text:
    Edwin Hancock, Appellant, v. Village of Hazel Crest, Appellee.
    Gen. No. 42,297.
    Opinion filed March 22, 1943.
    Stevens & Stevens, of Chicago, for appellant; George M. Stevens, of Chicago, of counsel.
    Francis A. Harper, of Chicago, for, appellee.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.

Plaintiff is a civil engineer. He sued to recover from the defendant, a municipal corporation, $13,340, as the reasonable value of services rendered by him to the defendant in connection with the proposed construction of a new sewage system or remodeling defendant’s old system. The cause was heard by the court on the pleadings and a stipulation by the parties as to the facts. There was a finding for defendant with judgment thereon, and plaintiff appeals.

It appears that it was the contemplation of the parties that the proposed improvement would be made pursuant to section 62 of the Cities and Villages Act (Smith-Hurd’s Ann. Stats., ch. 24, §§ 62 — 1 to 62 — 12 [Jones 111. Sta^s. Ann. 21.2029 to 21.2040]). The section in substance provides that a municipality may by compliance therewith construct a sewerage system and pay for the same out of revenue bonds which are limited in payment to revenues to be derived from the improvement itself. Plaintiff contends (and, as we understand it, the defendant does not deny) that had this plan been carried out, no additional debt within the meaning of section 12, article 9 of the Constitution of Illinois would have been created. The act, however, provides that after publication or. posting of the ordinance providing for such an improvement, if no petition is filed with the municipal clerk for an election, the ordinance shall be in effect. But if within 10 days a petition is filed with the clerk by 15 per cent of the voters at the last general municipal election, the question of constructing or improving the sewerage system as provided in the ordinance and the issuance of the revenue bonds to provide for the payment therefor shall be submitted to a referendum vote of the electors. If a majority of the votes cast on the election are unfavorable the municipality shall proceed no further and the ordinance shall not take effect. Such petition was filed within the time required; the vote was taken; it was against making the improvement, and the Village abandoned it.

At the time the proposed ordinance for making the improvement was passed and when it was abandoned and since, liability on the part of the Village for the amount claimed by plaintiff would create a situation in which the amount of its indebtedness would exceed the constitutional limitation of 5 per cent of the value of the taxable property in the defendant municipality. The assessed Value of all property in the Village for the year 1939 was $503,997. Its debts on September 20, 1939, were over $30,000. The proposed improvement was to cost $296,000.

The stipulation concedes that plaintiff was at all times ready and willing to perform the duties required of him by the terms of his employment and that the ■ reasonable value thereof is the amount he claims. The defense interposed is that the contract under which plaintiff claims was illegal'as creating an indebtedness beyond that permitted by section 12 of article 9 of the Constitution. It is as follows:

“No County, City, Township, School District or other Municipal Corporation shall be allowed to become indebted, in any manner or for any purpose, to an amount, including existing indebtedness, in the aggregate exceeding five per centum of the valué of the taxable property therein, to be ascertained by the last assessment for state and county taxes, previous to the incurring of such indebtedness.”

Notwithstanding, plaintiff argues his right to recover upon the theory, as stated in his brief, that “the defendant having abandoned the project, payments that were to be contingent upon the realization of funds to become available by the carrying out thereof, become by operation of law, payable out of the general fund, and that recovery in such an action in quantum meruit, for the value of services rendered under such a liability imposed by law, is not within the constitutional limitations in regard to the creation of indebted-mess.”

The brief for plaintiff discloses great diligence in the collection of cases which, it is argued, sustain this theory. We deem it unnecessary to analyze many of these cases for the reason that no contention was made in them that the constitutional limitation was applicable. This is true of Gray v. City of Joliet, 287 Ill. 280; Hall v. County of Cook, 359 Ill. 528; Bunge v. Downers Grove Sanitary Dist., 356 Ill. 531, and Elmhurst Bank v. Village of Bellwood, 372 Ill. 204 the principal cases relied on.

There is no doubt of the general rule as stated in McQuillin, Municipal Corporations, Second Edition, Revised, vol. 6, § 2376, ch. 41, p. 34, that “Provisions as to debt limits, apply only to indebtedness which arises ex contractu and do not apply to involuntary liability arising ex delicto. Hence, the fact that a municipality has exceeded its debt limit is no defense to an action based on a tort.” The author, however, goes on to state that it has been held in Pennsylvania that when “the act which is called a tort is done under a contract, and the assumption of the consequent damages is an express term of such contract, we have a perfectly clear case outside of the principle that makes municipalities liable for their wrongful acts, without regard to their indebtedness, and within the constitutional prohibition of a contractual obligation to pay in the future for a consideration in the present.”

The gist of plaintiff’s contention seems to be that liability in quasi contract to suit on a quantum meruit grows out of a liability imposed by law independent of the agreement of the parties and is, therefore, not a voluntary assumption of liability and therefore not subject to constitutional limitation. He argues that because the obligation is created by law independent of the will of the parties, such an obligation is not a debt within the meaning of the Constitution. The nature of quasi contractual liability is discussed by Justice Vickers in Board of Highway Com’rs v. City of Bloomington, 253 Ill. 164.

In Williston on Contracts, Eev. Ed., vol. 1, § 3, pp. 6-10, the author says:

“The expression ‘implied contract’ has given rise to great confusion in the law. Until recently the divisions of the law customarily made coincided with the forms of action known to the common law. Consequently, all rights enforced by the contractual actions of assumpsit, covenant, and debt were regarded as based on contract. Some of these rights, however, were created not by any promise or mutual assent of the parties, but were imposed by law on the defendant irrespective of, and sometimes in violation of, his intention. Such obligations were called implied contracts. A better name is that now generally in use of ‘quasi contracts.’ This name is better since it makes clear that the obligations in question are not true contracts, and also because it avoids confusion with another class of obligation which have also been called implied contracts. . . . It is important to distinguish between quasi contracts and contracts implied in fact, not only because it is desirable for clear theoretical analysis, but also because of the difference in the legal relations which may be involved under a true contract and those imposed by law under the name of quasi contract. In the first place as quasi contractual obligations are imposed by the law for the purpose of bringing about justice without reference to the intention of the parties, the only apparent restriction upon the power of the law to create such obligations is that they must be of such a sort as would have been appropriately enforced under common-law procedure by a contractual action. Indeed even this limitation is too narrow, for a bill in equity or a libel in admiralty might be the appropriate means of enforcing some quasi contractual obligations.”

It would be inaccurate to say that such contracts are involuntary, although it is true that the notion of a contract in such a case is often purely fictitious. However, that is not the case here. The parties were all quite aware of the contingencies from which plaintiff now argues obligation. All parties had in mind the statute pursuant to which the sewerage system in question was to be constructed. Defendant must have known and plaintiff well knew that the construction of the system and the procurement of funds to pay therefor were subject to the contingencies set forth in the statute. Everybody knew that a majority of those voting would have the right to prevent the construction of the improvement. There is nothing in the stipulation disclosing any wrong to plaintiff. It was the right of the electors to petition for a referendum. They complied with the conditions. It was then the duty of the Village authorities to hold the election. Just how the exercise of these legal rights and the performance of these legal obligations can be held to be a legal wrong is difficult to perceive. Plaintiff is not entitled to recover on any theory. This constitutional limitation was considered in the case of Litchfield v. Ballou, 114 U. S. 190, by the Supreme Court of the United States. In that case a creditor who had purchased bonds issued by a city for the construction of public works (the bonds having been held void by reason of this constitutional limitation) sued in chancery claiming an equitable lien against the improvement, which he said had been constructed with money furnished by him. He obtained a decree allowing such a lien which the Supreme Court reversed, the opinion being delivered by Mr. Justice Miller. After holding that the jurisdiction was at law rather than in equity the opinion said:

“But there is no more reason for a recovery on the implied contract to repay the money, than on the express contract found in the bonds.

‘ ‘ The language of the Constitution is that no city, etc., ‘ shall be allowed to become indebted in any manner or for any purpose to an amount, including, existing indebtedness, in the aggregate exceeding five per centum on the value of its taxable property. ’ It shall not become indebted. Shall not incur any pecuniary liability. It shall not do this in any manner. Neither by bonds, nor notes, nor by express or implied promises. Nor shall it be done for any purpose. No matter how urgent, how useful, how unanimous the wish. There stands the existing indebtedness to a given amount in relation to the sources of payment as an impassable obstacle to the creation of any further debt, in any manner, or for any purpose whatever.

“If this prohibition is worth anything it is as effectual against the implied as the express promise, and is as binding in a court of chancery as a court of law.”

The cases from different jurisdictions (and there are many States which have similar constitutional limitations) are collected in 37 L. E. A., New Series, p. 1058, in a note to Hagan v. Comissioners’ Court, 160 Ala. 544, 49 So. 417. It is pointed out at page 1072 that the restriction does not apply to contracts for local improvements where the cost is to be borne wholly by property benefited or to improvement bonds. At page 1086 the author states there is a conflict of authority as to whether the debt limit applies to obligations imposed by law upon States and municipalities as distinguished from those that are discretionary or voluntary, and that this has been a troublesome question for the courts. At page 1091 it is said:

“If the obligation is one which, as already stated, is discretionary, it falls within the inhibition of the debt limit provisions.”

The Illinois decisions hold the limitation applies even to obligations imposed by law. City of Springfield v. Edwards, 84 Ill. 626; Law v. People ex rel. Huck, 87 Ill. 385; Prince v. City of Quincy, 105 Ill. 138. Illinois is not alone in this construction. Mc Gillivray v. Joint School Dist., 112 Wis. 354, 88 N. W. 310, 88 Am. St. Rep. 969, 58 L. R. A. 100; Pittsburgh Paving Co. v. City of Pittsburgh, 332 Pa. 563, 3 A. (2d) 905.

The only Illinois case cited in the brief which seems to give color to plaintiff’s contention is Chicago v. Sexton, 115 Ill. 230, 245. The same case was before the Supreme Court in Sexton v. Chicago, 107 Ill. 323. It seems that Sexton had a contract with the City to construct iron work for the City Hall; that he made ■ his bids for the work on plans and specifications that were prepared by the city engineer, but it developed that the plans and specifications which were furnished to him were not like other plans which the City had kept in its own files and in which changes were made. Sexton in good faith and without notice of these changes made his bid accordingly. The City terminated the contract. Sexton was allowed to recover on quantum meruit. The court said in substance the City was wholly responsible for the mistake out of which the entire controversy arose and that the mistake made a difference in the cost of the building of from $8,000 to $10,000; that it was inequitable and unjust to blame Sexton for a thing which was “the direct result of the City’s own negligence.” The question of constitutional debt limitation was not raised in the briefs of the parties, and the statement of the opinion on that matter was merely obiter. It does not justify plaintiff’s position.

