author: Mr. Presiding Justice Friend

text:
    Adam H. Kulikowski, Appellee, v. North American Manufacturing Company and Thomas J. O'Brien, Sheriff. North American Manufacturing Company, Appellant.
    Gen. No. 42,759.

      Heard in the second division of this court for the first district at the October term, 1943.
    Opinion filed March 8, 1944.
    Jack E. Dwork, Harry G. Fins and David F. Silverzweig, all of Chicago, for appellant.
    Bussian & DeBolt, of Chicago, for appellee.
   Mr. Presiding Justice Friend

delivered the opinion of the court.

Adam H. Kulikowski filed a complaint in chancery in the circuit court against North American Manufacturing Company and Thomas J. O’Brien, sheriff of Cook county, to set aside a judgment at law obtained against him by the North American Company January 22,1942, in case No. 41-C-5487, for $15,732.41, and to enjoin the defendants from collecting the judgment, on the ground that the sheriff’s return was false and untrue, that the judgment was wrongfully obtained without any want of diligence on plaintiff’s part and that it would work injury and injustice to him if it were allowed to stand and be collected. The matter was referred to a master in chancery under a reference limited in time, and after a full hearing the master found that no service was had on plaintiff, that he had no knowledge of the pendency of the suit until after the judgment was entered, that he had a good and meritorious defense to the action of the North American Company, that no third-party rights had intervened, and he recommended that a decree be entered granting the principal relief prayed for in the complaint and that the costs of suit be assessed against the North American .Company. Hpon hearing of the exceptions to the master’s report, the court entered a final decree, adopting and approving the findings of fact and conclusions of law made by the master, except the recommendation with respect to the assessment of costs, and as to that the chancellor, with plaintiff’s consent, assessed the costs against him and they were paid by him. The chancellor was also of the opinion that since no relief was sought against Thomas J. O’Brien, sheriff, except to enjoin him from collecting the judgment, and he was no longer a necessary party to the proceeding, he should be dismissed, and accordingly an order of dismissal as to him was entered by the chancellor. Defendant has taken an appeal from the decree, contending principally that the master’s conclusion and the court’s finding that Kulikowski was not served with summons is contrary to law and the evidence; that the master’s report, not having been filed within the time specified in the order of reference as extended, is coram non judice, and that the chancellor’s dismissal of the sheriff as a party defendant was made for the purpose of exonerating the sheriff of any fault, and was improper.

Preliminary to a discussion of the principal ground urged for reversal, a summary of the complaint in case No. 41-C-5487 will be helpful to an understanding of the issues underlying that proceeding. It appears that the North American Company was engaged in the business of manufacturing and marketing fluorescent lamps and fixtures. Early in November 1940 it employed Kulikowski for .the purpose of carrying on an advertising campaign for the sale and distribution of its products, and upon Kulikowski’s request the company allowed him to examine all its books and secret records to determine what part of the business was profitable and also to afford a basis for advertising which would bring the most advantageous results. It was alleged that Kulikowski, through persuasion and promises, gained the confidence of the company and agreed that he would not make public the secret information which he acquired from its books and records, nor enter into the business of manufacturing fluorescent lamps and fixtures for a period of three years; that after the examination of its books and in violation of his agreement, Kulikowski betrayed the company by using the business secrets which he had obtained in confidence and entered the business of manufacturing and marketing fluorescent lamps and fixtures in close proximity to the company’s plant. As a result of Kulikowski’s alleged conduct the company filed suit at law on June 18, 1941, asking damages in the sum of $100,000 for breach of contract, faith and confidence. That suit was filed in the circuit court as No. 41-C-5487. On the same day the North American Company filed a suit in equity in the superior court as No. 41-S-9272 praying for an injunction against Kulikowski. The parties in both suits and the material facts alleged in the two complaints of the company are substantially the same, the only difference being that in the law action the company was seeking a judgment for damages, while in the equity proceeding it alleged that it had no remedy at law and was seeking an injunction.

The summonses in both suits were issued on the same day and were placed with the sheriff for service at the same time by attorneys who represented the company in both suits. Kulikowski’s address appeared upon the summons in each case as 620 N. Michigan avenue, and the .summonses were assigned to Deputy Sheriff Goldberg in whose territory that address is located. The master found that the deputy sheriff appeared at Kulikowski’s office, 620 N. Michigan avenue, upon three different occasions but did not identify himself or state his business to the receptionist in charge of the office. Upon the first two visits he was informed -that Kulikowski was not in and upon the third occasion was told that Kulikowski was in conference. The master further found that at the time these suits were instituted Kulikowski had an office at 620 N. Michigan avenue, Chicago, and from June 18 to July 12, 1941 he was at his office regularly during business hours; that about July 1, 1941 the regular deputy transferred the summonses in both cases to Samuel Orzoff, another deputy, as a matter of accommodation to Goldberg, although Kulikowski’s address was not in Orzoff’s territory; that from July 12 to July 27, 1941 Kulikowski and the members of his immediate family were outside of the State, and in their absence Miss B. Callender, a maid who had been in the employ of the family for many years, was in charge of the household; that Orzoff was ultimately furnished the home address of Kulikowski at 237 E. Delaware place, an apartment building, which was not located in the territory assigned to him, and on July 18, 1941 he appeared at Kulikowski’s home, where he talked to Miss Callender, informed her of his identity, and asked for Kulikowski.

The foregoing facts are undisputed. There is a sharp conflict, however, in the testimony with respect to the question of - service of summons. The North American Company contends that Orzoff handed Miss Callender two summonses, each folded in four sections, one in the circuit court and another in the superior court case; that he told her they were summonses in suits by the company against Kulikowski; that he asked her name and she said “B. Callender, Maid”; that he wrote the name as given him, with the notation “7-18-41,”' on each of the original summonses ; that theretofore when he was given the home address of Kulikowski “he made out a slip of paper . . . upon which he noted his name, the name of

the defendant, his address at 237 East Delaware Avenue and attached the same to the summons in the superior court case,” but did not make out a similar slip for the circuit court proceeding; that at the time of the service of the summonses upon Miss Callender he wrote upon this slip, “Miss B. Callender, Maid, 7-18-41”; that he then marked the original summonses in each of the cases in the same manner, and upon his return to the sheriff’s office he placed a copy of each of the summonses in one envelope, addressed the envelope to Mr. Adam H. Kulikowski at 237 E. Delaware place, put a three-cent stamp on the envelope, and mailed it personally by depositing same in the mail chute.

Kulikowski, on the other hand, contends that Orzoff asked Miss Callender to sign the slip which was attached to the superior court summons, that she signed “B. Callender,” that the deputy then handed her the summons in the superior court case but did not give her any summons in the circuit court case; that Miss Callender placed the summons in the superior court case upon Kulikowski’s dresser in his bedroom where she had placed all the mail which had been delivered for him during his absence from Chicago; that there also arrived by mail an envelope from the office of the sheriff of Cook county, which she put upon Kulikowski’s dresser without opening it; that upon Kulikowski’s return to the city on July 27, 1941 she directed his attention to the mail on his dresser, and particularly to the summons which had been served upon her; that he opened the envelope from the sheriff’s office and found therein a copy of the superior court summons; that no circuit court summons or copy thereof was on his dresser nor was any such summons contained in the envelope which had been received from the sheriff’s office; that on the following day he communicated with his lawyer and directed him to defend the superior court case; and that he had no knowledge of any action pending in the circuit court until May 26, 1942.

