text:
    Russell Sauvage, Appellant, v. Virginia Gallaway and M. C. Gallaway, Appellees.
    Term No. 46F13.

      Opinion filed May 6, 1946.
    Released for publication May 31, 1946.
    Verlie, Eastman & Schlafly and Emerson Baetz, all of Alton, for appellant.
    C. C. Ellison, of Alton, for appellees.
   Mr. Justice Culbertson

delivered the opinion of the court.

This is an appeal from a judgment of the circuit court of Madison county, Illinois, denying the petition of appellant, Bussell Sauvage (hereinafter called plaintiff) for an injunction restraining appellees, M. C. Callaway and Virginia Callaway, his wife (hereinafter called defendants), from engaging in business in direct competition with the W. M. Sauvage Advertising System, a billboard advertising enterprise in Alton and Woodriver, Illinois, and surrounding territory. The injunction was denied after a hearing, at which evidence was adduced. The precise order appealed from being in words and figures, as follows:

“Oct. 1,1945.

“Upon consideration of the law and the evidence it is the opinion of the Court that an injunction restraining M. C. Gallaway from engaging in the advertising sign business should not be granted in this instance, and accordingly the petition of Bussell Sauvage for an injunction restraining M. C. Gallaway from engaging in the advertising sign business is hereby denied.

R. W. Griffith, Judge.”

The injunction was sought on the theory that the defendant, M. C. Gallaway, is forbidden, as a fiduciary, to enter into competition with his own trust res, and that his wife, although a trust beneficiary, is without the prohibition because of her relationship to him.

There is little controversy about the facts in this case. From the evidence it appears that William M. Sauvage, who was at the time of his death, a resident of the City of Alton, departed this life on the 15th day of August 1938, leaving surviving a son, Bussell Sauvage, the plaintiff herein, and a daughter, Virginia Gallaway, one of the defendants herein. His estate consisted of various parcels of real estate and personal property, and a going and operating outdoor billboard advertising business in and about Alton and Woodriver, Illinois, known as the “W. M. Sauvage Advertising System.” William M. Sauvage died testate and his will, among other things, provided that his property, including the billboard business, be placed in trust for 10 years under the administration of a board of five named trustees. All of the trustees named in the will declined to serve, and on December 4, 1939, a suit was instituted in the circuit court of Madison county, asking the court to assume jurisdiction and appoint a successor or substitute trustee. Jurisdiction was accepted by the court and on January 5,1940, the circuit court appointed M. C. Gallaway, one of the defendants herein, as trustee. It appears from the evidence that Gallaway accepted the office and began the administration of the trust, including the advertising business.

In the interim between the date of his appointment as trustee, and March 20, 1944, there seems to have been a considerable amount of strife, disagreement, and contention in connection with the handling of this trust as between the trustee, .and the plaintiff herein. On March 20, 1944, the defendant herein, M. 0. Gallaway, filed in the circuit court of Madison county, Illinois, a paper headed “Resignation of M. C. Gallaway, as trustee of the William M. Sauvage Outdoor Advertising System,” and which said paper bore the signature of M. C. Gallaway and contained the following language:

“To Honorable D. H. Mudge, Presiding Judge of said Court:

I hereby resign as trustee of the William M. Sauv-age Outdoor Advertising System, such resignation to take effect upon acceptance and appointment of my successor by the Court. Dated at Alton, Illinois, this 18th day of March, A.D. 1944.”

The record in this case does not disclose any action taken by the court upon this paper.

On June 26, 1944, an order was entered in connection with this trusteeship, which designated Russell Sauvage, plaintiff herein, as manager of the advertising business, with full power and authority over its funds and property, and providing for reports of his operation to the other beneficiary under the trust.

On June 25, 1945, the petition for injunction in this case was filed and it alleged, among other things that, the defendant, M. C. Gallaway, had operated the W. M. Sauvage Advertising System, as trustee, for the heirs, and had acquired a knowledge of its customers and patrons, and that he had begun the operation of a business directly competitive with it; that in such operation he had used his knowledge acquired as trustee; that such conduct on his part was wrongful and in violation of his fiduciary duties; and that he had, by such conduct, irreparably damaged the trust estate. It prayed that he be enjoined from prosecuting the competing business for the duration of his trusteeship and 18 months thereafter.

The defendant, M. C. Gallaway answered the petition and admitted the competition charged in plaintiff’s petition, but denied the use of information obtained from the trust. He also asserted, as an affirmative defense, that he had resigned as manager of the Sauvage System, and alleged that Russell had been placed solely in charge. The defendant, Virginia Sauvage, filed what she chooses to designate as an intervening petition, and in which she alleged that her husband’s business was a partnership in which she owned the principal interest, and that the business had been formed because of constant quarreling about the Sauvage System. A reply was filed to the answer of M. C. Gallaway, and an answer to the intervening petition.

When this matter came on for hearing the plaintiff herein testified as to his appointment as manager in June of 1944, and stated that there was then no competing billboard business in the Sauvage territory. In February of 1945, however, he stated that a competitor appeared in the person of M. C. Gallaway, one of the defendants herein, who began operating the “M. C. Gallaway Outdoor Advertising System.” Plaintiff testified that Gallaway had erected seven boards in the Sauvage territory, and that four of them were immediately adjacent to existing Sauvage boards. A photograph was introduced in evidence of the office quarters of the Sauvage System, and although a sign over the whole structure identified it as the office of the Sauvage System, plaintiff testified that M. C. Gallaway was actually using one of the offices in the structure, and that a common telephone line served both offices, with Gallaway’s office being on an extension of the Sauvage System phone.

' As to whether or not the defendant, M. C. Gallaway Was engaged-in a competing business with the Sauvage System, we believe is clearly established by the testimony of Gallaway himself, who testified among other things that, he began to operate his own billboard business in January or February of 1945, and that his first board was built in April, and he asserted that “naturally he would solicit all the business that he could get in operating his business in the future, including customers of the Sauvage Advertising Sys-tern; that he had solicited them before and would solicit them now for outdoor advertising business; and that as a prudent businessman he would do everything in his power to take contracts away from the Sauvage System and put them with his Company.” He denied that he had utilized any of the information he had obtained as trustee, and asserted that he did not think he would utilize it. Gallaway testified that he did not use his office in the Sauvage System building for his outdoor advertising business, but merely for trust business and his newspaper business, and that he used the telephone only for estate work. The outdoor advertising business, he asserted, he carried on from his home.

This brings us to a consideration of two propositions : (First) Was M. C. Gallaway at the time of the hearing in this cause trustee of the William M. Sau-vage estate; and (second) If trustee, were his acts and conduct as disclosed by the evidence in this case, proper.

As to the first proposition, we do not believe that it can be reasonably contended that the fact that M. C. Gallaway filed what purported to be a resignation as trustee of the William M. Sauvage Advertising System in court on March 20, 1944, under any consideration could be considered as terminating his duties, responsibilities and liabilities, as trustee. The resignation was never acted upon by the court and the trustee relieved of his, responsibilities as trustee,- and -uiider ■ the undisputed evidence in this case, he continued to act as trustee over certain of the other property and assets of the trust. A trust cannot be divided into parts or fractions for administration, and a trustee cannot resign as fiduciary for part of the trust, retaining his office as to the remainder (3 Bogert on Trusts 1677; 1 Scott on Trusts, 555; 1 Restatement of Trusts, 278; In re Matter of Olm-stead, 24 App. Div. 190, 49 N. Y. S. 104).

Concluding, as we must, under the undisputed evidence in this case, that M. C. Gallaway, as trustee, had not divested himself of his responsibilities as trustee, we now proceed to a consideration of his acts and conduct as shown by his evidence, with a view to testing it in the light of whether or not it is consistent with his responsibilities as a trustee. A fundamental duty of a trustee is loyalty to his cestuis, and the duty of loyalty is more intense in the trust relationship than in any other fiduciary relationship (54 Am. Jur. 250).

It is a fundamental and wholesome provision of the law which requires a trustee must act in good faith in the administration of his trust, and that requirement means that he must act honestly and with finest and undivided loyalty to his trust, not merely with the standard of honor of the workaday world, but with a punctilio of honor the most sensitive (54 Am. Jur. 246; Buffum v. Peter Barceloux Co., 289 U. S. 227).

A trustee who competes with a business, part of his trust res, will be removed and solicitation of customers of the trust business will be enjoined (Moore v. McGlynn (1894), 1 Ir. R. 74 (Irish Court of Appeals).

Giving consideration to the evidence in this case and the law applicable thereto, we are brought to what seems to us,, an inescapable conclusion that, the plaintiff herein was entitled to relief at the hands of the trial court to the extent that an injunction should have been granted, enjoining defendant, M. C. Grallaway, trustee of the William M. Sauvage estate, from engaging in direct competition with the trust estate, of which he is trustee, and that he should be so enjoined until such time as he has ceased to be trustee of said trust.

This case is, accordingly, reversed and remanded, with directions to the trial court to issue an injunction in accordance with the views expressed herein.

Reversed and remanded with directions.

Stone, P. J., and Bartley, J., concur.


source: Caselaw Access Project

author: Mr. Presiding Justice Hayes

license: Public Domain

text:
    W. G. Smith, Appellant, v. Frank Reisch et al., Trustees, Trading as Annie Reisch Investment Company, Appellees.
    Gen. No. 9,496.

      Opinion filed May 28, 1946.
    Released for publication June 24, 1946.
    Mark O. Roberts, of Springfield, and Victor Hemphill, of Carlinville, for appellant.
    Barber & Barber, of Springfield, for appellees.
   Mr. Presiding Justice Hayes

delivered the opinion of the court.

