author: Mr. Justice Denis E. Sullivan

text:
    Juanita Wells, Appellant, v. Louis Wise, Appellee.
    Gen. No. 39,834.

      Opinion filed January 11, 1939.
    Rehearing denied February 6, 1939.

      Harris B. Gaines and Fleetwood M. McCoy, both of Chicago, for appellant.
    Jesse Marcus, of Chicago, for appellee..
   Mr. Justice Denis E. Sullivan

delivered the opinion of the court.

Plaintiff brings this appeal from a judgment entered in the circuit court, notwithstanding the verdict of a jury who fixed the plaintiff’s damages at $6,500 because of injuries received. This verdict was set aside and the court entered judgment for defendant.

There have been two trials in this case. The first trial also resulted in a verdict in favor of plaintiff, which was set aside by the court. At the conclusion of the second trial plaintiff by leave of court filed an amended complaint containing three counts. At the conclusion of plaintiff’s testimony, the defendant made separate motions for an instruction of not guilty as to each count; defendant made the same motion as to each count at the conclusion of all the evidence offered in this case. After the jury returned a verdict for plaintiff, the defendant filed a written motion for a new' trial and a separate written motion for judgment, notwithstanding the verdict. The last motion was sustained by the trial court.

Plaintiff contends that the alleged injuries which she sustained were caused by defendant’s negligmce in permitting the rear stairway in the building owned by defendant to remain in a defective condition; that while plaintiff was walking on said stairs the banister which was used as a protective guard gave way because of the decayed condition of the wood of which it was constructed and as a consequence plaintiff was thrown to the ground and suffered the injuries of which she complains; that plaintiff and her husband occupied an apartment on the second floor in said building which her husband had rented from the defendant and that the stairway leading to their apartment was at all times under the control of the defendant who was under the duty to keep the same in safe repair; that this failure to make the necessary repairs with regard to this defective banister, which defect defendant knew existed, or by the exercise of due care should have known existed, constituted actionable negligence.

Plaintiff further contends that there was an agreement on the part of the defendant-landlord, in consideration of the renting of the apartment by plaintiff’s husband, to keep the premises in good and safe repair and his failure to do so, resulting* in injury to plaintiff, also constitutes actionable negligence; that there existed a month to month tenancy and that all lettings of said premises subsequent to the existence of said defect constitute letting* the premises in a defective condition; that the defendant attempted to repair the defect in question, but was negligent in so doing and such negligence resulted in plaintiff’s injury.

Defendant contends that there was no agreement to repair, but that the plaintiff was obligated to keep in repair all portions of the premises occupied and used by her; that the defendant did not know of the existence of the defect in question nor by the exercise of reasonable care could have known same and therefore is not chargeable with having let the premises in a defective condition; that part of the stairway on which the accident occurred was not a part of the common way but was under the exclusive control of plaintiff; that he inspected the premises from time to time for defects, including the stairway in question, but found none; that if any liability attaches to defendant it would be ex contractu rather than in tort.

No question is raised as to the sufficiency of the pleadings which we consider controlling.

It appears from the evidence that the building in question is a two-story building, consisting of a “ basement, a second floor and a third floor”; that the plaintiff lived with her husband on the top floor of said building; that the building has a front stairway and a back stairway and there are porches in the rear and that access to plaintiff’s apartment could be had either by means of the front or back stairs.

The evidence further shows that in May, 1934, one of the banisters was broken and was hanging off to one side and one of the witnesses stated that she noticed this banister which led down from the top floor of the building was broken and that it was so rotten around the nail holes that it would not stay in place. She further testified that she tried to push it back in place and notified the janitor, with whose family she lived, of its condition. She further testified that she showed the apartment to plaintiff at the time plaintiff came to rent it. Other witnesses gave similar testimony with regard to the condition of the banister.

The evidence further shows that the stairs in question were used by the janitor when he would dispose of the garbage and that he used to sweep off the back porches and stairs when they would be covered with snow; that when the owner of the building visited the premises he would use either the front stairway or the back stairway; that the owner had instructed the janitor to take out the storm doors and put in the screens.

The evidence further shows that the banister was in a decayed condition for a couple of months prior to the time of the accident and that the janitor was notified thereof; that many persons used the stairway and approaches when entering and going out of said building.

Photographs .of the back stairs, which were introduced in evidence by agreement, show the usual back stair entrance to a flat building, but one portion of the railing appears to be missing.

According to the testimony of the doctor who examined plaintiff, she suffered limitation of motion in her left hip where there was considerable swelling; that there was a shortening of the left lower extremity, some limitation of motion in the left shoulder with evidence of pain in that location and especially in the left hip, nervousness and evidence of suffering; that as to locomotion there was a limp, some eversion or turning out of the left foot, whereby the status of that extremity was impaired, the leg was somewhat out of line and made walking awkward and difficult; that she walked with the aid of a cane; there was also evidence of a fracture; that he advised a form of electrical treatment, diathermy; that plaintiff was treated twice a week from August, 1935, until January, 1936, and that in February her treatments began again at intervals of twice monthly up to the time of the trial; that plaintiff in addition had a fracture of the upper shaft of the left thigh bone; a fracture also of the left shoulder blade and also a fracture of the upper part of the hip bone; that plaintiff is permanently disabled and her condition will not get any better.

Plaintiff when testifying about her injuries stated that she was in the hospital 71 days and in traction 54 days at which time they put weights on her leg and put it in a steel brace; that she now has bladder trouble; that when she was taken home from the hospital she remained in bed from September to January and that she continuously suffers pain.

Defendant denies that at the time he rented the premises he stated that the same was in perfect condition and that he promised to keep it in a perfect com dition.

The rule pertaining to the liability of a landlord is well stated in the case of Smith v. Morrow, 230 Ill. App. 382, 387, wherein the court said:

‘ ‘ The law is well settled in this State that a landlord who rents different parts „of a building to various tenants and maintains control of the porches, stairs, porchways, hallways or other means of approach to the several portions of the building for the common use of his tenants, has resting on him the duty to use reasonable cafe to keep the premises in a reasonably safe condition, and he is liable for an injury which results to persons lawfully in such building* from his failure to perform such duty. . . . When a porch is used in common by two tenants, the landlord is required to keep up the repairs thereon for the reason that it is not in the exclusive possession of either tenant.”

In the case of Payne v. Irvin, 144 Ill. 482, where the question was raised as to the responsibility of a landlord to keep in repair those portions of the premises that he reserved in his control, the court at page 488, said: ‘1 There was no renting of the sign-board, or of the roof of the building*, or any agreement on the part of the tenants to keep the same in repair. As before said, the landlord during* the entire term and from year to year, exercised control over and took charge of the repairs upon the outside of the building. The landlord was not, therefore, exonerated from responsibility to keep in reasonably safe and secure condition, that portion of the building over which he retained control; and we think the duty devolved upon him to keep the sign-board, in question, in such condition and state of repair. The landlord, as to that portion of the building, and appurtenances, over which he retains control, must be held to also retain the responsibility to keep the same in reasonable repair in respect of all persons, including thé tenants of the building. ’ ’

Where premises are rented in a bad state of repair, the landlord is liable for injuries caused thereby and it is his duty to use reasonable care to keep such premises in a reasonably safe condition. In the instant case, as shown by the evidence, this matter was discussed by the lessor and lessee at the time of rental, the landlord saying’ the premises were in perfect condition, and it was agreed by the landlord that he would keep the premises in such good repair.

Defendant argues that plaintiff could not recover on any of the charges as made in various counts of the complaint. These complaints were not tested by a motion to strike and their sufficiency cannot be raised for the first time in this court. A cause of action even though imperfectly stated in the complaint is cured by the verdict and cannot be raised later.

