author: Mr. Presiding Justice Lewe

text:
    Lush’us Brand Distributors, Inc., Appellee, v. Fort Dearborn Lithograph Company, Appellants.
    Gen. No. 43,360.

      Opinion filed November 20, 1946;
    Rehearing opinion filed January 8, 1947. Released for publication January 28, 1947.

      Cobbey & Brussell, of Chicago, for appellants; J. A. Cobbey, James R. Frankel and Abraham W. Brussell, all of Chicago, of counsel.
    Bobb, Spoerri, Bourland & Harris, of Chicago, for appellee; James F. Spoerri and Herman C. Nagel, both of Chicago, of counsel.
   Mr. Presiding Justice Lewe

delivered the opinion of the court.

This is an action for an accounting and injunction restraining defendants Fort Dearborn Lithograph Co., a corporation, hereinafter called “Lithograph Company,” John N. Adler, Rose Adler Fedorka, Edward Cuarina, and Affiliated Food Products Company, a domestic corporation, from using the trade names “Lush’us” and “Tru-Valu.” Defendant Adler filed a counterclaim seeking dissolution of the plaintiff corporation.

The cause was referred to a master and in conformity with the findings and recommendations contained in his report a decree was entered in favor of the plaintiff corporation, dismissing the counterclaim filed by defendant Adler and enjoining defendants from manufacturing, using, displaying, or selling labels bearing the names “Lush’us” or “Tru-Valu,” and that an accounting be made to plaintiff corporation of all moneys derived from the manufacture, use and sale of such labels. Defendants appeal.

The evidence shows that about 1927 Edward A. Novak and his brother Victor were engaged in the wholesale grocery business known as Lush’us Products Company and used the name “Lush’us” as descriptive of food products sold by them. In 1929 they organized a domestic corporation which used the same name and label. In 1931 the corporation was adjudged a bankrupt. A trustee was appointed and the assets were subsequently sold. At the trustee’s sale Edward and Victor Novak purchased the goodwill, rights to trademarks, and a large number of labels bearing the word “Lush’us.” Afterwards Victor Novak sold all of his interest in the labels to his brother Edward. In July 1935 Lithograph Company entered into a written contract with Edward Novak, doing business as “Lush’us Brand Distributors,” which provided in substance as follows: that Lithograph Company was to furnish Novak with labels bearing the trade name of “Lush’us Brand” at prices specified in the contract; that all labels shipped by Lithograph Company to Novak’s customers were to be invoiced at an increase of 20 per cent in excess of the prices fixed in the agreement; and that 20 per cent represented a brokerage commission to Novak and was to be remitted to him on the 15th day of each month.

The contract further provided that in the event Novak was unable to sell labels already lithographed and varnished within a reasonable time Lithograph Company was empowered to dispose of the labels on hand in any manner it saw fit. It appears that Novak failed to obtain orders in sufficient quantities to satisfy Lithograph Company. When the sales of labels lagged, defendant Adler, who was secretary of Lithograph Company, feared that the large stock of labels in the hands of Lithograph Company might become obsolete. In order to facilitate the sale of the labels, defendant Adler and Novak organized the plaintiff corporation in 1936, the stock of which consisted of 100 shares of a par value of $10. The stock was equally divided between Adler and Novak. It was also agreed that the latter’s wife, Violet Novak, was to hold one share of her husband’s stock. The consideration for the issuance of the capital stock of plaintiff corporation was a trade-mark valued at $1,000. Control of the plaintiff corporation since its organization was vested in Novak and his wife who constituted two of the three directors, Adler being the third. All of the business of plaintiff corporation was conducted from the office of Lithograph Company by defendant Adler. Labels were shipped directly to plaintiff’s customers by Lithograph Company which retained 80 per cent of the billing and credited 20 per cent to plaintiff corporation.

On December 11, 1937, Edward A. Novak and the plaintiff corporation entered into a written contract which provides in substance that Edward A. Novak, as licensor, is the owner of trade-mark number 268003 covering the use of the word “Lush’us”; that plaintiff corporation, as licensee, is engaged in the business of printing and distributing “said trade-marks” for use among food distributors and is fully equipped to manufacture labels and other forms of advertising matter, and is desirous of obtaining a license to use said trademark; that the licensor, Edward A. Novak, hereby grants to the licensee, plaintiff corporation, the right to use trade-mark number 268003 for a period of 5 years from the date of the contract; that the licensee agrees to pay Novak 50 per cent of all of its net profits derived from the use of the trade-mark, payments due under the contract to be made on the first day of each month; and such payments shall be accompanied by statements showing the manner in which the said net profits were calculated.

Thereafter, on June 25, 1938, a new Federal Food, Drug and Cosmetic Act, known as the Copeland Act, was enacted, which became effective on July 1, 1940. This Act provided, among other things, that food labels must bear the name of the manufacturer, packer, or distributor of the food products which they designate.

The record discloses that early in 1939 Novak and Adler conferred concerning the effect of the Copeland Act upon the business of the plaintiff. Adler consulted with the Department of Agriculture in Washington and was informed that the plaintiff, Lush’us Brand Distributors, Inc., could not be recognized as a distributor of foods under the provisions of the Copeland Act. Thereafter Adler suggested to Novak that the charter of the plaintiff be amended to authorize an issue of preferred stock and that it distribute the stock to the customers of the plaintiff, all of whom were food distributors, in order to comply with the provisions of the Copeland Act. This suggestion and others proposed by Adler were rejected by Novak on the ground that it might result in shifting control of plaintiff corporation from Novak to defendant Adler. ‘ .

Subsequently, in January 1940, Adler proposed that Novak accept royalties for the use of the trade names “Lush’us” and “Tru-Valu” and a minimum monthly salary. While Adler and Novak were discussing the terms of the new contract and re-organization of plaintiff corporation, Adler was informed by his lawyer that an examination of the files in the Patent Office at Washington disclosed that trade-mark number 268003 had been canceled ten years before. Several months after acquiring this information defendant Adler incorporated “Affiliated Food Distributors, Inc.,” a domestic corporation, and began selling “Lush’us” and ‘‘Tru-Valu” labels to plaintiff’s customers. These labels had been printed and intended for use of the plaintiff corporation. Adler obliterated the name of the plaintiff corporation upon the labels and imprinted in place thereof the name of “Affiliated Food Distributors, Inc.” He also superimposed the name of the defendant Affiliated Food Distributors, Inc., upon the billheads and letterheads of the plaintiff corporation which were in his possession and thereafter used them in soliciting collection of the plaintiff’s accounts receivable. It is uncontroverted that defendant Affiliated Food Distributors, Inc., through Adler, who with members of his family as his nominees are the sole stockholders and officers, appropriated all of the assets, labels, trade-marks, customers, and goodwill of plaintiff corporation as a result of which plaintiff virtually ceased doing business.

