text:
    Victoria Petta, Originally Suing as Victoria Patti, Appellant, v. Frank Petta, Originally sued as Frank Patti, Appellee.
    Gen. No. 42,248.
    Heard in the second division of this court for the first district at the April term, 1942.
    Opinion filed February 10, 1944.
    Sol I. Dvorkin and Morris Aronson, both of Chicago, for appellant.
    Siegan & Rubinoff, of Chicago, for appellee; Harold A. Siegan and N. Arthur Rubinoff, both of Chicago, of counsel.
   Mr. Justice Scanlan

delivered the opinion of the court.

Victoria Petta filed a complaint against her husband, Frank Petta, charging desertion and adultery and asking for separate maintenance. The husband filed an answer to the complaint, also a counterclaim, in which counterclaim he charged desertion and asked that the marriage be dissolved. Plaintiff appeals from certain parts of the decree entered in the cause. Defendant has not appealed from any part of the decree and he here defends the decree.

The complaint charges that defendant, without any reasonable cause and without fault on the part of plaintiff, deserted her continuously from 1938 to the date of the filing of the complaint, January 5,1940. It also charges that defendant, since August 18, 1938, has been living in an open state of adultery with one Mary Doe. The answer of defendant denies the "allegations of the complaint in reference to desertion and adultery and in his counterclaim he charges that plaintiff deserted him without any reasonable cause, and he asks that the marriage between the parties be dissolved.

The record contains no report of proceedings, and this appeal is based upon the common law record. The following decree was entered:

“This cause coming on to be heard upon the complaint, answer, counterclaim, and answer to counterclaim, heretofore filed, both parties being present in open court, and being respectively represented by Counsel, and the court having heard witnesses and testimony submitted on behalf of each of said parties, and having heard the arguments of Counsel and being fully advised in the premises, Finds:

“1. That this Honorable Court has jurisdiction of the subject matter and of the parties hereto.

“2. That the plaintiff, Victoria Petta has proved the allegations of her complaint pertaining to allegations of adultery and desertion as therein contained.

‘ ‘ 3. That the defendant and counter-plaintiff Frank Petta has not proved the allegations in his counter-complaint.

“4. That the parties hereto, namely Victoria Petta and Frank Petta are owners as joint tenants of the premises commonly known as 912 Sedgwick Street, and 922 Sedgwick Street, Chicago, Illinois and Legally described as follows: [Here follows description.]

“5. That George Petta, minor child of the parties hereto, has liberated and emancipated himself from further parental care and is no longer dependent upon his parents for support and care.

“It Is Therefore Ordered, Adjudged and Decreed as follows:

“a) That the counter-complaint of Frank Petta in said cause be dismissed.

“b) That the complaint of Victoria Petta for Separate Maintenance be sustained.

“c) That Frank Petta forthwith and hereby deliver unto Victoria Petta all his right title and interest in and to the premises known as 912 N. Sedgwick Street and legally described as, [here follows description]. That said Frank Petta remove and pay any and all liens and encumbrances that exist on said parcel of real estate except the existing mortgage and unpaid taxes, and that he especially remove the clouds on title to said parcel by reason of a Sales Tax Lien in favor of the State of Illinois and a Surety Bond to the United States, now therein, within 120 days from date hereof.

“d) That Victoria Petta, forthwith and hereby deliver unto Frank Petta all her right title and interest in and to the premises knoivn as 922 N. Sedgwick Street and legally described as, [here follows description].

“e) That the defendant Frank Petta pay unto Victoria Petta the sum of $50.00 as additional attorneys and solicitors fees due to her attorneys Sol I. Dvorkin and Morris Aronson for services rendered by them on the Plaintiff’s behalf payable in equal monthly installments within 30 days and 60 days from the date hereof.

“f) That the Plaintiff Victoria Petta and Minor Child George Petta be and they are hereby denied any and all right to alimony, support money, dower or coverture of and from the defendant Frank Petta.

“It Is Hereby Further Ordered Adjudged and Decreed, that the Plaintiff Victoria Petta and the Defendant Frank Petta both be and each of them is hereby enjoined from in any way interfering with the actions of the other.” (Italics ours.)

Plaintiff appeals, inter alia, from that part of the debree that we have italicized and contends that in a separate maintenance suit in this State the trial court is without power to adjudicate the property rights of the parties, and calls our attention to the fact that neither plaintiff, in her complaint, nor counterplaintiff, in his counterclaim, asked for an adjudication of the property rights of the parties. Plaintiff concedes that had the prayer of the counterplaintiff for a divorce been allowed there would be no question that the property rights of the parties could have been adjudicated, but that the decree dismissed the countercomplaint and sustained the complaint for separate maintenance.

Defendant contends that “in a suit for separate maintenance, the Court may adjudicate the property rights of the parties in the same action.”

Many years ago our Supreme Court, in Ross v. Ross, 69 Ill. 569, stated the reason for the passage of the Separate Maintenance Act of 1867 and the purposes of the Act in the following language (pp. 571, 572):

“Notwithstanding the common law imposed the duty upon the husband to provide the wife with necessaries suitable to their condition in life, and the obstacles which, from special circumstances, sometimes lay in the way of its enforcement, still, courts of equity, though recognizing the common law duty, almost universally refused to take jurisdiction and enforce specific performance of it, but left the wife to her common law remedy. . . .

“Now, it was the inadequacy of the common law remedy, and the refusal of courts of equity to take jurisdiction for the enforcement of the husband’s duty to furnish support and maintenance for his wife, that induced the legislature to pass the act of 1867, providing that married women who, without their fault, are living separate and apart from their husbands, may have their remedy in equity, in their own respective names, against their respective husbands, for a reasonable support and maintenance, to be allowed with reference to the condition of the parties in life and the Circumstances of the respective cases.

“In construing this act, the court must have regard to the common law duty or obligation of the husband to support and maintain his wife, the remedy afforded by that law, its defects and inadequacy under many circumstances, and the remedy proposed by the statute, and it is the duty of the court to so construe the act as to suppress the mischief and advance the remedy. The object of the statute is apparent on its face. It is to confer jurisdiction upon the court of equity to enforce the common law duty of the husband to furnish support and maintenance for the wife suitable to the condition of the parties in life, upon her application, in all cases where she is living separate and apart from him without her fault, or, in other words, under such circumstances as would enable her to avail herself of the common law remedy of obtaining such support upon the credit of her husband.”

In McAdams v. McAdams, 267 Ill. App. 124, the First Division of this court held that the Separate Maintenance statute does not grant to the trial court the power to settle property rights between the parties.

In Pearsons v. Pearsons, 282 Ill. App. 92, in passing upon the question now before us, we stated (p. 108): “In a suit for separate maintenance the court is without power to adjudicate the parties’ property rights unrelated to the statutory object and purpose of the proceedings. (Wolkau v. Wolkau, 158 Ill. App. 341, 343, 344; McAdams v. McAdams, 267 Ill. App. 124, 130, 132, 133; Spohr v. Kraus, 197 Ill. App. 348, 351, 352.) The divorce statute gives power to settle property rights where a divorce is allowed, but the separate maintenance statute grants no such power. The purpose of the separate maintenance act (1933) was to provide for married women ‘who, without their fault, now live or hereafter may live separate and apart from their husbands, ... a reasonable support and maintenance while they so live or have so lived separate and apart.’ ” We sustained the contention of the defendant in that case that the trial court erred in adjudging in the decree that the plaintiff retain her dower rights in and to all defendant’s real estate which he owned at the time of the marriage.

Defendant in the instant case calls our attention to the fact that in Glennon v. Glennon, 299 Ill. App. 13, we held that in a separate maintenance proceeding the plaintiff may have her property rights adjudicated in such proceeding. Our ruling in that case was based upon the assumption that Decker v. Decker, 279 Ill. 300, was a case directly in point, wherein it was held that the husband and wife in a separate maintenance suit are entitled to have their equities settled in the property held by both, jointly and separately. However, a careful analysis of the Decker case satisfies us that it cannot be considered an authority that decides the question before us. In the Decker case the plaintiff, in her bill for separate maintenance, asked for a settlement of the property rights of the parties and for an accounting between them. The defendant in his answer (see p. 303) not only did not question the right or power of the court to decree a settlement of the property rights of the parties and an accounting, but he apparently was satisfied to have said rights determined in that proceeding, and during the trial both parties offered evidence in support of their respective claims. The defendant did not appeal from the decree and the complainant, who appealed, raised only four questions (pp. 307, 308): <£ (1) The court erred in not awarding to her the amberola, an Edison musical instrument; (2) in refusing to decree that appellee transfer to her the seven shares of bank stock in his name, purchased with her funds; (3) in failing to set aside the deed to appellee to the Star Theater building ; and (4) in not decreeing further specific alimony for her maintenance and support.” The Supreme court refused to set aside the deed to the Star Theater building because the evidence sustained the decree that the husband was equitably entitled to hold it as his property because his money paid for it. It clearly appears that the question as to whether the trial court had the power to settle the property rights of the parties was not raised in the trial court nor the Supreme Court, and it is equally clear that both parties were satisfied to have their property rights settled in that proceeding. Defendant in the instant case relies upon the following language in the opinion (pp. 308, 309):

“. . . It is also a rule of equity in such cases that the wife shall not be put in a worse condition by reason of her marriage, the dissolution of which has been caused by her husband’s willful misconduct. 'Equity and good conscience require that the husband shall not profit by his own wrong, and that restitution shall be made to the wife of the property which she brought to the husband, or a suitable sum in lieu thereof be allowed out of his estate, so far as may be done consistently with the preservation of the rights of each, and also that a fair division shall be made, taking into consideration the relative wants, circumstances and necessities of each, of the property accumulated by their joint efforts and savings.’ (Cole v. Cole, 142 Ill. 19.) If the wife has no claim for separate maintenance or - alimony except the existence of the marriage relation and the husband’s fault, an allowance should be paid in money at stated intervals. If either or both have equitable rights in a piece of real estate or a chattel, other than through the marriage relation, by reason of their having purchased or contributed to the purchase or accumulation thereof, the court may decree equities to both in such property or award it to the one who purchased it outright or award other property in lieu thereof. (Champion v. Myers, 207 Ill. 308; Robbins v. Robbins, 101 id. 416; Wilson v. Wilson, 102 id. 297.) The sum and substance of the various holdings is that the wife shall not merely have what necessity demands hut what complete justice requires, and that both the husband and the wife are first entitled to have their equities settled in the property held by both, jointly and separately. If all the property, or any part thereof, came to them by the sole efforts of the one or the other, then such party is entitled to have that property by the decree of the court, or some property the equivalent thereof, or money of the value thereof.” (Italics ours.)