Chapter 110, sec. 42, par. 166, p. 2393, Ill. Rev. Stat. 1937 [Jones Ill. Stats. Ann. 104.042], Civil Practice Act, provides: “(3) All defects in pleadings, either in form or substance, not objected to in the trial court, shall be deemed to be waived.”

We think the evidence in this case quite clearly shows that the stairway in the building in question was in a bad state of repair at the time the premises were rented; that the said stairway was intended to be and in fact was for the common use of all the tenants in the building and the owner and visitors as well, and that said stairway was not intended for plaintiff’s exclusive use.

We think the court erred in entering a judgment which was contrary to the verdict of the jury. The rule in relation.to what action a court should take when a motion is made to enter a judgment notwithstanding the verdict of a jury, is not unlike the rule which applies when a motion is made to direct a verdict at the conclusion of all the evidence.

As was said in the case of Molloy v. Chicago Rapid Transit Co., 335 Ill. 164:

“Where there is a motion to direct a verdict for the defendant in an action for negligence the evidence most favorable to the plaintiff must be taken as true and all that the evidence tends to prove and all just inferences to be drawn from it must be conceded, and if it fairly tends to support the allegations of the declaration the motion should be denied and the case be submitted to the jury. . . .

“Questions as to what is the proximate cause of an injury, as to contributory negligence, as to the credibility of the witnesses, the weight of the testimony and the inferences to be drawn from the facts proved, are ordinarily all questions for the jury to pass upon and not for the court to decide. ’ ’

In the instant case the evidence shows that a landlord, prior to the leasing of certain premises, promised to keep the same in good repair, asserting that said premises were in perfect condition at the time he leased them. Proof was made that said premises were not in good repair as represented; that part of the premises, a stairway and porch were for the common use of other tenants or persons who desired to enter the building; that there were latent defects in the stairway railings; and that plaintiff was in the exercise of reasonable care for her own safety. All these facts were presented to the jury for consideration and the trial judge should not have substituted his judgment for that of the jury.

It is only when the plaintiff’s proof is so insufficient and meager and plaintiff has failed to prove material facts which are necessary to sustain the cause of action, that it becomes, as a matter of law, the duty of the court to find in favor of the defendant notwithstanding the verdict of the jury. Even when the plaintiff’s case is a mixed question of law and of fact, it should be left to the consideration of the jury under proper instructions.

In the instant case the matter had been submitted to the jury on two different occasions and in both instances verdicts were returned in favor of plaintiff.

The injuries which plaintiff sustained as shown by the evidence are grievous. Plaintiff has been permanently injured and ivill remain a cripple for the rest of her life.

No complaint is made as to the admission of evidence or the instructions and we believe a fair trial was had.

We can see no advantage in remanding the cause for a new trial as we do not think the verdict for $6,500 which was awarded plaintiff is excessive, in view of the injuries which she sustained, and we think the verdict was justified and should stand. The only error which in our opinion was committed was that the trial judge substituted his judgment for that of the jury.

For the reasons herein given the judgment of the trial court in favor of defendant is hereby reversed and judgment is entered here on the verdict of the jury for the sum of $6,500 and costs in favor of plaintiff.

Judgment reversed and judgment here for plaintiff $6,500 and costs.

Hall, P. J., and Hebel, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    George M. Osborn, Appellee, v. William J. Thorp and Elva A. Thorp, Appellants.
    Gen. No. 39,949.

      Opinion filed January 11, 1939.
    Rehearing denied February 6, 1939.
    Peden, Melaniphy, Byan & Andreas, of Chicago, for appellants; John C. Melaniphy and Gerald Byan, of counsel.
    James B. Phillips and J. J. Goshkin, both of Chicago, for appellee.
   Mr. Justice Denis E. Sullivan

delivered the opinion of the court.

Suit was brought in assumpsit by the plaintiff, George M. Osborn, on July 2, 1937, against the defendants, William J. and Elva A. Thorp. The action was based on two bonds for $500 each, being a part of a bond issue executed by defendant. Judgment was entered for plaintiff in the sum of $1,408.34 and costs upon a finding by the court without a jury, after the court had stricken the answer (except paragraphs 1 and 2 thereof) of the defendants, upon which answer the defendants elected to stand. The judgment is based upon the pleadings which consisted of the complaint, the answer and the plaintiff’s motion to strike the answer with the exception of' paragraphs 1 and 2 thereof.

Paragraph 1 admitted the execution of the bonds in question and paragraph 2 demanded proof of ownership and damages. The defense claimed by defendants is contained in paragraphs 3 to 15, inclusive. Proof as to the ownership and amount of the damages were made and appear in the report of the proceedings. No question is raised thereon. That portion of the answer which was stricken by the court was, in terms, the real defense of the defendant herein.

The complaint alleges that the plaintiff is the owner of the two bonds in question; that they were executed by the defendants; that plaintiff purchased them for value; that default was made in the payment of interest on September 1, 1931, and he asks judgment.

The answer of the defendants alleges that as owners of certain real estate therein described, they executed a trust deed to the Chicago Title & Trust Company, as trustee, dated March 1,1928, to secure the payment of 78 first mortgage bonds, aggregating $40,000, among which are the bonds mentioned in the complaint; that this indebtedness had been reduced to $37,000 and that on May 16,1932, the defendants conveyed the said real estate to the Thorp Garage, Inc., an Illinois corporation, and on June 17, 1935 the Chicago Title & Trust Co., as trustee, filed foreclosure proceedings in the circuit court of Cook county; that thereafter on October 2, 1935 certain creditors filed an involuntary proceeding in the United States District Court, at Chicago, against the Thorp Garage, Inc., seeking to effect a reorganization, pursuant to the provisions of the Bankruptcy Act; that various proceedings were had therein, including the filing and proving of claims.

The answer further alleges that the plaintiff George M. Osborn filed his claim on said bonds, which claim was allowed by the referee in bankruptcy and was approved by the court; that a plan of reorganization was proposed by the committee for the protection of the bondholders, which plan, as amended, was approved by the district court.

The decree of the district court, entered on April 20, 1936, approved a plan of reorganization of said Thorp Garage, Inc., which provided for the organization of a new corporation with an authorized capital of 370 shares of common stock; that the new corporation acquire the title to the real estate; that the shares of stock be issued to three trustees appointed under said decree, for the benefit of the holders of certificates of beneficial interest, which certificates were to issue to the various holders of said bonds.

The decree further found that there was a full compliance with sections 77A and 77B of the Bankruptcy Acts; that the necessary acceptances by creditors holding in excess of two-thirds in amount of all bonds had been filed. It was further decreed inter alia, (1) that the foreclosure proceedings pending in the circuit court be permanently restrained; (2) that the plan of reorganization shall be binding upon all creditors of the debtor, secured or unsecured, whether or not they had accepted or approved the plan, as well as on the Chicago Title & Trust Co., as trustee under said trust deed; (3) that all the property and assets of the Thorp Garage, Inc. be conveyed and transferred to a new corporation to be organized; (4) that the bonds secured by said trust deed be canceled and the trust deed released; (5) that ‘‘all first mortgage notes and interest notes outstanding thereunder, to be void and of no further force or effect, except as a medium of exchange for the new securities to be issued under and pursuant to said Plan of Reorganization.”

That pursuant to said decree the special master on June 27, 1936 executed and delivered release deed, releasing the lien of said trust deed, which release deed was recorded on July 8, 1936 in the recorder’s office of Cook county.