Defendants made a motion in this court to vacate the decree in the instant case on the ground that plaintiff corporation was dissolved on December 20, 1944, in an action filed by the attorney general of Illinois in the superior court of Cook county case number 124517. We took the motion with the case. It appears from objections filed by plaintiff to defendants’ motion that the decree of dissolution heretofore entered against plaintiff corporation was vacated and set aside in the same proceeding on June 25,1946, thus restoring the status of plaintiff as a domestic corporation. Defendants’ motion is therefore denied.

Defendants’ first contention is that plaintiff corporation may be disregarded as a form or a “fiction” since the present controversy is between two hostile stockholders and should be determined “with reference only to their individual rights.” In their answer defendants admit that plaintiff is an Illinois corporation. The record shows that the plaintiff corporation paid Adler and Novak monthly salaries of $75 each from J anuary 1937 to J anuary 1,1940; that Adler filed annual reports with the secretary of state as required by law in behalf of and as an officer of the plaintiff corporation. Moreover, defendants did not urge this point before the master or the chancellor. Under these circumstances we hold that defendants’ contention is untenable.

It should be noted that when Adler organized defendant Affiliated Food Distributors, Inc., he was still a director of the plaintiff corporation. The law is well established that directors of a corporation are entrusted with the management of its business and property for the benefit of all the stockholders and are subject to the general rule which prevails in regard to trusts and trustees. (Farwell v. Pyle-National Elec. Headlight Co., 289 Ill. 157, 164; Pelcak v. Bartos, 328 Ill. App. 435.)

Defendant Adler attempted to justify his conduct on the ground that the only property plaintiff corporation received in return for its stock was a license from Novak to use a nonexistent trade-mark. What effect, if any, lack of federal registration had upon the sale of plaintiff’s labels is doubtful, since it is undisputed that the sales increased every year. In the year ending 1936 they amounted to $3,923.95, and in 1939 the total sales aggregated about $39,000.

No evidence was offered tending to prove that Novak had any knowledge that the registration of the trademark had been canceled when he made the foregoing contracts. The master expressly found that Novak did not acquire this information until 1940. We think the master’s finding was warranted by the evidence. Furthermore, no objection was made by the defendants to this finding and so far as the record shows that question is raised for the first time in this court.

Assuming, as Adler is contending, that Novak contributed nothing of value for his stock in plaintiff corporation, it seems to us that Adler’s position in that respect is no better, since he merely made available to plaintiff corporation the facilities of Lithograph Company to furnish labels and thereby enhance the profits of Lithograph Company.

From a reading of the record it is clear that Adler’s primary purpose in joining Novak in forming the plaintiff corporation was to increase the sale of labels, thus permitting him to share the profits equally with Novak in the plaintiff corporation and at the same time increasing the profits of Lithograph Company in which he also shared as a stockholder and an officer.

Defendants urge that a court of equity has jurisdiction to dissolve plaintiff corporation since a deadlock exists between its stockholders Novak and Adler. They say that “no yearly election appears to have been held and so the directors continued as holdover directors”; that in 1939 disputes arose between Novak and Adler, culminating in Novak taking control of plaintiff corporation and removing Adler as an officer thereof and that regardless of how the present case terminates the deadlock will continue to the detriment of Adler. In Appeal of Gidwitz v. Cohn, 238 Ill. App. 227, involving a “deadlock” under circumstances not unlike those in the instant case, the court said, at page 230, that “courts of chancery are without jurisdiction to decree the dissolution of corporations, except in so far as that jurisdiction is conferred by statute.” When Adler’s counterclaim was filed in the present case, defendant Affiliated Food Distributors, Inc. had taken complete possession of plaintiff corporation’s assets and business. Up to the time Adler organized Affiliated Food Products, Inc., plaintiff corporation was a going concern. The impasse among the directors was reached when Adler attempted to wrest control from Novak and his wife. In our opinion the evidence does not show that the acts of Novak and the latter’s wife were either oppressive or fraudulent, nor that irreparable injury would result to the corporation from the deadlock. We therefore hold that the chancellor was warranted in dismissing the counterclaim of Adler which prayed for the dissolution of the plaintiff and liquidation of its assets.

Finally defendants contend that the chancellor erred in holding defendants other than Adler liable, and that, in any event, plaintiff corporation can only recover the selling profit of 20 per cent. It appears that Lithograph Company furnished labels to defendant Affiliated Food Distributors, Inc. on the same terms and conditions as those granted plaintiff corporation; that Adler owned 10 per cent of the stock of Lithograph Company and also had a 1/9 interest as a beneficiary in a trust which held other stock in the same company. The evidence is not clear as to the extent of Adler’s holdings in Lithograph Company, nor does it appear that the other officers were apprised of or sanctioned Adler’s conduct with respect to the breach of his fiduciary obligations to plaintiff.

Under these circumstances we are impelled to hold that only Adler and Affiliated Food Distributors, Inc., which he owned and controlled, are liable to plaintiff.

The decree provides that£ £ defendants and each of them shall make an accounting to plaintiff of all money derived from the manufacture, use, display, sale, or distribution of labels.” In our view this provision is too broad. The evidence shows that defendant Affiliated Food Distributors, Inc. was billed for labels upon the same terms as those given plaintiff corporation by Lithograph Company. Since plaintiff corporation had no claim under its agreement with Lithograph Company for any moneys in excess of 20 per cent of the invoice price to plaintiff’s customers, we think defendants Adler and Affiliated Food Distributors should make an accounting to plaintiff corporation on this basis only, excluding any manufacturer’s profit of Lithograph Company. The decree should therefore be modified accordingly.

For the reasons stated, the decree is reversed and the cause is remanded with directions for further proceedings not inconsistent herewith.

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

Kiley and Burke, JJ., concur.

On Rehearing.

In this case a rehearing was granted on the petition of plaintiff. Having considered the petition and the answer thereto we have decided to adhere to our opinion.


source: Caselaw Access Project

author: Mr. Presiding Justice Lews

license: Public Domain

text:
    Mathilda Wiczas, Appellant, v. Casimir S. Wiczas, Appellee.
    Gen. No. 43,486.
    Opinion filed January 8, 1947.
    Released for publication January 28, 1947.
    Aiken, McCurry, Bennett & Cleary, of Chicago, for appellant; Charles R. Aiken, of Chicago, of counsel.
    Stephen Love, of Chicago, for appellee.
   Mr. Presiding Justice Lews

delivered the opinion of the court.

On August 4, 1944 plaintiff filed a petition for a rule to show cause based upon a separate maintenance decree entered against defendant in the circuit court of Cook county on January 18, 1932. The petition alleged that there was due plaintiff the sum of $135.50. In his answer defendant’s principal defense was that he procured a decree of divorce in Clark county, Nevada, on August 11, 1943, and that, since the matrimonial bonds had been severed, his obligation to pay for the support of plaintiff under the terms of the separate maintenance decree had terminated.

