J. Kitchell, who lives east of Morrisonville. Mr. Todt is in the real estate, insurance and collecting agency. He is my brother-in-law. I think I first communicated with him personally about this affair. I think I told Mr. Todt to take judgment about the time they were put in judgment. The first note was $685 and we gave $560 for it.

On redirect examination the witness testified: The prevailing rate of interest on money loaned at that time was 7 per cent. When I was on the stand before I said on direct examination that this represented three notes and another $500 note. I now want to correct it. I got all balled up on it. That represents two other $500 notes to my recollection.

This is all of the testimony offered to show that McLean or the bank was a holder in due course of the notes. On the $685 note McLean exacted $125 in discount for cashing the note. On the whole testimony of McLean there is nothing to show what was paid for the three $500 notes. The burden of proof was upon appellee to show that he received the notes from a holder in due course.

In Auten v. Gruner, 90 Ill. 300, 301, a similar case, the court said: “It is said defendant ought to have suspected such dealers as the payee of the note, and been more on his guard to avoid imposition. There is quite as much reason for saying that plaintiffs ought to have dealt cautiously and suspiciously with the payee as defendant. Plaintiffs are bankers doing business in the village of Princeville. It was known to them the payee of the note they were about to and did purchase was a stranger in the village, stopping at the hotel, and was engaged in selling churns through the country. The fact such a dealer presented the notes of farmers, residing in the vicinity, for sale at an unusually large discount for good paper, was itself a suspicious circumstance, and was enough to awaken inquiry in the mind of any reasonably cautious person as to the consideration, before buying. Such inquiry could readily have been made, as the maker resided in the vicinity of the village, and the truth ascertained. ’ ’

In Foncannon v. Lewis, 327 Ill. 455, 462, the court held:

“The evidence that the transferee of a negotiable instrument is a holder in due course may be so indubitable as to make it the duty of the trial court to direct a verdict in his favor even though it be established that the instrument was induced by fraud on the part of the payee. Where, however, there is direct and positive testimony to the effect that the plaintiff is a holder in due course, yet if fair and reasonable inferences tending to prove bad faith may be reasonably drawn from the facts and circumstances surrounding the negotiation and purchase of the instrument, the question whether the plaintiff is a holder in due course becomes one of fact for the determination of the jury. (Second Nat. Bank v. Scanlon, 196 Iowa 1305; Commercial Savings Bank v. Colthurst, 195 id. 1032; Phillips v. Eldridge, 221 Mass. 103.) Upon the evidence, and the inferences which may be properly drawn therefrom, the case should have been submitted to the jury, and the trial court erred in directing a verdict for the defendant in error. ’ ’

In Traders Investment Co. v. Kalas, 246 Ill. App. 511, 516, a very similar case, the court held:

“The controlling question in the case is whether the court erred in directing a verdict for the plaintiff. That question must be decided by a construction of certain sections of the Negotiable Instruments Law (see Cahill’s St. ch. 98; Smith-Hurd’s Ill. Rev. St. 1927, ch. 98, p. 1860). Section 55 of the act provides in substance that the title of the person who negotiates an instrument is defective within the meaning of the act when he obtains the instrument or any signature thereto by fraud, duress, force or fear, or -other unlawful means, or for an illegal consideration, or when he negotiates it in breach of faith, or under such circumstances as amount to a fraud. ’ Section 58, Ca-hill’s St. ch. 98, ¶ 78, provides in substance that in the hands of any holder other than a holder in due course, a negotiable instrument is subject to the same defenses as if it were non-negotiable, and section 59, Cahill’s St. ch. 98, ¶ 79, provides that every holder is deemed prima facie to be a holder in due course, but when it is shown that the title of any person who has negotiated the instrument is defective, the burden is on the holder to prove that he, or some person under whom he claims, acquired the title as a holder in due course. The last-mentioned rule does not apply in favor of a party who became bound on the instrument prior to the acquisition of such defective title. Section 52, Cahill’s St. ch. 98, ¶ 72, defines the holder in due course as—

“ ‘A holder in due course is a holder who has taken the instrument under the following conditions:

“ ‘1. That the instrument is complete and regular upon its face.

“ ‘2. That he became the holder of it before it was overdue, and without notice that it has been previously dishonored, if such was the fact.

“ '3. That he took it in good faith and for value.

“ ‘4. That at the time it was negotiated to him he had no notice of any infirmity in the instrument or defect in the title of the person negotiating it. ’

“If the testimony of these defendants was true (and they had a right to have a jury pass upon the question of whether it was or not) a jury could have reasonably found that the note was given to Reiss upon the agreement that it should not be negotiated until the garage had been completed according to the contract, and this being true, the burden of proof was cast upon the plaintiff (under section 59 of the Negotiable Instruments Act, Cahill’s St. ch. 98, H 79) to prove that he was a holder in due course.

“The plaintiff upon rebuttal introduced some evidence tending to show that it was a holder in due course, and it showed that it purchased the note in question on the date of its execution and paid cash for it, but how much cash is not disclosed by the evidence. It offered no evidence other than this tending to show good faith on its part. This proof did not exclude the possibility- of bad faith, and one purchasing in bad faith would not be a holder in due course. In view of the plain provisions of the statute it is unnecessary to cite authorities. Bell v. McDonald, 308 Ill. 329, however, seems to be conclusive.”

Other errors are pointed out which we do not deem necessary to comment upon at this time.

In the state of the proof it was error for the court to instruct the jury to find for appellee and the judgment of the circuit court of Christian county is reversed and the cause remanded.

jReversed and remanded.


source: Caselaw Access Project

author: Mr. Presiding Justice Shurtleff

license: Public Domain

text:
    The People of the State of Illinois, Defendant in Error, v. Charles Jiras, Plaintiff in Error.
    Gen. No. 8,441.

      Heard in this court at the December term, 1929.
    Opinion filed January 26, 1931.
    Harris & Harris and George G. Binier, for plaintiff in error.
    Oscar E. Carlstrom, Attorney General, Geo. P. O ’Breen, Assistant Attorney General, and Wallace A. Walker, State’s Attorney, for defendant in error; B. B. O’Harra, of counsel.
   Mr. Presiding Justice Shurtleff

delivered the opinion of the court.

This is a prosecution by indictment for violation of the Medical Practice Act of the State of Illinois, Cahill’s St. ch. 91, fí 1 et seq. The original indictment in the case was returned by the grand jury at the May Term, 1929, of the circuit court of McDonough county, containing seven counts, i. e., six of said counts, numbers one, three, four, five, six and seven, named plaintiff in error, Charles W. Jiras, and count number two named one Elizabeth Jiras. The jury returned a verdict of guilty on only one count — the fourth count— and the five remaining counts, except number two naming Elizabeth Jiras, are immaterial here.

The second count, omitting the formal allegations, charges that one Elizabeth Jiras, on the 13th day of May, 1929, “did wilfully and unlawfully- hold herself out to the public as being engaged in the diagnosis and treatment of ailments of human beings as a profession, not then and there possessing in full force and virtue, a valid license issued by the authority of the State of Illinois, to practice the treatment of human ailments in any manner.”

The fourth count, omitting the formal allegations, charges that the defendant, Charles Jiras, on the 13th day of May, 1929, “not then and there possessing a valid license, in full force and virtue, issued by authority of the State of Illinois, to practice the treatment of human ailments in any manner, did then and there maintain an office for the examination and treatment by him, the said Charles Jiras, of persons afflicted and alleged and supposed to be afflicted by human ailments.”

A motion to quash both of these counts of the indictment was made in the trial court and overruled. Motions to require the State’s Attorney to elect upon which count or counts he would rely for conviction were made at the opening of the trial and at the close of the People’s evidence, both of which were overruled. A motion for a bill of particulars was made at the opening of the trial and overruled. A motion to strike all the People’s evidence from the record was made and overruled at the close of the People’s case. The defendant pleaded not guilty.

Twelve witnesses testified on behalf of the People, five of whom testified that they had been treated for human ailments by Charles Jiras, who had lived in Colchester for about six years; that the defendant had a place of business on the south side of the railroad track on the street running east and west in the business district of Colchester, Illinois; that business houses occupied the space a block east and one or two blocks west of Jiras ’ place of business; that in going into his place of business a waiting room is first entered in which are chairs, a desk, a hat rack and the usual reception room furniture. There are four rooms in the building, in one of which are two or three cots, a stove and a table; another is the office room of Charles Jiras, in which the testimony showed there was a long bench table on which the patients lay while taking treatments. The treatments were described as rubbing up and down the spine and, in one instance, hitting at certain places on the backbone. The plaintiff in error received pay for his services amounting to $1 a time at the office and $2 when he visited the home of a person.