That a new corporation was organized under the laws of Illinois, known as the South Park Garage, and it succeeded in title to the real estate in question.

That in pursuance of said plan of reorganization and decree, the trustees executed a trust certificate in the South Park Garage, certifying that George M. Osborn is the owner of ten units of beneficial interest, which certificate was tendered to the plaintiff and is now held by said trustees for his use and benefit, ready to be delivered to him at his request which certificate is in full satisfaction of his claim so filed in the district court and in his said bonds.

That the district court approved all acts and things done in carrying out the plan of reorganization on August 20, 1936.

To the foregoing answer the plaintiff filed a motion to strike, alleging that the provisions of the plan of reorganization do not constitute a discharge to or effect the liability of, the defendants, upon the bonds sued on in this cause.

Plaintiff’s theory is that the district court had no jurisdiction to decree the cancellation of the bonds or in any manner affect his rights against the defendants as makers of the bonds.

Defendants’ theory and the error relied on by them is :

1st. That the Federal District Court had jurisdiction of the parties and the subject matter;

2nd. That the decree is a final decree, no appeal having been taken therefrom, and is binding on the plaintiff and all bondholders;

3rd. That the trial court could not review the judgment and decree of the Federal District Court, even if its decree was erroneous; and

4th. That the court erred in sustaining plaintiff’s motion to strike defendants’ answer.

The Bankruptcy Act, as amended and approved J une 7, 1934, provided, inter alia, as follows:

“Sec. 77-A. In addition to the jurisdiction exercised in voluntary and involuntary proceedings to adjudge persons bankrupt, courts of bankruptcy shall exercise original jurisdiction in proceedings for the relief of debtors, as provided in Section 77-B of this Act.”

Section 77B (a) provides for the filing of the petition, its requirements and the mode of determining the good faith of the proceedings. Subparagraph (b) of this section contains the following pertinent provisions :

“(b) A plan of reorganization within the meaning of this section (1) shall include provisions modifying or altering the rig*hts of creditors generally, or of any class of them, secured or unsecured, either through the issuance of new securities of any character or otherwise. . . .

“(9) shall provide adequate means for the execution of the plan, which may include the transfer of all or any part of the property of the debtor to another corporation, . . . the satisfaction or modification of liens, indentures or other similar instruments, . . . and the issuance of securities of either the debtor or any such corporation or corporations, for cash, or in exchange for existing securities, or in satisfaction of claims or rights, or for other appropriate purposes.”

Subparagraph (c) provides for the appointment of trustees; the giving of notice of creditors; the filing of schedules and claims; the determination of classification of claims; the manner of proposing* a plan of reorganization by the debtor, including the time for filing* the same and hearing thereon. Subparagraph

(d) provides for the proposal of a plan by creditors. Subparagraph (e) — (1) provides that a plan of reorganization shall not be confirmed until it has been accepted in writing by creditors holding* two-thirds in amount of the claims of each class whose claims have been allowed and would be affected by the plan. Sub-paragraph (f) provides for the approval of the plan if it (1) is fair and equitable and does not discriminate unfairly in favor of any class of creditors and is feasible; (2) it complies with the act; (3) it has been accepted as required by the provisions of subdivision (e) and clause (1) of this section.

Subparagraph (g) provides:

‘ ‘ Upon such confirmation, the provisions of the plan and of the order of confirmation shall be binding upon (1) the debtor, (2) all stockholders thereof, including those who have not, as well as those who have, accepted it, and (3) all creditors, secured or unsecured, whether or not affected by the plan, and whether or not their claims shall have been filed, and if filed, whether or not approved, including creditors who have not, as well as those who have, accepted it.”

Subparagraph (h) provides for the carrying out of the plan; the making of the conveyances, and the entry of a final decree which shall discharge the debtor from its debts and liabilities.

Subparagraph (i) deals with receivers and trustees.

Subparagraph (j) provides:

“A certified copy of the final decree or of an order confirming a plan of reorganization, or of any other decree or order entered in a proceeding under this Section shall be evidence of the jurisdiction of the court, the regularity of the proceedings and the fact that the decree or order was made.”

It appears from the evidence that plaintiff filed his claim and it was allowed. The claim was based upon the bonds sued on in the case at bar. The new corporation organized under the plan of reorganization, South Park Garage, succeeded to all the property of the old corporation, Thorp Garage, Inc., which was discharged of all its debts. The Chicago Title & Trust Co., as trustee, under the trust deed given to secure the bonds, some of which plaintiff holds, was permanently restrained from prosecuting the foreclosure proceedings.

Pursuant to the decree, the trust deed securing the bonds in question was released of record and canceled “and is of no force and effect, and said first mortgage bonds and interest coupons attached thereto, secured thereby, are fully satisfied, canceled and of no force and effect.”

The decree also provided that the bonds secured by said first mortgage trust deed are 1 ‘ decreed to be canceled and of no effect, except as a medium of exchange. ’ ’

No appeal was taken from this decree.

The answer further avers that beneficial certificate No. 1 for ten units was executed by the trustees of the South Park Garage, the new corporation, and was tendered to the plaintiff by said trustees and that said trustees hold said certificate for his use and benefit.

The motion of the plaintiff to strike the answer of defendants, of course, admitted all the facts pleaded in the answer. Therefore, the question to be determined at this time is: Did the decree of the United States District Court dispose of all claim of the plaintiff including its personal, common law liability as maker of the paper?

A somewhat similar case was before this court in Barnett v. Gitlitz, 290 Ill. App. 212. In that case a judgment by confession was rendered upon two bonds signed by the defendants and recovery was had for the sum of $823.51, and the defendant in apt time filed a motion to vacate the judgment, or in the alternative that the court satisfy of record the judgment and a verified petition in support of the motion. Plaintiff filed a motion to strike defendants’ amended petition from the files. The court entered an order “overruling motion of defendants to vacate the judgment.” The petition which was stricken from the files set up the fact that the notes and the trust deed which they secured, had been in foreclosure in the superior court and that all the bonds under said trust deed aggregated $120,000, and that pursuant to a decree of foreclosure and a decretal judgment which was executed against all the defendants for the sum of $130,258.81 and costs in favor of the Chicago Title & Trust Company, as successor trustee, for the use and benefit of all the owners and holders of the bonds secured by the trust deed aforesaid of which the bond upon which that judgment was predicated was one.

The petition in the Barnett case further set up that after the rendition of said decree in the superior court, aforesaid, the De Luxe Court Apartments, Inc., a corporation, being then and there the owner of the title to the premises securing the trust deed and the bonds aforesaid, of which the bond of plaintiff was one, filed its petition for reorganization under sections 77A and 77B of the Bankruptcy Act, as amended, in the District Court of the United States for the Northern District of Illinois, Eastern Division, and proceedings were had thereunder to the extent that on March 2, 1936, a decree was entered in the United States District Court approving the plan of reorganization provided in said decree, and ordering that the decree entered in the superior court of Cook county in the foreclosure proceeding be satisfied in full, and that the trust deed securing the bonds, of which the bond of plaintiff is one, be released and declared canceled, null and void and that the bonds secured thereby be canceled and exchanged for the new certificates of the De Luxe Court Apartments, Inc., a corporation, as provided in said plan.

The petitioners in the Barnett case then set up that pursuant to said decree entered in the United States District Court for the Northern District of Illinois, there was executed a satisfaction of judgment, satisfying in full the decree in the superior court of Cook county for $130,258.81, which was entered on July, 14, 1934, which satisfaction was filed of record in the office of the clerk of the superior court of Cook county, and the said special master did execute a release of the trust deed recorded as Document No. 10183360, which release was filed of record in the office of the recorder of deeds of Cook county, Illinois on March 31, 1936.

