author: Mr. Justice Sullivan

text:
    Metropolitan Trust Company, Appellee, v. Frank Fishman, Appellant.
    Gen. No. 42,282.
    Opinion filed June 16, 1944.
    Bernard J. Brown, of Chicago, for appellant; Jesse H. Brown, of Chicago, of counsel.
    Emanuel Eller, of Chicago, for appellee.
   On Rehearing.

Mr. Justice Sullivan

delivered the opinion of the

court.

This appeal was brought by defendant, Frank Fish-man, to reverse a judgment for $11,233.96 rendered in favor of plaintiff, Metropolitan Trust' Company, receiver, in an action for rent and taxes due under a written lease, which was tried by the court without a jury. In an opinion filed April 6, 1944 we affirmed the judgment. Defendant’s petition for a rehearing was allowed April 20, 1944.

It appears from plaintiff’s amended complaint that it had been appointed successor receiver of an apartment hotel building involved in a foreclosure proceeding; that its predecessor receiver had entered into a written lease with defendant, Fishman, whereby the latter contracted to pay a monthly rental of $700 during the period of the receivership; that thereafter by order of court the rent was reduced to $550 a month; that defendant became delinquent in the payment of the rent due under the terms of the lease to the extent of $4,950; that plaintiff filed a petition in the foreclosure proceeding setting forth the delinquency of defendant and asking for a writ of assistance; that an order was entered therein on February 21, 1933 directing plaintiff to take possession of the premises forthwith, which order plaintiff complied with. Plaintiff’s amended complaint concluded with the prayer that it was entitled to recover herein $4,950 rent and $2,808.75 taxes due from defendant under the terms of the lease at the time of his eviction and asked for judgment for $7,758.75 and interest thereon.

Defendant’s answer averred inter alia that, since the order entered on February 21, 1933 in the foreclosure case pursuant to the receiver’s petition for a writ of assistance not only directed “Metropolitan Trust Company as receiver ... to take possession of the premises involved herein with all the chattels therein located forthwith” but also directed that “the lease between Frank Fishman and the receiver be and the same is hereby cancelled,” the cancellation of the lease in and by such order “terminated any liability that may have existed on said last mentioned date against this defendant and in favor of the plaintiff;” and that “if, notwithstanding the order of February 21,1933, defendant was indebted to plaintiff on said date for $4,950 rent, then such indebtedness was not on the lease but was for money due and owing under defendant’s implied agreement to pay for the use and occupation of the premises and is barred by the five-year statute of limitations.”

Only one of the issues determined in our original opinion is now before us for consideration. It is stated in defendant’s petition for rehearing: “There is only one issue in this case. The defendant pleaded that since the order of February 21, 1933 cancelled his lease with plaintiff, no action could be based upon the cancelled lease; that the only action which could be maintained was on an implied promise to pay and that the five-year statute of limitations controlled. Plaintiff moved to strike this defense and thereby admitted the cancellation as pleaded and made the issue one of law.” Therefore the sole question presented is the legal effect of the direction that “the lease between Frank Fishman and the receiver be and the same is hereby cancelled,” which the chancellor added to the order restoring the possession of the premises to plaintiff.

Defendant contends that when the lease was “can-celled” by the order in the foreclosure proceeding, it was thereby declared null and void ab initio and extinguished and destroyed for all purposes; that because of the cancellation of the lease plaintiff had no right of action thereon for rent, which had accrued prior to its termination by the aforesaid order of February 21, 1933; and that the only right of action plaintiff had was on defendant’s implied promise to pay for the use and occupation of the premises prior to his dispossession and that since this action was brought more than five years after defendant’s eviction, it was barred by the statute of limitations.

On the other hand, it is contended by plaintiff that the cancellation operated only from the date of the order of eviction, leaving the lease to its full effect prior to that time; that the legal effect of the order dispossessing defendant and cancelling the lease was merely to" terminate the contract for the use of the premises by him and to annul the relationship of landlord and tenant between the parties; that the receiver’s right of action upon the lease for rent and taxes which had accrued prior to the order of February 21,1933 survived the termination of the lease; and that since the instant action was brought on the lease, the ten-year statute of limitations is applicable.

In support of his contention that when the lease was “cancelled” by the aforesaid order of February 21, 1933, it was thereby annulled and thereafter ceased to exist for any purpose and no action could be predicated thereon for rents which had accrued prior to the entry of that order, defendant relies principally upon encyclopaedic and dictionary definitions of the word “cancelled.” The Illinois cases he cites merely reiterate the meaning ordinarily attributable to the word “cancellation,” which is said to be used interchangeably with the word “rescission,” and those cases involved contracts other than leases, where an entire consideration was agreed to be exchanged for an entire performance. Defendant has cited no authorities to sustain his contention that the effect of the cancellation of the lease by the court was to destroy the receiver’s matured contractual right under the lease to recover from him the rent and taxes which had accrued prior to its termination. There probably are none, because we doubt if a lease was ever before declared cancelled by a court under circumstances similar to those shown here. The receiver did not cancel the lease and neither did it ask the court to cancel it. The lessee Fishman did not ask the court to cancel it. The declaration that the lease be “can-celled” was unquestionably included in the order inadvertently, because it was not responsive to any issue presented by the receiver’s petition for a writ of assistance against defendant.

The only case in this state cited by plaintiff or, which we have been able to find, that is at all applicable to the situation presented here is Burroughs v. Clancey, 53 Ill. 30. The plaintiff therein brought an action of covenant on a lease and one of the breaches assigned was that there was rent due and unpaid for certain months of the first year of the term of the lease. The defendant filed several pleas, one of which averred that “he rescinded the indenture and restored the plaintiff to the possession of the premises, which he accepted under such rescission and surrender, and before the commencement of the suit.” A demurrer to this plea was sustained and the defendant abided by the demurrer. In that case the court said at p. 35: “The fourth plea, averring a rescission of the contract, is bad, as it does not aver at what time he offered to rescind, non constat, by that plea, but that defendant occupied the premises until the term had nearly expired, and if appellee did accept the rescission, it does not follow the rent due was relinquished.” It will be noted that recovery was sought therein in an action of covenant on a lease and the court held that, if the lease had been rescinded, the plaintiff was entitled to recover the rent which had accrued under the lease prior to its rescission. This rule as enunciated in the Burroughs case has never been overruled.

In Hinsdale v. White, 6 Hill (N. Y.) 507, the court in construing a statutory provision of the State of New York said at pp. 508 and 509:

“The question turns mainly on the construction to be put upon 2 R. S. 424, sec. 43, 2d ed. This declares that, ‘Whenever a warrant shall be issued as aforesaid, by any such magistrate, for the removal of any tenant from any demised premises, the contract or agreement for the use of the premises, if any such exist, and the relation of landlord and tenant between the parties, shall be deemed to be cancelled and annulled.’ It is contended in behalf of the tenant that this annulment of the contract operates from the beginning, and that none of the rent due before the warrant of removal was issued can be recovered. On the other hand, it is contended that the annulment operates only from the time when the warrant issues, leaving the contract to its full effect previous to that time.
“The words of the statute admit of either construction, inasmuch as they do not expressly fix the time; and, in determining which should prevail, it is our duty to regard consequences. To say that the contract shall be considered as void and inoperative from the beginning, would not only cut off the remedy afforded by its terms for rent which may have accrued at any time past, but would even énable a tenant to recover back all he had paid. A consequence so unjust we cannot allow without words expressly declaring it. The opposite construction maintains the contract as to the rent due prior to the eviction, which it is the duty of the tenant to pay. This he has agreed to do ; and moreover he agreed, in this case, that, for the same default, if the rent continued in arrear a specified time, the landlord might re-enter. ... It is the agreement for the use of the premises, and the relation of landlord and tenant, which are annulled. The express contract to pay the rent for that part of the term already elapsed, is not necessarily destroyed, though the agreement for use and the relation of landlord and tenant be gone. In other words, the demising clause may be declared void from the beginning, without necessarily impairing the obligation to compensate for the past occupation.”

So, in our opinion, in the instant case it was the agreement for the use of the premises and the rela- ■ tion of landlord and tenant, which were cancelled by the order of February 21, 1933 and the express contract to pay the rent and taxes which had accrued prior to the order of eviction was not destroyed, even though defendant’s right to the use of the premises and the relation of landlord and tenant were annulled. The general rule is that üpon the termination of a written lease for any reason an action may be brought on the lease for rent which had accrued prior to its termination. (32 Am. Jur. sec. 841, p. 716; 36 C. J. sec. 1149, p. 340; L. R. A. 1916B, p. 1101, note.) This rule applies when the lease is terminated by the eviction of the tenant, by the abandonment of the leased premises by the tenant, by the cancellation of the lease by the mutual consent of the parties thereto or by the expiration of the term of the lease.

A lease belongs to that class of contracts designated in law as “divisible.” Such a contract is defined as follows:

“A contract under which the whole performance is divided into two sets of partial performances, each part of each set being the agreed exchange for a corresponding part of the set of performances to be rendered by the other promisor, is called a divisible contract.” (Williston on Contracts, Rev. Ed., Vol. III, Sec. 860A, p. 2408.)

It is further stated by the same author:

“A divisible contract, using that term properly, is always one contract and not several contracts. It differs in one respect only from other contracts— namely, that on performance on one side of each of its successive divisions, the other party becomes indebted for the agreed price of the division which is recoverable in spite of subsequent breach by the performing party.” (Williston on Contracts, Rev. Ed., Vol. III, Sec. 861, pp. 2415-6.)

Thus included in the covenants of the lease involved herein was the agreement that one month’s rent was to be paid or exchanged for one month’s use of the premises and a contractual liability accrued for the payment of rent for each month the premises were used by the lessee under the terms of the lease. Plaintiff’s obligations under the lease had been fully performed up to the time when defendant was evicted and the latter’s contractual liability under the lease to pay rent for his occupation of the premises prior to his eviction had fully matured when he was dispossessed and the lease cancelled.

