text:
    People of State of Illinois, Defendant in Error, v. E. Frank Jones, Plaintiff in Error.
    Term No. 46M21.

      Opinion filed October 4, 1946.
    Rehearing denied November 18, 1946. Released for publication November 18, 1946.
    Maurice B. Johnston, of Carlyle, for plaintiff in error.
    Joseph B. Schlarman, of Carlyle, for defendant in error.
   Mr. Justice Stone

delivered the opinion of the court.

E. Frank Jones, plaintiff in error, was charged with violation of sec. 466, par. 10 of the Illinois Criminal Code, by information filed by the states attorney of Clinton county, on July 10, 1945. The information in one count charged that plaintiff in error, having previous to the 10th day of July 1945, caused a certain well for the discovery of oil to be drilled on certain lands in Clinton county, and having previous to that day and for a long time prior thereto, abandoned said well, permitted it to remain unplugged. A plea of “not guilty” was entered, and the cause was tried by the court, without a jury, on stipulation entered into between the states attorney and counsel for plaintiff in error.

The stipulation, in substance set forth that Jones pursuant to a permit issued by the Department of Mines and Minerals of the State of Illinois, under date of June 10, 1940, did subsequent to that date, drill a well for the discovery of oil and gas on certain lands in Clinton county, Illinois, and that said well was abandoned as a dry hole on August 15, 1940. The stipulation further provided that the said well was never plugged pursuant to the regulations of the Department of Mines and Minerals in regard to the plugging of abandoned or dry holes and that said well, from August 15, 1940, the date of its abandonment, down to the present date, had never been plugged under the supervision of the Department of Mines and Minerals or any representative, agent or branch of said department.

The court found plaintiff in error guilty and ordered him to pay a fine of $25 and that said nuisance be abated within 60 days from the date of judgment. Motions for new trial and in arrest of judgment, were denied by the court, and the cause comes to this court upon writ of error.

It is claimed on behalf of plaintiff in error that the sentence and judgment of the trial court finding him guilty and imposing a fine on him is erroneous because the action is barred by the statute of limitations, sec. 466, par 10 of the Illinois Criminal Code, effective as of July 23, 1943, provides, “It is a public nuisance . . . to permit any well drilled for oil, gas, salt water disposal or any other purpose in connection with the production of oil and gas, to remain unplugged, after such well is no longer used for the purpose for which it was drilled.” The next section, 467 provides that whoever causes, erects or continues any such nuisance shall for the first offense, be fined not exceeding $100, and for a subsequent offense shall be fined in a like amount, and confined in the county jail not exceeding three months.

Counsel for plaintiff in error contends that because of the fact that the oil well drilled by Jones was abandoned as a dry hole August 15, 1940, more than 18 months had elapsed since he had abandoned the oil well involved, and that the prosecution was barred by the statute of limitations.

We fail to see how the statute of limitations could he involved in this proceeding. The statute in question calls for no affirmative conduct on the part of the plaintiff in error, to make him guilty of the offense charged. It simply states that to permit such a well to remain unplugged constitutes a nuisance. The legislature has the power to declare certain situations or conditions to be nuisances though they were not so regarded at common law. 39 Am. Jur. Nuisances, § 12, p. 293, § 13, p. 294; City of Chicago v. Shaynin, 258 Ill. 69; North Chicago City Ry. Co. v. Town of Lake View, 105 Ill. 207; Laugel v. City of Bushnell, 197 Ill. 20. A nuisance of this character would certainly not terminate because 18 months had elapsed since the first time the condition existed, for the nuisance is a continuing one and each day that the said well remained unplugged would constitute another offense.

It is also argued at considerable length, on behalf of plaintiff in error, that because of the fact that he drilled the well in question in 1940 and abandoned it as a dry hole on or about August 15, 1940, that the Act under which he was convicted operative as of July 23, 1943, was ex post facto or retroactive. An ex post facto law has been defined as one which, in its operation, makes that criminal which was not so at the time the act was performed. 11 Am. Jur., Const. Law, §348, pp. 1176, 1177 and cases therein cited; Lindsey v. State of Washington, 301 U. S. 397.

However, a law cannot be said to be ex post facto which provides punishment or a penalty for the continued maintenance of certain conditions which prior to the enactment of the statute, were lawful. 11 Am. Jur., Const. Law, § 349, p. 1178; Samuels v. McCurdy, 267 U. S. 188, 69 L. Ed. 568, 45 Sup. Ct. 264, 37 A. L. R. 1378; Chicago & A. R. Co. v. Tranbarger, 238 U. S. 67, 59 L. Ed. 1204, 35 Sup. Ct. 678, 37 A. L. R. 1386; Vol. 16 C. J. S., p. 888; Ex parte Courter, 58 Okla. Crim. 50, 54 P. (2d) 407.

Plaintiff in error was not prosecuted for anything that he did or omitted to do, prior to July 23, 1943. He was prosecuted for permitting the oil well in question to remain unplugged after the enactment of the Nuisance Act. In the case of Chicago & A. R. Co. v. Tranbarger, supra, an act was passed by the legislature, with a penalty attached, compelling the railroads to construct transverse openings in rights of way and roadbeds to take care of surface waters. The railroad contended in that case that it constituted an ex post facto law, because the railroad embankment, without such opening had been constructed prior to the enactment of the statute. There the court said, “The argument that, in respect to its penalty feature, the statute is invalid as an ex post facto law, is sufficiently answered by the pointing out that the plaintiff in error is subjected to a penalty, not because of the manner which it originally constructed its railroad embankment, nor for anything else done or omitted before the passage of the Act of 1907, but because, after that time, it maintained the embankment in a manner prohibited by that Act.”

In the instant case, plaintiff in error is not being prosecuted for acts done or omitted prior to the passage of the law, but for permitting the we.ll to remain unplugged, after the enactment of the Act. By permitting said well to remain unplugged he was guilty of maintaining a public nuisance, and such nuisance was a continuing nuisance from day to day, and was such on July 10, 1945, the date of which he was charged with violation of the statute. The act in question is not ex post facto, or retroactive, and the evidence supports his conviction. The judgment of the trial court will be affirmed.'

Affirmed.

Culbertson, P. J., and Bartley, J., concur.


source: Caselaw Access Project

author: Mr. Justice Hayes

license: Public Domain

text:
    Township of Hagener et al., Appellees, v. Frances L. Meyer and Henry Hansmeier, Appellants.
    Gen. No. 9,500.
    Opinion filed October 25, 1946.
    Released for publication November 20, 1946.
    Epler C. Mills, of Virginia, for appellants.
    C. G. Colburn, of Virginia, for appellees.
   Mr. Justice Hayes

delivered the opinion of the court.

Plaintiffs, the Township of Hagener and Bussell Nordsiek, highway commissioner of that township, filed suit in the circuit court of Cass county seeking an injunction to prevent and restrain defendants Frances L. Meyer and Henry Hansmeier from interfering with the making of a preliminary survey for a proposed road, and to prevent and restrain the defendants from obstructing a public highway known as the Boulevard road.

Defendant Meyer is the owner of a forty-acre tract of land bounded on the south and on the east by public roads, and the one along the - east is known as the Boulevard road. Hansmeier occupies the farm as tenant. In 1943 a levee built by federal authorities obstructed the road to the south and for a time Mrs. Meyer permitted the public to travel through the barnyard of her farm to avoid the obstruction. In April 1945 Nordsiek, the highway commissioner, sought to acquire a strip of ground from Mrs. Meyer for a new road around the obstruction but they were unable to agree upon the precise location. A short time later Nordsiek sought to make a survey across Mrs. Meyer’s land but was refused permission to do so. It also appears from the record that in the past Mrs. Meyer and her tenant encroached upon the Boulevard road with their crops but Nordsiek testified that he had “opened up the grader ditch a year ago and it is still open and has been open for the last year.”

The circuit court of Cass county perpetually enjoined the defendants from interfering with the proposed survey and from obstructing the Boulevard road in any way. Defendants have appealed to this court.

Defendants argue that the Road and Bridge Act sets up a definite procedure to be followed by the highway commissioner in altering existing roads or laying out new ones. A petition must be filed with the commissioner by 12 voters in the town or road district and a notice of a hearing must be given and a hearing had on the petition. If a preliminary order is entered granting the prayer of the petition, the statute provides that “the highway commissioners or county superintendent of highways, as the case may be, shall cause a survey and plat of such road to be made . . . ” Ill. Rev. Stat. 1945, ch. 121, pars. 81-85 [Jones Ill. Stats. Ann. 120.085-120.089]. It appears from the record that this statutory procedure was not followed. Nordsiek testified: “I consulted all of the landowners through there and they have agreed to donate their tract of land, and there will be a petition fixed up as soon as we have permission to make the survey.” This violation of the statutory mandate cannot be condoned. If government is to operate in an orderly fashion, public officials must act and perform their duties in the manner prescribed by the legislature with a decent respect for the rights of the public and of private property.

