author: Mr. Justice Hebei,

text:
    Mary S. Bingham, Appellant, v. H. L. Ditzler et al., Appellees.
    Gen. No. 42,323.
    Opinion filed June 30, 1943.
    John J. Healy, of Chicago, for appellant.
    Thompson, Chambees & Thompson, of Chicago, for certain appellee; Lavern W. Thompson, of Chicago, of counsel.
   Mr. Justice Hebei,

delivered the opinion of the court.

This a derivative action instituted by Mary S. Bingham, the plaintiff, as á minority stockholder of The Chicago Roller Company to compel the restoration to the company of moneys unlawfully appropriated by its officers and directors, who refused to take action after demand made.

As a result of the institution and prosecution of the suit, the individual defendants H. L. Ditzler, Millard F. Bingham, Jr. and H. A. Bresemann, officers and directors of the company, have been finally decreed to repay to the defendant, The Chicago Roller Company, the sum of $3,600, which was unlawfully appropriated and paid to H. A. Bresemann as bonuses in the years 1936 and 1937. Further effort is now pending in this cause to secure a return to the company of all or part of commissions paid to the defendant H. L. Ditzler during the years 1936 and 1937 in the amount of $13,997.52. The accounting by Ditzler has already been finally decreed and the matter is now pending on reference before one of the masters in chancery of the superior court.

An agreed record was filed in the trial court and there is no dispute between the parties either on the facts or on the pleadings. The original case was heard on appeal before this court where the decree of the chancellor was affirmed. Bingham v. Ditzler, 309 Ill. App. 581.

Leave to appeal was denied in the Supreme Court.

On the present record, as it is called to our attention in the briefs, a single question of law arises, as to whether or not in a minority stockholder suit a plaintiff is entitled to be paid out of the recovery her reasonable attorneys’ fees where she has successfully compelled the restoration to the corporation of moneys unlawfully appropriated by its officers and directors.

In her original and supplemental complaints plaintiff prayed for an allowance of her attorneys’ fees. The chancellor found and decreed as a matter of law that the plaintiff was not entitled to recover attorneys’fees, and by his decree of April 13, 1942 denied the right of plaintiff to prove and have such fee allowed.

At the same time the chancellor denied plaintiff’s motion to retain jurisdiction and defer all action on the question of attorneys’ fees until after he had finally decided the accounting question which was that day referred to one of the masters in chancery of the court.

The plaintiff’s theory is (a) that the moneys which she seeks to recover for the defendant company were trust funds held by its officers and directors for the benefit and use of the company and its stockholders; (b) that the officers and directors of the company having refused to take action to recover for the company moneys unlawfully appropriated, it thereby became necessary and proper for the plaintiff to undergo the expense of employing counsel to enforce restoration of the money unlawfully appropriated for which expense she is entitled to be reimbursed; and (c) that the present case falls within the exception to the general rule that fees and costs will not be awarded unless authorized by contract or statute.

Defendant’s theory upon these questions involved is (a) that a court of equity is without power to allow attorneys’ fees to the plaintiff unless the right to do so is authorized by contract or statute; and (b) that since there is no contractual relation between the parties and no statute authorizing the allowance of fees the court is without power to make such allowance.

Upon the questions that are before this court the plaintiff calls to our attention the fact that the subject matter of the present controversy is a trust fund committed to the care of the individual defendants as trustees for the benefit of the corporation and its stockholders. The plaintiff cites in support of her contention on this point that it is finally and conclusively set at rest in this case by the decision of this court on the former appeal. Bingham v. Ditzler, 309 Ill. App. 581, in which at page 597 this court said:

“The directors of a corporation are trustees of its business and property for the collective body of stockholders .... They are subject to the general rule in regard to trusts and trustees.”

In support of the above excerpt from the court’s opinion plaintiff has cited a number’of other Illinois cases where the same rule is laid down.

Plaintiff’s next contention which is directed to the court’s attention is that it should also be kept clearly in mind that in a derivative action such as the one at bar the minority stockholder institutes the action simply in order to set in motion the judicial proceedings so as to accord to the injured corporation the relief to which it is entitled. And it is contended that thereafter the suit is not different from one brought by the corporation itself, and it is- axiomatic that if the suit were brought directly by the corporation all the attendant expenses, including attorneys’ fees, would necessarily be borne by the corporation. It is further suggested that likewise here the burden of the expense should properly be borne by the recipient of the final and favorable outcome of the suit.

Our attention is called to the rule laid down in Pomeroy’s Equity Jurisprudence, 3d Ed., sec. 1095, where it is said:

“The stockholder does not bring such a suit because his rights have been directly violated, or because the cause of action is his, or because he is entitled to the relief sought; he is permitted to sue in this manner simply in order to set in motion the judicial machinery of the court. The stockholder, either individually or as the representative of the class, may commence the suit, and may prosecute it to judgment; but in every other respect the action is the ordinary one brought by the corporation, it is maintained directly for the benefit of tbe corporation, and the final relief, when obtained, belongs to the corporation, and not to the stockholder-plaintiff. The corporation is, therefore, an indispensably necessary party, not simply on the general principles of equity pleading in order that it may be bound by the decree, but in order that the relief, when granted, may be awarded to it, as a party to the record, by the decree.”

This rule is amply supported by the opinion of this court in Bingham v. Ditzler, 309 Ill. App. 581.

It is urged that there is no good reason why the defendant, The Chicago Roller Company, should not bear the expenses of the present proceeding, in view of the fact that it is the recipient of its favorable outcome, and that otherwise minority stockholders would be effectively discouraged and deterred from instituting actions against controlling directors and officers where, as here, they appropriated the funds of the corporation to their own improper use.

It appears that this plaintiff has not only been put to the expense of a long contested hearing before the master and the court but she has also been compelled to follow successive appeals to this and the Supreme Court, and it is argued that to turn her now from the doors of a court of equity without reimbursing her for her attorney and other expenses would be inequitable and unjust.

On the other hand, the defendant contends that there are no trust funds involved and points to the fact that the plaintiff requests at the beginning of her argument that it be clearly borne in mind that the subject matter of.the present controversy is a trust fund committed to the care of the individual defendants as trustees, and claims that that particular question is finally, and conclusively set at rest by the previous decision in this case.

Defendant calls attention tó the fact that the decree of May 20, 1940 entered a final and conclusive judgment against the defendants, H. L. Ditzler, H. A. Bresemann and M. F. Bingham, Jr. and in favor of The Chicago Boiler Company for the sum of $3,600 and also directed that the amount, if any, found due on the accounting should likewise be paid to the company; that the so-called “trust fund” thereby becomes part of the general assets of The Chicago Boiler Company, and therefore contends that it constitutes “trust funds” to the same extent as any other assets of The Chicago Boiler Company and no farther.

It is further contended by the defendant that it was evident that neither the court nor the plaintiff had any idea that they were dealing with a trust fund, citing from Bingham v. Ditzler, 309 Ill. App. 581, at page 595 where this court said:

“. . . It is apparent from the citations that are before us that the action that is here on appeal was properly instituted by the plaintiff, and, from the relief granted by the decree, the moneys are to be paid to the corporation and not to the plaintiff.”

and later said:

“. . . It is well stated by the plaintiff that a conclusive answer to this fallacious contention [that the plaintiff was seeking to destroy The Chicago Boiler Company] is found in the undisputed fact that the sole purpose of the present suit is to secure a return to the treasury of the company of a substantial sum of money which has been diverted and improperly expended. The return of such money will necessarily be beneficial and in no wise injurious.”

It is further stated by the defendant that the proposition that all funds of a corporation are, generally speaking, trust funds, to be administered by the directors for the benefit of the stockholders, will of course be conceded but it does not follow that such funds are subject to administration by a court to the same extent as the assets of an express trust or even of a resulting trust and no cases which have been cited by the plaintiff establish that proposition.

It is then further contended that the plaintiff has no interest in the amount recovered and that the amount of the recovery in a minority stockholders’ suit is easily distinguished from cases in the nature of those establishing a resulting trust or the rights of numerous bondholders in their common interest in the property secured by the mortgage; that in the cases of Voorhees v. Mason, 245 Ill. 256, and Chicago Macaroni Mfg. Co. v. Boggiano, 202 Ill. 312, decrees were reversed in minority stockholders ’ suits for decreeing payment direct to the minority stockholders for their proportionate share of the recovery in place of decreeing the payment direct to the corporation and this principle was also affirmed in the previous appeal in the ease at bar. It is also contended that the reason that might be assigned for distinguishing minority stockholders ’ cases like the one at bar from bond issue reorganization cases and those of that character is found in the fact that in the board of directors, of the company there already exists an administrative agency legally qualified and exclusively entitled to manage the assets of the corporation. Corbus v. Alaska Treadwell Gold Min. Co., 187 U. S. 455, is citéd, where the court said:

“The directors represent all the stockholders and are presumed to act honestly and according to their best judgment for the interest of all. Their judgment as to any matter lawfully confided to their discretion may not lightly be challenged by any stockholder or at his instance submitted for review to a court of equity. . . . It is not a trifling thing for a stockholder to attempt to coerce the directors of a corporation to an act which, their judgment does not approve, or to substitute his judgment for theirs.”

Defendant avers that judgment against any of the defendants personally for attorneys ’ fees would be improper.