The master, in a most comprehensive report, set forth in detail the customary procedure in the sheriff’s office with regard to the service of summonses as follows: Each deputy sheriff serves between 30 and 40 different writs per day and as many as 200 or 300 per month. When a summons is placed for service at the sheriff’s office, a clerk stamps the sheriff’s number on the writ and then assigns the writ to the deputy in whose district the defendant is to be served. The summons is then entered on a ledger kept for that purpose, opposite the number which corresponds to the number on the writ. In this ledger are contained the sheriff’s number, the court from which the summons was issued, the title of the case and the court number, the name of the attorney of record, the term of court in which the summons is returnable, and the deputy to whom the summons has been assigned. After the service of the summons, there are also entered upon this book, the person upon whom service was had, the date of service, and the date when summons was returned to the clerk of this court. The entries pertaining to the service of the writ are taken from the return appearing upon the original writ. There is also a small book for each deputy in which are entered for each writ assigned to him, the sheriff’s number, the title of the case, the date of the writ and return day, the number of persons to be served, the.sheriff’s return, and the date of its final return to the clerk’s files. Generally the original summons is left in the office of the sheriff in order to avoid the danger of having same lost or mislaid. Some deputies take the original summons with them although it is the request of the sheriff that they be left in the office for safekeeping. Usually there is a slip prepared, which is of the same color as the summons, that is, white for a summons in a circuit court case and yellow for a summons in a superior court case. These slips- contain the name of the defendant and his address, as well as the name of the deputy sheriff. The deputy enters upon these slips the name of the person upon whom service was had and the slip is then pinned to the original summons and finds its way into the files of the court. These slips are used particularly in cases where there are a number of defendants to be served. There is no specific requirement that such slips be made or be attached to the summonses. Each deputy sheriff is required to fill out, at the conclusion of the day’s work, a daily report sheet, in which are set forth the sheriff’s number, the court, the type of writ, the name of the defendant, where and how served, the miles traveled, the fees earned, and the total number of persons served. These sheets are kept by one of the clerks of the sheriff’s office for a period of 30 days. Thereafter, they are placed in a cabinet kept for that purpose in the office of the sheriff of Cook county. Primarily, these sheets are used for the purpose of computing mileage in determining the fees to which the sheriff is entitled, but they serve also as a quick and ready reference for information with regard to the manner and time of service.* Persons desiring to check on the manner and time of service on any writ may examine these daily report sheets, generally with the assistance and under the supervision of an employee of the sheriff’s office.

The master found that in the instant case the usual procedure above set forth was followed with the following exceptions: A slip, yellow in color, was attached to the summons in the superior court case showing service upon B. Callender. The circuit court summons had no such slip attached to it. The daily report sheet for July 18, 1941, prepared by Deputy Orzoff, is missing and upon diligent search cannot be found, although his daily report sheets for every other day of the month of July 1941, are in their usual place. Deputy Orzoff testified that he had with him the original summonses in the two cases at the time of service upon B. Callender. However, the markings on the original summonses by him of the words “Miss. B. Callender, Maid, 7/18/41” appear to be written with a pencil other than the one marked on the slip in evidence herein. “I am of the opinion that the original summonses were left at the Sheriff’s Office and marked later. ’ ’

August 21, 1941 the North American Company, through its attorney, caused an order of default to be entered against Kulikowski in the circuit court case for failure to appear or file answer. No further action was taken against him in the circuit court case until January 22,1942, at which time the company appeared by counsel in an ex parte hearing, waived trial by jury, submitted the issues to the court, and upon the testimony of an accountant, damages were assessed against Kulikowski and judgment entered in the sum of $15,732.41. No execution was ordered until April 6, 1942, after the term had passed. Execution was served on Kulikowski June 11,1942, by Orzoff, to whom it had been transferred for service by the deputy in charge of that district in the same manner as the summonses were originally transferred.

The master found that H. Williams Hanmer, attorney for Kulikowski in the superior court case, appeared in that court a number of times upon certain motions relative to the injunction proceeding and frequently discussed the superior court case, both in and out of court, with Harry Gr. Fins, attorney of record for the North American Company in both actions; that Fins did not at any time disclose to Hanmer, prior to May 26, 1942, the fact that any action was pending in the circuit court against Kulikowski for money damages, nor did Fins disclose to the judge who was then hearing the superior court proceeding the fact that a suit against Kulikowski, arising out of the same subject matter, was pending in the circuit court or that a judgment had been rendered in that suit; nor was disclosure made to any of the judges of the circuit court of the pendency of the superior court suit, either at the time default was taken against Kulikowski or at the time judgment was finally rendered.

• The master further found that Kulikowski has a good and meritorious defense to the actions in both the ciruit and superior court cases; that in the superior court he prosecuted his defense vigorously, and at the time of the making of the master’s report there was pending in the superior court cause the North American Company’s motion1 to dismiss the action against Kulikowski without prejudice, it having been the contention of the company that an injunction against him was no longer necessary because the lack of government priorities made it impossible for him to obtain material necessary for the manufacture of fluorescent lamps and fixtures; and that although the motion to dismiss without prejudice was being contested by Kulikowski’s attorneys, it was later dismissed.

From the foregoing findings the master concluded that Miss Callender was on July 18, 1941 a servant in Kulikowski’s family and therefore “a person of the family” within the provisions of the Practice Act; that Kulikowski in no way attempted to evade the service of summons or execution; that Orzoff did not serve Miss Callender any summons in circuit court case No. 41-C-5487; that he did not inform her of any action against Kulikowski by the North American Company in the circuit court; that he did not mail to Kulikowski a copy of the summons in the circuit court proceeding, and that neither Kulikowski nor his attorney had any knowledge of the pendency of that suit until May 26, 1942; and he recommended that a decree be entered in accordance with his findings and the relief prayed for in the complaint. The undisputed evidence adduced in support of the complaint was substantially as found by the master.

The only disputed questions of fact are whether Orzoff left with Miss Callender a copy of the summons in the circuit court case, whether he informed her of the contents of the summons in that proceeding and whether he mailed to Kulikowski a copy of the summons in an envelope with postage prepaid, to his home address in Chicago. Upon those issues Miss Callender testified that on July 18, 1941 a man appeared at the residence and asked if Mr. Kulikowski was in; that she answered, “No, Mr. Kulikowski is in California”; that he gave her a folded paper and also a smaller bit of paper which he requested her to sign; that she signed “B. Callender,” and she identified Orzoff as the man and said the superior court summons was the paper he gave her; that she remembered it was a yellow paper and she placed it on Kulikowski’s dresser; that Orzoff did not leave any other paper with her and did not leave a copy of the summons in the circuit court case; that when Kulikowski returned home July 27, 1941 she had a conversation with him and he then went to his bedroom to get his mail.