On December 29, 1944 the chancellor entered an order denying plaintiff’s petition for a rule to show cause. Afterwards, on January 19, 1945, plaintiff filed a petition to vacate the order of December 29, 1944, which was denied on February 19, 1945. Plaintiff appeals from both orders.

The material facts are substantially uncontroverted. Defendant is 44 years of age, a member of the Illinois Bar, and has practiced his profession in Chicago since 1925. In 1932 a decree for separate maintenance was entered against him, which was subsequently modified by reducing the weekly payments from $5 to $2.50. In September 1935 he filed a complaint for divorce in the superior court of Cook county, charging plaintiff with desertion; and in March 1937 this complaint was dismissed for want of equity. In November 1942 defendant took an Army physical examination and shortly thereafter sold his office equipment and law practice, expecting to be inducted into the Armed Forces. Afterwards he was informed that he was not eligible for military service on account of his age. Thereupon he decided to abandon the practice of law and obtain employment in some industrial establishment. In the early part of 1943 he took a government sponsored course at a technical school. During this period he instituted legal proceedings to change his name to Wicks, for the reason that he was leaving a community where people of Polish extraction predominated and going to Nevada. Leaving Chicago on May 8, 1943 with all his belongings he arrived at Las Vegas, Nevada on May 11, where he resided at the Hotel Last Frontier from May 12 to August 20, 1943. During Ms stay in Las Vegas defendant paid personal property taxes there and also registered his automobile in Nevada. On September 1, 1943 he left Las Vegas and went to Los Angeles where he was married several days later. In February 1944 he returned to Chicago because of his second wife’s poor health, and has remained here ever since.

At the conclusion of defendant’s direct examination in the instant proceeding the chancellor asked defendant the following question: “I want to ask you one question. Now being .a lawyer and knowing, as I understand you to say, that you were going there for the purpose of obtaining a divorce; why didn’t you notify your wife that you were going to apply for a divorce!” Defendant’s counsel replied: “Just to make my point clear. Under the Williams v. North Carolina case (317 U. S. 287) I think this court is bound without any question at all, by the findings of the decree of divorce which have been set forth in our answer and admitted in their reply to the answer.” The court: “You mean to say that any court can falsely claim that they have got jurisdiction — that they had jurisdiction of the parties and of the subject-matter and yet obtain what amounts to a valid divorce!” Whereupon defendant’s counsel said, “Yes. I mean that is exactly what the Supreme Court said in the Williams v. North Carolina case.”

After the foregoing colloquy the chancellor stated: “The court finds, as a matter of law, that after the defendant here left Hlinois and went to the State of Nevada that he established what amounted, under the majority opinion of the Williams v. North Carolina in that case overruling the Haddock and Atherton cases — he established a bona fide residence there, which he had a legal right to do. And having done that and she having been notified not by personal service, perhaps, of the copy of the bill, but having received notice of his action there and not having seen fit to take affirmative action on that — I don’t mean by that she had to go there and fight the case — that she has prejudiced her own case, so that he, on this record up to date is a possessor of a bona fide decree of divorce of the sister state. And under the case I have got to follow, the rule to show cause will be denied.”

In the trial court defendant urged that the Nevada divorce was entitled to full faith and credit in the case at bar and therefore the chancellor was precluded from making any inquiry into the jurisdictional findings of the Nevada court. In this court defendant maintains that “the evidence heard in this case in the Circuit Court of Cook County” clearly established the fact that the defendant was actually domiciled in Clark county, Nevada for six weeks prior to the filing of the Nevada divorce suit and that the plaintiff received notice of the filing of the Nevada divorce proceedings as early as July 7, 1943.

It is manifest from the chancellor’s finding that he misapprehended the facts in Williams v. North Carolina, 317 U. S. 287, and therefore erred in basing his decision in the present case upon the ruling in the Williams case. In that case the question of domicile was not controverted as in the present case. Moreover, the fact that the chancellor found “as a matter of law” that defendant had “established what amounted to a bona fide residence” raises serious doubt as to whether any of the evidence bearing on the question of the Nevada court’s jurisdiction was considered, except the bare recitals and findings of the Nevada decree.

In the recent case of Atkins v. Atkins, 393 Ill. 202, our Supreme Court after analyzing the opinions of the United States Supreme Court in the second case of Williams v. North Carolina, 325 U. S. 226, and Esenwein v. Commonwealth ex rel. Esenwein (Pa.), 325 U. S. 279, held, at page 207: “(a) that the power of a court to grant a divorce is founded on domicile, and (b) that the full-faith-and-credit clause operates only with respect to judgments rendered by a court whose jurisdiction either as to the subject matter or the person is not impeached. ’ ’

On the question of domicile, the Athins case cited with approval the law as announced in Dunham v. Dunham, 162 Ill. 589. At page 617 the court said: “It is perfectly clear, from the evidence, that the sole purpose of appellant in going to South Dakota was to obtain a divorce from appellee in the shortest possible time and with the least possible trouble and publicity, and that she had no intention of permanently residing there. The question of the jurisdiction of the South Dakota court is not concluded by its decree but is open to inquiry here.... The courts are not concluded by the findings in the foreign decree on the question of jurisdiction. ’ ’

In the present case defendant admitted that he went to Nevada for the purpose of procuring a divorce decree. So far as the transcript of the Nevada divorce proceedings shows, defendant did not apprise the Nevada court of the entry of a separate maintenance decree here; nor did he inform the Nevada court that he had filed a bill for divorce charging plaintiff with desertion, which had been dismissed for want of equity.

Under the authority of Atkins v. Atkins, 393 Ill. 202, and Dunham v. Dunham, 162 Ill. 589, the concealment of these facts from the Nevada court should have been considered by the chancellor in the instant case, for the purpose of determining whether defendant was guilty of practicing a fraud upon the Nevada court. The evidence clearly shows that the chancellor did not consider any of these facts but proceeded on the theory that he was concluded by the jurisdictional findings of the Nevada divorce decree.

For the reasons given, the orders .of December 29, 1944 denying the rule to show cause, and of February 19, 1945 denying the motion to vacate the. order of* 1 December 29, 1944 are reversed, and the cause is remanded with directions to proceed in a manner not inconsistent with this opinion.

Reversed and remanded with directions.

Kiley and Burke, JJ., concur.


author: Mr. Justice Burke

text:
    In re Estate of Charles H. Close, Deceased. Paul Dunham Close, Executor of Estate of Charles H. Close, Deceased, on Appeal of Paul Dunham Close, Individually, Appellant, v. William F. Baker, Individually and as Executor of Estate of Helen Close Baker, Deceased, Appellee.
    Gen. No. 43,782.

      Opinion filed January 8, 1947.
    Rehearing denied January 28, 1947. Released for publication January 28, 1947.
    Bangs & Crane, of Chicago, for appellant; Martin Crane, of Chicago, of counsel.
    Fred W. Kraft and Jacob Kaplan, both of Chicago, for appellee.
   Mr. Justice Burke

delivered the opinion of the court.