Petitioners in the Barnett case conclude by asking that the court after vacating the judgment entered in the municipal court by confession, or in the alternative, that the court satisfy of record said judgment entered therein. In determining that question, this court said:

“This appeal raises the following question: Where the United States District court, under its bankruptcy powers, and particularly under section 77B of the Bankruptcy Act, has, in a reorganization proceeding pending in that court, ordered a satisfaction of the decree entered in the superior court case (which decree found that there was due complainant in that ease as successor trustee, for and on behalf of all of the bondholders, the sum of $118,628.19, and that the defendants Morris Gritlitz and Mary Gritlitz, his wife, Grus Bagan and Sadie Bagan, his wife, and Dora Gritlitz, a widow, were personally liable for that amount), and also ordered the release of the trust deed securing the bonds, and the decree of the superior court has been satisfied and released in accordance with said order, is plaintiff, who confessed judgment in the municipal court while the proceedings in the United States District court were pending, entitled to have his judgment in the municipal court remain in full force and effect, where the amount of the stock he is entitled to under the decree of the United States District court is tendered to him? It is unnecessary for us to state the scope and purpose of section 77B of the Bankruptcy Act. By an order of the United States District court the debt due on all the bonds secured by the trust deed was satisfied. To sustain the position of .plaintiff it would be necessary to ignore the provisions of a law of the United States and the orders and decree of the United States District court. If plaintiff is right, a minority of the bondholders can prevent the United States District court from functioning under section 77B. It is our duty and desire to give full force and effect to the laws of the United States and the orders and decree of the United States District court. Defendants’ motion in the municipal court, in the alternative, was in the nature of a writ of audita querela, and under the admitted facts the trial court should have compelled an entry of satisfaction of the judgment in the municipal court. (See Harding v. Hawkins, 141 Ill. 572).

i (

“The judgment order of the municipal court of Chicago appealed from is reversed, and the cause is remanded with directions to the trial court to cause a satisfaction of the original judgment to be entered. Should plaintiff refuse to accept the stock tendered, the court may order it deposited with the clerk of the court, and with the right in plaintiff to claim it. ’ ’

A very recent case entitled Gottlieb v. Crowe and Stoll, 289 Ill. App. 595, which was later decided by the Supreme Court of the United States at the October term 1938, and which is entitled, J. O. Stoll v. William Gottlieb, is very much in point with the case at bar. The various opinions written in that case during- its progress through the courts are very interesting and informative. The suit originated in the municipal court of Chicago when William Gottlieb sued the defendants S. A. Crowe, Jr. and J. O. Stoll as guarantors of 3 bonds of $500 each. Crowe was served with process and did not enter his appearance. A judgment was entered against Stoll for the sum of $1,583, the amount of his claim. A trial was had before the court without a jury. In that case the “Ten Fifteen North Clark Building Corporation” issued its construction bonds aggregating $250,000. Some years afterward the building corporation was financially embarrassed and filed its proceeding in the District Court of the United States for the Northern District of Illinois, Eastern Division, under 77B of the Bankruptcy Act, as amended. November 26, 1934, the United States District Court entered a decree confirming a plan of reorganization of the property. The decree found the plan of reorganization filed by the debtor had been referred to a special master; that the court considered the report of the master and the petition for confirmation of the plan and found that the petition of the debtor was filed June 20, 1934, pursuant to the provisions of section 77B of the Bankruptcy Act and upon a hearing notice was given to all creditors and stockholders of the debtor by publication and by mail, and the special master found that the plan was fair and equitable and that “It complies with the provisions of subdivision (b) Section 77-B of the Bankruptcy Act.”

Thereafter, on June 20, 1934, the court found in the Gottlieb case that the plan for reorganization had been accepted in writing by more than two-thirds of a certain class of its creditors and more than a majority of another class of creditors; that no objections were made to the plan, and it was ordered and decreed that the report of the special master be approved; that the plan and order of confirmation be binding upon the debtor, all stockholders and “all creditors, secured or unsecured, whether or not affected by the Plan, and whether or not their claims shall have been filed, and if filed, whether or not approved, including creditors who have not, as well as those who have accepted.” The plan provided for the organization of a new corporation and that for each $100 of first mortgage bonds issued by the debtor there be issued to the owners one share of common stock in the new corporation known as the Olympic Hotel Building Corporation. The plan further provided for the payment of certain overdue interest to the bondholders, and that “the personal guaranty of J. O. Stoll and S. A. Crowe, Jr., of said First Mortgage 6%% Gold Bonds shall be cancelled and surrendered in consideration of the transfer of all the assets of said Debtor to the Olympic Hotel Corporation and the surrender of the said Common Stock of the Debtor.”

In deciding this case this court said:

“Counsel for plaintiff contend that the District Court was without authority to cancel the guaranty and therefore the judgment of that court is not res adjudicata. The District Court expressly found that the debtor had complied with all the provisions of section 77-B of the Bankruptcy Act and construed the Bankruptcy Law as authorizing the cancellation of the guaranty. That court on two occasions expressly passed on this question, viz., when creditors of the same class raised the question as above stated, and afterward when plaintiff in the instant case again raised the question. The question was there squarely put in issue and if plaintiff or the other creditors were dissatisfied with the decision of the District Judge they should have appealed from his decision to the United States Circuit Court of Appeals, where they probably would have obtained relief. In re Diversey Bldg. Corp., 86 F. (2d) 456. Plaintiff cannot now complain. Chamblin v. Chamblin, 362 Ill. 588.”

This Gottlieb case then went to the Supreme Court of Illinois, where it appears in Vol. 368 Ill. at page 88 under the title, William Gottlieb, Appellant, v. S. A. Crowe, Jr., et al. (J. O. Stoll, Appellee). In that case the Supreme Court of Illinois reversed this court, which case is cited by appellee in the instant case. The court therein said:

“In the case before us the district court did not have jurisdiction of the subject matter of the guaranty and its order in that respect is void and subject to collateral attack. (Demilly v. Grosrenaud, 201 Ill. 272; O’Connor v. Board of Trustees, 247 id. 54; Rabbitt v. Weber & Co., 297 id. 491; Ashlock v. Ashlock, 360 id. 115). Jurisdiction' of the subject matter cannot be conferred by consent, is not waived by appearance and may be raised at any time. Town of Kingston v. Anderson, 300 Ill. 577; Rabbitt v. Weber & Co., supra. ’ ’

This cause was then taken to the Supreme Court of the United States where it appeared under the title, Stoll v. Gottlieb, 59 Sup. Ct. 134. The opinion in that case was written by Mr. Justice Reed, in which opinion the decision of the Supreme Court of Illinois was reversed. The court therein stated:

“Courts to determine the rights of parties are an integral part of our system of government. It is just as important that there should be a place to end as that there should be a place to begin litigation. After a party has his day in court, with opportunity to present his evidence and his view of the law, a collateral attack upon the decision as to jurisdiction there rendered merely retries the issue previously determined. There is no reason to expect that the second decision will be more satisfactory than the first. . . . ‘Having litigated a question in one competent tribunal and been defeated, can she litigate the same question in another tribunal acting independently and having no appellate jurisdiction1? The question is not whether the judgment of the supreme court ivould be conclusive as to the question involved in another action between other parties, but whether it is not binding between the same parties in that or any other forum. ’ ”

So, following the opinion of the United States Supreme Court, we are constrained to hold in the instant case that the court committed error in striking the answer of the defendants. While it may appear that a guarantor or the maker of paper may be released from his common law liability in &• bankruptcy court under a plan of reorganization without giving up any of his property, which would be contrary to the decision of the State court, yet that is a matter wherein jurisdiction of the subject matter has been given to the United States District Court, and if an interested party is not satisfied with the decision of the United States District Court, his privilege is to appeal therefrom if he so desires and not attempt to present the question for decision in a court other than a court of review.