In the opinion by the trial judge he correctly, we think, distinguished that case saying:

“In the case at bar, where is any want of fidelity on the part of the Defendant Village? Its officials and the engineer all went into a contract to do this work with full knowledge that the law provided the voters of the Village could veto the ordinance if they so desired. The people of the Village were not a party to that contract unless, as suggested by the Counsel for the Plaintiff, it be held that the Mayor and the Village Trustees were their agents. . . . The very fact that the Statute, gave the people of Hazel Crest' the right to veto the ordinance adopted by the City Council shows that the legislature did not make the city officials the agents of the people to bind those people.” The trial court reached the correct conclusion. The judgment will be affirmed.

Affirmed.

O’Connor and McSurely, JJ., concur.


source: Caselaw Access Project

author: Mr. Presiding Justice Matchett

license: Public Domain

text:
    In re Estate of George A. Stevenson, Deceased. John T. Dieter, Assignee of Charles H. Albers, Receiver, Appellant, v. Nettie B. Stevenson, Executrix of Estate of George A. Stevenson, Deceased, Appellee.
    Gen. No. 42,306.

      Opinion filed March 22, 1943.
    Rehearing denied April 5, 1943. ■
    Markman, Donovan & Sullivan, of Chicago, for appellants; Henry 0. Nickel, of Chicago, of counsel.
    Burton Evans, of Harvey, for appellee.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.

The suit here is brought to recover the sum of $2,037 with interest, said to be due on an anticipation warrant issued to the Homewood 'State Bank, December 11, 1931, drawn against the 1930 tax levy by School District 152% of Cook county.

Dr. Stevenson, from the organization of the district until his death on January 4, 1938, was the treasurer. The Supreme Court has held that such an anticipation warrant does not create a general liability against the district and that since the district is a State agency it is not liable in tort for a failure to collect or turn over the taxes against which the warrant is issued. Berman v. Board of Education of Chicago, 360 Ill. 535, 539; Leviton v. Board of Education of Chicago, 374 Ill. 594, 598, 599. Therefore, the suit is brought against the estate on the theory that Stevenson, as treasurer, failed to turn over to the holders of the warrant moneys received from the tax levy which should have been applied to its payment. There is no claim that the treasurer appropriated any money to his own use.

Homewood State Bank was the owner of the warrant. It passed into the hands of Albers, receiver. He filed his claim in the probate court of Cook county. Pending the litigation, Albers assigned the claim to Dieter. The probate court sent the claim to a referee. He reported the estate was not liable. The court overruled objections and entered judgment for the estate. Dieter appealed, to .the circuit court where the cause was heard de novo. It was referred to a master in chancery. The master reported the warrant was invalid and the estate not liable. The court overruled exceptions of the claimant and entered judgment for the estate. Claimant brings this appeal.

The evidence shows,that from the tax levy of the year 1930 the treasurer, for the period from April 12, 1932, to November 6, 1937, collected the total amount of $19,358.29, of which $1,900 was applicable to payment of bonds and interest for the year 1930, leaving a balance available for the payment of tax anticipation warrants of $17,458.29. The Homewood State Bank’s pro rata share of this was 32.902 per cent, namely, $5,744.11, of which $3,706.67 was paid, leaving the balance of $2,037.44 for which claimant contends, the estate is liable, with interest.

It is the theory of claimant that on the facts as stated the treasurer is personally liable for the diversion of this amount; that the district, the treasurer and his estate are estopped to assert that the warrant was illegally issued, and that the court erred in excluding evidence offered on the theory of estoppel. The executrix contends the warrant on which the claim is based was illegally and unlawfully issued and the treasurer, therefore, not liable for the failure to pay an invalid instrument, and that neither the district, the treasurer nor his estate may be estopped to show the illegality of this anticipation warrant.

The authority of a school district to issue anticipation warrants against a tax levy is derived solely from the statute (111. Eev. Stat. 1941, ch. 122, § 125 [Jones 111. Stats. Ann. 123.132].) The master was of the opinion that the warrant on which the claim here is based was not issued as .authorized by statute. The report of the master recites the factual history of the transactions between the bank and the school district in these warrants, from the beginning in 1923 to the transaction of December 11, 1931, when the bank took the warrant on which this claim is based. His report shows that in the first transaction the bank purchased warrants for $15,000 and paid that amount therefor in cash; that this was the only transaction in which cash was paid; that in later transactions the school district paid interest due to the bank on the former warrant and issued a new warrant against the tax levy for the next year. The bank returned the warrant it held to the district to be canceled. The district canceled the old and delivered to the bank the new warrant. The master says: ‘ ‘ Each time the new warrants were issued in exchange for the warrants previously held by the bank the warrants of the previous issue were canceled and marked paid on the School Board’s books.” Concerning the particular transaction in which the anticipation warrant here relied on was issued, the master says: “On December 11, 1931, interest was paid and $2,000 was paid on account of principal; and on that date Warrant No. 8, Series No. 1,0 in the sum of $5,000 was issued against the 1930 levy and was exchanged with said bank for Warrant No. 3, Series No. 10 in the sum of $7,000. No cash was paid by said Homewood State Bank to said School District No. 152% for said Warrant No. 8, Series No. 10, nor was any cash ever paid by said bank to said school district for any of said Warrants except the $15,000 cash paid by said bank for the $15,000 of warrants purchased in 1923.”

The master points out that the power of a school district to issue anticipation warrants is purely statutory and limited to the purposes named' in the statute, such as “necessary expenses” and payment of interest on bonds, and are payable solely from the taxes collected from the levy against which they are issued; that “when a school board undertakes to issue warrants payable out of taxes of a subsequent year and deliver them in exchange for and in payment of warrants payable out of taxes of a prior year it is issuing such warrants without statutory authority and such warrants are void.”

We agree with the master. Manifestly, it would be illegal to pay warrants issued against the 1923 tax levy with money collected on.the 1924 tax levy. There is no valid distinction between doing this and paying warrants issued against the 1923 levy by exchanging therefor new warrants issued against the 1924 levy. The claimant argues this can be done. He says if the old warrant is not paid in this way the school board would have to take money from the treasury to pay it and the board would thus be left without money to run the schools. By surrendering the old for a new warrant he says the money is left in the treasury and the schools may be thus maintained. The argument assumes a fact not true; namely, that the money to pay the old warrant is in the treasury. If the money was in the treasury to pay the old, or first issued, warrant, it could be paid in cash and the holder could then buy a new warrant if he chose to do so. It is apparent the exchange device was adopted for the reason that the money to pay the old warrant had not been collected and was not in the treasury.

In People v. Hayes, 365 Ill. 318, the Supreme Court held tax anticipation warrants were not the obligation of the issuing muncipality. In Berman v. Board of Education of Chicago, 360 Ill. 535, the same court held an act of the legislature authorizing the Board of Education of the City of Chicago to issue bonds for the purpose of paying unpaid anticipation warrants was unfair to taxpayers and unconstitutional as violating due process of law. In Dimond v. Commissioner of Highways of Town of Ottawa, 366 Ill. 503, the same court held an act of the legislature validating all tax warrants was invalid. In Leviton v. Board of Education of Chicago, 374 Ill. 594, it was held an act of the legislature authorizing the Board of Education of the City of Chicago to issue bonds to pay off judgments entered upon unpaid anticipation warrants was void under section 9 of article 9 of the Constitution. If the device here adopted received the approval of the courts the effect of all these decisions would be .made abortive.

There remains the question of estoppel. Manifestly that doctrine is not applicable to Stevenson or his estate. Stevenson did not sign the tax warrant. He received nothing from the transaction. The power to issue the warrant was not in him. It was his duty to pay such warrants when money was on hand, applicable, and when the board ordered him to do so. Aside from this we hold the contract by which the bank became the holder of the warrant was illegal. Even as between the bank and the district this contract could not be made valid by estoppel. Am. Jur., vol. 19, § 149, p. 802. Much less could the treasurer, who was not a party to the contract, be estopped. The cases cited by the claimant are not in point.

■ The judgment will be affirmed.

Affirmed.

O’Cohhor and McSurely, JJ., concur.


text:
    Irving J. Epstein and Company, Appellee, v. Southern Railway Company et al., Defendants Below. Appeal of Inland Waterways Corporation, Appellant.
    Gen. No. 42,315.
    Opinion filed March 22, 1943.
    Francis M. Shea, Assistant United States Attorney General, J. Albert Woll, United States Attorney, and James J. Lewis, Assistant United States Attorney, for appellant; Harold B. Finn, Special Assistant to Attorney General, James J. Lewis, Assistant United States Attorney, and Thomas F. McGovern, Department of Justice Attorney, of counsel.
    Alexander Golbus, of Chicago, for appellee.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.

Plaintiff is the consignee in five hills of lading issued by the Southern Railway Company, whereby it promised to carry from Atlanta, Georgia, to Memphis, Tennessee by rail, thence by water in the boats of the Inland Waterways Corporation to Chicago, five carloads of shelled peanuts. Plaintiff claims the peanuts, which were delivered to the carrier in good condition at Atlanta, were delivered to him in a damaged condition in Chicago, and sues to recover the damages.

The defense interposed by motion and by answer was that the municipal court of Chicago was without jurisdiction. The defense was disallowed. The plaintiff dismissed as to the Southern Railway Company, codefendant. The cause was tried by the court. There was a finding for plaintiff with damages assessed at $2,500 against the Inland Waterways Corporation, and it appeals.

The Inland Waterways Corporation was created by Act of Congress of June 3, 1924. (43 Stat. 360, 49 U. S. C., § 155 et seq., Code, 1934 Ed., Title 49, p. 2247, §§ 151-156.) The defendant Inland Waterways Corporation is a wholly owned corporate agency of the United States. The act grants to the corporation power to sue and be sued, to “conduct the business of the common carrier by water and maintain, manage and operate properties held for, or used in the service of transportation.” It is also given power necessary or incidental to the powers expressly granted to it. Paragraph (C) of section 153 directs:

“The operation of the transportation and terminal facilities under this sub-division of this Chapter shall be subject to the provisions of Chapter I of this title and to the provisions of Chapter 23, Title 46, shipping, in the same manner and to the same extent as if such facilities were privately owned and operated; and all vessels of the corporation operated and employed solely as merchant vessels shall be subject to all other laws, regulations and liabilities governing merchant vessels.”