On November 10, 1939 Charles H. Close made and published his last will and testament. He was a widower, his wife having died in 1929. He died at Chicago on March 5, 1944. The will was admitted to probate in the probate court of Cook county on April 12, 1944, at which time Paul Dunham Close, a son, qualified as executor and letters testamentary were issued to him. Three children were born to him, namely, Charles Dunham Close, Helen Close Baker and Paul Dunham Close. All of the children married. Charles Dunham Close, who predeceased the testator, left a widow, Cecile Close, and five children, namely, Harold P. Close, Charles D. Close, Jr., Nancy Close Zuelke, Dorothy Close Adams and Marjorie Close Edgerton. Helen Close Baker and Paul Dunham Close, children of the testator, survived their father. On July 22,1944, less than five months after the death of her father, Helen Close Baker died, without children, leaving her widower, William F. Baker, as her sole next of kin and beneficiary under her will and executor of her estate. The testator in his will remembered all of his grandchildren and a sister, making specific bequests. To his sister, Carlotta Close Hughes, he bequeathed $2,500; to his grandson, Paul D. Close, Jr., (son. of Paul D. Close) he bequeathed $100; and to Ms five grandcMldren (children of Charles Dunham Close, his deceased son) he made the following bequests: To Dorothy Close Adams $2,500; to Charles D. Close $500; and $200 each to Marjorie Close Edgerton, Nancy Close Zuelke and Harold P. Close. He did not make any bequest to Cecile Close, the widow of Charles Dunham Close. After the specific bequests, the will disposed of the residue of his estate by the following clause: “The rest and residue of my estate including any and all property of which I may die possessed or be entitled to, I devise and bequeath in equal parts, share and share alike, to my children Paul Dunham Close and Helen Close Baker. If either of my said children predeceases the other, the survivor shall inherit the entire rest and residue of my estate. ’ ’

In due time the executor filed an account showing the entire residue of the estate, consisting of $7,192.79 in cash, plus certain securities, as distributed “To Paul D. Close, survivor of Paul Dunham Close and Helen Close Baker.” William F. Baker, individually and as executor of the estate of his deceased wife, Helen ^ Close Baker, filed objection to the account, claiming that the contemplated distribution was contrary to the terms of the will. He asserts that a proper distribution of the estate would give one half of the residue to Paul Dunham Close and one half to the estate of his deceased wife and thence to him. Since the residue of the estate is estimated as in excess of $35,000, the amount involved is over $17,500. The objection to the account was sustained by the probate court, and a decree entered directing the executor to recast his final account so as to show distribution of one half of the residue to the estate of Helen Close Baker. In a trial de novo in the circuit court the objector, William ,F. Baker, individually and as executor of the estate of his deceased wife, again prevailed, and the executor of the estate of Charles H. Close, deceased, was ordered to recast his final account so as to show distribution of one half of the residue of the estate to Paul Dunham Close and one half to the estate of Helen Close Baker, deceased. Paul Dunham Close, as an individual, appealing, asks that the decree of the circuit court be reversed.

The proposition we are asked to resolve is whether the will creates an estate of survivorship in Helen and Paul. Appellant maintains that the will creates life estates in Helen and Paul as long as they both live with a contingent remainder to the survivor of them. He asserts that the remainder was contingent because until the death of one of them, it could not be determined who the survivor would be. Appellee argues that the will does not create an estate of survivorship or a life estate. He also asserts that by the use of the word “survivor” the testator unquestionably meant survivor of the children at the time of his death; that the courts favor the vesting of estates; that no trust or prior estate was created by the will; and that upon the death of the testator the residuary estate vested absolutely and unconditionally in Paul and Helen.

The paramount rule in the construction of wills is to ascertain the intention of the testator and to give it effect, if not prohibited by law or public policy. The court will consider the whole will and determine the intention of the testator from a consideration of all the language used. The intention must be determined from the will in the light of the circumstances surrounding its execution. Words are to be given their ordinary and popular meaning, unless some other meaning is indicated. Appellee urges that the word “survivor” refers to the time of the death of the testator and that Helen, having survived her father, her share vested in her and now passes to her estate and thence to him. Appellant, alluding to the sentence, “If either of my children predeceases the other, the survivor shall inherit the entire rest and residue of my estate,” maintains that when the testator used the words “the other” he fixed the time when the survivorship shall be determined; that the gift over is not simpliciter; that the will is not silent on this point; that the testator intended tiie survivor of his two children to take the residue of his estate upon the death of the first of them; that the word “survivor” is used as it would be if the testator were creating an estate in joint tenancy with right of sur-vivorship; that the testator may have contemplated creating á joint tenancy; that he may have rejected the idea because a joint tenancy may be broken by the conveyance of one of the joint tenants; that whatever his reasoning on this point may have been, the language he inserted creates a life tenancy in Helen and Paul for their joint lives, with a contingent remainder over to the survivor of them; and that such estates are free from the disadvantage inherent in a joint tenancy. Appellant maintains that it is clear that the testator was contemplating the death of one of his children in relation to “the other,” rather than in relation to his own death. Asking us to consider the alternatives open to the testator at the time he drew his will, appellant calls attention to the fact that the testator had five grandchildren through his deceased son Charles; that he left them “very little”; that he had a daughter-in-law, Cecile, the widow of his deceased son and the mother of these grandchildren; that he left her nothing; that he had another grandchild, Paul, Jr., the; son of appellant; that he left him $100; and that obviously the principal objects of his bounty were his two living children, Helen and Paul. Appellant inquires, “Is it surprising then that he made no provision for his son-in-law who here objects, hut even provided a gift over to the survivor of his children so that his son-in-law would not share in his estate?” Appellant urges that if the testator meant to leave his estate to appellee, he should have said:

“If either of my said children predecease me, the survivor shall inherit the entire rest and residue of my estate.” In support of his contentions, appellant cites Rady v. Staiars, 160 Va. 373; Mittel v. Karl, 133 Ill. 65; Cover v. James, 217 Ill. 309; Dowds v. Fresen, 392 Ill. 477; Bushman v. Fraser, 322 Ill. 579; and Potter v. Potter, 306 Ill. 37.

'Both parties quote the following rule from Jarman on Wills, (7th ed.) p. 2065:

“In this state of the authorities one scarcely need hesitate to affirm that the rule which reads a gift to survivors simply as applying to objects living at the death of the testator is confined to those cases in which there is no other period to which survivorship can be referred; and that where such gift is preceded by a life or other prior interest, it takes effect in favor of those who survive the period of distribution, and of those only.”

The law applicable to the facts of the instant case is stated by our Supreme Court through Mr. Justice Cartwright in Fifer v. Allen, 228 Ill. 507 (513):

“In case of a devise simpliciter to one person and if he should die, to another, the courts of England and this country have construed the will upon the theory that the testator must have had some contingency in view, and inasmuch as the death of the first devisee is a certain and not a contingent event, the testator must have contemplated death within some particular period of time, and to prevent a lapse and in favor of vested rather than contingent interests, they have considered the life of the testator to be that period.”