Each of the four cases cited by the court in the aforesaid language involved a divorce proceeding, and the language used, part of it quoted from one of the cases, was clearly applicable to divorce proceedings, but in our judgment it should be considered as mere obiter dictum as applied to a separate maintenance proceeding. In the instant case, had the parties agreed to have their property rights determined, a different question would have been presented.

The instant defendant insists that Spalding v. Spalding, 361 Ill. 387, sustains the text in Decker v. Decker, supra. In the Spalding case the wife, in her cross-bill, asked for separate maintenance, but later the trial court granted her leave “to amend her cross-bill by striking out the prayer for separate maintenance and substituting therefor a prayer for divorce.” (p. 389.)

In McFarlin v. McFarlin, 384 Ill. 428, 430, the court said:

“Courts of equity have no inherent power in cases of divorce. The jurisdiction of such courts to hear and determine divorce matters is conferred only by statute. While such courts may exercise their powers within the limits of the jurisdiction conferred by the statute, the jurisdiction depends upon the grant of the statute and not upon general equity powers. Johnson v. Johnson, 381 Ill. 362; Smith v. Smith, 334 Ill. 370..” While the foregoing statement refers only to the divorce statute, the principles announced apply with equal force to the Separate Maintenance Act. As the Separate Maintenance Act does not grant the courts the power to determine property rights in proceedings brought under the Act the courts cannot enlarge the power given by resorting to their general equity powers in proceedings brought under the Act.

The argument that it is unfair that a wife who seeks separate maintenance, only, cannot have her property rights settled in that proceeding, might properly be made to the legislature, but not to the courts.

In McAdams v. McAdams, supra, the court aptly states (pp. 131, 132):

“That the proceeding for separate maintenance is essentially different from a proceeding for divorce appears from an examination of the respective statutes. The fundamental difference is that a decree of divorce sunders and ends the marriage relationship. A decree for separate maintenance continues the marriage relationship. The purpose of the separate maintenance statute seems to have been to grant to married women living separate and apart from their husbands without fault an action in equity which would remedy the defects of the common law in that regard. Ross v. Ross, 177 Ill. App. 542. A complainant who has secured a decree of separate maintenance may merely by resuming marital relations abrogate the decree. Newman v. Newman, 240 Ill. App. 193. The divorce statute gives power to settle property rights only in case a divorce is awarded. The separate maintenance statute does not mention or grant such power. The omission is significant and persuasive.”

But it must be remembered that a wife, living apart from her husband, can have their property rights settled, in an apt proceeding. In Kartun v. Kartun, 347 Ill. 510, the wife was living separate and apart from her husband although she "never filed a suit for separate maintenance, and it was held that in a bill she filed against her husband for partition of certain real estate and for an accounting she was entitled to relief.

After a careful consideration of the instant contention raised by plaintiff we have reached the conclusion that the contention is a meritorious one and that the trial court erred in incorporating in the decree the parts that we have italicized.

Plaintiff contends that the trial court failed to grant her separate maintenance. Defendant answers this contention with the statement that the chancellor gave her certain property which he considered would give her an income sufficient to support her and at the same time she would have the right to occupy one of the flats in the property as her home, and that it was for this reason that he denied her support money. It is a sufficient answer to this statement to say that in view of our holding that the chancellor had no power to settle the property rights of the parties it will now be necessary for the trial court to pass upon the question as to what support money, if any, plaintiff should be allowed.

Plaintiff has heretofore made a motion to strike certain parts of defendant’s brief upon the ground that the matters in the said parts are not based upon the record, which motion was reserved to hearing. The motion is a meritorious one and we feel impelled to say that we have seldom, if ever, had before us a case wherein one of the parties so boldly stated alleged facts and happenings that were not supported by the record, but it might delay the determination of this cause to allow the motion at this time, and it is for that reason only that- we deny it.

The decree of the superior court of Cook county is affirmed save in the following parts: That part of the decree which we have italicized, is reversed; also that part of the decree denying plaintiff any or all right, to alimony, support money, dower or coverture of and from the defendant, Frank Petta, is reversed; and the cause is remanded for the sole purpose of determining what support and maintenance money, if any, plaintiff should be allowed.

Decree affirmed in part, reversed in part, and remanded with directions.

Friend, P. J., and Sullivan, J., concur.


source: Caselaw Access Project

author: Mr. Justice Sullivan

license: Public Domain

text:
    Compass Sales Corporation, Appellant, v. National Mineral Company, Appellee.
    Gen. No. 41,771.

      Heard in the second division of this court for the first district at the June term, 1941.
    Opinion filed February 10, 1944.
    Rehearing denied March 9, 1944.
    Jess S. Raban, of Chicago, for appellant; Ernest C. Renief, of Chicago, of counsel.
    Adolph Allen Rubinson, of Chicago, for appellee.
   Mr. Justice Sullivan

delivered the opinion of the court.

This is an action at law brought by plaintiffs, Compass Sales Corporation and Morris I. Pickus, against defendants, National Mineral Company and Louis P. Stein, seeking to recover for the breach of an alleged oral contract under the terms of which plaintiffs were to act as sales counselors for defendant company during the year 1937 for a stipulated fee of $5,000. Plaintiffs filed an amended complaint which included a quantum meruit count, which count was withdrawn during the course of the trial. On plaintiffs’ motion at the close of all the evidence the cause was dismissed as to plaintiff, Morris I. Pickus, and defendant, Louis P. Stein. At the close of all the evidence National Mineral Company, the remaining defendant, presented a written motion for a directed verdict and the court reserved its ruling thereon. The cause was then submitted to the jury which returned a verdict finding the issues in favor of plaintiff and against defendant and assessing plaintiff’s damages at $1,895.82. Neither party made a motion for a new trial or in arrest of judgment. Plaintiff filed a motion for judgment for $5,000 notwithstanding the verdict. The following judgment order was entered by the trial court: “Ordered that the motion of defendants for a directed verdict at the end of all the evidence be sustained, the verdict of the jury set aside, and judgment entered in favor of defendants; that motion of plaintiff for judgment, notwithstanding the verdict filed October 18, 1940, be overruled.” Plaintiff appeals from said judgment order. It will be noted that the judgment order in so far as it pertains to the judgment in favor of defendant is not in proper form but no question is raised by plaintiff in that regard.

The amended complaint alleged in substance that on December 18, 1936, defendant National Mineral Company through Louis P. Stein and Gerald G. Gidwitz, its president and secretary, respectively, entered into an oral contract with plaintiff Compass Sales Corporation, under the terms of which the latter was to act as sales counselor for the defendant company during 1937 for a fee of $6,000, to be paid in instalments of $500 per month in advance; that in keeping with its employment plaintiff corporation entered upon its duties January 1, 1937, and during the year 1937 acted as sales counselor for defendant in a scientific, practical, efficient and faithful manner and rendered all services required; that on February 11,1937, pursuant to a written memorandum, plaintiff’s fee for the year 1937 was reduced to $5,000, payable $416.67 monthly as billed, which amount defendant agreed to pay; that during the year 1937 plaintiff demanded payment of the monthly instalments and upon completion of the services required made demand upon defendant for payment of the aforesaid sum of $5,000, which defendant failed and refused to pay.

Defendant’s answer denied the existence of a contract between the parties as alleged in the amended complaint and also denied all the other material allegations thereof.

Plaintiff contends that the trial court erred in considering and allowing defendant’s motion for a directed verdict made at the close of all the evidence and upon which ruling had been reserved, because said motion was not accompanied by a written instruction and because the court ruled on same after the jury had separated. The record discloses that no written instruction accompanied defendant’s motion for a directed verdict and that the trial court ruled on said motion after the jury had separated. In so far as we have been able to ascertain neither of these questions has been heretofore presented to or considered by a court of review in this or any other jurisdiction.