Section 1 (1) of the Interstate Commerce Act states that the provisions of the chapter shall apply to common carriers engaged in the transportation of passengers or property “wholly by railroad or partly by railroad and partly by water, when both are used under a common control, management or arrangement for a continuous carriage or shipment.”

Section 153 (0) of section 20 (11) provides:

“. . . that all actions brought under and by virtue of this Paragraph against the delivering carrier shall be brought, and may be maintained, if in a District Court of the United States, only in a District, and if in a State Court, only in a State through or into which the defendant carrier operates a line of railroad, . . . .”

Paragraph 12 of the same chapter provides:

“The common carrier, railroad or transportation company issuing such receipt or bill of lading, or delivering such property so received and transported shall be entitled to recover from the common carrier railroad or transportation company on whose line the loss, damage or injury shall have been sustained. The amount of such loss, damage or injury as it may be required to pay to the owners of such property as may be evidenced by any receipt, judgment or trans-script thereof.”

At the time the act creating the defendant corporation was approved there was in existence an act known as the Suits in Admiralty Act, approved March 9,1920. (41 Stat. 525, 46 U. S. C., § 741, 752.) It provides a remedy in admiralty for adjudicating all maritime claims arising out of the possession or operation of merchant vessels belonging to the United States or to any corporation in which the United States or its representatives own the outstanding stock. Section 1 of the act provides in substance that no vessel of the United States or of any such corporation shall, in view of section 2, be subject to arrest or seizure by judicial process in the United States or its possessions. Prior to the enactment of this statute such vesseis were so liable in proceedings in admiralty which were in rem. Section 2 of the Suits in Admiralty Act provides that thereafter a libel in personam may be brought on such claims and that such action may be brought against the United States or against any such corporation. The act further provides that such suit in personam may be brought in the United States district court for the district in which the parties so suing, or any of them, reside or have their place of business- in the United States, or in which the vessel charged may be found.

The sole question for determination is whether the municipal court of Chicago had jurisdiction under section 20 (11) of the Interstate Commerce Act, as plaintiff contends, or whether the Suits in Admiralty Act of March 9, 1920, provides the exclusive remedy for enforcing this kind of a claim against the Inland Waterways Corporation by libel in personam in a court of Admiralty and in a United States district court having jurisdiction, which in this case would be the United States district court of northern Illinois. We hold the Suits in Admiralty is applicable and the jurisdiction it provides exclusive. This construction is justified by the last clause of paragraph (C) of section 153 of the act creating the Inland Waterways Corporation (above quoted). It will be noted this paragraph carefully distinguishes between the “transportation and terminal facilities” and the “liability” of the corporation. The first named are made subject to the provisions of the Interstate Commerce Act; the second are subject to all other laws, regulations and liabilities governing merchant vessels. The distinction seems altogether reasonable. In exercising transportation and terminal facilities it would be most convenient and necessary to apply the rules and regulations of the Interstate Commerce Commission. In determining wholly distinct questions of corporation liability the Congress may well have hesitated to grant jurisdiction of a corporation wholly owned by the United States to courts other than its own. Section 153 (C) of the Inland Waterways Corporation Act is taken almost verbatim from section 201 (e) of the Transportation Act of 1920; 41 Stat. 458, 49 U. S. C. 201 (e), approved February 28, 1920, only nine days before approval of the Suits in Admiralty Act. Defendant points out that it is unreasonable to suppose Congress did not intend to include as subjects to which the statute was applicable the large fleet of merchant vessels it had just turned over to the Secretary of War under the trade name of Federal Barge Lines, of which the defendant corporation is the successor. The first section of the act extends immunity to all vessels “owned by the United States or its representatives which own the entire outstanding capital stock.” The Panama Railroad Company, which conducted a railroad in the Canal Zone and also operated a fleet of merchant vessels there, was excluded from the act by an express provision. Defendant plausibly argues that if it had been the intention of the Congress the act should not apply to defendant’s predecessor, Congress would have likewise expressly excluded it. We may not read into the act an exception which the Congress evidently intended to leave out.

Moreover, the language of section 11, Title 49 of the Interstate Commerce Act confirms this construction. It provides in substance that actions brought thereunder against a delivering carrier may be brought in a district court or State court, but if in a State court, “only in a State through or into which the defendant carrier operates a line of railroad.” Plaintiff does not contend defendant operates or owns any line of railroad anywhere in Illinois, or anywhere within the jurisdiction of the United States district court for northern Illinois. This clause was inserted in the act by way of amendment. While it was under consideration by Congress an attempt was made to delete this clause. It was voted down. (See Congressional Record, pp. 12757, 12759, 12763, 12764.)

We conclude the Suits in Admiralty Act of March 9, 1920, is here applicable, and that under its provisions the United States courts have exclusive jurisdiction of any action plaintiff may bring on this cause.

In United States Shipping Bd. Emergency Fleet Corp. v. Rosenberg Bros. & Co., 276 U. S. 202, the history of the Suits in Admiralty Act is recited and the court said:

“In view of these provisions of the Act we cannot doubt that it was intended to furnish the exclusive remedy in admiralty against the United States and the corporations on all maritime causes of action arising out of the possession or operation of merchant vessels.”

In Johnson v. United States Shipping Bd. Emergency Fleet Corp., 280 U. S. 320, the defendant was a like corporation. The court considered causes in tort as well as in Contract brought against it and as to each held the exclusive remedy was under the Suits in Admiralty Act. The court said:

“Prior to the passage of the Act, merchant vessels of the United States were subject to seizure. § 9, Shipping Act, September 7, 1916, 39 Stat. 730. The Lahe Monroe, 250 U. S. 246. And the Fleet Corporation was liable to be sued in state or federal courts on causes of action arising out of the operation of such ships. Cf. Sloan Shipyards v. U. S. Fleet Corp., 258 U. S. 549. The Act relieved the United States of the inconvenience resulting from such seizures and gave remedy by libel in personam against the United States and such corporations. Blamberg Bros. v. United States, 260 U. S. 452, 458. But that is not its only purpose. It authorizes libel in personam where there is nothing on which recovery in rem could be had. Eastern Transp. Co. v. United States, 272 U. S. 675. And it furnishes the exclusive remedy in admiralty against the United States and such corporations on maritime causes of action arising out of the possession and operation of merchant vessels.”

In Sevin v. Inland Waterways Corp., 88 F. (2d) 988, the circuit court of appeals for the fifth circuit (the defendant being this same corporation) said:

“Doubt was once felt as to whether the act applied only to remedies sought in admiralty, leaving intact concurrent remedies at law or in the Court of Claims, and the question was expressly left open in United States Shipping Board Emergency Fleet Corporation v. Rosenberg Bros. & Co., 276 U. S. 202, 48 S. Ct. 256, 72 L. Ed. 531. But in Johnson v. U. S. Shipping Board Emergency Fleet Corporation, 280 U. S. 320, 50 S. Ct. 118, 74 L. Ed. 451, the act was held to provide the exclusive remedy against the United States and its wholly owned corporations for maritime causes of action arising out of the possession and operation of merchant vessels and to preclude actions at law in state or federal courts to enforce such causes of action.”

Later opinions of the Supreme Court are to the effect that while the Suits in Admiralty Act “left all personal actions against others wholly uneffected,” in so far as the United States or corporations wholly owned by it are concerned, the remedy is exclusively under the Suits in Admiralty Act on all questions of liability. Brady v. Roosevelt Steamship Company, Inc., No. 269. October Term, 1942, not yet published; opinion filed January 18, 1943.

The judgment of the municipal court will be reversed and the cause remanded with directions to dismiss plaintiff’s suit for want of jurisdiction.

Reversed and remanded with directions.

O’Connor and McSurely, JJ., concur.


author: Mr. Justice McSurely

text:
    Wieboldt Stores, Inc., Appellee, v. Cyril C. Sturdy, Defendant. Appeal of Oak Park Trust and Savings Bank, Appellant.
    Gen. No. 42,288.
    Opinion filed March 22, 1943.
    Rehearing denied April 2, 1943.
    Samuel Spitzer and Henry N. Shabsin, both of Oak Park, for appellant; Henry N. Shabsin, of Oak Park, of counsel.
    Reginald C. Darley and Oscar Gr. Wahlgren, both of Chicago, for appellee; Oscar GL Wahlgren, of Chicago, of counsel.
   Mr. Justice McSurely

delivered the opinion of the court.

Wieboldt Stores, Inc., plaintiff, had judgment for $76.20 by confession against Cyril C. Sturdy, defendant, in the municipal court of Chicago; the execution was returned no property found and no part satisfied; thereupon garnishment proceedings were instituted and the Oak Park Trust & Savings Bank was named as garnishee and garnishment summons was directed to the sheriff of Cook county and returned by him duly served. The bank appeared specially and moved to quash the service of the garnishee summons, alleging that the municipal court was limited in the exercise of its jurisdiction to the city of Chicago, whereas the bank was outside of the city, having its only- place of business in Oak Park, 111.; that garnishment summons was served upon it' in Oak Park and not served upon it within the territorial limits of the municipal court. This motion was denied and conditional judgment against the bank was entered, and the bank making no appearance, final judgment for $76.20 was entered against it, from which it appeals.

The bank’s theory is that as the municipal court of Chicago is a court of limited territorial jurisdiction, namely the city limits of Chicago, that court'had no power to issue garnishee process to be served beyond that jurisdiction. To this plaintiff replies that the municipal court, having acquired jurisdiction over the defendant, Sturdy, and having entered a money judgment against him, may, after the requisite steps for garnishment have been taken, send its process of garnishment beyond the territorial limits of the city of Chicago and may thereby acquire jurisdiction to proceed to final judgment against the garnishee.

The bank argues that the garnishment proceeding is not ancillary and is governed by the same rules with reference to the service of summons as an original process. Certain cases from other jurisdictions are cited which seem to support this view. Jefferies v. Harvie, 38 Miss. 97, and Koenig v. Curran’s Restaurant & Baking Co., 121 Pa. Sup. 201, 183 Atl. 451.