Orzoff testified that he had been a deputy sheriff about 8 years and served from 200 to 300 summonses a month; that the circuit and superior court summonses were given him by Deputy Herman Goldberg after July 1, 1941; that when he first called at Kulikowski’s home on July 18, 1941 a woman came to the door and he inquired whether Kulikowski was in and was advised that he was at the office; that Orzoff then showed his button or badge and said he had a summons for Kulikowski; that he took out the circuit and superior court summonses, put down the date of his call, July 18, 1941, asked the woman her name, to which she replied “B. Callender, Maid,” that he wrote that down and then left. He did not testify that he left a summons with her or that he explained the contents of any summons to her. Orzoff further stated that he then went back to the sheriff’s office, put a copy of the circuit and superior court summonses (he did not say where), and noted the date, July 18, 1941; that he addressed an envelope to Kulikowski, 237 E. Delaware place, but does not say in what city or state, put a three-cent stamp on the envelope and mailed it. "When the master asked Orzoff to relate what had occurred on the day of the purported service of the summonses, he testified that when Miss Callender came to the door and he was informed that Knlikowski was not at home, he took out his badge and said he was with the sheriff’s office and had a subpoena for Mr. Knlikowski; that “I gave her the circuit court summons and the superior court summons. I said, ‘May I have your name, please? ’ She says‘B. Callender.’” The master then asked if that was all the conversation and Orzoff answered: “I asked her who she was and she said she was the maid and when I heard that I flashed my button and said, ‘I have a subpoena for Mr. Knlikowski,’ and I gave her the summons of the Circuit Court.” The master next inquired whether that was all the conversation and Orzoff answered: “Yes sir, and I was on my way.” The master then directly asked Orzoff whether he read the contents of the summons to her and Orzoff replied, “I believe I did.” The master then asked Orzoff what he said to her and he answered: “When I said: ‘I have a summons for Mr. Kulikowski,’ I read off the name of the suit here. I says, ‘North American — -whatever it is there, is suing Mr. Kulikowski’ Orzoff further stated that he repeated this once for the superior court and once for the circuit court case. Orzoff did not testify that he read the contents of the summons to her or that he explained either summons or any part thereof, but merely stated “I believe I did.” There is nothing in his testimony to indicate that he explained the contents of the writ to Miss Callender. Orzoff’s testimony is extremely vague as to whether he gave Miss Callender a copy of the circuit court summons. He definitely did not explain to her the contents thereof. On a comparison of Orzoff’s memorandum on the back of the circuit and superior court summonses with the service slip pinned to the superior court summons, it appears that the slip was written with a different pencil from that used in writing on the back of the summonses, and although Orzoff wrote Miss Callender’s name on both the slip and the memorandum on the summonses in his own handwriting at the same time, on final examination near the end of the hearing he said he must have changed pencils.

It is significant, of course, that Kulikowski vigorously defended the superior court case which sought only an injunction, and did not defend the law action based upon the same allegations wherein, a judgment was asked for $100,000. If he or his counsel had known of the pendency of the circuit court case it is inconceivable that they would have allowed ,a default and judgment for over $15,000 to be entered against Kulikowski. Where two summonses for the same party, dated the same day, were to be served at the same time, it is quite possible that the clerk could, in error, stamp both summonses, even though only one was served. That may well have happened in this instance. The possibility of such an error is emphasized by the fact that each deputy serves from 200 to 300 writs a month. Furthermore, it is a practice in the sheriff’s office for each deputy to make out a daily report sheet showing all the writs served- each day, and upon whom service was made. The evidence shows that all of Orzoff’s daily report sheets for the month of July 1941 were found except the sheet for July 18, 1941. That sheet was missing and could not be found, although a number of persons having charge of the records in the sheriff’s office endeavored to locate it. Those sheets are the only source of information from which a summons and the return thereon could be restored in case the original summons and the return thereof were lost. Furthermore, under the Practice Act both of these suits, predicated upon the same allegations of fact, could have been joined in one action. Nevertheless, two suits were started, differing only in the nature of the relief sought.

The master found and Mr. Fins admitted that he met Hanmer on a number of occasions, both in and out of court, in connection with the superior court suit, and although Fins represented the North American Company in both proceedings he- never informed Hanmer of the pendency of the circuit court action prior to May 26, 1942; nor did he apprise the circuit court at any time that another case was pending in the superior court based upon the same allegations, which was being defended by'Kulikowski. There is the added circumstance that Fins did not prove up judgment until several months after default was taken and did not cause execution to issue until some months after judgment was entered. Fins takes the position that he was not obliged to divulge the information to Hanmer because, as he contends, Kulikowski is presumed to have known of the proceeding by reason of the purported service of summons. These observations are not made in criticism of Fins but to fortify the obvious probability that neither Kulikowski nor his attorney knew of the circuit court suit and neither would have allowed judgment in excess of $15,000 to be taken by default if they had been aware thereof.

As a general rule, any fact which renders it to be against good conscience to execute a judgment, and of which the injured party could not have availed himself in a court of law or of which he might have availed himself at law but was prevented by fraud or accident unmixed with any fault or negligence in himself, would justify a court of equity to grant relief; and if a sheriff or other officér by fraud, accident or mistake makes a false return and by reason thereof a judgment by default is entered without notice to the defendant, a court of equity will set such judgment aside and give the defendant his day in court. The North American Company apparently concedes that where a sheriff or other officer has made a false return wrongfully or intentionally, or innocently by mistake, relief may be granted by a court of equity to the person injured, but it says, and cites cases which hold, that the stability of judicial proceedings requires that the return of the officer made in due course of his official duty and under the sanction of his official oath, should not be set aside upon the uncorroborated testimony of the person on whom the process has been served, but only upon clear and satisfactory evidence. That is undoubtedly the general rule to be observed, but there are occasions where circumstances, disclosed through an exhaustive hearing, indicate that a sheriff or other officer has made a false return, whether wrongfully or intentionally or innocently by mistake, and in such cases the court should not hesitate to grant relief to the person injured. The master pointed out with particularity the various reasons supporting his conclusions that Kulikowski had not been served in the circuit court proceeding, and upon a careful examination of the record we think his findings are amply supported by the evidence. It is conceivable, of course, that where two summonses in two different courts are to be served at the same 0time in suits predicated upon the same subject matter, the deputy sheriff may well have been mistaken in believing that he served both summonses, wjiereas in fact only one was served, and we think that is precisely what happened in this instance. The reasons for that conclusion have already been indicated. - Since Miss Callender and Orzoff were the only ones present when the summons in the circuit court case is alleged to have been served upon her, it would from the nature of things be impossible for any other person to throw light upon the subject, but we think her testimony is corroborated and supported by satisfactory evidence and by circumstances which make it seem highly improbable that summons in the circuit court proceeding was served upon Kulikowski.

