author: Gaknett, J.

text:
    Charles J. Beattie v. The People ex rel. etc.
    - Contempt—Attorney— Introduction of False Testimony — Divorce— Bogus Decree—Limitations—Sec. A, Div. A, and Secs. 5, 6, 7 and 20, Div. 2, Chap. 38, B. S.—Sec. 225, Chap. 38, B. S.—Felony—Misdemeanor.

    1. Acts in disrespect of a court or its process which obstruct the administration of justice are in the nature of criminal offenses, and in such cases the prosecutions must be in the name of the people.
    2. An attorney who procures false evidence, knowing it to be false, with the intention of deceiving the court, is not only guilty of contempt of court, but of subornation of perjury, a felony, as well.
    3. Upon motion to commit for contempt an attorney adjpdged to be guilty of the presentation in a given case of testimony known by him to be false, and in issuing a fictitious copy of a decree for a divorce therein, this court holds that the prosecution of the charge of contempt was barred by the statute of limitations of one year and six months under Sec. 4, Div. 4, Cuq?. 38, R. S.
    [Opinion filed December 2, 1889.]
    Irr eeeob to the Superior Court of Cook County; the Hon. Egbeet Jamtesoe, Judge, presiding.

      Messrs. W. P. Black and O. S. Beattie, for plaintiff in error.
    The alleged contempt is within the bar of the statutes of limitations. This is a criminal case and the proceedings are criminal proceedings. Clark v. People, Breese, 266; Stuart v. People, 3 Scam. 295; Haines v. People, 97 Ill. 161; Hill v. Crandall, 50 Ill. 70 ; People v. Neil, 74 Ill. 68.
    Being a criminal offense it is either a felony or a misdemeanor. And as the punishment may be less than that provided for felony it is a misdemeanor. This subject is fully discussed and settled in Lamkin v. People, 94 Ill. 501.
    Any number of pages might be written upon the application of the eighieen months limitation to this misdemeanor, and yet not be so satisfactory as this Lamkin case. And the only reason ever heretofore assigned, so far as counsel are advised, why the bar of the statute did not reach this kind of cases, is the suggestion of the judge below, in passing upon this case as found in the Law Bulletin of March 29,1889, from which we quote:
    “ The scope of this statute is not as broad as counsel seems to regard it. It does not limit to one year and six months the commencement of ‘ all criminal proceedings of every kind below the grade of felony it simply limits ‘ all prosecutions by indictment or otherwise, for misdemeanors.’
    “ The question then is, is this offense a misdemeanor as defined by our statute ? If it is, then the proceedings must be quashed. The statute says: ‘ A felony is an offense punishable with death or by imprisonment in the penitentiary. Every other offense is a misdemeanor. Where the performance of any act is prohibited by statute, and no penalty for the violation of such statute is imposed, the doing of such act is a misdemeanor, and may be punished by fine,’ etc.
    “ It will be seen from this that the Legislature has defined a misdemeanor to be every offense lower than a felony prohibited by statute; and therefore the statute limiting prosecutions for misdemeanors to one year and six months applies only to such acts, lower than felonies, as are prohibited by statute.

      “ Misdemeanors at common law are divided into two classes: first, such as are penal at common law, and second, such as are penal by statute. It is the latter class of misdemeanors which our statute defines, and it is to that class only the limitation applies. The misconduct charged in these proceedings does not come within the category of acts prohibited, or penal by statute, and therefore is not affected by the statute limiting prosecutions for misdemeanors.
    “ The principle here contended for is, I think, recognized in the case of The People ex rel. Ebenezer Noyes v. Francis A. Allison, 68 Ill. 151. That was an information filed in the Supreme Court for a rule upon Allison to show cause why his name should not be stricken from the roll of attorneys. In discharging the rule the court says: ‘ Nearly seven years have elapsed since the alleged misconduct. No explanation is given for the delay, and the law will not favor prosecutions of this character after the lapse of such a great length of time. * * "" The parties whose rights are injuriously affected by conduct of the character alleged, ought to exhibit his information within a reasonable time. * * * In analogy to our statutes which bar prosecutions for misdemeanors, there ought to be a limit as to the time in which information could be filed.’ ”
    It seems then, according to the opinion of the judge below, that a certain class of misdemeanors, to wit, “those not made so by statute,” are not within the bar of any statute of limitations.
    In defining misdemeanors our statute does not recognize two classes. “Every other offense (than felony) is c a misdemeanor,’ ” whether made so by common law or by statute, and whether the punishment is provided by common law or by statute. And so that no question may arise, a class of cases made offenses by statute, and to which no punishment had been affixed, are declared to be misdemeanors.
    The case of People ex rel. Noyes v. Allison, 68 Ill. 151, cited by the judge below, and the reasoning based by him thereon, has no application to the question here. “Striking an attorney’s name from the roll is not viewed as punishment for contempt.” Rapalje on Cont., Sec. 15, and cases cited.

      Mr. John A. Ross, for defendant in error.
    It is contended by counsel for Beattie that the statute of limitations relating to misdemeanors includes contempt pro-, ceedings. In other words, they say: Admitting that Beattie is an officer of the court; admitting that as such officer Beattie did manufacture testimony and offer it upon the trial of the Gordon case, and thereby prostitute the court for gain; admitting that he did knowingly give to the complainant in that case a paper purporting to be an absolute decree of divorce, knowing at the same time that none had been granted, and did thereby commit an atrocious fraud upon his client; admitting that it did not come to the knowledge of the court before which, and against which, these contemptible frauds were committed, until more than eighteen months after they were committed, and admitting that the court did move at once upon receiving proper information that they had been committed; admitting all this, they say, what of it? This occurred more than eighteen months ago; this is barred; you are powerless to vindicate the dignity of the court; powerless to punish a trusted officer of the court for basely imposing upon it and upon a client. It is true he did all these things, but he covered his tracks so well that you did not find it out until more than eighteen months after it was committed, and now we would be pleased to know what you are going to do about it?
    Criminal contempts are defined to be direct, such as are committed in the presence of the court while sitting judicially; and constructive, such as, though not committed in the presence of the court, yet tend to obstruct, embarrass, or prevent the due administration of justice therein. People v. Wilson, 64 Ill. 195; Whittem v. State, 36 Ind. 196.
    And superior courts of record have always exercised the power by contempt to punish their officers for negligent, corrupt or oppressive conduct, whereby injury has been wrought upon third parties, and whereby the court itself and the administration of justice have been brought into disgrace. Cartwright’s Case, 114 Mass. 230; In re Pitman, 1 Curtis, 186; Yates v. Lansing, 9 Johns. 395.