However, there is abundant authority in decided cases in Illinois that garnishment is not an original process but is ancillary and supplemental to the principal suit. It was so held in Senelick v. Mann, 239 Ill. App. 589, by this division of the Appellate Court. The opinion, by the late Mr.1 Justice Johnstoh, has many citations supporting the view as stated in vol. 20 of Encyclopedia of Law and Procedure (p. 979) that “Garnishment is in no sense a new suit, but is a special auxiliary remedy for more effectually reaching defendant’s credits, and is always ancillary to the main action under which it is brought.” In Chanute v. Martin, 25 Ill. 63, the court said the whole proceeding “is in the nature of process to obtain satisfaction of a judgment.” And in Bear v. Hays, 36 Ill. 280, the court said that the process against the garnishee, where an execution has been returned nulla bona, “is not original process.”

Other cases to the same effect may be found in the opinion in the Senelick v. Mann case, above cited. There the immediate question was the authority of the superior court, where the original judgment was entered, to permit the filing of a garnishee affidavit as part of its record and order summons issued from that court with interrogatories to the garnishees; the garnishees moved that the summons be quashed as the court was without jurisdiction to proceed against it in the original action. The conclusion of the reviewing court was that the garnishment proceeding was not an original suit but was ancillary to, and in effect a continuation of, the principal action, and held that the trial court had jurisdiction over the garnishee. This has been practically the holding of all the cases in this state. First Nat. Bank of Palatine v. Hahnemann Institutions of Chicago, Inc., 356 Ill. 366, held that garnishee process would not lie after the original judgment had been vacated, .and in definite language (p. 369) held that garnishment is an ancillary proceeding. Miller v. People, 230 Ill. 65, involved the validity of an order transferring a criminal court case to the municipal court of Chicago, where the defendant was tried and found guilty; it was not charged that the crime was committed within the city limits of Chicago, but in Cook county. In an opinion by Mr. Justice Cabtwbight it was held that this order was improper, but in the course of the opinion (p. 77) he said: “A city court having acquired jurisdiction may send its process in aid of that jurisdiction beyond the city limits, and may send its final process outside of the city to enforce collection of its judgment.” Recently, in Zimek v. Illinois Nat. Casualty Co., 370 Ill. 572, 574, the court said: “The garnishment process is remedial in nature,' designed to reach property belonging to the judgment debtor after ordinary execution has failed. (Wheeler v. Chicago Title and Trust Co., 217 Ill. 128.) It is not a distinct and separate suit, but an additional step in the original action for judgment.” In all of the many cases in this State where the question has been considered it has been held that garnishment is purely a statutory mode of procuring satisfaction of a money judgment and not an original action. It is conceded that the municipal court could not serve summons in an original action outside its territorial jurisdiction.

The garnishee bank stresses that provision of the Garnishment Act (ch. 62, § 2 [Jones 111. Stats. Ann. 109.285]) which provides that a garnishee summons, when issued by the clerk of a court of record, “shall be made returnable, and be served and returned as summonses in other civil cases.” Serving the summons as other summonses are served simply means by the same kind of service as is required for other summonses: that is, service must be had at a fixed number of days before the return day, also by handing a copy of the summons to the defendant or party to be served and indorsing upon it the time and manner of service. These are ministerial acts and have nothing to do with jurisdiction of the subject matter or process involved. Wilcox v. Conklin, 255 Ill. 604, cited by the garnishee as authority, is not in point. There was an effort to extend the original jurisdiction of the mu- • nicipal court beyond its territorial limits by service upon one of the joint defendants who resided outside of those limits.

We are of the opinion that the trial court correctly ruled against the motions of the garnishee and that the judgment against it was properly entered. It will therefore be afirmed.

Affirmed.

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


author: Mr. Justice O’Connor

text:
    Freda Lindberg, Conservatrix of Estate of Harry Lindberg, Also Known as Harry C. Lindberg, Insane, Appellee, v. Mutual National Bank of Chicago, Appellant.
    Gen. No. 42,265.

      Opinion filed March 22, 1943.
    Rehearing denied April 5, 1943.
    Rathje, Hinckley, Barnard & Kulp, -of Chicago, for appellant; Francis E. Hinckley and William E. Fisher, both of Chicago, of counsel.
    Oke L. Pearson, of Chicago, for appellee.
   Mr. Justice O’Connor

delivered the opinion of the court.

September 10, 1941, Freda Lindberg, as conservatrix of the estate of Harry Lindberg, insane, filed her verified complaint in equity against defendant, The Mutual National Bank of Chicago, praying that two collateral notes executed by Harry Lindberg May 17 and May 27, 1941, be declared null and void and the collateral, given to secure the payment of the notes, returned to plaintiff. Defendant filed a verified an- . swer and afterward plaintiff moved for a summary judgment supported by an affidavit. Defendant filed an affidavit in opposition to plaintiff’s motion. The court disposed of the case on the pleading and entered an order and decree in plaintiff’s favor. Defendant appeals.

The substance of the allegations of the complaint is •that July 9,1934, Harry Lindberg was found to be insane by the County court of Cook county and so remained to the present time. That May 17 and 27, 1941, he executed his two promissory, collateral notes, both due August 15,1941, one for $1,787 and the other for $100, and to secure the payment of them deposited with defendant as collateral, 105 shares Common Stock, Berghoff Brewing Corporation; 10 shares Compañía Swift Internationale; 10 shares Preferred Stock, Continental Baking Company; 60 shares Common Stock, General Cigar Company and 10 shares Common Stock, National Distillers Products Company. That August 30, 1941, defendant served notice on plaintiff that it would, on September 12, at a certain hour and place, sell the stock, or so much of it as . would be necessary, to pay the amount due on the notes. And it is averred that the stock had an actual value of approximately $3,000; that plaintiff had demanded a return of the collateral and a surrender of the notes, which was refused. “Therefore plaintiff charged that it would be unconscionable to permit the defendant to retain possession of said collateral and said notes.”

Defendant filed its answer in which it admits that July 9, 1934, an inquest was held in the County court of Cook county, concerning the mental condition of Harry Lindberg, and in the petition there filed by plaintiff, Freda Lindberg, his wife, it was alleged that Harry Lindberg had no property. That July 26,1934, an order was entered in that proceeding, by which Harry Lindberg was committed to the State Hospital at Kankakee, Illinois, and there remained until May 19, 1935, when he was released on parole, and on August 19, 1935, discharged from the institution. Defendant denies that after Lindberg’s discharge he lacked capacity to enter into a contract. The answer further sets up that after Lindberg’s discharge, he commenced a course of business dealings with a number of business firms and corporations;' entered into-leases for premises occupied by him and his wife, for which he paid rent; borrowed money from the Metropolitan Life Insurance Company upon his life insurance policy; engaged in stock brokerage transactions with stock brokers in Chicago; bought and sold shares of stock, repaid his loan to the Metropolitan Life Insurance Company; had numerous transactions with the defendant bank; that since his discharge from the institution at Kankakee he purchased an automobile which he drove and had it registered in his name; that on or about December 5, 1936, he bought 50 shares of Berghoff Brewing Corporation Common Stock and a certificate was issued to him; that about January 12, 1937, he bought 10 shares of the Common Stock of the General Cigar Company, and a stock certificate was issued to him; that- January 7, 1938, he bought 25 share's of the Berghoff Brewing Corporation Common Stock and a certificate was issued to him; that May 19, 1939, he bought 10 shares of the Continental Baking Company Preferred Stock and the certificate was issued to him; that July 11,1939 he bought 10 shares of National Distillers Products Corporation Common Stock and the certificate was issued to him; that May 23, 1939, he bought 10 shares of General Cigar Company Common Stock and the certificate was issued to him; that December 19, 1939, he bought 40 shares of General Cigar Company Common Stock and the certificate was issued to him; that July 26,1940, he acquired a deposit certificate of the Compañía Swift Internationale for 10 sharps of stock and the certificate was issued to him. January 15, 1941, he bought 30 shares of Berghoff Brewing Corporation Common. Stock and the certificate was issued to him.

It is further" set up in the answer that about October 3, 1936, Lindberg opened a savings account with defendant bank and made deposits and withdrawals; that in August, 1940, he had a loan account of $1,800, with the Terminal National Bank of Chicago, which at the request of Lindberg, defendant bank afterward paid to the Terminal Bank and at the time, the securities put up with defendant as collateral were turned over to defendant bank. That defendant in good faith dealt with Lindberg as a sane man and without any knowledge that he had ever been adjudged insane.

It was further alleged that plaintiff, Freda Lind-berg, wife of Harry Lindberg, at all times since Harry’s release from the State Hospital at Kankakee in 1935, knew of the business transactions of her husband, consented to and approved of them and gave no notice to any person with whom Harry dealt that he had been adjudged insane, and it was averred that she colluded and conspired with her husband to avoid obligations on the notes involved in suit and caused him to be readmitted to the hospital for the insane June 5, 1941. Defendant denied that the notes were void.

The affidavit filed in support of plaintiff’s motion for a summary judgment set up substantially the facts alleged in the complaint and defendant’s affidavit set up substantially the same facts as those alleged in its answer.

The court held that since Lindberg had been adjudged insane by the County court of Cook county July 9, 1934, and since there had been no readjudication of the matter by the same court, and since under the provisions of § 12, ch. 85, 111. Rev. Stat. 1937, every note or other contract made by a person adjudged insane was void, no recovery could be had.

Section 22, eh. 85, 111. Rev. Stat. 1937 [Jones 111. Stats. Ann. 77.022] provides that where a person has been adjudged insane and committed to a state institution, as the State Hospital at Kankakee, such person may be paroled or discharged. That section provides: “Authority to discharge patients from either of the state institutions for the insane is vested in the Department of Public Welfare, . . . may be made for either of the following causes, namely: . . . because he has recovered from the attack of insanity, or because he has so far improved as to be capable of caring for himself, or because the friends of the patient request his discharge, and in the judgment of the Department no evil consequence is likely to follow such discharge, or because there is no prospect of further improvement under treatment, and the room occupied by an incurable and harmless patient is needed for the admission of others who are unsafe to be kept at large or probably curable. Authority is also vested in the Department to release the patients on parole for any term not exceeding three months'; and, if not returned to the institution within that period, a new order of commitment from the county judge shall be necessary in order to the readmission of any such paroled patient to the institution; Provided, That the court may make such order upon the old verdict, if satisfied that the patient in question is still insane. . . . And no patient who has recovered his reason . . . shall be declared discharged until at least ten days after notice shall have been given to the judge of the county court having jurisdiction in the case, in order to enable the said judge to make some proper order as to the disposition of the said patient, when so discharged, which order shall be entered of record, and a copy thereof furnished to the Department of Public Welfare.”