In support of its contention that the trial court had no authority to even consider defendant’s motion for a directed verdict made at the close of all the evidence and upon which ruling had been reserved, because said motion was not accompanied by a written instruction, plaintiff cites West Chicago St. R. Co. v. Foster, 175 Ill. 396, and several other decisions of our Supreme Court. The rule which plaintiff urges precluded the trial court from considering the defendant’s motion for a directed verdict because a written instruction was not presented with said motion is stated in the Foster case, at pp. 377 and 378:

“Error is assigned by appellant on the refusal of the trial court to allow its motion, made at the close of plaintiff’s evidence, to take the case from the jury, which motion was renewed at the close of all the evidence. The record discloses that the motions, were made as alleged, but neither of them was accompanied by an instruction. Such condition of the record presents no legal question for review in this court as to the refusal of the trial court to grant such motion. Where a motion is made at the close of plaintiff’s evidence to take a case from the jury and direct a verdict for the defendant and is renewed at the close of all the evidence, a written instruction directing such verdict must be presented with the motion. - When a written instruction is not so presented and error is assigned on the refusal of the court to give the instruction this court has not before it any legal question for determination. ’ ’

Thus the Foster case clearly enunciates the rule that a defendant will not be permitted to assign error in a court of appellate jurisdiction on the refusal of the trial court to allow his motion for a directed verdict made at the close of all the evidence, if his motion for a directed verdict is not accompanied by a written instruction, because “when a written instruction is not so presented and error is assigned on the refusal of the court to give the instruction this court has not before it any legal question presented for determination.” This was the rule prior to the decision in the Foster case, and there has been no deviation from it. The situation in the instant case is entirely different from that presented in the Foster case and, as will be •hereafter shown, the question as to whether or not defendant’s motion to direct was accompanied by a written instruction was not involved in the trial court’s determination, after the verdict of the jury had been returned, of defendant’s motion for a directed verdict, upon which it had reserved its ruling. There is no question here of a defendant attempting to assign error in a reviewing court because of the trial court’s refusal to allow his motion for a directed verdict made at the close of all the evidence. In our opinion plaintiff’s instant contention is merely an attempt to invoke an inapplicable rule as a bar to a new method of procedure established by the Civil Practice Act. Subsection 3a of section 68 of said act (par. 192, ch. 110, Ill. Rev. Stat. 1941 [Jones Ill. Stats. Ann. 104.068]) provides as follows:

-“Hereafter, in all civil actions at law, in courts of record, if either party shall at the close of the testimony, and before the case is submitted to the jury, request the court for a directed verdict in his favor, the court may reserve his decision thereon, and submit the case to the jury under proper instructions as to the law applicable to such case. After the case is thus submitted to the jury, or after receiving and recording the verdict of the jury and before judgment is entered in said case, the court may hear arguments of counsel for and against said request, but in all such cases where a verdict is rendered, the'court shall receive and record such verdict of the jury as rendered. If no verdict is returned, the court may in any event proceed to hear and consider arguments of counsel for and against such request. If the court shall then decide as a matter of law that the party requesting the directed verdict was entitled thereto, the court shall enter its decision on the record and order judgment in accordance with such decision, notwithstanding the verdict entered, or where no verdict is returned, order judgment as if the requested verdict had been directed, and the party against whom such judgment is entered shall have an exception to such action of the court as a matter of course. If such request is denied, an exception in favor of the party making such request shall follow as a matter of course.”

The procedure outlined in the foregoing section established a new rule of practice in this State and its purpose was to permit the trial judge to take the time necessary to render a proper decision on a motion for a directed verdict without delaying the trial. (Mc-Caskill, Illinois Civil Practice Act Annotated, p. 166.) After verdict, a motion for a directed verdict made at the close of all the evidence upon which the court reserves its decision, becomes in effect a motion for judgment notwithstanding the verdict and it will be noted that the statute provides that, if after a hearing on said motion subsequent to the return of the jury’s verdict, ‘ ‘ the court shall then decide as a matter of law-that the party requesting the directed verdict was entitled thereto, the court shall . . . order judgment in accordance with such decision, notwithstanding the verdict.”

A mere reading of the section of the Civil Practice Act under consideration indicates that it is concerned with a motion for a directed verdict made at the close of all the evidence and not with a written instruction to direct. After a verdict has been returned and recorded, no possible determination by the trial court of the motion to direct, upon which its ruling had been reserved, could be affected by the failure of the party requesting the directed verdict to present a written instruction to direct with his motion to direct. Since, after the verdict had been returned and recorded, defendant’s motion for a directed verdict made at the close of all the evidence and upon which decision had been reserved must necessarily have been considered in the nature of a motion for judgment notwithstanding the verdict, it became immaterial that said motion was not accompanied by a written instruction. Certainly it cannot be held, in view of the new method of procedure established by the Civil Practice Act giving the trial court the right to reserve its ruling on a motion for a directed verdict made at the close of all the evidence, that defendant’s failure to present a written instruction with its motion to direct nullified said motion to the extent that the court could not reserve its ruling thereon and decide said motion after the verdict of the jury had been returned and recorded. There is no merit in plaintiff’s instant contention.

It is of course the 'better practice to present a written instruction to direct" a particular verdict with a motion for a directed verdict, so that all rights of the proponent of the motion may be protected.

In our opinion plaintiff’s contention that the trial court erred in ruling on defendant’s motion for a directed verdict after the jury separated does not merit serious consideration. The statute provides in clear, understandable and unambiguous language that the court shall decide such motion upon which ruling has been reserved “after the case is thus submitted to the jury, or after receiving and recording the verdict of the jury and before judgment is entered in said case.” Furthermore plaintiff by its stipulation that the jury might seal its verdict and separate agreed that the court might dispose of its reserved ruling on defendant’s motion to direct after the jury separated.

Plaintiff next complains about defendant’s failure to file an answer to the amended complaint. Plaintiff having been served with a copy of the answer to the amended complaint which defendant intended to but apparently failed to file and having made no objection during the course of the trial because of such failure to file the answer and having participated in the trial, must be held to have waived any right that may have accrued to it by reason of defendant’s failure to file its answer.

We have carefully examined plaintiff’s theory as stated in its brief and its points and the argument made therein in support of such points. Nowhere in said brief is the propriety of the trial court’s ruling sustaining defendant’s 'motion for a directed verdict or the propriety of the judgment entered for the defendant notwithstanding the verdict challenged but, as heretofore shown, its points and argument are confined almost entirely to an attack on the power and authority of the court to make said ruling and enter said judgment. Plaintiff refrains from analyzing or discussing the evidence in the record for the purpose of pointing out, if possible, that the evidence and the reasonable inferences that might be drawn therefrom considered in the aspect most favorable to it, proved or tended to prove, the existence of the oral contract alleged in its amended complaint.

In addition to its challenge of the power and authority of the trial court to make the aforesaid ruling and enter the aforesaid judgment, the only other point really stressed in plaintiff’s brief is that “since the verdict of the jury found the issues in its favor, it must necessarily have found that an oral contract did exist between the parties as alleged in the amended complaint.” In our opinion plaintiff and its counsel are under a misconception as to the intent of the jury’s verdict. It will be recalled that the verdict assessed plaintiff’s damages at $1,895.82. While defendant denied the existence of a contract between the parties, there is evidence in the record that it admitted in writing that plaintiff had performed some services for it for which it was willing to pay. It appears quite obvious from the jury’s verdict that it did not conclude that plaintiff had proved the existence of the contract alleged but rather that plaintiff had performed some services for defendant which had been accepted and that plaintiff was entitled to what the jury considered reasonable compensation therefor. The jury’s verdict was clearly rendered on a quantum meruit basis but that issue had been withdrawn from its consideration by plaintiff.

While it is unnecessary for us to discuss the evidence in view of plaintiff’s failure to question the propriety of the trial court’s ruling that resulted in the judgment in favor of defendant notwithstanding the verdict, we have considered and analyzed all the evidence in the record and are convinced that defendant’s motion made at the close of all the evidence for a directed verdict was properly allowed and that the trial court was warranted in entering judgment in defendant’s favor notwithstanding the verdict.

We are impelled to hold that the trial court did not err in sustaining defendant’s motion for a directed verdict upon which ruling had been reserved, or in entering judgment in favor of defendant notwithstanding the verdict, or in denying plaintiff’s motion for judgment for $5,000 notwithstanding the verdict.

The judgment of the circuit court of Cook county should be and it is affirmed.

Judgment affirmed.

Friend, P. J., and Scanlan, J., concur.


text:
    Blue Bird Air Service, Inc., Appellant, v. City of Chicago et al., Appellees.
    Gen. No. 41,780.
    Heard in the second division of this court for the first district at the December term, 1940.
    Opinion filed February 10, 1944.
    Edward H. Murnane and James A. Harrington, both of Chicago, for appellant, Sidney R. Zatz, of Chicago, of counsel.

      Barnet Hodes, Corporation Counsel, for certain appellees; Joseph F. Grossman, First Assistant Corporation Counsel, J. Herzl Segal and L. Louis Karton, Assistant Corporation Counsel, of counsel.
    Essington & McKibbin, of Chicago, for certain other appellee; Hamilton K. Beebe and William A. Brunstad, both of Chicago, of counsel.
   Mr. Justice Sullivan

delivered the opinion of the court.

This appeal by plaintiff, Blue Bird Air Service, Inc., from the decree entered herein denying the relief sought by its complaint, was originally perfected to the Supreme Court. In the opinion of the Supreme Court in Blue Bird Air Service, Inc. v. City of Chicago, 376 Ill. 272, whereby the cause was ordered transferred to this court, the pleadings, issues and the determination of such issues by the trial court were set forth as follows:

“Appellant, the Blue Bird Air Service, Inc., filed its complaint in the Superior court of Cook county to enjoin defendants, the city of Chicago, its mayor, comptroller and commissioner of public works, from entering into a contract with the Monarch Air Service, Inc., granting the latter a concession for the exclusive operation of sightseeing airplanes from the Chicago Municipal Airport, and also to restrain the defendants from interfering with appellant’s operation of an air sightseeing business originating from the Chicago Municipal Airport. By leave of court the Monarch Air Service, Inc., was allowed to become a party defendant. All of the defendants answered, and, upon a hearing, a decree was entered dismissing the complaint for want of equity. . . . Appellant leased from the city of Chicago hangar space No. 17 of the Chicago Municipal Airport, which was to be used for hangar and aviation purposes only, and which lease contained the following provision:

‘To use said premises only for the purpose of carrying on an air transportation and storage business, in receiving and discharging of passengers, baggage, mail and freight; and/or for the housing and servicing of airplanes; and/or for the sale of airplanes and parts; and not to use or permit the use of said premises for a school of aviation, or for furnishing instructions to students or for any purpose in connection with student flying; and not to use or permit the use of said premise’s for restaurant purposes, or for the sale of foodstuffs, tobacco, candy, beverages, newspapers or any merchandise whatsoever, except as above stated. ’

“The term of the lease is from February, 1936, to December 31, 1950.