This is a suit upon two notes, one in the sum of $4,700, the other for $15,000 signed hy Frank Eeisch and Sue M. Eeisch followed by the phrase “ Trustees, trading as The Annie Eeisch Investment Company, a Common Law Trust of Sangamon County, Illinois.” The notes were dated October 3,1932; were due in four months, and were payable to Eidgely-Farmers State Bank. Nine years after maturity plaintiff, W. G-. Smith, purchased these notes and others of a total face value of $390,000 from the receiver of the payee bank for $4,455. This action was begun by a complaint and cognovit in the circuit court of Sangamon county and judgment was entered by confession against the makers individually and as trustees. The individual defendants filed motions to open the judgment against them individually for stay of execution and for hearing on the merits. Subsequent pleadings were filed by both plaintiff and defendants including a motion for summary judgment hy defendants which was allowed by the court. As a result, the judgment against defendants' individually was vacated. Plaintiff Smith has appealed to-this court.

Defendants rely upon section 20 of the Negotiable Instruments Law [Ill. Rev. Stat. 1945, ch. 98, par. 40; Jones Ill. Stats. Ann. 89.040] to escape personal liability. That section provides: “Where the instrument contains, or a person adds to his signature, words indicating that he signs for or on behalf of the principal, or in a representative capacity, he is not liable on the instrument if he was duly authorized; but the mere addition of words describing him as agent or as filling a representative character without disclosing his principal, does not exempt him from personal liability. ’ ’

Plaintiff contends first that this section is of no avail because a principal and agent relationship does not exist between a common law trust and its trustees. He has cited authorities holding that such a trust is not a legal entity and hence cannot be a disclosed principal. Guthmann v. Adco Dry Storage Battery Co., 232 Ill. App. 327; Moskal v. New Era Commercial Ass’n, 228 Ill. App. 278. This argument, however, overlooks the fact that the statute protects not only agents but persons “signing in a representative capacity as well.” Defendants signing as trustees clearly acted in such capacity. Brannon, Negotiable Instruments (6th Ed.) 312.

Plaintiff also contends that, assuming section 20 does apply here, defendants failed to adopt words disclosing their representative capacity. We do not agree. “Whenever a form of instrument is such as to fairly indicate to the eye of common sense that the maker signs as agent or in a representative capacity, he is relieved of personal liability if duly authorized.” Zavadil v. Norris, 287 Ill. App. 627 (Abst.). This phrase added to defendant’s signatures here clearly indicated their representative capacity.

Plaintiff argues further that section 20 applies only if the obligation in question was one that the persons executing it were authorized to make and that there is no express authorization in the trust instrument authorizing defendants to execute judgment notes. The trust instrument authorizes the trustees to execute notes and “to do all'acts and things which in their judgment are necessary, proper and advantageous or expedient to promote the complete and most successful execution of this trust . . . .” It further provides that “the powers of the trustees hereunder shall be construed as the general powers of citizens of the United States to act collectively and to do any lawful things which citizens may do in any state or country, excepting only for the limitations herein expressed.” We believe these- provisions are broad enough to authorize the execution of judgment notes. Nor do we find any merit in plaintiff’s argument that judgment clauses are operative only in suits at law while a trustee can be sued in a representative capacity only in equity. While it is true there is broad language in Wahl v. Schmidt, 307 Ill. 331, supporting plaintiff’s contention that case' involved the liability of a trust estate in tort, we believe that our decision in Newby v. Kingman, 309 Ill. App. 36, recognizes the liability at law of the trust estate for authorized contracts and that that decision should control here.

We have examined carefully the numerous arguments advanced by plaintiff as grounds for a reversal here but find them without merit. It would serve no useful purpose to extend this opinion to cover them all. We believe the judgment of the circuit court of Sangamon county is correct and should be affirmed.

Judgment affirmed.


author: Mr. Justice Dady

text:
    First National Bank of Danville, Executor of Last Will and Testament of Emma H. Fisher, Deceased, Appellant, v. Josephine Taylor et al., Appellees.
    Gen. No. 9,493.

      Opinion filed May 28, 1946.
    Released for publication June 24, 1946.
    Mann & Stifler, of Danville, for appellant.
    Steely, Dysert & Norwood, of Danville, for appellees ; Benjamin I. Norwood, Jr., of Danville, of counsel.
   Mr. Justice Dady

delivered the opinion of the court.

In the above cause the defendants filed a motion to abate the proceeding and dismiss the amended complaint. The court ordered that such motion be “allowed and complaint is dismissed.” Plaintiff elected to stand by the amended complaint, and thereupon the court ordered that the plaintiff’s action he forever barred. Plaintiff brings this appeal from such order.

The material facts alleged in such complaint and admitted by the motion are:

1. Plaintiff is the executor of the will of Emma II. Fisher, deceased, who died at 3:00 o’clock p. m. on January 1, 1944. She was the widow of John W. Fisher, deceased, who died March 19, 1926.

2. The will and codicil of John W. Fisher were duly admitted to probate and the fourth clause of such will as modified and changed by such codicil reads as follows:

“It is my will that my children, after my death and during the life of my wife, pay to my said wife each year during her life the sum of money set after their respective names, viz:

Charles U. Fisher......................$400.00

Edward M. Fisher.............'.........$400.00

Armada Miller.........................$400.00

Josephine Taylor......................$400.00

Jacob Gi. Fisher........................$400.00

that said sums of money be paid to my said wife at the bank in Indianola, subject to her order, on or before January 1st each year; and I hereby make said payments to my said wife by my said children a charge and lien upon all of my real estate to secure the full and faithful payment of the same during the life of my wife. In case any of my said children should be deceased at the time of my death, then and in such case the person or persons who succeed to the share of said deceased child or children shall make payment -as above.”

3. Armada Miller died before the death of John W. Fisher, leaving three children, vis: Wynona Ward, Delmer F. Miller, and Everett J. Miller, as her only heirs.

4. On April 21, 1926, a contract was signed and entered into by and between Charles U. Fisher, Edward M. Fisher, Jacob Gr. Fisher, Josephine Taylor, Wynona Ward, Delmer F. Miller, and Everett J. Miller, as parties of the first part, and by Emma H. Fisher, as party of the second part, which stated that, in consideration that the second party would not file any renunciation of such will and codicil, and would accept the provisions provided in said agreement for her benefit, in full satisfaction and settlement of all of her interest in the property of John W. Fisher, deceased, — the first parties agreed, among other things:

“1. That they will pay to second party the said sum of $2,000.00 per year, as provided in the codicil to the Last Will and Testament of the said John W. Fisher, deceased, in the manner provided in said Last Will and Testament.”

5. By said agreement first parties also agreed to convey and turn over to Emma H. Fisher certain real and personal estate belonging to the estate of John W. Fisher, deceased.

6. By said agreement second party agreed to not file any such renunciation, agreed to accept “said sum of $2,000 per year as provided for her in the codicil,” and to accept certain real and personal property, and that on request she' would sign necessary deeds or papers for carrying out the intent and purpose of the contract.

7. Emma H. Fisher fully complied with her part of such contract. The defendants complied with their part of the contract except that they failed to pay the amount due thereunder on or before January 1, 1944.

8. Jacob Gr. Fisher died December 24, 1941. The legatees under his will were his widow Jessie M. Fisher and his daughter Elizabeth Fisher Tobin.

9. Charles II. Fisher is deceased and his heirs are unknown to plaintiff.

The prayer of the complaint was that judgment be entered against Edward M. Fisher and Josephine Taylor each for $400; against Jessie M. Fisher and Elizabeth Fisher Tobin, together, for the sum of $400, and against Wynona Ward,. Delmer F. Miller, and Everett J. Miller, each in the sum of $133.33. They were the only defendants.

The only grounds set forth in the motion to abate and dismiss are:

1. The complaint fails to implead as parties defendant all necessary parties.

2. The complaint affirmatively shows that any right of action which Emma H. Fisher had was a personal right not assignable and no right of action survived her death.

3. The complaint affirmatively shows that no right of action has accrued to the plaintiff as executor.

4. The complaint alleged that Emma H. Fisher died on January 1, 1944, New Year’s Day, a legal holiday, at a time prior to the vesting of any right of action for default in the contract.

In passing on such contentions it is necessary to determine just what the first parties to such contract agreed thereby to do so far as concerns payment of the moneys sought to be recovered in this proceeding. We believe that the contract and the will and codicil must, be read and construed as though they were written into one instrument. The contract expressly provided that the first parties would “pay Emma H. Fisher the said sum of $2,000 per year as provided” in the codicil. (Emphasis ours.) The codicil did not provide that the five children named therein should jointly or severally pay the sum of $2,000 per year to the widow, but in effect merely provided that each of the said five children should pay the widow $400 per year. One of such children, namely, Armada Miller, predeceased the testator. Her children, the defendants Wynona Ward, Delmer F. Miller, and Everett J. Miller, as her heirs, succeeded to the share of Armada Miller, deceased, and the codicil and in effect the contract which they signed provided that in such contingency they would collectively pay the $400 per year which Armada Miller would have had to pay if living. Therefore it is our opinion that by the contract Charles H. Fisher, Edward M. Fisher, Josephine Taylor and Jacob Gr. Fisher severally agreed to pay the widow $400 per year, and Wynona Ward, Delmer F. Miller and Everett J. Miller jointly agreed to pay the widow $400 per year.

The contract, with such codicil read into it, then provides that during the life of the widow, each party respectively shall pay the widow on or before January first of each year during her life a certain specified sum. It is our opinion that the first payment due under the codicil became due on January 1, 1927. Subsequent payment's became due and payable on January 1st of each year thereafter, the last payment being due and payable on January 1, 1944.