The plaintiff suggests and calls to our attention that this question of the recovery of necessary expense and disbursements, including attorneys’ fees, has never been passed on in this court or in the Supreme Court of Illinois, but that the fundamental and controlling legal principle has been frequently recognized in this State.

The question of a stockholder’s right to recover attorneys’ fees has been passed upon many times in other jurisdictions and the general rule is clearly and tersely announced in vol. 13, Fletcher Cyclopedia on Corporations, sec. 6045, page 363, where the author says:

“The general rule is that if the plaintiff in a stockholders’ suit is successful and the benefit goes to the corporation, he is entitled to recover his necessary ex-pénses and disbursements, including, an attorney’s fee.”

Approval of the above rule is found in many jurisdictions where the question has arisen. In support of this contention are the cases of McCourt v. Singers-Bigger, 145 Fed. 103; Graham v. Dubuque Specialty Mach. Works, 138 Iowa 456, 114 N. W. 619; Beaudette v. Graham, 267 Mass. 7, 165 N. E. 671; and Davis v. Gemmell, 73 Md. 530, 21 Atl. 712. The case of Merle v. Beifeld, 275 Ill. 594 involved the question now under consideration, and while it only established the law of the particular case it shows that the trial court found the law to be as plaintiff here contends. There a minority stockholder successfully sought and recovered for.the corporation money improperly appropriated and claimed the right to be paid his expenses and attorney’s fees. The trial court allowed an attorney’s fee. Upon appeal the Supreme Court affirmed the decree hut refused to consider the right to recover an attorney’s fee for the reason that error was not properly assigned on that question.

In view of the unanimity of opinion in other jurisdictions and the rule of law laid down in cases cited in our opinion there is no good reason upon which to base a refusal to allow attorney’s fees in this case.

Assuming now the right of the plaintiff to her attorney’s fees, it is self-evident that until the accounting question is disposed of neither the court nor plaintiff will be in a position to decide and determine the value of the services rendered. If the final recovery is not greater than $3,600, the amount now fixed by final decree, the value of the services will necessarily be in proportion to that sum. But on the other hand if on the final accounting the recovery shall be for a much larger sum, then it follows that a larger fee will be allowed. For the reasons stated the court’s final action should not take place until the court is in a position to know how much has been recovered and how much service has been given by plaintiff’s-attorney in prosecuting the suit to a final conclusion.

In applying the principle as to the right of the plaintiff to her attorney’s fees it is well to keep in mind that the subject matter of the present controversy is a fund held in trust by the officers and directors of The Chicago Boiler Company for its stockholders, then the principle will be found to be in complete harmony with all the adjudicated cases. One of the cases on the question is Trustees of Internal Improv. Fund v. Greenough, 105 U. S. 527, where the court said upon the question we have before this court:

“It is a general principle that a trust estate must bear the expenses of its administration. It is also established by sufficient authority that where one of many parties having a common interest in a trust fund, at his own espense takes proper proceedings to save it from destruction and to restore it to the purposes of the trust, he is entitled to reimbursement either out of the fund itself, or by proportional contribution from those who accept the benefit of his efforts.”

Following the opinion in Trustees of Internal Improv. Fund v. Greenough, 105 U. S. 527, the decision of this court in the case of Stahl v. Stahl, 166 Ill. App. 236, establishes the right of the plaintiff to recover attorney’s fees. Certiorari was denied in that case by the Supreme Court. Upon the question this court said:

“Appellants contend that the court erred in allowing solicitor’s fees to be paid Morse Ives out of the proceeds of the sale of the trust estate . . ’. the contest being only as to whether or not any compensation is permissible out of the proceeds of the sale for Ives ’ services in establishing and preserving the trust estate .... The premises were claimed by Frank A. Stahl and John Stahl, and their assertion of title to it made the services of attorneys necessary to secure an adjudication that it was in fact a trust estate; such adjudication having been made, there should be an allowance of reasonable solicitor’s fees to be paid out of the fund, and before it is divided among those entitled to it. Abend v. Endowment Fund Commission, 174 Ill. 96; Chick v. Northwestern Shoe Co. 118 Fed. 933; White v. University Land Co., 49 Mo. App. 450; Trustees v. Greenough, 105 U. S. 527.”

The case of First National Bank v. LaSalle-Wacker Bldg. Corp., 280 Ill. App. 188, supports the position of this court in the conclusion that was reached in the Stahl case. That case was a foreclosure proceeding which involved a plan of reorganization. Certain of the bondholders intervened and submitted a plan which the court adopted and found to be more favorable to the holders of the bonds than was the plan submitted by the complainants. For their attorneys’ services in proposing and securing approval of the more favorable plan which resulted in greater benefit to all the bondholders, they claimed the right to be reimbursed for their expenses and attorneys’ fees, which claims were allowed in substantial amounts. On appeal this court speaking through Mr. Justice O’Connor said in the opinion that was filed:

“We think the rule is firmly established that a court of equity . . . will in its discretion order an allowance of solicitor’s fees to a party who, at his own expense, has maintained a successful suit for the preservation, protection or increase of the common fund or of common property, or who has created at his own expense or brought into court, a fund in which others may share with him.” (Citing many cases, among which are Trustees v. Greenough, 105 U. S. 527, Stahl v. Stahl, 166 Ill. App. 236, and Abend v. Endowment Fund Commission, 174 Ill. 96, herein referred to.)

The case of Abend v. Endowment Fund Commission, last above cited, supports the decisions of this court. The court there said:

“It is also claimed that the allowance, out of the fund, of solicitors ’ fees is error .... A trust may be lawfully required to bear the necessary expenses of its own preservation. The claim to this fund set up and pressed by appellant made the services of solicitors necessary to the preservation of any part of it to its proper use, and the allowance of reasonable solicitors’ fees, to be paid out of the fund, under such circumstances is neither error nor a diversion of the fund.”

See also People ex rel. Barrett v. Fond du Lac State Bank, 309 Ill. App. 139.

In our opinion the decree should be, and it is hereby reversed and remanded with directions to the trial court to retain jurisdiction of the question until after the court has passed upon the accounting, and with directions that the court then decide and determine the reasonable value of plaintiff’s attorney’s fees and make allowance therefor of and from all moneys thereafter received by the defendant The Chicago Roller Company as a result of the institution and prosecution of this cause.

Reversed and remanded with directions.

Burke, P. J., and Kiley, J., concur.


source: Caselaw Access Project

author: Mr. Justice Hebel Mr. Presiding Justice Burke

license: Public Domain

text:
    Nathan Greenberg, Appellee, v. I. Neiman, Appellant.
    Gen. No. 42,348.

      Burke, P. J., dissenting.
    Opinion filed June 30, 1943.
    Harold A. Fein, of Chicago, for appellant.
    A. A. Schwarzbach, of Chicago, for appellee; Bernard W. Vinissky, of Chicago, of counsel.
   Mr. Justice Hebel

delivered the opinion of the court.

This is an appeal by the defendant from a judgment of the municipal court entered April 13,1942, on a finding by the court confirming an original judgment by confession entered on December 6, 1937, for $809.79 and costs.

The pleadings in the case consist of '(1) statement of claim and cognovit, filed December 3, 1937; (2) petition to vácate judgment filed by the defendant November 17, 1941; (3) amended petition to vacate the judgment, filed December 8, 1941, which by order of court stood as the affidavit of defense; and (4) plaintiff’s answer to the amended petition, filed December 13,- 1941.

No question is raised as to the pleadings that were filed in the instant case.

On July 26, 1936, at Hillsboro, Montgomery county, Illinois, defendant executed a series of seven notes, each in the sum of $100, payable one each month, commencing November 1,1936, to the order of plaintiff at the Hillsboro National Bank. The notes are on printed forms of the Hillsboro National Bank. Statement of claim and cognovit was filed on December 3, 1937, in the municipal court of Chicago, after the maturity of the first two of the notes but before the maturity of the remaining five. Leave was granted to the defendant, on February 10, 1942, to appear and make defense. Defendant’s amended petition was filed December 8, 1941, standing by direction of the court as the affidavit of defense. On trial before the court, defendant offered evidence, to show that the notes, upon which judgment was confessed, were executed at Hillsboro, Illinois, outside of the county of Cook, and that at the time of the entry of judgment by confession and continuously thereafter and to the date of the hearing, he was not a resident of the city of Chicago, or county of Cook. No evidence was offered by the plaintiff. It is suggested by the defense that the defendant’s answer therefore stands uneontradicted.

Defendant lived in Chicago prior to 1922, when he moved to Argos, Indiana, living there between 1922 and 1930. In 1928 he commenced his business, organizing an Indiana corporation, the Chicago Garment Co., located at La Pórte, Indiana. The defendant was a stockholder, director and president óf that company which has engaged in business continuously at La Porte, Indiana since 1928. In 1930 he left Argos and moved to La Porte, Indiana, where he acquired ownership of a farm in La Porte county, Route No. 1, and has lived there continuously since 1930 to the present time, except for temporary residence, during the winter months, in the Town of La Porte at 907 Indiana avenue, so that he would be near his business, the farm being five miles distant. In addition to the ownership of the farm he also owned two half-sections of land in La Porte county in 1936 and 1937. He voted in La Porte, Indiana. He maintained his bank account at the First National Bank at La Porte, Indiana. He paid the gross income tax, levied by the State of Indiana. He paid personal property taxes in La Porte. Throughout this period he maintained his office at La Porte and carried on negotiations with a stock broker, in Chicago, by telephone from La Porte.