      Criminal contempts are offenses against the State, and are so because they are offenses against the administration of justice; and the act which so constitutes an offense against the State, may or may not constitute a crime against the State; or, restated, the act which constitutes a contempt, may be a felony, as subornation of perjury by an attorney (State v. Holding, 1 McCord (S. C.) 379); may be a misdemeanor, as an assault by an attorney in a court room (Middlebrook v. State, 43 Conn. 257); or may be neither the one nor the other, as for a Jew to refuse to be sworn on Saturday (Stansbury v. Marks, 2 Dallas (Pa.), 213; and a court can rightfully punish it on summary conviction, whether the same act be punishable as a crime on indictment or not; a conviction on indictment will not purge the contempt, nor will a conviction fora contempt be a bar to an indictment; the offense may be double; and so are the remedy and the punishment. Middlebrook v. State, 43 Conn. 257.
    The power of the courts in this regard being founded on the principle of self-preservation, it does not at all deprive them of it that the law has provided some other mode for punishing the offender; it is quite immaterial that the offense is indictable. Rex v. Lord Ossulston. 2 Strange, 1107; Sub. Nom. King v. Pierson, Andrews, 310.
    And the right of punishing contempts by summary conviction is inherent in all superior courts of justice, and is essential for their protection and existence. It is a branch of the common Iuav adopted and sanctioned in this State. The discretion involved in this power is in a great measure arbitrary and undefinable; and yet the experience of apes has demonstrated that it is perfectly compatible with civil liberty, and auxiliary to the purest mode of justice, and the known existence of such a power prevents, in a thousand instances, the necessity of executing it. Cartwright’s Case, 114 Mass. 230; Middlebrook v. State, 43 Conn. 257; People v. Wilson, 64 Ill. 195.
    What are superior courts within the meaning of this rule is an important subject of inquiry, and it may be stated at the outset that it is not at all necessary to the inherent power of the court to fine and imprison for criminal contempt, that it should have criminal jurisdiction. The Court of Common Pleas in England had no criminal jurisdiction, but its inherent power in this regard was never questioned. So the Court of Common Pleas of Connecticut has no criminal jurisdiction, but its power in this regard, when questioned, was distinctly affirmed. Middlebrook v. State, 43 Conn. 257.
    The power to punish for contempt being inherent in courts of justice, and necessary to enable them to preserve their dignity and enforce their process, and so attain the ends of their creation, the power of the Legislature to regulate the same may well be doubted. Arnold v. Commonwealth, 80 Ky. 300; Ex parte Robinson, 19 Wal. 510; Re Wolley, 11 Bush (Ky.), 95.
    If the court is created by the constitution, and the Superior Court of Cook County is a constitutional court, it is clear upon principle that the Legislature has no such power unless it is conferred upon it by the constitution, and it has been so decided. State v. Merrill, 16 Ark. 384.
    “In the absence of constitutional provision on the subject, the better opinion seems to be that legislative bodies have not the power to limit or regulate the inherent power of courts to punish for contempt. This power being necessary to the very existence of a court, as such, the Legislature has no right to take it away or hamper its free existence. This is no doubt true in the case of a court created by the constitution. Such a court can go beyond the provisions of the statute in order to preserve and enforce its constitutional powers, by treating as contempts acts which may clearly invade them.” Bapalje on Contempt, Sec. 111.
    “ If the court be created and its jurisdiction conferred by the constitution, then the power to punish for contempts in such court also exists by virtue of the constitution, and the Legislature can not deprive the court of such power.” State v. Frew, 24 West Va. 460. “ The power to punish for con-tempts is incidental to all courts of justice, independently of statutory provisions.” Clark v. People, Breese, 340. “ Courts possess the power to punish contempts independently of legislation, and this power is one the Legislature can neither destroy nor abridge.” Holman v. State (Ind.), 5 N. E. Rep. 556.
    “ The constitution has established the judiciary and made it a co-ordinate department of the State government, and necessarily incidental is the power to punish for contempts. This power is incidental to all courts of justice independently of statutory provisions.” People v. Wilson, 64 Ill. 225.
    “ It is conceded that a court has the inherent power to punish, by fine and imprisonment, for contempt; and, it might be added, the Legislature has no power to take from the court the power to protect itself from such flagrant contempts as are offered to the court in this particular case. To sanction the exercise of such legislative action would, in effect, defeat the administration of justice.” Arnold v. Commonwealth, 80 Ky. 300.
    “ The Legislature can not takdaway from a court any jurisdiction given to it by the constitution.” Burns v. Henderson, 20 Ill. 264.
    “ The statutory enumeration of acts constituting contempts can not be taken as the arbitrary measure of an inherent power of the court to punish for contempt.” Hughes v. People, 5 Col. 436.

      “ The Legislature has no power to abridge the jurisdiction of the Circuit Court.” Meyers v. People, 67 Ill. 509; Wilson v. People, 94 Ill. 426.
    “ Under the constitution there is no distinction between the Superior Court of Cook County and the Circuit Court of Cook County; both courts have the same jurisdiction and exercise the same powers.” Berkowitz v. Lester (Ill.), 11 N. E. Rep. 860.
    “ The Superior Court of Cook County has the same powers as the Circuit Court.” Jones v. Albee, 70 Ill. 34; Samuel v. Agnew, 80 Ill. 553.
    In a contempt of court there may be the element of contumacy, and all cases of contempt which contain this element are called criminal contempts, and their punishment, in consequence, is termed a criminal proceeding; but this is not, strictly speaking, accurate; as a contemnor is not entitled to many, if any, of the rights of trial guaranteed a criminal.
    1. A criminal proceeding can only be begun in a superior court by indictment or information. Neither is necessary in case of contempt.
    “ This (a criminal contempt) is not, strictly speaking, a criminal proceeding, for such a charge must either be presented by indictment or information.” Whitman v. State, 36 Ind. 203; Teller v. People, 7 Col. 45.
    2. In a criminal proceeding, the prisoner is entitled to a' trial by jury, a contemnor is not.
    “In a proceeding for contempt the party is not entitled to trial by jury.” Neil v. State, 9 Ark. 259.; Hughes v. People, 5 Col. 436.
    3. A contemnor is never entitled to a change of venue; a prisoner may be.

      “ Information against persons for contempt, are not within the meaning, nor of the character of information, in the 5th section of the act in relation to change of venue. Eev. Stat. 528. Informations, within the meaning of said act, are such as are punishable under the provisions of the criminal code,” etc. Crook v. People, 16 Ill. 535.
    4. It is very doubtful whether the executive has the power to pardon a contemnor; he certainly has to pardon a criminal. It has been held that he has that power, but as respectable an authority as Judge Story holds that he has not.
    I contend that the statute of limitations applicable to misdemeanors does not cover prosecutions for contempt; that statute applies only to prosecutions based upon indictment of a grand jury, informations filed ex officio by the state’s attorneys, and on appeals from justices of the peace, etc.
    In the statutes of 1845 (Sec. 5, p. 528) providing for changes of venue in criminal cases, the opening sentence is as follows: “ That when any defendant in any indictment or information in any court of this State,” etc.
    The statute then goes on and provides in what cases change of venue shall be allowed. In a case of contempt, the contemnor prayed a change of venue, and relied upon that statute in its support. The Supreme Court of this State held that the word information in that statute did not relate to con-tempts, and in the opinion used the following language:
    “ Informations against persons for contempts in disturbing the order of court in the presence or out of it, are not within the meaning nor in the character of informations, in the fifth section of the act in relation to change of venue. Rev. Statutes, 528. Informations within the meaning of said act, • are such as are punishable under the provisions of the criminal code upon presentment of the grand jury, informations filed ex-officio by the state’s attorneys, and appeals from justices of the peace,” etc. Crook et al. v. People, 16 Ill. 535.
    The opening sentence of the statute of limitations is: “ All prosecutions by indictment or otherwise for misdemeanors,” etc. I contend that the word “ otherwise ” as there used means information by the state’s attorney, appeals from j ustices, etc., and does not include informations for contempts. This position, in my judgment, is fully sustained by the Crook case.
    I have searched the books in vain for a contempt case in which the statute of limitations was interposed.
    The case which, in my judgment, is most analogous to this, is one for the disbarment of an attorney. In a recent case of that nature in California this defense was interposed, but was held bad. The court says: “As to the objection made that the offenses charged are barred by the statute of limitations, it appears that the acts complained of were committed some three years since. We do not understand that a charge of this kind can be barred by the statute of limitations, or that it should be under any circumstances. The fullest opportunity should be given to investigate the conduct of an attorney who is charged with a violation of his duties as such.
    “We are not prepared to say, as a matter of law upon this demurrer, that the accusation is barred either by the express terms of the statute of limitations or by analogy.” In re Lowenthal, 21 Pacific Reporter, 7.
    The same doctrine is virtually announced in The People, etc., v. Allison, 68 Ill. 151, the court holding that in a case of that nature the information should be filed within a reasonable time.
   Gaknett, J.