We are impelled to hold that the legal effect of the inclusion in the order of dispossession of the declaration cancelling the lease could only have been at most to destroy the lease as a conveyance and to annul the agreement for the use of the premises and the relation of landlord and tenant and that such declaration of cancellation was not and could not be legally effective to destroy plaintiff’s right of action on the lease to recover rent and taxes which had accrued thereunder prior to the order of February 21, 1933; that the five-year statute of limitation has no application to this action, which is predicated upon a written lease; and that the complaint herein was filed well within the 10-year limitation period, which applies to actions based upon instruments in writing.

We therefore adhere to the conclusion reached in our original opinion that the judgment of the superior court should be affirmed. It is so ordered.

Judgment affirmed.

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


source: Caselaw Access Project

license: Public Domain

text:
    Meyer Winer, Appellee, v. Joseph Eckerling and Max Eckerling, Trading as Universal Overall Company Appellants.
    Gen. No. 42,813.
    Opinion filed June 16, 1944.
    Russ & Rawson and Mayer Goldberg, both of Chicago, for appellants; Mayer Goldberg, of Chicago, of counsel.
    A. Charles Lawrence and Gordon Bazelon, both of Chicago, for appellee; A. Charles Lawrence, of Chicago, of counsel.
   Mr. Justice Sullivan

delivered the opinion of the court.

Plaintiff, Meyer Winer, a former employee of defendants, Joseph Eckerling and Max Eckerling, doing business as Universal Overall Company, brought this action against them under the Fair Labor Standards Act to recover overtime wages claimed to be due him. The court tried the case without a jury and found that there was due plaintiff from defendants $142.82 as overtime wages from October 24, 1938 to April 1, 1940 and in addition thereto an equal amount as liquidated damages and $100 attorney’s fees as provided by said act. Judgment was entered against defendants for $385.64, from which they appeal. Judgment was also entered in favor of plaintiff on defendants’ counterclaim for $300.

Section 207 (a) of the Fair Labor Standards Act (29 USCA sec. 201, et seq.), which became effective October 24, 1938, provides as follows:

“Sec. 207. Maximum hours
“(a) No employer shall, except as otherwise provided in this section, employ any of his employees who is engaged in commerce or in the production of goods for commerce—
“(1) for a workweek longer than forty-four hours during the first year from the effective date of this section,
“(2) for a workweek longer than forty-two hours during the second year from, such date, or
“ (3) for a workweek longer than forty hours after the expiration of the second year from such date, unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he is employed.”

Section 216 (b) of said act provides:

“Sec. 216. Penalties; civil and criminal liability
“(b) Any employer who violates the provisions of section 206 or section 207 of this title shall be liable to the employee or employees affected in the amount of their unpaid minimum wages, or their unpaid overtime compensation, as the case may be, and in an additional equal amount as liquidated damages. Action to recover such liability may be maintained in any court of competent jurisdiction by any one or more employees for and in behalf of himself or themselves and other employees similarly situated, or such employee or employees may designate an agent or representative to maintain such action for and in behalf of all employees similarly situated. The court in such action shall, in addition to any judgment awarded to the plaintiff or plaintiffs, allow a reasonable attorney’s fee to be paid by the defendant, and costs of the action.”

Plaintiff was employed by defendants from May 1936 to January 1941. In 1937 his salary was raised to $35 a week on a straight weekly basis. Thereafter he received a salary of $35 a week until April 1, 1940. Plaintiff’s claim for overtime wages covers two periods. The first was from October 24, 1938, the effective date of the Fair Labor Standards Act, to October 24, 1939. During this period the act provided for a workweek of forty-four hours and for overtime compensation of not less than one and a half times the regular hourly rate of pay. Plaintiff worked 51 hours a week and was paid a salary of $35 a week. The second period was from October 24, 1939 to April'1, 1940. During this period the act provided for a workweek of 42 hours with compensation fixed at the same rate as above for overtime work and plaintiff worked 48% hours a week and was paid a salary of $35 a week.

Defendants contend that they are not liable to plaintiff for any unpaid overtime compensation because “he was paid on an hourly basis with a weekly guaranty” and that “this arrangement complied in all respects with the Fair Labor Standards Act.”

Plaintiff’s position is that defendants continued to pay him a straight weekly .salary of $35 after the act went into effect, regardless of the number of hours he worked and without any agreement as to his hourly rate of pay, and that they are liable to him for 7 hours a week unpaid overtime compensation from October 24, 1938 to October 24, 1939 and for 6% hours a week unpaid overtime compensation from October 24, 1939 to April 1, 1940.

Defendant, Joseph Eckerling, testified that when the act went into effect he told Jack Feinstein defendants ’ bookkeeper, “to follow .it out and carry it out, and he was the one to put down the ruling, in columns the hours and the wages . . . the new ruling, the hours and salaries” and that “an hourly rate of pay was fixed at the time when the act first went into effect. ’ ’

Jack Feinstein testified in substance with reference to the first period heretofore mentioned that when the •act went into effect he had a conversation with plaintiff in which he told him that thereafter he would be paid at the rate of 63 cents an hour; that he would work 51 hours a week; that “at that hourly rate of pay and figuring overtime pay for 7 hours a week at the rate of 94% cents an hour his weekly pay would amount to slightly less than $35 but that he would be guaranteed and paid $35 a week;” that he would be paid for additional overtime work when the amount earned exceeded his guaranteed salary of $35 a week; and that plaintiff'agreed to this arrangement. Feinstein testified further that he had another conversation with plaintiff in October 1939, when the 42 hour workweek went into effect, and a similar arrangement was made, except that it was agreed that plaintiff’s hourly rate of pay would be 67 cents and that he would work 48% hours a week.

Such an arrangement as defendants claim they made with plaintiff as to his hourly rate of pay, overtime compensation and weekly salary guaranty was approved in Walling v. A. H. Belo Corp., 316 U. S. 624, where the court said at p. 634: “But the guaranty contract in this case carries out the intention of the Congress. It specifies a basic hourly rate of pay and not less than time and a half that rate for every hour of overtime work beyond the maximum hours fixed by the act.”

However, plaintiff denied that defendants made any agreement or arrangement with him as to an hourly rate of pay or a guaranteed weekly salary for the two periods in question and he stated that the first time Feinstein or anybody else connected with defendants mentioned an hourly rate of pay for him was on April 1, 1940, when Feinstein said, “We’ll continue to work the same hours but it comes to $35.19 on a $.68 basis.” Furthermore the testimony presented in defendants’ behalf as to the agreements they claim to have made with plaintiff in October 1938 and October 1939 is completely refuted by their own records. There is not a single entry therein as to the number of hours worked by plaintiff on any day prior to April 1, 1940. Neither is there any entry of an hourly rate of pay for plaintiff prior to April 1, 1940. If defendants considered that their method of paying plaintiff’s salary from October 24,1938 to April 1,1940 complied with the Fair Labor Standards Act, it is difficult to understand why they abandoned such method and paid his wages in strict compliance with the act subsequent to April 1, 1940.

Defendants, having paid plaintiff a straight weekly salary of $35 during the entire time involved herein and having failed to enter into an agreement with him as to his basic hourly rate of pay and to pay him not less than time and one half that rate for every hour he worked over and beyond the maximum hours fixed by the Fair Labor Standards Act, were clearly guilty of violating the provisions of section 207 (a) of that act. The method by which the trial court computed plaintiff’s unpaid overtime wages is not questioned and its finding that defendants owed him $142.82 in overtime wages was warranted by the evidence.

Defendants made a payment of $300 to plaintiff on December 31, 1940 under circumstances hereinafter shown. They counterclaimed for that amount and contend that “any amount that might be found due plaintiff should be credited against the advance given plaintiff on December 31, 1940.”

Bonuses were paid to plaintiff by defendants at the end of the years 1936, 1937, 1938 and 1939 in the respective amounts of $75, $100, $150 and $250. On December 31, 1940 defendant Joseph Eekerling paid plaintiff $300. The evidence is conflicting as to whether this payment was made as a bonus for the year 1940. As to the nature of this payment, Joseph Eekerling testified, “I called in Mr. Winer and told him we don’t give any bonuses this year. He asked me why. I said because the Wage and Hour Division took away our records to check the wages and hours and in case they assess anything, we don’t want to be penalized twice. All I can do is give you a loan, if you have anything coming you are going to deduct from this loan. So he said it was O. K. and that was that.” Eekerling also testified that he told plaintiff “don’t worry about it” and that he “didn’t have any intention to sue him for it or anything.” Jack Feinstein, defendants’ bookkeeper testified that he was present and heard Joseph Eekerling tell Winer, “We are not going to give any bonuses this year . . . I want to give you a loan of $300.00, but in case the Department finds that I owe you some money, we are going to charge off against the loan the amount they are going to find due you;” and that “our attorney recommended no bonuses be paid to anybody and if we want to give them money to give them a loan.”

Winer testified: “I was called into the office and Mr. Eekerling handed me a check for $300.00 and I said, ‘Mr. Eekerling, does this represent the bonus for the year,’ and he said ‘No’ that their books were being checked by the Wage and Hours and until they knew what they were going to do with them, that was all I would get, but I would get-more later, and I objected . . . and he said that he couldn’t do anything until the settlement was made with the Wage and Hours, but that I would get more, so I said that if that was the way it was that I would take it, and then he said, ‘Here, sign this paper’ and I looked at the paper, and it said ‘Loan’ and I asked him why I should sign a loan and be liable for the $300.00, and he said not to worry about the paper, that it wasn’t a loan but something they had to have to protect themselves with the Wage and Hours pending their decision, and I said that the bonus wasn’t enough, and I wouldn’t accept it ... he said that I had my bonus as far as the $300.00 was concerned and not to worry about the note or loan, and that after they settled with the Wage and Hours that I would get more, to forget the signing of that note, so I took the money.”