Plaintiffs contend that an amendment to the Road and Bridge Act in 1945 authorizes the highway commissioner to make preliminary surveys before laying out a road. Ill. Rev. Stat. 1945, ch. 121, par. 23 [Jones Ill. Stats. Ann. 120.024]. That amendment provides: ... for the purpose of making preliminary surveys and determinations of the amount of such land to be taken the said Department of Public Works and Buildings or the said county, by its officers, agents or employees, after notice to the owner, may enter upon the lands ... of any person. . . .” We believe that this amendment merely gives the highway commissioner authority to enter upon private property to make the preliminary survey provided for in sec. 78 (Ill. Rev. Stat. 1945, ch. 121, par. 85 [Jones Ill. Stats. Ann. 120.089]) before the land is taken but after the provisions of sec. 76 have been complied with. We do not believe the legislature intended to authorize the making of surveys before the public necessity for the proposed road was established at the hearing on the petition provided in sec. 76. Ill. Rev. Stat. 1945, ch. 121, par. 83 [Jones Ill. Stats. Ann. 120.087].

We believe Mrs. Meyer was within her rights, in refusing to permit plaintiffs to make the survey, nor does it appear that there is any present obstruction to the Boulevard road, or any present threat on the part of defendants to obstruct the road. In the absence of grave apprehension of injury, an injunction should not be granted. Girard v. Lehigh Stone Co., 280 Ill. 479.

The circuit court of Cass county erred in issuing the injunctions here and its decree is reversed.

Decree reversed.


author: Presiding Justice Culbertson.

text:
    Joseph Brosh, Appellee, v. Paul Harrison, Appellant.
    Term No. 46M5.
    opinion filed October 4, 1946;
    released for publication November 12, 1946.
    Frank T. Plattner, for appellant; Ben M. Creamer, for appellee.
   Opinion by

Presiding Justice Culbertson.

Not to be published in full.


author: Justice Bartley.

text:
    Minnie Schneff, Appellant, v. Henry Mirring, Appellee.
    Term No. 46M14.
    opinion filed October 4, 1946;
    released for publication November 12, 1946.
    Harold J. Bandy, for appellant; Kramer, Campbell, Costello & Wiechert, for appellee.
   Opinion by

Justice Bartley.

Not to be published in full.


text:
    Raymond Meng et al., Appellants, v. Verdell V. Lucash, Appellee.
    Term No. 46M20.
    opinion filed October 4, 1946;
    released for publication November 12, 1946.
    Walter Grossmann and Louis Beasley, for appellants; Baker, Lesemann, Kagy & Wagner, for appellee.
   Opinion by

Justice Bartley.

Not to be published in full.


author: Justice Stone.

text:
    Charles H. Theis, Appellant, v. Ernest Itterman, Appellee.
    Term No. 46M1.
    opinion filed October 4, 1946;
    released for publication November 12, 1946.
    John B. Harris, for appellant; Geo. H. Muelder, for appellee.
   Opinion by

Justice Stone.

Not to be published in full.


text:
    Eugene C. Felt et al., Plaintiff, v. Clint Crosby et al., Defendants. Jarecki Manufacturing Company, Appellant, v. Clint Crosby et al., Appellees.
    Term No. 46M13.
    opinion filed October 4, 1946;
    released for publication November 12, 1946.
    Pyle & McCallister, for appellant; Craig & Craig, for certain appellee; Russell Wilson, for certain other appellees.
   Opinion by

Justice Stone.

Not to be published in full.


text:
    Henry McDowell et al., Appellants, v. County of Gallatin, Illinois, Appellee.
    Term No. 46M16.
    opinion filed October 4, 1946;
    released for publication November 12, 1946.
    Leslie A. Cranston, for appellants; Robert H. Davis, State’s Attorney, and Bartley & Karber, for appellee.
   Opinion by

Justice Stone.

Not to be published in full.


text:
    Pambouk Hachadourian et al., Appellees, v. Dick Bogosian et al., Executor of Last Will and Testament of Almast Bogosian, Deceased, and Aug M. Eggmann, Trustee, Appellants.
    Term No. 46M19.
    opinion filed October 21, 1946;
    released for publication November 21, 1946.
    Harold J. Bandy, for appellants; Harold Baltz, for appellees.
   Opinion by

Justice Stone.

Not to be published in full.


author: Justice Wheat.

text:
    Pearl Brosie, Appellee, v. George Brosie, Appellant.
    Gen. No. 9,509.
    opinion filed October 25, 1946;
    released for publication November 20, 1946.
    A. M. Fitzgerald and Graham & Graham, for appellant; A. W. Schimmel, for appellee.
   Opinion by

Justice Wheat.

Not to be published in full.


author: Mr. Presiding Justice O'Connor Feinberg, J., Niemeyer, J.,

text:
    Kid M. Robinson, Appellee, v. Milton Robinson and Juanita Robinson, Wife. Juanita Robinson, Appellant.
    Gen. No. 43,891.
    Opinion filed November 18, 1946.
    Released for publication December 4, 1946.
    Brown, Brown, Cyrus & Greene, of Chicago, for appellant ; Marcus A. Mahone and William H. Brown, both of Chicago, of counsel.
    No appearance for appellee.
   Mr. Presiding Justice O'Connor

delivered the opinion of the court.

March 11,1946, Kid M. Robinson, brought an action of forcible detainer against Milton Robinson and Juanita Robinson to recover possession of apartment No. 201, which was located on the second floor of the premises known as No. 2829 Calumet avenue, Chicago. The verified complaint alleged that defendants unlawfully withheld possession of the apartment. Summons issued commanding the bailiff of the Municipal court to summon Milton Bobinson and Juanita Bobinson, and the bailiff’s return recites that he served defendant, Milton Bobinson, at his usual place of abode, by delivering a copy thereof with a praecipe and statement of claim to plaintiff, Kid Bobinson, a person of his (Milton’s) family, and father of defendant, Milton Bobinson. There is no return by the bailiff as to what was done towards serving’ the other defendant, Juanita Bobinson. March 29, 1946, judgment was entered which recites that the cause came on for hearing before the court without a jury; evidence was heard and there was a finding that defendant, Milton Bobinson, was guilty of unlawfully withholding possession of the premises from plaintiff. Judgment was entered on the finding and the writ of restitution stayed for 10 days.

April 15, 1946, defendant Juanita Bobinson, filed a petition to vacate the judgment setting up that a writ of restitution was issued out of the Municipal court on April 10, and served on her about 6 o’clock of the evening of that day by the bailiff, and that the next morning the bailiff evicted her from the premises. That plaintiff and defendant, Milton, are father and son, and Juanita, the wife of the son. That no summons was ever served on her. That a demand for immediate possession was served on her March 8,1946, but she was never served with summons.

The petition further avers that defendant, Milton, her husband, was taken into the United States Army where he remained for about three and one-half years prior to his discharge December 10, 1945, when he returned to her and the apartment, and that during* the time he was in the Army she was in exclusive possession of the apartment. That plaintiff well knew and recognized this fact and accepted the rent from her and receipted to her for it; that on December 25, 1945, Milton left her and the apartment and moved into the apartment which his father occupied on the first floor of the same building and has since continued to live there; that she paid the rent to plaintiff for the month of December, 1945, which was all the rent due up to January 1,1946, after which date she tendered the rent to plaintiff but he refused to accept it.

April 22, 1946, plaintiff filed his verified answer to the petition in which he admits that defendant, Milton, his son, was in the Army as alleged but denied that Juanita, the petitioner, was in the exclusive possession of the apartment but that she held possession as the wife and agent of Milton, to whom he had rented the apartment in December, 1941, as a month to month tenant. That Milton paid the rent until he was inducted into the Army May 3, 1943, and thereafter the rent was paid by Milton to his wife, the petitioner, and that she paid the rent to plaintiff, as Milton’s agent. That he gave receipts for the rent to Juanita because Milton was in the Army. That Milton was discharged from the Army and returned to the apartment December 10, and there lived with his wife until December 25, 1945, at which time he told plaintiff, his father, that “he would no longer be responsible for the rent and that he was giving up the apartment” because of trouble between himself and his wife. That she was unfaithful to him.

April 24,1946, there was a hearing before the court on the matters involved in the petition and answer. The petitioner, Juanita Robinson, and the plaintiff, Kid M. Robinson, each testified and there was some other evidence introduced. June 12, 1946, an order was entered overruling defendant, Juanita Robinson’s motion to vacate the judgment from which she prosecutes this appeal.

The petitioner testified that she occupied the apartment with her husband from 1941 until about May, 1943, when he was taken into the United States Army; that he returned December 10, 1945, and they lived in the apartment until December 25, 1945, when he left her and went to live with his father and mother in their apartment downstairs in the same building; that she continued to live in the apartment until she was evicted April 11, 1946. She also offered in evidence receipts running to her from plaintiff for the rent, $22 a. month. Further evidence tends to support the allegations of her petition.