During the period from 1930 to the present defendant’s family, consisting of his wife and children, resided in Chicago, Illinois, where his wife maintained an apartment together with his wife’s parents and defendant’s father. The defendant made week-end visits to Chicago about once a month, such visits usually commencing on Sunday mornings and terminating Sunday evenings. It is apparent from his testimony that the maintenance of an apartment by his wife and children and by his wife’s parents and the defendant’s father was a matter of convenience because of the attendance by the defendant’s children at schools in Chicago, and possibly tbe necessity for maintenance of this residence, in Chicago, by the wife and parents for their convenience. The rent on the Chicago apartment was paid by the wife, and the defendant said that he believed the lease was either signed by his wife or the parents bnt not by him. His name was not listed in the Chicago Telephone Directory whereas his wife’s name was listed. His wife maintained her own brokerage account.

The statements made here appear from the evidence offered by the defendant. As we have already indicated there was none offered by the plaintiff.

It is also suggested by the defense that the negative facts as to whether the defendant maintained a residence in Chicago on the date of the entry of the judgment or at any time thereafter were: He did not maintain a place of business in Chicago; owned no real estate or personal property in Chicago, he had no bank account in Chicago; and he did not pay any personal property taxes in Cook county. It also appeared that he did not vote in Chicago, and, in fact, says that he last lived in Chicago in 1922. The agreement between plaintiff and defendant and the notes in question were executed at Hillsboro, Illinois, the defendant being represented by attorneys of Hillsboro, Illinois. There was no evidence offered by the plaintiff in this connection and the question is whether the judgment of the municipal court is void for want of jurisdiction.

Rule No. 185 of the Revised Civil Practice Rules of the municipal court, as amended October 1, 1937, is as follows:

“By whom and when judgments may be confessed.
“Any person for a debt bona fide due may confess judgment by himself or attorney, duly authorized, without process: Provided, however, that no such judgment shall be confessed in the Municipal Court in pursuance of any warrant of attorney in writing unless the note or obligation upon which the same is based was executed in the County of Cook, or one or more of the makers of such note or obligation is a resident of such county at'the time the judgment is confessed. For the purpose of this rule a corporation, a copartnership or an individual carrying on business in the County of Cook shall be deemed a resident of said county.”

The note to Eule No. 185, as formulated by the municipal court, is as follows:

“1. This rule as amended conforms with Section 50(5) of the Civil Practice Act as amended in 1935 (Laws of 1935, p. 1072) which provides that an application to confess judgment shall be made in the county in which the note or obligation was executed or in the county where one or more of the defendants reside.
“2. The rule does not deal with substantive law. If it did Section 13 of Article IY of the Constitution would make it invalid. (Ginsberg v. Ginsberg, 361 Ill. 499.) Confessions of judgments are purely matters of practice and have never been dealt with in legislation otherwise than in practice acts.”

Defendant’s petition or affidavit of defense alleges that the notes upon which the judgment was confessed, were executed at Hillsboro, Illinois and that at the time of the entry of judgment, December 6, 1937, the defendant was not then a resident of the city of Chicago or county of Cook, and it is suggested that the evidence of the defendant clearly sustains these two allegations of fact as alleged in the pleadings and it would therefore appear that the court had no jurisdiction to enter judgment by confession, and it is urged that the judgment should have been vacated and set aside.

The burden of proof, as suggested in the second point of the defense, was on the plaintiff to establish either of the jurisdictional factors (a) execution of the notes within the county of Cook, or (b) residence' of the defendant within the county of Cook. It is suggested that defendant’s petition and motion having attacked the jurisdiction of the- court,' leave was granted to appear and defend on that ground; that the merits of any controversy between the parties or consideration or failure thereof were not at issue. It is urged that defendant, by his own evidence, conclusively proved (a)- that the.notes were executed at Hillsboro, Illinois, outside of the county of Cook, and beyond the territorial jurisdiction of the municipal court of Chicago, and (b) that he was not, in December 1937, or at any time thereafter, a resident of, or engaged in business, within the city of Chicago or county of Cook; and it was further contended that having established these facts and the consequent lack of jurisdiction of the court, the burden then shifted to the plaintiff to establish the jurisdiction of the municipal court by refuting defendant’s testimony as to his domicile or residence. Defendant cites as authority upon this question the case of In re Estate of Quinn, 283 Ill. App. 597, wherein the defendant having established his domicile or place of residence in Indiana, the court held that the burden of proof to rebut this fact was on the plaintiff who contended to the contrary. Domicile is presumed to follow residence or the place of residence is presumed to be, or is prima facie, the domicile of the individual. The burden of proof to rebut this presumption is on the person contending to the contrary. In re Estate of Dedmore, 257 Ill. App. 519.

It is further suggested as authority upon this question that in People v. Estate of Moir, 207 Ill. 180, it was held that a residence once established; the presumption is that it continues and the burden of proof is upon the party, who claims that a residence has in fact changed, to show such change, and that the court there said:

“To bring about a change of residence it is necessary that there be not only an intention to change the residence, but the change must actually be made, which can only be effected by abandoning the old and permanently locating in the new place -of residence.”

In other words the defendant contends that having established the fact that his residence was in La Porte, Indiana, for a long period of time, prior to and on the date of the confession of judgment, the burden was then upon plaintiff to show that the residence was in fact changed; that no effort was made to do so except by cross-examination of the defendant and even by that means the change of residence was not established; and that plaintiff having failed to so rebut the evidence or establish the court’s jurisdiction the judgment should have been vacated.

The plaintiff urges that the municipal court erred in opening up the judgment on motion of the defendant, and states that the defendant by his original and amended petitions asked the municipal court to vacate the judgment by reason of the fact that there was no jurisdiction over his person in that he was- not a resident of the county of Cook. It is further urged that in both the original and amended petitions the allegation is made that he has not between the date of execution of the notes and the date of confession resided in Cook county. However, this does not constitute an allegation that the defendant was not a resident of Cook county on the date judgment was confessed. Under the allegations of the amended petition on which the court acted in opening up the judgment there was no allegation that the defendant was not a resident of the county of Cook on the date judgment was confessed. Defendant alleged that from the date after the notes were signed until the day before the judgment was confessed he was not a resident of the county of Cook. This interpretation is dependent upon the proper meaning to be given to the word “between.”

In Richardson v. Ford, 14 Ill. 332, the court said: “"Where an act is to be done on a particular day, the party has the whole of the day in which to perform it. But where the act is to be done by or before a given day, it must be performed prior to that day. So, if an act is to be done between two certain days, it must be performed before the commencement of the latter day. In computing the time in such a case, both the days named are to be excluded.”

In Winans v. Thorp, 87 Ill. App. 297, 298, the'court said:

“When the word ‘between’ is used with reference to a period of time bounded by two other specified periods of time, such as between two days named, the days or other periods of time named as boundaries are excluded. ’ ’

Bule 185 of the municipal court refers to the time the judgment is confessed. This means the day upon which such judgment is entered. The defendant’s amended petition did not allege that he was not a resident of the county of Cook on December 6, 1937 and this did not authorize the court to open up the judgment to inquire whether or not the municipal court had jurisdiction over the person of the defendant. The fact that he was not a resident of the county of Cook on December 5, 1937, was not controlling. The question is whether or not he was a resident on December 6, 1937, and not having made such allegation in his amended petition, there was nothing upon which the municipal court of Chicago could properly predicate an order to open up the judgment.

It is further suggested that the defendant did not act in apt time and at the earliest possible moment as defined in the authorities cited by plaintiff. The original petition filed November 17, 1941, alleges that the petitioner “recently learned” of the judgment. This is a mere conclusion and does not show that the petitioner acted with diligence. The amended petition was filed 22 days later and contained the identical allegation in this respect. Defendant apparently has a flexible notion of the meaning of the word “recently.” There is no showing in the record why action was not taken on the original petition. It is a reasonable conclusion that the amended petition was not'filed in apt time. The filing of the original petition acted as a general appearance, there having been no limitation placed on the appearance of the defendant. (Nicholes v. People ex rel. Kochersperger, 165 Ill. 502; Kunde v. Prentice, 329 Ill. 82.) The verification to the original petition was made on November 12, 1941, thus showing that the defendant knew of the judgment prior to that date. The filing of the amended petition upon which action was taken by the court took place almost a month after that date. Under these circumstances, plaintiff contends that on the face of the petition the defendant has not proceeded at the earliest possible moment to raise the question of jurisdiction and therefore the municipal court erred in opening up the judgment.

The facts are that the judgment was opened on February 10, 1942 -and the defendant was given leave to appear and make defense herein in order that a trial of the cause be had notwithstanding the judgment, and that the petition stand as an affidavit of defense. The cause was heard on April 13, 1942, before Judge Uriefin and an order entered which recited that the cause came on to be heard in the regular course before the court without a jury and a judgment was entered on the finding that the original judgment by confession be affirmed. Plaintiff contends- that the defendant did not raise his defense at the earliest possible moment and that he waived his defense by having his petition stand as an affidavit of defense and proceeding to trial in the regular course and that he appeared generally in the case.