When plaintiff received the $300 on December 31, 1940, he signed a memorandum on one of defendants’ letterheads, to which he referred in his testimony and which reads as follows: “To Whomever It May Concern: I hereby acknowledge receipt of loan in the amount of $300.00.” According to Feinstein, immediately thereafter he opened a ledger account for plaintiff and entered therein a debit of $300 against him as of December 31, 1940. Feinstein testified that shortly prior to May 1941 defendants were advised by the Wage and Hour Division that plaintiff was entitled to recieve overtime compensation of $174.28 for the period from October 24, 1938 to October 24, 1940, and that on May 1, 1941 plaintiff’s loan account was credited $174.28, the amount assessed against defendants for overtime compensation due him.

Whether the $300 received by plaintiff from defendants on December 31, 1940 was paid to him as a bonus presented a question of fact. The trial court found that the $300 was paid as a bonus and this finding, unless it was against the manifest weight of the evidence, is conclusive as to defendants’ instant contention that they are entitled to a credit of $300 against their liability for violating the provisions of the Fair Labor Standards Act.

It is stated in defendants’ reply brief that “plaintiff himself admitted that he was told that this payment was not a bonus and plaintiff so accepted it.” We do not think that plaintiff’s testimony is susceptible of any such interpretation. He did not state that he understood that the payment was not a bonus when he accepted it. He testified in effect that when he was handed the check for $300 on December 31, 1940, he understood that same was being given to him as a bonus and he questioned the amount thereof; that Eekerling told him that because defendants’ books were being checked by the Wage and Hour Division that was all the bonus he would get at that time but that he would get more later; and that about the middle of January 1941 he asked ■ Eekerling what he was going to do about the additional bonus promised him and he was discharged. In considering the weight of the evidence and the credibility of the witnesses, the trial court undoubtedly deemed it significant that defendants had paid bonuses to plaintiff for the four years preceding 1940 in progressively increasing amounts. It must also have appeared significant to the trial court that Joseph Eekerling told plaintiff when he requested his signature on the aforementioned memorandum that “he didn’t have any intention to sue him for it” and not to “worry about it.”

It was conceded upon the trial that, although defendants designated the payment of the $300 to plaintiff as a “loan” in the aforesaid memorandum and in their ledger, it was not in fact a loan. It is true that Joseph Eekerling and defendants’ bookkeeper testified that the $300 was paid to plaintiff with the understanding that defendants were entitled to a credit against same for any unpaid overtime compensation they might thereafter be required to pay him. However, the trial judge saw the witnesses and heard them testify and was in a much better position than we to determine their credibility. We are impelled to hold that his finding that the $300 was paid as a bonus was not against the manifest weight of the evidence.

Since the $300 was paid to plaintiff as a bonus, it belonged to him and no liability thereafter assessed against defendants for his unpaid overtime compensation could be charged against it. In our opinion the trial court properly found that plaintiff was entitled to recover from defendants $142.82 for unpaid overtime compensation, an additional equal amount as liquidated damages and an attorney’s fee of $100 under section 216 (b) of the Fair Labor Standards Act. The foregoing items amount in the aggregate to $385.64.

For the reasons stated herein the judgment of the municipal court of Chicago for $385.64 in favor of plaintiff and against defendants is affirmed.

Judgment affirmed.

Feibito, P. J., and Scanlah, J., concur.


text:
    Catherine L. D. Corbett et al., Appellees, v. City of Chicago, Appellant.
    Gen. No. 42,906.

      Opinion filed June 16, 1944.
    Rehearing denied June 27, 1944.
    Barnet Hodes, Corporation Counsel, for appellant; J. Herzl Segal, L. Louis Karton and Louis H. Geiman, Assistant Corporation Counsel, of counsel.
    Michael F. Ryan, of Chicago, for appellees.
   Mr. Justice Sullivan

delivered the opinion of the court.

This action was brought by plaintiffs, Catherine L. D. Corbett, Helen 0. Hynes, Delia C. Herriman, Florence E. Bush, Ellen J. Blake and Laura E. Boyle Lynn, to recover from defendant, City of Chicago, salaries claimed to be due them and which it was alleged the city illegally deprived them of during the period from February 24, 1941 to July 1, 1942. Defendant’s motion to strike plaintiffs’ complaint was denied. Plaintiffs’ motion to strike defendant’s amended answer and for judgment was sustained and separate judgments were rendered in favor of each of the plaintiffs for $1,623.33. Defendant appeals from said judgments.

The complaint alleged substantially that plaintiffs, having been wrongfully refused certification and appointment as telephone operators (police clerks— female) in the classified service of the City of Chicago, for which positions they had qualified by civil service examination, instituted a mandamus proceeding to compel their- certification and appointment to such positions; that on February 24,1941 a judgment order for the issuance of a writ of mandamus was entered therein, directing the city and the appropriate officials thereof to certify and appoint plaintiffs to the positions in question; that defendant appealed from said judgment order and same was affirmed by the Appellate Court (People ex rel. Corbett v. Allman, 312 Ill. App. 484); that on June 10,1942 the Supreme Court denied defendant’s petition for leave to appeal; that plaintiffs were thereafter appointed on July 1, 1942 to the positions of telephone operator (police clerk — female), were assigned to the performance of the duties thereof on that day and are still employed in those positions; and that “the position of telephone operator in the Central Complaint Boom of the Police Department has been appropriated for under the title of police clerk (female) for the years 1940, 1941, and 1942, and the salary of said position is $100.00 a month; that plaintiffs were illegally deprived of the salary lawfully due and owing them for the period from February 24,1941 to July 1,1942; that the salary due to each of plaintiffs amounts to $1,623.33.”

The only defense averred in defendant’s amended answer, which need be considered, is that “during the entire period from February 24, 1941 to July 1, 1942 the duties of said police clerks (female) were performed by incumbents de facto of said position, and that all moneys appropriated or provided by the City Council of the City of Chicago as salaries for said positions of police clerks (female) for the period of time in question has been paid in good faith to the said incumbents de facto.”

Defendant’s theory as stated in its brief is that “plaintiffs cannot recover salaries for the positions to which they were certified because the city paid those salaries to the de facto incumbents until July 1, 1942 when the plaintiffs were certified to those positions ; and that the defendant was under no duty to certify the plaintiffs to the positions of police clerks, pursuant to the writ of mandamus, until the litigation was finally terminated on June 10, 1942 by the action of the Supreme Court in denying defendant’s petition for leave to appeal from the order of the Appellate Court affirming the trial court judgment.”

Plaintiffs’ theory is that they, “as de jure employees, are entitled to the salaries from the date of judgment in their favor adjudicating their rights to the positions” and that “it is no legal defense thereto that after a court decision establishing their rights to the positions that the salaries thereafter have been paid to de facto employees.”

Can a municipality wrongfully refuse through its appropriate officials to certify and appoint to vacancies in classified civil service positions persons who have qualified for such positions by civil service examination and persist in its wrongful refusal to so certify and appoint after the right of such persons to certification and appointment has been established in a mandamus proceeding brought for that purpose and then avoid liability for the payment of the salaries those persons were unlawfully prevented from receiving from the time their right to appointment had been judicially determined in said mandamus proceeding to the date they were actually and finally appointed, merely because the city saw fit to illegally employ temporary appointees in their place and stead during said period?

In so far as we have been able to ascertain the precise question presented here has not heretofore been considered or determined by a court of review in this or any other jurisdiction. However, when a civil service employee is wrongfully removed from his position and thereafter reinstated, the law is well settled that his right to the position carries with it the right to the salary appurtenant thereto, regardless of the payment of such salary to a de facto appointee during the period of his illegal removal. (People ex rel. McDonnell v. Thompson, 316 Ill. 11; People ex rel. Verdung v. Dunham, 294 Ill. App. 613; People ex rel. Campbell v. Kapp, Jr., 295 Ill. App. 92.)

No sound reason has been suggested as to why the same rule should not be applicable to the situation presented here. We fail to perceive any difference in legal effect between the illegal removal of a civil service employee and the illegal refusal to certify and appoint a civil service eligible whose right to a civil service position has been judicially established. In either case the person entitled to the civil service position is wrongfully prevented from performing the duties thereof and from receiving the salary appropriated therefor. Plaintiffs were wrongfully refused certification and appointment to civil service positions for which they had qualified. They were compelled to resort to mandamus to enforce their rights to certification and appointment. Such rights were established on February 24, 1941, when the judgment order was entered in the mandamus proceeding directing their certification and appointment. Notwithstanding the entry of that judgment order, the city continued to illegally deprive them of the positions and continued to illegally employ temporary appointees in their stead until July 1,1942.

In our opinion the trial court properly held that plaintiffs’ rights to appointment to the positions having been established on February 24, 1941, when the order for the writ of mandamus was entered, their rights to the salaries pertaining thereto accrued as of that date and that they were entitled to the salaries which they were illegally prevented from receiving from February 24, 1941 to July 1, 1942, when they were finally appointed pursuant to the writ of mandamus, notwithstanding that temporary appointees illegally employed by the city in their stead were paid the salaries of such positions during said period.

But it is asserted in defendant’s brief: “The holding of the trial court illegally imposes upon the city a penalty for taking an appeal. The city had a legal right to seek a review of the court’s order and properly continued to employ the incumbents until the Supreme Court’s action terminated the litigation. In the meantime the appeal operated as a supersedeas. It would be quite meaningless for the trial court to order the appeal to act as a supersedeas and then impose liability upon the city on the basis that the judgment order should have been obeyed immediately and not stayed pending appeal.” The city’s contention in this regard is entirely lacking in merit. The legal representatives of the city in the mandamus proceeding well knew that the judgment rendered therein was effective as of the date of its entry to establish plaintiffs’ rights to the positions in question, unless it was thereafter reversed. They also knew that the city would have to suffer the consequences of an unsuccessful appeal. They knew that the effect of the supersedeas was merely to suspend the operation of the writ of mandamus pending the determination of the appeal and that it in no wise impaired the effectiveness of the judgment. They knew that the affirmance of the mandamus judgment on appeal would serve to confirm its effectiveness as of the date of its entry.