For the reasons herein given the judgment of the superior court is reversed.

Judgment reversed.

Hall, P. J., and Hebel, J., concur.


text:
    Verne L. Carstedt, Appellee, v. Mills Novelty Company, Appellant.
    Gen. No. 40,190.
    Opinion filed January 11, 1939.
    Rehearing denied February 6, 1939.
    Kirkland, Fleming, Green, Martin & Ellis, of Chicago, for appellant; Carl S. Lloyd, Joseph H. Pleok and John M. O’Connor, Jr., of Chicago, of counsel.

      Bernard W. Vinissky, of Chicago, for appellee.
   Mr. Justice Denis E. Sullivan

delivered the opinion of the court.

This cause comes before us on appeal because of the reinstatement of plaintiff’s bill in the above entitled cause after an order of dismissal had been previously entered therein.

On May 6, 1932, the plaintiff filed a bill in equity against the defendant, and on November 29, 1932, defendant filed its answer. On December 2, 1932, plaintiff filed a replication and on motion of plaintiff the cause was referred to a master in chancery on February 1, 1933. On February 25, 1936, an order was entered by the executive committee of the superior court directing the clerk of the court to prepare a calendar of all chancery cases in which no order had. been entered subsequent to December 31, 1933 and this calendar, under the terms of the order was to be known as a “Special Chancery Calendar” and was to be called for trial commencing March 2, 1936, before Judge Walter P. Steffen. The order provided that unless good cause was shown, the cases in which no order had been entered after December 31, 1933, were to be dismissed for want 'of prosecution. It was also ordered that the causes appearing on this “Special Chancery Calendar” should be published in the Chicago Law Bulletin for 3 consecutive days before being called for trial. The instant case was one of the cases which appeared upon sáid “Special Chancery Calendar,” notice thereof having been published in the Chicago Daily Law Bulletin. On the call of the “Special Chancery Calendar” the case at bar was called and on March 30, 1936, neither party appearing, the court dismissed the cause for want of prosecution.

On February 4, 1938, almost 2 years later Judge James F. Fardy, revoked the order of dismissal and reinstated the cause. From the order of reinstatement this appeal is taken.

The petition for reinstatement filed by plaintiff on June 4, 1937, about 14 months after the order of dismissal, the answer and supplemental answer of defendant, upon which the matter was heard by Judge Fardy, disclose the following:

In his petition to vacate the order of dismissal the plaintiff alleges that the cause was pending before a master in chancery upon objections to the master’s report; that the case was inadvertently placed upon the “Special Chancery Calendar” by misprision or mistake of the clerk of the court, inasmuch as the cause was then pending before a master; that had the clerk advised the court that the case was pending before a master, the court would not have entered the order dismissing the cause; that no order was entered vacating the order of reference to the master; that plaintiff was not' advised of this dismissal until approximately a week before filing his petition for reinstatement; that he had a just and meritorious cause of action, and that he would suffer irreparable injury and loss and be without remedy, unless the order dismissing the cause be set aside.

Defendant filed an answer and supplemental answer to the petition, in which it sets up that the master had filed a tentative report on February 1, 1935, to which defendant filed objections; that on June 17, 1935, oral argument was had before the master on the objections, and at the conclusion of the argument the master directed the parties to file briefs concurrently at an early date; that the defendant prepared a brief and held it, awaiting the preparation of plaintiff’s brief. On October 12, 1935, the plaintiff having failed to file a brief, the defendant filed its brief with the master and served notice of such filing upon plaintiff’s counsel; that defendant has never been advised of the filing of any brief on behalf of plaintiff.

Plaintiff contends that the master in chancery to whom the cause was referred found the equities in favor of plaintiff and recommended that defendant be ordered and directed to state an account; that although the master had rendered his report on February 25, 1935, the defendant obtained extensions of time from March 1, 1935, to April 6,1935, to file objections to his report; that it was not.until June 17, 1935, that hearings were had upon the objections to the master’s report; that defendant’s counsel did not file their brief on their objections to the master’s report until October 12, 1935; that the answer and supplemental answer of the defendant to plaintiff’s petition were unverified, while plaintiff’s petition was verified.

Plaintiff’s theory of the case is as follows:

1. That plaintiff’s petition was properly filed under section 72 of the Civil Practice Act.

2. That the error of fact which plaintiff attempted to have corrected by the court was the error of the clerk of the court in placing upon the Special Chancery Calendar for trial a cause which was pending on objections before the master.

3. That section 72 of the Civil. Practice Act is applicable to such errors of fact.

4. That the Civil Practice Act has abolished the distinction between the law and chancery — and that section 72 is therefore applicable to cases in law and in chancery.

5. That defendant’s answer to plaintiff’s petition was not verified, admitted the facts alleged in plaintiff’s petition, and that there was therefore no necessity for proving said facts.

6. That by its failure to move to strike the petition to vacate the order dismissing the cause, the defendant admitted the sufficiency of said petition.

Defendant’s theory of the case is as follows:

(1) The court was without jurisdiction to reinstate the case on the facts alleged in the petition after 30 days from the order of dismissal. After the expiration of 30 days, the plaintiff’s only remedy was to appeal from the order of dismissal or to file a bill of review, unless section 72 of the Practice Act permitted a reinstatement of the case.

(2) Section 72 of the Practice Act cannot be invoked because

(a) There was no error of fact to be corrected.

(b) Even if plaintiff had proved the facts alleged in the petition, or if the facts alleged in the petition are assumed to be true, the alleged error was not one to which section 72 of the Practice Act is applicable.

(c) Section 72 does not apply to cases in chancery.

(3) The plaintiff did not prove the facts alleged in the petition, the petition itself not being evidence.

It is quite obvious what occurred in this case. The executive committee of the superior court in all probability desiring to learn the status of the various cases pending on the court’s calendar, that is whether said cases were “alive” or “dead,” made up a special chancery calendar for call and such cases as were found to be “dead,” that is no one being any longer interested in them, would be dismissed for want of prosecution. The instant case, however, was pending before a master in chancery, evidence had been taken, the master’s report made in favor of plaintiff and objections had been filed thereto and the case was still pending before the master on objections filed and the filing of briefs.

It is equally obvious that if the court had known this case was on hearing before a master, it would not have dismissed it. The order which the court had entered directed the clerk to prepare a calendar of all chancery cases in which no order had been entered subsequent to December 31, 1933. It is also quite obvious that if this case was pending before the master, no order would have been entered until after the conclusion of the hearing there. When the case was reached on the trial calendar it was dismissed without counsel for either side being present, so that the question as to the neglig*ence or diligence of plaintiff or defendant is not involved.