“In January, 1939, Oscar E. Hewitt, commissioner of public works of Chicago, advertised for proposals for a concession for the- exclusive operation of sightseeing airplanes at the Chicago Municipal Airport for a period of four years, according to specifications on file in his office. In response thereto various proposals were received by said commissioner, including one from appellant and one from the Monarch Air Service, Inc., and the latter, being the highest bidder for the concession, it was announced that a contract would be entered into between the city of Chicago and said Monarch Air Service, Inc., granting the latter the concession for the exclusive operation of sightseeing airplanes for said period. On April 3, 1940, a resolution was adopted by the city council of Chicago authorizing the commissioner of public works to enter into a contract with the Monarch Air Service, Inc., for a period of four years, in accordance with the advertised specifications, for the operation of the Chicago Municipal Airport sightseeing concession.

“Appellant claims that it had invested considerable money in airplanes used in connection with air transportation and air sightseeing business, and that the principal part of its transportation business consisted in sightseeing, and that the action of the defendants threatened to destroy the business of appellant and render its property worthless, and that the granting of an exclusive concession, as contemplated, was a violation of the provisions of its lease, and in violation of the constitution of the United States and of the State, of Illinois. It is further claimed that the Civil Aer-. onautics act of 1938 (U. S. C. A. title 49, secs. 452-a, 453, 401, 402) contained provisions which prohibited the city of Chicago from granting an exclusive concession for sightseeing purposes by reason of the fact that Federal funds had been used in the construction of said airport.

“The answer of the defendants alleges that if appellant was using the rented space as a base for sightseeing purposes it was in violation of the lease, and that under the terms of the lease appellant was entitled to use only the rented premises in air transportation and storage business, receiving and discharging passengers, mail and freight, and denies that airplane sightseeing trips were within the terms of the lease; that the conduct of sightseeing service by more than one company, with the incidental sale of tickets, solicitation of business, and parking of airplanes was annoying to the public, and promoted disorder and confusion and interfered with the facilities of the airport. Certain violations of the lease were also set forth in the answer, and defendants also, by way of answer, claimed statutory authority to operate the airport and lease the same, or any part thereof, or to let or grant privileges to any part thereof, and to fix, charge and collect rent, compensation, tolls, and fees for the use thereof. (Ill. Rev. Stat. 1939, chap. 24, art. 5, sec. 100, par. 65.99-½.) The answer further denied that defendants’ action in any way violated the Civil Aeronautics act.

“The trial court held that the plaintiff’s lease was not broad enough to cover sightseeing, and that the city could grant an exclusive right to conduct sightseeing from the airport, and that there was no violation of the constitution or Federal law, or any violation of the terms of the lease upon the part of plaintiff, and thereupon dismissed the complaint.

“From the foregoing resume of the issues it can he readily seen that the real points in controversy are (a) the construction of appellant’s lease, and (b) the right of the city of Chicago to grant an exclusive concession or license to appellee the Monarch Air Service, Inc., for air sightseeing purposes.”

It was held at p. 276:

“The questions involved, viz, the authority of the city of Chicago to grant an exclusive concession for certain uses of property owned by it, that of the construction of the lease given to another party for the use of a part of the same property, involve ordinary questions of law, and the court’s judgment on such questions, whether right or wrong, does not involve a construction of the constitution.”

Subsequent to the transfer of the cause to this court, the defendant, City of Chicago, presented its written motion that “the appeal in said cause be dismissed on the ground that the questions involved herein have become moot since the perfecting of this appeal” and its suggestions in support of its motion averred:

11 On April 1,1942, Blue Bird Air Service, Inc., plaintiff, requested the City of Chicago real estate department that its lease be surrendered and cancelled and that the city enter into a lease with The Aeronautical University, demising to it the same premises for the same rental as is provided in the lease to Blue Bird Air Service, Inc., such new lease to be for the unexpired term of the lease with said Blue Bird Air Service, Inc. Pursuant to this request, the lease to the plaintiff was cancelled as of June 18,1942 and a new lease covering the same premises formerly leased to the plaintiff was made with The Aeronautical University, Inc., for a term beginning May 1,1942 and expiring December 31, 1950. This lease is still in effect and the lessee is in possession of the premises. The present lessee occupies the hangar space exclusively for a ground school for flying, repairing and servicing of aircraft and for lessee’s offices and for housing, storing, repairing and servicing of aircraft and for storing fuel, materials and supplies for aircraft. Under its lease the lessee is not permitted to use the flying field, runways, taxi strips and common appurtenances of the Municipal Airport, nor is it permitted to navigate any aircraft from, upon or over said airport. Said lessee has expressed itself as having no interest in the matter of the granting of a contract for an exclusive concession for operating sightseeing airplanes.”

In its counter suggestions in opposition to the allowance of the motion to dismiss, plaintiff admits its surrender of the lease and its cancellation but states that “its complaint alleged that plaintiff presently and for more than ten years has been engaged in an air transportation business and as part thereof conducts an airplane sightseeing business from and out of the Chicago Municipal Airport”; that it “has in its business assets in excess of $66,000, over $11,000 invested in a hangar built on hangar space number 17 on said airport leased by plaintiff from defendant, City of Chicago, and over $20,000 being invested in airplanes used in connection with said air transportation and sightseeing business” and that “on January 31,1936, plaintiff, as lessee, entered into a lease with defendant, City of Chicago, as lessor”; that “the plaintiff carried on its business long prior to the execution of the lease" entered into between the plaintiff as lessee and the City of Chicago as lessor” and that “the interest of the plaintiff was for the protection of its business which it had established over a number of years, and in which it had made a considerable investment. The lease with the- City was merely an incident of such business, and was not required by it for the carrying on of its business, but consisted of merely an additional facility. ’ ’

In said counter suggestions pars. 5 and 7 of the complaint are quoted as follows:

“5. Plaintiff’s airplane sightseeing business conducted from said Chicago Municipal Airport has been and is a profitable one. The defendants, by their conduct as hereinafter set forth, threaten to destroy the said business of said plaintiff and thereby render plaintiff’s property and investment in said business valueless, and unless restrained by this court, defendants will by their said conduct destroy the said business of plaintiff and render plaintiff’s property" and investment in said business valueless, and will deprive plaintiff of the profits it would have made therein.

‘ ‘ 7. The defendant, City of Chicago, has been given no power or authority, by statute or otherwise, and has no power or authority to grant any concession for the exclusive operation of sightseeing airplanes at the Chicago Municipal Airport, or to enter into any contract therefor.”

It is also asserted in such counter suggestions that “it is apparent [from paragraph 5] that what the plaintiff was attempting to protect was the established business of the plaintiff” and that “it was also contended by the plaintiff that the grant of the exclusive concession for air sightseeing at the airport was in violation of the Civil Aeronautics Act of 1938.”

Thus it appears that plaintiff now contends that, notwithstanding its surrender of its lease to a portion of the airport, it still possesses and alleged in its complaint a right and interest that will suffer damage by the granting of an exclusive concession by the City of Chicago to the Monarch Air Service, Inc., for the operation of sightseeing airplanes at and from the Municipal Airport; that said right and interest are entirely separate and distinct from and independent of such rights as it claimed to have and asserted under the lease; and that it is therefore entitled to the relief sought by its complaint.

That plaintiff’s present position and theory constitute a departure from its position and theory in the trial court and that it placed no such interpretation on the allegations of its complaint there as it attempts to do here is clearly shown by the record.

At the outset of the trial and before any evidence was heard the chancellor, addressing counsel for all the parties, made a statement, the pertinent portions of which are as follows:

“Well then we get right to the main crux of the whole matter. There are only two questions involved . . . one whether" or not the City of Chicago has the right under the Acts to grant such a license or privilege or contract, secondly, . . . whether or not the lease in question gives you a right to run sightseeing planes there, that is that are not straight transportation. Those are your only questions.”

Counsel for the respective parties acquiesced in the court’s definition of the issues. Counsel for plaintiff did not then nor at any other time during the course of the hearing advise or suggest to the court that plaintiff’s complaint presented any issue other than those outlined by the court. No attempt was made to correct the chancellor’s understanding of the issues as announced by him. No effort was made to direct his attention to any right or interest alleged in the complaint distinct from and independent of plaintiff’s claimed rights under the lease, that entitled it to -the relief sought. It is strange, if plaintiff’s complaint was predicated upon any right to relief other than that based on the lease and plaintiff’s counsel was of that opinion, that said counsel did not assert such right as being in issue, as it was his duty to do, when the chancellor failed to include it in the issues as defined by bim at the beginning of the trial. Plaintiff’s counsel never took any other position before the trial court than that plaintiff’s claim for relief was predicated solely upon its rights under the lease. This is again evidenced by his statement to the court at the close of all the evidence, when, after saying, “I believe your Honor having read all the pleadings in the case is fully advised as to what is concerned in the petition,” he then said: “The plaintiff takes the position that under the terms of his lease that the City of Chicago granted to him the right to carry on an air transportation business.” We think the only reasonable interpretation this statement of counsel is susceptible of is that he meant that the court having read the pleadings and having a complete understanding of the issues, must necessarily have recognized that the rights claimed by plaintiff were solely under the lease.