In Mitchell v. Comstock, 305 Ill. App. 360, the court said:

“The defendant, however, had entered a general appearance on August 29,1938, when he filed a motion to vacate the judgment. Such motion was supported by an affidavit by the, defendant. The motion and the affidavit raised points other than those questioning the jurisdiction of the court. The presentation of the motion on August 29,1938, was in itself a general appearance. (Kunde v. Prentice, 329 Ill. 82; People v. White, 263 Ill. App. 425.) The defendant did not seek to file a special appearance for the purpose of attacking the jurisdiction of the court until approximately six months after his general appearance had been filed, and then he insisted on preserving his right to urge all the points set up in his original motion which we have held constituted a general appearance. The defendant having appeared generally, the court had an undoubted right to enter judgment against him to the same extent as if he had been served with a summons.”

It appears that defendant in the instant case in filing his original and his amended petition did not in any way limit his appearance to make it a special appearanee. Appearances are of two kinds, as suggested in the brief; they are general and special, and a special appearance must be so designated to prevent it from being construed as a general appearance. An appearance for any purpose other than to question the jurisdiction of the court is general even though it is designated as special. (Nicholes v. People ex rel. Kochersperger, 165 Ill. 502.) In May v. Chas. O. Larson Co., 304 Ill. App. 137, the court held that the defendant by entering a general appearance instead of raising the question of jurisdiction by proper motion in apt time waived the right to raise such question.

It is further urged that in Iles v. Heidenreich, 271 Ill. 480, the court, in discussing section 28 of the Municipal Court Act, said:

“Under this section it has been frequently and uniformly held that the statute confers a privilege upon one who is made defendant -in a suit, of which he can avail himself if he chooses, but if he does not plead his privilege in apt time he will be regarded as having waived it and submitted to the jurisdiction of the court. ’ ’

The defendant in this case did not obtain from the motion judge in the municipal court an order which limited the trial of the case to the issues raised by his amended motion to vacate the judgment. The judgment was opened up and the defendant had an order which permitted his petition to stand as an affidavit of defense. The trial was had in regular course and was not in any way limited to the. issue of jurisdiction. Participating in this trial after the entry of the order that the amended petition stand as an affidavit of defense constituted a general appearance for all purposes. In support of this position our attention is called to the case entitled Willis v. Doratis, 263 Ill. App. 97, where the court said:

“It is unnecessary to consider the various points made by the attorney of the Pullman Bank, none of which go to the merits of plaintiff’s claim, for by his participation in the final trial of the case he waived all prior irregularities. Judge Borelli had jurisdiction of the subject matter and, if the defendant wished to question the jurisdiction of the court when the case was reinstated, they should either not have appeared at all or limited their appearance to an objection to the jurisdiction of the court. They did not do so but participated in the trial, thus waiving the question of jurisdiction.”

This authority as it is suggested is directly applicable to the case at bar. The order entered by Judge G-rieeih after the trial of the case recites that the cause came on for trial in regular course. Nowhere in the record does it appear that defendant’s counsel specifically limited his appearance to an objection to the jurisdiction of the court. By not specifically limiting his appearance to an objection to the jurisdiction of the court and by participating in a trial held in regular course the defendant submitted himself to the jurisdiction of the court as fully as if he had been served with process.

We are of the opinion that the facts as they are contained in the opinion of the Appellate Court in the case of Zipperman v. Wiltse, 317 Ill. App. 654 (Abst.), filed March 2, 1943, are pertinent upon the very questions we have in the instant case. There the court said:

“The equities in this case are all in favor of plaintiff. Defendants make no claim of a meritorious defense to the indebtedness. When the court denied their motion to vacate the judgment a provision was incorporated in the order giving them leave to allow their special appearance to stand ás a general appearance and to file an affidavit of defense in ten days. No defense was filed by either of them. Moreover, it affirmatively appears that both of them had personal knowledge of the proceedings in question for several years prior to the entry of their motion to vacate, and if they desired to take advantage of the statute it was their duty to act within a reasonable time after they learned of the entry of the judgment. They have thus failed to show either a meritorious defense or diligence.”

It appears from this record that the defendant offered no evidence that tended to justify the court in reaching a conclusion that the notes were not properly executed by him and delivered at the time they were executed and for these reasons no evidence of a defense was offered that would justify the court in finding for the defendant.

For the reasons we have stated in this opinion, we find that the motion to vacate was properly denied, and the judgment of the municipal court is therefore affirmed.

Judgment affirmed.

Kiley, J., concurs. ,

Mr. Presiding Justice Burke

dissenting: It will be observed that the parties did not discuss the case of Werner v. Illinois Cent. B. Co., 379 Ill. 559, which involved the jurisdiction of a city court over matters arising outside the territorial limits of the city. This subject involves the application of Section 1 of Article VI and Section 34 of Article IV of the Constitution of 1870. In the Werner case the Supreme Court ruled that the city court of East St. Louis and courts similarly organized had jurisdiction only of matters which arose within the territorial limits of the city. The contention of those who argue that the Werner case has no application to the municipal court of Chicago is that the latter court was organized under 'a special constitutional provision, Section 34 of Article IV. Those who urge that the Werner case is applicable to the municipal court of Chicago assert that Section 34 of Article IV does not itself give the general assembly power to create municipal courts, but merely provides that in case it does create municipal courts it may then take certain other action; and that Section 34 of Article IV gives the general assembly only the power to abolish the offices of the justice of the peace, etc., in the event it does create a municipal court.

The judgment in the case at bar was entered by confession. An attorney designated by the plaintiff, pursuant to the warrant of attorney, entered the appearance of the defendant and consented to the entry .of the judgment. The defendant was not served with process, nor was a copy of the execution delivered to him. He did not learn of the entry of the judgment against him until shortly before the filing of his petition to vacate. He did not file a formal appearance. The petition to vacate constituted his appearance. Defendant did not submit to the jurisdiction of the municipal court of Chicago by filing his petition to vacate the judgment. The only relief sought by that petition was to vacate the judgment on the ground that the notes were executed on July 25,1936 at Hillsboro, Montgomery county, Illinois; that at the time of the execution of the notes he was a resident of La Porte, Indiana, and that he had not been, between the time, of the execution of the notes and the day judgment was confessed, a resident of Cook county. Defendant did not seek to have the merits of the case adjudicated and did not endeavor to make any defense. He confined his petition to an attack on the jurisdiction of the municipal court. Plaintiff answpred the petition. Thereupon the judgment was opened and leave was given to the defendant to defend, the judgment to stand as security and defendant’s petition to stand as an affidavit of defense. The parties knew that the only issue to be determined was as to jurisdiction. Ón a trial of the issue before the court the original judgment was confirmed. A perusal of the report of proceedings shows that in the trial evidence was presented on the issue of the residence of the defendant and was confined to that issue. The defendant in fact appeared specially for the purpose of attacking the jurisdiction of the court and the trial was confined to that issue.

It is undisputed that the notes were executed at Hillsboro, Montgomery county, Illinois, on July 25, 1936. The record clearly shows that at the time of the entry of the judgment by confession, and continuously thereafter and to the day of the trial, defendant was not a resident of Chicago or of Cook county. The testimony of the defendant on this subject stands uncontradicted. Defendant lived in Chicago prior to 1922, when he moved to Argos, Indiana. He lived there between 1922 and 1930. In 1930 he moved to La Porte, Indiana, in the vicinity of which he acquired ownership of a farm, and he has lived there continuously since 1930. He voted in La Porte and maintains his bank account in that city. His wife and children live in an apartment in Chicago. The defendant makes week-end visits to Chicago about once a month, such visits usually commencing' on Sunday morning and terminating Sunday evenings. Defendant’s name is not listed in the Chicago telephone directory. The name of the wife of the defendant is listed therein. He does not maintain a place of business in Chicago, nor does he own any real estate or personal property in Chicago. He does not have a bank account in Chicago. He does not pay any personal property tax in Cook county. He does pay personal property and income taxes in Indiana.

Rule No. 185 of the Revised Civil Practice Rules of the municipal court of Chicago provides that any person for a debt bona fide due may confess judgment by himself or attorney, duly authorized, without process, “Provided, however, that no such judgment shall be confessed in the municipal court in pursuance of any warrant of attorney in writing unless the note or obligation upon which the same is based was executed in the county of Cook, or one or more of the makers of such note or obligation is a resident of such county at the time the judgment is confessed.” The record clearly shows that the notes were executed outside of Cook county and that then and also at the time the judgment was confessed the defendant was not a resident of Cook county. In my opinion the judgment should be vacated without prejudice to the right of the plaintiff to institute a new suit in a court having jurisdiction over the subject matter and the parties.


author: Mr. Justice Kilby

text:
    James Pergl and Rose Pergl, Appellants, v. U. S. Axle Company et al. U. S. Axle Company, Appellee.
    Gen. No. 41,993.
    Opinion filed June 30, 1943.

      Gardner, Carton & Douglas, of Chicago, for appellants ; Erwin W. Roemer, Carl McGowan and James A. Yelde, all of Chicago, of counsel.
    Baker, Holder & Hagstrom, of Chicago, for appellee; Joseph G. Hagstrom, Edward J. Murray and John E. Baker, Jr., all of Chicago, of counsel.
   On Rehearing.

Mr. Justice Kilby

delivered the opinion of the court;

This is a personal injury action based on a defective automobile axle manufactured by U. S. Axle Company, defendant, and purchased from it by Southwest Auto Parts which sold the axle to plaintiffs. Plaintiffs appeal from an order quashing service of summons on the defendant, U. S. Axle Company on jurisdictional grounds. Johnson, manager of Warehousing Service Company was served as the Axle Company’s agent. The Axle Company filed a limited appearance and an affidavit in support thereof, setting forth that it was not doing business in Cook county or the State of Illinois, and the prayer was to quash the summons. A hearing was had on the motion. Defendant had the burden of proving that it was not doing business in Illinois when served. McGuire v. Outdoor Life Pub. Co., 311 Ill. App. 267.