Charles J. Beattie, an attorney at law practicing in Chicago, was employed by Ada E. Gordon to procure a divorce for her from her husband, George B. Gordon. To that end he filed a bill for divorce in her name against her husband in the Superior Court of Cook County, on March 4, 1877, charging the defendant with cruelty, desertion and adultery. The husband, being a non-resident, was served by publication. The cause came to a hearing on May 7th of that year, the defendant having been defaulted for want of appearance. The deposition of James L. Watson, which was taken by Beattie before a notary public, was read on the hearing, and Mrs. Gordon testified orally in her own behalf. The judge before whom the case was tried was not satisfied with the evidence, and continued the hearing to the 27th of the same month. After the hearing on May 7th, and on the same day, Beattie delivered to Mrs. Gordon what purported to be a copy of a decree of divorce in the cause, and she, later in the same day, was married to one Wilson.

On May 27th Beattie again appeared in court and called B. J. Coffeen as a witness. Watson and Coffeen testified to the same acts of infidelity by the defendant, and upon their evidence a decree was entered the next day, May 28th, divorcing Ada E. from George B. Gordon on the ground of his adultery. At the February term, 1889, of the Superior Court, George B. Gordon filed a petition to vacate the decree, alleging that the testimony of Watson and Coffeen was untrue, and on March 7th he filed a second petition alleging that the charge of adultery against him was false, and that he believed that Beattie, without the knowledge of Mrs. Gordon, procured said witnesses to sustain the charges of the bill, knowing that they had no knowledge of adultery of the petitioner, and that on May 7, 1887, before any decree was entered, Beattie delivered to said Ada a paper purporting to be a true copy of decree entered in said cause, and praying that a rule might issue against Beattie to show cause why he should not be attached for contempt. A rule to show cause was entered, Beattie came in March 12th, denied the contempt, and moved for an order requiring the petitioner to file interrogatories, which was done. Beattie answered the interrogatories, and upon the issues formed, the court adjudged him guilty of contempt in the presentation of testimony which he knew to be false, and in issuing to Ada E. Gordon a fictitious copy of a decree for a divorce in the case, and sentenced him to imprisonment in the county jail for a year and to pay a fine of §500 and costs.

On the hearing of the motion to commit for contempt, appellant moved the court to dismiss the prosecution on the grounds that the same was barred by the statute of limitations of one year and six months, and that is the defense requiring consideration. The statute (Sec. 4, Div. 4, Chap. 38) is as fol lows: All prosecutions, by indictment or otherwise, for misdemeanor, or for any fine or forfeiture under any penal statute, shall be commenced within one year and six months from the time of committing the offense, or incurring the fine or forfeiture, except as otherwise ¡provided by law.” Sec. 5 of Div. 2, Chap. 38, describes a felony as “ an offense punishable with death, or by imprisonment in the penitentiary,” while by Sec. 6, “ Every other offense is a misdemeanor. Where the performance of an act is prohibited by any statute, and no penalty for the violation of such statute is imposed, the doing of such act is a misdemeanor, and may be punished by fine not exceeding §100, or imprisonment in the county jail not exceeding six months, or both, in the discretion of the court.” This is not the case of a civil contempt, in which the action of the court is for the benefit or advantage of another party to the proceeding, but appellant is charged with a criminal contempt in doing that which obstructs the administration of justice. See Rapalje on Contempts, Sec. 21.

The Supreme Court of this State has uniformly held that acts in disrespect of the court, or its process, which obstruct the administration of justice, are in the nature of criminal offenses. Stuart v. The People, 3 Scam. 395; Haines v. The People, 97 Ill. 161; The People v. Neill, 74 Ill. 68.

In this the Supreme Court of the United States fully agrees, having decided that a contempt of that kind is a specific criminal offense, and the imposition of a fine, therefore, a ‘judgment in a criminal case. New Orleans v. The Steamship Co., 20 Wal. 387.

The prosecution in such cases must be in the name of the people. The punishment is either by fine or imprisonment, or both. If the accused is acquitted, the people can neither have an appeal, nor maintain a writ of error (People v. Heill, supi'a), the reason given being that a proceeding for contempt in thwarting the process of the court was a prosecution in behalf of the people and in the nature of a criminal proceeding.

“Many acts are both contempts of court and indictable crimes. * * * The indictment and the proceeding for contempt are entirely distinct and neither will be a bar to the other.” 2 Bishop on Criminal Law, See. 264.

An attorney who procures false evidence, knowing it to be false, with the intention of deceiving the court and thus interfering with the due administration of justice, is not only guilty of contempt of court, but of subornation of perjury, a felony punishable by imprisonment in the penitentiary not less than one year, nor more than fourteen years. Sec. 225, Chap. 38, R. S. The punishment of contempt fixes its character as a misdemeanor, as the penalty may be either by fine or confinement in jail, or both. Lamkin v. The People, 94 Ill. 501.

Ho doubt can be entertained that the prosecution of the felony (subornation of perjury) may be barred in three years, but the State contends that the minor offense (contempt of court) may be punished whenever the machinery of the law is set in motion. And the sentence of the Superior Court proceeded upon the theory that the limitation is only applicable to misdemeanors prohibited by statute, and as there is no prohibitory statute for this class of contempts, the offender is exposed to punishment without limitas to time of instituting the proceedings. If this peculiar iutent is to be attributed to the Legislature, it must be made very plain from the language of the statute. That there is any good reason for greater lenity in dealing with offenses prohibited by statute than those governed by common law, has not been suggested. The more flagrant the offense, the more natural it is that the Legislature should attempt to repress it by express statute, and the more remote the probability that to such cases a special and discriminating favor should be extended. It can not be supposed that the law intended relief and immunity, after the lapse of a year and six months, for all misdemeanors prohibited by a statute, while offenses of the same class recognized by common law only, are exposed to prosecution at any time during the life of the offender.

The fact that the contempt charged against Beattie is one of the gravest character, can not affect the application of the rule. If the bar of the statute is denied here, it must be denied to all classes of misdemeanor, however trivial, which have escaped the denunciation of statute law. Adopting that rule, such offenses are as far removed from oblivion by lapse of time as murder, which may be the subject of indictment at any period after the death of the person killed. All felonies except arson and forgery, are barred in three years, if the accused during that time is usually and publicly resident within this State.

A felony, however, is uniformly treated as deserving of greater odium and severer punishment than any misdemeanor. For some misdemeanors, it is true, the jury may in their discretion imprison in the penitentiary. But if alternative penalties are provided, one of which is imprisonment in the county jail or fine, the offense is a misdemeanor, although the accused might have been confined in the penitentiary, in the discretion of the jury. Lamkin v. The People, supra.