Plaintiff, Kid M. Robinson, testified on the hearing that he did not rent the apartment to Juanita, and further testified as to several of the facts alleged in his answer to the petition.

No brief has been filed on behalf of Kid M. Robinson.

Forcible detainer is a special statutory proceeding, summary in its nature, and in derogation of the common law, and the statute must be strictly followed. Wells v. Hogan, Breese (1 Ill.) 337; Wentworth v. Sankstone, 233 Ill. App. 48; City of Chicago v. The Chicago Steamship Lines, Inc., 328 Ill. 309.

In Rehm v. Halverson, 197 Ill. 378, it was held that if the original lessee sub-lets a portion of the premises but subsequently surrenders his lease and possession and all claims to the premises, the lessor may bring forcible detainer against the sub-tenant without making the lessee a party, and that since the landlord brought forcible detainer against the original lessee without making the sub-lessee a party, the judgment entered in favor of the plaintiff against the lessee was a nullity as to the sub-tenant. The court there said (p. 383): “The refusal of the instruction was not error, inasmuch as it ignores the fact, shown by the evidence, that appellee, the original lessor of Spano, had accepted from the latter a surrender of the lease before the forcible detainer suit was begun. It is not necessary to consider to what extent, if at all, Zaccone [the sub-lessee] was deprived by such surrender of any rights, as between himself and Spano [the lessee]. It is sufficient that appellee [lessor] found Zaccone in adverse possession of the premises. Appellee had the right to bring the forcible detainer proceedings against him alone. . . . Spano no longer held the premises against appellee, inasmuch as he had surrendered his lease, and, therefore, it was not necessary to make him a party defendant to the forcible detainer proceedings. A. judgment of restitution against Spano would have been unavailing, inasmuch as Zaccone was the only person, who held the premises against the appellee; and in order to enable the appellee to re-possess himself of the premises, it was only necessary to have a judgment of restitution against Zaccone.”

This same rule of law was announced and followed by this court in Mills v. Reiger, 328 Ill. App. 230.

In the instant case plaintiff made Juanita one of the defendants to the complaint which was sworn to, which charged that the two defendants, herself and her husband, Milton, wrongfully withheld possession of the premises from plaintiff. Summons was issued against both of them but no attempt was made to serve her, but Milton was served by the bailiff, by leaving a copy of the summons with his father with whom he was then living. And the suit of the father against the son was heard without notice to defendant, Juanita— a mere travesty and subterfuge 1 ‘ The whole proceeding was a wrong without even the color of law.” (Leindecker v. Waldron, 52 Ill. 283); Hemmer v. Wolfer, 124 Ill. 435; Heppe v. Szczepanski, 209 Ill. 88; — of no effect not only because Juanita was made a party defendant, as stated, but also on the ground that defendant, Milton, had vacated the premises and was then living with his father and that Milton told his father “he would no longer be responsible for the rent and that he was giving up the apartment. ’ ’ This allegation is sworn to by the father in his answer to the petition, from which we have above quoted. The judgment as to Juanita was a nullity and afforded no warrant in ejecting her from the premises.

Since the judgment prejudicially affected-Juanita’s right of possession, it is reversed, and for the failure of the trial court to do so, the order appealed from is reversed and the matter remanded with directions to allow her to appear and defend the action.

Reversed and remanded with directions.

Feinberg, J., specially concurring.

Niemeyer, J., dissents.

Feinberg, J.,

specially concurring: I concur in what is said in the foreg'oing opinion. The record in this case clearly indicates a plan or scheme by plaintiff and defendant Milton, his son, to evict the defendant Juanita", the only one in actual possession, her husband, Milton, having abandoned it, by not serving her with a summons, thus giving her no chance to defend or be heard, and procure a collusive judgment for possession against the husband, Milton, upon which a writ of restitution was to issue to oust her.' The right to possession of a place of abode is a valuable property right, which cannot by any scheme or device, be taken from one without due process of law. Had the court’s attention, upon the trial, been called to the fact that it was alleged in the sworn complaint she was unlawfully withholding* possession from the plaintiff, and was not served with summons, it would have been the duty of the court, under settled rules of law, to- halt the proceedings and insist that she be served and brought in, so that the court could have jurisdiction of her. This may be done upon the court’s own motion, or the question may be raised for the first time upon appeal. Oglesby v. Springfield Marine Bank, 385 Ill. 414; Schumacher v. Klitzing, 353 Ill. 530.

Had she learned of the proceeding before judgment and presented her petition setting up her rights, as disclosed in her present petition, the court would have been in duty bound, under the authorities, to allow her to enter her appearance and defend. She was the only one against whom, under the statute, such an action could lie, since she was the only one in actual possession alleged to be holding it unlawfully against the plaintiff. Not having learned of the pendency of the suit, and having learned of the judgment rendered only when the bailiff demanded possession and evicted her, she diligently pursued her right to be heard at the earliest moment and petitioned the court to vacate the judgment, which, if allowed, would have voided all proceedings following the judgment. She petitioned the court within the statutory 30 days. Under the facts disclosed upon the hearing of her petition and answer, it clearly appeared to the court that the judgment for possession, which is a judgment in rein, was against the wrong person and, under the statute, could only run against defendant Juanita.

An attempt to oust the wife of possession, by suing the husband only and obtaining judgment against him, was similarly involved in Cofoid v. Bishop, 11 Ill. App. 117, wherein the court declared (p. 120) that the result of such a judgment would be to remove from a house, by the writ of possession, the wife, who claimed the possession in her own right and was thereby deprived of the possession of her property without a hearing or trial. This it was said could not be done, citing Wheelan v. Fish, 2 Ill. App. (Bradwell) 447. .

It is true that the petition filed by defendant Juanita prays that the judgment be vacated and prays for no other relief, and although the judgment is against defendant Milton, and not against her, yet the facts set up in the petition clearly establish that the relief she was entitled to was not only to vacate the judgment but to quash all the proceedings that followed, including the writ of restitution. With respect to pleadings and forms affecting the right to relief, it has been frequently said that the Practice Act is to be liberally construed according to the substantive rights of the parties, and that by the Act itself, Chapter 110, § 4 [Ill. Rev. Stat. 1945, ch. 110, par. 128; Jones Ill. Stats. Ann. 104.004], it is provided: “This act shall be liberally construed, to the end that controversies may be speedily and finally determined according to the substantive rights of the parties, . . . .” People ex rel. Wilmette State Bank v. Village of Wilmette, 294 Ill. App. 362; Weigend v. Hulsh, 315 Ill. App. 116.

Niemeyer, J.,

dissents.

Intervenor was ousted from possession of the premises involved under process directed against Milton Robinson, her husband, from whom she was then, and for several months prior to the institution of plaintiff’s action had been, living separate and apart. She was named as a defendant to plaintiff’s action but no summons was served upon her and no order was entered purporting to affect her rights to the premises under her claim of tenancy independent of her husband. The court found the husband guilty of unlawfully withholding possession of the premises and ordered that plaintiff “have and recover of and from the defendant Milton Robinson possession of the premises described.” This judgment could in no wise affect the the possession of intervenor. Rehm v. Halverson, 197 Ill. 378, 383, cited in the opinion of the court.

Having been ousted from the premises under the writ of restitution directed against her husband, she filed a motion praying that the court enter an order. vacating and setting aside the judgment for possession entered against her husband. No notice of this motion was served upon her husband, the judgment defendant. No notice of appeal from the order denying inter-venor’s motion to vacate the judgment was served on the judgment defendant. The defendant in the judgment sought to be vacated was not a party to the proceedings in the trial court to vacate the judgment against him and is not a party to this appeal.

The grounds urged before us for the vacation of the judgment are that Milton Robinson, the judgment defendant, having abandoned the premises on December 25, 1945, several months before the institution of the forcible detainer action, 'was not in possession of the premises at the time the action was commenced and the judgment entered, and that service on him was by delivering a copy of the summons to the plaintiff, in whose home the judgment defendant was then living. These are defenses available only to the judgment defendant, who does not complain. Yarnell v. Brown, 170 Ill. 362, 367.

The writ of restitution issued on the judgment against intervenor’s husband gave the plaintiff no right to interfere with the independent possession, if any, of intervenor. Her ouster was not by virtue of authority under that writ but through the abuse of the writ. Her remedy, if any, is an action against plaintiff and the bailiff of the court and not in the vacation of the judgment to which she is a stranger. Furthermore, the reversal of the judgment is futile because such reversal cannot restore her to possession or affect her rights to possession of the premises. Moreover, in-tervenor’s claim to be restored to possession rests upon her alleged tenancy, independent of that of her husband. This tenancy was in issue on her motion to vacate the judgment against her husband. The ruling on the motion being adverse to her, the presumption is that the court held against her on all issuable facts. 3 Am. Jur., Appeal and Error, sec. 954. The evidence on the question consisted of the testimony of intervenor and plaintiff. The latter’s testimony sustains the finding. The trial court had the advantage of hearing and observing the witnesses. The finding is not against the manifest weight of the evidence and should not be disturbed or ignored by this court.