The Axle Company offered the testimony of its secretary and treasurer; and plaintiffs the testimony of Johnson, general manager, and Priedberg, secretary and vice president of the Warehousing Service Company. The evidence that the Axle Company was not “here” is substantially that it maintained no office or place of business, paid no salaries, made no contracts, settled no complaints or disputes, pursued no collections, accepted no returns nor made any exchanges, owned no stock or property, had no stock pledged, had no bank account, had no contract for local utilities in Illinois, and was licensed for business only in Pennsylvania. The evidence also shows that a stock of defendant’s axles were stored with the Warehousing Company in Illinois almost continuously for more than 8 years; that Illinois customers selected from that stock, axles for which it gave the Warehousing Company either a check or cash which was forwarded in the first instance to Pottstown and in the second instance covered by Warehousing Company’s check which was in turn sent to Pottstown; and that on these occasions if the customer did not take the axles himself, Warehousing Company shipped them. The foundation of these transactions was the approved list of jobbers sent by defendant to, and kept by, the Warehousing Company.

The question in this case is whether the defendant company at the time of the service of the summons, was “doing business” in the State of Illinois and whether Johnson was a proper person to serve. The issue arises out of the due process clause of the 14th Amendment to the Federal Constitution. The term “doing business” has a different meaning when considering a State’s right to tax or license than when considering process of State courts; and we are not concerned with the interstate character of the business, for even if engaged solely in interstate commerce in Illinois, it is amenable to the process of State courts. International Harvester Co. v. Kentucky, 234 U. S. 579; Tausa v. Susquehanna Coal Co., 220 N. Y. 259; Restatement of Conflict of Laws, sec. 92; Taylor v. Southern Ry. Co., 350 Ill. 139; Lamont v. S. R. Moss Cigar Co., 218 Ill. App. 435.

In the main there is no dispute in the evidence and, consequently, a legal question was presented which the trial court decided in defendant’s favor.

The Axle Company insists that its relationship with Warehousing Service Company was that of bailor and bailee and that under the rule in Peoples Tobacco Co. v. American Tobacco Co., 246 U. S. 79, to be “doing business” here the business must be of such a nature as to warrant the inference that the Corporation has submitted to the local jurisdiction and is by its agent present here. We think that the service rendered by the Warehousing Service Company in connection with local jobbers indicates more than the relationship of bailor and bailee. Defendant says. Friedberg had no authority except to. solicit orders. The evidence of the Warehousing Company’s business with local jobbers is to the contrary.

Defendant contends principally that Friedberg and the Warehousing Service Company were merely soliciting agent and warehouse and relies upon the Peoples Tobacco Co. v. American Tobacco Co., 246 U. S. 79 and Green v. Chicago B. & Q. R. R. Co., 205 U. S. 530, to sustain its position that it was not present in Illinois so as to be subject to service. The International Harvester case decided that a continuous course of shipments into Kentucky following a continuous solicitation of orders from that State, and the acceptance in Kentucky of money or checks of customers, constituted ‘ ‘ doing business. ” We believe the instant case and the Harvester case have different facts than the Tobacco Company case and the latter is not controlling here. The same consideration disposes of Booz v. Texas & Pacific Ry. Co., 250 Ill. 376; the recent case Porcelli v. Great Atlantic & Pacific Tea Co., 128 N. J. L. 603, 27 A. (2d) 641; and Thomas Manufacturing Co. v. Thede, 186 Ill. App. 248, cited by the Axle Company. Marshall Milling Co. v. Rosenbluth, 231 Ill. App. 325, is a license case not pertinent here.

The leading cases cited by both parties on the principal question and the development of the principle applicable, are covered nicely, we think by Justice L. Hand in Hutchinson v. Chase & Gilbert, Inc., 45 F.(2d) 139. (See also West Pub. Co. v. Superior Court, 20 Cal. (2d) 720.) Because of the scarcity of Illinois law on the subject, we quote part of Justice Hahd’s decision :

“There must be some continuous dealings in the state of the forum; enough to demand a trial away from its home. . . .

“Possibly the maintenance of a regular agency for the solicitation of business will serve without more. The answer made in Green v. C. B. & Q. R. R. Co., 205 U. S. 530, 27 S. Ct. 595, 51 L. Ed. 916, and People’s Tob. Co. v. Amer. Tobacco Co., 246 U. S. 79, 38 S. Ct. 233, 62 L. Ed. 587, Ann. Cas. 1918C, 537, perhaps becomes somewhat doubtful in the light of International Harvester Co. v. Kentucky, 234 U. S. 579, 34 S. Ct. 944, 58 L. Ed. 1479, and, if it still remains true, it readily yields to slight additions. In Tauza v. Susquehanna Goal Co., supra, there was no more, but the business was continuous and substantial. Purchases though carried on regularly, are not enough (Rosenberg Co. v. Curtis Brown Co., 260 U. S. 516, 43 S. Ct. 170, 67 L. Ed. 372), nor are the activities of subsidiary corporations (Peterson v. Chicago, R. I. & P. Ry. Co., 205 U. S. 364, 27 S. Ct. 513, 51 L. Ed. 841; Cannon Mfg. Co. v. Cudahy Packing Co., 267 U. S. 333, 45 S. Ct. 250, 69 L. Ed. 634), or of connecting carriers (Philadelphia & Read Co. v. McKibbin, 243 U. S. 264, 37 S. Ct. 280, 61 L. Ed. 710). The maintenance of an office, though always a make-weight, and enough, when accompanied by continuous negotiation, to settle claims (St. Louis S. W. Ry. v. Alexander, 227 U. S. 218, 33 S. Ct. 245, 57 L. Ed. 486), is not of much significance (Davega, Inc. v. Lincoln Furniture Co., 29 F. (2) 164 (C. C. A. 2).] It is quite impossible to establish any rule from the decided cases; we must step from tuft to tuft across the morass. ’ ’

In our opinion Friedberg and the Warehousing Service Company were not merely, soliciting agent and warehouse, so as to make applicable the Peoples To bacco and the Green cases. There was not only a continuous solicitation of orders and continuous shipment into Illinois in response thereto, so as to make the International Harvester Co. v. Kentucky, 234 U. S. 579 (Day) and Tauza v. Susquehanna Coal Co., 220 N. Y. 259 (Cardozo) apply, but there was in addition a stock jf merchandise maintained here, more or less permanently, from which local jobbers were sold. The sales to local jobbers were made without notice to the Company and the last act being done here, Illinois is the place of the contract. Johnston v. Industrial Com., 352 Ill. 74. We cannot say that any local jobbers would have to go to Pennsylvania to sue on a right arising out of such sales, nor that plaintiff should be compelled under the circumstances here to sue in that State.

It is our opinion that the Company was here, subject to process of Illinois courts, and that Johnson was its agent upon whom service could be had under our practice.

For the reasons given the order of the trial court quashing the service is hereby reversed, and the cause remanded for further proceedings consistent herewith.

Order reversed and cause remanded.

Burke, P. J., and Hebel, J., concur.


author: Mr. Justice Kiley

text:
    Becky Colky, Appellee, v. Metropolitan Life Insurance Company, Appellant.
    Gen. No. 42,024.

      Opinion filed June 30, 1943.
    Hoyne, O’Connor & Rubinkam, of Chicago, for appellant; Nathaniel Rubinkam and John C. Melaniphy, both of Chicago, of connsel.
    Seltzer, Levy & Spiegel, of Chicago, for appellee, S. B. Rosenzweig, of Chicago, of connsel.
   On Rehearing,

Mr. Justice Kiley

delivered the opinion of the court.

This is an action by a beneficiary upon two industrial insurance policies each for $250.00, with verdict and judgment in plaintiff’s favor for $500.00. Defendant has appealed.

The verdict of the jury was:

“We the jury, find for plaintiff with $500.00 damages, plus insurance.”

On motion of the plaintiff the court corrected the verdict to read: “Five Hundred Dollars ($500.00).” Judgment was entered for that sum. The defendant concedes the court has the right to amend the verdict where the intention of the jury is clear, hut says that “the verdict here indicates the jury did not understand the issues as presented by the instructions.” As will appear from a discussion of the instructions hereinafter, we believe that there is no relation between the instructions and the surplusage in the verdict and there is no merit to defendant’s contention.

The first policy issued July 4, 1938 upon medical examination and the second August 29, 1938 without. Each policy provides that terms cannot be waived by any agent and that the policy is voidable if the insured within 2 years prior to the issuance has had institutional treatment or been attended by a physician, unless such treatment is shown to be not for serious disease, except where reference to the treatment is endorsed on the. policy. Plaintiff admits insured’s hospitalization and treatment for serious illness, but there was no endorsement thereof on the policies and the; issue is whether the pertinent provisions of the policies were waived by defendant’s agent.

Premiums were paid until the insured died. He was 45 years of age. .On July 14,1936, he was admitted to Mt. Sinai Hospital, where; he remained until July 20, 1936 and on December 3, 1936, was admitted to the Jewish Peoples Convalescent Home, where his serious illness was diagnosed as arteriosclerotic heart disease. He was treated in the latter institution until February 5,1937, when he was found to have a coronary disease. He was admitted again to Mt. Sinai Hospital for a few days in the summer of 1938, just before the first policy issued, and lie died suddenly of heart disease on January 27, 1939.