Defendants contend that the complaint fails to plead necessary parties in that the heirs of Charles U. Fisher are not made parties defendant. Defendants say that the agreement of April 21, 1926, was a joint and several contract because of the provisions of par. 3, ch. 76, Ill. Rev. Stat. 1945 [Jones Ill. Stats. Ann. 70.04], and cite several cases, such as Wisner v. Catherwood, 225 Ill. App. 471, which hold that in an action on a joint and several obligation executed by two or more persons, one or all of the obligors, but not an intermediate number, may be sued. All of such cases were decided prior to the adoption of our Civil Practice Act (Ill. Rev. Stat. 1945, ch. 110, pars. 148,150 [Jones Ill. Stats. Ann. 104.024,104.026]), which Act provides:

“Sec. 24. (1) Any person may be made a defendant who, either jointly, severally or in the alternative, is alleged to have or claim an interest in the controversy, or in any part thereof, or in the transaction or series of transactions out of which the same arose, or whom it is necessary to make a party for the complete determination or settlement of any question involved therein, or against whom a liability is asserted either jointly, severally or in the alternative, arising out of the same transaction or series of transactions, regardless of the number of causes of action joined.

“(2) It shall not be necessary that each defendant shall be interested as to all the relief prayed for, or as to every cause of action included in any proceeding against him; . . . .”

“Sec. 26. . . . No action shall be defeated by non-joinder or mis-joinder of parties. New parties may be added and parties mis-joined may be dropped by order of the court, at any stage of the cause, before or after judgment, as the ends of justice may require. ’ ’

In view of such statute we do not consider that there is any merit to such contention of the defendants.

Moreover, as we have so construed the contract, from the viewpoint most favorable to defendants it was a several obligation as to Charles U. Fisher, and it is no concern of the defendants whether or not payment is ever made by his heirs.

Defendants’ next contention is that the complaint states no cause of action against Jessie M. Fisher and Elizabeth Fisher Tobin. With this contention we agree. The contract was not signed by Jessie M. Fisher or Elizabeth Fisher Tobin. We do not consider that sufficient facts are alleged in the complaint to make Jessie M. Fisher and Elizabeth Fisher Tobin liable either under the contract or under the provisions of the will and codicil of John W. Fisher, deceased.

In arguing the last three grounds of the motion, defendants contend that no cause of action survived the death of Emma H. Fisher, because the contract was of a personal nature and depended upon her continued existence and therefore terminated on her death, and that on her death no cause of action accrued to her executor.

It is argued that the tenor, language and purpose of both the contract and codicil indicate the payments of $2,000 per year were for the personal use and benefit of Emma H. Fisher. We consider it a sufficient reply to this contention to say that, whatever his disclosed or undisclosed intentions may have been, the testator specifically directed that on or before January first of each year of her succeeding life, after the testator’s death, the widow be paid a specific amount, and that by the contract the first parties respectively agreed to make such annual payments.

Generally, at common law, all actions based on contracts survive the death of either party thereto. (1 C. J. S. p. 184, par. 137.) Where a right of action is so entirely personal that a person cannot by contract place it beyond his control, the action will not survive. As a general rule assignability and survivability of causes of action, being tests each of the other, are convertible terms. (Olson v. Scully, 296 Ill. 418, 422; Creighton v. County of Pope, 386 Ill. 468, 475.) In contracts to whose performance the continued existence of a particular person or thing is necessary, a condition is always implied that the death or destruction of that person or thing shall excuse performance. Thus, contracts for the performance of personal services terminate upon the death of the party by whom the services are to be performed. (Martin Emerich Outfitting Co. v. Siegel, Cooper & Co., 237 Ill. 610, 615.) In the case of an executory contract, the contract generally is not assignable without the consent of both parties thereof, where the personal acts and qualities of one of the parties form a material and ingredient part of the contract. (Ginsburg v. Bull Dog Auto Fire Ins. Ass’n, 328 Ill. 571, 572.)

It has been held in this State that contingent expectancies are assignable. (Simmons v. Ross, 270 Ill. 372; Dyblie v. Dyblie, 389 Ill. 326; Hudson v. Hudson, 222 Ill. 527.) And it has been held that there is no law forbidding one from assigning any property he may have. A person has the right to assign his wages, whether already earned or to be earned in the future. (State Street Furniture Co. v. Armour & Co., 345 Ill. 160, 162; Mallin v. Wenham, 209 Ill. 252.)

It is our opinion that the rights of Emma H. Fisher under this contract could have been assigned by her at any time during her lifetime, and that therefore any rights which had accrued to her before her death were vested rights and survived her death. The payment of each instalment under the contract was contingent only on her being alive on January first of each year, and the contingency did not mean that she had to live during the whole of such day or any period of time thereafter.

Defendants contend that inasmuch as Emma H. Fisher did not live the whole day of January 1, 1944, but died at 3:00 p. m., and inasmuch as January first fell on a Saturday and New Year’s Day and inasmuch as January 3 was the next business day, then no default in payment could have taken place until the close of business on January 3, 1944, and that it was a condition precedent that Emma H. Fisher be alive on January 3, 1944. We see no merit in this contention.

The judgment of the trial court is affirmed as to Jessie M. Fisher and Elizabeth Fisher Tobin only.

The judgment of the trial court is reversed as to all of the other defendants, and the cause is remanded to the trial court with directions to deny the said motion of the defendants other than Jessie M. Fisher and Elizabeth Fisher Tobin, and for further proceedings consistent with this opinion.

All costs in this court will be taxed against all defendants other than Jessie M. Fisher and Elizabeth Fisher Tobin.

Affirmed in part and reversed and remanded in part with directions.


text:
    People of State of Illinois ex rel. Russell Shriver, Ap-pellee, v. Board of Education of Mendon Township High School District No. 89 of Adams County, Appellant.
    Gen. No. 9,499.

      Opinion filed May 28, 1946.
    Released for publication June 24, 1946.
    Max L. Weinberg, of Quincy, and Homer H. Williams, of Carthage, for appellant.
    John T. Reardon, State’s Attorney, John T. Inghram, and Henry E. Schmiedeskamp, all of Quincy, for appellee.
   Mr. Justice Dady

delivered the opinion of the court.

A complaint in quo warranto was filed in the circuit. court of Adams county by the People on the relation of Russell Shriver to test the legality of the annexation of certain non-high school territory to Mendon Township High School District No. 89, which annexation was based on the provisions of par. 104a, sec. 96a, ch. 122, Ill. Rev. Stat. 1943.

The answer of the defendant set forth the proceedings for the detachment and annexation of such territory under the Act of 1943, amendatory of the school law.

Plaintiff filed a motion to strike the answer on the grounds, (1) that it appears from the answer that the superintendent of schools failed to file a legal and sufficient map with the county clerk as required by sec. 96a of the School Act; and (2) that the description of the territory purported to have been annexed is uncertain and contradictory in that a strip of land 20 rods wide is excepted from said territory in one portion of the description and included in said territory in another portion.

The trial court sustained such motion only on the foregoing grounds and ordered that the answer be stricken, and a judgment of ouster was entered. Defendant appeals from such order. No cross-error has been assigned.

The jurisdiction of this court has not been and apparently could not be successfully questioned. (See People ex rel. Groff v. Board of Education, 383 Ill. 166.)

The first question presented is whether the description of the territory in question, as used in all of the proceedings, including the notices posted of the election, meets with the requirements of section 96a of the Act of 1943. No question is raised as to any part of the description other than as it describes the territory in the northeast quarter of Section 18, T. 1, R. 8, W.

To simplify this objection it may be properly said that the description used in all of the proceedings starts out by describing, by metes and bounds, all of the territory sought to be detached and annexed, consisting of the equivalent of about 16 sections of land, and in so doing describes by metes and bounds that part thereof in the northeast quarter of Section 18 so as to include all of said northeast quarter except the south 120 rods of the west 20 rods thereof. Immediately following such metes and bounds descrip-. tion are the words: “The foregoing territory consists of the following: . . . northeast quarter of Section 18, excepting a strip 20 rods wide off the west side of the southwest quarter of the northeast quarter of Section 18 . . . .” In other words, there is a variance in that in the metes and bounds description the west 20 rods of the south 40 rods of the northwest quarter of the northeast quarter of Section 18 are excluded from the territory sought to be detached and annexed, while in the summarized description such west 20 rods are included. It is conceded that such 20 rods so included or excluded contains about 5 acres.

The defendant appellant relies largely on the case of People ex rel. Dingwell v. Close, 301. Ill. 458. In that case there was a distinct variance in the two descriptions contained in the notice of election, but the court held that because of the particular facts of the case the particular notice was not misleading to a man or woman of ordinary intelligence and was a sufficent notice. We do not consider the facts in that case as being analogous to the facts in the instant case.

In People ex rel. Bulpitt v. Buesinger, 324 Ill. 534, 537, the court said: “The notice given in this case did not describe the territory to be organized into a high school district but described territory which included approximately four sections of land already incorporated in another high school district. This was a material defect in the notice and the election held pursuant to it was void. The plea of justification, which is based on this notice, is insufficient in law to support the judgment. The second plea alleges that relators participated in the election called for the purpose of voting upon the proposition to establish the district in question and that they are therefore estopped to question the legality of its organization. It was stipulated that both of the relators did vote at the election and that they did vote on the proposition. The object of this proceeding is a matter, of public concern and any citizen might have become the relator in an action to enforce the public right. Such an action is not barred by the conduct of a relator or the acquiescence of individuals.”