The reviewing courts in this state recognize that when there are two suits between the same parties, summonses in which are to be served at the same time, there is the possibility that the officer making the service of summons may make a mistake, and while serving-only one summons make a return of service of both. The two leading- cases in Illinois are Owens v. Ranstead, 22 Ill. 161, and Kilt v. Keimberger, 235 Ill. 235. In both cases the court had under consideration equity proceeding's in which the facts and principles involved were similar- to the case at bar. An examination of these cases discloses a differentiation between the rule enunciated in Marnik v. Cusack, 317 Ill. 362, wherein the court held that the stability of judicial proceedings requires that the return of an officer should not be set aside merely upon the uncorroborated testimony of the person on whom the process had been served, but only upon clear and satisfactory evidence, and a situation such as we find in this proceeding. In Kilt v. Keimberger, supra, the court reaffirmed the established rule that the return of an officer cannot ordinarily be contradicted, that the rule was founded on public policy for the protection of innocent persons in legal proceedings, but pointed out that there are cases where an exception should be made. “The sheriff’s return of service does not import absolute verity, but is only prima facie evidence of the truth of the matters therein stated.” (Citing cases.) “Where the rights of third persons have been acquired in good faith, the return of an officer showing- the service of summons cannot be contradicted, but as against parties acquiring rights with notice of the facts the return is not conclusive. . . . In a proper case, a false return may be set aside in equity. ... A mistake of fact resulting in the recovery of a judgment may be ground for the interposition of equity in enjoining or setting aside such judgment.” The court then discussed a number of Illinois cases, including Owens v. Ranstead, supra, which was approved; and under similar circumstances, held that the actions of appellees and their counsel were “in entire harmony with what they claim they understood as to the assumpsit suits and inconsistent with any other theory,” and concluded that on the record they had a meritorious defense to the actions in assumpsit which they had no opportunity to defend, and that such opportunity should be given where a judgment has been obtained by mistake. From a careful examination of the record we are convinced that the master’s conclusions of fact, confirmed and adopted by the court, are supported by the evidence, and that •Kulikowski should be entitled to interpose his defense against the action of the Forth American Company.

It is urged that because the master did not file his report within the time fixed by the order of reference, as extended, the court should not have accepted it. The reference was made June 12, 1942, and the order required the master to take testimony and report the same to the court with his conclusions of law and fact within 15 days thereafter. July 1, 1942 a subsequent order, nunc pro tunc as of June 25, 1942, extended the time for filing the report fifteen days or until July 16, 1942. The hearing before the master was completed July 3 and the cause was argued on July 8. Counsel argue that although the master thus had 8 days in which to reach his decision and file his report, he did not serve counsel with a copy of his report until September 3. The parties were thereafter allowed until September 14 to file objections. Objections were filed by counsel for the Forth American Company and the sheriit, but neither of them appeared to argue their objections, and thereafter on October 15 the master overruled the objections interposed and filed his report October 28, 1942. Between July 16 and October 28 no demand was made upon the master to render his report and no application was made to the court to compel the master to file it. It was apparently not until the Forth American Company learned that the master had found the issues adversely, to it that any objection was made to the delay. In support of its contention that the report is coram non judice, counsel for the North American Company say that they know of no Illinois case where the subject has been considered and cite several cases from other jurisdictions. However, Kulikowski’s counsel call our attention to Harding v. Harding, 180 Ill. 481, in which similar contentions were made. The master’s delay in the Harding case was over three years. Nevertheless the court quoted with approval the holding of the Appellate Court in that case and held that “ ‘It was a matter within the discretion of the court to receive and consider the master’s report, although he had not conformed to the time fixed by the order. We see no error in this regard. ’ ” In exercising his discretion to accept the master’s report the chancellor in the case at bar evidently took into consideration that the time fixed by the order of reference and the extension of time were too short to enable the master to render his report on the record of almost 800 pages and 34 exhibits within the time allowed. Moreover, we take judicial notice of the fact that July 16 was substantially the end of the regular court year and that during vacation the circuit court judges, under their rules, hear only emergency matters, which do not include arguments on exceptions to masters’ reports. Thereafter the court convened in September and the report was ultimately filed within a month. It is apparent from the record that no effort was made by North American Company’s counsel to secure a filing within the‘time fixed hy the order and that the instant objection was not raised until after it became apparent that the master’s findings upon the principal issue were adverse to the North American Company. In Harding v. Harding, supra, the court under similar circumstances adopted the following observation from the opinion of the Appellate Court in that case: “ ‘If we are right in holding that the order of reference did not give sufficient time, and that appellant, by his conduct, waived the extension thereof by the master, then there was no error in refusing to order the master to report the evidence to the court without conclusions. And especially is this true when we consider that appellant made no complaint to the chancellor until after it was apparent to him that the report of the master would not be satisfactory to appellant.” If counsel were to prevail in their objections, it would require a rereference and rehearing of the entire matter, which would result in the production of the same evidence, and probably the same conclusions.

Lastly it is urged that the dismissal of the sheriff as a party defendant was improper. The sheriff was made a party to the proceeding so that it would be possible to enjoin him from enforcing the judgment by levying the outstanding execution. No other relief was prayed against him. While the case was pending the execution expired and it then became apparent that the judgment would be set aside, thus making the sheriff no longer a necessary party. Wh.en the court dismissed the sheriff from the proceeding he was present by counsel and does not complain of his dismissal. Accordingly, we think the court properly entered the order of dismissal.

From the foregoing considerations we have reached the conclusion that the decree of the circuit court should be affirmed, and it is so ordered.

Decree affirmed.

Scanlan and Sullivan, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    Oakdale Building Corporation et al., Appellants, v. Smithereen Company, Appellee.
    Gen. No. 42,810.

      Heard in the second division of this court for the first district at the October term, 1943.
    Opinion filed March 8, 1944.
    Bernard W. Vinissky and Julius S. Neale, both of Chicago, for appellants.
    W. Harold Rutherford, of Chicago, for appellee; Richard E. Keogh, of Chicago, of counsel.
   Mr. Presiding Justice Friend

delivered the opinion • of the court.

Oakdale Building Corporation and the two individual plaintiffs brought suit for damages to real and personal property caused by a fire alleged to have been occasioned through the negligence of'defendant. The jury returned verdicts in favor of the defendant against all the plaintiffs. Motions for judgment notwithstanding the verdicts and for a new trial were overruled by the court and judgment was entered for defendant, from which plaintiffs appeal.

There is substantially no dispute as to the salient facts. The Oakdale Building Corporation owned the premises known as 1115-1127 Oakdale avenue, Chicago, Illinois, in which Frances M. Gillum and Lillian Price occupied apartments as tenants. An exterminator employed by defendant came to the premises about 8:45 a. m. on August 16, 1941. Mrs. Gillum and her son were visiting in Minneapolis and her husband, William Gillum, was home alone. He arose about 6:30 in the morning, prepared his breakfast, washed the dishes and left the apartment about 7:40 a. m. to play golf. On his way out he met the janitor, Julius Vermeire, on the back porch, and left the key to the apartment with him. The windows in the Gillum apartment were all shut except one in the living room, which was raised about a quarter of an inch. When the representative of the exterminating company arrived about 8:45 a. m. he obtained the key to the apartment from the janitor, entered and remained there about half an hour, returning the key to Vermeire at approximately 9:15 a. m. When he left the apartment the doors and windows were all closed. About 9:30 a. m. someone called the janitor to tell him there was a fire in the building. He went up the back stairs, unlocked the door of the Gillum apartment and entered it, at the same time that the firemen were chopping down the front door. No one was in the apartment at that time. The alarm was received by the fire department about 9:30 a. m. at a fire station a mile and three-quarters away. The firemen arrived at the apartment two or three minutes thereafter and found the fire burning “pretty good.” They broke the doors, windows and side walls and opened up approximately six feet of the roof. All told, they worked on the fire about an hour and forty minutes. After the fire had been extinguished, John M. Scanlan, the battalion chief, who had served in the fire department for 38 years, checked the wiring and found it all right. He was of opinion that the fire had been burning about ten or fifteen minutes when the firemen arrived. Mr. Gillum testified that he did not smoke after breakfast that morning; that he smokes a pipe and had not smoked a cigarette in six years, and does not smoke cigars. He stated that about 1:00 or 2:00 o ’clock that afternoon a young man from the Smithereen Company came to the apartment and told Gillum he had performed the extermination in his apartment. When asked how the fire could have happened, he replied, “I couldn’t tell you, it might have been caused from a pilot light. It could have happened if everything was sealed up.” Witnesses testified to the amount of the fire loss. No evidence was offered by defendant and the case went to the jury solely on the testimony adduced by plaintiffs.