See also Liesman v. Liesman, 331 Ill. 287, 293.

The testator leaves the entire residue of his estate to his two children, Paul and Helen, not jointly, but in equal parts, share and share alike. When the testator stated that if either of his children predeceased the other, the survivor should inherit the entire rest and residue of his estate, he meant the survivor of the children at the time of his death. In onr opinion this clause cannot be construed to mean that an estate of survivorship was created by the will. The deaths of Helen and Paul were no uncertain events. No condition or contingency was mentioned in connection with the death of either beneficiary. To entitle the survivor to the other share, death must occur during the lifetime of the testator. We do not consider that the cases cited by appellant on this proposition support his position when applied to the facts of the case at bar. We agree with the appellee that the language used by the testator clearly indicates his intention that his children, Paul and Helen, should have the sole benefit of his residuary estate. After the specific bequests, he gave to Paul and Helen, his only living children, the residue of his estate in equal parts, share and share alike. Neither of the beneficiaries of the residuary estate, or any person whatsoever, was to have the property in trust. No prior estate was created by the will. There was no intervening estate or interest. It is cleár that he wanted the estate to go directly to his children without any intervening estate or interest.

Appellant asserts that life estates in personal property without a supporting trust are quite common, and that the more recent cases permit the life tenant to take possession of cash or securities upon “proper restrictions,” such as the giving of a forthcoming bond. Citing Quigley v. Quigley, 370 Ill. 151; Tripp v. Krauth, 340 Ill. 11; Gahan v. Golden, 330 Ill. 624; Cort v. Massie, 171 Ill. App. 123, and other cases. As we have held that no life estate, trust or estate of survivorship was established, it is unnecessary to discuss this proposition.

Because of the views expressed, the decree of the circuit court of Cook county is affirmed.

Decree affirmed.

Lews, P. J., and Kiley, J., concur.


author: Mr. Justice Kiley

text:
    S. C. Lurie, Appellant, v. Rosalia Vorreiter and Martha A. Sanger, Appellees.
    Gen. No. 43,638.

      Opinion filed January 8, 1947.
    Released for publication January 28, 1947.
    Aaron Soble and Maurice Weissman, both of Chicago, for appellant.
    Kelly, Kelly & Kelly, of Chicago, for appellees; John J. Kelly and John N. Thornburn, both of Chicago, of.counsel.
   Mr. Justice Kiley

delivered the opinion of the court.

This is an action to aid an execution upon a judgment by setting aside conveyances of real estate. The trial court dismissed the complaint for want of equity. Plaintiff has appealed.

The Immel State Bank failed on July 2, 1931. William C. Vorreiter and Eosalia, his wife, were stockholders in the bank at the time. Subsequently, creditors of the bank filed a stockholders’ liability suit. July 7, 1932 the Vorreiters filed their answers. The next day they conveyed two parcels of property held by them in joint tenancy to their daughter Martha Sanger. Judgment for $5,300 and costs was entered against the Vorreiters July 3, 1934.

Execution issued on the judgment December 1934 and was returned no part satisfied. Plaintiff purchased the judgment among other assets from the receiver in the stockholders’ liability suit. The sale to him was approved November 5, 1943. He caused execution to issue on the judgment in December of 1943. When the instant suit was filed March 6, 1944, that execution was unsatisfied.

Plaintiff, to aid his execution, seeks to set aside the two conveyances to Martha Sanger. The pleadings raised the issues whether the conveyances were in fraud of creditors and whether plaintiff is guilty of laches.

William Vorreiter died September 24, 1943. Defendant contends that this event occurring during the delay of nearly 12 years in filing suit, precludes plaintiff from maintaining his action. They say they were prejudiced because the testimony of the decedent was indispensable to their defense. Plaintiff claims that laches is not effective to bar his action. He says there has been no change of circumstances and that the death of William Vorreiter did not prejudice defendant in the case.

Plaintiff moved to strike parts of defendant’s answer to the third amended complaint. The motion was denied and plaintiff replied. He thereby waived whatever deficiency may have been in the answer.

The evidence shows the conveyance to Martha Sanger was voluntary. If there were a showing that the grantors were insolvent at the time or in failing circumstances, largely indebted and shortly after the conveyance insolvent, defendants would have the burden of dispelling the implication of fraud. Kennard v. Curran, 239 Ill. 122; Birney v. Solomon, 348 Ill. 410. The plaintiff’s position is that there was ample showing to raise the implication of fraud.

The evidence shows that Rosalia Vorreiter knew little, if anything, of the family financial condition; that the decedent did not disclose to her the details of his business; that she had no bank account at the time of the conveyances or thereafter; and that the decedent was “determined” to take care of the family affairs. She testified that she had no assets on the day of the conveyances or thereafter. She also said she did not know whether her husband or herself retained any personal or real property after the conveyance. She testified that she knew she had a one half interest in the two parcels of property conveyed, but that she did not know their value, knew none of the details of the conveyances, nor the purpose. There was evidence too that William Vorreiter sold one meat market business in 1929. Rosalia did not know the sale price. There was evidence too that he maintained another meat market until he retired in 1935 and that he always had money after he retired.

Martha Sanger paid taxes on the property since 1932. In 1938 she and her husband placed a $5,000 mortgage on the property. She had made the payments thereon to the date of trial. During all of this time her mother and father, until his death, and her mother thereafter, lived with her in one of the properties without paying rent.

Before buying the assets from the receiver, plaintiff “checked” to see how many of the judgment debtors were in the telephone book and how many were bankrupt. He took into consideration the age of the judgment and found that most of the judgment debtors were thrifty people, steadily employed and of a kind who would pay “if a little pressure were brought.” He says he learned of the Vorreiters in December 1943. The record shows that the deeds of conveyance to Martha Sanger were recorded in July 1932. The record indicates that plaintiff bought the judgment for approximately $50. At the time of the trial he had collected about $10,000 net upon the assets which he had bought for $3,000.

Plaintiff contends principally for the undivided one half interest of Rosalia. He relies on her testimony of her financial condition at the time of the conveyances and shortly thereafter.. Plaintiff admits that any defense which is good as to his assignor is good as to him. Had his assignor acted to set aside the conveyance during William Yorreiter’s lifetime, the judgment might have been paid' if “pressure” were brought. There was evidence that he had money. That would have obviated danger to the title of Martha Sanger from the instant suit. We think that the decedent’s testimony was necessary to her defense as to both her mother and father’s interests in the property. We think that Martha Sanger, as to both interests, was prejudiced by the delay in filing the action. Forster v. Brown Hoisting Machinery Co., 266 Ill. 287.

We cannot hold that there was fraud which precluded the defense of laches. There was no fraud, unless there was insolvency at the time or shortly thereafter. The only defense to the claim of fraud was, for the reasons given, the testimony of the decedent concerning the family finances. There is nothing in the record to show that either of the defendants or their attorney had such knowledge of the finances as would enable them to give helpful testimony.