The order appealed from should be affirmed.


author: Mr. Justice Feinberg

text:
    Warren K. Wilner, Appellee, v. Myrtle M. Reynolds, Appellant.
    Gen. No. 43,818.
    Opinion filed November 18, 1946.
    Rehearing denied December 4, 1946. Released for publication December 4, 1946.
    Joseph B. East, of Chicago, for appellant.
    E. W. Clark and Channing L. Sentz, both of Chicago, for appellee.
   Mr. Justice Feinberg

delivered the opinion of the court.

Defendant appeals from an order of the superior court overruling defendant’s motion to strike the complaint and entering judgment against defendant for failure to file an answer, defendant having elected to stand by her motion to strike.

Defendant was the owner of the fee in certain real estate, against which a tax foreclosure suit was filed for general taxes for the years 1930 to 1940 inclusive. A decree of foreclosure was entered in said suit, and the real estate was struck off and sold to plaintiff for the sum of $800, to whom a certificate of sale issued. During the time plaintiff held the certificate of sale, he redeemed from tax forfeitures for the years 1941 and 1942 and paid the taxes levied against such property for the years 1943 and 1944, all in the total amount of $1,113.52.

On August 29, 1945, defendant redeemed her property from the tax foreclosure sale by paying to the county clerk of Cook county the amount of the sale plus interest and costs. The taxes subsequent to the tax foreclosure sale, paid by plaintiff, were not included in the amount required by the county clerk of the defendant to redeem. No receipts held by plaintiff for the taxes paid by him subsequent to the certificate of sale were filed or recorded with the county clerk.

On December 7, 1945, plaintiff filed this complaint, asking for a judgment against defendant for the amount referred to, with interest and costs, and also that an equitable lien against the real estate for said amount be decreed.

The only question involved in this appeal is whether plaintiff may recover from defendant for the taxes paid by plaintiff subsequent to the issuance of the certificate of sale held by him. Defendant’s contention is that plaintiff had no such right of action, since he failed to comply with the statute.

Section 27a of the Judgments, Decrees and Executions Act (Ill. Rev. Stat. 1945, ch. 77, par. 28 [Jones Ill. Stats. Ann. 107.179]) reads:

“Whenever any real estate is sold under any judgment or decree of any court, the holder of the certificate of such sale shall have the right to pay all taxes and assessments which are or may become a lien on such real estate during the time of redemption running on such sale, and whenever redemption is made from such sale the party or parties entitled to redeem shall pay the holder of such certificate of sale, or to the sheriff, master in chancery or other officer who sold the same, or his successor in office, in addition to the amount due on such certificate, the amount paid by the holder thereof for such taxes and assessments, together with interest thereon at the rate of six per centum per annum if before such redemption is made a receipt or receipts for such taxes or assessments shall be filed with the sheriff, master in chancery or other officer who made such sale or exhibited by the holder of such certificate in case redemption is made directly to the holder of such certificate.” (Italics ours.)

The right of plaintiff to pay the taxes upon the real estate in question subsequent to the issuance of the certificate of sale is regulated by the statute above quoted. Were the plaintiff a stranger to the real estate in question and not a holder of a certificate of sale, the law is clear he would not be entitled to sue the owner of the fee for the taxes voluntarily paid by him. Petty v. Beers, 127 Ill. App. 593, aff’d 224 Ill. 129. St. Louis, J. & C. R. Co. v. Mathers, 104 Ill. 257, at p. 261.

The right to redeem from a tax foreclosure sale is governed by the provisions of section 253 of the Revenue Act (Ill. Rev. Stat. 1945, ch. 120, par. 734 [Jones Ill. Stats. Ann. 119.750]). The pertinent portion of said section reads as follows: “ ... The person redeeming shall also pay the amount of all taxes and special assessments accruing after such sale with seven (7) per cent penalty thereon, for each year or portion thereof intervening between the time of the payment of the subsequent.tax or special assessment and the time of redemption, in all cases where the purchaser at the tax sale, or his assignee, shall pay such subsequent tax or special assessment; also, all fees for registering tax certificates in compliance with ‘An Act concerning land titles,’ approved May 1, 1897, and it is hereby made the duty of the county clerk to include in the certificate of redemption the amount of the subsequent taxes or sp.ecial assessments paid by the purchaser or holder of the tax certificate : Provided, however, that the.,county cleric shall not be required to include any subsequent taxes or special assessments in his certificate of redemption, nor shall the payment thereof be a charge upon the land sold for taxes, unless the purchaser, assignee, or holder of the tax certificate of sale shall have filed with the county cleric, before redemption, an official, original or duplicate tax collector’s receipt for the payment of such subsequent taxes or special assessments, and. it shall be the duty of the tax collector to furnish such duplicate receipts. . . .” (Italics ours.)

One of the essential requirements of this statute is the filing of the receipts for the taxes paid for the subsequent years with the county clerk. The complaint in this case fails to allege such compliance with the statute and therefore failed to state a cause of action entitling the plaintiff to recover the amount in question. The motion to strike set up these specific objections to the complaint.

We think Garden City Sand Co. v. Christley, 289 Ill. 617, clearly supports the position taken by defendant. It was there said:

“Section 27a of chapter 77, before the amendment of 1917, provided the method to be followed if the holder of a certificate of sale under execution or decree desired to be reimbursed for the payment of taxes and expenses. That section required that receipts for such expenditures should be filed with the sheriff, master in chancery or other officer who made the sale. This was in order that the redeeming creditor might know the condition of the property. This was not done. The sale oí property under decree or execution or judgment is a matter provided for by statute, as is the redemption thereunder by the judgment creditor. It is a proceeding at law and not in equity, and the statute must be complied with if its benefits are to be had, . . .”

The order of the superior court is reversed and the cause remanded with directions to sustain the motion to strike the complaint and dismiss the same for want of equity.

Reversed and remanded with directions.

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


author: Mr. Justice Neemeyer

text:
    Murray Wolbach, Appellee, v. Village of Flossmoor, Appellant.
    Gen. No. 43,773.

      Opinion filed November 18, 1946.
    Released for publication December 4, 1946.
    Walter E. Wiles, of Chicago, for appellant; Herman Barrington, of Chicago, of counsel.
    Deneen & Massena and MacChesney, Becker, Wells & Allen, all of Chicago, for appellee; Paul R. Schreiber, Dwight W. Croessman and Nathan William MacChesney, all of Chicago, of counsel.
   Mr. Justice Neemeyer

delivered the opinion of the court.

Plaintiff, the owner of a tract of land of approximately 80 acres used solely for agricultural purposes, filed his petition under the Revised Cities and Village Act (Ill. Rev. Stat. 1945, ch. 24, § 7-42 [Jones Ill. Stats. Ann. 21.1233]) for the disconnection of his land from the Village of Flossmoor. Judgment having been entered in his favor, defendant appeals.

The statute authorizes disconnection of a tract which (1) is not contiguous in whole or in part to any other municipality; (2) contains 20 or more acres; (3) is not subdivided into municipal lots and blocks; (4) is located on the border of the municipality; and (5) which, if disconnected, will not result in the isolation of any part of the municipality from the remainder of the municipality. The only question involved on appeal is whether the tract “is not contiguous in whole or in part to any other municipality.”'

The land is located in the southwest corner of the defendant Village. Its southern and western boundary lines border on unincorporated areas. The southwest corner touches the northeast corner of a portion of the Village of Olympia Fields. The western boundary line of the tract extended becomes the eastern boundary line of a portion of the Village of Olympia Fields lying east of the unincorporated area occupied by the Olympia Country Club. The southern boundary line of the tract extended becomes the northern boundary line of the Village of Olympia Fields.

In considering the constitutionality of a prior statute providing for the disconnection of land from cities, towns and villages (Ill. Rev. Stat. 1935, ch. 24, pars. 385d and 385e), in Punke v. Village of Elliott, 364 Ill. 604, the court said (611): “The legislature has determined that an evil exists in compelling owners of tracts of twenty acres or more, not subdivided and which border a city or village, to pay taxes for urban benefits. It is obvious that unsubdivided tracts of this size do not possess any characteristics of city or village property. They receive no practical benefits from being within the limits of such municipality and contributing, by paying taxes, to the expense of the maintenance and administration of such local governmental agency.”- -The-present statute is substantially the same as the former statute except that it is now required that the land to be disconnected “is not contiguous in whole or in part to any other municipality. ’ ’ The intent of the act remains the same, namely to facilitate the disconnection of unsubdivided tracts of 20 acres or more which do not possess any characteristics of city or village property. The statute should be liberally construed to effect this purpose.