It is idle to urge that the judgments entered by the trial court in the instant case imposed an unwarranted penalty on the city for taking an appeal from the judgment order awarding the writ of mandamus to plaintiffs. No penalty was imposed on the city by reason of said appeal. It merely suffers the consequences of its unsuccessful appeal, as does every other unsuccessful appellant. Where an appeal is taken from a money judgment the unsuccessful appellant is required to pay interest on the judgment from the date of its entry. The city is in no different position here as a result of its unsuccessful appeal from the mandamus judgment than it would be as a result of an unsuccessful appeal by it from a judgment ordering the restoration of a civil service employee who had been illegally removed from his position and it is conceded that when a civil service employee is illegally removed he is entitled to his salary for the period of his illegal removal, notwithstanding the pendency during that period of an appeal by the city from the judgment ordering his restoration.

We are impelled to hold that, since plaintiffs were wrongfully and illegally refused certification and,appointment to the positions involved herein, they are entitled to be paid the salaries of such positions from February 24, 1941, the date of the issuance of the writ of mandamus establishing their legal right to the positions to July 1, 1942, when they were finally certified and appointed pursuant to said writ of mandamus.

For the reasons stated herein the judgments of the circuit court of Cook county are affirmed.

Judgments affirmed.

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


author: Justice Stone.

text:
    Arlie Wolfinbarger et al., Appellees, v. County Court of Williamson County, Illinois, and S. E. Storme, County Clerk, Respondents. County Court of Williamson County, Illinois et al., Appellants.
    opinion filed June 13, 1944.
    Stone & Fowler, for appellants; D. L. Duty and Chas. D. Winters, for appellees.
   Opinion by

Justice Stone.

Not to be published, in full.


author: Presiding Justice Friend.

text:
    Leyden Premier Cab Company, Appellee, v. Citizens Casualty Company of New York, Appellant.
    Gen. No. 42,608.
    opinion filed June 16, 1944.
    Wyatt Jacobs and Walter A. Christopher, for appellant. Eckert & Peterson, for appellee; A. R. Peterson, Owen Rall and J. H. MacDonald, of counsel.
   Opinion by

Presiding Justice Friend.

Not to be published in full.


author: Justice Scanlan.

text:
    William Wollschlaeger et al., Plaintiffs, v. Alvina Erdmann et al., Defendants. A. G. Wipperman, Appellant, v. Alvina Erdmann, Appellee.
    Gen. No. 42,976.
    opinion filed June 16, 1944.
    Tatge & Tatge and Robert F. Kolb, for appellant. Harold L. Reeve and Elmer M. Leesman, for appellee.
   Opinion by

Justice Scanlan.

Not to be published in full.


text:
    Home Laundry and Dry Cleaning Company, Appellee, v. Frank Hunyady, Jr., et al., Defendants. Frank Hunyady, Jr., Appellant.
    Gen. No. 43,004.
    opinion filed June 16, 1944.
    Edward A. Biggs, Jr. and Sol Kalena, for appellant. Peden, Ryan & Andreas, for appellee; Gerald Ryan, of counsel.
   Opinion by

Justice Scanlan.

Not to be published in full.


author: Justice Sullivan.

text:
    Van Doren Realty Corporation, Appellant, v. Daniel L. Svehla and Genevieve Svehla, Appellees.
    Gen. No. 42,881.
    opinion filed June 16, 1944.
    J. Kentner Elliott, for appellant. Hubbard, Baker & Rice, for appellees.
   Opinion by

Justice Sullivan.

Not to be published in full.


text:
    James J. Barbour, Appellant, v. Willett Company, Appellee.
    Gen. No. 42,897.

      opinion filed June 16, 1944.
    Edward H. S. Martin, for appellants. Cassels, Potter & Bentley, for appellee; William S. Warfield, III and Francis J. Nosek, of counsel.
   Opinion by

Justice Sullivan.

Not to be published in full.


text:
    Charles, Philip and George Moulopoulos, Appellants, v. Northern Trust Company, Appellee.
    Gen. No. 42,924.
    opinion filed June 16, 1944.
    H. M. Phipps, for appellants. Pam, Hurd & Reichmann, for appellee; Arthur M. Cox and Lester G. Britton, of counsel.
   Opinion by

Justice Sullivan.

Not to be published in full.


text:
    Laurie Sweany and Virginia Maloney, Appellees, v. Walgreen Company, Inc., Appellant.
    Gen. No. 43,037.

      opinion filed June 16, 1944.
    Lord, Bissell & Kadyk, for appellant. Henry Mitgang, for appellees.
   Opinion by

Justice Sullivan.

Not to be published in full.


author: Mr. Justice Wolfe

text:
    Fred E. Hummel, Trustee, Appellant, v. James R. Cardwell et al., Appellees.
    Gen. No. 9,936.
    Opinion filed February 16, 1944.
    Rehearing opinion filed July 20, 1944.

      Sidney H. Block, of Waukegan, for appellant.
    Oscar S. Seaver, of Chicago, for certain appellee.
    Edward G. Berglund, of Chicago, for certain other appellee.
    Barre Blumenthal, of Chicago, for certain other appellee.
   Mr. Justice Wolfe

delivered the opinion of the court.

The appellant, Fred E. Hummel, is the trustee in bankruptcy of the estate of Dorothea W. Huszagh, who is a beneficiary under a trust, created by the last will of her father, Frederick H. Wickett, deceased. Dorothea W. Huszagh filed her petition to be adjudged a bankrupt on August 17, 1940. In her bankruptcy schedules she stated that under a creditor’s bill proceeding, in the circuit court of Lake county, her interest and estate in the trust had been sold by the master in chancery under a decree of sale entered on November 17, 1939, to her judgment creditor, James B. Cardwell.

Hummel was appointed trustee in bankruptcy on October 24, 1940. On November 15, 1940, he filed in the circuit court of Lake county, his complaint (bill of review) against James B. Cardwell, Dorothea W. Huszagh, and also Fred J. Wegg as the sole trustee under the will of Frederick H. Wickett, to review the proceedings and decree in the creditor’s suit. The defendants filed their respective answers to the complaint and Dorothea W. Huszagh also filed a counterclaim. After a hearing before the chancellor, both the complaint and the counterclaim were dismissed as being without equity. From this decree Hummel has appealed. All of the defendants have filed cross-appeals resulting in a diversity of contentions being vigorously.urged in this court by the different parties to the suit.

The creditor’s bill of the defendant, James B. Card-well, is governed by the provisions of section 49 of the Chancery Act (sec. 49, ch. 22, Ill. Rev. Stat. 1943; Jones Ill. Stats. Ann. 106.12), which is as follows: “Whenever an execution shall have been issued against the property of a defendant, on a judgment at law or equity, and shall have been returned unsatisfied, in whole or in part, the party suing out such execution may file a complaint against such defendant, and any other person, to compel the discovery of any property or thing in action, belonging to the defendant, and of any property, money or thing in action due to him, or held in trust for him, and to prevent the transfer of any such property thereof to the defendant, except when such trust has, in good faith, been created by, or the fund so held in trust has proceeded from, some person other than the defendant himself. The court shall have power to compel such discovery, and to prevent such transfer, payment or delivery, and to decree satisfaction of the sum remaining due on such judgments, out of any personal property, money or things in action, belonging to the defendant, or held in trust for him, with the exception above stated, which shall be discovered by the proceeding in chancery, whether the same were originally liable to be taken in execution at law or not; Provided that no answer made to any complaint filed under this and the preceding section shall be read in evidence against the defendant on the trial of any indictment for fraud charged in the complaint.”

As heretofore stated the decree of sale directed the master in chancery to sell all the right, title and interest of Dorothea W. Huszagh in the trust estate created by the will of Frederick H. Wickett. This decree was a determination that such interest was subject to sale under a creditor’s bill. At the time the creditor’s bill was filed and when the decree of sale thereunder was entered, she had no interest, benefit or property given to her by the will, except such interest and estate as came to her as a cestui que trust. The claim of the judgment creditor, Cardwell, that as the purchaser of her title and interest in and to the trust estate under the decree of sale entered on November 17, 1939, necessarily rests on the validity of that decree, as now opposed to the claim of Hummel, that Dorothea W. Huszagh’s interests and estates in the trust passed to him, as trustee in bankruptcy, upon the filing of her petition in bankruptcy. The validity of the decree of sale is vital to the claim of Cardwell and to the contention of the testamentary trustee, Wegg, that Cardwell’s claim is prior or superior to the claim of the trustee in bankruptcy. It is the duty of this court to decide whether the circuit court had jurisdiction of the subject-matter of the suit based on the creditor’s bill which is now brought into review. If the decree of sale is void, owing to the circuit court’s lack of jurisdiction to render such a decree, nothing was presented for review, except the validity of the decree of sale.

The will of Frederick H. Wickett provides for the payment of his debts and makes specific bequests, which are not necessary to consider in construing his will. The residue of his estate, the testator devises and bequeaths to Fred J. Wegg (and Norman M. Hancock who refused to act) in trust for uses and purposes set forth in the will. The will provides that if one of the trustees refused to act the one accepting the trusteeship should have all the powers given to the two trustees. The trustees "are given full power and absolute control of the residuary estate, to manage and dispose of it, or any part thereof, as they deem best. They are empowered to sell, assign or exchange, invest and reinvest, any and all of said property at such time and prices as they see fit. The proceeds of such sales to become part of the trust estate and subject to the terms of the trust.