Imprisonment in the penitentiary is the last penalty for a felony, and Sec. 7, Div. 2, Chap. 38, declares every person convicted of certain felonies, including subornation of perjury, infamous, and the offender is rendered incapable of holding any office of honor, trust or profit, of voting at any election or serving as a juror, unless he is again restored to such rights by the terms of pardon or otherwise, according to law. With these provisions of the statute before us, we can not believe that Sec. 4, Div. 4, Chap. 38, was intended to exclude from the benefit of the one year and six months limitation, 'all misdemeanors not prohibited by statute. Indeed, the section provides that all prosecutions, by indictment or otherwise, for misdemeanors, shall be commenced within one year and six months from the time of the committing of the offense, while Sec. 6, Div. 2, describes every offense as a misdemeanor which is not punishable by death or imprisonment in the penitentiary. These sections are so plain and unambiguous that nothing short of a strained and unnatural interpretation can find a distinction in them between the two classes of misdemeanors now under discussion. Neither can it be said that the Legislature in passing those sections, overlooked common law misdemeanors, and so had no intention to provide a limitation for misdemeanors not prohibited by statute. For, aside from the aversion of courts to the discovery of legislative oversight when the law is expressed in plain terms, we have positive evidence in See. 20, Div. 2, Chap. 38, that the subject of the offenses not prohibited by statute was under consideration, and the existence of misdemeanors not defined by statute recognized, as it is declared by that section that “all offenses not provided for by statute law may be punished by fine or imprisonment in the discretion of the court, provided the fine shall in no case exceed $500, and the imprisonment one year.”

The People v. Allison, 68 Ill. 151, relied on by the State, does not decide the question now presented, but the court does say: “ In analogy to our statutes which bar prosecutions for misdemeanors, there ought to be a limit as to the time in which the information could be filed.”

Another argument for the State is that the power to punish for contempt is inherent- in all courts, and necessary to preserve their dignity, enforce their process, and so attain the end of their creation; and if the court is created by the constitution, as the Superior Court is, the Legislature is without authority to prohibit the exercise of the power of the court. All that might be admitted, and we deny no part of the assertion when we say that the power to punish for contempt, without limit as to time, is not necessary to preserve the dignity of the court, or to enable it to enforce its process, or to attain the ends of its creation. Nor do State v. Merrill, 16 Ark. 384; Middlebrook v. State, 43 Conn. 257; Arnold v. Commonwealth, 80 Ky. 300; Ex parte Robinson, 19 Wal. 510; Re Wolley, 11 Bush (Ky.), 95, deny the right of the Legislature to regulate the punishment of contempt. On the contrary, all of those cases (except 19 Wal. 510, Avhere a doubt is expressed) recognize the right of the Legislature to regulate the poAver, but not to destroy or withdraw any part of it. These authorities do not appear to go as far in that direction as Stuart v. People, 3 Scam. 395, where it was said that the statute then in force might, with great propriety, be regarded as a limitation upon the poAver of the courts to punish for any other contempt than those named therein.

The statutes of limitation are no longer frowned upon by the courts, but are regarded as beneficent laws, promotive of peace and repose in the community, and not requiring anything unreasonable from thpse whose rights may be affected by their operation.

In Lamkin’s case, the Supreme Court quotes approvingly the remarks of EEr. Wharton in relation to such statutes, as follows: “ Here the State is the grantor, surrendering by act of grace its right to prosecute, and declaring the offense to be no longer the subject of prosecution. The statute is not a statute of process, to be scantily and grudgingly applied, but an amnesty, declaring that after a certain time oblivion shall be cast over the offense; that the offender shall be at liberty to return to his country and resume his immunities as a citizen, and that from henceforth he may cease to preserve the proofs of his innocence, for the proofs of his guilt are blotted out. Hence it is, that statutes of limitation are to be liberally construed in favor of the defendant, not only because such liberality of construction belongs to all acts of amnesty and grace, but because the very existence of the statute isa recognition and notification by the Legislature of the fact that time, while it gradually wears out proofs of innocence, has assigned to it fixed and positive periods in which it destroys proofs of guilt.”

The members of this court are all of opinion that the prosecution of the charge of contempt was barred by the statute of limitations, when this proceeding was commenced.

The sentence of the Superior Court is reversed.

Judgment reversed.


source: Caselaw Access Project

author: Mr. Justice Wheat

license: Public Domain

text:
    Grace Pyle et al., Appellees, v. Springfield Marine Bank, Appellant.
    Gen. No. 9,514.
    Opinion filed October 25, 1946.
    Rehearing denied December 28, 1946. Released for publication December 30, 1946.
    Sorling, Catron & Hardin, of Springfield, for appellant ; Robert D. Patton and Philip E. Hanna, of counsel.
    Homer D. McLaren, of Springfield, for appellees; Victor Hemphill, of Carlinville, of counsel.
   Mr. Justice Wheat

delivered the opinion of the court.

This is a replevin action to recover possession of a United States Treasury bearer bond of the face value of $1000 discovered by plaintiffs in defendant bank’s safe deposit vault room. The circuit court’s judgment awarded the custody of the bond to the plaintiffs, and this appeal follows.

The complaint charges that on October 20,1941, the plaintiffs entered the safety vault compartment of defendant bank, obtained their safety deposit box, proceeded to a room for the purpose of examination of the contents of the box, and sometime thereafter found the bond in question on the floor; that they delivered said bond to an officer of the bank with a statement of the incident; that such bond was lost by some unknown person and found by plaintiffs in a portion of the bank open to and for the use of the public, by reason of which the bond belongs to plaintiffs as found property. .

The answer ,of the bank denies that the portion of the bank in which the bond was discovered was open to or for the use of the public and denies that the bond belongs to the plaintiffs, as found property or otherwise. The answer further alleges that said portion of the bank was private and was used only by safety deposit box customers of the bank for the private and secret examination of the contents of their respective deposit boxes; that the bank was, with the true owner thereof, the joint custodian of such bond while it remained in the vault department, or the agent of the true owner of such bond, with the duty to hold such bond for its owner as long as it was in said vault department.

All of the material facts are undisputed. It appears that the bank maintained a safety vault department in its basement entirely separate from the banking rooms which were open to the general public. Access to the basement vault department was through a metal grill gate which was kept locked during such time as the vault itself was open; and was opened by an attendant only for ingress and egress of customers. The vault department consisted of the vault proper where the lock boxes were located, into which no one other than the attendant was permitted to enter, and an adjacent vault room within which were a number of small booths for the convenience of the customer in examining the contents of his deposit box. When the vault was closed for the day, the metal gate was unlocked and employees of the bank had access to the vault room. A daily register was kept into which those customers who entered the vault room signed their names, giving the number of their box and the hour of admission thereto. In the vault itself were kept a number of individual safes which were rented to bank customers, each safe containing a metal box, access to which could be obtained only by the use of two keys, one kept by the customer and the other by the attendant. Each booth in the room adjacent to the vault was furnished with a waste basket, stool, and glass counter, and had a door with a lock thereon. This door automatically closed and locked when the user left the booth. Customarily, the attendant would then open the door of the vacant booth, briefly examine the contents and adjust the door so that it would remain ajar for the convenience of the next user. The plaintiffs had such a lock box rented from the defendant and, as customers, entered the vault room under the procedure above set forth. Upon receiving their box and entering one of the 11 booths, they discovered the bond in question on the floor of the booth, and turned it over to the attendant. The bank attempted to locate the owner of the bond, by contacting all renters of lock boxes, and by other means, but was unable to ascertain such owner.