On this state of the record the principal question presented is whether the doctrine of res ipsa loquitur is applicable. The complaint does not charge specific negligence and is framed upon the doctrine of res ipsa loquitur. The courts of this State have frequently had occasion to discuss and consider the doctrine. Its scope is briefly stated in Bollenbach v. Bloomenthal, 341 Ill. 539, as follows: “The doctrine of res ipsa loquitur is, that whenever a thing which produced an injury is shown to have been under the control and management of the defendant and the occurrence is such as in the ordinary course of events does not happen if due care has been exercised, the fact of injury itself will be deemed to afford prima facie evidence to support a recovery in the absence of any explanation by the defendant tending to show that the injury was not due to his want of care.” The rule is similarly stated in 38 Am. Jur., sec. 295 at p. 989, and is supported in O’Rourke v. Marshall Field & Co., 307 Ill. 197 and Feldman v. Chicago Rys. Co., 289 Ill. 25, which held that if there is nothing to explain or rebut the inference that arises from the way the occurrence took place, it may fairly be presumed to have been caused by the negligence of the defendant. In Sweeney v. Erving, 228 U. S. 233, the court defined the scope of the doctrine as follows: “In our opinion, res ipsa loquitur means that the facts of the occurrence warrant the inference of negligence, not that they compel such an inference; that they furnish circumstantial evidence of negligence where direct evidence of it may be lacking, but it is evidence to be weighed, not necessarily to be accepted as sufficient; that they call for explanation or rebuttal, not necessarily that they require it; that they make a case to be decided by the jury, not that they forestall the verdict. Res ipsa loquitur, where it applies, does not convert the defendant’s general issue into an affirmative defense. When all the evidence is in, the question for the jury is, whether the preponderance is with the plaintiff.” In Bahr v. Lombard, 53 N. J. L. 233, 21 Atl. 190, thp reason for the adoption of the rule is stated as follows: “The principle is quite institutional, that whenever a right of action springs from the conduct of a defendant, the plaintiff must present proof of the facts necessary to the recovery which he seeks. It is, furthermore, the general rule of law, that the mere proof of the occurrence of an accident raises no presumption of negligence. These doctrines, which, if strictly applied, would lead to a non-suit in every case in which the plaintiff’s proof failed to demonstrate the specific act of negligence which he deemed the proximate cause of his injuries, have in practice an application which, while not losing sight of their normal character, leads to an intelligent adaptation in keeping with the requirements of the modern law of negligence. . . . Under these changed conditions, to compel plaintiffs in every case to ascribe some specific act as negligence, would be to make a recovery for injuries dependent upon the possession of a special technical knowledge, and to grant immunity to the users of dangerous agencies in proportion to the success with which the special element of danger was concealed from the public. From these considerations, it follows that the quantum of proof which a plaintiff must give in order to draw from the defendant explanatory evidence, must, with certain limits, be dependent upon the circumstances of each case — a rule which finds current expression in the phrase 1 res ipsa loquitur.’ ”

We think the authorities warrant the conclusion that the doctrine of res ipsa loquitur applies to the circumstances of this proceeding. The Gillum apartment was in good condition when possession was given to defendant for the purpose of exterminating. For approximately one-half hour defendant’s representative was in exclusive control of' the apartment. The fire started shortly after he left. Defendant may have had some knowledge as to how the fire originated; if not, it was certainly incumbent upon it to offer evidence as to the nature of the work done in the Gillum apartment, the materials used, and what-its representative did during the half hour that he had control of the apartment, to rebut or overcome, if it could, the circumstantial presumption of negligence. To allow defendant to escape liability by concealing such knowledge after plaintiffs had adduced all the evidence that they possibly could under the circumstances, would be a perversion of the rule upon which the doctrine is founded.

In support of the theory upon which plaintiffs tried their case and after defendant had failed to offer any evidence, plaintiffs tendered the following instruction which was refused: “You are instructed that if you believe from the evidence and under the instructions of the court that the plaintiffs were in the exercise of due care and caution for the safety and preservation of their property and premises, at and immediately before the fire in question, and if you find that the defendant, through its agent or servant, was in the exclusive possession and control of said premises at or just prior to the time of the commencement of the fire and if you further find that all other persons were absent from the apartment of the plaintiff, Frances M. Gillum, in question, and if you find that the occurrence of the fire was such an event as does not ordinarily occur if due care was used by the defendant in rendering exterminating service, then and in such case the law is that there arises a presumption of negligence on the part of the defendant.” We think the instruction should have been given because it correctly states the rule that a presumption of negligence arises under the circumstances set forth in the instruction.

It is also urged that the court erred in giving defendant’s instructions 2 and 5, governing the quantum and burden of proof. An instruction similar to No. 2 was criticized in Cohen v. City of Chicago, 197 Ill. App. 377, wherein the court said: “Because the defendant put in no evidence, the jury were only to consider the case as made by the evidence of the plaintiff. There was no occasion for the court to instruct the .jury regarding the preponderance of the evidence. . . . The jury were instructed that their verdict must rest uppn a preponderance of the evidence and that if they found the defendant city guilty of the negligence charged against it in the declaration, their finding must be based upon a preponderance of the evidence. But as all the evidence before them was that of the plaintiff, the use of the word 'preponderance’ in this condition of the record was unnecessary.”

Instruction No. 5 charged the jury that the burden was on plaintiffs to prove the specific negligence alleged in the complaint. Since no specific negligence was charged and plaintiffs predicated their case on the theory that the rule of res ipsa loquitur applied, that instruction was misleading and may well have produced the verdict and judgment of which plaintiffs complain.

During the pendency of the cause plaintiffs moved to strike the additional abstract filed by defendant. The additional abstract is devoted entirely to counsel’s closing arguments to the jury and deals with matters which are not contained in the record. It is not necessary for a decision of the issues, and the motion which was reserved to hearing is therefore allowed.

Holding as we do that the rule of res ipsa loquitur applies, it would seem to follow that the case should have been tried upon that theory and the jury instructed accordingly. The judgment of the circuit court is therefore reversed and the cause is remanded for a new trial.

Judgment reversed and cause remanded for a new trial.

Scanlah and Sullivah, JJ., concur.


author: Mr. Justice Scanlan

text:
    Fidelity Coal Company, Appellant, v. Alfred Diamond and Mutual Life Insurance Company of New York, Appellees.
    Gen. No. 42,203.

      Heard in the second division of this court for the first district at the April term, 1942.
    Opinion filed March 8, 1944.
    Harold L. Eisenstein, of Chicago, for appellant; Abner Goldenson and Carl B. Aplon, both of Chicago, of counsel.
    Jacob Diamond and Harry C. Diamond, both of Chicago, for appellee; Meyer Shapiro, of Chicago, of counsel.
   Mr. Justice Scanlan

delivered the opinion of the court.