The tenth clause of the will is as follows: “My said trustees are directed to pay out of the net income of this trust estate to my wife, Alice W. Wickett, for and during the term of her natural life the sum of Fifteen Hundred Dollars ($1500.00) per month. In the event that said net income is not sufficient to pay my wife the sum of Fifteen Hundred Dollars ($1500.00) per month, then I direct my said trustees to pay such deficiency out of the corpus of this trust estate as may be necessary to secure to my said ¿Wife an income of not less than Fifteen Hundred ($1500.00) dollars per month. I expressly authorize and empower my said trustees to pay to my said wife, either out of income or but of the corpus of my estate, such further and other sum or sums of money, from time to time, as in their judgment shall seem fit, having in mind the needs and requirements of my wife. ’ ’

The eleventh clause of the will is as follows: “Upon the death of my said wife, my said trustees are directed to pay the net annual income of my said trust estate, in such instalments as in their judgment shall seem best, equally to my children, Dorothy Huszagh and Marjorie Huszagh, share and share alike. My said trustees are, however, expressly authorized and empowered to pay over and deliver to my said children, Dorothy Huszagh and Marjorie Huszagh, from time to time, as in their judgment shall seem fit, such further or other portion of the corpus of this trust estate; Provided, however, that at all times both of my said children shall be treated equally, so far as the division of said trust estate is concerned.”

The fifteenth clause of the will is as follows: “I hereby expressly authorize and empower my trustees from time to time to pay any part of the corpus of this trust estate to any of my relatives if, in the opinion of my said trustees, they may be in want or need of assistance.”

Alice W. Wickett, the widow of the testator, renounced the provisions of the will for her benefit. The legal title and possession of the testator’s estate relinquished by her renunciation, with other residuary assets of his estate as provided by the will, passed to the trustee, Wegg, as part of the trust estate. (Dunshee v. Dunshee, 251 Ill. 405.) The will does not provide that Dorothea W. Huszagh survive her mother to be entitled to the net income from the trust estate. Under the eleventh clause of the will the trustees are directed to pay the “net annual income” of the trust estate to the two daughters, Dorothea W. Huszagh and Marjorie Huszagh, equally. It is necessary to refer to the pleadings and the decree of sale in the creditor’s suit to determine the contention of Dorothea Huszagh and Wegg, the testamentary trustee, and the contention of Cardwell.

It is contended by Dorothea Huszagh and Wegg that the trust created by the will of Frederick H. Wickett is a Spendthrift Trust. In her answer to the creditor’s bill of Cardwell, Dorothy Huszagh alleged that the trust is in the nature of a Spendthrift Trust and not subject to any legal or equitable assignment, by operation of law, or otherwise, and that the plaintiff (Cardwell), is not entitled to have such interest in the trust sold for the purpose of having the proceeds of the sale thereof, applied in satisfaction of his judgment. In the decree ordering the sale of Dorothea Huszagh’s interest in the trust, the court decided her interest in the trust estate, constitutes personal property, which did create a trust, but not a Spendthrift Trust, and that her interest in the trust is- subject to equitable attachment and sale for the purpose of satisfying, in whole or part, as the case may be, the unpaid judgment in favor of Cardwell. The circuit court had jurisdiction of the parties and the subject-matter of the trust bearing on the questions as to whether the trust was a Spendthrift Trust. The court decided that the trust is not a Spendthrift Trust. The court having had jurisdiction, it is immaterial whether its judgment was erroneous, since the judgment is- binding on the parties and on every court, unless reversed or annulled in a direct proceeding. This finding, or judgment of the court is not subject to collateral attack. (Wood v. First Nat. Bank of Woodlawn, 383 Ill. 515.) It is also to be noted that the finding that the trust was not a Spendthrift Trust was entered at the insistence of Card-well and in his favor, and that Dorothea W. Huszagh, after the decree of sale was entered, agreed with Card-well that she would not file a bill of review to question the proceedings taken in the creditor’s suit. Neither of these parties is now in a position to question the soundness of the finding that the trust is not a Spendthrift Trust. (Harrigan v. County of Peoria, 262 Ill. 36, 43.)

In the trial court the creditor’s suit turned solely on the question whether the trust was a Spendthrift Trust, and the chancellor having found that it was not, ordered the sale of Dorothea Huszagh’s interest in the trust sold to satisfy the unpaid judgment of Card-well, as above stated.” In her answer to the creditor’s bill, Dorothea W. Huszagh also alleged: “The entire consideration for said trust estate was derived from the estate of the late father of this defendant, and this defendant did not contribute anything to the assets of said trust estate, and that, as a matter of law, and as a matter of equity and good conscience, it was intended by the late father of this defendant, as appears from his said will, whatever interest this defendant had in said trust estate should not be subject to any attachment, legal or equitable.” This part of the answer was probably understood by the chancellor, on the hearing thereof, as, in effect, an allegation that the trust was a Spendthrift Trust. It appears from the record that the chancellor at that time was not informed of the provision of section 49 of the Chancery Act, excepting property held in trust for a defendant to a creditor’s bill, from an equitable lien in favor of his judgment creditor.

It is contended by Hummel (trustee in bankruptcy) the plaintiff in the bill of review, that the circuit court did not have jurisdiction to enter a decree of sale of Dorothea W. Huszagh’s interest in and to the trust because it is in contravention of the exception of section 49 of the statutes.

After Hummel as trustee, etc., filed his petition for a bill of review, James B. Cardwell on November 15, 1940, filed a motion to strike the same. On December 13,1940, Cardwell filed an amended motion to dismiss the complaint. One of the reasons in support of his motion to dismiss is as follows: “The right, title and interest of Dorothea W. Huszagh in said trust, is under and by virtue of section 49, chapter 22, of the Illinois Revised Statute exempt property and cannot be reached by the creditors of Dorothea W. Huszagh, and by reason thereof, no interest passed to Fred E. Hummel as trustee, by reason of the adjudication of said Dorothea W. Huszagh as a bankrupt.” In the motion to strike the same reason was given. Both of said motions were sworn to. In the answer of James R. Cardwell filed to the complaint for review, in, “Affirmative defenses,” he states: “Dorothea W. Huszagh did not set up or in any wise refer to the provision of section 49, chapter 22 of the Revised Statute as a defense to the creditor’s bill in case No. 40999.”

On December 20, 1940, the defendant, Wegg as trustee in said estate, filed his motion to dismiss the complaint for review. One of the reasons given in his motion is: “The subject-matter, subject to be reviewed was an interest that Dorothea W. Huszagh had, under the last will and testament of Frederick H. Wickett, deceased, and was not subject to attack by any creditor or person representing any creditor of Dorothea W. Huszagh under the terms of section 49, chapter 22 of the Revised Statute of Illinois.” This motion was sworn to.

On February 17, 1941, the defendant, Dorothea W. Huszagh, filed her answer and counterclaim. Paragraph 5 of the answer is: “ The allegations contained in paragraph 10 of the answer filed by Dorothea W. Huszagh in said case No. 40999, is that the entire consideration for said trust estate was derived from the estate of the late father of this defendant, and this defendant did not contribute anything to the assets of said trust estate, and that, as a matter of law, and as a matter of equity and good conscience, it was intended by the late father of this defendant, as appears from his said will, that whatever interest this defendant had in said trust estate should not be subject to any attachment, legal or equitable, — are true, and are admitted in the record; there is no dispute regarding the language of the will of Fred H. Wickett, creating said trust estate, or in regard to any facts set forth verbatim in the answer of Dorothea W. Huszagh filed in case No. 40999.” From an examination of the motions, and the answers of James R. Cardwell and Dorothea W. Huszagh, it is clear that the defendants in the bill for review, were relying upon the fact that the trust fund now in question was exempt property under the statute, and that the trustee in bankruptcy was not entitled to maintain his suit to recover the same.

As before stated, in the original creditor’s bill suit it was claimed in the answer filed by Dorothea W. Huszagh that all of the trust' estate was exempt property, because it was derived from the estate of her father, and that she did not contribute anything to 'the assets of said trust estate, and that the same was not subject to any attachment, legal or otherwise. This answer' was filed on November 4,1939. On November 10,1939, James R. Cardwell served a notice on the attorney for the defendant, Dorothea W. Huszagh, in which it is stated that James R. Cardwell, in view of the fact set forth in the answer of the above named defendants to the complaint filed herein, and in view of the fact that the principal controversy between the parties was based on questions of law, etc., would ask the court to set the cause for immediate hearing. The case was heard on November 17, 1939'.

A part of subsection 2 of section 40 of the Illinois Practice Act, Smith-Hurd’s Ann. Stats. [Jones 111. Stats. Ann. 104.040], is as follows: “Every allegation, except the allegation of damages, not explicitly denied, shall be deemed to be admitted, etc.” This statute applies to new matter raised by answer as well as in the original pleadings, or amendments thereto. The plaintiff saw fit to go to trial without filing a reply, or denying these material allegations of fact set forth in the answer to the creditor’s bill, which was a complete defense to his suit, and therefore he has admitted all such facts well pleaded. We are aware that some courts have held that by going to trial without filing a reply to the new matter, in some instances this rule would not apply, but our attention has been called to no case that will change the rule or the statute, where the plaintiff, before his time has expired under the statute, or rule of court to file a reply, has demanded a hearing on the pleadings in the case.

It is stated in Watt v. Cecil, 368 Ill. 510, at page 517: “In an unbroken sequence from DeWolf v. Long, 2 Gilm. 679, to Headen v. Cohn, 292 Ill. 210, this court has repeatedly held that where no replication is filed and the cause is tried upon bill and answer, the answer is taken as true. ... It cannot be seriously contended that the Civil Practice Act, with its more specific requirements, relaxes the rule. ’ ’

In the decree of the creditor’s bill suit, the court found: “The interest of Dorothea W. Huszagh in said trust estate constitutes personal property of an equitable nature predicated upon the terms of said will of Frederick H. Wickett, deceased, which did not create a trust in the nature of a spendthrift trust.” The will of Frederick H. Wickett is a part of the record in this case. That part of the will which creates a trust in favor óf Dorothea W. Huszagh is clear and unarnbiguous and shows that the father created a trust in favor of his daughter, Dorothea, wholly out of assets of his own estate.