In Seeders v. Shaw, 200 Ill. 93, 95, the court said: “The law is well settled that where a deed contains two descriptions each of which is in itself complete, one describing the land conveyed by quantity and the other by metes and bounds, in case of conflict the description by metes and bounds will control and that by quantity will be rejected.” In People ex rel. Dingwell v. Close, 301 Ill. 458, 460, the court said that there is no reason why this doctrine should not apply to a notice of an election for the formation of a community consolidated school district, unless, in fact, the notice may be regarded as misleading.

The object of such a notice of election is to inform the voters of the territory affected of the time, place and purpose of the proposed election and of the lands affected (People ex rel. Dingwell v. Close, supra), and the description of such territory should be sufficiently definite to apprise each voter as to whether he will be affected by such proposed election. (People v. Summy, 377 Ill. 255, 259.)

While the law is as stated that, at least generally, a metes and bounds description of lands controls and prevails over a quantity description (Seeders v. Shaw, supra), and while it has been said that whoever reads such a notice is presumed to know the school law (People ex rel. Dingwell v. Close, 301 Ill. 458, 461), such two rules of law, while practical and expedient, are somewhat arbitrary rules, and we believe that in the instant case, because of the variance in the descriptions the notice of election would be misleading to a voter of ordinary intelligence, and so misleading that an ordinary voter would not know whether the five acre tract in question was in fact to be included in or excluded from the territory sought to be detached and annexed, and so misleading that large numbers of voters might well have been influenced by an apparent but not real issue. Plaintiff appellee says in its brief that such five acre tract is land in a village on which improvements and residences are located. Although the record before us is silent as to any facts which bear out such assertion, nevertheless the assertion suggests the possibilities. While it was a small tract compared to the total area involved, yet there must have been some reason or purpose in omitting it from the territory in question, which reason or purpose is not apparent from the record.

It is our opinion and we find that the description as contained in the notices of election was so confusing and misleading as to invalidate the election.

In view of such finding it is our opinion that it is not necessary or proper for us to discuss the question of whether or not a legal and sufficient map was filed with the county clerk as required by section 96a of the School Act.

Thé judgment of the trial court is therefore affirmed.

Affirmed.


author: Mr. Justice Wheat

text:
    Evelyn R. Pope, Eva J. McClure Bell and Turus H. Davis, Appellants, v. Illinois Terminal Railroad Company, Appellee.
    Gen. No. 9,491.

      Opinion filed May 28, 1946.
    Released for publication June 24, 1946.
    James A. Dooley, of Chicago, for appellants.
    Le Forgee & Samuels, of Decatur, for appellee.
   Mr. Justice Wheat

delivered the opinion of the court.

This is a personal injury action arising out of a collision between an automobile, in which the plaintiffs appellants were riding as guests, and a train operated by defendant appellee. The damages of the plaintiff, Evelyn E. Pope, were fixed by -the jury in the sum of $12,500, those of plaintiff, Eva J. McClure Bell, in the sum of $500, and those of the plaintiff, Turus H. Davis, in the sum of $500. At the close of all the evidence, defendant moved for directed verdicts, ruling on which was reserved by the court. Thereafter, defendant successfully moved for judgments notwithstanding the verdicts, and, in the alternative, for a new trial, from which action of the circuit court this appeal has been taken.

The occurrence, on which this suit is based, happened on November 26, 1939, about 12:30 a. m., near the 2500 block of North Broadway street in the city of Decatur, Illinois; The three plaintiffs and the driver of the car, Carol Woodruff, had been in a Decatur tavern, at which place, according to plaintiff, Mrs. Bell, she drank one drink of gin; Mrs. Pope had one drink of whiskey; Mr. Davis and the driver, Woodruff, each had one bottle of beer. About midnight, they entered Woodruff’s car and drove northerly, with the intention of going to the “121 Club” to dance. As they proceeded north on Broadway, immediately before the accident, the night was clear, the pavement dry, the windshield clean, and the bright lights of the car were on. Broadway was a cinder covered street for at least 800 feet south of the scene of the accident, without curbs, and extending generally in a northerly and southerly direction. The north and south tracks of defendant railroad ran parallel to and along the westerly side of the street. The street was about 18 to 20 feet wide east of the east rail of the tracks, and the space between the rails, at and south of the scene of the accident, was filled with cinders to the approximate street grade, and (according to plaintiffs’ witnesses) was used by the public as a part of the street. North of the location of the accident, the railroad maintained an east and west track, and, to permit directional switching, this track had two branches or switch tracks, both being west of the north and south track, one curving to the northeast to make a junction with the north and south track and one curving to the southeast to make a similar junction, forming what is termed a “Y.” A trolley wire, with supporting bracing wires attached to poles, extended above all tracks. Just prior to the collision, defendant was operating a train, consisting of an electric locomotive, 10 cars, and a caboose, which had proceeded west to a point where it was backed southeasterly on the south branch of the “Y,” with the intention of backing entirely on the north and south track and then proceeding northerly. When the train was on the southerly branch of the “Y” and the engine had cleared the switch on the east and west line, the train stopped so that the switch could be again set, by the head brakeman, for east and west traffic. The caboose was then at or near the southerly junction with the north and south tracks, the collision occurring just south of this point. 'The train then backed farther and according to the complaint and the undisputed testimony, the caboose was then entirely on the north and south tracks and was moving to the south. Concurrently, the automobile, in which plaintiffs were riding in a northerly direction, was travelling north on the west side of the street, either in the tracks, straddling the east rail, or near the east rail of the railroad. The left-hand side of the automobile collided with the right rear corner of the caboose, after which, the automobile spun, slid, and rolled to the north for a distance between 50 and 300 feet. This distance was fixed by plaintiff, Davis, at 50 to 60 feet; by defendant’s witness, John Meara, by counting the 33 foot rails, at 260 feet from a point 35 feet south of the junction; by defendant’s witness, Hartwig, at 275 feet, by counting the poles at the side of the tracks. The engineer, conductor, head brakeman, rear brakeman, deputy county clerk, a police officer, and a resident of the neighborhood in the employ of defendant, all testified as to two regulation lighted warning lights on the rear end of the caboose. There was also testimony that the rear brakeman stood on the west rear steps of the caboose and waved a lighted electric lantern, and that the switch light, about 4 feet west of the south junction switch, was lighted. The testimony, as to the speed of the automobile, ranged from 25 to 30 miles per hour, as fixed by the plaintiffs, Davis and Mrs. Pope; 35 miles per hour, as fixed by plaintiff, Mrs. Bell; 45 to 50 miles per hour, as fixed by defendant’s witnesses, Foskule and May.

The allegations of negligence in the complaint are as follows: “That the defendant, Illinois Terminal Railroad Company, was then and there guilty of one or more of the following negligent acts: (a) In the nighttime, at about 12:20 a. m., pushed and propelled a train of freight cars, with a locomotive at the réar thereof, onto Broadway over the south branch or junction track of the north and south track, and moved said freight cars south in Broadway without placing a light on the first car being so pushed so that persons using said highway might be warned that the said trains and cars were being operated thereon, (b) Failed to sound a bell or give any warning in backing said train or cars, (c) Failed to maintain a person to warn motorists that said train was being backed up. (d) Failed to provide any signal devices which would apprise motorists of said train being backed up. (e) Created or permitted and allowed a condition dangerous for motorists to exist, in that there were no warning signals or signs or devices to apprise motorists travelling along Broadway of the fact that there was a junction of the tracks running north and south in Broadway with those running east and west of said Broadway as hereinbefore described in paragraph 1 of the complaint of which dangerous condition the defendant knew or in the exercise of ordinary care ought to have known.” It will be noted that, in substance, these allegations all charge defendant with failure to warn the plaintiffs. At the close of all the evidence, plaintiffs amended the complaint by adding the charge that defendant carelessly and negligently propelled the train of cars onto Broadway, but later withdrew this amendment, so that the complaint in its final form did not charge the defendant with negligence in the operation or propelling of its cars, but only with negligence in failure to warn.

The first contention of the plaintiffs is that the trial court erred in entering judgment for the defendant notwithstanding the verdicts. On a motion for judgment notwithstanding the verdict, the question presented is whether there is any evidence, which, taken with its intendments most favorable to plaintiff, tends to prove the charge of the complaint. If there is in the record, evidence, which, standing alone, tends to prove the material allegations of the complaint, a motion for judgment notwithstanding the verdict should be denied even though upon the entire record the evidence may preponderate against the plaintiff so that the verdict in his- favor cannot stand when tested by a motion for a new trial. (Walaite v. Chicago, R. I. & P. Ry. Co., 376 Ill. 59.)

One of the contentions of the defendant is that the plaintiffs were guilty of negligence that próximately contributed to the injuries complained of.

Considering the evidence in the light most favorable to the plaintiffs, an analysis of the testimony appears as follows: The plaintiff, Mrs. Bell, stated that she was sitting in the left rear seat of the automobile being driven by Woodruff; that the plaintiff, Davis, was in the right rear seat, and the plaintiff, Mrs. Pope, in the right front seat; that the car was proceeding north on Broadway, the east side of which was rough, bumpy, and full of holes; that there were no street lights on Broadway; that the car was straddling the east rail of defendant’s north and south track at a speed of about 35 miles per hour; that the night was clear, the pavement dry, and the windshield clean; that the bright lights of the car were on; that she saw a black shadow coming toward her from an angle; that she didn’t see any lights on it as it rushed toward her; that she saw no one holding a lantern and didn’t hear any bell sounded or whistle rung; she and Mrs. Pope both screamed and at almost the same time the driver swerved the car to the right and there was a crash; the point of impact was at the left rear fender of the automobile; the automobile spun around, rolled over, and then slid. On cross-examination, she stated that they were talking in the car; that she had not seen any tracks before seeing this black shadow or object; that she did not see any train. On rebuttal, she testified that the automobile was being driven practically straight until it swerved when they saw the black object; that she had not seen the car tracks and didn’t know what part of the road the car was on.