On October 11, 1937, plaintiff recovered" a judgment in the municipal' court of Chicago against defendant Alfred Diamond in the sum of $149.37. Execution was returned, “no property found and no part satisfied.” On July 24, 1939, plaintiff filed its amended complaint in chancery seeking to satisfy the judgment, that was still unpaid, by reaching the cash surrender value of a certain life insurance policy issued March 21, 1934, upon the life of defendant Alfred Diamond by defendant Mutual Life Insurance Company of New York. The policy contains a provision to pay death benefits in the amount of $1,000 to insured’s father on the death of the insured, conditioned upon the continued payment of premiums. The policy also contains a provision that the insurance company agreed, conditioned upon continued payment of premiums and the continued life of the insured, to pay an endowment when the insured reaches the age of 60 years. "While the policy is called an “endowment” policy, the endowment provision has no bearing upon the instant case, as the insured has not reached the age of 60 years. The policy also contains a provision that the insured may terminate the contract by the exercise of one of two options, (1) to surrender the policy for its cash surrender value, (2) to elect to have paid up insurance by which the reserve may be used to purchase a policy in a reduced amount, no further payment of premiums being required. There have been no defaults in the payment of premiums and the insured has not exercised either of the said options. He held the policy. The answer of the insurance company sets up certain material provisions of the policy and states that “the cash surrender value of said policy on June 21, 1941 will be $248.36, including the cash surrender value of dividend additions, subject to the deduction of a loan of $35.52.” The answer further states:

“(7) That since the issuance of said policy of insurance the said policy of insurance has not been tendered or delivered to The Mutual Life Insurance Company of New York, a corporation, for the purpose of obtaining the full cash surrender value thereof or for any other purpose except as hereinabove set forth, and that The Mutual Life Insurance Company of New York does not have possession of said policy of insurance.
“(8) That neither Alfred Diamond, the insured, or Isadore B. Diamond, the beneficiary of said policy of insurance, have offered to surrender the said policy for its said cash surrender value or for any other purpose except as hereinabove set forth.”

The answer of defendant Diamond so far as it is material to this appeal states that he has no application for a loan upon the policy pending nor has he at any time delivered the policy for the purpose of demanding its cash surrender value. “The answer further alleges that the cash surrender value of the life insurance policy in question cannot be reached by creditor’s bill unless the insured has voluntarily applied to the insurance company for its surrender value, and states that the defendant at no time has claimed such surrender value and that a court of equity is without power to compel the defendant to claim the cash surrender value.” The beneficiary of the policy, defendant’s father, was not made a party defendant to the proceedings. After a hearing the chancellor found, inter alia:

“2. That the cash surrender value of the life insurance policy upon the life of Alfred Diamond is not such personal property or thing in action belonging to the defendant, or property, money or thing in action due to or held in trust for the defendant which the plaintiff, Fidelity Coal Company can reach by a creditor’s complaint in chancery.
“3. That it can not in equity and good conscience grant the relief prayed for in the plaintiff’s amended complaint.
“4. That it should not compel the defendant, Alfred Diamond, to assign his policy to the plaintiff, nor should it compel the defendant, Alfred Diamond, to deliver said policy to and to make a loan agreement with the defendant, The Mutual Life Insurance Company of New York, for a loan or to surrender said life insurance policy to the defendant, The Mutual Life Insurance Company of New York, accept the proceeds of the loan or the net cash value thereof, and pay said proceeds or so much thereof as may be necessary unto the plaintiff to apply upon or satisfy its judgment.
“5. That because there is not pending an application for a loan upon said insurance policy, and because the defendant, Alfred Diamond, has not delivered said policy to and made a loan agreement with the defendant, The Mutual Life Insurance Company of New York, for a loan or for the net cash surrender value of said policy, the Court can not compel the defendant, The Mutual Life Insurance Company of New York, to pay unto the plaintiff, Fidelity Coal Company, the loan or the net cash value of said policy to apply upon or satisfy its judgment. ’ ’

The decree dismissed the amended complaint for want of equity. Plaintiff appeals.

The Mutual Life Insurance Company of New York, defendant, has not seen fit to file a brief in this court.

Plaintiff contends: “The interest of the debtor in an endowment life insurance policy, issued on the life of the defendant, Alfred Diamond, is personal property or a thing in action belonging to the defendant, Alfred Diamond, or property or money or a thing in action due to or held in trust for the defendant”; and “The interest of the debtor in the endowment life insurance policy issued on the life of the debtor and over' which the debtor exercises control should be reached by a creditor’s complaint in chancery and applied in satisfaction of the debtor’s indebtedness. (A) Life insurance is a valuable asset. (B) The cash surrender value of an insurance policy can be reached by a creditor’s complaint.” Narrowed down, plaintiff’s sole contention is that its complaint is in the nature of a creditor’s bill, and it can reach the cash surrender value of the insurance policy, and defendant Diamond can be directed to surrender the policy for cancellation and have the cash surrender value paid by defendant Mutual Life Insurance Company of New York to plaintiff to apply on its judgment.

Defendant contends:

“(2) No application for a loan on the policy in question was pending nor has the defendant at any time delivered the policy for the purpose of demanding its cash surrender value, and under such circumstances the loan or cash surrender value cannot be reached by a creditor’s bill. °
“(3) The voluntary application for a loan or surrender of the policy is a condition precedent to the creation of any. debt due to, or property interest in, defendant, and a court of equity will not compel an insured to take such steps.
“ (4) The cash surrender or loan value of the life insurance policy in question cannot be reached by either garnishment or a creditor’s bill under the facts existing in the case at bar.
“ (5) The same rule that a creditor has no right to reach the cash surrender or loan value under the circumstances of the case at bar, applies in Illinois in a proceeding by creditor’s bill as in a garnishment proceeding, because (1) the same prerequisites as to the property or money belonging to or due to the debtor exist in both cases, (2) both proceedings are similar in form and purpose, and (3) the garnishment court has full equitable powers.”

In 1937, the legislature passed the following statute (ch. 73, par. 850, sec. 238, Ill. Rev. Stat. 1937 [Jones Ill. Stats. Ann. 66.913]):

“All proceeds payable because of the death of the insured and the aggregate net cash value of any or all life and endowment policies and annuity contracts payable to a wife or husband of the insured, or to a child, parent or other person dependent upon the insured, whether the power to change the beneficiary is reserved to the insured or not, and whether the insured or his estate is a contingent beneficiary or not, shall be exempt from execution, attachment, garnishment or other process, for the debts or liabilities of the insured incurred subsequent to the effective date of this Code, except as to premiums paid in fraud of creditors within the period limited by law for the recovery thereof.” (Italics ours.)