During the trial of the present case, the court filed a memoranda opinion which is incorporated in the record of the case. It is as follows: “It is apparent on the face of the decree entered in the original suit, — in fact, there can be no other conclusion, — that said decree erroneously, as a matter of law, subjected to sale a trust estate that was specifically protected from any such sale by the very terms of the statute on which the proceeding itself was based. Without question it is apparent on the face of the decree that in entering such decree this court erroneously misapplied the law applicable to the admitted and undisputed facts.

“While not necessary or material to this decision, we cannot refrain from saying, and believe we should so advise the attorneys, that the statute (sec. 49, ch. 22) is so specific and plain in its terms that as a conclusion of law it is difficult to understand how this court could have intelligently or consistently entered such final decree, or to understand how the attorney for the plaintiff could have consistently asked for or obtained the entry of any such decree, or to understand how, considering the large amount of money involved, the attorneys for the defendants could have consistently permitted any such decree to stand without having the same reviewed by appeal or otherwise, without even having filed a certificate of evidence, if there was in fact any evidence.

“As a matter of fact (although perhaps not apparent on the record) it is apparent that this court was imposed upon by not being advised of the law. The court believes it now has the power to and should correct the error.”

From the pleadings in the creditor’s bill suit, the findings of fact by the court in the decree, the facts stated by the defendants in their motion to strike and dismiss the suit in the present case, the answers filed by Cardwell and Mrs. Huszagh, and the memoranda opinion of the chancellor, it is clear that any presumption that the court heard evidence concerning Dorothea W. Huszagh’s contribution to the trust in question, or that the court found that she had so contributed, is overcome. We determine and find that no such evidence was heard.

To meet this contention of Hummel, the judgment creditor, Cardwell, contends that the court did have jurisdiction to order the sale of Dorothea’s interest in the trust, and such order, although it may be erroneous, is not subject to review, by a bill of review; also, that if it be decided that the court did not have jurisdiction to enter the decree of sale, that there was an equitable assignment by Dorothea W. Huszagh of her interest in the trust to Cardwell; further, that Dorothea W. Huszagh and her trustee in bankruptcy are estopped to urge the question of jurisdiction, of the circuit court to enter the decree of sale.

From an examination of the evidence as abstracted, we cannot agree with the contention of the appellee that there was an equitable assignment of her interest in the trust fund to Cardwell, or that the trustee in bankruptcy is estopped from questioning the jurisdiction of the circuit court to enter the decree of sale in the creditor’s bill.

It has been frequently stated that where a court has once acquired jurisdiction 'of the parties and the subject-matter of the suit, its judgment or decree, however erroneous, can be attacked only on appeal, or writ of error. This, no doubt, is a correct statement of the law, but it is subject to a well known exception, vis; that the court must have jurisdiction and authority to render such decree or judgment. In the case of McInness v. Wilson Printing Co., 258 Ill. App. 161, this court had occasion to pass upon the question whether a decision of the industrial commission in granting a minor compensation, when the minor was employed in violation of the Child Labor Law, conld be attacked in a collateral proceeding. This court speaking throug’h Mr. Justice Jones, on page 167 of the opinion, uses this language: “It is well settled that a void judgment may be collaterally impeached in another proceeding by anyone with whose rights or interests it conflicts. The statement has been frequently made that where a court has jurisdiction of the parties and the subject-matter, its decree, however erroneous, can only be attacked on appeal or error; but the rule is subject to an exception equally well established, — that a decree may be void because the court exceeded its jurisdiction. Courts are .limited in the extent and character of their judgments, and if they transcend their lawful powers their judgments and decrees are void and may be collaterally impeached wherever rights claimed under them are brought in question. The doctrine that where a court has once acquired jurisdiction it has a right to decide every question which arises in the cause, and its judgment or decree cannot be collaterally assailed, is only correct where the court proceeds according to established modes governing the class to which the case belongs, and does not transcend, in the extent and character of its judgment or decree, the law or statute which is applied to it. One of the essentials of a valid judgment is that the court have jurisdiction to render that particular judgment. (Armstrong v. Obucino, 300 Ill. 140.) The proceedings of the industrial commission partake of the nature of judicial proceedings (Nega v. Chicago Rys. Co., 317 Ill. 482), and the same rules of law are applicable to their awards as are applied to judgments and decrees of courts.” The Armstrong v. Obucino case, supra, has been cited with approval numerous times, both by ■our Appellate and the Supreme Court.

Armstrong v. Obucino, supra, is reviewed in the case of Wood v. First Nat. Bank of Woodlawn, 383 Ill. 515, and it is there stated: “The Armstrong case was an action under the Mechanic’s Lien Act to declare a lien in favor of the plaintiff for material which had been used in the improvement of defendant’s property pursuant to a contract. The decree fixed the amount due and directed the master in chancery to sell if the same was not paid. The sale was to be made subject to redemption and the decree set forth the details as to the sale and right of redemption according to the statute as it existed prior to July 1, 1917. The act under which the sale was directed had been amended in 1917 and the decree directed a sale contrary to the provisions of such amendment. It was held that the sale and all the proceedings following it were void, and this was necessarily so for the reason that the jurisdiction of the court to direct a sale and prescribe its terms was provided by statute and the court had no jurisdiction to enter a decree which transcended the statutory provisions.”

In Hubbell v. Canady, 58 Ill. 425, the right of homestead was involved which had not been released according to statute, and had been sold under a decree of court. The judgment was never appealed from, and a bill in equity was filed to set aside the sale. The court held that the former judgment and sale were void and could be questioned, either in a direct, or collateral attack, as the court exceeded its jurisdiction by rendering such a decree of sale.

In the case of Wiggins v. Chance, 54 Ill. 175, it was held: Where premises occupied as a homestead are of value not exceeding one thousand dollars, they are not subject to levy and sale under execution against the owner, and should the premises thus situated be sold under such process, and there being no redemption, and a sheriff’s deed made to the purchaser, no title will pass thereby, and the sale would be void. To the same effect is Van Winkle v. Weston, 276 Ill. App. 66; Klosowski v. Klosowski, 266 Ill. 360; Sheahan v. Madigan, 275 Ill. 372; Voss v. Rezgis, 343 Ill. 451; Holterman v. Poynter, 361 Ill. 617; Imhoff v. Lipe, 162 Ill. 282; Binns v. La Forge, 191 Ill. 598. There is a clear statement of the law in Thayer v. Village of Downers Grove, 369 Ill. 334 to-wit: “It is the rule, as frequently stated by this court, that a judgment or order of confirmation of an assessment cannot be set aside after the term at which it is rendered, nor after the expiration of thirty days following the entry thereof. (Village of Dolton v. Dolton Estate, 331 Ill. 88; Noonan v. Thompson, 231 id. 588; McChesney v. City of Chicago, 161 id. 110.) There are two exceptions, however, to this rule; one is where the court was without jurisdiction to render the judgment entered, and the other is where the judgment was obtained by fraud. (Village of Dolton v. Dolton Estate, supra.) Where the court entering the judgment has exceeded its jurisdiction and such judgment or decree transcends the statute conferring jurisdiction on the court, such judgment or decree is void and may be collaterally impeached or set aside on motion after the time for review by appeal has expired. (Gray v. Black Co., 338 Ill. 488; City of Belvidere v. Iles, 330 id. 31; People v. Brewer, 328 id. 472; Armstrong v. Obucino, 300 id. 140.) It is a rule well established that a void judgment or order may be vacated at any time and the doctrines of laches and estoppel do not apply. Jurisdiction in a particular ease is not only the power of the court to hear and determine it, but also the power to render the particular judgment entered, and every act of the court beyond its jurisdiction is void. People v. Shurtleff, 355 Ill. 210; People v. Circuit Court of Washington County, 347 id. 34; People v. Siman, 284 id. 28; Ex Parte Reed, 100 U. S. 13, 25 L. ed. 538.”

In the case of Binns v. La Forge, 191 Ill. 598, the court in deciding that a trust fund, created similar to Mrs. Huszagh’s cannot be reached by a creditor’s bill, stated that when such a trust in good faith, has been created, or the fund so held in trust proceeded from some person, other than the defendant himself, is expressly excepted from the property which may be reached by a creditor’s bill. The trust fund in this case having proceeded from a person other than Dorothea W. Huszagh falls within the law and spirit of the statute, and is protected. The trust thus created rests in a large part on the ground that the creditor is not defrauded, and therefore has no cause of complaint, because the owner of the property, in the free exercise of his will so disposed of it, that the object of his bounty, who has parted with nothing in return, has sufficient income to provide for her support during life. As to whether the trustee in bankruptcy is entitled to the trust fund, we express no opinion, as that is a matter to be determined by the bankruptcy court.

It is our conclusion that the' trial court did not have jurisdiction or authority to render a decree for the sale of Dorothea W. Huszagh’s trust fund, which was created for her benefit, by her father’s will, and that said decree is null and void, and that James R. Card-well took nothing at the sale of the same. The trustee in bankruptcy has a right to challenge the validity of the sale of the trust estate.

That part of the decree which dismissed the counterclaim of Dorothea W. Huszagh is affirmed. The decree dismissing the petition for a bill of review is reversed and the cause remanded to the circuit court of Lake county, with directions to vacate and set aside its decree of sale entered November 17, 1939, and also the decree of December 15, 1939, which approved the report of sale, and to restore Dorothea W. Huszagh to her former status and condition under her father’s will, as though the former decrees had not been rendered.

Affirmed in part, reversed in part with directions.


author: Mr. Presiding Justice Dove

text:
    Joseph Soucie for use of Donald Ziems, Minor, Appellee, v. Illinois Agricultural Mutual Insurance Company, Appellant.
    Gen. No. 9,953.