The .applications for policies were dated May 23, 1938, and August 29, 1938 and both were taken by Mintz, an employee of the; defendant. The first application consists of Parts A, B, C and D; “A” covers insured’s life and employment history and the beneficiary, and is signed by insured; “B” signed by Mintz, states, among other things, that the insured is in good health, that Mintz had no reason to suspect that insured had within 3 years any illness or disease, and that the amount applied for did not require medical examination, but that the examination had been requested by the insured; “C” signed by insured, states that he had never had a disease of the heart nor any treatment in any hospital within 5 years and that within 3 years his only treatment was for stomach disorder in 1935, with complete recovery; “D” signed and certified by,Sam Metcoff, defendant’s medical examiner, states, among other things, that in 1935 insured had been ill for a few weeks of a stomach disorder, that in the examiner’s opinion the insured was in good health, that insured’s heart was not diseased, and that Metcoff personally examined him. The second application, in which there was no medical examination, consisted of Parts A, B, C and D; “A”, “B” and “C” are the same in both; “D” differs— it is a “Report of the Field Representative,” signed and certified by Mintz, and states that insurefd was last under the care of a physician in 1934 for a cold for 3 days and fully recovered, and that in the opinion of Mintz, insured is in good health and that Mintz personally inspected insured.

Setting aside for a moment the question of the alleged truth or falsity of statements by the insured, we find in the first application under “C,” a statement that insured was treated in 1935 for stomacli disorder; and “D” certified by Dr. Metcoff, a confirmation of that disorder; under “D” second application, certificate by Mintz, that the last treatment by a physician of the. insured was in 1934 for a cold lasting three days, no mention is made of the stomach disorder.

Plaintiff says defendant, by Mintz, waived the pertinent policy provisions. Testimony on plaintiff’s behalf is that neither plaintiff nor insured could read or write English; that,Mintz had been calling at the Colky’s for 3 years; that Mintz prior to the first application was informed of insured’s treatment and condition and had offered to recommend a heart doctor; that Mintz had asked no questions with reference to insured’s physical condition or prior treatment or hospitalization ; that Mintz wrote the answers in both policies except those certified by the medical examiner; that the insured only signed the application; and that Mintz informed insured that no examination would be necessary for the second policy because hei had passed the first examination; that the only questions asked by the doctor were insured’s age and birth place; and that insured was examined in a bedroom. To all of this testimony defendant objected. . Defense testimony is that Mintz was a soliciting agent who canvassed for business, wrote applications, , collected premiums, delivered policies and aided in completing proof of death. Mintz admitted writing the answers, but says that he simply recorded the answers given by insured to the questions read by Mintz. He denied having any knowledge of insured’s sickness, being told of any, and offering to recommend a doctor. Dr. Metcoff testified that he examined the insured for a heart condition, but none was disclosed and that the insured signed the application before taking the medical test. Dr. Metcoff says he has been defendant’s medical examiner for about 30 years and that his examinations are more thorough in some cases than in others, depending on the amount of insurance involved. Since the insurance involved in the instant policy was but $250, we may infer that his examination was not very thorough. It is difficult to understand how he could- examine insured and not discover the heart condition when the evidence clearly shows insured’s heart was extensively damaged. It appears from the testimony that Mintz had written 8 or 10 policies for Colky’s family and that he called each Monday to collect premiums. It would seem natural for him to inquire now and again about the insured’s health and to learn of his hospitalization. There is no fair inference deducible against insured’s good faith. Mintz testified that only 6 or 7 out of 100 persons request medical examinations and since insured requested one, the inference is that he wanted to be sure his condition would not preclude the insurance.

The issue of waiver was one of fact for the jury, because there was evidence that Mintz knew of insured’s illness, unless on all the evidence and inferences tending to prove the facts, it can be said, as a matter of law, that he is not an agent with power to waive and did not waive, in which event the plaintiff should not recover.

If the question is for the jury, we think the issue was fairly presented as a debatable question and the verdict is one which we would not be justified in setting aside. The question, then, we are called upon to decide is whether Mintz, as a matter of law, on the evidence of his duties as an agent, had power to and did waive the pertinent provisions of the policies. There seems to be no dispute that if the question of waiver were not involved, defendant should prevail for it is clear that insured’s treatment and hospitalization was for a serious disease. The policy provides that the terms may not be waived by an agent, and the defendant insists the proof shows Mintz had no authority to waive or alter the terms of the policies. We are satisfied that Mintz had knowledge of insured’s condition and the history of his illness. Plaintiff contends that under the evidence and under the ruling in Mousette v. Monarch Life Ins. Co., 309 Ill. App. 224, Mintz was a general agent with power to waive.

Determination of the principal issue will resolve also the questions of error in the court’s admitting evidence of Mintz’ knowledge and giving plaintiff’s instructions 1 and 2. Plaintiff’s instruction No. 1, told the jury that defendant had the burden of proving that insured made false answers in the application and that such answers were material to the risk, knowingly and fraudulently made to procure the policies. Defendant says that since plaintiff admits falsity of the answers, the instruction is erroneous. Falsity of the answers was not an issue and the instruction should not have been given, however, the jury was correctly instructed as to the issues in other instructions and we cannot find that defendant was prejudiced. Plaintiff’s instruction No. 2 reads as follows:

“If you find from the evidence that the agent of the defendant insurance company, Mr. Mintz, was vested with the duties and had the authority to solicit insurance of the deceased and to collect premiums on said policies and to deliver said policies to the assured, then the defendant insurance company would be chargeable with any knowledge that the said agent may have had pertaining to the medical attention, hospitalization or diseases prior to the date of the applications for insurance.”

We shall refer to it later herein.

No error was committed in refusing to give defendant’s refused instruction No. 1, because defendant’s given instruction No. 2, covered the same point and told the jury that plaintiff had the burden of proving notice, of medical and institutional attendance within two years, to a duly authorized representative of the defendant capable of acting for the Company on such notice. The defendant’s refused instructions 2 and 3 were properly refused since they disregard the issue of waiver.

The essential dispute revolves about the insistence of defendant on the point that Mintz was a special not general agent and accordingly without authority to waive the pertinent clauses of the policy and consequently defendant is not -bound by any attempted waiver. A reading of the cases cited and others are not helpful to precise understanding of the terms general agent and special agent. “To dwell upon suggested distinctions between the powers of general and special agents is unprofitable. ” 2 C. J. C. p. 1238. Bach case must stand on its own facts in the light of general principles of agency, and the controlling precedents. Express agencies are not conclusive where greater powers than expressed are assumed and ratified, or where the agent is held out as possessing greater. Express prohibitions against waiving provisions may themselves be waived in the same fashion as express powers are enlarged.

Defendant has cited Sommerio v. Prudential Ins. Co., 289 Ill. App. 520. There an assistant superintendent, limited in power by express instructions, exceeded the instructions by soliciting and giving a receipt with a statement when the policy would be effective. Justice Friend said at page 524 that it was common knowledge that all insurance solicitors are authorized to accept applications and the initial premiums and forward them, and to deliver the policy to assured, but these powers do not constitute a general agency, where the authority is otherwise limited. The distinction between that case and this is apparent. Here, the evidence on the whole indicates that as between him and the Oolkys, he had a greater scope than that of a solicitor. In Hancock Life Ins. Co. v. Schlink, 175 Ill. 284, an agent advertised as “general agent,” but to offset that fact he was prohibited in writing from waiving provisions, and the court held that since he had power to solicit, take applications, collect premiums and deliver policies, he had power to waive a condition therein. In Niemann v. Security Benefit Ass’n, 350 Ill. 308, it was held that notice to the agent of an insurer, at the time an application for. insurance is made, of facts material to the risk is notice to the insurer which will prevent it from insisting upon a forfeiture because of such facts. The court there gave the Hancock case as authority for the statement that a general agent clothed with power to solicit insurance, receive and forward applications, receive and deliver policies and collect premiums has power to waive regardless of a provision in the policy which negatived that power. In the Hancock case, however, at page 290, the court did not use the term general agent, but simply agent. The same extension of the term used in the Hancock case is made in the Mousette case. We believe the rule which applies in favor of a beneficiary, where conclusions of the agent were written on the application instead of the truthful answers of the insured (Weisguth v. Supreme Tribe Ben Hur, 272 Ill. 541), should with greater force apply here where Mintz knew of Colky’s condition; where the medical examiner should have detected that condition; where the company should have seen the contradictions in the answers in the two policies and especially since the Colkys could not read or write English. The Hancock case appears to be the leading case on the subject of an agent’s power to waive and under it we are of the opinion that Mintz was empowered to and did waive the pertinent provisions of the policy; that the court properly admitted the evidence tending to prove Mintz’ knowledge and that plaintiff’s instruction number 2 was properly given.

For the reasons given the judgment in plaintiff’s favor is affirmed.

Judgment affirmed.

Burke, P. J., and Hebel, J., concur.


text:
    People of the State of Illinois, Defendant in Error, v. Charles Boynton, Plaintiff in Error.
    Gen. No. 42,464.
    Opinion filed June 30, 1943.
    W. G. Anderson, of Chicago, for plaintiff in error.
    Thomas J. Courtney, State’s Attorney, for defendant in error; Edward E. Wilson, John T. Gallagher*, Melvin - S. Remre and Joseph A. Pope, Assistant State’s Attorneys, of counsel.
   Mr. Justice Kiley

delivered the opinion of the court.