The case of Weil v. Mulvaney, 262 Ill. 195, is very-similar to the instant case and the Supreme Court in that case, said:

“The principal question discussed in the briefs is whether the order of May 1,1912, dismissing the cause for want of prosecution, in the absence of counsel for both parties, on the general call of the trial calendar, while the order of reference to the master was still in force, was merely erroneous or was it void. By settled practice in this jurisdiction, on the final hearing, of a suit in chancery all previously rendered decretal orders are before the court and may be altered or vacated, as justice may require. (Gibson v. Rees, 50 Ill. 383; Jeffery v. Robbins, 167 id. 375.) We are not prepared to hold that the dismissal of a bill in chancery for want of prosecution while the cause is still pending on a reference to a master might not, under certain circumstances, be proper. The failure to prosecute might consist in a failure to proceed under the order of reference to the master or to take any steps in preparation for the final disposition of the cause. But such is not the situation presented on this record. Manifestly, neither counsel expected that the cause, after a reference to a master, was to be placed on the regular calendar or that it would be heard until the master had made his report to the court. Clearly, the cause was dismissed because neither the clerk nor the trial court had made any notation on the trial calendar that the case had been referred to a master in chancery. The provision of section 21 of the Practice act of 1907 that ‘all causes shall be tried, or otherwise disposed of, in the order they are placed on the docket, unless the court, for good and sufficient cause, shall otherwise direct,’ does not affect the situation here. The court had practically otherwise directed by the order of reference, which, beyond question, was overlooked inadvertently by the trial judge in entering the order dismissing the case in the absence of both counsel. The order was erroneous and not void.”

In the case of Maniatis v. Carelin, 287 Ill. App. 154, the court in citing from the case of Madden v. City of Chicago, 283 Ill. 165, said:

11 ‘Plaintiffs in error contend that the circuit court erred in re-instating the cause, first, because it had lost jurisdiction; second, the mistake sought to be corrected, if any, was one of law and not of fact; and third, the error, if any, in striking the cause from the docket of July 18,1914, was cured by the general order of June 17, 1915, by which the cause was re-instated on the trial calendar.

“Section 89 of the Practice Act abolishes the writ of error coram nobis and provides that all errors of fact committed in the proceedings of any court of record, and which by the common law could have been corrected by that writ, may be corrected by the court in which the error was committed upon motion in writing- made at any time within five years after the rendition of final judgment. In support of their contention that the error, if any, committed in striking the cause from the docket was one of law and not of fact, plaintiffs in error cite and rely upon a line of cases which hold, in substance, that any error intervening where a court is called upon to make a judicial determination is an error of law and not of fact. As disclosed by the affidavit in support of the motion to reinstate, the court, upon the calling of the calendar on July 18,1914, performed no judicial act based upon a consideration of facts presented. Under the rule of court the call of the calendar was had merely for the purpose of enabling the attorneys in the cases to express their wishes as to whether the cases in which they were respectively employed should he set for trial, continued or stricken from the docket. It was the duty of the minute clerk, under this rule of court, to indicate merely the desire of each attorney as expressed, and the court, in making the order, merely followed the minute made by the clerk. This was not a judicial determination, and if by error the clerk did not correctly note the request of an attorney the mistake was one of fact and not of law, even though the court acted upon the error made by the clerk. Defendant in error and his attorneys having responded on the call of the calendar that the case was for trial and having been assured by the clerk that the request was understood, were warranted in assuming that the cause would be placed on the trial calendar and tried in due course. The mistake was clearly one of fact and not of law, and it was proper to entertain the motion made, under the provisions of section 89 of the Practice Act. . . . ’ ”

In the instant case we think the order of the court dismissing* said cause was erroneous as such ruling was based on a fact which was unknown to the court. The court subsequently did right in setting* aside the dismissal of said suit.

For the reasons herein given the order of the superior court setting aside the order of dismissal is affirmed.

Order affirmed.

Hall, P. J., and Hebel, J., concur.


text:
    Chicago Title and Trust Company, Appellant, v. John Maruszczak et al., Appellees.
    Gen. No. 40,233.
    Opinion filed January 11, 1939.
    Isidore Brown and Gilbert Nelson, both of Chicago, for appellant.
    Wachowski & Wachowski and John H. Lyk, both of Chicago, for appellees; Casimir B. Wachowski and Michael Siemanski, of Chicago, of counsel.
   Mr. Justice Denis E. Sullivan

delivered the opinion of the court.

Plaintiff bring’s this appeal from an order entered in the circuit court on March 2, 1938, granting to John Maruszczak and Tillie Maruszczak, his wife, the prayer of their petition, changing* the provisions of a decree of foreclosure entered on June 1, 1933 as to the amount of attorneys’ fees allowed to plaintiff, from $2,500 to $500. Said petition also asked the court to find compensation for the trustees and to reduce other costs and expenses and ordering the decree satisfied in open court, which requests the court granted. The court refused plaintiff the right to file an answer to said petition.

A part of the original decree of foreclosure which was entered June 1,1933, reads as follows:

“(11) That the said complainant was necessarily required to engage the solicitors to institute and conduct these proceedings, and did engage such solicitors ; that the usual, customary and reasonable fee for the services of complainant’s solicitors herein is the sum of $2,500.00'; that under and in accordance with the terms of said trust deed, said complainant, as Trustee, has a lien upon said premises for said sum of $2,500.00 prior and superior to the lien of the indebtedness secured by said bonds.”

Apparently, nothing further was done regarding the foreclosure until January 15, 1938, when the master in chancery who was directed to execute the decree filed his report of sale with the clerk of the circuit court, wherein he stated that pursuant to the provisions of the decree he did on September 29, 1933, sell the premises to one Nick Pilot for $8,000; that he executed a certificate of sale to be delivered to Nick Pilot and filed a duplicate with the recorder of deeds; that he received no cash nor was there produced for credit the evidence of indebtedness secured by the trust deed being foreclosed herein.

It further appears that on January 15, 1938, plaintiff filed its petition setting forth that a sale of the premises was made to Nick Pilot for $8,000; that it is informed and so believes that no money was put up at said sale; that it made frequent and repeated demands upon Nick Pilot to deposit the money but that he has failed to do so; that so far as petitioner can ascertain Nick Pilot does not have sufficient funds to make good his bid and prays that sale to Nick Pilot be set aside.

It further appears that on March 1,1938, defendants John Maruszezak and Tillie Maruszezak presented their petition wherein it was stated that they are the owners of the equity of redemption and the owners of the entire indebtedness secured by the trust deed sought to be foreclosed; that the trust deed secured various bonds maturing at different dates; that at the time of the institution of the foreclosure they had all interest paid to date and that one of the attorneys for plaintiff obtained the bonds upon which foreclosure was instituted by questionable means; that in said foreclosure matter nothing was done from June 28,1933, down to the present date; that petitioners have diligently striven to meet their said obligation and have through the greatest effort and hardship managed to acquire all of the outstanding bonds of the entire issue aggregating $30,000; that the necessity for sale herein has vanished and that these petitioners have made satisfactory arrangements herein with the Chicago Title and Trust Company for its trustee’s fees and with the master in chancery for his fees; that the services proved up before the master and referred to in the decree of foreclosure were services for work performed and in view of the fact that it is not necessary for the said attorneys to complete their said foreclosure because of the acquisition by these defendants of all the bonds herein, that the compensation allowed for work not performed should be deducted from the amount of fees allowed herein, and that in order to complete this foreclosure proceeding, it would be necessary for said attorneys to attend the master’s sale and examine the master’s report of sale and distribution and prepare a decree in conformity therewith, to see to the payment of the sums of money paid by the master to the Chicago Title and Trust Company, as trustee, and to see to the proper payment by said trustee to the owners and holders of the bonds herein, which services the lawyer for plaintiff, Gilbert Nelson,-testified, were the services to be completed by him. The petitioners prayed in the alternative, among other things, as follows:

“ (b) That this Court permit these Petitioners to introduce evidence of the value of the services not performed by the said attorneys, Gilbert Nelson and Isidore Brown and to allow these Petitioners credit therefor.”