Each of the parties cites various definitions of the word “contiguous.” In construing the word in a statute providing for the incorporation into a village of “any area of contiguous territory, not exceeding two square miles,” in a proceeding in quo warranto to test the validity of the incorporation of a village in which certain areas touched each other only at the corner, the court in Wild v. People ex rel. Stephens, 227 Ill. 556, 560, said: “The only way in which the 310-foot strip touches or adjoins the 200-foot strip is by the fact that they corner with each other. The west line of the first extended is the east line of the second, and -the south line of the first extended is the north line of the second. No vehicle, and, in fact, no person, could pass from one strip to the other without passing over or upon lands not within the village. The two strips last mentioned are not contiguous. H. S. & P. Co. v. Campbell, 89 Va. 396; Kresin v. Mau, 15 Minn. 119; Linn County Bank v. Hopkins, 47 Kan. 582.” Counsel for defendant seek to distinguish this case because of the fact that in the statute there being considered the word “contiguous” was not qualified by the words “in whole or in part,” as in the present statute. No reason has been suggested why the word “contiguous” should have one meaning in a statute defining the areas or lands which should be united in the incorporation of a village, and another meaning in a statute defining land which the legislature deems improvidently included within corporation limits and as to .which"_itseek;s_tp. afford a.simple procedure for its disconnection from the corporation. If two pieces of land are not contiguous, it necessarily follows that they can- not be contiguous in whole or in part, and the words added in the revision of the statute do not narrow or restrict the scope and intent of the statute. Furlong v. South Park Commissioners, 320 Ill. 507, 512.

The judgment is affirmed.

Affirmed.

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


text:
    Albert W. Godfrey, Appellant, v. Lazetta Godfrey, Appellee.
    Term No. 46M15.
    opinion filed October 15, 1946;
    rehearing denied November 26, 1946; released for publication November 26, 1946.
    Harold Baltz, and Martha L. Connole, for appellant; Louis Beasley, for ap-pellee.
   Opinion by

Presiding Justice Culbertson.

Not to be published in full.


author: Presiding Justice O’Connor.

text:
    In re Estate of H. C. Berthold Wetstone, Deceased. Walter C. Avery, Executor of Estate of H. C. Berthold Wetstone, Deceased, and Louis D. Moorhead, Appellees, v. Martha George et al., Appellants.
    Gen. No. 43,700.
    opinion filed November 18, 1946;
    rehearing denied December 4, 1946; released for publication December 4, 1946.
    Dayton & Oppenheim, for appellants; James A. Dayton, of counsel; Beckman, Healy, Newby & Hough, for certain appellee; Richard B. Kropf, for certain other appellee; Daniel M. Healy, Richard E. Kropf and Walter Healey, of counsel.
   Opinion by

Presiding Justice O’Connor.

Not to be published in full.


text:
    Esther A. Bryk, Appellant, v. John A. Bryk, Appellee.
    Gen. No. 43,776.

      opinion filed November 18, 1946;
    released for publication December 4, 1946.
    R. W. Scherman, for appellant; Blech & Herson, for appellee.
   Opinion by

Presiding Justice O’Connor.

Not to be published in full.


text:
    People of State of Illinois, Defendant in Error, v. George Spiros, Plaintiff in Error.
    Gen. No. 43,800.
    opinion filed November 18, 1946;
    released for publication December 4, 1946.
    Ellis & Westbrooks, Kimball Smith and Theodore B. Howard, for plaintiff in error; Richard E. Westbrooks, of counsel; William J. Tuohy,, State’s Attorney, for defendant in error; Edward E. Wilson, John T, Gallagher, Melvin S. Rembe, Joseph A. Pope and C. D. Pemberton, Assistant State’s Attorneys, of counsel.
   Opinion by

Presiding Justice O’Connor.

Not to be published in full.


author: Presiding Justice O ’Connor.

text:
    Jack Rago, Plaintiff, v. Leon S. Sex, Defendant.
    Gen. No. 43,808.
    opinion filed November 18, 1946;
    released for publication December 4, 1946.
    No appearance for appellant; Tom L. Yates and Donald M. Roche, for appellee; Yates, Roche & Grotefeld, of counsel.
   Opinion by

Presiding Justice O ’Connor.

Not to be published in full.


author: Justice Feinberg.

text:
    Alice Frost, Appellee, v. Andes Candies, Inc., and Elton A. Gould, Appellants.
    Gen. No. 43,748.

      opinion filed November 18, 1946;
    released for publication December 4, 1946.
    Burt A. Crowe and Andrew J. Farrell, for appellants; Carl E. Abrahamson, of counsel; Dooley & Baker and Lewis L. Root, for appellee; James A. Dooley, of counsel.
   Opinion by

Justice Feinberg.

Not to be published in full.


text:
    Anna M. Snowell, Appellant, v. Adella E. Knight, Appellee.
    Gen. No. 43,809.
    opinion filed November 18, 1946;
    released for publication December 4, 1946.
    Robert J. Hill, for appellant; Benjamin D. Langworthy and Bernard Yedor, for appellee.
   Opinion by

Justice Feinberg.

Not to be published in full.


author: Justice Niemeyer.

text:
    Lillie Jane Rosenstiel, Appellee, v. Otto Viernow, Appellant.
    Gen. No. 43,821.

      opinion filed November 18, 1946;
    released for publication December 4, 1946.
    Marx Loehwing, for appellant; Edward J. Green, for appellee.
   Opinion by

Justice Niemeyer.

Not to be published in full.


author: Mr. Justice Bristow

text:
    Herman Storr, Executor of Estate of Carl Storr, Deceased, Appellant, v. Hugo Storr, Appellee.
    Gen. No. 10,073.

      Opinion filed November 4, 1946.
    Released for publication December 10, 1946.
    Bell, Farrar & Scott, of Rock Island, for appellant, Earl L. Scott, of Rock Island, of counsel.
    William B. Schroder and Witter & Walker, all of Rock Island, for appellee.
   Mr. Justice Bristow

delivered the opinion of the court.

This is an appeal from a judgment of the circuit court, denying a petition filed by Herman Storr, executor of the estate of Carl Storr, deceased, for the issuance of a citation under article XV of the Probate Act (Ill. Rev. Stats. 1945, ch. 3, par. 335 [Jones Ill. Stats. Ann. 110.432]) to recover property from Hugo Storr.

The petition alleged that Hugo Storr, son. of Carl Storr, hereinafter referred to as the deceased, and brother of Herman Storr, the executor, was wrongfully withholding certain money received by him on behalf of the deceased on account of the sale of real estate owned by the deceased, and prayed that Hugo Storr be examined to show cause why he should not be required to give up the said property to the executor.

The case was tried by the probate court, along with a claim against the said estate by Marie Storr, wife of the said Hugo Storr. The probate court entered a decree dismissing the petition for citation on the ground that the money claimed by the executor was not the property of the deceased at the time of his death, and approved the claim of Marie Storr. Whereupon, the executor perfected appeals from both of these rulings to the circuit court, where the cases were heard together in a trial ele novo before the court without a jury. The circuit court held that there was no evidence in support of the allegations in the petition, and dismissed the same. From this judgment the executor appeals.

The material and relevant facts appearing in the record indicate that in December 1943, Carl Storr, the deceased, went to live at the home of his son, Hugo, and the latter’s wife, Marie. At this time the attending doctor urged the deceased to go to a hospital, inasmuch as he had lost control of his functions, and needed vigilant care. The doctor testified that he informed the deceased that he would refuse to ask Marie Storr to give the deceased the kind of care that would be required, unless she would be compensated therefor. The deceased replied that he would, “take care of it,” and further stated, “I am going to do something for this boy. I owe something to him, too. I have done something for the others, and I am going to do something for this boy, too.”

Marie Storr agreed to, and did perform all necessary services for the deceased until the date of his death some four months later.

About the end of January 1944, it was agreed between Herman Storr, who took charge of the financial affairs of his father since the death of the mother in 1942, and Hugo Storr, that the deceased would pay $5 per week for room and board. Two checks in the amounts of $20 and $25.75, respectively, were paid pursuant to this arrangement.

On February 3, 1944, the deceased made his will, in which specific legacies were given to three of his children, Lottie, Charles and Henry. He named as residuary legatees, Charles, Herman and Hugo. At the time deceased made the will, he told his lawyer, Clyde Walker, one of the witnesses herein, that he was trying to equalize his gifts between hig children, but that “he had some things to do that he was going to do that he didn’t put in the will, and that he would do those right away.”

On or about March 1,1944, negotiations for the sale of a four acre tract of land owned by Carl Storr (the sale proceeds of which are in dispute in the instant case) were entered between the deceased, through his attorney, the aforementioned Clyde Walker, and James Walters. The sum of $50 was paid by Walters to “hold the deal” and deposited to the account of Carl Storr.

During the middle of March 1944, the deceased was visited by Perry E. Cherry, a friend of the family’s, and in the course of the conversation Mr. Cherry stated, “It’s nice for you to be here with Hugo, rather than living out there alone now that your wife is gone.” The deceased replied, “Yes, this is all right; Hugo and his wife are doing all they can for me.” Mr. Cherry further stated, “How is the old place?” The deceased returned, “I sold it to Herman. I am going to give the acreage to Hugo.”