      Opinion filed July 20, 1944.
    Burke & Schenk, of Joliet, for appellant.
    Joseph Barbera, of Chicago, for appellee.
   Mr. Presiding Justice Dove

delivered the opinion of the court.

In August 1940 appellant issued an automobile casualty insurance policy to Florence C. Soueie, covering liability of $5,000 to each person and total liability of $10,000 for one accident. Donald Ziems, a minor, recovered a judgment for $5,000 against Joseph Soueie, husband of the insured, on account of injuries received in an automobile accident, at about 4:30 o’clock, on the afternoon of August 8, 1941, in which Joseph Soueie was driving the insured’s automobile with her consent. This is an appeal from a judgment of the circuit court of Will county against appellant for $5,000 in a garnishment proceeding which seeks to reach the proceeds of the insurance policy. Written interrogatories and answers thereto were filed, and the cause was heard by the court without a jury. The questions presented are whether the policy had lapsed for nonpayment of premium on or before it was due, and whether such lapse, if any, was waived by subsequent conduct of appellant.

The insurance policy is dated August 8, 1940, and provides for insurance “commencing at 12:01 o’clock a. m., Central Standard Time, on the date herein specitied, and expiring at 12: 01 a. m. six (6) months from effective date unless renewed as provided herein.” The policy further provides:

“Effective date: This policy is effective at 12:01 a. m., Central Standard Time Aug. 8, 1940 and shall remain in force until cancelled or terminated as provided in the policy.
Cash Premium: The cash premium paid is for insurance expiring at 12:01 o ’clock a. m. six months from the effective date of policy. This policy shall remain in full force and effect for each successive six months period that the insured shall pay in advance such cash premium as may he required by the Board of Directors to renew the same. Should the Insured fail to pay in advance such cash premium as is required to renew the policy, the insurance shall no longer be in force and all cash premium paid by the Insured shall be considered as fully earned and the policy cancelled.
If the insured after failing to pay such cash premium in advance as is required by the Board of Directors to renew the policy, subsequently pays the same, such payment, if then accepted by the Company without payment of another policy fee, shall reinstate the policy and insurance for the balance of such six months’ period in which the payment is accepted, at the end of which period such premium shall be considered as fully earned, but the reinstatement of such policy and insurance and the acceptance of such payment shall not render the Company liable for any loss or damage occurring after the expiration of the six months’ period at the end of which such payment was due and prior to the acceptance of such payment by the Company.”

The policy fee, the initial premium, and the February 1941, premium were paid. It is not controverted that 30 days and 5 days, respectively, before August 8, 1941, the insured received by mail premium notices of the premium for the third six months period, each containing the statement: “Failure to pay your premium on or before the date due automatically cancels your policy.” The 5 days notice also contained, on the back thereof, the following: “Any Semi-Annual Renewal Premium paid by the Insured after the same is due, when accepted by the Company is accepted with the understanding on the part of both Insured and Company that the Company is not liable under any of the provisions of the insurance policy for accidents occurring during the period intervening between the time such Renewal Premium is due, as provided in policy, and the time when such delinquent Renewal Premium is received and accepted by the Company.”

Attached to the 30 days notice was a check form for remittance of the premium, for $13.40, payable to appellant, to be dated, signed, and filled in with the name and location of the bank on which drawn. The form bore the policy number, the figures “8/8” and the words: “In payment of renewal premium.” Appellant received the check by mail, at its office in the City of Chicago, on August 11, 1941. The check is dated “Aug. 7th, 1941,” is signed “Joe Soueie,” and was drawn on the First State Bank of Beecher, Illinois. The premium receipt returned to the insured states, on the back thereof, “Payment of this premium receipted for, if made on or before the date due as shown on reverse side keeps your policy in continuous effect, and if made after that date reinstates the policy on the date paid as provided in the policy.” On the front side of the receipt are the following words and figures: “Date Paid 8/11/41 Amount $13.40 Date Due 8/8/41.” The receipt for the premium paid in February 1941 is similar in form.

The insured and her husband testified that on August 7,1941 she called his attention to the insurance premium, and that at supper time on that day he signed the check and placed it in an envelope directed to appellant at Chicago, Illinois. They and Mr. and Mrs. Emil Boicken, their friends for many years, testified that about 8 o’clock that evening Mr. and Mrs. Boicken came to the Soucie home to see about combining Mr; Soucie’s oats; that Mr. Soucie said he had to go to Beecher to mail a letter to appellant and that Mrs. Boicken said she would mail it at Crete as they went home, and took the letter with her when they left. Mr. and Mrs. Boicken also testified that'they stopped at Crete and that Mrs. Boicken mailed the letter at the post office. It 'also appears from the testimony of these witnesses that the Boickens visited the Soucies on the succeeding evening, August 8, at about 8 o’clock, and there learned of the accident to Donald Ziems.

On August 12, four days after the accident, Mr. and Mrs. Boicken each signed a statement at their home, which they testified was prepared by a stranger to them, and was read to them by him before they signed it, after which, and not before, he told them he was from the appellant insurance company. It appears from the testimony of Mr. Soucie that he had previously told the representative of the insurance- company that he had given the letter containing the premium check to some friends on August 7 to mail at Crete. The statement signed by the Boickens recites that they were at the Soucie farm on Wednesday evening August 6 (“6” written over “7”), and Friday evening August 8, and that they did not know for sure whether they were over there on Thursday, August 7, or not; that the Soucies did not give them an envelope or anything to mail on either of the evenings; that there was no mention made that they take any letters and mail them for the Soucies; and that there was nothing said about any insurance premium. More than a year thereafter, in the latter part of 1942, prior to the trial, the statement was read to them, recital by recital, in the office of appellant’s counsel. They reaffirmed each of the recitals in the statement, and upon being asked if there was anything further they wanted to add or anything to say about it they said there was not, and declined to sign another statement under oath. On the trial they testified that the statement signed by them was not true, and that they signed it because they did not want to become involved. It appears from their testimony that when they signed the statement, they had not then seen Mr. or Mrs. Soueie since the evening of August 8, and that from the time appellant’s agent came to their home until after the statement was signed, they did not know that he represented an insurance company, and that they did not confer together about any possibility of their becoming involved. Under these circumstances, it is somewhat difficult to see how, at that time, they could both have anticipated that signing the statement would keep them from becoming involved.

The envelope in which the check was mailed bears the canceling stamp of the Crete post office, post marked: “Crete, Ill. Aug. 9, 1941, (hour illegible), a. m.” which was Saturday, and it was delivered to appellant in Chicago on Monday, August 11. Crete is south of Chicago. The postmistress at Crete testified that there are four trains leaving Crete daily with outbound mail; that the 6:30 a. m. train and the 12:30 p. m. train are north bound, directly to Chicago; that the 9:30 a. m. train and the 2: 30 p. m. train are south bound, and mail on them for Chicago is picked up at Momence, Illinois, by a north bound train and taken to Chicago; that the post office opens at 7 a. m. and closes at 5:30 p. m.; that a letter mailed at the post office on any day, after 2:30 p. m. and before the closing hour of 5:30 p. m. would be post marked 6:30 a. m. the following day; that a letter mailed after 5:30 p. m. on August 7 would be post marked 9:30 a. m. August 8; that it would leave Crete at 9: 30 a. m. on the south bound train and reach Chicago on the morning of August 9; that a letter posted after 5:30 p. m. on August 8 would be post marked 9:30 a. m. August 9 and would leave Crete on the 9:30 a. m. south bound train, reaching Chicago on the morning of August 10, and that when the 10th of the month fell on Sunday, delivery could not be made in Chicago until the 11th. The testimony of appellees witnesses shows that the letter was mailed after 5:30 p. m. coupled with the testimony of the postmistress, this shows that the illegible hour of mailing in the post mark was “9:30,” which is not questioned by appellee.

Taking into consideration all the testimony, the conclusion is inescapable that the letter containing the check was mailed at the post office in Crete after 5: 30 p. m. on August 8 after the accident, regardless of who mailed it.

Appellee’s claim that the policy was in force at the time of the accident, is based on the well known and often repeated general rule expressed in Ewing v. Bailey, 5 Ill. 420, 421, where the court said in the opinion: “The proper mode of computing time, where an act is to be performed within a particular period from or after a specified day, is to exclude the day named, and include the day on which the act is to be done. For example: a promissory note executed on the first day of the month, and payable in twenty days from date, falls due on the twenty-first of the month; in reckoning the time, the day of the date is excluded, and the day on which the maker is required to pay is included.”

Nobody could seriously contend that the general rule invoked by appellee is applicable where the instrument sued on provides, expressly, or by necessary implication, that the first day is to he included. This doctrine has been applied to the computation of time under particular statutes, notwithstanding the general statutory provision (Ill. Rev. Stat. 1943, ch. 131, par. 1, subd; 11 [Jones Ill. Stats. Ann. 27.13, subd. 11]) similar to the rule above quoted. (People ex rel. Blachly v. Coffin, 279 Ill. 401, 409). The parties to an insurance contract are at liberty to make any stipulations they choose which are not against public policy or which do not contravene some positive rule of law. (Blume v. Pittsburgh Life & Trust Co., 183 Ill. App. 295.) In the absence of fraud or mistake, such contracts are binding on both, parties (Rose v. Mutual Life Ins. Co. of New York, 240 Ill. 45, 53-54), and it is the duty of the courts to construe and enforce them as made. (Blume v. Pittsburgh Life & Trust Co., 263 Ill. 160, 164.) In the. case at bar, the effective date of the policy is not merely August 8, 1940, but by its express provisions, is 12:01 a. m. of that day, which necessarily and manifestly makes the policy include the whole of that day except the first minute thereof. If August 8, 1940, be excluded in the computation of the first six months period, it would necessarily follow that the insured was not covered for the first day of her policy, which would contravene its express provisions. Cases under the general rule, cited by appellee, where an act was to be performed within a certain period from and after a specified day, without there being anything in the instrument to indicate any particular hour in the day as the beginning of the period, have no application here. If appellee’s theory be followed out, the end of the first six months, would be February 9. Then, by excluding the first day of each renewal period, the second six months period would expire August 10, the third period would expire February 11, the fourth period would expire August 12, and so on, which leads to an absurdity. On the other hand, by following the express provisions of the policy, the insured had a full six months coverage beginning at 12:01 a. m. on the 8th of the month at each six months anniversary of the effective date of the policy, for which the premium had been paid. Our conclusion is that the policy lapsed, at 12:01 a. m. August 8, 1941, and was not in force at the time of the accident. The payment of the premium after it was delinquent, and the acceptance thereof, merely reinstated the policy according to its- terms. (Froehler v. North American Life Ins. Co. of Chicago, 374 Ill. 17, 23.)