During the spring of 1929, Colchester had a scarlet fever epidemic. One of the pupils, Gilford Lester, was absent from school and, on his return, presented a certificate from the defendant showing a physical examination and a statement as to health condition.

It was also shown that within 18 months prior to the filing of the indictment the sign, “Jiras & Jiras, Chiropractors,” was on the window of the place of business wherein the treatments by the defendants were given.

The jury rendered a verdict finding the defendant guilty on the fourth count of the indictment, and, after overruling motions for a new trial and in arrest of judgment, the court entered judgment on the verdict and sentenced the defendant to pay a fine of five hundred dollars and costs and to stand committed until said fine and costs were paid. Plaintiff in error has brought the record, by writ of error, to this court for review.

It is first contended that on the motion to quash the court should have quashed the fourth count of the indictment as not stating a cause of action, citing People v. Brown, 336 Ill. 257, 258. In People v. Brown, supra, the indictment charged that he “did wilfully and unlawfully practice a system or method of treating human ailments without the use of drugs or medicine and without operative surgery, without a valid existing license so to do.” The court said:

“The first contention of the plaintiff in error is that the information is not sufficiently specific to advise him of the nature and cause of the accusation or to state an offense punishable under said act. From our view of the case that is the only contention which needs to be considered. Section 9 of article 2 of the constitution provides that in all criminal prosecutions the accused shall have the right to demand the nature and cause of the accusation against him. The purpose of this guaranty is to give the accused such specific' designation of the offense as will enable him to prepare his defense and to plead the judgment in bar of a subsequent prosecution for the same offense. People v. Barnes, 314 Ill. 140; West v. People, 137 id 189; People v. Clark, 256 id. 14; People v. Covitz, 262 id. 514.

“The information is in the language of that portion of section 2 of the Medical Practice act which reads as follows: ‘No person shall practice . . . any system or method of treating human ailments without the use of drugs or medicines and without oper-. ative surgery, without a valid, existing license so to do.’ It is the position of the defendant in error that the information is sufficient because it is substantially in the language of the statute. The general rule is that it is sufficient to state the offense in the language of the statute, but this rule applies only where the statute sufficiently defines the crime. Where the statute creating the offense does not describe the act or acts which compose it, they must be specifically averred in the indictment or information. (People v. Barnes, supra; Johnson v. People, 113 Ill. 99; Kibs v. People, 81 id. 599; People v. Lewis, 319 id. 154; McNair v. People, 89 id. 441; Cochran v. People, 175 id. 28; Gunning v. People, 189 id. 165; Prichard v. People, 149 id. 50.) The rule as laid down in Wharton’s Criminal Pleading and Practice (sec. 220) is as follows: ‘On the general principles of common law.pleading it may be said that it is sufficient to frame the indictment in the words of the statute in all cases where the statute so far individuates the offense that the offender has proper notice, from the mere adoption of the statutory terms, what the offense he is to be tried for really is, but in no other case is it sufficient to follow the words of the statute. It is no more allowable, under a statutory charge, to put the defendant upon trial without specification of the offense than it would be under a common law charge.’ See, also, 1 Bishop on Crim. Proc. secs. 369, 370, and cases cited.

“Section 2 does not state what act or acts may be regarded as constituting the practice of a system or method of treating human ailments. Neither is such practice elsewhere in the act otherwise defined. As to what constitutes such practice, courts and juries would quite often differ and perhaps no two persons would ever entirely agree. There are certain acts the commission of which everyone will agree would constitute such practice. An information or indictment in which such acts are specifically averred would be a sufficient charge of the violation of the section, but without such averment there is no sufficient statement of the nature and cause of the accusation. The defendant in error relies on People v. Krause, 291 Ill. 64, and People v. Walder, 317 id. 524, as authority for the sufficiency of the information here. The information in the Krause case was under the act of 1917, in which the phrase ‘treating human ailments’ was specifically defined. Not only that, but there the information specifically averred the manner of treatment employed and set forth the name of the person so treated. In the Walder case the sufficiency of the indictment was not questioned or determined.”

In the Brown case the offense charged is “that he practiced a system or method of treating human ailments without the use of drugs or medicine,” etc. and in the case at bar the charge is that the plaintiff in error did “maintain an office for the examination and treatment ... of persons afflicted, alleged and supposed to be afflicted by human ailments.” In neither case does the indictment state or charge what act or acts was performed or intended to be performed as constituting the practice of a system or method of treating human ailments. The indictment in this case contains the same defect as that contained in People v. Brown, supra, and the motion to quash should have been sustained.

The indictment further charged several offenses against plaintiff in error and the second count charged a substantive offense against another with which plaintiff in error is not joined. This was an error for which the indictment should have been quashed. Different persons cannot be tried upon different charges in the same indictment. (Baker v. People, 105 Ill. 452-458; People v. Hallam, 149 Ill, App. 384, 386.)

In the case at bar neither defendant was charged with joining the other in the commission of any offense.

For the reasons stated the judgment of the county court of McDonough county is reversed.

Reversed.


text:
    M. F. Dunlap, Defendant in Error, v. Chas. M. Peirce et al., Plaintiffs in Error. Chas. M. Peirce and Ella B. Peirce, Plaintiffs in Error, v. M. F. Dunlap et al., Defendants in Error.
    Gen. No. 8,447.
    Heard in this court at the October term, 1930.
    Opinion filed January 26, 1931.
    H. J. Thompson, George C. Weaver and Chas. M. Peiroe, for plaintiffs in error.

      John J. Reeve and Bellatti & Moriarty, for defendant in error.
   Mr. Presiding Justice Shurtleff

delivered the opinion of the court.

In this case originally M. P. Dunlap, defendant in error, filed a bill in the circuit court of Pike county, Illinois, to foreclose a mortgage against the plaintiffs in error. Plaintiffs in error answered the bill and filed a cross-bill, making M. F. Dunlap, William Pete-fish, Otis E. Taylor and Claude C. Petefish defendants to the cross-bill. Answers and replications were filed, evidence taken, and a decree rendered by the circuit court of Pike county in favor of M. F. Dunlap, defendant in error, for the foreclosure of his mortgage. The plaintiffs in error removed that cause to this court and upon hearing this court reversed the decree of the circuit court of Pike county, with directions to dismiss the bill of M. F. Dunlap for want of equity. M. F. Dunlap, together with his codefendants in the said cross-bill, removed the cause to the Supreme Court of this State, and upon hearing in that court the court reversed the judgment of the Appellate Court and reversed the decree of the circuit court of Pike county, and remanded the cause to the circuit court of Pike county, using the following language: “As such assignee, Dunlap is entitled to foreclosure of this mortgage in the sum of $20,000 with interest from January 1, 1925, less such credits, if any there be, as may be shown by the report of the receiver appointed by the court. •

“The decree of the circuit court and the judgment of the Appellate Court are reversed, and the cause remanded to the circuit court, with directions to enter a decree for the foreclosure and. sale in accordance with the views herein expressed.”

Defendant in error M. F. Dunlap; obtained the, mandate from the Supreme Court and upon proper notice to the plaintiffs in error, the mandate was filed, together with a motion by Dunlap to reinstate the cause. Plaintiffs in error filed objections to the reinstatement of the cause, which upon hearing in the circuit court were overruled and the mandate ordered filed and the cause reinstated. Thereupon plaintiffs in error filed a petition and later, by leave of court, filed an amended petition. M. P. Dunlap, defendant in error, filed his motion to strike the petition of the plaintiffs in error from the files on the ground that the petition prayed the circuit court to enter a decree different from the decree directed to be entered by the Supreme Court, and after the amended petition was filed amended his motion to apply to all that portion of the amended petition which set up facts and prayed the circuit court to enter a decree other than the decree directed to be entered by the mandate of the Supreme Court, and answered the' other parts of the petition. The petition did not waive the answer under oath, hence Dunlap’s answer to the amended petition was under oath.

The circuit court sustained the motion to strike the amended petition so far as it prayed for a decree different from the decree authorized by the mandate of the Supreme Court and upon a final hearing the circuit court dismissed the petition of the plaintiffs in error for want of equity.