Defendant was convicted of pandering and sentenced to one year in the county jail. The original information by John O’Malley was filed April 6, 1942 and at arraignment that day defendant pleaded not guilty and waived jury trial. On April 16th, the day set for trial, defendant withdrew both plea and waiver and the cause was transferred to the jury branch of the municipal court for jury trial. April 21st, the next day set for trial, the State’s Attorney with leave, filed an amended information by William Kipp. Defendant waived jury trial and the court, after hearing, found him guilty on the amended information which was filed to supplant the insufficient original.

After trial the amended information was lost or destroyed, according to an affidavit and certificate of an assistant prosecutor and deputy municipal court clerk, respectively, who state a diligent search has failed to locate the pleading. A motion based on ch. 116, sec. 2, Ill. Rev. Stat. 1941 [Jones Ill. Stats. Ann. 117.02], was made by the State’s Attorney September 4, 1942 to supply the lost pleading. The motion was supported by the affidavit and certificate aforesaid, and the affidavit of the prosecutor who tried the case that he recalled filing the amended information and that it was the same as the copy presented by the motion. The trial court allowed the substitute filed, finding that the pleading was lost or destroyed without fault of the prosecutor; that a certified copy was unobtainable; that damages and injustice would result if the pleading were not supplied; and that his own memory confirmed the truth of the substitute offered. The order was entered September 4th. The writ of error issued out of this court August 29th.

Defendant contends the original information charged no crime and that the court had no jurisdiction to enter the judgment of conviction; that the court had no jurisdiction after the writ of error issued to enter the order of September 4th and the order itself was improper; and that defendants’ right to a jury trial was violated.

Defendant does not complain that the amended information upon which he was tried was insufficient and his first contention is without merit. He seeks to vitiate a judgment which, for all that appears, was regular in all respects, on the ground that after the trial the pleading was lost from the files and he does not say ,that the court had no power to supply the substitute pleading, but that it could not do so-after appeal. The law is otherwise. Dunham v. South Park Com’rs, 87 Ill. 185; Heints v. Pratt, 54 Ill. App. 616; National Surety Co. v. Maffioli, 149 Ill. App. 255, 31 L. R. A. (N. S.) 207. (Note)

Defendant further contends that the order allowing the substitute was improper^ as without adequate basis, but he does not contend that the foundation of the motion and order are false. In other words, because one of the reasons is the judge’s memory of the. amendment, he says that the judge’s memory is too unreliable a base upon which to determine a man’s liberty. He does not say that the judge’s memory is erroneous and does not say that when the man’s liberty was .at stake, the amended information was different than the substitute filed September 4th.

The record shows defendant waived jury trial at the arraignment, withdrew the waiver on the day set for trial, was offered a jury trial in the jury branch of the municipal court and again waived. A fair inference is that he understood his right to a trial by jury and that the trial court gave it ample protection. There is nothing before us to indicate that the defendant’s right in this respect, as defined in People v. Fisher, 340 Ill. 250, cited by defendant has been violated.

For the reasons given the judgment of the municipal court is affirmed.

Judgment affirmed.

Burke, P. J., and Hebel, J., concur.


author: Presiding Justice Burke.

text:
    In re Estate of Giles McClendon, Incompetent, Deceased. Maud Flowers, Executrix of Last Will and Testament of Giles McClendon, Deceased, Appellant, v. American National Bank and Trust Company, Appellee.
    Gen. No. 42,375.
    opinion filed June 30, 1943.
    Walter M. Farmer and Joseph A. Melnerney, for appellant;
    Kirkland, Fleming, Green, Martin & Ellis, for appellee;
    George C. Adams, W. Ayres Keplinger and William H. Symmes, of counsel.
   Opinion by

Presiding Justice Burke.

‘ ‘Not to be published in full.”


text:
    Irma M. Molt, Appellant, v. Frederick F. Molt, Appellee.
    Gen. No. 42,517.

      opinion filed June 30, 1943.
    Beckman, Healy, Reid So Hough, for appellant;
    Arthur Goldblatt and Leo J. Bartoline, for appellee.
   Opinion by

Presiding Justice Burke.

“Not to be published in full.’’


author: Presiding Justice Burke. Burke.

text:
    George A. Kawkes, Administrator of Estate of Peter Zapantis, Deceased, Appellant, v. Richter’s Food Products, Inc. and Joseph Wekony, Appellees.
    Gen. No. 42,540.
    opinion filed June 30, 1943.
    Ritsos & Ritsos, Zack T. Ritsos and Nicholas T. Ritsos, for appellant;
    Hinshaw So Culbertson, for appellees; Oswell G. Treadway, of counsel.
   Opinion by

Presiding Justice Burke. Burke.

“Not to be published in full.’’


text:
    Georgiana G. Hess, Individually and as Administratrix with Will Annexed of Estate of Georgiana L. Gilbert, Deceased, Appellant, v. Helen S. Gilbert et al., Appellees.
    Gen. No. 42,551.

      opinion filed June 30, 1943.
    Leslie H. Whipp, for appellant;
    Musgrave, Oppenheim, Price & Ewins, for certain appellee.
   Opinion by

Presiding Justice Burke.

“Not to be published in full.”


text:
    Darline Moss, Individually and as Administratrix of Estate of Olive E. Balch, Deceased, Appellee, v. Jack H. Balch et al., Defendants. Jack H. Balch et al., Appellants.
    Gen. No. 42,655.
    opinion filed June 30, 1943.
    Jacob G. Grossberg and Hirsch E. Soble, for appellants;
    Lederer, Livingston, Kahn & Adsit, for appellee.
   Opinion by

Presiding Justice Burke.

“Not to be published in full.’’


author: Justice Hebel.

text:
    Charles Francis Coleman, Appellee, v. Marjorie Block Stein et al., Appellants.
    Gen. No. 42,357.
    opinion filed June 30, 1943.
    Mayer, Meyer, Austrian & Platt, for appellants;
    Prank D. Mayer and Sherwood K. Platt, of counsel;
    A. H. Brown, for appellees.
   Opinion by

Justice Hebel.

“Not to be published in full.”


text:
    Seymour Rischall, Trading as Rischall’s, Appellee, v. R. & R. Hosiery Company, Appellant.
    Gen. No. 42,394.
    opinion filed June 30, 1943.
    Rosenberg, Stein & Rosenberg, for appellant;
    Harold A. Pein, for appellee.
   Opinion by

Justice Hebel.

“Not to be published in full.”


author: Justice Kiley.

text:
    Loop Discount Corporation, Appellant, v. Joseph W. Schulman and Bessye Schulman, His Wife, Appellees.
    Gen. No. 42,002.
    opinion filed June 30, 1943.
    Philip J. Slotnikoff, for appellant;
    Sidney H. Sehulman, for appellees;
    Henry M. Seligman, of counsel.
   Opinion by

Justice Kiley.

‘‘Not to be published in full.”


text:
    Elizabeth Weick Peters, Appellee, v. Clara Gehm et al., Appellants.
    Gen. No. 42,139.
    opinion filed June 30, 1943.
    Jacob Kaplan, for appellants;
    Cassels, Potter & Bentley, for appellee;
    Francis J. Hosek, of counsel.
   Opinion by

Justice Kiley.

‘‘Not to be published in full.”


text:
    Anna Sundberg, Appellee, v. Ayres Boal, Sr. et al., Defendants. Appeal of Jean Andre Gourguechon, Appellant.
    Gen. No. 42,231.
    opinion filed June 30, 1943.
    Tenney, Sherman, Rogers & Guthrie, for appellant;
    William W. Miller and J. Robert Raleigh, of counsel;
    Rosenthal, Eldridge, King & Robin, for appellee;
    Willard L. King and George W. Gale, of counsel.
   Opinion by

Justice Kiley.

“Not to be published in full.”


text:
    Rose E. Campbell, Appellant, v. Goldblatt Brothers, Inc., Appellee.
    Gen. No. 42,270.

      opinion filed June 30, 1943.
    Clarence M. Dunagan and Geoffrey Fleming, for appellant;
    Abraham B. Litow, for appellee.
   Opinion by

Justice Kiley.

“Not to be published in full.”


author: Presiding Justice Huffman.

text:
    Fred. J. Hintze, Appellee, v. Fred Burren et al. Fred Burren, Appellant.
    Gen. No. 9,833.
    opinion filed July 8, 1943.
    Weaver & We'aver and Gardner, Carton & Douglas, for appellant;
    Harry G. Weaver, Erwin W. Roemer and James A. Velde, of counsel;
    Rathje & Woodward and William E. Hooper, for appellee;
    John S. Woodward and William E. Hooper, of counsel.
   Opinion by

Presiding Justice Huffman.

Not to be published in full.


author: Justice Dove.

text:
    Richard C. Washington, Adminstrator of Estate of Lawrence William Washington, Deceased, Appellee, v. Leon Peterson, Appellant.
    Gen. No. 9,892.
    opinion filed July 8, 1943.
    B. Jay Knight, for appellant;
    Prank P. North, for appellee.
   Opinion by

Justice Dove.