A careful examination of the report of proceedings fails to disclose that plaintiff’s counsel either requested or suggested that the trial court consider and determine any right to relief claimed by plaintiff under its complaint independent of and distinct from its claimed rights under the lease or that the court did consider and determine any such right. All the parties as well as the chancellor proceeded in the trial court on the theory that plaintiff was seeking relief solely on its claimed rights under the lease and plaintiff now seeks to inject an entirely new and different issue. The Supreme Court in its opinion, heretofore referred to, in its statement and analysis of the issues presented by the pleadings apparently did not discover the right and interest now claimed by plaintiff to have been alleged in its complaint. In its resume of the issues that court stated that “the real points in controversy are (a) the construction of appellant’s lease, and (b) the right of the city of Chicago to grant an exclusive concession or license to appellee the Monarch Air Service, Inc., for air sightseeing purposes.” It would be improper and highly unfair to the chancellor for a reviewing court to determine an issue that had not been considered or determined by or even presented to the trial court. That an appellant seeking to reverse a decree will not be permitted to proceed on a theory in the reviewing court different from that adopted by him in the trial court requires no citation of authority..

Plaintiff’s lease having admittedly been surrendered by him and canceled during the pendency of this appeal, the question as' to its right to relief under the terms thereof has become moot. This is also true as to the questions concerning the authority of the City of Chicago to grant an exclusive concession to operate sightseeing planes from the Chicago Municipal Airport and the claimed violation of the provisions of the Civil Aeronautics Act of 1938, by reason of the grant of such exclusive concession. Plaintiff’s claimed rights under the lease having been extinguished, it is no longer in a position to challenge the authority of the City of Chicago to grant the aforesaid contract to Monarch Air Service, Inc., or to question the compliance by the City of Chicago with the provisions of the Civil Aeronautics Act.

It has been repeatedly held that a reviewing court should not be called upon to decide questions that no longer exist, merely for the sake of making a precedent or of deciding a case to settle a simple matter of costs, even though when the action was instituted an actual controversy existed, a change in circumstances rendering the issues moot or abstract requires a dismissal of the appeal. Wick v. Chicago Tel. Co., 277 Ill. 338; People v. Sweitzer, 329 Ill. 380; Jones v. Clark, 355 Ill. 527; National Jockey Club v. Illinois Racing Commission, 364 Ill. 630; People ex rel. Jaros v. Jarecki, 299 Ill. App. 382.

We have carefully examined and analyzed the allegations of plaintiff’s complaint and are impelled to the conclusion that the only rights which it asserted therein were threatened and entitled to protection by way of injunction were its claimed rights under its lease.

The motion to dismiss plaintiff’s appeal, which was reserved to hearing, is at this time allowed.

Appeal dismissed.

Friend, P. J., and Scanlan, J., concur.


text:
    Benjamin Vigran and Adella Mae Denton, Appellees, v. Walter Hamilton et al., Appellants.
    Gen. No. 42,350.
    Heard in the second division of this court for the first district at the October term, 1942.
    Opinion filed Febuary 10, 1944.
    Rehearing denied March 9, 1944.
    Walter Hamilton, of Chicago, for appellants.
    Paul H. Leffmann and Kagan & Turoff, both of Chicago, for appellees; Lee L. Turoff, of Chicago, of counsel.
   Mr. Justice Sullivan

delivered the opinion of the court.

This action was brought by plaintiffs Benjamin Vi-gran and Adella Mae Denton, against defendants Walter Hamilton, Charles F. Henry and Claridge Apartments Company, to recover the penalty provided by statute because of the alleged wrongful refusal of the defendants to comply with the demand of the plaintiff shareholders in the defendant corporation for permission to examine the books and records of said corporation. The case was tried by the court without a jury. Judgment was entered in favor of plaintiff Benjamin Vigran for $80 against each ¡of the defendants and judgment was entered in favor of plaintiff Adella Mae Denton for $200 against each of the defendants. Defendants appeal from said judgments.

The complaint alleged in substance that plaintiff, Benjamin Vigran, was the legal, equitable and registered holder and owner of 20 common shares of no par value of defendant Claridge Apartments Company; that plaintiff Adella Mae Denton, was the legal, equitable and registered holder and owner of 50 such shares of said corporation; that both plaintiffs had owned said shares continuously for more than six months immediately preceding January 30, 1940; that both plaintiffs continued to be the legal, equitable and registered holders and owners of said shares continuously until June 3, 1940 and thereafter; that defendant Claridge Apartments Company is an Illinois corporation; that defendant Charles F. Henry had been continuously the president, treasurer and a director of the defendant corporation since on or about November 15, 1937, and defendant Walter Hamilton had been secretary, registered agent and a director of the defendant corporation during the same period; that on February 16, 1940 plaintiff Vigran made demand by his attorney on the three defendants that he be permitted, at any reasonable time or times, “to examine the books and records of account and the minutes of proceedings of the Shareholders and Directors, and the record of the Shareholders of the defendant, Claridge Apartments Company, and to make extracts therefrom”; that he informed defendants that “it was his purpose to obtain a list of the shareholders of the defendant corporation so as to be able to communicate with such shareholders and to advise them concerning the transactions and proceedings at a Special Meeting of the Shareholders of said corporation convened on January 30,1940, and to obtain from the books and records of the corporation information and extracts concerning the manner in which its business had been conducted and transactions in which it had engaged”; that said demand was made at the registered office of the defendant corporation in the City of Chicago; that defendants wrongfully refused said demand and denied Yigran and his agent and attorney the right to examine or to make extracts from the aforesaid books and records of the defendant corporation at any time or for any purpose; that on February 20, 1940 plaintiff, Adella Mae Denton, made a similar demand for the same purpose which was likewise refused; that the value of the shares of Claridge Apartments Company on February 1, 1940 and thereafter, was and still is $40 a share; and that section 45 of the Business Corporation Act (par. 157.45, ch. 32, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 32.045]), provides in part as follows:

“Any officer, or agent, or a corporation which shall refuse to allow any such shareholder, or his agent or attorney, so to examine and make extracts from its books and records of account, minutes, .and record of shareholders, for any proper purpose, shall be liable to such shareholder in a penalty of ten per cent of the value of the shares owned by such shareholder, in addition to any other damages or remedy afforded him by law.”

The complaint then alleged that each of the defendants was liable to each of the plaintiffs to the extent of the statutory penalty and asked that judgment for $80 be entered in favor of plaintiff Vigran against each defendant and that judgment for $200 be entered in favor of plaintiff Denton against each defendant.

Defendants filed a joint and several 14 page answer. The major portion of the allegations contained therein were not germane to any issue presented by plaintiffs’ complaint and contained no defense to the cause of action stated in said complaint. On plaintiffs ’ motion 18 of the 24 paragraphs of the answer were stricken. The unstricken portions thereof denied that plaintiffs or either of them were entitled through their agents or attorneys to examine the books and records of the defendant corporation at the times the respective demands were made, or that such demands were made for a proper purpose or that “said 70 shares of stock were worth more than . . . $40 per share on February 1, 1940.”

So that the allegations of the answer set forth in the next paragraph may be understood, it is necessary to state that a complaint in equity had been filed on behalf of plaintiff Vigran by Attorneys Turoff and Leffmann and another complaint had been filed by one Greenberg to enjoin the first proposed sale of its property by the defendant corporation.

It was then alleged that “at the time said two demands were made, negotiations were still pending for settlement of said two suits and said settlement was consummated thereafter in spite of the efforts of said Turoff and said Leffmann to block it by stirring up the spirit of contest in said Hamilton, said Henry and said Claridge Apartments Company, by said demands; that thereafter said suits were fully settled by the said Claridge Apartments Company holding proper director’s and shareholder’s meetings for voluntarily selling all its assets to Claridge Corporation, an Illinois corporation, for the sum of $126,120, and assumption of all liabilities of said Claridge Apartments Company, with the approval and order of the circuit court of Cook county and for dissolution voluntarily of said Claridge Apartments Company; that at said shareholders meeting, 72 per cent of all the issued and outstanding shareholders of said Claridge Apartments Company, including the plaintiffs herein, voted for said sale and dissolution; that pursuant to such director’s and shareholder’s meetings and the order of the circuit court of Cook county, quitclaim deed and bill of sale of all the assets of Claridge Apartments Company were executed and delivered to said Claridge Corporation and said Claridge Corporation assumed and agreed to pay all the liabilities of Claridge Apartments Company and delivered to Claridge Apartments Company its agreement to indemnify Claridge Apartments Company against any claim made against it; that it was part of said settlement that all differences between all the clients of the attorneys settling involved in this matter, including those of these plaintiffs, were settled and discharged; that thereafter plaintiff, Ben Vigran, was paid the sum of Eight Hundred Dollars by said Claridge Apartments Company in full of his distributive share in all the assets of Claridge Apartments Company, including his claim for Eighty Dollars he now sues for and his claim herein was fully settled and discharged and said Good & Company was paid the sum of Two Thousand Forty Dollars in full of the distributive share of Good & Co., and the equitable owner of said 50 shares and one other share in all the assets' of said Claridge Apartments Company, including the claim herein of Two Hundred Dollars of said. Plaintiff, Adella May Denton and said claim of said Denton for Two Hundred Dollars herein was fully settled and discharged.”

Defendants’ counsel has filed a most confusing brief in this court. Error is assigned on page 5 of said brief as to the order of the trial court sustaining plaintiffs ’ motion to strike the paragraphs of defendants’ answer heretofore indicated. This alleged error is then abandoned and the following is listed on page 9 of the brief among defendants ’ points:

“By order of Judge Fisher entered November 1, 1940, pars. 2, 4, 6, 7, 8, 9, 10, 13, 14, 15, 16, 17, 18, 19, 20, 22, 23, and 24 of the joint and several answer of the defendants were stricken. Defendants stood by these stricken paragraphs .... The allegations of these stricken paragraphs well pleaded are admitted for the purposes of this appeal.”