The mandate of the Supreme Court required that the circuit court should ascertain what, if any, credits should be given to the plaintiffs in error as shown by the report of the receiver. The receiver filed his report and afterwards, by leave of court, filed unamended report. The plaintiffs in error filed objections to the report of the receiver and evidence was heard upon said objections. Upon hearing the objections and the evidence, the circuit court overruled the objections and approved the amended report and entered a decree of foreclosure in favor of M. F. Dunlap for $20,000 with interest from January 1, 1925, and the court found that there was no credit to be allowed as shown by the report of the receiver.

A further statement of the facts is to be found in Dunlap v. Peirce, 253 Ill. App. 1, and Dunlap v. Peirce, 336 Ill. 178.

It is further shown by the petition filed by the plaintiffs in error in the court below, after the remanding order was entered in that court, that no supersedeas having been obtained in the Pike county circuit court when the original proceedings were brought to this court that the master in chancery, in accordance with the decree of the circuit court of Pike county, advertised the lands described in the bill of complaint for sale, and sold the same on August 13, 1927; that M. F. Dunlap at said sale bid off the property described in the bill of complaint, subject to a first mortgage of $60,000 in favor- of the Prudential Life Insurance Company, for the sum of $66,000; that the original bill of complaint to foreclose was in the name of M. F. Dunlap, sole complainant, who sought to foreclose indebtedness evidenced by notes amounting to $90,000 principal and interest thereon, secured by second mortgage on the tract of land described in the original bill of complaint; that the original decree in said foreclosure suit which came by writ of error to this court fixed the amount of the indebtedness0 in favor of complainant at $88,379.69 and directed the sale of the land to satisfy the decree, subject to the first mortgage of $60,000. The amended petition filed by plaintiffs in error in this cause when the cause was reinstated after the decision by the Supreme Court, sets out the various steps of litigation and the fact that the master sold the land in the bill described on August 13, 1927, to M. F. Dunlap for $66,000, subject to the first mortgage; that the said master made settlement with the purchaser, M. F. Dunlap, by the said M. F. Dunlap paying cash to the master in the sum of $719.50, being the costs taxed by the master in said foreclosure suit and by receipting to said master for the residue, amounting to $65,280.50, and the master made a report of sale; that immediately after said settlement the master issued to the purchaser, M. F. Dunlap, a certificate of sale and recorded a duplicate certificate with the recorder of Pike county in due form; that at the June term, 1927, of the circuit court of Pike county, the purchaser, M. F. Dunlap, procured an order and judgment of said court confirming the master’s report of sale vesting title of the premises so conveyed by certificate of purchase in M. F. Dunlap, subject only to the statutory right of redemption and that the judgment of the circuit court confirming the sale was filed September 9, 1927.

It is now contended by plaintiffs in error that the period of redemption having expired and defendant in error Dunlap, having purchased the lands under the former decree, which has been reversed, for the sum of $66,000, subject to the first mortgage, that defendant in error should be decreed the owner of said lands and be required to pay back to the plaintiffs in error, Charles M. Peirce and Ella B. Peirce, the owners of the equity in redemption, the difference between the sale price of the lands under the former decree, amounting to $66,000, and the amount of the indebtedness found against plaintiffs in error by this decree, amounting to the sum of $20,000, with interest thereon to the date of the decree, principal and interest amounting to the sum of $26,100.

In the court below in the accounting over the receivership, it was found that the receiver, in the payment of taxes, interest upon the first mortgage of $60,000 and other expenses, had paid and disbursed $27,665.85 more than he had taken in in receipts, which by the decree was adjudged a part of the costs and provided by the decree to be paid out of the sale of the lands on foreclosure. Plaintiffs in error contend that the large portion of the disbursements, having been paid out by the receiver for the benefit of the defendant in error, Dunlap, after he became the owner of the land under the first foreclosure sale, should not be charged to plaintiffs in error or deducted in any manner from the sale of the lands.

The questions now raised in this case are as to the proper entry of the remanding order from the Supreme Court, the effect of the first foreclosure suit and sale thereunder, as set out, and the consideration of the receiver’s report, if the same is before us for consideration. On an examination of the record we do not find that the receiver was made a party to this writ of error and therefore no question cambe raised in this cause as to any of his accounts. Haigh v. Carroll, 197 Ill. 193.

This cause was reversed and remanded by the Supreme Court with specific directions to enter a decree as hereinbefore set out. It is the duty of the lower court to carry into execution the unambiguous mandate of the upper court as transmitted to it. The trial court must obey the mandate of the court of review. When a decree is reversed and the cause remanded, with specific directions, the court below has no discretion but must pursue the mandate of the Appellate Court and such proceedings cannot be assigned for error. When a case has been remanded with directions to do some act, the only course open to the lower court is to make effective the judgment of the higher court and the failure to do so would be reversible error. (Muhlke v. Muhlke, 285 Ill. 325; Pittsburg, Cincinnati, Chicago & St. Louis Ry. Co. v. Gage, 286 Ill. 213; People v. Scanlon, 294 Ill. 64; Wolkau v. Wolkau, 299 Ill. 176).

The effect of the reversal of the decree of the circuit court by the Supreme Court was to abrogate it and the cause stood in the circuit court precisely as it did before the entry of the decree. The decree was in effect expunged from the records and the parties to the litigation were restored to their original rights. The sale made by the master in chancery, pursuant to the decree of the circuit court, and the certificate of purchase issued by him to defendant in error Dunlap, were rendered null and void and abrogated and the order of the circuit court approving the report of sale of the master in chancery was likewise abrogated and expunged from the record. Dunlap, who was complainant in the suit, did not acquire any rights or interests by becoming the purchaser at such sale and receiving a certificate of purchase that was not abrogated by the subsequent reversal of the decree. Titles acquired by parties to the record under an erroneous decree or judgment will be divested by the subsequent reversal of such decree or judgment. (Freeman on Judgments, section 481; Ure v. Ure, 223 Ill. 454, 463; McJilton v. Love, 13 Ill. 486.)

In Ure v. Ure, 223 Ill. 454, it was held,

“9. The effect of reversing the decree of January 4, 1892, was to abrogate it, and the cause stood in the circuit court precisely as it did before the entry of the decree. The decree was, in effect, expunged from the records and the parties to the litigation were restored to their original rights. (McJilton v. Love, 13 Ill. 486; Chickering v. Failes, 29 id. 294; Cable v. Ellis, 120 id. 136; Aurora and Geneva) Railway Co. v. Harvey, 178 id. 477; Freeman on Judgments, sec. 481.) A party to a suit is presumed to know of all the errors in the record, and such party cannot acquire any rights or interests based on such erroneous decree that will not be abrogated by a subsequent reversal thereof. If such party has received benefits from the erroneous decree or judgment, he must, after reversal, make restitution, and if he has sold property erroneously adjudged to belong to him he must account to the true . owner for the value. Titles acquired by parties to the record under an erroneous decree or judgment will be divested by the subsequent reversal of such decree or judgment, but a different rule applies where a stranger to the proceeding, without notice, acquires rights under the decree before reversal. His title will not be affected. Innocent third parties have a right to rely upon a judgment or decree of a court having jurisdiction to pronounce it. They are not required to look beyond the question of jurisdiction, and if the decree is one which the court has jurisdiction to render both as to the subject matter and the parties, innocent purchasers acting in good faith will be protected, notwithstanding the subsequent reversal of the decree or judgment. Montanye v. Wallahan, 84 Ill. 355; Thompson v. Frew, 107 id. 478; Crawford v. Thompson, 161 id. 161.

“10. It follows from the rules above announced that the sale of lot J by Robert to John, being a transaction between the parties to the erroneous decree, must be set aside and the grantor must restore to the grantee the net proceeds received from such sale.”