The plaintiff, Davis, testified that the automobile was a 1937 Studebaker in good mechanical condition; that the car lights were very good and that the bright lights were on; that they were traveling between 25 and 30 miles per hour; that they were on the west side of the street and about a foot from the east rail when the two women screamed and the driver turned the automobile to the right; a big black object came right in front of them; it was coming around the curve at an angle to his left; it was about 35 to 40 feet away and coming fast; he didn’t see any lights on the black object, saw no one there with a lantern and heard no bells nor whistles; the car spun and rolled 50 or 60 feet and was on its right side when it came to rest; Mrs. Pope was about 30 feet south of where the car finally stopped. He stated that he had been a cab driver in Decatur for four or five years and had occasion to drive over North Broadway many times before the accident; that North Broadway, at this point and south therefrom, was rough, that one had to pick his way and sometimes had to go on the east side and sometimes in the middle; that the space between the tracks was smoother and that on many occasions he had driven on the tracks; that he was 29 years of age, had lived in Decatur all of his life, during which time, to his knowledge, Broadway, at this point, had been used as a street; that on many occasions he had seen vehicles going north in the railroad tracks. On cross-examination, he stated that the automobile was a Tudor sedan; that the bright lights were on, showing about 150 to 200 feet ahead, and that one could see clearly that distance; that the windshield was clear, the street dry, and he was familiar with the street; that he knew the tracks were there but didn’t remember seeing them that night; that the crash came almost at the same instant as the scream; he saw a big black object before the collision, but at that time he did not know what it was; the car ¡turned over two or three times and came to a stop on the track; that the occupants of the car were all talking and he was not paying any attention as to what was going on and did not see either the tracks or the caboose at all, or any lights; that the black object was coming fast on the switch track about 35 feet away; that he did not know whether the sedan was on the tracks or not, as he did not see’ the tracks; that he told the witness, Hoffman, he did not see the caboose at all. On rebuttal, he testified that prior to the accident, the automobile did not, at any time, zigzag from the east to the west side of the street; that it was not on the car tracks; that he did not see the car tracks.

The plaintiff, Mrs. Pope, testified that the driver had his bright lights on prior to the accident; that as they were approaching the “Y,” she saw the rear end of a freight train coming from the left at an angle about 40 to 50 feet away; that she screamed apd Wood-ruff swerved the car to the right; the freight train was coining fast without any lights on the rear end and no one was out with a lantern and she saw no signal of any kind; that the sedan was going 25 to 35 miles per hour;' that she knew where the tracks were located on the west side of Broadway but could not see where the automobile was traveling with reference to those tracks; that she did not see any tracks prior to the accident. On cross-examination, she stated that the car headlights were bright and threw a light clearly about 100 to 150 feet ahead of the car; th,at the occupants of the car were talking and laughing; that she did not see the switch light and did not see a man on the rear end of the train with a lantern; that at the instant she screamed, the driver swerved his car and the crash occurred.

Plaintiffs’ witness, Schott, testified that the surface of Broadway was bad; that there were chuck-holes in it but that the space between the rails was in good shape; that the main traveled portion of the road east of the tracks was 18, 20, 50 feet wide, with room for cars to pass without going on the tracks. The witness, Hahn, testified that the surface between the rails was smoother than the street, which was rough and full of holes. Plaintiffs’ witness, Harding, a garage mechanic who furnished wrecker service after the accident, testified that he had no difficulty going north on Broadway, which was a good road; that he saw the railroad tracks and did not have to “go upon them but kept to the right side of the road. Plaintiffs’ witness, Dial, stated that Broadway was rough but that there was ample room for cars to pass east of the tracks which was passable in spite of the chuckholes.

Due care on the part of a plaintiff must be alleged in the complaint and proved. An analysis of the evidence' in this case, as considered in the light most favorable to plaintiffs and taken as true with all legitimate conclusions and inferences that may be drawn therefrom, indicates that plaintiffs have conclusively established, on their part, contributory negligence as a matter of law to the extent that all reasonable minds would reach the conclusion that under the factual situation they were not in the exercise of due care, and that the lack thereof proximately contributed to the injuries complained of. To drive on the left side of a street where tracks extended at least 800 feet south of the scene of the accident, with a trolley wire overhead, on a clear night with no obstructions to vision, and with bright car lights showing 150 to 200 feet ahead, at such a speed, that while talking, no one apprehended the potential danger, or, if so, gave no effective warning, capable of being acted upon, to the driver, was not in the exercise of due care. This is true, regardless of ch. 95%, par. 151, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 85.183], which makes it unlawful to drive on the left side of a roadway except under certain conditions not applicable to this case. This statutory violation was, of course, only prima facie evidence of negligence on plaintiffs’ part, but such prima facie case was not only not overcome by plaintiffs but indeed established by them. In the case of Illinois Cent. R. Co. v. Hall, 72 Ill. 222, the court said: “It is negligence for a person to walk upon the track of a railroad, whether laid in the street or upon the open field, and he who deliberately does so will be presumed to assume the risk of the perils he may encounter. The crossing of a track of a railroad is a different thing. The one is unavoidable, but in the other case he voluntarily assumes to walk amid dangers constantly imminent.”

While it is true that the negligence óf a driver cannot be imputed to a passenger, yet, if the person riding in the vehicle knows that the driver is negligent and takes no precautions to guard against injury, he cannot recover, for, in such case, the negligence is his own and not simply that of the driver. The plaintiff cannot rightfully omit to use care in blind dependency upon another, but must use care proportionate to the danger of which the facts convey knowledge. (Flynn v. Chicago City Ry. Co., 250 Ill. 460.) The language of the Supreme Court in the case of Illinois Cent. R. Co. v. Oswald, 338 Ill. 270, 274, is applicable here, wherein it was stated: “In the absence of willful or wanton injury on the part of the defendant the plaintiff cannot recover in an action for personal injuries unless it appears he was in the exercise of ordinary care for his safety, and in such case it is the duty of the Court to direct a verdict for the defendant if there is no evidence tending to show affirmatively that the plaintiff was exercising due care or to raise a reasonable inference of such care. A party has no right to knowingly expose himself to danger and then recover damages for an injury which he might have avoided by the use of reasonable precaution. Although it is true that the question of contributory negligence is ordinarily a question of fact for the jury, yet when there is no conflict in the evidence and the Court can clearly see that the injury was the result of the negligence of the party injured, it should not hesitate to instruct the jury to return a verdict for the defendant.”

The trial court did not err in entering judgment notwithstanding the verdict as to each of the three plaintiffs.

The action of the trial court in granting, in the alternative, the motion for new trial is also before the court, as it is embodied in the same order. It is apparent that in addition to what has heretofore been stated as to plaintiffs ’ lack of due care, the evidence is overwhelming that defendant was not negligent as to warning the plaintiffs, this being the only charge of negligence in the complaint. The four members of the train crew testified as to proper and customary lights on the rear end of the caboose, lighted, and showing a red light to the south, in addition to testimony of witnesses, some entirely disinterested, to the same effect. There is also testimony that the rear brakeman signaled with a lighted white lantern, and that the switch light at the south junction was also burning. The testimony as to the speed of the automobile, the distance it spun, slid, and rolled, and the damage to it, are also pertinent in reviewing the greater weight of the evidence. The circuit court did not err in granting this alternative relief.

Although defendant has moved in this court for dismissal of the appeal by reason of alleged procedural defects, it is unnecessary to rule on such, motion in view of the foregoing findings.

The judgment for the defendant notwithstanding the verdict as to each of the plaintiffs is affirmed, as is the alternative order granting a new trial.

Affirmed.


text:
    In re Estate of James H. Abell, Deceased. Mary M. Hoover, Administrator de bonis non with Will Annexed of Estate of James H. Abell, Deceased et al., Appellants, v. Louise A. Hott and Riley E. Abell, Appellees.
    Gen. No. 9,505.

      Opinion filed May 28, 1946.
    Released for publication June 24, 1946.
    Hershey & Bliss and Provine, Pinkerton & Miley, all of Taylorville, for appellants.
    Flesher & Taylor, and Edward E. Adams, all of Taylorville, for appellees.
   Mr. Justice Wheat

delivered the opinion of the court.

This is an appeal from an order entered by the circuit court of Christian county, upon an appeal to it from the county court of such county, in the matter of the estate of James H. Abell, deceased. The order of the circuit court reversed the order of the county court appointing, the appellant, Mary M. Hoover, as administrator de bonis non with the will annexed of said estate, and ordered the appointment of appellees, Louise A. Hott and Riley E. Abell, as such.

The case was tried in the circuit court upon stipulation and exhibits, there being no substantial dispute of facts involved. It appears that James H. Abell died, testate, July 20, 1929, a resident of said .county. His will was duly probated and the named executrix therein, M. Ethel Abell, a daughter, qualified and letters testamentary were issued to her. Numerous claims were filed and allowed, which, it is alleged, with the costs of administration, now aggregate $138,924.19. These claims are now held and owned by the appellants, National Stockyards National Bank, George W. Spates, as executor of and trustee under the will of Josiah Hall, deceased, and Minnie Mitchell. The executrix filed a petition in the. county court to sell real estate to pay debts. Order of sale was entered thereon and sale had. Subsequently, on December 18,1935, the report of sale was disapproved by the county court, the sale set aside as fraudulent and void, and the executrix, M. Ethel Abell, ordered removed. Prior to her removal, she had liquidated all of the decedent’s personal estate and reported that she had applied the proceeds upon claims other than those of the appellants. Upon her removal, the appel-lees, Louise A. Hott and Riley E. Abell, together with Frederick H. Abell and Thomas Wayne Abell, all of whom were grandchildren and heirs by descent of the devisees in decedent’s will, filed their petition in the county court, nominating Scott Hoover as administrator de bonis non with the will annexed. The court ordered the appointment of Scott Hoover. He qualified and letters were issued to him (after disposition of appeals) on March 4, 1939.