On March 2,1938, without any witnesses having been sworn or evidence offered and against the objection of petitioner and without ruling* on said petition, the court entered the following order:

“2. That the purpose for which the decree of June 1, 1933, was entered has ceased and that the Court has jurisdiction herein to determine the sum to be paid at this time to the Trustee for and on account of its attorneys’ fees.

‘13. The Court further finds that the said attorneys for plaintiff did not take any action herein from June 28,1933 to January, 1938, and that their conduct in this respect was a gross neglect of their duties to the bondholders herein and to the Court.

“4. The Court further finds that adequate compensation for the said Trustee for its said attorneys ’ fees is the sum of Five Hundred ($500.00) Dollars.

“7. The Court further finds that the indebtedness secured by the trust deed sought to be foreclosed on herein has been fully paid, and that all costs of this proceedings have been paid or legally tendered to the parties entitled thereto.

“It Is Therefore Ordered, Adjudged and Decreed that the said decree of foreclosure heretofore entered herein on June 1,1933, be and the same is hereby satisfied in open Court. ’ ’

The record shows that the plaintiff in this case desired to answer the petition of the defendants, but was not permitted to do so. No witnesses were sworn nor was any evidence introduced upon which these findings were based. Just how the trial court arrived at its conclusion we are unable to perceive.

The orderly way in which a court may arrive at a conclusion is by first having* pleading’s filed and, if an issue is made by same, permit the introduction of evidence, if necessary, in support of the contention of each side thereto. The court may then make its conclusion after considering* the pleadings and the evidence submitted in relation thereto.

It is contended by the plaintiff that the decree of foreclosure was a final decree and that nothing* could have been done by the trial court in connection therewith after the expiration of the term and cites in support thereof the case of Tosetti Brewing Co. v. Koehler, 200 Ill. 369, wherein the court said at page 373: “A decree cannot be vacated or amended at a subsequent term on motion or petition for the purpose of correcting an alleged error which involves the merits of the case. (5 Ency. of Pl. & Pr. 1049.) The proper method of impeaching* and setting* aside a decree after the term is to file an original bill in the nature of a bill of review, when such decree may be set aside, reversed or modified, according to the equities of the parties.”

In the instant case under the circumstances as disclosed by the record, it apparently was impossible to sell the property. In the case of First Nat. Bank v. Bryn Mawr Beach Bldg. Corp., 365 Ill. 409, the Supreme Court in referring to the ease of Totten v. Totten, 299 Ill. 43, wherein an application was made for an extension of time for payment of the sum to redeem from a mortgage which had been foreclosed and on which sale had been had, the extension was granted and the power of the court to do so was questioned, the court at page 421, said: “The rule that a court does not have power, after the expiration of the term, to amend the principles of its final decree was there recognized, but it was held that a court of equity does retain and possess the power to control the time and manner of the execution of its judgments and decrees.

“The above and similar cases, though not deciding the question here, evidence a recognition by this court that rules of equity jurisdiction have developed and are developing, and that judicial proceedings must be adjusted to facts as they are. All who are conversant with the history of equity jurisprudence know that as a distinct system it has been of constant growth and development from its inception, covering a period of hundreds of years. ‘The jurisdiction of a court of equity does not depend upon the. mere accident whether the court has, in some previous case or at some distant period of time, granted relief under similar circumstances, but rather upon the necessities of mankind, and the great principles of natural justice, which are recognized by the courts as a part of the law of the land, and which are applicable alike to all conditions of society, all ages, and all people. ’ ’ And in the same opinion the court at page 417, said: “Equity jurisdiction of foreclosure proceedings is, however, general and not statutory or special. ... It would seem that since equity courts have always exercised jurisdiction to decree the enforcement of mortgage liens and to supervise foreclosure sales, such jurisdiction need not expire merely because the questions or conditions surrounding the exercise of such time-honored functions are new or complicated. If it may reasonably be seen that the exercise of the jurisdiction of a court of equity beyond the sale of the property will result in better protection to parties before it, it would seem not only to be germane to matters of undisputed jurisdiction, but to make for the highest exercise of the court’s admitted functions.”

So, in the instant case, the plaintiff could only realize the fulfillment of the provisions of the decree by selling the property and they had been unable to consummate a sale. In the meantime, as alleged by defendant, the debt represented by the bond issue had been paid,— that is the maker of the paper had acquired the bonds.

We think on the authority of the above quoted case, the trial court had jurisdiction to entertain the motion, but should have permitted all parties to be heard after proper pleadings and issues had been made.

For the reasons herein given the order of the circuit court is reversed and the cause is remanded with directions to first permit the parties, if they so desire, to make up an issue by their pleadings, hear the evidence offered and then decide the matter by entering such order as in the court’s opinion the law and evidence demand.

Order reversed, and cause remanded with directions.

Hall, P. J., and Hebel, J., concur.


author: Mr. Presiding Justice MoSurely

text:
    Cicero State Bank, Administrator of Estate of Lottie Jerzak, Deceased, Appellee, v. Dolese and Shepard Company, Appellant.
    Gen. No. 40,205.

      Opinion filed January 16, 1939.
    Rehearing denied January 30, 1939.
    Howard & Greene, of Chicago, for appellant; H. L. Howard, of counsel.
    Julius H. Selinger and Julius T. Skrydlewski, both of Chicago, for appellee; Julius H. Selinger, of counsel.
   Mr. Presiding Justice MoSurely

delivered the opinion of the court.

On July 17, 1933, Lottie Jerzak, a month over 14 years of age, was drowned while on the premises of the defendant; the administrator of her estate brought suit alleging that defendant owned and possessed certain premises used as a dumping ground for waste material ; that water to the depth of 40 feet had accumulated on the premises on which were floating planks, scum and other objects; that the premises were attractive to children of tender years and that plaintiff’s intestate was attracted to the negligently unguarded ivater hole and while at play she fell into the water and was drowned. Upon trial the jury found defendant guilty and assessed plaintiff’s damages at $4,000. Judgment for this amount was entered and defendant appeals.

The premises on which this accident happened covered a large area at the western boundary of the city of Chicago; the place was originally a quarry operated by the defendant, but for some years prior to the accident had been used as a dumping ground for garbage and refuse.

The premises extended south from 30th street to 33rd street, about three city blocks, and west from 46th avenue to 48th avenue, about two city blocks; garbage had been dumped on the premises for some years before and it had been filled up except about a square block in the middle of the premises; this hole was filled with water on which was floating all kinds of rubbish which at some places became thick enough to form a scum or muddy soft ground; there was no regular roadway across the premises; the eastern boundary was the railroad tracks of the Belt Line railroad and the M. & I. railroad; east of these tracks was 31st street running east and west, and the pavement and sidewalk on 31st street stopped some distance east of the Belt Line tracks, but the evidence shows that people wishing to cross defendant’s premises would cross the railroad tracks and walk on what might be called an extension of 31st street across the property going west.

The trucks of the concerns dumping garbage at this place in 1933 would enter a gate on the west side and drive into the premises in an easterly direction; the garbage would be dumped at the edge of the water hole and part of it would roll down the embankment into this hole and part of it would remain on top, from where it would be shoved by a tractor over the embankment down into the water hole; the embankment was from 8 to 12 feet higher than the water hole and extended east and west for a distance of a city block, not in a straight line but jagged. There was evidence that below this embankment, at the north edge of the water hole was a strip of water, but there is a conflict in the evidence as to whether it was all open water or partly covered with scum and rubbish; the water varied in depths at different places but is described as ‘1 deep. ’ ’

Lottie Jerzak, the deceased, was living at home with her mother, a widow, on west 39th street; she was having her vacation from grammar school where she had just graduated. Lottie, with her sister Sophie, then 12 years of age, and a neighbor, Florence Moga, 11 years of age, decided to go to this garbage dump to look for toys. This was a customary thing for the children in the neighborhood to do. The path or driveway was used generally by people in the community desiring to cross the premises; from this pathway running across the premises the dumping into the water hole was visible and accessible; in the material brought by the trucks and dumped were toys, dolls and bright, shiny metals, and the evidence shows that children customarily went to the place of the dumpings to salvage such articles.