In McJilton v. Love, 13 Ill. 486, the court held:

“What was the effect of that reversal upon the rights of the parties? It restored the entry of satisfaction and left the judgment discharged of record. It exonerated Love from the payment of any part of the judgment to Field and Hall. It left the judgment in this State without the least foundation upon which to rest. The law is well settled that if a judgment is reversed, the parties are to be restored to their original rights, so far as it can be done without prejudice to third persons. If the plaintiff has derived any benefit from the judgment, he must make as full restitution to the defendant as the circumstances of the case will permit. If he has received payment in money from the defendant, the latter can recover it back in an action of indebitatus assumpsit. If he has obtained money by the sale of the property of the defendant, the latter may recover it as so much money had and received to his use. If he has purchased property under the judgment, and still retains the ownership, the defendant may recover the specific property in the appropriate action. If he has aliened the property, he is responsible to the defendant for its value. But the rights of third persons are not affected. Their title to property acquired under an erroneous judgment is not divested by its reversal. In such case, the defendant must look to the plaintiff for redress. These principles are too well established by authority to require further discussion. Bank of United States v. Bank of Washington, 6 Peters, 8; Clark v. Pinney, 6 Cowen, 297; Green v. Stone, 1 Harris & Johnson, 405; McLagan. v. Brown, 11 Ill. 519; Steelman v. Cheeseman, Pennington’s Rep. 120; Hubbel v. Broadwell’s Administrator, 8 Ohio 120.”

No title passes to a purchaser at a foreclosure sale until a deed is issued to him, and not then unless the deed is taken out by him within five years from the expiration of the time of redemption. Under section 16 of chapter 77 of the Revised Statutes, Cahill’s St. ch. 77, ji 16, it is provided that at such sale the master in chancery shall give to the purchaser a certificate describing the premises purchased by him, showing the amount paid therefor, or if purchased by the person in whose favor the execution or decree is, the amount of his bid. By section 31 of said chapter it is provided that when the premises mentioned in any such certificate shall not be redeemed pursuant to law, the legal holder, of such certificate shall be entitled to a deed therefor at any time within five years from the expiration of the time of redemption; and further provides that when such deed is not taken within the time limited by the act the certificate of purchase shall be null and void.

There can be no question but that in a proceeding between the parties to the suit and where the rights of third parties have not intervened, a reversal of a decree upon which a sale has been held cancels and renders null and void the sale. This covers the questions raised in this proceeding and finding no error in the decree of the circuit court of Pike county the decree is affirmed.

Affirmed.


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    Florence H. Turner et al., Appellees, v. Pierson Hollowell Walnut Company, Appellant.
    Gen. No. 8,468.

      Heard in this court at the October term, 1930.
    Opinion filed January 26, 1931.
    Geo. B. Rhoads, John J. Baker and Kenneth F. Kelly, for appellant.
    Steidley & Steidley, for appellees.
   Mr. Presiding Justice Shurtleff

delivered the opinion of the court.

On October 24, 1929, Florence H. Turner and Ralph Turner, her husband, the said Ralph Turner being conservator of one Anna Lorton by appointment of the county court of Fayette county, Illinois, appellees, brought this action in replevin before a justice of the peace in Shelbyville, Illinois, against Pierson-Hollowell Walnut Company of Danville, Hlinois, Baltimore & Ohio S. W. R. R. Company, and Aubrey Harris for the recovery of six smooth surfaced water-soaked walnut logs, which logs, appellees claimed, were unlawfully taken from the premises of appellees hy one Jesse Carlisle and sold by Carlisle to Aubrey Harris for Pierson-Hollowell Walnut Company, appellant, the said Harris being at that time engaged in the purchase of walnut logs for said appellant.

The case was tried before a justice of the peace without a jury and a judgment was given in favor of the appellant, a corporation. Appellees then appealed the case to the circuit court of Shelby county, a jury was waived and the cause was tried before the court. Judgment was rendered by the court in favor of appellees and against appellant, Pierson-Hollowell Walnut Company “That the plaintiffs have and retain the logs replevined.”

At the conclusion of the hearing in the circuit court the suit was, on motion of appellees, dismissed as to the defendants Aubrey Harris and the B. & O. S. W. Railroad Company, leaving as the sole defendant the Pierson-Hollowell Walnut Company, appellant.

Appellee Florence H. Turner is the owner of a part of the fee and of a life estate in a certain 40 acres of land in Bowling Creen township, Fayette county, which land lies immediately south of the south line of Shelby county., What is known as the Kaskaskia or Okaw River runs along the west side of the land in which appellee Florence H. Turner has a life estate, and the center of the Kaskaskia or Okaw River forms the western boundary of said land. This river is not navigable. The land on the west side of the Kaskaskia or Okaw River is owned by the Nichols brothers and their land extends also to the center of the river. Appellee Florence H. Turner has been in possession of the land involved under her life estate and by virtue of her part ownership of the fee for a number of years. The remainder of the fee is owned hy appellee Anna Lorton, for whom Ralph Turner is the duly appointed and acting conservator, and by the four minor children of Florence H. Turner, appellee.

The Kaskaskia or Okaw River runs in a southerly-direction along the west side of the Turner land and near the south part of the Turner land bends to the west, and then in a northwesterly direction, so that there is a bend in the river near the south line of the Turner land. This bend in the river, according to the claim of appellees, is some 30 or 40 corn rows north of the south line of the Turner land.

On or about September 30, 1929, a man by the name of Jesse Carlisle, who has no interest in any of the lands involved in this suit, and who, to all intents and purposes at the time was a trespasser, discovered a large walnut tree a short distance north of the bend in the river above referred to, which tree was lying in the bed of the river with the butt or large end about three feet from the east bank and lying in a southwesterly direction down the bed of the stream. According to witnesses this walnut tree had apparently lain in the river for many years, because the bark was off the tree and the surface of the tree was smooth. According to the witnesses this tree was about three and a half feet in diameter.

Jesse Carlisle, with the aid of several other parties, cut loose from said tree the protruding roots and a limb which had become imbedded in the sand in the bottom of the river, and then dragged the log, with the aid of a team, across from the east side of the river to the west side and upon the lands owned by Nichols brothers. The tree was then cut into six logs and sold by Jesse Carlisle to one Aubrey Harris, who was at that time acting as the purchasing agent for the appellant, Pierson-Hollowell Walnut Company of Danville, the amount received therefor not being disclosed by the evidence. These six logs were then taken by Harris to the village of Cowden and loaded upon a railroad car owned by the B. & O. S. W. Railroad Company, apparently for transportation. At about that time appellees served a demand for the possession of these logs on Jesse Carlisle, Aubrey Harris, the B. & O. S. W. Railroad Company and Aubrey Harris as agent of the Pierson-Hollowell Walnut Company, and upon the. refusal of said parties to deliver the logs to the plaintiffs, the appellees herein, this replevin suit was instituted.

It is the contention of the appellees that the tree in question was upon the Turner land, because the Turner land extends to the center of the river, and that by reason of this fact, Jesse Carlisle, who took the tree from the river, was a wrongdoer, not having obtained the right from the owners of the Turner land to remove the tree, and that the appellant, who purchased the logs from Carlisle, obtained no better title than Carlisle himself had at the time he sold them to Harris for the appellant company. It is further the contention of the appellees that Carlisle was a wrongdoer; that he did not come into possession of the six walnut logs lawfully and therefore no demand or notice was necessary before instituting the replevin suit on the part of the appellees.

Appellant has brought the record, by appeal, to this court for review.

There is no proof in the record that Carlisle owned any of the lands in the vicinity where the logs were found or that he purchased them from any person. The service of the demand in this case upon Aubrey Harris, agent of appellant, was sufficient' and proper service upon appellant. (Crowley, Cook & Co. v. Sumner, 97 Ill. App. 301; Armour & Co. v. Goldsmith & Seidel Co., 225 Ill. App. 331; R. M. Owen & Co. v. Johnson, 184 Ill. App. 90; Fahrig v. Milwaukee & Chicago Breweries, 113 Ill. App. 525.)

A grant of land bounded upon a river or its margin above tidewater, carries with it the exclusive right and title of the grantor to the center thread of the current, unless the terms of the grant clearly denote an intention to stop at the margin. Piper v. Connelly, 108 Ill. 646. The title of a proprietor on a river extends to the thread of the main channel, and his boundary changes with the variation of the center of the river’s main channel. Bellefontaine Improvement Co. v. Niedringhaus, 181 Ill. 426. As against a wrongdoer prior possession alone is sufficient to enable the plaintiff to maintain replevin. If the right of the plaintiff is better than that of the defendant, whatever it may be with regard to the rest of the world, possession is sufficient evidence of right against everyone who is neither the true owner nor rightfully possessed.

The property in the defendant, or a third person, sufficient to sustain a defense under such pleas, must be such as goes to destroy the interest of the plaintiff, which, if existing, would sustain the action, or, in other words, such as would defeat an action of trespass, if brought in place of this action in case of a wrongful taking, or trover, if brought for a wrongful detention. Van Namee v. Bradley, 69 Ill. 299.