While that statute does not apply to the instant proceeding it expresses the present public policy of this State upon the question before us, and if the decision of that question was close or doubtful that statute might have some weight in the determination of the question. However, disregarding that statute, we have reached the conclusion, after a careful review of the authorities submitted by both parties, that plaintiff’s contention cannot be sustained. A leading case on the question now before us is Farmers & Merchants Bank v. National Life Ins. Co., 161 Ga. 793. There the judgment creditor filed a suit in equity in which it sought to have the court declare the insurer company was the holder of the cash surrender value of a life insurance policy as an equitable asset belonging to the judgment debtor that ought to be applied by the court to the payment of the bank’s execution. The insurance company admitted the facts as to the cash surrender and cash loan values of Brantley’s policy but asserted that until Brantley surrendered his policy and demanded its cash surrender value or demanded a loan under the provisions of the policy, it owed him nothing and had no assets of his in its hands that could be reached by Brantley’s creditors. Both Brantley and the insurance company demurred generally to the petition on the ground that there was no equity in it and that no cause of action was stated. The demurrer was sustained and the plaintiff excepted. The Supreme court of Georgia, in affirming the action of the trial court, states (pp. 795, 797, 798):

“. . . A court of equity certainly can not compel a policyholder to make application for and secure a loan from the company, even though under the conditions stated in the policy the-loan would automatically follow the making of the application therefor. And while there might apparently be more ground for holding that the cash-surrender value of the policy could be reached by garnishment proceedings, because of its closer analogy to a debt due the insured, we do not think that the analogy can be trusted to such an extent as would justify a court of equity in adjudging that it is collectible in proceedings like the present, or in any other proceédings at law or equity, until the policyholder himself has voluntarily taken steps to make effective the provisions in the policy relating to a cash-surrender value thereof. .... But we rest our decision in the case upon the ground — and it seems to us perfectly sound — that neither the cash-surrender value nor the cash-loan value of a policy of life insurance like that in question here can be treated as a debt due the insured by the company, until steps have been taken by the insured to effect the loan or to withdraw in cash the accumulated surplus apportioned to the policy by the company. The making of the application for the loan and the surrender of the policy to withdraw in cash the accumulated surplus apportion-able to the policy are acts dependent upon the volition of the assured, and a court of equity can not compel 'him to take those steps, nor can it render a decree which renders the taking of those steps upon the part of the insured unnecessary. That the insured shall do certain things in order to withdraw the cash-surrender value of the policy, or to secure a loan, is a part of the contract; and whether he will perform these essential acts is a matter which he can decide and has a right to decide without the interference of a court of equity. There was no debt due from the insurance company to the insured, under the facts recited, that could be reached at law by the process of garnishment; nor can equity, which as a general rule follows the law, bring to bear upon the principal debtor in this case, that is, the insured, any force to compel him to perform acts which he does not desire to perform in order to convert a contingency into an actual debt upon the part of the insurance company. The right of the plaintiff can not be considered as analogous to the right of a specific performance; for specific performance depends upon contract. And where one has contracted to do a specific thing, as for instance, to execute a deed, a court of equity, while it will not compel the actual signing of' the deed, will render a decree which will have the same effect as a deed duly executed by the promisor. . . . It follows from what we have said that the court was right in sustaining the general demurrer to the petition.” (Italics ours.)

Plaintiff concedes that the Georgia case supports defendant’s contention.

In 14 Am. Jur. 718, sec. 91, the author states: “A court of equity is not authorized to subject the cash surrender value of a policy to the debts of the insured where the contract was not taken out as a means of defrauding creditors and the rights of the beneficiary will be destroyed thereby. The rule is the same notwithstanding the power to change beneficiaries is reserved. In the absence of an intent to defraud creditors in taking out life insurance, the weight of authority appears to be that unless or until the insured has exercised an option to take the cash surrender value of his policy or the contract has matured by the termination of the endowment period, the value of the policy may not be subjected to the claims of his creditors. Even where a policy is payable to the insured’s executors, administrators, and assigns, it is held by some authority that the cash surrender value does not represent a debt due the insured by the insurer which may be reached by a creditor’s bill until the insured has taken the steps requisite to a withdrawal in cash of such value. There is, however, a distinction in these respects between the cash surrender value which the insured receives as an incident of the surrender or cancellation of the policy and the amount which, in case of policies with endowment features, becomes payable to the insured during his lifetime. The latter represents the proceeds of an investment rather than insurance, and the interest of the insured under a policy containing this investment feature is property subject to a creditor’s bill.”

In the instant case, the judgment was entered three and one-half years after the policy in question was issued, and there is no allegation in the complaint that the policy was taken out, or premiums paid thereon, to defraud creditors.

In 44 A. L. R, in the annotations to the. case of Farmers & Merchants Bank v. National Life Ins. Co., supra, the annotator states (pp. 1188, 1189):

“A distinction bearing on the subject matter under annotation is to be observed between the cash surrender value which the insured may be .entitled to receive in the event of and as an incident of the surrender or cancelation of the policy — whether it is exclusively a policy of life insurance or also includes endowment or tontine features — prior to its maturity, and the amount which, in case of policies with endowment or tontine features, becomes payable to the insured during his lifetime as a result of the direct primary obligation of the insurance company, even though that primary obligation may be conditioned upon the exercise of certain options by the insured. . . .
“When the distinction above referred to is attended to, the weight of authority appears to be to the effect that, in the absence of the exercise by insured of his option to take the cash-surrender value of a policy which has not matured, his right in that regard is not subject to the claims of his creditors.”

No Illinois case on all fours with the instant one has been called to our attention by either of the parties, but defendant cites Illinois cases involving garnishment proceedings in which the principles stated in the Georgia case have been followed.

In Bethards v. Metropolitan Life Ins. Co., 287 Ill. App. 7, it was held that garnishment will not lie to reach the cash surrender value of.an insurance policy where the insured had not complied with the terms of the policy by surrendering the policy to the insurance company.

In Drysch v. Prudential Ins. Co., 287 Ill. App. 68, plaintiff, in a garnishment proceeding, sought to reach the cash surrender value and loan value of an endowment policy issued on the life of the judgment debtor. The First Division of this court, in an opinion by Mr. Justice McSttrely, states (pp. 69, 70, 71):

“. . . It was stipulated that the insured had not exercised any of her options given by the terms of the policy and has not made application for the cash surrender value nor the loan value of the policy, and that if she had been called upon to do-any of these acts she would have refused to do so.
“It is the general rule that a judgment creditor may by garnishment recover only such indebtedness as his debtor might recover in an action against the garnishee. Pogline v. Central Mut. Ins. Co., 280 Ill. App. 5. There are cases in other jurisdictions holding that a judgment creditor could not garnish the loan or cash surrender value unless all the conditions precedent have been complied with. Farmers’ & Merchants’ Bank v. National Life Ins. Co., 161 Ga. 793; Van Dyke Co. v. Moll, 241 Mich. 255; Kothe v. Phoenix Mut. Life Ins. Co., 269 Mass. 148; Hilliard v. Wisconsin Life Ins. Co., 137 Wis. 208.
“We have held to the same effect in the recent case of Larson v. McCormack, 286 Ill. App. 206. In that case plaintiff had obtained a judgment against McCormack and had garnished the Massachusetts Mutual Life Insurance Company; application had been made by the insured for a loan on the policy, which had been approved by the company. The statute makes it obligatory upon a life insurance company to make such a loan. A check representing the amount of the loan, payable to the order of the insured, had been forwarded by the main office of the company to the Chicago agency, with instructions not to deliver the check to the insured until he had nominated a beneficiary of the policy; although the loan had been passed by the company and the check for the amount of the loan was in the hands of its agent at the time the summons was served, we held that garnishment would not lie until the loan had been consummated, nothing remaining to be done except to deliver the check to the insured. Leave to appeal from the judgment against the judgment creditor was denied by the Supreme Court.
“If the amount of the loan under such circumstances is not subject to garnishment, clearly it would not be subject to garnishment in the case at bar where no application has been made for a loan.
“It is equally clear that the cash surrender value of the policy is not subject to garnishment. The insured could make no claim for the cash surrender value unless she was living at the end of one year from the policy’s date and demanded the surrender value. Both these contingencies were uncertain.”