The argument made in support of this “point” merely reiterates what is said in the point itself and no further mention is made of the alleged error of the trial court in striking said paragraphs. Then counsel proceeds throughout defendants’ 58 page brief to discuss and argue as admitted facts the matters alleged in the stricken paragraphs of defendants’ answer. Counsel certainly misapprehends the rule he seeks to apply to the stricken paragraphs of the answer. It is the rule that facts well pleaded in any pleading must be considered as true for the purpose of the hearing on a motion to strike- such pleading. Inasmuch as the cause proceeded to trial on the issues joined by the unstricken portions of defendants’ answer to plaintiffs’ complaint, the fact that defendants “stood by these stricken paragraphs” amounted to nothing more than an objection by them to the ruling of the court thereon, so that such interlocutory ruling might be reviewed on an appeal from an adverse judgment, if such was entered. If defendants had really sought a review by this cqurt of the alleged error of the trial court in striking said paragraphs of their answer and such point was argued in their brief, instead of being abandoned, we would have had to consider as true the well pleaded facts in the stricken paragraphs of their answer, but only for the purpose of passing upon the propriety of the order sustaining plaintiffs ’ motion to strike such paragraphs. The effect of the order striking portions of defendants’ answer was to entirely exclude from consideration upon the trial of the case the matters alleged in such portions. It would indeed be a strange rule that required proof of matters not stricken and that obviated proof of matters which were stricken.

Defendant Charles F. Henry was president, treasurer and a director of defendant corporation from 1937 until said corporation was dissolved June 30, 1940. Defendant Walter Hamilton was secretary, registered agent and a director of defendant corporation during the same period.

That plaintiff Vigran owned 20 shares of stock in the defendant corporation on February 16, 1940 and for more than six months prior thereto was clearly shown by the evidence. That Vigran made a written demand on the individual defendants on February 16, 1940 to inspect the books and records of defendant corporation is admitted.

That plaintiff Denton owned 50 shares of stock in defendant corporation on February 20, 1940 and for more than six months prior thereto was clearly shown by the evidence.

Attorney Turoff testified that on February 20, 1940 he and Attorney Leffmann made separate written demands on behalf of plaintiff Denton on defendants Henry and Hamilton to inspect the books and records of defendant corporation.' Henry did not deny that such demand was made on. him. Hamilton at first denied that such written demand was made on him but finally admitted that an oral demand was made on him on behalf of plaintiff Denton on February 20,1940.

That defendants refused to permit the attorneys for Vigran and Denton to examine the books and records of the defendant corporation and to make extracts therefrom in response to plaintiffs’ demands is admitted.

The demands on defendant corporation by the attorneys for both plaintiffs for permission to inspect its books and records were sufficiently made. These demands were made by leaving copies thereof with or presenting same to Charles F. Henry and Walter Hamilton, who were president and secretary respectively of said corporation, and in control of its books and records.

Defendants’ answer did not directly deny that the value of the stock of defendant corporation was at. least $40 a share as alleged in plaintiffs’ complaint. In any event it was sufficiently shown that the value of said stock was $40 a share.

Therefore the only question left for, determination is whether the motives prompting plaintiffs’ demands were proper. The record discloses that the sole assets of defendant corporation were an apartment building and the fixtures, furniture and other personal property contained therein (hereinafter for convenience sometimes referred to collectively as the defendant corporation’s apartment building); that its stockholders, at, a meeting held January 30, 1940, approved a recommendation of its directors that said apartment building be sold for $90,000, although two other bids were submitted, one for $110,000 and the other for $125,000; that the sale of the property at $90,000 would have netted approximately $31 a share to the stockholders; that shortly after said stockholders’ meeting plaintiff Yigran and one Greenberg filed separate complaints in equity to enjoin the defendants herein from selling the property for $90,000, charging that said sum was an inadequate and unfair sale price for the property; that thereafter said two suits in equity were consolidated ; that negotiations ensued between the parties to the consolidated suit for a settlement of said suit; that any settlement thereof depended entirely upon the securing of a purchaser for the property at a higher and more adequate price; that while the negotiations for settlement were pending the demands of plaintiffs herein were made on defendants on February 16, 1940 and February 20, 1940; that on February 26, 1940 an offer was made by the Claridge Corporation by its president, Howard D. Henry, to purchase the property for $126,120 and other considerations; that this offer was made by the same corporation whose original bid of $90,000 was approved by the stockholders at the meeting of January 30,1940 on the recommendation of the directors of defendant corporation; that on petition of the defendant corporation in the consolidated proceeding, filed April 2, 1940, the chancellor entered an order April 5, 1940, which, after finding that the increased offer made by the Claridge Corporation was reasonable and proper and that it would net the stockholders of the defendant corporation $40 a share, directed said defendant corporation to accept the increased offer.

The mere recital of the foregoing facts demonstrates conclusively that plaintiffs’ motives and purposes in making their demands to inspect the books and records of the defendant corporation were proper and that under the circumstances they were entirely justified in making said demands. The individual defendants, in addition to being directors, held between them the offices of president, treasurer and secretary of the defendant corporation. The amount of stock they each owned in said corporation does not appear but it is fair to assume that, since they were the principal officers thereof, they in large measure influenced and controlled the conduct of its affairs. It is stated in plaintiffs ’ brief and not denied that Howard D. Henry, the president of Claridge Corporation, which made both the original purchase offer of $90,000 and the later increased offer of $126,120, is a brother of defendant Charles F. Henry, who was president and treasurer of defendant corporation. There can be no question that the acceptance .of the original offer of $90,000 by the directors of defendant corporation and their recommendation of its approval by the stockholders and its -subsequent approval at the stockholders’ meeting on January 30, 1940, constituted an attempt to foist a deal on the shareholders that would have meant a loss to them of thousands of dollars. The $90,000 purchase price offer stands admitted on the record before us as being unfair and inadequate. It was only'through the vigilance of plaintiffs and a few other stockholders and their attorneys, who instituted the proceedings to enjoin the sale, that said attempt was thwarted. As has been seen, as a result of the filing of said proceedings, the original $90,000 bidder was compelled to bid $126,120 in order to secure this property, thereby netting the stockholders of defendant corporation $40 a share instead of $31 a share, which they would have received if the attempt to sell the property for $90,000 had been successful. When the sale at $90,000 was recommended by the directors of defendant corporation and approved at a meeting of its stockholders January 30, 1940, it is small wonder that the suspicions of plaintiffs were aroused. They proceeded immediately to file their complaints to enjoin the sale and thereafter to demand their right to examine the books and records of defendant corporation for the stated purpose, among others,' of ascertaining the names and addresses of all the shareholders so that they might communicate with them concerning the proposed sale of the property at the aforementioned inadequate price -and invite them to become parties to and participate in the proceedings already instituted to enjoin the sale. Under the circumstances the purposes of plaintiffs’ demands were not only proper but the motives that prompted them were commendable.

Defendants urge that the negotiations for settlement of the consolidated suit were progressing favorably at the times the respective demands were made and that therefore plaintiffs’ purpose in making their demands was improper and that the only purpose of their attorneys was to incite litigation so that they might procure large and excessive legal fees for themselves. It appears to us that the individual defendants, one of whom is the attorney for all the defendants herein, and the other, as already stated, is a brother of the president of the purchasing corporation, take this position to divert attention from their own conduct in connection with the acceptance of the original $90,000 bid for the purchase of defendant corporation’s apartment building. After they had received information concerning the acceptance of this bid, plaintiffs and their attorneys had the right to examine the books and records of defendant corporation and to secure the names and addresses of all its stockholders, regardless of whether or not negotiations for settlement of the consolidated suit were progressing favorably. When the demands were made there was no certainty that a settlement would be reached and it may well be that plaintiffs’ demands accelerated the conclusion of the settlement that was finally reached.

In connection with their contention that plaintiffs’ demands were made for an improper purpose, defendants stress the unreasonableness of the fees requested and allowed plaintiffs’ counsel in the consolidated suit. Plaintiffs’ counsel in the two suits that were consolidated were allowed $3,000 in fees between them. There is certainly nothing unfair or unreasonable about this allowance, when it is considered that the stockholders were benefited to the extent of more than $36,000 by reason of the increased purchase price procured through the efforts of said counsel.

Plaintiffs’ causes^ of action arose under the statute heretofore set forth, when their rightful demands for permission to inspect the books and records of defendant corporation were wrongfully refused by the individual defendants on their own behalf and on behalf of said corporation, and neither the subsequent settlement of the consolidated suit, the subsequent dissolution of defendant corporation, the receipt by plaintiffs of their distributive shares of the assets of said corporation, the fact that plaintiff Denton might have thereafter transferred her stock, nor the further fact that plaintiffs held no certificates of stock in defendant corporation (same having been theretofore dissolved) when the instant action was instituted, can affect or defeat their right to recover in this case.

We are impelled to conclude that defendants’ violations of the provisions of the statute in question were flagrant and that the trial court properly entered the judgments against defendants.

The judgments of the circuit court of Cook county in favor of plaintiffs and against defendants are affirmed.

Judgments affirmed.

Friend, P. J., and Scanlan, J., concur.


text:
    In re Estate of Mary E. Coleman, Deceased. Mary Jean Barnes and Cornelia W. Barnes, Guardian of Donald Barnes, Minor, Appellants, v. Nathan G. Coleman, Appellee.
    Gen. No. 42,510.

      Heard in the second division of this court for the first district at the October term, 1942.
    Opinion filed February 10, 1944.
    Rehearing denied March 9, 1944.
    Mulcahy, Murphy & Walsh, of Chicago, for appellants ; Michael F. Mulcahy, Henry W. Dieringer and William T. Murphy, all of Chicago, of counsel.
    John F. Diffenderffer, Jr., of Chicago, for appellee; Harry L. Heer, of Galena, and Gustav E. Beerly, Jr., of Chicago, of counsel.
   Mr. Justice Sullivan

delivered the opinion of the court.