In an action of replevin where ownership and right to possession are both alleged in the affidavit, if it be proved that the plaintiff is entitled to the possession of the property, that is sufficient, without proof of the allegation of the actual ownership contained in the affidavit. Bartleson v. Mason, 53 Ill. App. 644. Where an action of replevin is brought by the party entitled to possession for the recovery of property wrongfully taken, it is only necessary for him to prove his right to possession of the property to entitle him to a recovery. Blakely Printing Co. v. Pease, 95 Ill. App. 341. Where the plaintiff is in the rightful possession of the property, he is entitled to recover against a mere wrongdoer, notwithstanding a plea of property in a third person. Equitable Trust Co. v. Burley, 110 Ill. App. 538. In order to sustain his suit the party bringing an action of replevin must either be the owner or the person entitled to possession of the property sought to be replevied. Swain v. First Nat. Bank of Hutchinson, 100 Ill. App. 31. (Affirmed 201 Ill. 416.)

The provision of the statute that replevin may be brought for chattels by “the person entitled to their possession,” is declaratory of the common law, and intended to distinguish a special interest in the property from absolute ownership. Fullerton v. Morse, 162 Ill. 43.

The language, “or person entitled to their possession,” used in section 1 of the Replevin Act, Cahill’s St. ch. 119, fí 1, providing that replevin may be brought for the recovery of goods by the owner or person entitled to their possession, is intended to distinguish between the absolute owner and a person having a qualified or special interest, legal or equitable, in the property. Pease v. Ditto, 189 Ill. 456, reversing 82 Ill. App. 192. Possession of chattels is sufficient to give a right to maintain replevin against one talcing them without claim of right or title. Downey v. Arnold, 97 Ill. App. 91.

The lessee of land in making an excavation dug up a prehistoric boat, and it was held that the boat was the property of the owner of the land and that the lessee who found it had no right to it. Elwes v. Brigg Gas Co., 33 Ch. D. 562. An aerolite which has fallen to the earth belongs to the owner of the soil into which. it fell, and not to the person who finds it and digs it out. Goddard v. Winchell, 86 Iowa 71, 41 Am. St. Rep. 481.

The plaintiff was the owner in fee and in possession of land on which there was a pool of water. He employed the defendant and others to clean the pool and during the operation the defendant found two gold rings in the mud at the bottom of the pool. It was held that the plaintiff who owned the premises, and not the defendant who found the rings, was entitled to the possession of them. The general principle seems to be that where a person has possession of house or land with a manifest intention to exercise control over it and the property which may be upon or in it, then if something is found on that land, whether by employee of the owner or by a stranger, the presumption is that the possession of that thing is in the owner of the land in question. South Staffordshire Water Co. v. Sherman, 2 Q. B. 44.

The merits of this case depend entirely upon the fact as to the ownership of the lands upon which the log was found. It was attached by roots in the soil about three feet in the river from the east bank of the stream and before the stream had reached its southermost bend. This is shown by the plat of the witness O. W. Harris, county surveyor of Shelby county. Appellees produced deeds showing that the title to their lands went to the Okaw River on the east side of said river, and they produced many witnesses who testified that the appellees had been in possession of said lands down to the point where the log was found and to a point 300 feet farther south for a great many years, and that appellees had worked the lands. In appellees’ deeds nothing was mentioned as to what portion of the river was the boundary line. Harris, in making the plat and a purported survey, had before him no deeds, ran no lines and furnishes no memoranda and mentions no monuments of any kind, except some indications on the ground which he thought had been corn rows. A considerable number of witnesses also, on behalf of appellant, testified that the lands where the log was found were the lands of Bieber which lie immediately south of the Turner lands. There was also some testimony in the record that the river, at the south bend, in the years had moved south, although the physical proofs showed that this log had lain in the river where it was found for a great many years. We cannot say from the proofs in this record that the judgment is against the weight of the evidence. There is no survey, deed, monument or fact shown upon which such a finding could be made. The proofs in this respect do preponderate in favor of appellees.

We find no errors in the record that will warrant a reversal. Accordingly, the judgment of the circuit court of Shelby county is affirmed.

Affirmed.


text:
    The People of the State of Illinois ex rel. Edward Holvey et al., Appellants, v. Hal M. Smith et al., Appellees.
    Gen. No, 8,481.

      Heard in this court at the October term, 1930.
    Opinion filed January 26, 1931.
    A. M. Fitzgerald and H. 0. Moore, for appellants.
    Stevens & Herndon, for appellees; A. D. Stevens, of counsel.
   Mr. Presiding Justice Shurtleff

delivered the opinion of the court.

This is an appeal from the judgment of the circuit court of Sangamon county, entered after the court had sustained a demurrer to appellant’s petition for writ of mandamus. Appellants stood by their petition and the suit was dismissed. The petition alleges that petitioners are qualified electors of the City of Springfield', who are also signers of a petition initiating an ordinance for the purpose of increasing the salaries of members of the Springfield Fire Department. It further alleges that more than the necessary statutory number of signers filed the petition for the passage of snob ordinance and that the petition and or.dinanee were properly presented to the city officials, who thereafter did not pass such ordinance in accordance with the statute and refused to call the special election provided by the Commission Form of Government Act for the purpose of submitting such ordinance without change to the electors. A general demurrer was filed to this petition. No question was raised as to the petition being a technical compliance with the requiremnets of the law; none as to the form of the ordinance. The sole question here presented is whether or not the proposed ordinance is within the purview of section 47 of the Commission Form of Government Act of March 10, 1910; in force July 1, 1910, Cahill’s St. ch. 24, |f 370, which provides for the initiation of ordinances in that type of municipal government.

Petitioners contend that their petition stated a clear legal right and that this ordinance is a proper method of providing for such increase of salaries and that under the provisions of the statute it was mandatory upon the mayor and commissioners to either pass the ordinance without modification within 30 days after the petition and ordinance were filed with the city clerk, or thereafter call a special election for its submission to the electors of the city. Respondents contend that it is not such an ordinance as is contemplated by section 47 of this Act, Cahill’s St. ch. 24, |f 370, but that the subject matter of the proposed ordinance is executive and not legislative.; that an ordinance is not the proper method of fixing salaries and that it is purely a matter within the discretion and control' of the mayor and commissioners.

For an understanding of this question, it is necessary to recite some of the provisions of the Commission Form of Government Act. Section 25 of the Act, Ca-hill’s St. ch. 24, |f 348, provides:

“The council shall have the power, by ordinance, from time to time, to create, fill and discontinue offices and employment other than herein prescribed, according to their judgment of the needs of the city or village; and may, by majority vote of all the members, remove any such officer or employee appointed by them, except as otherwise provided for in this Act; and may, by resolution or otherwise, prescribe, limit or change the compensation of all appointive officers or employees.”

Under sections 24, 25, 27 and 28 of the Act, Cahill’s St. eh. 24, Ulf 347, 348, 350, 351, it is contended that members of the fire department are appointive by the mayor or proper commissioner. Section 47 of the Act, Cahill’s St. ch. 24, 370, provides:

“Any proposed ordinance may be .submitted to the council by petition signed by electors of the city or village, equal in number to the percentage hereinafter required. The signature, verification, authentication, inspection, certification and submission of such petition shall be the same as provided for petitions under section 42 hereof: Provided, such petition shall be filed with the city or village clerk.

“If the petition accompanying the proposed ordinance be signed by electors equal in number to twenty-five per centum of the votes cast for all candidates for mayor at the last preceding general municipal election, and contains a request that the said ordinance be submitted to a vote of the people if not passed by the council, such council shall either

“ (a) Pass such ordinance without alteration within thirty days after the filing of the same with the clerk, or

“(b) Forthwith after thirty days from .the time of filing such petition, shall have expired, the council shall call a special election, unless a general municipal election occurs within ninety days thereafter, and at such special or general election, such ordinance shall be submitted without alteration to the vote of the electors of said city.”

It is contended by appellees that section 47 of the Act uses the word “ordinance” exclusively in designating actions subject to initiative and referendum; on the other hand, section 25 expressly permits councils to prescribe, limit or change the “compensation of all appointive officers or employees” by “resolution.” By this exclusive use of the word “ordinance” in section 47, and the use of the word “resolution” in section 25, actions fixing, limiting or changing the compensation of firemen are clearly excluded from the operation of section 47.