It is pertinent to observe that a determination of this case involves only the right of custody of such bond and not the ownership thereof.

It does not appear that any Illinois reviewing court has heretofore passed upon a case involving a state of facts similar to those here involved. However, in the Kentucky case of Silcott v. Louisville Trust Co., 205 Ky. 234, 265 S. W. 612, there is much similarity in the factual situation. In that case, it appeared that the plaintiff, while in defendant’s safety vault department as a customer, found a $1000 Liberty Bond on the floor of a private booth within the vault department. He delivered the bond to the bank and later started suit to recover possession. An answer was filed setting up that the safety vault department was kept entirely separate from the general offices and that access was obtainable only after registration by the customer; that there were a number of small private rooms to the rear of the vault for use by the customers, each room having a door with a lock on the inside, and that the bond was found on the floor of one of these small rooms. The court affirmed the judgment of the trial court which dismissed the finder’s petition, and said: “Therefore it must be true almost beyond p erad venture that any chattel found in one of these private rooms, access to which was had only by persons renting boxes, must have been the property of one of the trust company’s customers, and that any property, whether left in the customer’s box, or left in this private room, was in a true sense in the custody of the trust company as the agent of its customer, or that at least it occupied toward its customer some fiducial relationship which imposed upon it the duty of caring for his property, whether the owner was known or unknown.”

In the case of Foster v. Fidelity Safe Deposit Co., 264 Mo. 89, 174 S. W. 376, certain money was found on the desk of a safe deposit department booth, and in holding that the deposit company rather than the finder was entitled to the custody of the money until the true owner appeared, the court said: “Now, in whose possession was the money when discovered by plaintiff? It could scarcely have been more in defendant’s possession, unless it had been in the pocket of one of its officers. It was not only in defendant’s place of business, but was in a separate apartment, from which the public was éxcluded; and, more than that, it was on a desk in a little private compartment kept under the immediate and constant guard and supervision of one of the deféndant’s attendants. A roguish street urchin if by possibility he had gained access to this place and discovered the envelope on the desk, would have had the same right to it that plaintiff had. Suppose the attendant had observed the urchin as he found it; would he have been justified in letting him carry it off or would it have been his duty to assert defendant’s right of possession and take it from the boy? The answer is plain.”

In the case of Toledo Trust Co. v. Simmons, 52 Ohio App. 373, 3 N. E. (2d) 661, money was found on the floor of a bank lobby, access to which was through an electrically operated door, opened to patrons of the safe deposit department "and persons visiting those officers of the bank whose offices were located beyond this lobby. The court awarded the money to the finder because persons other than patrons were admitted to the lobby, and said: “This money was not found in the safe deposit vault, nor in the safe deposit doorway, but was found on the floor in an entryway or small lobby through which many persons passed every day; persons who were not customers of the safety deposit department of the bank, and some persons who were hot even'customers of the bank at all, were allowed by the bank to go through this passageway or lobby to see various employees of the bank for personal calls .... Under the law, in order to sustain the contention of the bank, we would have to assume that it was owned by a customer of the safety deposit department of the bank. No such assumption can be entertained, considering the place where it was found, when the evidence is not disputed that many other persons, some of them not even on bank business, passed through that entryway daily.” (Italics added.)

We have carefully studied the numerous cases cited by both parties to this cause, as well as the expressions by text writers on the subject, and reach the conclusion that the controlling question in the case is whether or not the place where the bond was found was public or private. If private, it is immaterial whether the property was lost or only mislaid. The bank maintained its safety deposit department for the accommodation of a limited number of persons who paid a rental fee, and in so doing, the bank incurred certain possible liabilities and had certain duties imposed upon it, in providing a safe place for storage of the boxes, and in preventing unauthorized persons from gaining access to the contents. In furtherance of its plan of protecting its lock box patrons and also in protecting itself from incurring liability, it located its safety deposit department entirely separate and apart from its public banking room, barred the entrance with a locked metal door, and placed an attendant in charge who required registration of all lock box patrons who desired entrance. Under these circumstances, can it be said that this was a public place? We believe not. The manner of operation and control was highly restrictive. A limited class of persons was licensed to enter under circumstances giving the deposit vault department the characteristics and attributes of a private place. As such, any property either lost or mislaid in the department, properly was deliverable to the bank as agent or trustee for the true owner, whether known or unknown.

It is urged by plaintiffs that the trial court found that the location was a semi-public place and that the bond was lost property, therefore such findings are conclusive if not manifestly against the weight of the evidence. The judgment order appealed from contains no such findings, but only finds that plaintiffs were entitled to the possession and custody of the bond. An opinion not embodied in, nor made a part of, a judgment order is not appealable.

The judgment of the circuit court is reversed and remanded with directions to enter judgment for appellant for the right to possession and custody of the "property until the lawful owner is ascertained, and for costs.

Reversed and remanded with directions.


author: Mr. Presiding Justice Lews

text:
    In re Estate of Augusta P. Kroening, Deceased. Appeal of Eleanor Richards, Appellant, v. Arthur Kroening, Appellee.
    Gen. No. 43,337.

      Opinion filed November 20, 1946.
    Released for publication December 5, 1946.
    Wachowski & Siemanski, of Chicago, for appellant; Casimir R. Wachowski, of Chicago, of counsel.
    James R. Glass, of Chicago, for appellee.
   Mr. Presiding Justice Lews

delivered the opinion of the court.

Petitioner, Eleanor Richards, filed an amended petition in the nature of exceptions to an inventory filed by respondent, Arthur Kroening, administrator of the estate of Augusta Kroening, deceased, in the probate court of Cook county praying, inter alia, that the administrator be required to list certain assets as property of the estate. On appeal from the probate court the case was tried de novo by the court without a jury. By this appeal the petitioner seeks to reverse the order denying the relief prayed for in her amended petition.

The essential facts are uncontroverted. On April 8, 1943 Augusta Kroening, a widow, died intestate at the age of 86 years, leaving her surviving as her only heirs at law and next of kin five children: Henry, Charles, Arthur and Selma Kroening, and Eleanor Richards the petitioner herein.

At the time of her death and for many years prior thereto Augusta Kroening, the deceased, resided in the premises which she owned, known as 4946 South Wood street, in the City of Chicago, Illinois, with her son Arthur Kroening, the respondent, a bachelor, and her daughter Selma Kroening, a spinster.

Shortly after the funeral of Augusta Kroening the respondent Arthur Kroening, Selma Kroening, Henry Kroening, and the petitioner Eleanor Richards met at the home of the respondent. On this occasion the respondent, in the presence of Henry Kroening, Selma Kroening, and the petitioner, exhibited a dresser drawer in which the deceased had for many years kept legal documents, bank books and cash. The contents of the drawer were examined and the cash monies counted by all present. Part of the money, $1,515.29, was found in a corner of the drawer wrapped in two bundles. The money, including that found in the bundles, aggregated $7,620. Some time later a five dollar gold piece and two fifty cent pieces were also found in the dresser drawer. Among the other items found in the dresser drawer were a joint bank account book issued by the Chicago City Bank and Trust Company in the names of Arthur Kroening and decedent, showing a balance of $2,389.02, and a receipt issued by the receiver of the People’s Stock Yards State Bank to Selma Kroening and Augusta Kroening, evidencing a joint account.