Not to be published in full.


text:
    Charles B. Campbell, Jr. and Pleasant Whipple Campbell, Appellants, v. Charles H. Albers, Receiver of Citizens State Bank of Manteno, et al., Appellees. Fred H. LaRocque and Frank M. Wright, Appellees, v. Mary Wood Campbell, Individually and as Executrix of Last Will and Testament of Winfield S. Campbell, Deceased, et al., Appellants.
    Gen. No. 9,896.

      opinion filed July 8, 1943.
    Wayne H. Dyer and Eben B. Gower, for appellants;
    C. M. Granger and Eva L. Minor, for appellees.
   Opinion by

Justice Dove.

Not to be published in full.


author: Per Curiam.

text:
    Harold Kern et al., Appellees, v. Earl Howard, Appellant.
    Gen. No. 9,877.
    opinion filed July 8, 1943.
    Sears, O’Brien & Streit and William G. Peacock, for appellant;
    Barnabas F. Sears, William G. Peacock and Ralph C. Putnam, Jr., of counsel;
    Young, Root & Monson, for appellees;
    David F. Root, of counsel.
   Per Curiam.

Not to be published in full.


text:
    Frank Banke, Sr. et al., Appellants, v. Cecil C. Erickson, Receiver, Appellee.
    Gen. No. 42,149.
    Opinion filed June 30, 1943.
    Rehearing denied August 9, 1943.
    Andrew Pettinger, of Chicago, for appellants.
    William Jaffe, of Chicago, for appellee; Harry Jaffe, of Chicago, of counsel.
   Mr. Justice Kiley

delivered the opinion of the court.

This'is an appeal by defendants from a foreclosure decree.

The decree was based on findings of a special master and defendants’ only objections to the master’s report were to the findings, in plaintiff’s favor, on the defense of fraud. No point is urged here based on those objections or that defense. All points (except one) made here are based upon matters to which defendants did not object. We cannot consider those points. Moulding-Brownell Corp. v. Delfosse Const. Co., 304 Ill. App. 491, and Kraus Bond & Mortgage Organisation v. Vicari, 300 Ill. App. 192. The excepted point is jurisdictional. Defendants contend the trial court had no jurisdiction to enter the decree. The trial court had power over the foreclosure action and defendants answered. Defendants’ briefs and argument do not point out, and we shall not search the record for, the alleged jurisdictional defects.

For the reasons given the decree is affirmed, but since it does not appear to our satisfaction that the appeal was prosecuted for delay, we shall not allow plaintiff’s damages under ch. 33, sec. 23, Ill. Rev. Stat. 1941 [Jones Ill. Stats. Ann. 107.060].

Decree affirmed.

Burke, P. J., and Hebel, J., concur.


text:
    People of the State of Illinois, Defendant in Error, v. John Manning, Plaintiff in Error.
    Gen. No. 42,541.

      Opinion filed June 30, 1943.
    Rehearing denied August 9, 1943.
    Emmett A. Moynihan and George M. Crane, both, of Chicago, for plaintiff in error.

      Thomas J. Courtney, State’s Attorney, for defendant in error; Edward E. Wilson, John T. Gallagher, Melvin S. Rembe and Joseph A. Pope, Assistant State’s Attorneys, of counsel.
   Mr. Justice Kiley

delivered the opinion of the court.

Defendant appeals from a judgment upon a verdict finding him guilty of assault with a deadly weapon. He was sentenced to one year in the county jail and fined $25.

About 9 a. m. January 17, 1942, Joseph Caputo, employed for 27 years by the Chicago Daily News, drove into, and parked his truck in, the alley between Wells and Franklin streets, south of Jackson boulevard beneath the “El” structure in Chicago, Illinois. The truck blocked the alley while Caputo, at the rear, was removing bundles of newspapers. Defendant drove a Pabst Blue Ribbon Beer truck into the alley and called upon Caputo to let him through. The evidence is in some conflict as to the following events which culminated in defendant’s striking Caputo with a truck crank handle. Caputo was removed to a hospital, defendant arrested and the indictment followed, charging in count 1 assault with intent to kill and in counts 2 and 3 assault with a deadly weapon, etc. Caputo’s injuries included a fractured skull and loss of sight in one eye.

Defendant at the trial relied upon self-defense, claiming that Caputo was the first assailant, striking defendant on the jaw with a blackjack or piece of iron and that defendant retaliated with the crank handle.

The judgment of the trial court must be reversed because the verdict is insufficient to support the judgment. The verdict is as follows:

“We, the jury, find the defendant John Manning, guilty of Assault with a deadly weapon in manner and form as charged in the indictment. And we further find from the evidence that the said defendant, John Manning is now about the age of 45 years. We, the above jury, recommend that the Court show leniency in passing sentence.”

We may disregard the last sentence of the verdict as surplusage. It is apparent that the jury by its verdict acquitted defendant of the crime charged in the first count, which was assault with intent to kill. Counts '2 and 3 are the same except that in count 2 the term “crank handle” is used'to describe the instrument of assault and in Count 3 a “ certain-hard substance, a further description of which is unknown. ’ ’ The crime is charged as follows: ‘ ‘ Count 2.' That on the date aforesaid, with said crank handle and without any considerable provocation whatever, and under circumstances showing an abandoned and malignant heart, unlawfully, wilfully and maliciously made an assault in and upon one Joseph Caputo with an intent then and there to inflict a bodily injury upon the person of said Joseph Caputo.”

The defendant in attacking the sufficiency of the verdict relies here upon People v. Chapman, 281 Ill. App. 313. The State in this court relies upon People v. Lee, 237 Ill. 272. The indictment and verdict in the Chapman case and in People v. Lemen, 231 Ill. 193, are substantially the same as in the instant case. The Lee case appears to be the leading case on this point in the State, although it is not referred to in the Chapman case. Both cases, however, follow the uniform rules that a verdict finding the defendant “guilty,” or finding the defendant “guilty in manner and form, as charged in the indictment, ” is a sufficient finding that all the essential elements of the crime charged have been proved beyond a reasonable doubt; but that where the verdict goes further and states specifically of what, the defendant is found guilty, all the elements of the offense must be covered in the verdict, either in terms or by necessary implication or by proper references to the indictment. People v. Lee, 237 Ill. 272; People v. Marek, 170 Ill. App. 517; People v. Bain, 279 Ill. 206. Further rules are that a verdict should be sustained where the intention of the jury can be ascertained from the verdict with reasonable certainty (People v. Brautigan, 310 Ill. 472); that a verdict is not construed with the same strictness as an indictment, but is liberally construed with all reasonable intendments indulged to support it; and that, in determining the sufficiency of a verdict, the record will be searched and all parts interpreted together and a deficiency at one place cured by what appears at another. People v. Tierney, 250 Ill. 515.

The verdict in this case is not responsive to the indictment. The assault with a deadly weapon was but one element of the crime charged and since the verdict attempted to specify the elements of the crime, in order to convict the defendant it was necessary to find also that the assault was made with an intent to inflict upon the person assaulted, a bodily injury without any considerable provocation and under circumstances showing an abandoned or malignant heart. People v. Chapman; People v. Lemen. The verdict leaves doubt of the intention of the jury, because “assault with a deadly weapon in the manner and form as charged in the indictment” could be reference to the instrument of the assault. We have said that the recommendation of leniency was surplusage, but it and a petition signed by the jurors and presented to the court in support of the motion for a new trial, in which the court was asked to reconsider and vacate the sentence and grant the defendant probation, increase the doubt of the meaning of the jury in omitting to find that the defendant had committed the assault without provocation and under circumstances showing an abandoned or malignant heart.

The cause will be remanded and in aid of a new trial we wish to point out that courts in foreign jurisdictions in cases cited, some of which we refer to, approve admitting medical testimony of the extent and the degree of permanency'of injuries of the person assaulted. State v. Allen (Mo.), 246 S. W. 946; People v. Lathrop, 49 Cal. App. 63, 192 Pac. 722; State v. Haynie, 118 N. C. 1265; Jackson v. State, 19 Ala. App. 339, 97 So. 260. The theory is that such evidence is admissible to show that the weapon used was dangerous and to show also the character of the assault. The reason for the rule would appear to be that the jury cannot know the force of the blow without knowing the effect and the effect here was not alone knocking Caputo to the ground. Likewise, with the jury looking back from the injuries, it can better determine the character of the act, despite the fact that the crank handle itself might be an indication of the character. The injuries following the blow, while not strictly a part of the offense, shed light upon the results of assault with a truck crank handle and afford a fair estimate of the deadliness of the in-' strument, as well, as the quality of the intention.' These reasons justify the rule and defendant here, judging from the record, was not prejudiced. Since tbe testimony is admissible, we see no objection to the doctor testifying in addition to Caputo to the injuries received. The doctor was better qualified to do so.

Defendant cited People v. Rongetti, 331 Ill. 581 as authority for finding that the trial court was in error in refusing to permit cross-examination of State’s witnesses for information concerning a civil suit by Caputo. The Bongetti case held it was error for the trial court in that case to refuse to admit as part of defendant’s case, a court record of a civil proceeding. It is not authority for defendant’s contention.

We find no error in refusing to give defendant’s refused instruction 1. We believe that the State’s given instruction 1 was objectionable in part by virtue of the case of People v. Flynn, 222 Ill. 303 and given instruction No. 10 should have included in . its last part a negative of self-defense. People v. Duncan, 315 Ill. 106.

For the reasons given the judgment of the criminal court is hereby reversed and the cause is remanded.

Judgment reversed and cause remanded.

Burke, P. J., and Hebel, J., concur.