We need consider no other point raised. Although our conclusion rests on different grounds than those assigned by the trial court for its decision, we believe the judgment should be affirmed. There is no necessity for considering the reasons given by the trial court for its decision.

Affirmed.

Lews, P. J., and Burke, J., concur.


author: Presiding Justice Sullivan.

text:
    Luther Williams, Trading as L. Williams and Son, Appellee, v. Howard Ames, Appellant.
    Gen. No. 43,636.

      opinion filed December 31, 1946;
    rehearing denied January 14, 1947; released for publication January 15, 1947.
    Charles B. Elder and Howard Ames, pro se, for appellant; Ernest Kentwortz, for appellee.
   Opinion by

Presiding Justice Sullivan.

Not to be published in full.


text:
    Turner G. Freeny, Appellant, v. Effie Freeny, Appellee.
    Gen. No. 43,763.
    opinion filed December 31, 1946;
    released for publication January 15, 1947.
    John D. Vosnos, for appellant; Prescott, Burroughs & Taylor, for ap-pellee; Euclid Louis Taylor, of counsel.
   Opinion by

Presiding Justice Sullivan.

Not to be published in full.


author: Justice Friend.

text:
    Steve Guvo, Appellee, v. Frank Banis, Appellant.
    Gen. No. 43,608.

      opinion filed December 31, 1946;
    released for publication January 15, 1947.
    Robert F. Kolb and Francis M. Cooper, for appellant; Matthew Steinberg and Fred Polacek, for appellee; Abraham Miller, of counsel.
   Opinion by

Justice Friend.

Not to be published in full.


text:
    R. D. Cunningham, Appellee, v. William P. Cagney, Appellant.
    Gen. No. 43,673.
    opinion filed December 31, 1946;
    released for publication January 15, 1947.
    Charles J. Morgan, for appellant; Charles J. Morgan and Samuel M. Lanoff, of counsel; Erwin F. Stolle, for appellee.
   Opinion by

Justice Friend.

Not to be published in full.


text:
    A. Nelson, Appellee, v. Allen Berry and Katherine Berry, Appellants.
    Gen. No. 43,789.

      opinion filed December 31, 1946;
    rehearing denied January 14, 1947; released for publication January 15, 1947.
    Irwin Bloom and Victor H. Goulding, for appellants; George C. Adams, for appellee.
   Opinion by

Justice Friend.

Not to be published in full.


text:
    City of Chicago, Appellee, v. Ray Sayer, Appellant. City of Chicago, Appellee, v. Theodore Thomson, Appellant. People of State of Illinois, Appellee, v. Ray Sayers, Appellant. People of State of Illinois, Appellee, v. Theodore Thompson, Appellant.
    Gen. Nos. 43,804-43,806.
    opinion filed December 31, 1946;
    rehearing denied January 14, 1947; released for publication January 15, 1947.
    Robert Bachrach and Harold Marovitz, for appellants; Barnet Hodes, Corporation Counsel, for appellee; J. Herzl Segal, Head of Appeals and Review Division, A. A. Pantelis and Sydney R. Drebin, Assistant Corporation Counsel, of counsel.
   Opinion by

Justice Friend.

Not to be published in full.

       See Callaghan’s Illinois Digest, same topic and section number.


author: Justice Scanlan.

text:
    B. H. Molner, Appellant, v. Roger T. Bevan et al., Appellees.
    Gen. No. 43,698.
    opinion filed December 31, 1946;
    released for publication January 15, 1947.
    Maurice Weissman, for appellant; James M. Turner and A. J. W. Appell, for appellees; A. J. W. Appell, of counsel.
   Opinion by

Justice Scanlan.

Not to be published in full.


author: Justice Feinberg.

text:
    Arnold S. Kirkeby, Appellee, v. Avenue Hotel Corporation, Appellant.
    Gen. No. 43,884.

      opinion filed January 6, 1947;
    released for publication January 20, 1947.
    Thomas A. Sheehan, for appellant; Poppenhusen, Johnston, Thompson & Raymond, for ap-pellee; Edward R. Johnston, Eloyd, E. Thompson and Allan R. Johnston, of counsel.
   Opinion by

Justice Feinberg.

Not to.be published in full.


text:
    James A. Evar, Appellant, v. Donna S. Evar, Appellee.
    Gen. No. 43,902.
    opinion filed January 6, 1947;
    rehearing denied January 20, 1947; released for publication January 20, 1947.
    Allan W. Cook, for appellant; Allan W. Cook and Wallace B. Kemp, of counsel; John J. Maciejewski, for ap-pellee.
   Opinion byo

Justice Feinberg.

Not to be published in full.


author: Justice Niemeyer.

text:
    Continental Illinois National Bank and Trust Company, Appellee, v. Ella H. Tinkoff and Paysoff Tinkoff, Appellants.
    Gen. No. 43,830.

      opinion filed January 6, 1947;
    released for publication January 20, 1947.
    Pay-soff Tihkoff and Ella H. Timkoff, pro se; Harold L. Beeve and Elmer M. Leesman, for appellee.
   Opinion by

Justice Niemeyer.

Not to be published in full.


author: Presiding Justice Lewe.

text:
    Antoinette Savaiano, Appellee, v. The 12th Street Store, Appellant.
    Gen. No. 43,409.
    opinion filed January 8, 1947;
    released for publication January 28, 1947.
    Hinshaw & Culbertson, for appellant; Oswell G. Treadway, of counsel; Coghlan & Coghlan, for appellee; M. J. Coghlan and John P. Coghlan, of counsel.
   Opinion by

Presiding Justice Lewe.

Not to be published in full.


text:
    William M. Woodson, Appellee, v. Ernest and Addie Benson, Appellants.
    Gen. No. 43,497.

      opinion filed January 8, 1947;
    released for publication January 28, 1947.
    Wade G. Morgan, for appellants; Clarke, Longmire & Lane, for appellee; Charles F. Lane, of counsel.
   Opinion by

Presiding Justice Lewe.

Not to be published in full.


author: Justice Burke.

text:
    Dr. G. E. Sandstedt, Appellee, v. Consumers Ice Company, Appellant.
    Gen. No. 43,704.
    opinion filed January 8, 1947;
    released for publication January 28, 1947.
    Wilson & McIlvaine, for appellant; J. F. Dammann and Sidney K. Jackson, of counsel; Leo M. Tarpey and Wm. A. Fullenkamp, for appellee.
   Opinion by

Justice Burke.

Not to be published in full.


author: Justice Kiley.

text:
    Daniel C. Briney, Minor, Appellee, v. Illinois Central Railroad Company, Appellant.
    Gen. No. 43,607.
    opinion filed January 8, 1947;
    rehearing denied January 28, 1947; released for publication January 28, 1947.
    John W. Freels and Herbert J. Deany, for appellant; Vernon W. Foster and Charles A. Helsell, of counsel; Joseph Barbera, for appellee; Harry G. Fins, of counsel.
   Opinion by

Justice Kiley.