Section 25, of the same chapter provides: “Whenever notice shall have been given to the judge of any county court that any patient committed to any hospital or asylum in this state, under the order of said court, has been discharged cured, upon receipt of such notice signed by the superintendent the judge shall enter an order adjudging the patient to be sane and restoring the patient in question to all his rights as a citizen.” No contention is made that the parole and discharge of Lindberg from the State Hospital at Kankakee were not in every particular valid and in compliance with the law.

We think the court erred in holding that since Lind-berg was adjudged insane by the County court of Cook county July 9, 1934, this was a judicial determination and conclusive of his insanity until that court should, by a like decision, declare him sane. Lilly v. Waggoner, 27 Ill. 395; Titcomb v. Vantyle, 84 Ill. 371.

In the Lilly case [27 Ill. 395] Waggoner in 1851 conveyed real estate to Lilly. In 1858 Waggoner was adjudged insane by the County court of Moultrie county and shortly afterward a bill was filed to set aside the conveyance on the ground that Waggoner was insane at the time of the conveyance. The trial court set aside the conveyance but the decree was reversed on appeal. The court there announced a rule of law which has been followed to the present time by our Appellate and Supreme Courts. The court there said: “The legal presumption is, that all persons of mature age are of sane memory. But after inquest found, the presumption is reversed, until it is rebutted, by evidence that he has become sane. When the transaction complained of occurred before the inquest is had, the proof of insanity devolves upon the party alleging it, but it is otherwise if it took place afterwards.”

That rule was again stated in Titcomb v. Vantyle, 84 Ill. 371 and again in Chicago W. D. Ry. Co. v. Mills, 91 Ill. 39; Langdon v. The People, 133 Ill. 382-404; Kelly v. Nusbaum, 244 Ill. 158; McGregor v. Keun, 330 Ill. 106-114; Kasbohm v. Miller, 366 Ill. 484-498.

In County of McHenry v. Town of Dorr, 39 Ill. App. 240 suit was brought by the county against the town to recover for the support of Perry Spooner from August 15, 1882 to September 6, 1887. Spooner had been adjudged insane after a jury trial by the County court. The county supported him as a county charge until October 9,1882, when without any other proceeding before a jury to declare him restored to reason, he was discharged as sane and was allowed to go at large and support himself until July, 1884, when he was again taken into custody by the county as an insane pauper and supported up to the time the suit was commenced. The question of Spooner’s residence was important and the court said he had sufficient mental capacity to choose a residence,- which he did. The court there said: “But it is insisted that the judicial determination of Perry Spooner’s insanity in August, 1882, was, until he by a like decision should be declared sane, conclusive evidence of his insanity and that in consequence the question was not open to controversy. His status, therefore, being fixed, he was incapable of choosing a residence in the town of Greenwood. . . .

“We are unable to agree with counsel for appellant on the proposition of law. We think, at least, the mental capacity of the pauper and insane person after being adjudged insane to choose a residence, can be • shown in the absence of any readjudication.” The court continuing said that the county relied largely on the case of Redden v. Baker, 86 Ind. 191, to sustain its contention. The court distinguished that case and said: “That decision was rendered on a statute very different from ours. In that case Martha Collier had been declared insane under a statutory proceeding in the State of Indiana, and a guardian appointed, who was afterward discharged.; but she had never been again tried as to her soundness of mind and restored to reason in the ‘same manner as to the allegation of the unsoundness of mind’ as the statute required.”

The statute in Indiana, as the court pointed out, provided that when a person had been declared insane and afterward became sane, there must be a second hearing by the court to determine that the person had recovered her sanity. There is no such provision in our statute, from which we have above quoted. Sec- ■ tion 22, ch. 85, Ill. Rev. Stat. 1937 [Jones 111. Stats. Ann. 77.022], provides that where a person has been adjudged insane and confined to a state institution he may be discharged by the Department of Public Welfare because the insane person has recovered or has so far improved as to be capable of caring for himself or because the friends of the patient requested his discharge and in the judgment of the department no evil consequence is likely to follow such discharge. But see §11, ch. 85 [Jones 111. Stats. Ann. 77.011], and Belz v. Piepenbrink, 318 Ill. 528-535.

Section 11 provides that upon the return of the finding the jury or the commission on the question of the insanity of a person the court shall enter a proper order in accordance with the finding of the jury or the commission which may be to discharge him or to commit him to a hospital for the insane. The section then provides: “But whatever order may be made in the case shall stand and continue to be binding upon all persons whom it may concern until rescinded, reversed or otherwise legally superseded or set aside.” Whether in the instant case the order adjudging Lind-berg insane was in effect superseded when he was discharged from the hospital by the Department of Public Welfare, need not here be decided for the reasons hereinafter stated.

In Belz v. Piepenbrink, 318 Ill. 528, the court said, (p. 535): “Appellant says the judgment of the county court finding Belz insane in 1886 not having been rescinded, reversed or otherwise legally superseded, as provided by the next to the last sentence of section 11 of chapter 85, (Cahill’s Stat. 1923,) is conclusive of his continued mental condition. , Such a record, when properly introduced.in evidence in a will contest, is not conclusive on the question of insanity at the time of making the will but is to be considered by the jury for what it is worth. Holliday v. Shepherd, 269 Ill. 429; In re Estate of Weedman, 254 id. 504.”

In Stitzel v. Farley, 148 Ill. App. 635, it was held that notwithstanding the provisions of our statute which make void the contracts of a person made after his adjudication as insane, a contract made by him during the lucid interval is binding without adjudication of restoration to reason. In that case judgment by confession was entered against Farley on two notes. Afterward a motion was made by Farley’s conservator, to set aside the judgments, to recall the execution, to substitute her as a party defendant and for leave to plead. The cases were afterward tried together, the jury found in plaintiff’s favor, judgments were entered on the verdicts and defendant appealed. The evidence showed that June 13, 1902, Farley was adjudged insane by the County court of Lee county and committed to the insane asylum at Elgin. April 10, 1904, he was released from the asylum as improved. A conservator had been appointed for him who after-wards died .and later Elizabeth Farley was appointed conservator. There was no adjudication of the court reinstating Farley after he had been adjudged insane. It was contended that the notes which were made in 1907 were void because the order adjudging Farley, - the maker of the notes, insane, was of record and he had not been restored. A number of witnesses testified that at the time of the making of the notes Farley was of sound mind; others testified to the contrary. The court then referred to the section of the statute which declared a note made by one after he had been adjudged insane and not restored, was void, and to the other sections of the statute which provided for the restoration of the insane person for whom a conservator had been appointed, and said: “The courts of last resort in this state hold that notwithstanding the statute, a contract made with a person after an adjudication of insanity, but made during a lucid interval is binding, and may be enforced against him, and that where a person has been adjudged insane and after-wards released from the asylum as improved, with a recovery of his reason, contracts made by such party are valid without an adjudication of restoration to reason. McCormick v. Littler, 85 Ill. 63; Lilly v. Waggoner, 27 Ill. 395; Clay v. Hammond, 199 Ill. 377; Langdon v. People, 133 Ill. 382; Searle v. Galbraith, 73 Ill. 269; Speck v. Pullman Car Co., 121 Ill. 33; Titcomb v. Vantyle, 84 Ill. 371; Am. Bible Soc. v. Price, 115 Ill. 623; Martin v. Jamison, 39 Ill. App. 248.” The judgment was reversed and the cause remanded to be retried on the merits.

McGregor v. Keun, 330 Ill. 106, was a suit brought to set aside two warranty deeds on the ground of the mental incompetency of the grantor. In again stating the rule of law now under consideration the court saivd; (p. 114): ‘‘Beginning as far back as 1862 this court in Lilly v. Waggoner, 27 Ill. 395 said: ‘The legal presumption is that all persons of mature age are of sane memory, but after inquest found, the presumption is reversed until it is rebutted by evidence that he has become sane. When the transaction complained of occurred before the inquest is had, the proof of insanity devolves upon the party alleging it, but it is otherwise if it took place afterward.’ In Titcomb v. Vantyle, 84 Ill. 371, Vantyle, upon complaint and trial had in the county court before a jury, was found to be insane. The court said: ‘Prior to this finding the legal presumption obtained that Vantyle was sane. The legal presumption is that all persons of mature age are of sane memory. This presumption continues until inquest found. Then, perhaps, the presumption may be regarded as reversed until it is rebutted by evidence that sanity has returned.’ ”

In Mut. Life Ins. Co. v. Wiswell, 56 Kan. 765, it was held that an adjudication of insanity followed by commitment of the patient to an asylum for the insane does not create a conclusive presumption of the continuance of the insanity several years after the discharge of the patient from the asylum.

In the instant case, Lindberg was adjudged insane July 9,1934, and confined to the State Hospital for the insane at Kankakee. He was released on parole in May, 1935, and discharged August, 1935. He executed the notes involved May 17 and 27, 1941. After his discharge he carried on business by making leases, buying stocks, borrowing money from banks, making collateral notes, for a period of more than 5 years before any question of his insanity was raised. During • the 5 years no one questioned his sanity and merely because an order was not entered by the County court, restoring him to his status as a sane person, plaintiff says, is conclusive evidence that he was insane during the 5 years. We cannot agree with this contention. We think the question whether Lindberg was sane or insane at the time he executed the notes, was one of fact. The effect of the remoteness of the adjudication that he was insane is, of course, to be considered. No general rule can be given on the subject of remoteness but each case must depend on its particular circumstances. “The rule of reason” must constantly bo kept in mind. Maher v. N. Y. C. & St. L. R. R. Co., 290 Ill. App. 267; Standard Oil Co. of N. J. v. The United States, 221 U. S. 1; Mertz v. Guaranty Trust Co., 247 N. J. 137; In re Riker, 124 N. J. Eq. 228.

For the'reasons stated, the decree of the Superior court of Cook county is reversed and the cause remanded with directions to hear the case on its merits.