No personal estate remained or came into his hands and he subsequently filed a supplemental petition to subject the decedent’s real estate, allegedly worth not to exceed $100,000, to sale for the payment of the claims, including those of the three creditor appellants. On January 6,1944, Louise A. Hott and Riley E. Abell, the appellees, together with all the then other heirs at law of James H. Abell, deceased, except Emma J. Rishton, filed their answer and special answer to such petition of Scott Hoover, as such administrator, in which they alleged that none of the claims against such estate were allowed within seven years next before the filing of such supplemental petition, by reason of which, the court was without jurisdiction to order the sale of such real estate for the payment of any of such claims; that more than seven years elapsed from the appointment of said Scott Hoover as administrator, on December 18,1935, wherefore, the right of the said administrator to subject the lands for the payment of debts is barred by lapse of time; that the claims filed against said estate were without consideration and are not in the hands of any holder in due course and are not valid claims.

On May 9, 1945, said Scott Hoover tendered his resignation to the county court, following his entry. into the military service outside of the United States, which resignation was accepted. At the same time, the court, of its own motion, appointed Mary M. Hoover, as successor administrator, and directed that she be substituted as plaintiff in the pending suit to sell real estate to pay debts. On the same day, said Mary M. Hoover qualified, and letters were issued to her.

On May 12, 1945, the appellees, Louise A. Hott and Riley E. Abell, filed their petition in the county court, as grandchildren and heirs of the decedent, requesting their appointment as administrators. To this, the creditor appellants filed a cross petition, on May 19, 1945, requesting the confirmation of the prior appointment of Mary M. Hoover, as administrator, and an-sweriiig the petition of appellees, setting forth many of the aforesaid facts and charging that from the records and files of the county court, and particularly by reason of the answer filed by Louise A. Hott and Riley E. Abell to the supplemental petition, to sell real estate to pay debts, it appears that their interests are directly adverse and in conflict with the interest of the creditors, and praying that the petition of Louise A. Hott and Riley E. Abell be denied; that the appointment of Mary' M. Hoover, as administrator, be confirmed, or, in the alternative, that the court appoint the said Mary M. Hoover or some other competent and qualified person as successor to Scott Hoover. Upon hearing on the petition and cross petition, the county court, without making a new appointment, ratified and confirmed its order of May 9, 1945, wherein said Mary M. Hoover was appointed administrator, and denied the petition of said Louise A. Hott and Riley E. Abell. From this order, said Louise A. Hott and Riley E. Abell appealed to the circuit court, where a trial was had, de novo. On the trial in the circuit court, it was stipulated that for the purpose of the hearing, and none other, that the matters alleged as' facts in the petition of Louise A. Hott and Riley E. Abell, filed May 12, 1945, are true as therein set forth, and that the matters alleged as facts in the cross petition of the creditor appellants, filed May 19, 1945, shall be considered as true, except as to the allowance of a certain claim, and that the said Mary M. Hóover, Louise A. Hott and Riley E. Abell each had the statutory qualifications to act as administrator. The ap-pellees (then in the circuit court as appellants) introduced in evidence the answer filed in the county court by George W. Spates, as executor of and trustee under the will of Josiah Hall, deceased, to the supplemental petition of Scott Hoover, administrator, to sell real estate to pay debts. In this answer, the said Spates asserted superior title to substantially all of the real estate, by asserting that for more than seven years prior to November 9,1943, he was in actual possession of Tracts 1, 4 and 5, under claim and color of title adverse to the petitioner and to all persons claiming by, through or under James H. Abell, deceased.

The circuit court, in its order of September 14, 1945, reversed the finding of the county court and directed the appointment of appellees as administrators. The trial court, in his opinion, stated: “One would think that that was a strange policy to provide that the persons who have every reason not to sell the land to pay debts should be the administrators whose duty it is to provide for the sale and conduct the sale but that seems to be the policy of our statute . . . and while I feel that it would be to the best interest of the estate to confirm the decision of the County Court and permit Mrs. Hoover to act as administrator, I also feel that I am bound by this statute, and I am not in a position where I am able to do it.”

The contention of the appellees is that they have a preferential right to act as administrators, under par. 248, ch. 3, Ill. Rev. Stat. 1945 [Jones Ill. Stats. Ann. 110.345], which provides as follows:

“248. § 96. Persons Entitled to Preference in Obtaining Letters.) The following persons are entitled to preference in the following order in obtaining the issuance of letters of administration of the various kinds: . . .

(5) The grandchildren or any person nominated by them.

(6) The next of kin or any person nominated by them.

(7) The Public Administrator.

(8) A creditor of the estate.”

They further contend that this statute is mandatory and permits no discretion on the part of the court in making the appointment. They also urge the point that they are not disqualified to act as administrators merely because the position they had theretofore taken was in opposition to that of the creditors, and, in support thereof, quote the language of the trial judge, “In every case of administration there is, necessarily, a conflict of interests between the heirs or beneficiaries under the law and the creditors, because the more claims that are allowed, the less there would be for distribution under the law to the heirs or beneficiaries.”

The appellants argue that under the circumstances of this case, the statutory preference which would ordinarily be accorded to a decedent’s heirs is not absolute but must yield to the necessity of according to both the creditors and the heirs a fair presentation and judicial determination of their respective rights; that there is such an adversity of interest between the appellees and the creditor appellants as would deprive the latter of their day in court; that, as administrators, the appellees would be seeking a sale of real estate to pay claims, which, as defendants, they assert are void, and, as defendants, they claim that the proceeding itself, is barred by laches. The creditor appellants do not contend that they have any statutory right of nomination superior to or on a parity with that of appellees, but do contend that the county court was warranted in appointing a disinterested third party, who was the nominee of neither of the adversaries.

In the few reported cases in this State, involving the preferential.statute, there appears none precisely analogous to the situation presented here.

There have been a few cases, however, where the courts have construed other phases of this statute, and these have been cited and discussed in the briefs of the parties in the present appeal. In the interest of brevity, these cases will not be reviewed in this opinion, as an excellent discussion of the leading ones appears in the recent case of Dennis v. Dennis, 323 Ill. App. 328. It was decided in such case that where there was hostility, adversity and conflict of interest between two brothers, then the nominee of one brother should be appointed administrator as opposed to the appointment of the other brother. The court found that, although it was generally true that the nominee of one of a class has no claim to administer an estate as opposed to another, member of that class, unusual circumstances justified the holding that the brother was not qualified to act because the adversity of interest rendered him unsuitable.

We believe that the greater weight of authority, as well as reason and justice and application of rules of statutory construction, supports the conclusion that the preferential right to, administer must yield to the discretion of the court in unusual cases where considerable hostility, adversity and conflict of interest appear.

It is apparent that there are unusual circumstances in the instant case, i.e., the prior allowance of appellants’ claims, a prior decree for sale of real estate based on such claims, a sale being held which was later set aside and the executrix removed, the prior exercise by appellees of one preferential right in obtaining the appointment of Scott Hoover, the contention of appellees in their answer to the pending proceeding to sell real estate that their own nominee, Scott' Hoover, is guilty of such laches as to bar any sale whatsoever to pay the claims, and their contention that the claims themselves are invalid. We believe these facts present a situation which merits the appointment of a disinterested party as administrator; that the personal interest of the appellees is so opposed to and in conflict with their interest, as administrators, as to preclude proper and fair administration of the estate, and that for such reason, they are not qualified persons to act as administrators. The appointment of such third party will result in no prejudice to the appellees and will insure a proper day in court for all the parties to the controversy. The statute establishes a norm which is not at variance with any rational legal concept of the equitable powers of the county court in exercising its discretion in those exceptional cases where the literal following of the statute would result in patent injustice by reason of extreme adversity of interest.

The judgment of the circuit court is reversed and the cause remanded with instructions to appoint Mary M. Hoover, or some other competent person, as administrator de bonis non with the will annexed, to complete the administration of the estate of James H. Abell, deceased.

Reversed cmd remanded with directions.


author: Mr. Presiding Justice Friend

text:
    People of State of Illinois ex rel. Lyman F. Martin et al., Appellees, v. Ralph E. White and Joseph F. Janda, Appellants.
    Gen. Nos. 43,493, 43,515.
    [Gen. No. 43,493]
    [Gen. No. 43,515]

      Opinion filed May 29, 1946.
    Rehearing denied June 12, 1946. Released for publication June 13, 1946.
    Joseph I. Bulger, of Chicago, for appellants; Ode L. Rankin and Joseph I. Bulger, both of Chicago, of counsel.
    Frank J. Lexa, for appellees.
    [Gen. No. 43,493]
   Mr. Presiding Justice Friend

delivered the opinion of the court.