TMs appeal by Mary Jean Barnes and Cornelia W. Barnes, guardian of Donald Barnes, a minor, seeks to reverse an order of the probate court of Cook county which denied a petition filed in that court by the executor of the estate of Mary E. Coleman, deceased, to sell real estate belonging to said estate to pay legacies bequeathed to Donald Barnes and Mary Jean Barnes under the will of said Mary E. Coleman. The appeal was perfected to the Supreme Court of this State which ordered it transferred to tMs court. A partial distribution of $750 was made to each of the Barnes children to apply on their legacies.

Mary E. Coleman died November 10, 1934 and her will, dated February 5, 1926, was admitted to probate in the probate court of Cook county January 10, 1935. The provisions of her will pertinent to this inquiry are as follows:

“I hereby give, devise and bequeath to Donald Barnes and Mary Jean Barnes of Phoenix, Oregon, if he or she shall survive me, the sum of Two Thousand Dollars ($2,000.00) each to be paid within one year after my decease, in due course of administration.

“All the rest and residue of my estate, real personal and mixed and wheresoever situated, I devise and bequeath to my brother, Nathan G. Coleman, of Galena, Illinois, for his absolute use and benefit.”

Nathan G. Coleman, named in the will as executor, qualified as such. At the time of the testator’s death Donald Barnes and Mary Jean Barnes were 14 and 13 years old respectively and resided with their mother, Cornelia W. Barnes, in Oregon. The assets of the estate inventoried and accounted for by the executor consisted of about $2,600 in personal property and an undivided one-half interest in a farm in Joe Daviess county, Illinois. On or about July 23, 1938, at which time both Donald and Mary Jean Barnes were still minors, their mother, Cornelia W. Barnes, by leave of court filed a petition as their guardian in which she alleged in substance that the personal property in the testator’s estate was insufficient to pay the pecuniary legacies bequeathed to her minor children; that said legacies were a charge on the real estate devised to the residuary legatee; and that it was necessary to sell said real estate in order to pay her childrens ’ legacies. The petition prayed that the executor be required to file a petition for the sale of the real estate.

The executor’s answer to said petition admitted that the personal property was insufficient to pay the money legacies in full and then alleged that same were not a charge on the real estate and that if there was a deficiency in the personal estate to pay said legacies in full they must to that extent abate.

Upon a hearing an order was entered by the probate court on January 27, 1939, which found that the testator Mary E. Coleman intended to charge the real estate in her estate with the payment of said legacies, that ‘ ‘ there is insufficient personal property in the estate to pay the legacies in full after the payment of debts” and that “it is necessa'ry that the real estate be sold to pay the said legacies in full”; and adjudged that the executor “be and he is hereby ordered and required to file his petition in this Court within twenty days from this date for the sale of the said real estate, and that he be and he is hereby ordered and required to sell the same and pay the said legacies in full, within a reasonable time after the filing of said petition.” (Hereinafter for convenience the proceeding which resulted in the foregoing order will be. sometimes referred to as the first proceeding.) Thereafter on or about October 7, 1940 the executor filed a petition for a direction to sell the real estate to pay the legacies to Donald Barnes and Mary Jean Barnes as required by the order of January 27, 1939 and asked in said petition that the Barnes children, their mother as their guardian and Nathan Gr. Coleman, individually as the residuary devisees of said real estate, be made parties defendant and that summonses issue for them.

Mary Jean Barnes, having attained her majority, and Cornelia W. Barnes, guardian of Donald Barnes (hereinafter for convenience sometimes referred to collectively as the Barnes), filed a joint answer admitting the allegations of the executor’s petition and joined in the prayer thereof that said executor be directed to sell the real estate to pay the legacies in question.

Nathan Gr. Coleman filed an answer individually as residuary devisee, in which he denied that the legacies to the Barnes children were a proper charge against the real estate or that same should be sold to pay said legacies and averred that at the time the testator executed her will she was possessed of more than sufficient personal assets to pay said legacies in full and that it was her intention that same were to be paid solely from her personal estate.

When the executor’s petition to sell the real estate was called for hearing, an oral motion was interposed on behalf of the Barnes that* the order entered in the first proceeding in which the sole issue presented was whether the executor be required to file a petition to sell the real estate, was res adjudícala of the issue presented by the executor’s petition to sell.

Upon the hearing on the executor’s, petition to sell and the answers .thereto it was shown by the undisputed evidence of Attorney Gustav E. Beerly that at the time the testator executed her will she owned personal property exceeding $15,000 in value. It also appeared that the farm land devised by the testator had been in her family since 1840, that she was born on it and that her brother, the residuary devisee, who was 74 years old, was also born on it, spending his entire life on said farm with the exception of 6 years.

Veda N. Berkman testified on behalf of the Barnes that she lived in Bend, Oregon, in 1905, and was acquainted with the testator, Mary E. Coleman, who was librarian for said city at that time; that she knew Cornelia W. Barnes, the mother of the Barnes children; that Cornelia W. Barnes was a very intimate friend of the testator’s; that Cornelia W. Barnes’ mother was the testator’s assistant in the library at Bend, Oregon; that the testator lived with Cornelia W. Barnes and her mother part of the time prior to the former’s marriage and lived with Judge Ellis Barmes, the father of the Barnes children, part of the time; that the testator introduced Cornelia W. Barnes (then Cornelia Wilson) to Judge Barmes ; that they were married thereafter and that Donald and Mary Jean Barnes were born of said marriage; that the testator was not related to the Barnes children but was their godmother and very devoted to them; and that she last saw the testator in 1925 or 1926, at which time the latter told her that “she was devoted to the Barnes children and was going to see to it that they got a good education.”

At the conclusion of the hearing on said petition of the executor to sell, an order was entered March 6, 1942, which found and adjudged as follows: -

“That on or about the 5th day of February, 1926, the date upon which the said will of Mary E. Coleman was executed, that Mary E. Coleman was possessed of a personal estate in excess of $15,000.

‘ ‘ The Court further finds that considering the testatrix’s surroundings and circumstances and the state and condition of her family and property at the time the will was executed showing that the testatrix owned personal property of a value much greater than would be required to pay debts, costs of administration and pecuniary legacies, and that the only realty involved in the estate is the farm which has been occupied by Nathan Gr. Coleman since the year 1893 and has been owned by the family of Nathan Gr. Coleman and Mary E. Coleman for more than one hundred years and was at the time of the execution of the will of Mary E. Coleman owned by Mary E. Coleman, the testatrix, and her brother, Nathan Gr. Coleman.

“The Court is of the opinion and finds that a true interpretation of the will of Mary E. Coleman, deceased, considered in the light of the testatrix’s surroundings and the circumstances and the state and condition of her family and property at the time the will was executed is such that would indicate that the* testatrix did not intend to make the legacies to Donald Barnes and Mary Jean Barnes (strangers to the blood) a charge upon the real estate devised in the residuary clause to her brother, Nathan Gr. Coleman. Counsel for Cornelia W. Barnes, guardian for Donald Barnes and Mary Jean Barnes, minors, having moved for judgment on the grounds that this matter is res ad judicata by order entered in this Court on January 27, 1939, and the Court having heard arguments and read briefs: Doth order that said motion is overruled.

“It is, therefore, ordered that the executor shall satisfy in so far as the personal estate in his hands will provide the said payment of the said legacies to the said Donald Barnes and Mary Jean Barnes, and that if a deficiency exists in the personal estate to pay said legacies in full that the legacies to that extent shall abate.

“It is, therefore, ordered that the petition to sell real estate to pay the legacies of Donald Barnes and Mary Jean Barnes be and the same is hereby dismissed.”

It is from this order that the appeal is prosecuted. (The proceeding which resulted in the foregoing order will sometimes hereinafter for convenience be referred to as the second proceeding.)

The first question presented is whether, since the real estate was not expressly charged in the will with the payment of the money legacies, it can be said from the language of the entire will, considered in the light of the testator’s surroundings and circumstances and the state and condition of her family and property at the time her will was executed, that the testator, Mary E. Coleman, impliedly intendéd to charge her real estate with the payment of such legacies. The trial court found that she did not and it is not claimed that the evidence was insufficient to support such finding. The judgment order of the trial court, including the findings therein, is in conformity with the principles of law enunciated by the Supreme Court in Alderman v. Dystrup, 293 Ill. 504. The will in that case provided for pecuniary legacies to the testator’s daughters and by a subsequent residuary clause he devised and bequeathed all his property, real, personal, and mixed, to his son, who was also named executor and qualified as such. At the time of the death of the testator therein the personal property in his estate was insufficient to pay the money legacies in full and it was sought as here to charge the real estate with the payment of same. The Appellate Court had affirmed the decree of the circuit court, which interpreted the will .in that case to mean that the pecuniary legacies were not to be charged against the real estate devised under the residuary clause and ordered that such legacies abate pro rata to the extent of the deficiency of the personal estate to pay them in full. There, in determining the appeal from the Appellate Court, which as already stated had affirmed the decree of the circuit court, the Supreme Court said at p. 508:

“It is not claimed by plaintiff in error that the real estate was expressly charged with the payment of the money legacies, but it is claimed such intention is necessarily inferred from the residuary clause of the will, which gave the son of the testator ‘ all the balance ’ of his property. There is no inflexible rule that where money legacies are bequeathed generally and the residue of the estate is given to another, the money legacies are a charge on the residuary estate. In such cases the question to be determined is, What did the testator intend? And this is to be determined from the language of the entire will, considered in the light of the testator’s surroundings and circumstances and the state and condition of his family and property at the time the will was executed. (Wallace v. Foxwell, 250 Ill. 616; Nixon v. Nixon, 268 id. 524; Strickland v. Strickland, 271 id. 614.) Evidence introduced at the hearing showed that at the time the will was executed the testator owned personal property of a value much greater than would be required to pay debts, costs of administration and pecuniary legacies. Subsequently the personal estate was reduced. . . . There is nothing in the language of the will to indicate that the testator intended the money legacies to be a charge on the residuary estate. . . . Considering the whole will together, it seems clear the testator did not intend the daughters should have any claim on the real estate devised to his son. This construction is further strengthened when the testator’s circumstances and property at the time he executed the will are considered.”