Appellees cite Higler v. City of Cairo, 245 Ill. App. 283, which holds: ‘ ‘ The term of the office of chief of police of a city under a commission form of government is not fixed by the constitution or by any statute. The chief of police may be removed from office at any time. Cahill’s St. ch. 24, HU 348, 352. While appellee was appointed annually and presumably for a period of one year, yet, he simply held the office during the pleasure of the appointing power and his salary could be raised, lowered or entirely revoked at any time without violating any constitutional provision. Quernheim v. Asselmeier, 296 Ill. 494.”

Quernheim v. Asselmeier cited, is a case of an officer under the county board. Section- 25, supra, of the Commission Form of Government Act is also cited and referred to. Section 30 of the Act, Cahill’s St. ch. 24, if 353, by statute, fixes the salaries of the commissioners and mayor, and section 31, Cahill’s St. ch. 24, U354, provides: “All other officers, assistants or employes of such city or village shall receive such salary or compensation as the council thereof shall by ordinance provide, payable monthly or at such shorter periods as the council may determine, but no change shall be made in said salaries during the six months’ period preceding any regular biennial election.”

The general powers of the council are set out in section 23, Cahill’s St. ch. 24, If 345, and are as follows: “The council shall have and possess, and the council and its members shall exercise all executive and legislative powers and duties now had, possessed and exercised by the mayor, city council, president and board of trustees of villages, board of library trustees, city clerk, city attorney, city engineer, city treasurer, city comptroller and all other executive, legislative and administrative officers in cities or villages now or hereinafter organized and incorporated under the general incorporation law of the State of Illinois for the incorporation of cities and villages, except that in each city or village organized under and adopting the provisions of this Act the board of local improvements, provided for, in and by an Act entitled, “An Act concerning local improvements,” approved June 14,1897, in force July 1,1897. . . .

“The executive and administrative powers, authority and duties in such cities and villages shall be distributed into and among five departments, as follows:

“1. Department of public affairs.

“2. Department of accounts and finances.

“3. Department of public health and safety.

“4. Department of streets and public improvements.

“5. Department of public property.

“The council shall, by ordinance, determine the powers and duties of, and to be performed by, each department and assign them to the appropriate departments ; shall prescribe the powers and duties of officers and employees and may assign employees to one or more of the departments; may require an officer or employee to perform duties in two or more departments, and may make such other rules and regulations as may be necessary or proper for the efficient and economical conduct of the business of the city or village. ’ ’ This indicates that the commissioners may execute all functions of municipal government as theretofore executed by mayors and city councils and president and board of trustees of villages in the manner as .provided in this Act. *

Appellees in their brief and argument have happily provided us with the rules as to the distinction between .ordinances and mere resolutions of a city council or city commission, and we insert: “Prior to the adoption of the Commission Form Act, the word ‘ordinance’ had been defined as that form or method of city action appropriate to the passage of a ‘law’" of the city. It was the form which action by the city council making permanent, continuing rules affecting the city as a whole, should take.

“On, the other hand, a ‘resolution’ had been defined as the appropriate form for actions, of a special or temporary character, and what the law required to be put in the form of an ordinánce could not validly be accomplished by a resolution.

“In the case of C. & N. P. R. R. Co. v. City of Chicago, 174 Ill..439, 445, the Supreme Court say: ‘A resolution or order is not a law, but merely the form in which the legislative body expresses an opinion. An ordinance prescribes a permanent rule of conduct or government, while a resolution is of a special and temporary character. Acts of legislation by a municipal, corporation, which are to have continuing force and effect, must.be embodied in ordinances, while mere ministerial acts may be in the form of resolutions.’

- • “In the case of Village of Altamont v. B. & O. S. W. Ry. Co., 184 Ill. 47, 51, the Supreme Court say: ‘Acts eof legislation by a municipal corporation which establish a permanent rule of conduct or government, and which are to have a continuing force and effect, must be established by ordinance. ’

. “In the case of People v. Mount, 186 Ill. 560, 571, the Supreme Court say: ‘A municipality can only legislate through the passage of ordinances, and not by the passage of mere resolutions. It is well settled, that acts of legislation by a municipal corporation, which prescribe- a permanent rule of conduct or government, and which are to have a continuing force and effect, must be established by ordinance. (Chicago and Northern-Pacific Railroad Co. v. City of Chicago, 174 Ill. 439; Village of Altamont v. Baltimore and Ohio Southwestern Railway Co., 184 id. 47.) “So, matters upon which the council wishes to legislate must be put in the form of an ordinance, and all acts that are done in its ministerial capacity may be in the form of resolutions.” (17 Am. & Eng. Ency. of Law, p. 236.) “Resolutions are special and temporary, applicable only to a single matter of passing moment; ordinances are. permanent regulations, applicable to all states of facts thereafter arising within the scope of their provisions.” ’ ” It is rightfully contended that the legislature enacted the Commission Form of Government Act with a full knowledge as to how the terms “ordinance” and “resolution” had been construed.

Section 23 of the Act provides for the heads of departments and that their powers and duties shall be prescribed by ordinance. Section 24 provides for others officers that shall be elected by the city commissioners, and if their powers and duties are not prescribed by .ordinance they are subject to the provisions of the General Incorporation Act (supra). Section 30) provides by statute of the State the salaries of the mayor and city commissioners. Section 31 provides that; “all other officers, assistants or employees of such.city or village -shall receive such salary or compensation as the council thereof, shall by ordinance provide.” This certainly would include city firemen and showing at least, with these' provisions standing alone, that it would not be unlawful to fix the salary of city firemen by city ordinance, so there would be a fixed and permanent salary for such employees, and they would not be subject to the whims of the recurrent commissions. But appellees contend that this salient provision is meaningless and impossible by reason of section 25, cited supra.

Section 25 provides that “The council shall have the power, by ordinance, from time to time, to create, fill and discontinue offices and employment other than herein prescribed”; that is, offices and employments that have not before been mentioned in the Act, and proceeds: “And may, by majority vote of all the members, remove any such officer or employee appointed by them, except as otherwise provided for in this Act”; which may be construed that the words “except as otherwise provided for in this Act” mean unless prevented by a valid ordinance of said city. And the section proceeds, “and may, by resolution or otherwise,” the word “otherwise” meaning “by ordinance” if necessary, “prescribe, limit or change the compensation of all appointive officers or employees.” It has been the settled law of this State that an ordinance cannot be amended or modified by a resolution. (People v. Mount, 186 Ill. 560; City of Carlyle v. Nicolay, 333 Ill. 562, 568.)

Beading these sections together they become plain and simple. The mayor and commissioners may appoint city firemen and fix their compensation by resolution, if there is no ordinance upon the subject, under section 25, which would be a temporary action and depend entirely upon expediency. It would be equally lawful under sections 25 and 31 to provide for a permanent city fireman’s service and fix the salaries of firemen by ordinance, which would become law of said city and not subject to the whims and caprice of the succeeding city commissioners. If established by ordinance, the offices and salaries could not be changed by resolution. It is as illogical to contend that because the statute provides two methods for appointing firemen and fixing their compensation (by ordinance and resolution), that it can be done only by resolution as it would be to contend that it could be done only by an ordinance. It is contended by appellees that the fixing of the salaries of firemen is an administrative act. We know of no such authority. The appointment of the men may be purely administrative, and where the Act is adopted, administered under the Civil Service Act. The city council and the commissioners under this Act have full authority to ‘1 erect engine houses and provide fire engines, hose carts, hooks and ladders and other implements for prevention and extinguishment of fires, and provide for the use and management of the same by voluntary fire companies or otherwise,” under clause 64 of section 65 of the general Act, Cahill’s St. ch. 24, ft 65 (64). This power can be exercised much more fittingly by ordinance and only by ordinance if it is to be a permanent force. The commissioners also have power by ordinance only “To provide by ordinance in regard to the relation between all the officers and employees of the corporation in respect to each other, the cor- * poration and the people,” under clause 71 of said section 65 of the general Act, Cahill’s St. ch. 24, if 65 (71). In a city of the size of Springfield it would seem impossible to have an organized, effective fire department except the same was established by ordinance, as it doubtless is. It has been held that it is a proper function of a municipality by ordinance to create offices and fix the salaries or compensation to be paid (Bullis v. City of Chicago, 235 Ill. 472, 477; City of Carlyle v. Nicolay, 333 Ill. 562, 569), and, except for the language cited in said section 25, supra, that would be the rule in the Act under consideration. However, under all the provisions of the Act, we are of the opinion that such salaries and compensation may be fixed by ordinance, and inasmuch as section 47 of the Act provides that “any proposed ordinance may be submitted to the council by petition signed by the electors,” etc., we are of the opinion that the petitioners were within their rights under the Act to present the petition, and therefore it became the duty of the council to pass such ordinance, without alteration, within thirty days or to submit the same to a municipal vote of the electors. The subject is a proper subject for municipal regulation by ordinance, and while under the Act the council do have power to fix and regulate the salaries of firemen by resolution, until a proper ordinance is passed this in no manner is in derogation of the power of the council by „ ordinance or of the electorate by petition to initiate legislation by petition to place the subject upon a firm and permanent basis.