By an order here entered on July 30, 1945 this cause was consolidated with cause No. 43515, and the parties were allowed to file one set of abstracts and briefs. This is an appeal from a judgment in mandamus; cause No. 43515 is an appeal from a contempt proceeding based on the mandamus judgment. The appeal in the mandamus case is by both defendants from a judgment ordering them “and each of them (so far as either of them may act or purport to act as said Village Clerk) ” to place the Regular People’s Party ticket on the ballot for the village election in Lyons, Illinois held on April 17, 1945. The appeal in the contempt case is by Ralph E. White from an order adjudicating him as village clerk to be in contempt of court for failing to obey the order to place the designated ticket on the ballot for said election. Because the ticket was not placed on the ballot by either defendant, a rule to show cause was entered on both of them. Each separately moved to discharge the rule, and their motions being denied, they separately answered the rule. The court, pursuant to a hearing on the rule to show cause, discharged the rule as to Joseph F. Janda and adjudicated the defendant Ralph E. White to be in contempt of court for failure, as village clerk, to comply with the mandamus judgment, and fixed his punishment at six months’ imprisonment in the county jail of Cook.county.

The facts, so far as they are essential to a consideration of the issues involved, disclose that the Regular People’s Political Party and the Progressive Citizens Ticket Political Party in the Village of Lyons, Illinois, by caucus, nominated separate candidates for certain village offices to be filled at an election scheduled for April 17, 1945. Certificates of nominations of the candidates on both tickets were duly filed in the office of the village clerk. The relators herein were the candidates on the Regular People’s Party ticket. Among the candidates on the opposing ticket were Theofil T. Bulat, who was running for re-election to the office of village president, and Joseph F. Janda, one of the respondents, who was a candidate for the office of village clerk.

Objections were filed to the candidates on the Regular People’s Party ticket on the sole ground that the population of the village of Lyons exceeded 5,000, and that therefore under the controlling statute the Regular People.’s Party, which was an established political party, could not nominate by caucus.' Section 10-1 of the Illinois Election Code (Ill. Rev. Stat. 1945, ch. 46 [Jones Ill. Stats. Ann. 43.799]) provides that an established political party may nominate candidates for village offices by caucus where the population is less than, 5,000.. Section 1-9 of th.e Cities and Villages Act (Ill. Rev. Stat. 1945, ch. 24 [Jones Ill. Stats. Ann. 21.1119]) contains the following provision: “Whenever in this Act any provision thereof is based upon the number of inhabitants, the number of inhabitants of the municipality shall be determined by reference to the latest census taken by authority of the United States or this State, or of that municipality. It is the duty of the secretary of state, upon the publication of any State or United States census, to certify to each municipality the number of -inhabitants, as shown by that census. And the several courts in this State shall take judicial notice of the population of any municipality, as the population appears from the latest Federal, State, or municipal census so taken.” No State or municipal census of the Village' of Lyons has been taken since the Federal census of 1940, which shows the population of the village to be 4,960. That is the only evidence of any official census in the record.

On March 23, 1945 the objections to the Regular People’s Party candidates were presented to what purported to be a Municipal Officers Electoral Board convened pursuant to the provisions of sec. 10-9 of the Election Code [Ill. Rev. Stat. 1945, ch. 46, par. 10.9; Jones Ill. Stats. Ann. 43.807] and consisting of Edmund K. Jakecki, county- judge, chairman, in lieu of the president of the village, who was a candidate for re-election and thereby disqualified to serve on the board, the- respondent Ealph E. Wllite, who represented himself to be the village clerk and was also acting chief of police of the village, and Louis Hoffman, a member of the board of trustees of the village of Lyons. John Daly, assistant attorney for the election commissioners, informed the board that the last Federal census showed- the population of the village of Lyons to be 4,960, and expressed the opinion that the last Federal census figure governed the action of the board. At that proceeding the only other reference to a population census figure was made by respondent White, who, without any evidentiary support, casually remarked that “according to the OPA statistics there is approximately 6,200,1 believe.”

Judge Jabecki, the statutory chairman of the board, thereupon voted to place the Regular People’s Party candidates on the ballot, while White and Hoffman voted to keep them off. Before the board had announced its decision, the chairman at the request of counsel for the relators, agreed to suspend issuing any order until March 27, 1945 so as to give relators an opportunity to have decided in a mandamus proceeding then pending before the circuit court of Cook county the question whether Ralph E. White was the village clerk, since this would determine his right to act as a member of the board.

The relators in this proceeding were the plaintiffs in the circuit court mandamus case and Judge Edmund K. Jabecki was the defendant in that proceeding, which came on for hearing on March 26, 1945. The circuit court there found that Ralph E. White was not the clerk of the village of Lyons and therefore had no authority to act as a member of the board, and entered its judgment as follows: “wherefore, the Court doth enter the following judgment in mandamus, that is to say: The said defendant, the Honorable Edmund K. Jabecki, purporting to act as Chairman of the said Municipal Electoral Board of the Village of Lyons, is hereby directed and ordered to enter a finding in the proceedings of the said Board, to the effect that the said Electoral Board as convened was not properly and lawfully constituted under the law, and that the said Electoral Board, therefore, should be dissolved; and the said defendant is further obdebed and directed, forthwith, to return all certificates of nomination, or nomination papers • and other documents now in his possession as such purported Chairman of said Electoral Board, back to the proper Village authorities of the Village of Lyons, without any action whatever thereon by the said purported Electoral Board; and the said defendant is further ordered forthwith to dissolve the said purported Electoral Board.”

On March 26, 1945, being the same day on which the foregoing judgment in mandamus was entered in the circuit court, and in compliance therewith, Judge Jareoki returned the nomination papers in his possession to the village clerk, and advised him that “the mandamus action automatically ends the action of the Electoral Board.”

The following day White and Hoffman, accompanied by Joseph F. Bulger, attorney for the village of Lyons, called upon Judge Jareoki, who advised them that the board was dissolved; that there was no board in existence; and that no further action was to be taken by it. Following this conference, White and Hoffman, accompanied by Mr. Bulger, without notice to the re-lators of their place of meeting, immediately proceeded to room 233 in the County Building, and held what purported to be a meeting of the Municipal Officers Electoral Board. They decided that the vote taken at the meeting on March 23,1945, of what purported to be the Municipal Officers Electoral Board, was legal and binding, and authorized Ralph E. "White to enter such findings upon the records of the board and transmit the decision to candidates of the Regular People’s Party, the village clerk and the objectors to the certificates of nomination. That meeting of March 27 was held in disregard of the circuit court order of March 26, 1945 and Judge Jareoki’s direction that what purported to be an electoral board be dissolved; it was held without the presence of Judge Jareoki and without notice to the relators; and evidence introduced at the hearing before Judge Jareoki on March 23,1945 showing the population of the village of Lyons according to the last census taken was completely ignored. ■

On March 28, 1945 White returned the certificate of nomination of the Regular People’s Political Party to that party with the rulings adopted by him and Hoffman on March 27, 1945 in room 233, County Building, in the absence of Judge Jarecki, and at the same time "White transmitted the same ruling to all candidates on the Regular People’s Party ticket.

On April 3, 1945 the Regular People’s Party’s candidates made a demand in writing on both respondents White and Janda that relators’ names be placed on the ballot, and when White and Janda persisted in their refusal to comply with that request, relators filed the instant mandamus proceeding in the superior court on April 5, 1945. After the cause came on for hearing on April 12,1945 before Judge Joseph G-raber, he entered an order the following day nunc pro tunc as of April 12, 1945 directing White and Janda and each of them (so far as either of them may act or purport to act as village clerk) to print the names of the Regular People’s Party’s candidates on the ballots to be used in the April 17 election and to destroy any ballots already printed. On April 13, 1945 the respondents filed their formal notice of appeal from the judgment order of mandamus and served notice on counsel for relators of a motion for April 16, 1945 to fix the amount and conditions of the appeal bond.

It appears that on April 13, 1945 relators made repeated attempts to serve on respondents the writ of mandamus issued by the superior court. They found that White had not been in his place of employment that entire day, nor did he appear at the office of the village clerk or at the police department. No one responded to repeated knockings at the door of White’s home that afternoon and evening, and one of White’s neighbors informed persons who attempted to serve the writ that he had gone away on a three-day vacation. With respect to Janda, no one answered the door of his residence on the afternoon of April 13, but on the evening of that day his niece, who was a person over 21 years of age and a member of his household, came to the door and told the persons attempting to serve the writ that Janda had gone somewhere, that she did not know where nor did she know when he would return. Later that evening another attempt was made to serve the writ, and his niece, although she looked through the glass door, would not open it or admit the persons attempting to serve the writ. Still later, at 11:00 o’clock in the evening, in response to a third visit, his niece said that Janda had not returned and that she did not know when he would be back. When an attempt was then made to serve the writ by leaving a copy with her, she refused to open the door and ordered the person attempting to serve the writ to leave the premises. The .following morning, April 14, the writ was served on Janda by leaving a copy of it with his niece.

As the result of the foregoing circumstances the names of the Regular People’s Party’s candidates did not appear on the ballot for the election, and the only names that appeared on that ballot were those of the candidates of the Progressive Citizens’ ticket.

Since the election has taken place the mandamus case is moot except for the question whether the court had jurisdiction, the determination of that issue being essential for the disposition of the contempt proceeding. The principal ground urged for reversal is that the Municipal Officers Electoral Board is given exclusive and final jurisdiction to decide whether a ticket shall go-on the ballot; that where the board has acted, neither the circuit nor the superior court has jurisdiction to order a village clerk to disregard its action; and that to do so is to invade the executive department of the government, in violation of article III of the Constitution, which forbids one department from assuming the powers of another. Since neither of these appeals was prosecuted to the Supreme Court, which has exclusive jurisdiction to determine constitutional questions, we are called upon to determine only whether the judgment of the superior court in the mandamus suit was void for all purposes, thus making it impossible to predicate contempt proceedings on a refusal to obey the mandamus judgment.