This case is so squarely in point both on'the facts and the exact question under consideration that further discussion relative to such question would serve no useful purpose.

The only other question that need be considered is whether the determination by the trial court by its order of January 27, 1939 of the issues presented by the petition of Cornelia W. Barnes, as guardian of Donald Barnes and Mary Jean Barnes, to require the executor to file a petition to sell the real estate to pay the money legacies was res adjudicata as against the parties brought before the court and as to the issues involved in the proceeding instituted by the executor by filing his petition to sell such real estate.

Appellants insist that, because in passing upon their petition to require the executor to file a petition to sell the real estate, the trial court in its order of January 27, 1939 found that the testator “intended to charge the real estate in her estate with the payment of said legacies” and in addition to ordering the executor “to file his petition in this court within twenty . . . days from this date for the sale of the said real estate,” also ordered said executor “to sell the same and pay the said legacies in full, within a reasonable time after the filing of said petition,” the court was precluded from considering or determining in the subsequent proceeding, wherein the executor filed his petition to sell the real estate as directed by the order of January 27,1939, the question as to whether the real estate should be sold to pay the money legacies.

In Charles E. Harding Co. v. Harding, 352 Ill. 417, in defining the doctrine of res adjudicata and the principle of estoppel by verdict, the court said at pp. 426 and 427:

“The doctrine of res judicata is, that a cause of action finally determined between the parties on the merits, by a court of competent jurisdiction, cannot again be litigated by new proceedings before the same or any other tribunal, except as the judgment or decree may be brought before a court of appellate jurisdiction for review in the manner provided by law. A judgment or decree so rendered is a complete bar to any subsequent action on the same claim or cause of action, between the same parties or those in privity with them. The doctrine extends not only to the questions actually decided but to all grounds of recovery or defense which might have been presented. . . . Where the former adjudication is relied on as an absolute bar to a subsequent action, it must be shown that the cause of action, the thing to be recovered and the parties are the same in both proceedings. The principle of res judicata applies, however, to cases where, although the cause of action is not the same, some fact or question has been determined and adjudicated in a former suit and the same fact or question is again put in issue in a subsequent suit between the same parties. In such cases the determination in the former suit of the fact or question, if properly presented and relied on, will be held conclusive on the parties in the later suit, regardless of the identity of the cause of action, or the lack of it in the two suits. When the second action between the same parties is upon a different cause of action, claim or demand, it is well settled that the judgment in the first suit operates as an estoppel only as to the point or question actually litigated and determined and not as to other matters which might have been litigated and determined. In such cases the inquiry must always be as to the point or question actually litigated and determined in the original action, the burden of proof is on him who invokes the estoppel, and extrinsic and parol evidence is admissible to prove that the precise question in the second case was raised and determined in the first. . . . This principle is sometimes called estoppel by verdict, and the estoppel is equally available to either party, the plaintiff in support of his action or the defendant of his defense, when the circumstances warrant it. Whether the adjudication relied on as an estoppel goes to a single question or all the questions involved in the case, the fundamental principle upon which it is allowed is that justice and public policy alike demand that a matter, whether consisting of one or many questions, which has been solemnly adjudicated in a court of competent jurisdiction shall be deemed finally and conclusively settled in any subsequent litigation between the same parties where the same question or questions arise, except where the litigation is a direct proceeding for the purpose of reversing or setting aside such adjudication.”

Under the situation presented here the doctrine of res adjudicate/, cannot be successfully invoked by appellants against the defense urged and relied upon by Coleman as residuary devisee in the second proceeding. Although the cause of action in both proceedings involved the claimed right of appellants to have the real estate sold to pay the money legacies, the relief sought in the first proceeding was a direction to the executor to file a petition to sell the real estate, while in the second proceeding the relief sought was the actual sale of the real estate. The only issue in the first proceeding was whether the executor should be required to file a petition to sell and the issue in the second proceeding was whether the real estate should be ordered sold. It is insisted by Coleman as residuary devisee that the parties were not the same in the two proceedings, that the only proper and necessary party respondent to the petition filed by appellants in the first proceeding was the executor, against whom said appellants sought a direction in the trial court to file a petition to sell the real estate and that in the second proceeding it was necessary to make Coleman individually a party because of his interest in the real estate as residuary devisee. It is urged by appellants that Coleman as executor and Coleman as residuary devisee should be considered as one and the same person for the purpose of these proceedings, since in the first proceeding that resulted in the order against Coleman as executor, he was afforded full opportunity as personal representative to protect his rights as successor to the realty. Even if the law in this respect were as appellants contend, it could only be applicable here if the order entered in the first proceeding was a final order. It is unnecessary to consider or determine the contentions of the parties in this regard, since, as will hereinafter be shown, the order entered in the first proceeding was not and could not be a final determination of appellants’ claimed right to have,the real estate sold to pay the money legacies. Even though it be assumed that the cause of action and the parties were the same in both proceedings, still the doctrine of res ad judicata could not be properly invoked as a bar to the defense of Coleman individually as residuary devisee in the second proceeding, since, as already shown, “the thing to be recovered” or the relief sought was not the same in both proceedings.

If it be assumed that the parties were the same in both proceedings and that the executor was afforded full opportunity in the first proceeding as personal representative to protect his rights as successor to the real estate, it might seem at first blush that the principle of estoppel by verdict was properly invoked as a bar to the defense of Coleman as residuary legatee in the second proceeding. The real question at issue and determined in the first proceeding was whether the testator intended to charge the real estate in her estate with the payment of the money legacies and the same question was at issue and had to be determined in the second proceeding. Necessarily there had to be a finding as to the intention of the testator to charge her real estate with the payment of the money legacies to support the order in the first proceeding requiring the executor to file a petition to sell the real estate just as there had to be a similar finding in the second proceeding to support an order for the sale of the real estate on the executor’s petition to sell same. It will be remembered that the principle of estoppel by verdict applies even though the cause of action or the relief sought are not the same in both proceedings.

Notwithstanding the apparent applicability of the principle of estoppel by verdict as a bar to the defense of Coleman as residuary devisee in the second proceeding, the fact that the order entered in the first proceeding was not and could not be a final order constitutes an insurmountable obstacle to the application of such principle to said defense. The only relief sought in the first proceeding, as has already been pointed out, was simply an order directing an initiatory or preliminary step in a proceeding in which a final order would subsequently be entered. (McCollister v. Greene County Nat. Bank, 171 Ill. 608.) The only responsive order that could properly have been entered in the first proceeding was in its very nature interlocutory and not appealable. It is only a final determination, which is appealable, of the issue or issues involved in a proceeding that can be invoked by way of res adjudicata or estoppel by verdict as a bar to a subsequent proceeding between the same parties. That only an appealable final judgment or order is conclusive as to a subsequent proceeding is the established law of this State.

In McCollister v. Greene County Nat. Bank, supra, a petition was filed by a claimant, whose claim was allowed against the estate involved therein, to require the administrator of said estate to inventory certain lands as the property of the decedent and to file a petition for a decree and order of sale of said land. The county court denied the prayer of the petition but on appeal to the circuit court an order was entered remanding the cause with directions to require the administrator to inventory the land in said estate and to petition the court for an order authorizing the sale of said land to pay the claims. In dismissing an appeal filed therein by the administrator from the order of the circuit court, the Supreme Court said at p. 611:

“The judgment or order appealed from is not a final order, but simply an order directing an initiatory step, necessary to bring before the county court a cause for disposition in that court, should be taken. In its nature it is not unlike an order entered granting leave to file an information, or an intervening petition, or a cross-bill, or giving leave to prosecute as a poor person, or an order citing an administrator to appear and file a report or show cause, etc. As against the petitioner the order of the county court denying the application for the order against the administrator was a final, appealable order. It disposed of the subject matter of the controversy finally, unless reversed, hence the petitioner had the right to appeal to the circuit court. Had the petition been granted by the county court it would have been in no sense final, but only preliminary, and as but a step in a proceeding in which a final order would subsequently be entered. The order or judgment of the circuit court was but a preliminary — not a final— order. ’ ’

(To the same effect are Lane v. Thorn, 103 Ill. App. 215; VanSellar v. James, 113 Ill. App. 206; Wotowa v. Rockey, 229 Ill. App. 273.)

The same judge tried both proceedings. When the doctrine of res adjudicata was invoked in the second proceeding, he realized that the first proceeding was merely preliminary or initiatory and that the only order that he should have entered therein responsive to the prayer of appellants ’ petition and determinative of the only issue raised by the pleadings was that requiring the executor to file a petition to sell the real estate and that his inclusion in the order entered in the first proceeding of a direction to the executor to sell the real estate and pay the money legacies in full was improper. Therefore the inclusion in the order entered in the first proceeding of the direction to the executor to sell the real estate and pay the money legacies in full was mere surplusage.

We are impelled to hold that the order appealed from dismissing the executor’s petition to sell the real estate was properly entered and said order of the probate court is therefore affirmed.

Order affirmed.

Friend, P. J., and Scanlan, J., concur.