It follows that the judgment of the circuit court should be and is reversed and the cause remanded to said court, with directions to overrule the demurrer to said petition and require appellees to plead to said petition.

Reversed and remanded with directions.


text:
    M. C. Hughes, Appellee, v. First Acceptance Corporation and Ernest L. Fleming, Appellants.
    Gen. No. 8,488.

      Heard in this court at the October term, 1930.
    Opinion filed January 26, 1931.
    Arthur W. Corpin and James I. Walsh, for appellants ; George F. Breoher, of counsel.
    Ridgely & Ridgely, for appellee.
   Mr. Presiding Justice Shurtleff

delivered the opinion of the court.

The appellants in this case obtained judgment by confession in the circuit court of Cook county, Illinois, on May 3, 1927, against appellee. Later a transcript of this judgment" was filed in the office of the circuit clerk of Tazewell county, and about a year afterwards an execution was issued on the transcript by the clerk of the Tazewell county circuit court to the sheriff of that county, and a levy was made on part of the real estate owned by appellee.

When this was done appellee filed the bill in this case in the circuit court of Tazewell county, setting out the foregoing facts and alleging further that at the time judgment was taken in the circuit court of Cook county that he was not indebted to appellant on the note upon which judgment had been entered and that the same had been paid in full; that the so-called power of attorney under which said judgment was obtained was void and of no effect; that appellee had no notice of the entry of said judgment until after same was taken; that appellee is the owner of certain lands in Tazewell county, and that the transcript of said judgment is a cloud upon the title to said lands.

Appellee further alleged that upon information and belief the sheriff was about to sell the real estate levied upon by him, and that unless restrained by writ of injunction the sheriff would advertise and sell said real estate.

Upon this bill being presented the writ of injunction issued as prayed in the bill. A motion to dissolve the injunction was filed on August 2, 1928, and later heard and overruled on November 3, 1928.

Appellant then filed a general demurrer to the bill on November 3, 1928, which, after an amendment to the bill was filed, was extended to the bill as amended. A hearing was had upon the demurrer and overruled and upon appellant electing to abide by its demurrer to the amended bill, a decree was entered in accordance with the prayer of the bill of complaint.

It is contended by appellants that the judgment, having been entered in the circuit court of Cook county, the injunction must be obtained in the court and county where the judgment was entered. Cahill’s St. ch. 69, 4. In this case the demurrer admits the allegations in the bill that are well pleaded, and it is alleged that the debt upon which the judgment was entered had been fully paid prior to the entry of judgment, and that the power in the note to confess judgment was void. Authority to confess judgment without process must be clear and explicit and must be strictly, pursued, and if there is no power to enter the debtor’s appearance and confess judgment the judgment is a nullity and may be collaterally attacked for want of jurisdiction. (Weber v. Powers, 213 Ill. 370; Keen v. Bump, 286 Ill. 11; Whitney v. Bohlen, 157 Ill. 571; Tucker v. Gill, 61 Ill. 236; Chase v. Dana, 44 Ill. 262; Frye v. Jones, 78 Ill. 627.) Under the allegations' in the bill, the debt having been paid, the entry of the judgment by appellant, upon confession,.was a fraud upon the rights of appellee and done to give the court a colorable jurisdiction over the person of appellee and the judgment may be attacked in a separate and independent proceeding. (Burton v. Perry, 146 Ill. 76, 101; Caswell v. Caswell, 120 Ill. 377, 384.)

In Burton v. Perry, supra, the court said: “But if it were true, that Cook was guilty of the fraud charged against him, it was not such a fraud as goes to the jurisdiction of the court rendering the decree of 1870, and, therefore, is unavailable in a collateral attack upon the proceeding of 1869, as against innocent purchasers from the grantee in the master’s deed. There are two kinds of fraud as applied to this subject— fraud in obtaining a decree by false evidence, and fraud which gives a court colorable jurisdiction over the defendant’s person. In case of a fraud of the former kind, a decree cannot be impeached in a separate and independent proceeding, though it is otherwise in the case of a fraud of the latter kind. (Caswell v. Caswell, 120 Ill. 377).”

The maxim that fraud vitiates every transaction into which it enters applies to judgments as well as to contracts and other transactions, and a court of equity has power, to grant relief against judgments and decrees obtained by fraud where the complainant has had no opportunity to defend and is without fault on his part. (Moore v. Sievers, 336 Ill. 316; Farwell v. Great Western Tel. Co., 161 Ill. 522; Wing v. Little, 267 Ill. 20.) In Moore v. Sievers, supra, the court held: ‘ ‘ The maxim that fraud vitiates every transaction into which it enters applies to judgments as well as to contracts and other transactions. A court of equity has always the power to grant relief against judgments and decrees obtained by fraud, and this power will be - exercised to prevent the enforcement of a judgment or decree which is against conscience, or where a party had no opportunity to defend, oí was prevented by accident or the fraud or improper management of the opposite party and is without fault on his part. (Farwell v. Great Western Telegraph Co., 161 Ill. 522; Elting v. -First Nat. Bank, 173 id. 368; Atlas Nat. Bank v. More, 152 id. 528; Wing v. Little, 267 id. 20.) In Johnson v. Waters, 111 U. S. 640, it was said: ‘The most solemn transactions and judgments may at the instance of the parties be set aside or rendered inoperative for fraud. The fact of being a party does not estop a person from obtaining in a court of equity relief against fraud. The court of chancery is always open to hear complaints against it, whether committed in pais or in or by means of judicial proceedings. In such cases the court does not act as a court of review, nor does it inquire into any irregularities or errors of proceeding in another court but it will scrutinize the conduct of the parties, and if it finds that they have been guilty of fraud in obtaining a judgment or decree it will deprive them of the benefit of it and of any inequitable advantage which they have derived under it.’

A bill which is not to stay proceedings at law, but looks to other relief, the stay of proceedings being ancillary only to the other relief sought, may be filed elsewhere than in the county where the judgment was had. (Lester v. Stevens, 29 Ill. 155; Hayes v. O’Brien, 149 Ill. 403, 410.)

In the last case the court held: “It is also objected that the court was without jurisdiction to restrain the proceeding at law pending in Lake county. Section 3 of the Chancery act provides: ‘Bills for injunction to stay proceedings at law shall be brought in the county in which the proceedings at law are had. ’ Unquestionably, if this was a bill to enjoin proceedings at law, simply, it could be brought only in Lake county. But such is not the primary object of the bill, that being, to compel specific performance of the contract for the sale and conveyance of the land. It is apparent that, it having been alleged in the bill Thompson had conveyed the land to O’Brien, complete relief could not have been afforded without making O’Brien a party defendant. He being a necessary party to the bill, therefore, and residing in Cook county, the bill might properly be brought in that county (Rev. Stat. sec. 3, chap. 22), and the other defendants brought in by summons in that proceeding. The court having jurisdiction of the main purposes of the bill, would have the right to grant such ancillary or incidental relief as would be necessary to make the relief sought complete. Lester v. Stevens, 29 Ill. 155; Baker v. Rockabrand, supra; Winston v. Midlothian Mining Co., 20 Gratt. 286; Moler v. Bailey, 21 Gratt. 521. ” If the suit may affect real estate it is to be brought in the county where the . same or some part thereof is situated. (Cahill’s St. ch. 22, 3; Bevans v. Murray, 251 Ill. 603; Reinhardt v. Matheson, 253 Ill. App. 390.)

The main purpose of the. bill was to prevent a sheriff’s sale and conveyance, thereby clouding the title of the lands owned by appellee in Tazewell county. One of the appellants resided in Tazewell county where the lands were situated. The court, having taken jurisdiction of the cause for one purpose, would retain jurisdiction to do complete justice between the parties.