Not to be published in full.


author: Mr. Presiding Justice Wolfe

text:
    L. J. Scheuer et al., Petitioners, v. Johns-Manville Products Corporation et al., Respondents. Johns-Manville Products Corporation et al., Appellants.
    Gen. No. 10,044.

      Opinion filed April 18, 1946.
    Opinion modified and rehearing denied February 3, 1947. Released for publication February 5, 1947.
    Heth, Lister & Flynn, of Chicago, Edwards & Block and Runyard & Behanna, all of Waukegan, for appellants.
    J. E. Bairstow, of Waukegan, for appellees.
   Mr. Presiding Justice Wolfe

delivered the opinion of the court.

On October 11, 1941, there was filed in the county court of Lake county a petition for the annexation to the City of Waukegan territory contiguous to the city. Said petition was signed by ninety-four persons. They stated that they are a majority of the owners of record, of the land and also a majority of the electors residing in the territory sought to be annexed. Objections to the petition were filed by Johns-Manville Products Corporation, North Waukegan Harbor & Dock Association, Hugh T. Birch and Arthur T. Galt, all owners of land in the territory. Among other objections, Birch and Galt specified that they are informed and believe, and upon such information and belief, state the fact to be, that the petitioners are not bona fide owners of any property within the territory.

The territory in question comprises approximately 500 acres. About 10 acres thereof had been, in years past before the petition was filed, subdivided into lots and blocks by three surveys, platted and named Arm-stead Addition and the Lake Shore Subdivisions. The petitioners alleged that they are. the owners of 94 lots in the addition and the subdivisions. It was contended and claimed in the county court by the objectors on the hearing on the petition that the petitioners became the owners of their lots very shortly before the petition was filed; that the deeds delivered to them for their respective lots were without consideration, and given to the petitioners to qualify them to sign the petition to carry out a conspiracy of the corporation counsel of the City of Waukegan, and other persons interested in obtaining the annexation. The question whether the petitioners are a majority of the bona fide owners of land in the territory, was contested at the hearing on the petition in the county court.

The hearing on the petition in the county court was commenced on December 2, 1941, and the next day the petitioners concluded their proof introduced to maintain the petition. On December 4, 1941, the objector, Johns-Manville Products Corporation, filed its complaint in the circuit court of .Lake county for an injunction to restrain the annexation proceeding in the county court. The hearing in the county court was thereupon suspended.

On December 5, 1941, the circuit court refused to grant a temporary injunction as prayed in the complaint of Johns-Manville Products Corporation. On December 17, 1941, the petitioners made a motion in the county court for final judgment on the petition on their proof, making a prima facie case in favor of granting the prayer of the petition.

The foundation of the motion for a final judgment in the county court is that the objector, Johns-Manville Products Corporation, with the acquiescence of the other objectors, filed the suit for injunction and the circuit court, by its decision, refused to order the writ for a temporary injunction. The grounds which the petitioners made and urged for their motion may be summarized as follows: By filing the complaint the objectors, (1) admitted that the petition conformed to the law and that the facts therein stated are sufficient to warrant an order of the county court certifying to the city council of the City of Waukegan, the question of the annexation of the territory described in the petition; (2) that the objectors had inconsistent remedies, and when they elected to proceed under their complaint for an injunction, they were barred from further proceeding in the county court. The motion of the petitioners for final judgihent was denied, and the hearing on the petition was continued in the county court. The objectors introduced evidence, and claimed that the petitioners were not bona fide owners of the territory sought to be annexed when the petition was filed.

There is a final order by the county court which declares and finds, upon hearing' of testimony of witnesses produced and examined in open court, “That the subject petition for annexation filed herein on October 11, 1941, is not signed by a majority of the bona fide property owners in the territory sought to be annexed, is not the voluntary, independent, expression of a majority of the property owners in such territory, and is legally insufficient and invalid under the statute.” The-order dismisses the petition at petitioners’ cost.

After the entry of the final order by the county court, the petitioners filed a petition in the circuit court of Lake county for the common-law writ of certiorari, and the record of the county court, with the evidence heard in said court on the petition, was certified to the circuit court on the return of the writ.

The circuit judge in a written opinion, which appears in the record, concluded that the Civil Practice Act enlarges the scope of review permitted under the common-law writ of certiorari as defined and limited by decisions of our Supreme Court before the enactment of the Act. The circuit judge found, “there is no evidence in the record to support the findings of the County Court or its judgment, ’ ’ and further, held that the county court improperly admitted evidence of the objectors in the county court and improperly interpreted and applied the law, wherefore the county court, “exceeded its jurisdiction in dismissing the petition,” for annexation and “did not proceed according to law.”

The final order of the circuit court after reciting, “to the end that this controversy may be finally determined according to the substantive rights of the parties, pursuant to the power vested in this court by Section 4 and Section 50 of the Civil Practice Act, the Court finds; makes extensive findings of fact and law as to the validity and legal sufficiency of the annexation petition; that the prayer of the petition should have been granted by the County Court.” Denies the objectors’ motion to quash the writ of certiorari and dismissed the petition therefor. Orders that, “The record of the judgment of the County Court is quashed and said order by the County Court is reversed, set aside and wholly for naught esteemed. ’ ’

It is first contended here by the petitioners (appel-lees herein), that the county court did not proceed according to law for the reasons which they assigned as grounds to their motion for final judgment in the county court, which will be now considered.

The procedure for annexation of territory to a city is purely statutory. Original jurisdiction under such a procedure is by statute granted to the county courts. Circuit courts dp not have concurrent jurisdiction with the county courts of the matter of annexation of territory to a city. The circuit courts may acquire jurisdiction of such a proceeding by its use of the common-law writ of certiorari, and not otherwise. The circuit court of Lake county was without power to determine the legality of the petition for annexation as a matter of original jurisdiction under the complaint for an injunction filed in that court. Consequently, the circuit court could not pass on the legality of the petition under the complaint, nor was there an election of inconsistent remedies by the objectors as the statute does not grant two remedies applicable to the question whether territory should, or should not, be annexed to a city. (Linnertz v. Dorway, 246 Ill. 485; Griesa v. Mutual Life Ins. Co., 169 Fed. 509; 20 C. J., p. 40, sec. 35.)

The statute governing the procedure for the annexation of territory to a city does not grant a statutory writ of certiorari with the provision that the circuit courts shall have power, under the writ, to determine all questions of law and fact determined by the county court. Such a provision, for example, does appear in the Retailers’ Occupation Act, Workmen’s Compensation Act and the Unemployment Compensation Act. The Civil Practice Act was enacted in 1933, the Retailers! Occupation Act in 1933, and the Unemployment Compensation Act in 1937. It is further to be observed that the annexation Act does not provide for appeal, nor writ of error, and the only method of review is by the common-law writ of certiorari. (Superior Coal Co. v. O’Brien, 383 Ill. 394.)