Reversed and remanded with directions.

Hatchett, P. J., and McSurely, J., concur.


text:
    Bankers Life Company of Des Moines, Iowa, and Alabama Company, Appellees, v. City of Chicago Heights, Appellant.
    Gen. No. 42,278.
    Opinion filed March 22, 1943.
    Chris D. Gregory, of Chicago Heights, for appellant.
    Markman, Donovan & Sullivan, of Chicago, for appellees; Henry 0. Nickel, of Chicago.
   Mr. Justice O’Connor

delivered the opinion of the court.

November 2, 1939, plaintiffs, the owners of certain special assessment bonds issued by defendant City, had a decree entered in their favor which found that defendant, August 11, 1933, wrongfully diverted certain of the funds collected by it from the property owners in payment of the special assessments against which plaintiffs’ bonds were issued. The several amounts of the diversions were specifically set forth and it was adjudged and decreed that the defendant City “restore forthwith to Chicago Heights Special Assessment Warrant No. 359, the principal diverted in the unmatured installments as follows: 9th installment maturing 12/31/39, $3,086.80; 10th installment maturing 12/31/40, $3,077.30,” and it was likewise decreed as to special assessment 351. That upon the restoration of these sums, together with any cash on hand received by defendant in payment of the unmatured installments, the defendant City call bonds pursuant to § 43, of the Local Improvement Act, for the purpose of distributing the money to the bondholders. That in the event the restoration was not made before maturity of the bonds, plaintiffs have judgment against defendant City “for the amounts due the respective plaintiffs, together with interest thereon at the rate of 5% per annum from the date pf the diversion, and that this court retain jurisdiction for that purpose.” There were other sums of the same character which the decree found had been diverted, which need not be specifically mentioned here. The moneys were not restored, the bonds were not called, and January 27, 1942, the court, on motion of plaintiffs, entered another decree in which it was recited that the decree had been entered November 2, 1939, ordering the restoration of the special assessment funds by the City, above referred to; the failure ' to restore; and it was decreed that defendant pay plaintiffs their pro rata amounts due as found by the original decree, with interest at 5% per annum from August 11, 1933, the date of the diversion. Defendant appeals.

Defendant contends that since the bonds issued against the 9th and 10th installments “did not mature until December 31, 1939 and December 31, 1940, respectively, and inasmuch as such bonds had attached to them 6% interest coupons to maturity date, interest at 5% on the diverted amounts should be allowed only from and after the date of the maturity of the bonds.” And further, counsel says-that “the decree entered November 2, 1939, found that certain moneys collected in the 9th and 10th installments of both said special assessments had been diverted on August 11, 1933, and ordered the City to restore the amounts diverted forthwith, and, together with the cash on hand in such installments of both said special assessments,' to call bonds pursuant to Section 43 of the Local Im- ■ provement Act, and upon the City’s failure to restore the diverted amounts before maturity, that judgments be entered against the City for the amounts found due ' the respective plaintiffs, together with interest at the rate of 5% per annum from the date of diversion and that the court retain jurisdiction for that purpose.” That the City failed to restore the amounts diverted and counsel then says, “The only question in dispute was the date from which accrued interest at 5% should be computed.” Counsel for plaintiffs agree that this is the only question for decision before us.

The original decree of November 2, 1939, was entered on the report of a master to whom the cause had been referred to take evidence and make up his report with his recommendations. No objections or exceptions were filed to the master’s report and the original decree 'was not appealed from.

Counsel for defendant contends that the City would only be required to pay interest after the bonds matured and Conway v. City of Chicago, 237 Ill. 128, Rothschild v. Village of Calumet Park, 350 Ill. 330 and other authorities are cited. And further that it was “Not until the decree of January 27,1942, did the trial court enter final, conclusive and appealable judgments. ’ ’

We think it would serve no useful purpose to discuss the authorities cited for we are of opinion that the original decree of November 2, 1939, was a final and appealable decree. It found the specific amounts due, the date of the diversion, and decreed the restoration to be made at that time. And it was further decreed that if the restoration was not made before the bonds matured, that judgment be entered against defendant for the amounts diverted “together with interest thereon at the rate of 5% per annum from the date of the diversion.” This decree was based on the finding and recommendations of the master in chancery to which no objections or exceptions were filed and not having been appealed from, the rights of the parties were finally adjudicated. The only thing that remained to be done to authorize the decree of January 27, 1942, was to compute the interest as the original decree provided. No additional evidence was heard, offered or required. The case of Reynolds v. Wangelin, 314 Ill. App. 12, cited by counsel for defendant, is not in point. In that case the court, in referring to Eggleston v. Morrison, 185 Ill. 577, said that a conditional deficiency decree entered in a foreclosure suit in advance of sale is not a final decree for the reason that until the property is sold it could not be ascertained whether there would be a deficiency. But in the instant case, the amount to be restored was specifically fixed as was the date of the diversion and it was de- ■ creed that unless the restoration be made before the bonds were due, the City be adjudged to pay such amounts together with interest from the date of the diversion, at 5%.

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

Decree affirmed.

Hatchett, P. J., and HcSurely, J., concur.


text:
    Raphael Ruiter, Appellee, v. Conrad Knudson, Appellant.
    Gen. No. 42,294.
    Opinion filed March 22, 1943.
    Henry A. Blair, of Chicago, for appellant; Henry A. Blair and Warren E. Blair, both of Chicago, of counsel.
    Edward K. Stackler, of Chicago, for appellee; Louis Swidler, of Chicago, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.

Plaintiff brought an action against defendant to recover for damages to his automobile because of the claimed negligence of defendant in driving defendant’s automobile as a result of which the two machines collided. The claim was for $200. Defendant filed' a counterclaim for damages to defendant’s automobile as a result of the collision. There was a jury trial and apparently at the close of the evidence the court sustained plaintiff’s motion to dismiss defendant’s counterclaim. The jury then returned a verdict finding defendant guilty as charged, assessing plaintiff’s damages at $166.45 and judgment was entered on the verdict. (The report of the proceedings on the trial is not in the record.) Four days afterward, Decernber 22,1941, defendant moved for judgment n. o. v. and for a néw trial. January 28, following, the court overruled defendant’s motion for judgment n. o: v., granted defendant’s motion for a new trial and reset the cause for hearing. February 6, plaintiff moved the court to vacate the order of January 28, allowing a new trial, the motion was sustained and it seemed to be assumed that the court at that time reinstated the judgment and defendant appeals.

The record discloses that when defendant’s motion for a new trial came on for hearing, counsel for defendant said that he had the statement of one of the jurors that while the jury was considering the case one of the jurors knocked on the door and informed the bailiff that they could not agree; that the' bailiff . then told them that the jury could .not be discharged until they agreed upon a verdict. Thereupon the bailiff was called and testified that after the jury had ■been considering the case for about three hours, one of the jurors rapped on the door, the bailiff thereupon opened the door and the juror informed him they could not agree. The bailiff said his instructions from the judge were to keep the jury out until 5 o’clock (it was then 3 o’clock) whereupon the door of the jury room was ■ closed and shortly thereafter a verdict was returned in favor of plaintiff. Afterward two of the jurors were brought into court and testified that the' verdict was their true verdict and that there was no duress or coercion. Thereupon counsel for defendant put in two affidavits made by these two jurors some days defore in which it was stated that the bailiff refused to discharge them and told them they would have to reach a verdict before this could be done. The court thereupon awarded a new trial.

Some time afterward, counsel for plaintiff. filed a verified petition and moved the court to set aside the order granting a new trial and in support of his petition submitted a letter which he had written'each of the jurors and replies from three of them in which they said, in effect, that there was no coercion or duress. The court thereupon set aside the order granting a new trial.

Counsel for defendant say that the record discloses that the verdict was returned under coercion while the opposite view is taken by counsel for plaintiff. Cases are cited and discussed but we think there is no necessity for answering these contentions because the procedure was wholly unwarranted.

Affidavits of jurors, and obviously letters from them, cannot be received for the purpose of setting aside their verdict. Sanitary Dist. v. Cullerton, 147 Ill. 385. In that case the court said: “On the motion for a new trial, appellant offered the affidavits of three of the jurors, touching the conduct of others of the juror's and of the bailiff in charge, tending to impeach the verdict. This court, in an unbroken line of decisions from the case of Forrester v. Guard, Breese, (1 Ill.) 74, is committed to the doctrine that the affidavits of jurors can not be received for the purpose of showing cause for setting asidle the verdict. There may be dicta in some of the cases intimating a contrary rule, but in every case where the question has been before the court, and determined, the principle has been adhered to. Smith v. Eames, 3 Scam. 76; Martin v. Ehrenfels, 24 Ill. 189; Rearden v. Smith, 36 id. 206; Reins v. People, 30 id, 274; Allison v. The People, 45 id. 39; Peck v. Brewer, 48 id. 63; Baldwin v. Smith, 82 id. 162; Reed v. Thompson, 88 id. 247; Niccolls v. Foster, 89 id. 386.” To the same effect is Vol. 2 Thompson on Trials, § 2618.

The judgment of the municipal court of Chicago is affirmed.

Judgment affirmed.

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


text:
    Bankers Life Company, Appellant, v. Chicago Park District and City of Chicago, Appellees.
    Gen. No. 42,303.
    Opinion filed March 22, 1943.
    Maekman, Donovan & Sullivan, of Chicago, for appellant; Henry 0. Nickel, of Chicago, of counsel.
    John O. Bees, of Chicago, for certain appellee; Philip A.'Lozowick and Edwin J. Buckley, both of Chicago, of counsel.

      Barnet Hodes, Corporation Counsel, for certain other appellee; J. Hbrzl Segal, Assistant Corporation ■ Counsel, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.

The Bankers Life Company, a corporation, filed its petition against defendants, the Chicago Park District and the City of Chicago, to compel the Park District and its officials to include in the appropriation and levy ordinances of the Park District for the year 1942, $17,200.44, being the amount of special assessment, principal and interest confirmed against the Park District’s real estate located in Chase Park so that the money could be applied to the payment of special assessment bonds owned by plaintiff and issued in the special assessment proceeding. The City of Chicago having refused to file a petition for writ of mandamus, it was made a party defendant. Both defendants filed motions to dismiss, the motions were sustained, the petition dismissed and plaintiff appeals.