The inventory filed in the estate of Augusta Kroen-ing by Arthur Kroening as administrator listed cash in the sum of $5,963.15.

The court found that the balance shown in the joint account between decedent and Arthur Kroening in the Chicago City Bank and Trust Company was the property of Arthur Kroening; that the balance of the account in the defunct People’s Stock Yards State Bank and also the sum of $1,515.29 which was wrapped in separate bundles, was the property of Selma Kroening.

At the hearing the sole witness called in behalf of the petitioner was Arthur Kroening, who testified substantially as follows: that in the latter part of September 1933 his mother Augusta Kroening suffered a severe hip injury resulting in her confinement to her home until she died in April 1943; that before her injury she kept her valuables in a dresser drawer in the dining room and handled her own financial affairs; that after the injury the witness collected all of the bank divi-dénds, rents, and other investments except the rentals on some improved real estate located in the City of Glen Ellyn, Illinois; that all the moneys collected were first exhibited to and counted by 'his mother and then placed in the. dresser drawer; that the witness furnished part of the money for the household expenses, which was segregated and placed in another drawer to which his sister Selma had access; that for many years before her injury Augusta Kroening had an account in the Chicago City Bank and Trust Company; that some time in October of 1940 the witness obtained signature cards from the bank at the behest of Augusta Kroening which she signed, converting her former individual account to a joint account with her son; that the new joint account book, after being examined by the decedent, was later placed in the dresser drawer.

On cross-examination the witness testified that he had a talk with his sister Selma and his mother with regard to the collection of dividends from the receiver of the People’s Stock Yards State Bank, “so my mother told me, when I cashed the checks and brought the money home, to keep Selma’s on one side in a corner of the drawer; so I did. There was about $1500, I don’t recollect exactly. My mother counted the money. We always went over it together. My mother told me to keep Selma’s on the side in a corner of the drawer, which I did. That was the money on the dividends from the account by Augusta Kroening. That is the one she told me to keep on the side. That is the one I didn’t put in that inventory.”

Petitioner contends that the joint account between Arthur Kroening and decedent with the Chicago City Bank and Trust Company was established when a confidential relationship existed between Arthur and his mother and was made without the payment of any consideration. °

The evidence shows that this joint account was made more than two and a half years before the death of Augusta Kroening; that at the time she read the signature cards before she executed them, and subsequently examined the new bank book showing the joint account with her son Arthur. There is not a scintilla of evidence that respondent has not been faithful and honest in all of his dealings with his mother, nor is there any evidence tending to show that the joint account was obtained by undue influence. So far as the record discloses decedent had full possession of all her mental faculties from the time she received the hip injury until she died.

A fiduciary relation must be established by competent evidence and does not obtain between a parent and child as a matter of law. The proof must be clear, convincing and so strong, unequivocal and unmistakable as to lead to but one conclusion. (Stewart v. Sunagel, 394 Ill. 209, 214.)

Counsel for petitioner says that after respondent brought the new book home, “he gave the book back to his mother and put it in the drawer. This indicated that she continued to exercise exclusive control of this account.” Mere retention of the bank book by either respondent or decedent is, in our view, immaterial, since the undisputed testimony shows that the key to the dresser drawer in which the bank book was kept was used by and accessible to both respondent and decedent. Obviously both could not have manual possession of the bank book at the same time. The contract (Petitioner’s Ex. 3) between them and the Chicago City Bank and Trust Company provides that all funds deposited to the joint account of the respondent and decedent may be paid to either “whether the others be living or not.” The possession of the bank book by either respondent or decedent was for the benefit of both and not inconsistent with the contract. (Illinois Trust & Savings Bank v. Van Vlack, 310 Ill. 185, 191; In re Estate of Halaska, 307 Ill. App. 183.)

It is next urged by petitioner that the receipt for the “joint account” between Selma Kroening and decedent, her mother, issued by the receiver of the defunct People’s Stock Yards State Bank, was in the sole control and possession of the decedent at the time of her death. As to this bank account, the record, which we have carefully examined, fails to disclose when or by whom the deposits were made. The contract (Petitioner’s Ex. 4) is substantially the same as petitioner’s exhibit 3, except that the account reads “Selma Krdening by Augusta Kroening.” In his argument petitioner’s counsel assumes that this is a joint account between Selma Kroening and decedent and proceeds on the theory that since the receiver’s receipt was in the possession and control of decedent at the time of her death the balance in this account should have been inventoried as part of decedent’s estate. In either event, whether it was a joint account or the individual account of Selma Kroening, it was not part of decedent’s estate, for the reason that possession of the receiver’s receipt by the decedent is immaterial on the grounds heretofore stated. Moreover, it appears that the $1,515.29 found wrapped in separate bundles among the cash in the dresser drawer came from dividends paid on this account by the receiver and that it was segregated by the respondent from other moneys at the specific direction of his mother Augusta Kroening who stated at the time that it was Selma’s money.

Finally petitioner contends that the entire sum of $7,620 which was found in the dresser drawer should have been inventoried. Inasmuch as we hold that the sum of $1,515.29, as was found -by the trial court, was not part of the estate of Augusta Kroening, deceased, and therefore properly omitted from the inventory, we shall consider the remainder, amounting to $6,104.71. The inventory shows cash as $5,963.15, leaving a balance of $141.56 unaccounted for. In respondent’s brief (p. 4) he asserts: “The children agreed to pay out of the fund $48.88 real estate taxes on Chicago property and $92.68 on Glen Ellyn property, together with $1,515.29 belonging to Selma left a balance of $5,963.15.” Nowhere in the record does such an agreement appear. Therefore the inventory should have shown additional cash in the sum of $141.56.

For the reasons stated, the order denying the relief prayed for in the amended petition is in all respects affirmed except as to the cash shown in the inventory.

In this particular the order is reversed and the cause is therefore remanded with directions for further proceedings not inconsistent herewith.

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

Kiley and Burke, JJ., concur.


author: Mr. Presiding Justice Lewe

text:
    Mary Kulikowski, Cross Appellant, and John Sucharzewski, Appellee, v. Jacob Roth, Appellant.
    Gen. No. 43,352.

      Opinion filed November 20, 1946.
    Released for publication December 5, 1946.
    Herbert M. Wetzel, of Chicago, for appellant.
    Andalman & Andalman, of Chicago, for cross appellant and for appellee.
   Mr. Presiding Justice Lewe

delivered the opinion of the court.

This is an action to recover damages for assault and battery. Judgment in the sum of $500 was entered upon the verdict of a jury in favor of one of the plaintiffs, John Sucharzewski. The jury found the defendant not guilty as to the other plaintiff, Mary Kulikowski. Motions for a directed verdict and new trial were overruled. Defendant appeals from the judgment rendered in favor of the plaintiff John Sucharzewski. Plaintiff Mary Kulikowski has filed a cross-appeal.