The deceased, with the two other girls, had crossed over the railroad tracks onto defendant’s premises at about 31st street and walked first in a westerly direction and then southwesterly towards the water hole; they picked up some toys and then proceeded down the embankment to the level of the water hole. Except for the strip of water the surface of the water at this point was covered with a scum, which witnesses said looked like the pathway on which people walked. One witness said ‘1 It appeared to be ground. ’ ’ Another witness testified that the scum at this point was about a foot and a half thick. The girls walked in single file over this place, unaware of the danger. The deceased led the way when “the ground beneath her gave way and she fell into the water. ’ ’ Sophie, who was following, tried to reach her sister, but she also sank into the scum and water, as did the third member of the party, Florence Moga. Men nearby, hearing their screams, went to the scene and succeeded in rescuing Florence Moga and Sophie Jerzak, but Lottie sank into the water and her body was not recovered until two days afterwards.

Defendant first says that the attractive nuisance doctrine does not apply to a child 14 years of age. The attractive nuisance doctrine rests upon the proposition that it applies to children of such tender years that they cannot be guilty of contributory negligence as a matter of law. Defendant cites Maskaliunas v. Chicago & W. I. R. Co., 318 Ill. 142, as holding that as a matter of law the attractive nuisance doctrine cannot be applied to the case of a child above the age of 14 years. That case was not an attractive nuisance case. The negligence charged was the failure of the defendant to comply with a fencing ordinance and the opinion holds that the question as to plaintiff’s carefulness was properly submitted to the jury.

Generally speaking it may be said that one who maintains dangerous instrumentalities or appliances on his premises of a character likely to attract children in play, or permits dangerous conditions to remain thereon with the knowledge that children, regardless of age, are in the habit of resorting thereto for amusement, jis liable to such children as are injured thereby, and ) whether or not such conditions are attractive to chil- ' dren is a question of fact for the jury. Deming v. City of Chicago, 321 Ill. 341; Stedwell v. City of Chicago, 297 Ill. 486, 490; Stollery v. Cicero & P. St. Ry. Co., 243 Ill. 290, 292.

There is abundance of evidence that children habitually went to defendant’s dumping ground to get toys, and even candy. Children in large numbers and of all ages were daily playing about this dumping ground. There was also evidence that there were signs placed at various points .on the premises warning1 of danger, and employees testified that they were constantly warning children and others to avoid danger, but these signs and warnings were for the most part ignored by adults and children alike.

Defendant cites some cases in which it has been held that to create liability for an attractive nuisance the dangerous thing must be so located as to attract children from'the street or from some place where they may be expected to be. The evidence shows in the instant case that the attractions of the dump were easily visible from this short cut or pathway across the premises.

But it is not always necessary, to create an attractive nuisance, that it should be visible from the street. In Ramsay v. Tuthill Bldg. Material Co., 295 Ill. 395, 399, children had been in the habit of coming upon the defendant’s premises and playing* about an elevated track, with sand bins underneath filled with sand; a boy climbed up the structure, jumped into one of these bins and was smothered by the sand which ran out of the bin through a hole in the bottom. The court sustained a judgment under the attractive nuisance theory, holding that it was not necessary, to make the defendant liable, that the bins with holes in the bottom should be visible from the street; that if a person permits children who are incapable of appreciating danger to come upon his premises, where they are exposed to danger, there is an obligation upon him to take means to prevent this either by excluding* them from the premises or protecting them while they are on the premises.

In the present case it appears that literally hundreds of persons were on the premises at all hours of the day and night. The tractor operator, who was under orders to keep people off the grounds, testified that this did not include chasing away people who used the pathway or short cut along* what would be the extension of 31st street through the property. Moreover, it appears that between 75 and 100 persons lived upon the dump as squatters, in shacks built from waste material which they found upon the premises. All of this was, apparently, with the permission of defendant.

Defendant claims that the evidence shows that the accident happened at a place where there was open water, and cites cases involving children playing near open water where the danger was apparent. While there was a strip of water immediately below the embankment, the jury could properly believe that just beyond this strip was the so-called pathway, apparently solid ground, upon which the children were walking at the time of the accident.

The dangers present in the water hole were not obvious even to an adult, and certainly not to a child 14 years of age of the experience, capacity and intelligence of the deceased. The appearance of the place where she was walking was described by various witnesses as like “ground.” It “looked like a plain pathway in a prairie.” “There-was grass, sand and rubbish on it. ’ ’ Under such circumstances it could not be held as a matter of law that the deceased, 14 years and 1 month old, should have realized the danger. The condition might easily have misled an adult. There is no evidence that the deceased knew that the place where she was walking was unsafe or knew of any other person who had previously been injured there. Witnesses for defendant, testifying* to the treacherous condition of the pathway, said that this would only be known by experience.

Defendant argues that the deceased was not attracted to the premises by the ground or pathway, whose unstable condition caused her to break through and to become submerged in the water, but that she was allured to the premises by the prospect of salvaging toys and things of that nature. In O’Donnell v. City of Chicago, 289 Ill. App. 41, where a boy was burned while climbing an electric light pole to watch a prize fight within a nearby stadium, it was argued, as here, that the pole which inflicted the injury was not the thing that attracted the boy, but the prize fight. We held that the question was whether the owner maintained an instrumentality which could reasonably be expected to attract children, and that the defendant in maintaining its imperfectly insulated wires within the attractive environment identified itself in that way with the attractive place. And in Oglesby v. Metropolitan West Side El. Ry. Co., 219 Ill. App. 321, 325, where it was argued that the plaintiff was not attracted to the premises by the elevator which caused the injury but by freight cars on the premises, we held that because a child is first attracted upon the premises by another instrumentality than the one inflicting the injury is not decisive.

. As we have already indicated, it cannot be said that the deceased was guilty of contributory negligence as a matter of law, and this question was properly submitted to the jury.

Defendant’s counsel have presented a number of cases involving facts so different from those in the case at bar as to make it useless to indulge in any extended comment upon them.

Objections are made to various instructions given at the request of plaintiff. They for the most part contain g’eneral statements as to the duties of an owner of premises containing things appealing to childish curiosity and instincts which mig'ht be dangerous. The court also instructed the jury that the deceased herself must have been exercising ordinary care for her own safety before her administrator could recover, and explained “that the plaintiff must have been exercising such degree of care that an ordinarily prudent girl of plaintiff’s age, experience, intelligence and capacity would have exercised under the same or similar circumstances.” Defendant says that the factors of “experience, intelligence and capacity” should not be considered in connection with a person over the age of 14. In Hughes v. Medendorp, 294 Ill. App. 424, it was held that the absence of these factors in an instruction was erroneous. In Peterson v. Chicago Consol. Traction Co., 231 Ill. 324, the plaintiff was between 14 and 15 years of age; he was injured by defendant, and the court gave the jury an instruction substantially the same as the one under consideration. The Supreme Court affirmed the judgment of the lower court. The court committed no reversible error in regard to the instruction.

It cannot be said that the verdict of the jury is against the manifest weight of the evidence and as no reversible errors occurred upon the trial the judgment is affirmed.

Affirmed.

Hatchett and O’Connor, JJ., concur.