Respondents contend that courts have no jurisdiction to review the judgment of an electoral board, and in support of that contention they rely upon People ex rel. Murray v. Rose, 211 Ill. 249; People ex rel. McKinlay v. Rose, 211 Ill. 252; People ex rel. Williams v. Rose, 211 Ill. 259 and People ex rel. Perry v. Koerner, 365 Ill. 521, purporting to construe the provisions of sections 10-9 and 10-10 of the Election Code. The pertinent part of section 10-10 contains the following provision: “The electoral board shall take up the question as to whether or not the certificate of nomination or nomination papers are in proper form, and whether or not they were filed within the time and under the conditions required by law, and whether or not they are the genuine certificate of nomination or nomination papers which they purport to be, and whether or not in the case of the certificate of nomination in question it represents accurately the decision of the caucus or convention issuing it, and in general shall decide whether or not the certificate of nomination or nomination papers on file are valid or whether the objections thereto should be sustained and the decision of a majority of the electoral'board shall be final.” The decisions upon which respondents rely can be readily distinguished under the facts in this proceeding. Since no decision on the objections in the instant case was made by a validly constituted electoral board, relators had the right to have their names placed upon the ballot to be furnished the voters, and this was a right that the superior court, under the holding in People ex rel. Powell v. Hartley, 170 Ill. 370, had jurisdiction to enforce by mandamus. In that case the Supreme Court, holding that the issuance of a writ of mandamus was proper to compel a county clerk to place upon the ballot the names of nominees entitled to be on it, made the following pertinent observation: “To hold otherwise would place it within the power of the officials charged with the duty of printing the ballots, to disfranchise, for all practical purposes, a great number, — perhaps a majority, — of the legal voters in their counties.” With the exception of People ex rel. McKinlay v. Rose, none of the cases cited by respondents is applicable to the jurisdictional question here presented. In Murray v. Rose and Williams v. Rose decisions on objections to nominees had been made by validly constituted electoral boards, and in Perry v. Koerner, where a State Primary Certifying Board, consisting of the governor, secretary of state and state auditor, had already certified Perry’s name for the ballot and the other candidate subsequently filed a petition for mandamus ordering the county clerks to omit his opponent’s name from the ballot, the writ was denied because the petition failed to make parties defendant the members of said board and the party whose name it sought to have omitted from the ballot. In McKinlay v. Rose objections to certificates of nomination were presented to the county judges of the two counties comprising a senatorial district, who were unable to agree on the disposition of the objections, and one of the candidates applied to the Supreme Court for a writ of mandamus directing the secretary of state to take steps to place his name on the ballot. The petition was denied only because it failed to allege that the parties who called the convention which nominated the relator had authority to call it, but the opinion impliedly recognizes the proposition that where a board authorized to pass on objections, failed to arrive at a valid decision, the courts may determine the rights of candidates to have their names on the ballots and to enforce those rights by writ of mandamus.

With respect to the provisions of the statute hereinbefore quoted, it will be observed that the electoral board is vested with the power and duty to decide whether or not the certificate of nomination or nomination papers on file are valid or whether the objections thereto should be sustained, and although it provides that the decision of a majority of the electoral board shall be final, it must have been the intention of the legislature to provide that it “shall be final” only when it has been arrived at by a legally constituted board, in a legal manner, pursuant to competent evidence, without the abuse of discretion, not arbitrarily or fraudulently. If the statute were to be construed otherwise, the final decision of the electoral board, even though fraudulent, arbitrarily arrived at or based upon a clear abuse of discretion and without any evidence to support its decision, would vest those members of the board who happened to have control of the political machinery, with power to disfranchise candidates of an opposing party who might conceivably be the choice of a majority of the electorate and thus perpetuate the members of the controlling political power in office. This presents a challenge to justice. Our democratic institutions are based on free elections, and our laws and traditions recognize the rights of persons who are qualified and who comply with statutory provisions to present themselves for public office. It certainly could not have been the intention of the legislature to defeat these inviolate rights by vesting the electoral board with a final decision where it clearly appears that its ruling is arbitrary or predicated upon an abuse of power or even fraudulent.

In the case at bar the mandamus judgment in the circuit court specifically found that White was not the village clerk, thereby disqualifying him from membership on the electoral board, and consequently that the board was not legally constituted to pass on the objections to relators’ nomination papers. However, assuming that the decision had been made by a legally constituted board, we are still of the opinion that the superior court had jurisdiction to review by mandamus the action of a board which was so clearly an abuse of power and so arbitrary as to amount to fraud. The sole objection to the nomination of the relators was that the population of the village of Lyons exceeded 6,000 and therefore they could not be nominated by the caucus of an established political party in the village. There was no evidence to support this finding. The only evidence adduced before the board was that the Federal census showed the population of the village to be 4,960, and in the absence of any countervailing proof that a State or municipal census taken since 1940 disclosed the population to be in excess of 5,000, the electoral board was bound by that evidence and had no alternative except to allow the nomination papers of the relators to be filed. The right of courts to review by mandamus the acts of public officers where they have acted arbitrarily or in abuse of discretion is well settled by numerous decisions in this State holding that if a discretionary power is exercised with manifest injustice, the courts are not precluded from commanding its due exercise, and as stated in Illinois State Board of Dental Examiners v. Peope ex rel. Cooper, 123 Ill. 227, “they will interfere, where it is clearly shown, that the discretion is abused. Such abuse of discretion will be controlled by mandamus.” Because of the striking similarity between the motives of the dental examiners in that case and the apparent motives of two of the members of the electoral board, White and Hoffman, the following comments of the Supreme Court are in point: “If these averments are true, the members of the State board are abusing their discretion and making an unjust use of it. They have a right to decide whether the college, at which an applicant for license has graduated, is reputable or not. But they must decide that question upon just and fair principles.....If four of the five members, which compose the board, are instructors in a particular college, and if they are making use of their power under the State law to build up their own institution and crush out its rival, they are acting from motives of self-interest and not in the interests of the public. It cannot be tolerated that licenses should be withheld for any such unworthy reasons.” The reasoning of the court in that case is applicable to the facts of this proceeding. We recently decided in two cases where State boards had refused examination admission to physicians who desired to practice medicine in the State of Illinois that if their ruling was arbitrary or an abuse of discretion,, the court could control their action by mandamus, and the numerous cases cited and reviewed in those decisions amply support the conclusions there reached. People ex rel. Schutz v. Thompson, 325 Ill. App. 95; and Schleifer v. Department of Registration mid Education of Illinois, 326 Ill. App. 259 (Abst.).

The plain facts of this case clearly indicate that instead of permitting the names of all candidates duly nominated to appear on the ballot so that the voters could decide who their village officers should be, the purported electoral board, which was held by the order of the circuit court and the statutory chairman of the board to be illegal, entered into an undertaking which was in the nature of a conspiracy to keep the Regular People’s Political Party candidates off the ballot in order to insure the election of the candidates of the Progressive Political Party with which respondents were affiliated. This was nothing short of an infamous and disgraceful scheme to steal an election. Three able and experienced jurists, Judges G-raber, Fisher and Jarecki, all of whom had occasion to inquire impartially into the facts, would not countenance the brazen scheme. We think it would be an extremely dangerous doctrine, indeed, to hold that in the light of the record presented, this illegal board could hold a rump session, and without any supporting reason, disqualify duly nominated candidates of the opposing party.

Arguments of respondents as to the uncertainty of the mandamus judgment are beside the point, because even if it were erroneous, that circumstance would not render it void. Nor would the fact that the mandamus writ was not served on White, excuse him from obeying it under the circumstances of this case, because he had full knowledge of the entry of the judgment, having on the day following the entry of the mandamus judgment filed his formal notice of appeal and served notice on counsel for relators of a motion to fix the amount and conditions of the appeal bond.

We therefore hold that the superior court had jurisdiction to review these proceedings by mandamus, and the judgment of that court in the mandamus proceeding is accordingly affirmed.

Judgment affirmed.

Scanlan and Sullivan, JJ., concur.

[Gen. No. 43,515]

This appeal was consolidated with cause No. 43493. In that case the principal question presented was whether the superior court had jurisdiction of the mandamus proceeding brought by relators. The facts and circumstances of these two proceedings ar.e sufficiently set forth in our opinion in that case and need not be repeated here. Inasmuch as we have held that the superior court had jurisdiction of the mandamus case, the only question presented upon this appeal is whether disobedience of the mandamus judgment entered in case No. 43493 constitutes contempt.

The cases in this State are uniformly to the effect that it is contumacious to disobey an order which the court has jurisdiction to enter, even if the order is clearly erroneous. In the recent case of Cumming-. Landau Laundry Machinery Co. v. Koplin, 386 Ill. 368, the court held that “The principal is of universal-force that the order or judgment of a court having jurisdiction is to be obeyed, no matter how clearly it may be erroneous. This is the rule whether the contempt be technically defined as criminal or civil. On an appeal from an order committing a defendant for contempt, for the violation of an order of the court, no error in such prior order can be considered. The only question as to such prior order that can be considered is whether the court had jurisdiction to make it.” In Ash-Madden-Rae Co. v. International Ladies Garment Workers Union, 290 Ill. 301, the court said that “It is so universally settled law as to require no citation of authorities, that the orders and judgments of a court having jurisdiction must be obeyed until reversed or set aside in a direct proceeding for that purpose, and in a proceeding for contempt for violating an injunction it cannot be urged that granting the injunction was erroneous. Unless absolutely void it is binding on the parties and must be obeyed.”

Since, in our opinion, the court had jurisdiction in the mandamus case, as heretofore stated and held in opinion No. 43493, defendant was bound to obey the judgment, and inasmuch as he failed and refused to do so, the finding and order holding him in contempt was properly entered and is accordingly affirmed.

Order affirmed.

Scanlan and Sullivan, JJ., concur.