The substance of the allegations of the petition is that in 1928, defendant City of Chicago, brought a proceeding in the county court of Cook county to levy a special assessment for paving and improving North Ashland avenue. The assessment ivas confirmed and the property benefited assessed $347,234. The assessment was payable in 5 installments bearing interest at 5 per cent per annum. Part of the property assessed was known as Chase Park and the assessment confirmed against that property amounted to $10,234.70. Chase Park is one of the small parks of Chicago located on the northwest side and abuts North Ashland avenue on the east. Ashland avenue was under the exclusive control of the city. The improvement was made and the bonds issued, $39,000 of which belonged to plaintiff, the Bankers Life Company. Shortly after the judgment of confirmation was entered, the Board of Local Improvements of the city sent a letter to the Lincoln Park Commissioners who then had charge of Chase Park asking whether the park commissioners desired the work to be done- under the special assessment or whether they would enter into a contract themselves to have the work done abutting Ashland avenue. No reply to the letter was received.

Demand was made by plaintiff upon the city and upon the Park District officials to make the necessary appropriation so that the amount of assessment against Chase Park, $10,234.70, plus interest, totalling $17,200.44, be paid plaintiff. Nothing was done by defendants and the petition in the instant case for a writ of mandamus was filed.

A number of points are made by plaintiff as to why the judgment should be reversed and in reply counsel for the Park District contend (1) that plaintiff in no event could maintain its petition against the Park District but could only mandamus the city to compel it to take proper and necessary steps to collect the assessment; and (2) that “The case is moot and the issuance of the writ would compel the performance of an act manifestly unavailing, fruitless and nugatory.”

Counsel for the defendant city contend that the action is barred by the five year statute of limitations. We think there is no merit in any of these points. Plaintiff made a demand on the city to file a petition for writ of mandamus and it refused to do so. In these circumstances, under § 23 of our Civil Practice Act [§ 23 (par. 147) ch. 110, Ill. Rev. Stat. 1941 (Jones Ill. Stats. Ann. 104.023)] it had the right to name the city as a party defendant. Nor is there any merit in the contention that the question was now moot. City of Cairo v. Campbell, 116 Ill. 305; Board of Supervisors v. The People, 226 Ill. 576. We are also of opinion that the action was not barred by the five year statute of limitations, as counsel.for the city contend. Roberts v. Village of Lyons, 307 Ill. App. 36; The People v. Taylorville San. Dist., 371 Ill. 280.

The principal contention, however, of the Park District is that the assessment against the property of Chase Park was void because the City of Chicago had no jurisdiction to levy the assessment against that property, and in support of this, counsel cite; West Chicago Park Comrs. v. City of Chicago, 152 Ill. 392; Billings v. City of Chicago, 167 Ill. 337 and City of Chicago v. Ridge Park Dist., 317 Ill. 123. We think the contention must be sustained. In the instant case it appears and seems to be conceded that the City of Chicago had exclusive control of Ashland avenue and that the Park District acquired the property of Chase Park, as stated by counsel for plaintiff, “under the provisions of an Act entitled: ‘An Act to enable park commissioners to acquire, improve and maintain additional small parks or pleasure grounds.’ ” (Par. 88 et seq., ch. 105., Ill. Rev. Stat. 1941 [Jones Ill. Stats. Ann. 96.457 et seq.].) That “The record in this case shows that Chase Park was purchased by the Commissioners of Lincoln Park” pursuant to the statute above referred to. •

In West Chicago Park Comrs. [152 Ill. 392] it was expressly held that park property is not exempt from special assessment for local improvements but the jurisdiction to make such assessments is in the Park Commissioners and not in the City of Chicago. In that case the City of Chicago brought a special assess-' ment proceeding to defray the cost of “the erection of nineteen boulevard lamps on California avenue” and the lands embraced in Douglas Park were assessed $128.50. A judgment of confirmation was entered by the county court of Cook county and an appeal taken to the Supreme Court as a test case where the judgment was reversed. The court there went into the several questions fully and in the course of the opinion referred to the case of Scammon v. City of Chicago, 42 Ill. 192 and County of McLean v. City of Bloomington, 106 Ill. 209, which are two of the cases chiefly relied upon in the instant case by counsel for plaintiff. The court said that in the Scammon case “the city-caused an avenue adjacent to Dearborn Park, one of the parks then owned by it, to be improved, and it was held that, as the park, in common with other property in the vicinity, was benefited by the improvement, it was the duty of the city to cause it to be assessed for its just proportion of the expenditure thus incurred. Of course, it was not claimed or suggested that such assessment would create any specific lien upon the land embraced in the park, or that such land could in any event be sold therefor, the assessment being held to .be only the mode of determining the proportion of, the cost of the improvement which the public, — that is, the "city, as the beneficial owner of the park, — should pay. The duty of thus assessing against the city the sum which was to be deemed the public benefit resulting from the enhanced value of the park, was placed upon the same ground upon which the expense of improving the street intersections was properly chargeable against the city as the owner of the abutting and intersecting streets. Also, in County of McLean v. City of Bloomington, 106 Ill. 209, it was held that the public square in Bloomington, belonging to the county of McLean, and on which the county court house was situated, was liable to assessment for a street improvement,, s.uch assessment being treated as the mode of ascertaining the portion of the cost of the public benefit resulting from the improvement which the county, as the owner of the public square, ought to pay. But in neither of these cases, nor in any other of similar import to which our attention is called, was there any question as to the territorial jurisdiction of the city in the matter of street improvements over the property assessed. . . .

“It follows, necessarily, that the assessment in question was made without authority, and that it is consequently void. The practical result of this conclusion will be, that the portion of the cost of street improvements in streets adjacent to or abutting upon the parks under the control of the park board which the public ought to pay, will have to be paid by the city of Chicago instead of the town of West Chicago.”

The Billings case [167 Ill. 337] was a proceeding in the county court of Cook county brought to confirm a special assessment to defray the cost of improving the roadway of West Lake street from May to Paulina street. One of the objections filed was that the property located in Union Park was not assessed nor was a proportionate share of the cost of the improvement assessed against the City of Chicago as public benefits. The court said: ‘ ‘ This property was one of the public parks in Chicago under the control of a board of park commissioners, and under the ruling of this court in West Chicago Park Comrs. v. City of Chicago, 152 Ill. 392, the city of Chicago had no power to levy a special assessment on the property.

“But it is said, if Union Park could not be assessed in this proceeding, the amount which should properly have been levied on Union Park should have been assessed against the city of Chicago as public benefit.” The court said the commissioners in spreading the assessment fixed the amount of public benefits and that under the law as it then was, the finding of the commissioners was conclusive in so far as it fixed the relative amount of the cost of the improvement which was to be respectively borne by the municipality and the owners of the property benefited.

In the Ridge Park District case [317 Ill. 123] the court said: “The city has not the power to specially assess for a street -improvement the lots owned by the appellee for park purposes. (West Chicago Park Comrs. v. City of Chicago, 152 Ill. 392; Billings v. City of Chicago, 167 id. 337.) ”

We think the three cases above referred to are controlling and that in the -instant case the City of Chicago was without jurisdiction to assess the property located in Chase Park, and the assessment attempted to be made is void. A void judgment can be attacked directly or collaterally. Board of Education v. The People, 219 Ill. 83; The People v. Ford, 289 Ill. 550; The People v. Owens, 231 Ill. 311.

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

Judgment affirmed.

Hatchett, P. J., and HcSurely, J., concur.


author: Mr. Justice O’Connor Matchett, P. J., and McSurely, J.,

text:
    Julius Crisler, Administrator of Estate of Donald Crisler, Deceased, Appellant, v. George Zahart, Appellee.
    Gen. No. 42,331.
    Opinion filed March 22, 1943.
    Cassels, Potter & Bentley, of Chicago, for appellant; L. H. Vogel and Anthony S. Ras, both of Chicago, of counsel.
    Beverly & Klaskin, of Chicago, for appellee; Samuel T. Klaskin, of Chicago, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.

Plaintiff, as administrator of his deceased son’s estate, brought suit under the statute to recover for the wrongful death of his son claimed to have been caused by the negligence of defendant. There was a jury trial, a verdict and judgment in defendant’s favor and plaintiff appeals.

The record discloses that about 4 o’clock on the afternoon of February 19, 1940, Donald Crisler, a boy 8 years and 11 days old, and Robert Fields, his cousin, then a little over 7 years old, were crossing State street from east to west on the south crosswalk at 41st street. The Crisler boy who was a few steps ahead of the Fields boy, was struck and instantly killed by a Ford truck being driven south by defendant. There is some evidence to the effect that the front part of the truck struck him, while the further evidence tends to show that he was struck by the left side of the truck.

There are two lines of street cars in State street. The motorman of a southbound street car, called by plaintiff, testified that quite a distance north of 41st street he stopped his street car to let a few people get off the front. platform; that he then started up and was going about 30 miles an hour when defendant’s southbound truck passed him to the right or west; turned to the left and straddled the west rail; that he increased the speed of the street car but the truck drew away from him and was going from 40 to 45 miles an hour and was a considerable distance ahead of him when it suddenly stopped near the south crosswalk of 41st street after having veered toward the right or west. That he saw them take the deceased from near the rear end of the truck.

Defendant who was driving the truck, took the witness stand but on objection, was not permitted to testify. While the evidence is not clear, we think it appears that John Coley was with him in the truck at the time and there is evidence that they were unable to locate Coley at the time of the trial, which began September 25, 1941, a year and 7 months after the accident. The date when the witness testified that he was unable to locate Coley was not mentioned.

Plaintiff contends (1) that the court erred in admitting what is designated defendant’s Exhibit 5, which purports to be a report made by an officer of the Accident Prevention Division of the Police Department shortly after the accident occurred and is in the form of questions and answers put to Robert Fields. Robert Fields had been called by plaintiff and testified and when defendant was putting in his evidence, a policeman was called and he identified the document. Plaintiff’s objection to the introduction of this document was that it was being introduced for the purpose of impeaching the Fields boy and it had not been presented to the boy when he was on the witness stand. (2) That the Judge erred in commenting on the fact that defendant could not testify under the law when he said, in explaining to the jury the reason that defendant could not testify: “So the jury will understand, when death seals the lips of the deceased, he is unable to be in court, and the law seals the lips of the other party because after death that closes it up. It is unfortunate, but that is the law, so that the truck driver will not be able to testify.” And (3) plaintiff contends that the verdict is against the manifest weight of the evidence. We think the latter contention must be sustained and since there must be a retrial, we refrain' from discussing the evidence in detail except to say that it appears there was no other traffic in the street at the time, the visibility was good and the evidence of the motorman is to the effect that the truck was being driven at from 40 to 45 miles an hour. This shows that defendant was guilty of negligence which proximately contributed to the fatal accident, and under the law and the evidence, we think it cannot be said that the deceased boy did not exercise the degree of care for his own safety.