The complaint and the amendment thereto allege in substance that defendant maliciously assaulted and struck plaintiffs and that malice is the gist of the action. In his answer defendant denies commission of the acts as alleged and pleads justification. For convenience, the plaintiff John Sucharzewski will be designated as “John,” and the plaintiff and cross appellant Mary Kulikowski will be designated as ‘ ‘ Mary. ’ ’

The facts are substantially as follows. On October 6, 1941, at about 11 o’clock p. m., the plaintiff John, accompanied by his wife Betty, their son Thomas, Mary his sister and her son, drove his automobile in an easterly direction in Cermak Road in the City of Chicago. At the intersection of Marshall Boulevard John stopped his automobile and waited for the red light traffic signal to change. While waiting for the change of traffic signals, defendant approached plaintiff’s car, reached through an open window, and struck John in the eye as he was seated at the steering wheel. Immediately thereafter defendant ran north on Marshall Boulevard. John got out of his car and pursued defendant. When he overtook him several hundred feet north of the intersection on Marshall Boulevard, defendant struck plaintiff again, causing him to fall down. In the meantime, Mary left the automobile and came to assist her brother who was lying on the ground. As she neared the defendant she asked him, ‘ ‘ What did you hit him for ? ” In reply defendant used abusive epithets and thereupon struck the plaintiff Mary. Shortly thereafter defendant fled to the vestibule of a nearby building, where he was arrested by the police. Defendant testified that he did not strike John while his car was stopped at the intersection. He also testified that both plaintiffs kicked, scratched and struck him during the scuffle afterwards and that during this encounter Mary was struck accidentally by her brother John and not by defendant.

In answer to a written interrogatory the jury found that defendant wilfully and maliciously committed an assault and battery upon John as charged in the complaint and amendment; and in answer to a similar interrogatory naming the other plaintiff, Mary, the jury found adversely to her.

It is argued by defendant that the answers to the written interrogatories finding that defendant committed a wilful assault and battery on John and not on Mary show that the jury did not believe the testimony of either of the plaintiffs “as to what happened on Marshall Boulevard after John left his automobile at the intersection.” On the other hand, Mary maintains on her cross appeal that inasmuch as the jury believed the testimony of John’s witnesses in respect to the occurrence at the intersection there is no reason for the jury disbelieving plaintiff’s testimony in respect to the other assault and battery, which involved Mary, on Marshall Boulevard.

We think there is ample testimony justifying the jury’s finding in favor of John alone. It may well be that the jury believed that defendant did not assault or strike Mary when she came to rescue her brother.

The probative value of evidence and the conclusions to be drawn from it lies in the hands of the jury. This court will not substitute its judgment for the verdict of the jury unless the evidence is clearly insufficient to support the verdict. (Philpott v. Parham, 316 Ill. App. 278, 281.) In our view the answers of the jury to the interrogatories are not inconsistent with the evidence. We therefore hold that the trial court did not err in refusing to grant a new trial to Mary.

We turn now to the other grounds urged by defendant to reverse judgment in favor of John. Defendant complains that the court erred in permitting plaintiff to examine him under section 60 of the Civil Practice Act [Ill. Rev. Stat. 1945, ch. 110, par. 184; Jones Ill. Stats. Ann. 104.060], on the ground that the present case, though civil in form, is brought to recover a furthef penalty for an offense against the State, and therefore in violation of section 10, article 2 of our constitution.

It appears that defendant was charged with wilful assault and battery in a complaint filed in the municipal court of Chicago arising out of the same controversy as in the case at bar, and that he was tried by the court and a jury, found guilty, and fined. Subsequently that case was appealed to this court and affirmed. (City of Chicago v. Jacob Roth, 322 Ill. App. 696.)

The present suit is civil in its nature, and is instituted to recover damages for the indignity, vexation, and physical injuries suffered by John. Since it is a separate and distinct tort action for damages not involving a penalty as defendant contends, it follows that calling defendant as a witness under section 60 did not constitute involuntary incrimination.

Defendant insists that punitive damages are not ,recoverable unless actual damages are proved. There is evidence that John paid a physician for medical treatment and suffered loss of wages as a result of the assault and battery committed by defendant. It was therefore proper for the jury to allow punitive damages, and for the purpose of estimating damages the jury had a right to consider the financial condition of the parties. (Schmitt v. Kurrus, 234 Ill. 578, 581; Karpluk v. Danissewics, 312 Ill. App. 597.)

We have carefully examined the instructions complained of and in our opinion they accurately and fully state the law governing the case at bar.

For the reasons stated, the judgment in favor of John Sucharzewski in the sum of $500, and the judgment against the plaintiff Mary Kulikowski finding the defendant not guilty, are affirmed.

Judgment affirmed.

Kiley and Burke, JJ., concur.


text:
    Village of Melrose Park et al., Appellees, v. Prairie State Bank et al., Appellants. Appeal of Prairie State Bank.
    Gen. No. 43,374.

      Opinion filed November 20, 1946.
    Released for publication December 5, 1946.
    Thomas J. Carroll, of Chicago, for appellant.
    Guy C. Guerine, of Melrose Park, for appellees; Guy C. Guerine, of Melrose Park and Paul E. Price, of Chicago, of counsel.
   Mr. Presiding Justice Lewe

delivered the opinion of the court.

By this appeal defendant seeks to reverse a decree finding that certain judgments on confession and judgment notes were paid and directing that the notes be canceled by defendant bank and delivered to the plaintiffs.

In 1937 the Village of Melrose Park, a municipal corporation, hereinafter called the “Village,” had many creditors, including its employees who also appear as plaintiffs in the instant proceedings and are hereafter called “Employees.” Defendant Prairie State Bank, a banking corporation of Illinois, hereafter called the “Bank,” was the official depositary of the Village funds. By prearrangement between the Village and the Bank, the Employees borrowed certain sums of money from the Bank, payment of which was secured by wage assignments and judgment notes executed by the employees. All of the wage assignments were for wages earned and past due. Subsequent to the making of the wage assignments to the Bank, the Village refused to pay the Employees and discharged many of them. Afterwards the Employees and the Bank instituted suit against the Village to recover the money due under the wage assignments, in circuit court of Cook county case No. 37 C 11258, entitled A. H. Leese-berg v. Village of Melrose Park, a municipal corporation.

On December 3, 1940 judgment was entered against the Village in favor of the Bank in the sum of $19,883.84. When the judgment was 'entered against the Village all of its outstanding obligations aggregated about $80,000. At that time its general corporate fund was very low and its statutory bonding power was fixed at approximately $60,000. It was therefore proposed by the Village officials that all of the creditors reduce their claims and accept bonds in full payment thereof. After a period of negotiation the Bank agreed to accept from the Village the sum of $16,883.84 in full payment of its judgment for $19,883.84 and to execute a satisfaction of judgment for this amount. There was also due to the Employees of the Village, in addition to the sum represented by judgment notes executed by the Employees to the Bank, approximately $20,000. It appears that all of the creditors of the Village voluntarily scaled down their respective claims. The Bank waived about 14 per cent of its claim based on loans made to the Employees and the Employees waived about 20 per cent of their claims not covered by wage assignments.

After receiving a check for $16,883.84, the Bank, in accordance with its agreement, filed a formal satisfaction of judgment in the Leeseberg case in the circuit court, case No. 37 C 11258. Several months later it filed 21 separate suits in the municipal court of Chicago on judgment notes given to it by the Employees to secure payment of their loans. When the Employees learned that judgments by confession had been entered against them in the municipal court of Chicago, they filed the bill in the instant case to restrain the Bank from proceeding on the judgment notes and to restrain the bailiff of the municipal court and the sheriff of Cook county from levying executions. The bill of complaint as amended alleges in substance that the judgment obtained by the Bank in the Leeseberg case, 37 C 11258, included the principal and interest due to the Bank from the Employees on their wage assignments or judgment notes; that the Bank agreed that upon the payment of the judgment it would cancel and deliver to the Village all of the judgment notes executed by the Employees; that the Bank received payment in full of its judgment against the Village but refused to cancel and deliver the judgment notes; that judgment was entered by confession on 21 of the notes in question in the municipal court of Chicago, and that 16 other Employees (plaintiffs herein) are threatened with suits. The bill concludes with a prayer for an order restraining the Bank from enforcing the judgments based on the notes executed by the Employees, and also restraining the bailiff of the municipal court of Chicago and the sheriff of Cook county from levying executions; that the court declare the judgments by confession null and void; and that the remainder of the notes he canceled and delivered to plaintiffs.