Over objection, Hugo Storr testified that he had two conversations with his father during the month of March with reference to the proceeds from the sale of this acreage, in which the deceased stated that as soon as Walters paid for the land Hugo Storr could have the money.

On April 5,1944 the sale of the land was finally consummated, when the purchaser gave the attorney a check for $2,000. The latter turned over the deed, and made out a blank check for $1,975 which he took to the home of Hugo Storr, where the deceased was residing. Upon his arrival he found the deceased ill and asleep and, thereupon, informed Hugo Storr that he had the money for the land. Hugo Storr replied, “That is fine; it is mine anyhow.” The attorney then explained, “I will make this check out to you, because you will have to go to the bank anyhow.” He put Hugo Storr’s name on the check, and did not disturb the deceased.

Over objection, Hugo Storr testified that when his father awakened, about twenty minutes later, he went into the room and told his father that he had the check. The deceased saw the check, and said, “That is fine; that is yours,” or “that belongs to you.”

On April 8, 1944, defendant, Hugo Storr, deposited the money to his own active account at the bank. Within a very short time thereafter Carl Storr died, and his will was filed for probate on April 26, 1944.

On the basis of the foregoing testimony and circumstances the circuit court dismissed the petition for the issuance of a citation to recover assets from Hugo Storr. The court held, in an opinion filed in this record, that the petitioner failed to prove by a preponderance of evidence that the money received from the sale of the real estate, and in the possession of Hugo Storr at the date of the death of Carl Storr belonged to the latter’s estate.

The sole question presented by this appeal is whether or not the circuit court erred in dismissing the petition for citation.

In determining this issue, and in reviewing the evidence submitted thereon, it is necessary first to consider the nature and purpose of article, XV of the Probate Act under which the petition is filed. (Ill. Rev. Stat. 1945, ch. 3, par. 335 et seq. [Jones Ill. Stats. Ann. 110.432 et seq.]).

The legislature has provided therein a summary remedy for the recovery of property and the discovery of information. Its primary purpose is to discover assets of estates, and the court is authorized therein to make such orders as the case may require. Horner, Probate Practice, ch. 42, § 1075, Martin v. Martin, 174 Ill. 371; Keshner v. Keshner, 376 Ill. 354. The proceeding is purely statutory, and is neither at law nor in equity. It bears the equitable aspects of a bill of discovery, while at the same time providing for an optional jury as at law, on demand of the parties where questions arise concerning claims of adverse title or interest, as in the instant case.

With reference to the nature of this proceeding, the Supreme Court of Illinois stated in Keshner v. Keshner, 376 Ill. 354, 359:

“We have thus an anomalous proceeding and the peculiar nature of this kind of suit has a distinct bearing on the decision of this case. ’ ’

At a hearing on a petition for a citation the court, moreover, may examine the respondent under oath and may hear the evidence offered by any party. It is discretionary with the court, however, whether or not the respondent shall be permitted to testify, and the witnesses are deemed those of the court and not witnesses of the executor or administrator, no matter by whom they are examined. Keshner case, supra; In re Estate of Ealaslca, 307 Ill. App. 176.

In the citation proceeding in the instant case, plaintiff is seeking to recover certain proceeds from the sale of real estate owned by the deceased, and defendant contends that he is the rightful owner thereof by virtue of an inter vivos gift from the deceased.

It is established by the weight of authority in this State that mere possession is not enough to establish a gift under the law, and any statements appearing in Martin v. Martin, 174 Ill. 371, from which a contrary ruling might be interpreted, have been limited and defined by the court in Bothwell v. Taylor, 303 Ill. 226.

Proof of a gift must be by clear and convincing evidence. Rothwell case, supra, at p. 230; Keshner v. Keshner, 376 Ill. 354, 362; Merchants Loan & Trust Co. 77. Egan, 222 Ill. 494.

From the record it appears that Carl Storr sold, through his attorney, Clyde Walker, certain real estate to one James Walters; that at the time of such sale Carl Storr was bed-ridden; that when the attorney came to deliver the check representing the proceeds from the sale, the said Carl Storr was asleep, and the check was, therefore, made payable to Hugo Storr, inasmuch as he would have to go to the bank in any event. Moreover, Hugo Storr stated to the attorney that the money was to be his anyhow, for his father had told him in two prior conversations while the sale was pending that the proceeds from the sale of this property would go to him.

It appears further from the record that when Carl Storr awakened, the said Hugo Storr showed him the check, and the former stated, “That is fine; that is yours.” Thereupon Hugo Storr deposited the check to his own account in the bank.

The foregoing testimony of an inter vivos gift from father to son of the proceeds in controversy is corroborated and substantiated by the following facts and circumstances submitted in the evidence offered by three of the witnesses.

About four months prior to his death the deceased went to live with his son, Hugo Storr and the latter’s wife, Marie Storr. At that time he was advised by his doctor that he needed hospital care, and that his daughter-in-law could not be asked to perform the duties required by his condition unless compensation were paid for such services. In response to this advice, the deceased stated that he would do something about it and added further, “I am going to do something for the boy; I owe something to him, too. I’ve done something for the others and I’m going to do something for this boy, too.”

These circumstances clearly indicate that the defendant Hugo and his wife performed difficult and self-sacrificing services for the deceased during the last months of his life. They indicate further that the deceased realized all that was being done for him and intended to show his appreciation to his son.

Moreover, at the time deceased made his will, he stated to his attorney that he had some things to do that he did not put in the will, but which he was going to do right away. The legitimate inference from this statement taken together with the further fact that by the terms of the will Hugo Storr did not receive any specific bequests as did three of the other children, but was merely named as one of three residuary legatees, is that the deceased intended to make a gift to this son to whom he felt indebted.

This conclusion is further evident from his statements to the witness, Perry E. Cherry, a friend of the family’s, that “Hugo and his wife are doing all they can for me,” and, “I am going to give the acreage to Hugo. ’ ’

On the basis of these circumstances weighed together with the defendant’s testimony that his father promised the money to him and actually told bim that the check for the proceeds was his, the probate court and the circuit court both concluded that the deceased intended to make, and did make, during his lifetime a valid gift of the proceeds from the sale of the real estate to his son, Hugo Storr, and that, therefore, this money did not constitute an asset of the estate of the deceased.

The courts were both acting as triers of fact without a jury, and they saw and heard the witnesses. Both courts had, therefore, advantages which an appellate tribunal does not possess in judging the weight to be given to the testimony and in determining whether a gift has been established by clear and convincing evidence.

In Schwaan v. Schwaan, 320 Ill. App. 287, 295, the court stated -in affirming the denial of a petition for citation:

‘ ‘ The witnesses appeared before the judge of the probate court and also before the trial judge in the superior court. Both had opportunities to observe their demeanor upon the witness stand, and to consider all of the facts and circumstances as brought out by the evidence. The decision of a trial judge upon matters of fact cannot lightly be set aside.”

The plaintiff in the instant case, however, arg^ues that the decision of the circuit court should be reversed on the ground that there is no evidence of a gift of the sale proceeds by the deceased to his son, and advances the following theory of statutory interpretation.

Plaintiff contends that inasmuch as this proceeding determined the right and title to the property in question, and, therefore had an adverse aspect, it is the same as any other suit to try title, and hence the testimony of Hugo Storr pertaining to conversations with the deceased were barred under section 2 of the Evidence Act [Ill. Rev. Stat. 1945, ch. 51, par. 2; Jones Ill. Stats. Ann. 107.068]. Without such testimony, it is urged, the defendant fails to establish a gift by such clear and convincing evidence as the law requires.

In support of this theory plaintiff cites the case of In re Estate of Halasha, 307 Ill. App. 176, where it was held that in a citation proceeding the trial judge did not abuse his discretion by requiring one who claimed money as a gift to testify as to her possession of the money, but excluding her testimony as to conversations with the deceased which would have established that the money had been received as a gift.

It is the opinion of this court that a statement that a particular ruling did not constitute an abuse of discretion cannot be construed as a pronouncement of approval of that ruling as a principle of law. Nor can it be relied upon as an authority for the proposition that the admission of the evidence by the court would have constituted reversible error, which in effect, is what plaintiff is asking this court to rule.

In Keshner v. Keshner, 376 Ill. 354, 362, the Supreme Court of Illinois apparently accepted the testimony of conversations with the deceased in a citation proceeding, and stated that such testimony must be weighed with all other evidence appearing in the case — which is precisely what the circuit court did in the instant case. In the Keshner case, however, the testimony pertaining to conversations with the deceased was unsupported by other evidence and there was some evidence that the interpretation of a gift would defraud the creditors, hence the court held that it was insufficient to prove a valid gift.