The other two errors complained of can easily be obviated on the retrial. On the question of the admissibility of the exhibit see Koch v. Pearson, 219 Ill. App. 468.

Before disposing of the appeal we think we ought to say that counsel for plaintiff complain of the giving of two instructions at defendant’s request which they argue were erroneous in view of the admission of defendant’s Exhibit 5. In reply counsel for plaintiff say that under a number of holdings of the Appellate Court it has been said that it is not proper practice to refer in the brief to the instructions by number only, but that they should be set out in full, followed by argument, pointing out the errors complained of. There are a number of Appellate Court cases which use this language in substance but in none of them was the judgment disturbed on that ground. In Zorger v. Hillman’s, 287 Ill. App. 357, we refer to a number of Appellate Court decisions in which similar language was used, but continuing we said: “we have examined in the abstract the instructions of which complaint is made and find no reversible error in this respect.” We think we ought to now say that it is not necessary to set out the instructions in full in the brief, but it is sufficient to point to the abstract where the particular instructions appear. Of course the errors complained of must be specifically pointed out in the' argument.

The judgment of the circuit court of Cook county is reversed and the cause remanded.

Reversed and remanded.

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

concur.

We have examined that part of the foregoing opinion and agree with what is there said — that objections to instructions may be urged although they are not set out in full in the brief.

John J. Sullivan, P. J., Second Division, ,

Hugo M. Friend, J.,

Kickham Sganlan, J.,

Joseph Burke, P. J., Third Division,

Oscar Hebel,-J.,

Boger J. Kiley, J.


author: Presiding Justice Culbertson.

text:
    Ella Freeman, Appellee, v. Leader Mercantile Company, Appellant.
    opinion filed March 2, 1943.
    Lashly, Lashly, Miller & Clifford, Kramer, Campbell, Costello & Wieehert and Norman J. Gundlach, for appellant;
    Whitnel, Browning, Listeman & Walker and Manuel M. Wiseman, for appellee;
    Altman & Bremser, of counsel.
   Opinion by

Presiding Justice Culbertson.

‘‘Not to be published, in full.”


text:
    Roy Davis, Appellant, v. Commercial Fuel and Service Company and Harold Rothe, Appellees.
    opinion filed March 2, 1943.
    Walker, for appellant; Pope & Driemeyer, for appellees.
   Opinion by

Presiding Justice Culbertson.

“Hot to be published in fuU.”


text:
    James Butler and Fred Butler, Appellees, v. Dr. James H. Lewis, Appellant.
    opinion filed March 2, 1943.
    C. A. Whiteside, for appellant; Alpheus Gustin, for appellees.
   Opinion by

Presiding Justice Culbertson.

“Hot to be published in full.”


author: Justice Bristow.

text:
    Henry Pettersson, Appellee, v. Charlotte Bornemann, Appellant.
    opinion filed March 2, 1943.
    Edward W. Tobin and Farmer, Klingel & Baltz, for appellant;
    McGlynn & McGlynn and Felsen & McMurdo, for appellee.
   Opinion by

Justice Bristow.

“Not to be published in full.”


author: Justice Stone.

text:
    Esther Harper, Administratrix of Estate of Andrew Harper, Deceased, and Andrew J. Harper, Appellees, v. Guy A. Thompson, Trustee, Appellant.
    opinion filed March 2, 1943.
    Leon A. Colp and Whitnel, Browning, Listeman & Walker, for appellant;
    T. T. Railey, of counsel;
    D. L. Duty and Chas. D. Winters, for appellees.
   Opinion by

Justice Stone.

“Not to be published in full.”


text:
    Henry Gunn, Appellee, v. J. R. Britt, Appellant.
    opinion filed March 2, 1943.
    Donald A. Miller, for appellant; J. Kelly Smith, for appellee.
   Opinion by

Justice Stone.

“Not to be published in full. ’ ’


text:
    People of the State of Illinois for use of Pope County, Appellants, v. Harvey G. McCormick et al., Appellees.
    opinion filed March 2, 1943.
    J. Ado Whiteside, State’s Attorney, and S. S. DuHamel, for appellants;
    Chas. Durfee, Grover E. Holmes and Scerial Thompson, for appellees.
   Opinion by

Justice Stone.

“Not to be published in full.’’


text:
    Viola M. Stevens, Appellant, v. Johnny Moore, Trading as Johnny Moore Trucking Company, Appellee.
    opinion filed March 2, 1943.
    Eugene White and Rolla Babcock, for appellant;
    Mills, Umfleet & Mills, for appellee;
    A. N. Tolliver, of counsel.
   Opinion by

Justice Stone.

“Not to be published in full.”


author: Presiding Justice Burke.

text:
    Peter Stephens, Appellee, v. Railway Express Agency, Inc., Appellant.
    Gen. No. 42,327.
    opinion filed March 10, 1943.
    John A. Dill, for appellant;
    Emil Seerup, of counsel;
    Benjamin J. Schultz, for appellee.
   Opinion by

Presiding Justice Burke.

“Not to be published in full.”


text:
    Nicie Mae Nichols and Charles Johnson, Appellees, v. Commercial Truckers, Appellant, and Blue Ribbon Brew Distributing Company, Defendant.
    Gen. No. 42,427.
    opinion filed March 10, 1943.
    W. Harold Rutherford and Sidney Mintz, for appellant;
    Richard E. Keogh, of counsel;
    Bernard J. Hecker and A. A. Glaubach, for appellees.
   Opinion by

Presiding Justice Burke.

“Hot to be published in full.”


author: Justice Hebel.

text:
    Ralph C. McCoy, Appellant, v. Hy-G Corporation, Appellee.
    Gen. No. 42,224.
    opinion filed March 10, 1943.
    Ralph C. McCoy, pro se;

    Ode L. Rankin, of counsel;
    Herbert P. Geisler, for appellee.
   Opinion by

Justice Hebel.

“Hot to be published in full.”


text:
    Charlotta Rankin, Appellee, v. Eugene L. Race, Surviving Partner of A. P. Rankin and Company, Appellant.
    Gen. No. 42,273.
    opinion filed March 10, 1943.
    Prank Hall Stephens, for appellant;
    Robert P. Kolb, for appellee.
   Opinion by

Justice Hebel.

“Not to be published, in full.’’


author: Presiding Justice Matchett.

text:
    Bismarck Hotel Company, Appellee, v. John F. Tyrrell et al., Defendants. John F. Higgins and Myer H. Gladstone, Appellants.
    Gen. No. 42,274.
    opinion filed March 22, 1943;
    rehearing denied April 5, 1943.
    Myer H. Gladstone and John P. Higgins, pro se;

    Victor C. Winnen, for appellee.
   Opinion by

Presiding Justice Matchett.

“Not to be published in full.’’


text:
    People of the State of Illinois ex rel. Albert A. Cibic, Appellant, v. Joseph Geary et al., Appellees.
    Gen. No. 42,322.
    opinion filed March 22, 1943.
    Franklin Baber, for appellant;
    Barnet Hodes, Corporation Counsel, for appellees;
    James A. Velde, Fred V. Maguire, Carl H. Lundquist and L. Louis Karton, Assistant Corporation Counsel, of counsel.
   Opinion by

Presiding Justice Matchett.

"Not to be published, in full.”


text:
    Louis Kulesza and Frank Heynar, Appellants, v. Alliance Printers and Publishers, Inc., et al., Appellees.
    Gen. No. 42,336.
    opinion filed March 22, 1943.
    Harold O. Mulks, for appellants;
    Casimir E. Midowiez and Ewart Harris, for certain appellees;
    Mitchell Kilanowski, for certain other appellees.
   Opinion by

Presiding Justice Matchett.

"Not to be pubUshed in fuU.”


author: Presiding Justice Hatchett.

text:
    Elsie B. Spiegel, Appellee, v. Toby Provus and Isadore Provus et al., Appellants.
    Gen. No. 42,345.
    opinion filed March 22, 1943.
    Ross, Berchem & Schwantes, for appellants;
    Sidney E. Levy and Joseph D. Irose, for appellee.
   Opinion by

Presiding Justice Hatchett.

“Not to bo published in full.”


author: Justice O’Connor.

text:
    Eugene S. Ferrier et al., Appellants, v. Vincent J. Sheridan, Appellee.
    Gen. No. 42,312.
    opinion filed March 22, 1943;
    rehearing denied April 5, 1943.
    Orrico & Rosenzweig, for appellants;
    Joseph B. Gilbert, of counsel;
    Owens & Owens, for appellee.
   Opinion by

Justice O’Connor.

“Not to be published in fuU.”


author: Justice 0 ’Connor.

text:
    Michael J. Norton, Appellant, v. Normal Park Presbyterian Church, Appellee.
    Gen. No. 42,318.
    opinion filed March 22, 1943;
    rehearing denied April 5, 1943.
    Norman Crawford, for appellant;
    Wham & O’Brien, for appellee;
    Benjamin Wham, Prank T. O’Brien and Lionel A. Mincer, of counsel.
   Opinion by

Justice 0 ’Connor.

“Not to be published in full.”


text:
    Peter Bass and Edward P. Brown, Appellants, v. Stanley Wawrzonek et al., Appellees.
    Gen. No. 42,343.

      "opinion filed March 22, 1943.
    Martin M. Gross and B. Peleehowicz, for appellants;
    Harry A. Biossat and Eli Herman, for appellees.
   Opinion by

Justice O’Connor.

“Not to be published in full.’’


text:
    Samuel Rosenfeld, Appellee, v. Chicagoan, Inc., Appellant.
    Gen. No. 42,352.
    McSurely, J., dissents.
    opinion filed March 22, 1943;
    rehearing denied April 5, 1943.
    Samuel Levin and Stanley Watson, for appellant;
    Levinson & Rosenfeld, for appellee;
    Louis Rosenfeld, of counsel.
   Opinion by

Justice O’Connor.

“Not to be published in full.’’