Appellants assign error that the bill was not sworn to positively and that a temporary injunction should not have issued. If the only matter before this court were the issuing of a temporary injunction, there would be some merit to the contention. Appellant having admitted the matters set out in the bill and the cause having gone to a decree by which it was determined that appellee was entitled to a temporary injunction, the assignment of error affords no ground upon which the decree can be reversed.

Finding no error in the record, the decree of the circuit court of Tazewell county is affirmed.

Affirmed.


author: Mr. Justice Eldredge

text:
    Earl C. Pierce et al., Defendants in Error, v. Charles C. Hoyt, Plaintiff in Error.
    Gen. No. 8,440.

      Heard in this court at the October term, 1930.
    Opinion filed January 26, 1931.
    O’Harra, O’Harra & O’Harra, for plaintiff in error.
    Elmer O. Peter and SchlagEnhauf & Schlagenhauf, for defendants in error.
   Mr. Justice Eldredge

delivered the opinion of the court.

Earl 0. Pierce, defendant in error, filed his bill to foreclose two mortgages on the farm lands of Charles C. Hoyt, plaintiff in error, and a decree of foreclosure was entered, finding therein the amount due on the first mortgage to be $11,765.93, on the second mortgage $1,640.63 and that the total amount due for principal and interest was $13,406.56. The lands were offered for sale by the master in chancery November 15, 1929. Albert M. Pierce, father of the mortgagee, Earl C. Pierce, was the first bidder and bid the sum of $14,000; S. M. Potter then bid the sum of $14,500; then Albert M. Pierce bid.the sum of $15,000 and Potter bid the sum of $15,500; thereupon William "Vollbracht bid the sum of $16,000 which was the last bid and accepted by the master. The master filed his report of sale and Earl C. Pierce, mortgagee and complainant in the cause, filed his petition objecting- to the confirmation of the salé on the ground that Vollbracht was bidding for him and that he and his attorneys and the master in chancery had made a mistake in adding up the total amount due .including the principal, interest, attorneys’ fees and court costs; that the amount due under the second mortgage had been added twice' and that he was informed and believed that the total amount due was the sum of $16,202.60 when in fact the total indebtedness was but $14,558.18; that when complainant made his bid of $16,000 through Vollbracht he honestly believed that the total sum due under said decree and for costs was $16,202.60 and that he intended to leave a deficit of $202.60; that he did not learn of said mistake until the afternoon of the day of "the sale and immediately saw his attorneys and upon refiguring the entire amount it was ascertained that said mistake had been made and thereupon he immediately notified the master in chancery thereof and that under the circumstances he could not comply with his bid.

The plaintiff in error filed his petition requesting that said sale be confirmed. ' The matter was heard before the chancellor on affidavits executed by different parties. In the affidavit of the master in chancery he states ' that on the morning of the da¡7 of the sale Elmer C. Peter and William Schlagenhauf, attorneys for complainant, asked him to make, a computation of the amount due under the decree of'foreclosure; that he made the computation in the presence of said attorneys and while they were looking on and there was a discussion as to the amount of costs that had accrued in the case; that it was then stated that the bid should be sufficiently large so that the commissions of the master would amount to $200 although -it was stated that the complainant would bid such a sum as would leave a balance still due him under the decree; that by mistake the amount due under the second mortgage was included twice in the total; that Sclagenhauf and Peter, solicitors for complainant, looked over the computation and he left the figures with said attorneys ; that following the sale complainant’s attorneys, Peter and Schlagenhauf, and also Yollbracht and the complainant came to his office and gave him a check for $1,120.05, being the estimated amount of costs including fees and commissions following which all the parties left the office; that about an hour later Jacob S. Palmer came to his office stating that he had been sent by A. W. O’Harra, attorney for Hoyt, plaintiff in error, to get the amount due under the decree of the foreclosure and while giving said Palmer said information affiant discovered the mistake that had been made and thereupon wrote a letter to Schlagenhauf advising him of said mistake and later in the same day he received a telephone message from Schlagenhauf advising affiant that a mistake had been made and had been discovered by him and Peter. It further appears from the affidavits that Pierce, the complainant, and his attorneys Peter and Schlagenhauf were at the sale but neither he nor his attorneys made any bids; that all the bidders were strangers to the case although Albert M. Pierce was the father of complainant. It also appears from affidavits that complainant procured all the persons who made bids to do so on his behalf ; that it was agreed and understood between the complainant and the bidders that it would be best for the sale to have other bids than one, so that in event any other persons than those bidding for complainant should hid, the apparent competitive bidding might make the sale bring more money and that in this manner the property might bring enough money to pay the indebtedness and the amount due under said decree so that the complainant would not have to take said land, and that said complainant did not and neither affiant nor Vollbracht expected to bid more than the sum of $14,355.58 which was the actual amount due under said decree less $202.60. Of0 course this last statement is in error because at the time of the bidding neither complainant, his lawyers nor bidders knew that $14,355.58 was the actual amount due under said decree.

On behalf of plaintiff in error affidavits were filed " which stated that the fair cash market value of the land sold was at least $18,000 and this fact is undisputed. In the affidavits executed by plaintiff in error and his attorney it is stated that all the bidders at the sale apparently acted as if they were bidding in good faith and were all strangers to the foreclosure suit and that Vollbracht who made the bid of $16,000 and to whom the premises were struck off was a man of means and able to buy and pay for said farm and that plaintiff in error had every reason to believe he was purchasing said land because he wanted the same. .

The chancellor entered an order setting aside the sale and for a resale of said lands.

Defendant in error, Pierce, relies upon the principle of law long established in this State that the court has a wide discretion in approving or disapproving a sale made under its order, and that that discretion, unless abused, will not be disturbed by a court of review. The question in this case is, therefore, was the discretion of the court abused in setting aside the sale under the facts shown by the evidence? In the case of Rader v. Bussey, 313 Ill. 226, it is held: “The chancellor has a broad discretion in the matter of approving or disapproving a sale made by a master in chancery or trustee where the deed is by the terms of the decree not to be made to the purchaser until after the confirmation of the sale. The discretion, however, thus vested in the court is not a mere arbitrary discretion but is one to be exercised in accordance with established principles of law. . . . This court recognizes the rule that public policy requires stability in all judicial sales so property may bring its full value, and such a sale will not, as a rule, be set aside for mere in-formalities or irregularities or for causes which the parties complaining might with a reasonable degree of diligence have avoided.” The amount due under the decree of foreclosure could have been readily ascertained. The amount due under the two mortgages was plainly set up in the decree. The slightest effort only was necessary to ascertain the amount of the costs and the true amount due under the decree would be shown by the simple process of addition. There was no mistake made in regard to the amount of the costs but the mistake, if any, was made by adding the amount of the second mortgage twice. The mistake in figuring up the amount due was made wholly by the complainant and his attorneys and the master. The computation by the master was purely voluntary and was made in the presence of the attorneys for complainant and was delivered to them at the time. Complainant alone was responsible for his own mistake. In a court of equity in order to give a party the advantage of the mistake, the fact concerning which the mistake was made must be material to the transaction and affect its substance, and the mistake must not be the result of want of care and diligence exercised by persons of ordinary prudence under the same circumstances. Thus in the case of Steinmeyer v. Schroeppel, 226 Ill. 9, it was held that a mistake by a dealer in adding up the various items of the selling price of material upon which he had been asked to furnish an estimate, would not justify a court of equity in canceling a contract to furnish such material based upon the other party’s acceptance of the proopsition to furnish the same for the amount represented by the erroneous total. In the case of Abbott v. Beebe, 226 Ill. 417, it was held that a court will not refuse to confirm a judicial sale and order a resale on motion of an interested party merely to protect him against the result of his own negligence.

The mortgagor under, a decree for a foreclosure sale is still the owner of an equity of redemption. His rights in the property-are not barred by the sale during the redemption period.. An equity of redemption is often a very valuable interest and it so appears to be in this case. It is the duty of a court of equity to protect the rights of the mortgagor as well as those of the mortgagee. The object of all judicial sales is to procure an amount which will insure the sale of the lands at a figure approximate to their value and the law will not tolerate any influence likely to prevent such a result. Worden v. Rayburn, 313 Ill. 495.

In our opinion the refusal of the chancellor to confirm the sale in question was purely arbitrary and without any equitable reason therefor. The decree of the circuit court setting aside the sale and ordering a resale is reversed and the cause remanded with directions to confirm the master’s report of sale.

Reversed and remanded with directions.