Moreover, the court in the Keshner case, supra, refused to apply the ordinary rules applying to adverse witnesses to citation proceedings on the ground that the witnesses were those of the court. The court stated at p. 362:

“It cannot be said in this case that the testimony of the widow and daughter must be evaluated by the ordinary rules applying to adverse witnesses. They were not witnesses of the creditor or executor, but of the court, and no matter by whom they were examined, the creditor could not be bound by their testimony nor be held to have vouchsafed for its truthfulness. To apply such a rule to this proceeding would be to destroy its usefulness in the administration of estates, and completely thwart the very purpose for which the statute was enacted.”

In the instant case, this court cannot accept the statutory analysis and the application thereof advanced by the plaintiffs. In this proceeding under article XV of the Probate Act the witnesses are, under the terms of the statute and by virtue of the interpretation thereof by the Supreme Court, witnesses of the court, and therefore cannot qualify as witnesses under the terms of section 2 of the Evidence Act. If the court were automatically barred from eliciting information deemed material in the discovery of assets belonging to estates, one of the objectives of the statute would be defeated.

The defendant, Hugo Storr, testified as a witness of the court and it was within the discretion of the trial court to determine the propriety and admissibility of his statements pertaining to conversations with the deceased, and the admission thereof by the trial court does not constitute reversible error.

It was, furthermore, the province of the trial court to weigh that testimony together with all the other evidence and circumstances appearing in the case and determine whether the property in question belonged to the estate of the deceased. The court’s finding on that issue may not be upset unless it is against the manifest weight of the evidence.

This court is of the opinion that the findings of the circuit court that the proceeds from the sale of the real estate did not constitute property belonging to the estate of Carl Storr were in accord with the facts and circumstances submitted in the evidence presented in this record. Therefore, there was no error in the dismissal of the petition for the issuance of a citation to recover assets from the defendant Hugo Storr. The judgment must, therefore, be affirmed.

Judgment affirmed.


author: Mb. Justice Bristow

text:
    John M. Smith, Treasurer of State of Wisconsin et al., Appellant, v. Clavey Ravinia Nurseries Incorporated, Appellee.
    Gen. No. 10,086.

      Opinion filed November 4, 1946.
    Released for publication December 10, 1946.

      Bernard M. Decker, of Waukegan, and Robert P. Sullivan, of Chicago, for appellant; Bernard M. Decker, of Waukegan, of counsel.
    George S. McGaughey, of Waukegan, for appellee; Owen Rall, of Chicago, of counsel.
   Mb. Justice Bristow

delivered the opinion of the court.

This is an appeal from a judgment entered in the circuit court of Lake county in favor of the defendant, Clavey Ravinia Nurseries Incorporated, a corporation, upon its motion to strike the complaint of the plaintiff, John M. Smith, treasurer of the State of Wisconsin, and ex-officio custodian of the Mutual Workmen’s Compensation Security Fund of the State of Wisconsin.

The uncontroverted facts appearing from the record are that on January 25, 1937, an employee of the defendant, an Illinois corporation doing business in Wisconsin, suffered a compensable injury arising out of and in the course of his employment in Wisconsin. Defendant’s compensation liability was then insured by the Builders and Manufacturers Mutual Casualty Company, hereinafter referred to as the Mutual Co., which had paid the sum of $881.39 into the Mutual Workmen’s Compensation Security Fund of Wisconsin, referred to hereafter as the Security Fund, pursuant to the requirements set forth in subsec. 5 (b) of sec. 102.65 of ch. 102 of the Laws of Wisconsin (1945).

On June 5, 1937, the Mutual Company’s assets and liabilities were assumed by the Builders and Manufacturers Casualty Co., which, in turn, became insolvent the following April of 1938. The stock company, however, was not licensed to do business in the State of Wisconsin and made no payments into the Security Fund, but inasmuch as it .assumed the liabilities and assets of the Mutual Company, its position for the purpose of determination of the issues in the instant case will be considered substantially the same as that of the Mutual Company.

Awards were entered by the industrial commission in favor of the employee and against the defendant and the insolvent stock company on August 19, 1938, Sept. 18, 1939 and again on Sept. 7, 1941. Each of these awards remained unpaid for 60 days and more, whereupon the plaintiff, as custodian of the Security Fund paid the awards in compliance with the statutory mandate under subsec. 11 of sec. 102.65 of the Wisconsin Workmen’s Compensation Act, which provision will be considered in detail hereinafter.

In this proceeding the plaintiff, as custodian of the fund, is seeking reimbursement from the defendant employer for compensation payments amounting to $2,023.17 made from the fund to defendant’s employee.

Two theories of recovery are advanced in plaintiff’s second amended complaint: First, that he is entitled to reimbursement under the common-law doctrine of subrogation, whereby plaintiff seeks to be subrogated to the rights of defendant’s employee whose compensation award was paid from the fund; and secondly, that he is entitled to be reimbursed under the statutory right of subrogation created by subsec. 11 of the aforementioned sec. 102.65 of the Wisconsin statutes, which authorizes the custodian to institute proceedings against the insolvent carrier, the employer and all others liable, to recover sums paid out of the fund by reason of the liability of the insolvent carrier.

The trial court dismissed plaintiff’s second amended complaint on the ground that it did not state a cause of action, and thereupon entered judgment in favor of defendant, from which judgment plaintiff has appealed.

The sole issue presented on this appeal is a question of law — whether this complaint states a cause of action — a legal theory upon which recovery may be predicated.

It is apparent that this is a case of first impression in this State, and so far as we have been able to determine, in the nation, and involves the extension of the doctrine of subrogation to a novel situation arising under the Wisconsin Workmen’s Compensation Act. The mere^fact, however, that the doctrine has not been invoked in this situation heretofore, is not a prima facie bar to its applicability in this proceeding, for the calcification of legal concepts, an inherent tendency of the common-law system, must be guarded against if our legal system is to cope with contemporary problems.

From the pronouncements of leading jurists and encyclopedists, it is evident that the doctrine of subrogation has been steadily expanding and is a favorite of the law. 50 Am. Jur., 685, 686; 60 Corpus Juris, 700-706.

Founded on the general and vague concepts of justice and good conscience, subrogation has been nurtured and encouraged, and is no longer restricted to cases of contract and suretyship.

In 50 Am. Jur. 686, it is stated: “As now applied, it (subrogation) is broad enough to include every in- ■ stance in which one person not acting as a mere volunteer or intruder pays a debt for which another is primarily liable, and which in equity and good conscience should have been discharged by the latter. ’ ’

In 60 Corpus Juris 706, and the cases cited in support thereof, it is further stated: “It (subrogation) is no longer confined to cases of suretyship, but the doctrine has been steadily growing and expanding in importance and becoming more general in its application to various subjects and classes of persons, the principle being modified to meet the circumstances of cases as they arise.”

This interpretation of the scope of the doctrine has been adopted by the Illinois courts, and the foregoing excerpt from Corpus Juris was quoted by the court in People ex rel. Nelson v. Phillip State Bank & Trust Co., 307 Ill. App. 464, 467. Moreover, in the recent case of Cherry v. Aetna Casualty & Surety Co., 372 Ill. 534, the Illinois Supreme Court stated with reference to the doctrine of subrogation, “Subrogation is not simply a matter of contract but is one of equitable right. ’ ’

With this general statement of the doctrine of subrogation as a guide, it is incumbent upon this court to determine whether the state treasurer, as custodian of the Wisconsin Security Fund, is entitled to invoke the doctrine to secure reimbursement from the defendant employer for monies paid out of the fund, pursuant to the statute, to defendant’s employee.

The law is settled under both the Wisconsin and Illinois Workmen’s Compensation Acts that the employer and the insurance carrier are directly liable for the payment of workmen’s compensation to employees.

In Thomas v. Industrial Commission, 10 N. W. (2d) 206, 208, 243 Wis. 231, the court quoted with approval the decision in Independence Indemnity Co. v. Industrial Commission, 209 Wis. 109, 244 N. W. 566, and stated with reference thereto :

“It was further held that liability of the employer to the employee is the primary liability, although proceedings against either the employer or the insurance carrier may be had. . .

In the Illinois case of Equitable Casualty Underwriters v. Industrial Commission, 322 Ill. 462, it was held that the employee could have proceeded to collect the awards either from the employer or the employer’s insurance carrier, or both.

It is also established that where the insurance carrier is insolvent, the employer will be held liable to the employee for the full amount of compensation. Stephens Engineering Co. v. Industrial Commission, 290 Ill. 88; Dyer v. Industrial Commission, 364 Ill. 161.

In the instant case, although defendant had a primary duty to pay the compensation to its employee, neither defendant nor its compensation carrier made such payment. Instead, the awards remained unpaid for more than 60 days after they were entered, whereupon it became the duty of the plaintiff, as custodian of the Security Fund, to pay the employee under the mandate of sec. 102.65 of the Wisconsin Workmen’s Compensation Act.

This section provides in substance for the creation of a fund for the purpose of assuring payments to persons entitled to compensation, whose employments were insured in insolvent carriers. This fund is administered by the commissioner of insurance and the industrial commission, and is comprised of contributions required from all mutual carriers in the amount of one per cent of their annual earned premium.