It will be noted that 'the opinion cites with approval Farmers & Merchants Bank v. National Life Ins. Co., supra. See, also, Bethards v. Metropolitan Life Ins. Co., supra.

Plaintiff contends that a creditor’s bill and a garnishment suit are not analogous proceedings and therefore the Illinois Appellate court decisions cited by defendant do not apply.

In Addyston Pipe Co. v. City of Chicago, 170 Ill. 580, 584, the court states: “The process of garnishment and a creditor’s bill are, in effect, instituted for the same purpose. They are, as a general rule, instituted to reach money in the hands of a third party due and owing from a judgment debtor to a judgment creditor. A reference to the statute under which the two proceedings are instituted will show their similarity.” The court, after quoting section 1 of the Garnishment Act and section 49 of the Chancery Act, further states (p. 585):

“Under the section of the statute providing for garnishment, where an execution has been issued and returned no property found a summons may be issued against the person supposed to be indebted, commanding bim to answer as garnishee; under the other statute, where an execution has been issued and returned no property found a creditor’s bill may be filed. The object attempted to be reached in each case is practically the same. In one case a judgment may be rendered as in an action at law, while in the other a money decree may be rendered. An execution may issue in either case.”

In Goodwine State Bank v. Wise, 263 Ill. App. 291, the court said (p. 295): “. . . it is also settled law, that a creditor’s bill is considered in the same legal category as a garnishment proceeding when filed to accomplish the same purpose.”

Sections 24 and 22 of chapter 62 (Garnishment Act) confer equitable powers upon the court in garnishment proceedings.

In LaSalle Opera House Co. v. LaSalle Amusement Co., 289 Ill. 194, a garnishment proceeding involving a question different from the one in the instant case, the court, after referring to Adams v. Young, 200 Mass. 588, states (p. 199): “That case was a suit in equity while this is a proceeding in garnishment, but under section 24 of the Garnishment act, which gives the court power to make all orders in regard to property under the control of the garnishee which may be necessary or equitable between the parties, the court exercises an equitable jurisdiction.”

Plaintiff’s counsel have made an earnest effort to find authorities that support plaintiff’s contention but after a careful examination of the cases cited we have reached the conclusion that they do not directly bear upon the question before us. Cohen v. Samuels, 245 U. S. 50, and Ehrhart v. New York Life Ins. Co., 45 F. (2d) 804, are bankruptcy cases. In Farmers & Merchants Bank v. National Life Ins. Co., supra, the court said (p. 798):

“Nor can the bankruptcy law be applied by analogy here. There are provisions in the bankruptcy law which perhaps might authorize a court to render a decree making available to the trustee in bankruptcy the cash-surrender value of a policy like this, but such a decree would be dependent upon the provisions in the bankruptcy law. ’ ’

See, also, Chelsea Exchange Bank v. Travelers’ Ins. Co., 160 N. Y. S. 225, 227. ; '

In Addiss v. Selig, 264 N. Y. 274, cited by plaintiff, a statute permitted a creditor to recover a portion of the insurance payable to a married woman, which statute contained the following: “. . . where the premium actually paid annually out of the husband’s property exceeds five hundred dollars, that portion of the insurance money which is purchased by excess of premium above five hundred dollars, is primarily liable for the husband’s debts. . . .’ ” (p. 278) A subsequent statute changed the law to exempt such insurance. The court states (p. 279): “The Insurance Law, above referred to, section 55-a, in effect March 31, 1927, changed this right of creditors, and the only question before us is whether it applies to pre-existing creditors like the plaintiffs.” The court held that the prior statute created a vested right in the creditor in that case and that the new law was not retroactive. Several New York cases cited by plaintiff that involve the question of insurance transferred in fraud of creditors, are not in point. Columbia Bank v. Equitable Life Assur. Soc., 80 N. Y. S. 428, 433, also a New York case, seems to be an authority against plaintiff’s contention.

Anthracite Ins. Co. v. Sears, 109 Mass. 383, cited by plaintiff, is discussed in Boisseau v. Bass, 100 Va. 207, 214, where the court states:

“An important distinction between that case and the one at bar is that it was there admitted, as one of the agreed facts in the case, that the insurance company was in the habit of taking up policies, like the one there involved, when the company and the holder of the policy could agree upon terms; giving it as stated by the court a present market value. No such fact is admitted in the case at bar. On the contrary, we have nothing before us but the policy, under which, as already pointed out, there was no existing indebtedness. If, however, that case can be relied on as contravening the well settled rule to which wé have adverted, we must decline to follow it.”

Kothe v. Phoenix Mutual Life Ins. Co., 269 Mass. 148, cited by plaintiff, does not support plaintiff’s contention. There it appeared that one MacKay had occupied a position of trust in the employ of the plaintiff and had appropriated to his own use certain funds of his employer. Prior to the time that plaintiff brought the suit against the insurance company he had brought a creditor’s bill to reach and apply certain assets of MacKay, including the cash surrender value of the policy issued to MacKay by the defendant. A .final decree was entered in that suit finding that MacKay was indebted to the plaintiff in the sum of $3,225, and ordering the payment of the same, and in default of payment appointing a special master to sell the policy in question at public auction and to deliver an assignment of the same to the purchaser. The special master purported to sell all of the right, title and interest of MacKay in the policy and executed an assignment of the same to the plaintiff. The plaintiff then made a demand on the defendant insurance company to pay him the cash value of the policy, which the said defendant refused to pay without the surrender of the policy. The plaintiff then sued the defendant insurance company to recover the cash surrender value of the policy issued on the life of MacKay, which contained the following provision: “At any time after the premiums for two years have been paid the Company will purchase this policy for its cash value on satisfactory release by the insured and assigns and surrender at the Home Office while it is in force, or within the thirty-one days of grace hereinbefore provided.” (p. 149) The defendant denied liability “to pay such surrender value on the sole ground that the plaintiff has not tendered the policy to it.” (p. 150) Judgment was entered against the defendant and it appealed, and the sole contention raised by the defendant insurance company upon appeal was that it was not liable to pay the surrender value because plaintiff had not tendered the policy to it. While certain obiter language is used by the court in the opinion, nevertheless, the court held (p. 151): “It is plain that compliance with the surrender clause in a contract of insurance is a condition precedent to recovery. Borussweski v. Middlesex Mutual Assurance Co., 186 Mass. 589, 590,” and the court held in favor of the defendant although it appeared that MacKay had absconded and could not be reached.

Several other cases are cited by plaintiff but it would unduly lengthen this opinion to refer specifically to them. Suffice it to say, we do not think they support plaintiff’s contention.

The decree of the circuit court of Cook county must be and it is affirmed.

Decree affirmed.

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