The fact that appellant accepted the premium on August 11, and noted August 8,1941 on its record in its office as the “Effective Date,” does not constitute a waiver of the lapse. Such an entry was obviously erroneous. It is not shown or claimed that the insured had any knowledge of the fact that appellant carried the effective date on its record as August 8, or that she ever knew of previous similar entries when payment was made after the 8th of the month. The policy, and the 5 days notice sent to her, each contained the provisions above quoted as to how delinquent premiums would be applied when accepted, and that accidents occurring between the due date and the acceptance of such delinquent premiums, were not covered. The insured testified that she had the policy and was conversant with its provisions prior to August 8, 1941, and had the terms of the contract in mind when she spoke to her husband with reference to the premium. There is no ambiguity in the language of the policy as to the effective date, or as to the effect of the payment and acceptance of delinquent premiums. The insured, being conversant with the terms of the policy, and being again warned thereof by the 5 days premium notice, neither she, nor appellee, is in any position to claim there was any waiver by appellant’s acceptance of the delinquent premium on August 11, or by any entries on its records of which she had no knowledge. She could not have been misled by the language on the February 1941 receipt, as showing the due date of premiums as the 8th of the month, because, according to her testimony the check was mailed on August 7; and furthermore, if she had believed she had all of the 8th in which to remit, the 5 days premium notice expressly informed her to the contrary. None of these things could have lulled her into a false sense of security that a lapse would not be enforced by appellant.

When a policy of insurance contains no provision as to how delinquent premiums are to be applied when paid, and no limitation or exception as to liability under such circumstances, the general rule is' that repeated acceptances of premiums after their due date estops an insurer from taking advantage of a failure to pay a subsequent premium on or before the due date, because such conduct tends to induce the insured to believe that a forfeiture on that account will not be claimed. (Baxter v. Metropolitan Life Ins. Co., 318 Ill. 369, 373.) But, where the policy, as in this case, specifically, and without any ambiguity, provides the exact manner in which delinquent premiums will be applied when paid, without any liability on the part of the insurer during the delinquency, and the insured knows and is also notified of such provisions before the due date of the premium, it is manifest that there can be no ground to claim that acceptance of delinquent premiums after the due date is a waiver of any of the policy provisions.

Because of *our conclusions that the policy lapsed at 12:01 a. m. August 8, 1941, prior to the accident, and that there was no waiver of the lapse by appellant, it is unnecessary to consider whether posting the letter constituted payment of the premium at the time of posting. The judgment of the circuit court is reversed and the cause is remanded.

Reversed and remanded.


text:
    People of State of Illinois, Appellee, v. D. P. Cutler et al., Defendants. Frances S. Keye, Appellant.
    Gen. No. 9,975.
    Opinion filed July 20, 1944.
    Charles H. Davis, of Rockford, for defendant-appellant.
    Max A. Weston, State’s Attorney, and William H. Gates, Assistant State’s Attorney, for appellee; City of Rockford, intervening petitioner and Charles S. Thomas, of Rockford, corporation counsel.
   Mr. Justice Wolfe

delivered the opinion of the court.

A petition was filed in the circuit court of Winnebago county, Illinois, to foreclose a lien for general taxes and special assessments against 12 vacant lots situated in the City of Rockford, in said county. A decree of sale of said land was entered by the court, and the same was duly advertised, and the sale was regularly held, pursuant to said decree. A decree confirming the report of sale was entered December 31,1943. The City of Rockford and the People of the State of Illinois filed an amended petition in which it prayed that an order be entered setting aside the confirmation of the sale, and that a bid of $150 for each of the 12 lots be accepted, and approved by the court.

Francis S. Keye, the feeholder of said lots, filed his answer to said petition. Upon a hearing the court set aside its former order of confirmation of the sale and ordered a resale of the lots. It is from this order that Francis S. Keye has perfected an appeal to this court.

The amended petition set forth the former pleadings and orders in the foreclosure sale of the lots. It alleges that Mr. A. Gunnard Anderson bid $600 for the same, and that he has now agreed to pay $1,200 for the same lots; that he told Elmer O. Strand, the city clerk, that he would pay the sum of $150 per lot; that Elmer O. Strand didn’t know that a sale had been made for the amount of $600, or of the order confirming the sale, until after the decree was entered; that if the order is not set aside, the various taxing bodies of the county will suffer a loss; that A. Gunnard Anderson is ready, willing and able and does now offer the same sum of money ($1,200) for said premises.

The answer of Francis S. Keye admits the sale of the lots, but states he has no information relative to what A. Gunnard Anderson will bid, or may have offered to bid before the sale of the lots. The answer charges that any information or knowledge that Elmer O. Strand, as city clerk, had relative to the sale of these lots, was the knowledge of the City of Rockford, and that the City of Rockford should be bound by the order confirming the sale. The answer further states that said sale was duly advertised and regularly held pursuant to the decree of the court, and was struck off to the highest and best bidder who was A. Gunnard Anderson; that he is one, and the same person who is alleged to be now offering to pay $1,200 therefor; that the sale was duly approved by the court, and that there was no fraud, or irregularity in connection with said sale. There was no reply filed to the answer.

Elmer 0. Strand was the only witness called at the trial of this case. He testified that A. Gunnard Anderson verbally agreed to pay $150 for each of the lots in question. He further stated that this was under the condition that all of the lots would be sold, but that only 12 were offered for sale in this proceeding. The record is absolutely bare of any evidence to support the claim in the petition, “that A. Gunnard Anderson was ready, willing and able, and does now offer to pay the said sum of money, ($1,200) for said premises, as above described,” or that there is any prospective bidder that will bid as much at a future sale as A. Gunnard Anderson bid at the first sale, which according to the report filed, was $780 instead of $600.

After the case was submitted to this court and agendaed, the appellees filed a request to amend the abstract by showing a part of Elmer O. Strand’s testimony as follows: “Q. Is there $600 now on deposit in the County Treasurer’s Office? A. I have been informed to that effect.” The request was denied, because it did not show any facts relative to any deposit that A. Gunnard Anderson made with the county treasurer.

In the case of the People v. Anderson, 380 Ill. 158, there was a proceeding to foreclose a tax lien, and lots were sold at a very small percentage of what the actual value of the lots were shown to be. The bondholder representing the special assessments against the land filed objections to the court’s approval of the sale. The objections were overruled, and the court entered an order approving the sale. An appeal was perfected to the Supreme Court. It is stated in the opinion as follows: “Admittedly, at a sale of this sort the full market price cannot be procured unless some one really wants the land, but it is insisted the facts shown by the record established that the prices at which the property was sold are so grossly inadequate "as to shock the conscience, and that where the property is sold at such a low price, this fact alone is sufficient to require the chancellor to refuse to approve the sale.

“The primary purpose of tax foreclosure proceedings is to clear up hopeless tax delinquency and to put the property again on a tax-paying basis. The statute is remedial. (People v. Straus, 355 Ill. 640.) It was never intended that the sale be required to be for the full amount of the lien foreclosed. (French v. Toman, 375 Ill. 389.) Where a foreclosure sale is made at public auction for cash to the highest bidder and in the manner prescribed by the statute, the presumption obtains that the property has produced its entire value. (Ogle v. Koerner, 140 Ill. 170.) Mere inadequacy of price is no reason for upsetting a judicial sale unless there are other irregularities. (Straus v. Anderson, 366 Ill. 426; Magnes v. Tobias, 337 id. 605; Block v. Hooper, 318 id. 182.) The rule that judicial sales will not be set aside because of inadequacy of price in the absence of proof of fraud or some irregularity in the sale has been applied by this court to tax foreclosure sales on the principle that stability should be given judicial sales. The requirements of the statute as to publication having been met in this instance, there being no evidence in the record of any fraud in conducting the sale herein or of any other irregularity in the sale, and the defendants having produced no evidence as to what price might be bid should a second sale be held or that any greater proceeds would be realized at such sale, it cannot be said that the chancellor abused his discretion in approving the sale herein.”

It is contended by the appellee, that the appellant, the owner of the property who was primarily liable for the taxes, had no right to question whether or not this order confirming the sale, should be vacated, and cites the case of the People v. Straus, 355 Ill. 640. The questions involved in thes present case are' entirely different from those in the Straus case. In the Straus case the question is whether or not the People had the right to purchase the lots at a foreclosure sale, and whether the attorneys, not state’s attorney, were entitled to represent the People in the tax foreclosure suits. We find no merit in this contention of the appellee.

It is conceded that the foreclosure sale was held in strict conformity with the decree of the circuit court. Everything was done openly and above board. The only reason why they ask that the decree confirming the sale be vacated, is the inadequacy of the sale price. If the property were sold at a resale for $1,200, there would be only $420 more than the original bid. As stated in the case of People v. Anderson, supra, a tax foreclosure sale should not be disturbed for mere inadequacy of price.

The decree of the circuit court of Winnebago county is hereby reversed and the case remanded.

Reversed and remanded.