Where an award for compensation remains unpaid for 60 days by reason of the default of an insolvent carrier, the industrial commission is required to certify to the commissioner of insurance the amount payable, and the latter must file certification of the payments to be made with the state treasurer, who then is obliged to pay the amount due from the fund.

The statute further provides, that “the State Treasurer, .as Custodian of the funds shall proceed to recover the sum of all liabilities of such carrier, its receiver, rehabilitator* or trustee in bankruptcy, employer, and all others liable, and may prosecute an action or proceedings therefor. All monies recovered in .such .proceeding shall be replaced in the Fund to reimburse it to the extent of the monies recovered. ’ ’

In the instant case, it is readily admitted that plaintiff, as custodian of the fund, paid the award in compliance with all the conditions set forth in the statute: An employee of the defendant sustained a compensable injury in the course of operations in Wisconsin; at the date of such injury the employer was insured by a mutual carrier which had paid its required contribution of one per cent of its earned premiums into the fund; this carrier, and its successor became insolvent; the award remained unpaid for more than 60 days by reason of the default of the insolvent carrier; the award was certified with the commissioner of insurance, who, in turn, filed certification thereof with the plaintiff, and it then became his duty under the statute to pay the said award from the Security Fund.

It would appear, therefore, that this case presents prima facie a situation involving all the essential factors for the application of the equitable doctrine of subrogation, for the plaintiff, acting under the compulsion of the Wisconsin Workmen’s Act, and not as a volunteer, paid a debt for which the defendant and its insolvent carrier were primarily liable.

Defendant, however, in denying any liability to reimburse the fund under any theory of subrogation advances the following argument, which apparently had the approval of the trial court according to the opinion filed in the record.

Defendant contends that the insurance carrier covering its compensation liability at the date of the accident paid the required contribution into the Security Fund, and that the amount of such contribution was passed on as increased premium charges to the defendant company, wherefore, defendant insists, since it was required to contribute indirectly to the fund, it should not now be called upon to reimburse the same fund. .

The tenuous nature of this argument is apparent from a closer examination of the facts and an analysis of the purport of the statutory provisions in question.

The defendant, as an employer doing business in Wisconsin, insured its compensation liability as it was required to do under the Wisconsin Workmen’s Compensation Act, in a duly licensed insurance carrier, and paid the carrier a premium measured by the nature of the risk assumed. The carrier was required under subsec. 5 (b) of sec. 102.65, to pay into the Security Fund one per cent of its earned premiums, and for the year during which defendant’s employee sustained the accidental injury, the carrier reported earned premiums in the amount of $88,130.80, and, therefore, remitted into the Security Fund the sum of $881.39, representing one per cent thereof.

If the carrier did pass on this expense among its numerous policyholders by adding to the premiums charged to each employer, it is obvious that the amount added to each individual premium would be but a fractional sum over and above the regular premium charges, inasmuch as the total contribution paid by the carrier was only one per cent of its earned premiums. It should be noted, moreover, that there is no allegation in the pleadings that the carrier did pass on this expense, or that any specific additional sum was charged to defendant for the Security Fund, or that such practice was authorized or envisaged by the statute.

Nevertheless, defendant contends that the indefinite and conjectured fractional sum, which it may or may not háve paid through its premiums, should relieve it of its entire compensation liability, which in turn should be borne by the Security Fund.

Not only would this interpretation constitute an unjust enrichment of the defendant, and lead to the rapid depletion of the fund, inasmuch as employers by delaying payments of compensation for 60 days could avoid all liability where the carrier was insolvent, but it is clearly in contravention of the stated purpose and plain words of the statute.

Subsec. 4 of sec. 102.65 sets forth the sole purpose for the creation of this Security Fund, and provides that the fund is created “for the purpose of assuring persons entitled thereto, the benefits provided by this Chapter (Workmen’s Compensation Act) for employments insured in insolvent carriers.”

The persons entitled to the benefits under the Act are the injured employee or, in case of death, his dependents, and it is to assure this group the prompt payment of claims where their employments are insured in insolvent companies that this fund is created.

No other purpose is stated in the statute, nor is any other purpose intended. The gratuitous assumption by defendant that the fund is designed to relieve the carrier or the employer, both of which are primarily liable for the payment of compensation, from liability where the carrier becomes insolvent, is. in direct contradiction to the provision authorizing the state treasurer to institute proceedings to recover from the carrier and employer, and others liable, the amount paid out of the fund by reason of the carrier’s default. Obviously, that provision does not indicate a legislative intent to reinsure the carrier, or to substitute the fund in lieu of the employers’ liability to his employee; on the contrary, it is solely designed to protect the fund from depletion in the interest of those for whom the fund is established. Had the employer in the instant case promptly paid its obligation under the award, it could not be seriously contended that it could seek indemnification from this emergency fund. Why, then, should it be relieved from making such payment merely by reason of its own meretricious delay and categorical denial of its statutory liability.

. It is the considered judgment of this court that under the Wisconsin Workmen’s Compensation Act, the defendant employer had a primary duty to pay compensation to its employee; that the insurance carrier was liable to the same extent; that when the carrier became insolvent the. defendant nevertheless remained liable, and that such liability was neither eliminated nor modified by the establishment of the Wisconsin Security Fund. When, therefore, plaintiff, as custodian of the Security Fund paid the amount of the awards under statutory compulsion, and thereby discharged defendant’s primary liability and obligation to its employee, plaintiff thereupon became entitled to be subrogated to the rights of the said employee and should properly be reimbursed by the defendant to the extent of the payments made.

We cannot agree with the statement of the trial court that- the common-law doctrine of subrogation does not apply, for clearly under the prevailing interpretation of the scope of the doctrine of subrogation, where the plaintiff paid, under compulsion, the obligation for which defendant and its carrier were primarily liable, this equitable and favored concept of the law should be applied. For in good conscience the defendant employer should not be permitted to avoid and pass on its compensation liability merely because the State legislature of Wisconsin set up for the benefit of those entitled to compensation an emergency fund to provide for prbmpt payment where the employments were insured by insolvent carriers.

Therefore, the allegations of plaintiff’s second amended complaint, which predicate recovery on the theory of the common-law doctrine of subrogation did set forth a good cause of action, and the complaint should not have been dismissed on that ground by the trial court.

There is another and equally compelling reason for holding the complaint sufficient as a matter of law. Plaintiff’s second theory of recovery, stated in the complaint, is predicated upon the statutory right of subrogation created by the provisions of subsec. 11, sec. 102.65. Under the unambiguous wording of this section, previously referred to in our analysis of the legislative purpose of the fund, it is provided that: “The State Treasurer as custodian of the funds shall proceed to recover the sum of all liabilities of such carrier assumed by such funds from such carrier, its receiver, liquidator, rehabilitator, or trustee in bankruptcy, employers, and all others liable, and may prosecute an action or proceeding therefor. All monies recovered in any such action or proceeding shall forthwith be placed to the credit of the proper fund by the State Treasurer to reimburse said fund to the extent of the monies so recovered and paid.”

This ^section unequivocally creates a statutory right of subrogation, which cannot be extinguished by judicial construction. This court cannot find within this provision, or any interpretation thereof, any basis for the conclusion of the trial court that this section, by authorizing the state treasurer to seek reimbursement from the insolvent carrier, deprives the employer of the right to proceed against such carrier, or its receiver, for reimbursement of any sums it has been required to pay out as compensation. Not only does that construction of the provision make a gratuitous addition to the statute, i. e., that it deprives the employer of his right to proceed against the carrier, but it fails to take cognizance of the fact that the only time the employer would be entitled to claim reimbursement from the insolvent carrier would be when it paid a compensation award to an employee, and under those circumstances the state treasurer would not be authorized under the statute to pay the award, hence the treasurer would have no occasion to seek reimbursement from anyone.

It is apparent, therefore, that the rights of the employer and the treasurer to proceed against the carrier are not in conflict, and by giving effect to the plain words of the statute no one is being deprived of any rights previously enjoyed.

It is submitted, finally, that under the full faith and credit clause of article IV of the Constitution o'f the United States, this court is required to give effect to the public acts of a sister State. There is nothing in the provision of the Wisconsin Compensation Act authorizing the state treasurer, as custodian of the Security Fund, to seek reimbursement from an employer doing business in Wisconsin for a compensation award paid out by the State Fund, that is repugnant to the laws of this State, and, therefore that law should and will be applied by this court.

On the basis of the foregoing conclusions it is the opinion of the court that the allegations of plaintiff’s second amended complaint, which predicated liability on the statutory right of subrogation, stated a cause of action, and constituted a second legally sufficient theory upon which recovery could be allowed. In striking this second amended complaint on the ground that it did not state a cause of action, the trial court was in error, and the judgment entered thereupon in favor of the defendant must, therefore, be reversed and remanded to the lower court with directions to overrule the motion to strike the complaint.

Judgment reversed and remanded with directions.