It is not contended by any party to this appeal that the county court of Lake county did not have jurisdiction of the parties and the subject matter of the proceeding for the annexation. It is not contended that the record of the county court does not show findings of fact sufficient to give the county court jurisdiction of the subject matter and the parties. (Crocher v. Abel, 348 Ill. 269, 276.) There is competent evidence in the record of the county court fairly sustaining the objection of the appellants that the petition for annexation is not signed by a majority of the bona fide property owners of the territory sought to be annexed. This evidence is sufficient to support the county court’s decision, and that it did not exceed its jurisdiction.

In the Abel case it is stated: “The extent to which the circuit court may review the proceedings of the county court in a case of this kind is limited. The common law writ of certiorari brings up for review only the record of the tribunal to which it is addressed, and not the evidence. An exception to this rule is made when the question involved is whether jurisdictional facts were, or were not proved.” (Citing cases.) The Supreme Court further stated in the Abel case: “Within a comparatively short time before the petition was signed eight property owners caused their respective properties to be transferred to themselves and their spouses as joint tenants. It is claimed that such conveyances were made for the sole purpose of enabling the proponents of annexation to obtain the necessary number of signatures to the petition, and that the spouses are not bona fide property owners and should not be counted among the petitioners. The bona fides of the transactions was a question of fact, which is not reviewable on certiorari. ’ (Frye v. Hunt, 365 Ill. 32.)

Since the enactment of the Civil Practice' Act the Supreme Court has adhered to the rule announced in the Abel case. (Superior Coal Co. v. O’Brien, 383 Ill. 394; Clauson v. Department of Finance, 377 Ill. 399; People v. Fisher, 373 Ill. 228.) Although it appears from these cases last cited that the Supreme Court has not in the general discussion of the extent of review on certiorari strictly confined its statements of the law to the rule that, “The common law writ of certiorari brings up for review only the record of the tribunal to which it is addressed, and not the evidence. An exception to this rule is made when the question involved is whether jurisdictional facts were, or were not proved. ’ ’ Thus the statement found in the case of Superior Coal Co. v. O’Brien, 383 Ill. 394, 401 is illustrative of statements of like import found in the cases referred to. 'It is there stated: “While it is true that the writ of certiorari provided by the Retailers’ Occupation Tax differs from the common law writ of certiorari the differences are minor in the extreme. In common law certiorari proceeding the trial judge determines from the record alone whether there is any evidence fairly tending to support the order reviewed and cannot set aside the order unless it is palpably or manifestly against the weight of the evidence. ’ ’ There has been no decision of the Supreme Court holding that the Civil Practice Act has enlarged the scope of review of facts in a certiorari proceeding which was taken under the common-law writ of certiorari.

In the case of the People v. Fisher, 373 Ill. 228, p. 233, it is stated, “At common law the jurisdiction of a court of review by certiorari was decisively fixed; therefore, any effort to enlarge that jurisdiction must be stated in the statute, for such enlargement is not to be accomplished by judicial interpretation.” It was there held that there being no provision in the Retailers’ Occupation Tax granting the circuit court’s authority as to what orders were to he rendered, the circuit courts are limited to the authority springing from the common law, that is, to either quash the writ of certiorari or quash the return.

It is our opinion that the case of Crocher v. Abel, 348 Ill. 269, is decisive that the order of the circuit court on the writ of certiorari should be reversed unless there is merit in the contention of the petitioners that the Civil Practice Act has enlarged the authority or circuit courts on the writ .of certiorari to review facts, other than the facts that were necessary to establish the jurisdiction of the court to which the writ was addressed, to determine if the latter court arrived at the correct decision under the pleadings and evidence before it.

It is evident that such a construction of the Civil Practice Act, as is contended for by the petitioners, would vest the circuit courts with the authority and function of appellate review on the writ of certiorari to the fullest extent. (People v. Fisher, 373 Ill. 228, 230.)

The first paragraph of section four of the Civil Practice Act [Ill. Rev. Stat. 1945, ch. 110, par. Í28; Jones Ill. Stats. Ann. 104.004] provides as follows: ‘ ‘ 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, and the rule that statutes in derogation of the common law must be strictly construed shall not apply to this Act or to the rules made pursuant thereto.” Part of sec. 50 [Ill. Rev. Stat. 1945, ch. 110, par. 174; Jones Ill. Stats. Ann. 104.050] is as follows: “(1) Judgment may be given for or against one or more of several defendants; and the Court may determine the ultimate rights of the parties on each side as between themselves, and grant the defendant any affirmative relief to which he may be entitled on his pleadings and proof.”

Section 1 of the Civil Practice Act [Ill. Rev. Stat. 1945, ch. 110, par. 125; Jones Ill. Stats. Ann. 104.001] provides: “The provisions of this Act shall apply to all civil proceedings, both at law and in equity, unless their application is otherwise herein expressly limited, in court of record, except in attachment; ejectment, or other actions in which the procedure is regulated by special statutes.” The courts have held that an action in which the procedure is regulated by special' statutes is expressly excluded from the terms of the Civil Practice Act. (City of Breese v. Abel, 359 Ill. 579; City of Freeport v. Kaiser, 311 Ill. App. 197; Superior Coal Co. v. O’Brien, 383 Ill. 394.)

“The expression ‘Civil proceedings both at law and in equity,’ is sufficiently comprehensive to include every claim or demand in a court of justice which was known at the adoption of our constitution as an action at law or a suit'in chancery. Furthermore, it includes all actions since provided for in which personal or property rights are involved of the same nature as those previously enforced by actions at law or in chancery. Conversely, it does not include special statutory proceedings involving rights and providing remedies which are not of the kind previously enforced either at law or in chancery. Even if the right sought to be asserted is one which did not exist at common law, but is of a statutory origin and similar in character to a common-law right, there is no requirement that the provisions for the enforcement of the right in its initial stages be in accordance with common-law methods if, when the right is later asserted in a court of record, the procedure for its enforcement assumes the aspect of a procedure according to the course of the common law. (People v. Gale, 339 Ill. 162; Christensen v. R. W. Bartelmann Co., 273 Ill. 346; Lavin v. Wells Bros. Co., 272 Ill. 609.) In such cases, Sections 1 and 77 of the Civil Practice Act apply and an appeal is available.” Superior Coal Co. v. O’Brien, 383 Ill. 394, 399.

There was no common-law right to have property annexed to a city. Section 1 of the Civil Practice Act also provides, “As to all matters not regulated by statute or rule of court, the practice at common law and in equity shall prevail.”

It is our opinion that the Civil Practice Act has not enlarged the power of circuit courts on a writ of certiorari to review facts, other than the jurisdictional facts appearing in the record to which the writ is addressed in a proceeding for the annexation of territory to a city. The order of the circuit court of Lake county is reversed, and the cause remanded with directions to quash the writ.

Reversed and remanded with directions.