In its answer the Bank avers that the action against the Village in the Leeseberg case, 37 C11258, was based only on the wage assignments of the Employees, and not on the judgment notes; that the indebtedness of the Employees to the Bank was not adjudicated in the Leeseberg case; that the matters pleaded in the instant case could have been raised as a defense in the municipal court of Chicago; and that the complaint stated no grounds for the intervention of a court of equity.

The chancellor found among other things that the judgment notes executed by the Employees in favor of the Bank were fully discharged by the satisfaction of judgment filed by the Bank in the Leeseberg case; that all the judgment notes are void and should be canceled; and that the plaintiffs have established the material allegations of their complaint.

The defendant Bank maintains that the evidence does not warrant the findings of the chancellor.

The evidence shows that after obtaining judgment in the Leeseberg case the Bank passed a resolution authorizing its officials to accept in full settlement of its judgment against the Village $16,883.84 in cash, in corporate bonds, or in “judgment tort bonds.” After-wards, on December 3, 1941, Guy C. Guerine, attorney for the Village, sent a messenger, one Fanelli, to the Bank with a check for the amount agreed upon and a letter, the pertinent parts of which read as follows: “In checking the transcript I find that the assignments and notes are not filed in court, although they are marked as exhibits. I will require that both the assignments and notes will be filed in the circuit court of-Cook county in the above cause. I will also require a satisfaction of judgment signed by the Bank.”

When Fanelli presented the check and letter to Tomaso, vice president of the Bank, he told Fanelli that the assignments and judgment notes were being photostated and “when I get them I will return them to Mr. Brust.” Paul W. Brust it appears was the attorney for the Employees. Brust and other witnesses testifying in behalf of the plaintiffs stated that the Bank promised to cancel and surrender the notes in question upon receipt of the check from the Village.

The law is well established that a chancellor’s finding of facts on conflicting evidence will not be disturbed unless the decree is clearly against the manifest weight of the evidence. (Lolli v. Rondon, 389 Ill. 94; Hall v. Pittenger, 365 Ill. 135.)

We think the evidence supports the conclusion that the Bank did agree to cancel and surrender the notes simultaneously with the delivery to it of the check by the Village attorney, Guerine, and that the chancellor was justified in so finding.

Defendant next urges that the plaintiffs had a complete and adequate remedy at law.

It should be noted that when the present action was instituted 21 separate suits had been filed by the Bank in the municipal court of Chicago, predicated on the judgment notes signed by the plaintiffs (Employees) and that further action was threatened on the remaining 16 notes. So far as the record shows, actions which had been commenced and those threatened by the Bank were all founded on like facts, and depended on the same questions of law. It therefore follows that the decision in one ease would be determinative of all. Under these circumstances we think that a court of equity had a right to intervene for the purpose of disposing of the whole controversy in a single judicial proceeding. In Weininger v. Metropolitan Fire Ins. Co., 359 Ill. 584, 587, the court said:

“The modern and progressive rule has been to relax the former unbending rules of multifariousness, and in order to avoid a multiplicity of suits to permit the inclusion of several causes of action growing out of the same set of facts and the same subject matter, where the same general relief is sought and no undue oppression is worked against the defendants. No inflexible rule can safely be pronounced as to what constitutes multifariousness nor when a court of equity will refuse to take jurisdiction and remit the parties to the law courts.”

And again at page 588:

“It is one of the favorite objects of a court of equity to do full and complete justice between the parties by avoiding the delays and hardships incident to a multiplicity of suits.”

It appears that some of the plaintiffs filed a petition in the municipal court to consolidate the cases on which judgments were entered and for leave to plead and defend, and that the municipal court refused to entertain the petition on the ground that the defenses and issues raised “can all be adjudicated” in the case at bar. The question of plaintiffs’ right to vacate the judgments of the municipal court and the validity of their common defense was not determined in that proceeding. Manifestly, those plaintiffs whose judgment notes were still being held by the Bank and upon which no legal action has been taken could not present their defense in the municipal court since they were not parties. They would be compelled to defend in separate actions whenever the Bank saw fit to bring suit against them. In the present case the rights of all the parties are protected.

In the view which we take of this case it is not necessary to consider the other points raised.

For the reasons indicated, the decree is affirmed.

Decree affirmed.

Kilby and Burke, JJ., concur.


author: Mr. Justice Burke

text:
    Wilson and Company, Inc., Appellee, v. Werner Transportation Company, Appellant. Werner Transportation Company, Appellee, v. Mid-States Freight Lines, Inc., Appellant.
    Gen. Nos. 43,479, 43,487.

      Opinion filed November 20, 1946.
    Released for publication December 5, 1946.
    Petit, Clin & Overmyer, of Chicago, for appellant; Franklin R. Overmyer, of Chicago, of counsel.
    Goldman, Allshouse & Healy, of Chicago, for appellee; Robert G. Dreffein and Melvin L. Goldman, both of Chicago, of counsel.
   Mr. Justice Burke

delivered the opinion of the court.

Wilson & Company filed a complaint in the superior court of Cook county against Werner Transportation Company and Mid-States Freight Lines to recover for damage to a shipment of poultry delivered to the Werner Transportation Company at Faribault, Minnesota, to be transferred to a connecting motor- carrier in Chicago for ultimate delivery to eastern points. Werner Transportation Company, one of the defendants, filed a counterclaim against Mid-States Freight Lines, the other defendant, asking that should plaintiff be given judgment against it, that counterclaimant be awarded judgment against counterdefendant. A trial before the court without a jury resulted in a finding and judgment in favor of plaintiff and against the Werner Transportation Company for $1,415.73, and a separate finding and judgment on the counterclaim in favor of the Werner Transportation Company and against Mid-States Freight Lines in the same amount. The court further found that Mid-State'S Freight Lines was ‘-‘not liable to the plaintiff.” Separate appeals (consolidated in this court) were prosecuted by the Werner Transportation Company and Mid-States Freight Lines.

It is not contended that either judgment is against the manifest weight of the evidence. We are called upon to decide whether as to the disputed issues of fact, there was competent evidence to support the respective judgments and whether, under the law applicable to the facts, the judgments, or either of them, should stand. Since February 1943 weekly shipments Were made by plaintiff by way of Werner and its connecting carrier, Mid-States. The practice was to notify Werner a day in advance of a shipment, and Werner in turn would notify Mid-States so that proper connections could be made at Chicago for transportation to the east. Both defendants are common carriers. The shipment was moving under uniform straight bills of lading issued by Werner, and was loaded into three trailers. One trailer contained butter only. The other two trailers contained principally poultry, part of which was spoiled by reason of lack of refrigeration. The shipment originated on Thursday, June 24, 1943 at Fari-bault, Minnesota, and arrived at Werner’s yard in Chicago on Friday, June 25, 1943. There was testimony on behalf of Werner, (denied by witnesses for Mid-Sfates) that on Wednesday the former notified the latter that the shipment would leave Minnesota on Thursday, arriving in Chicago on Friday, and that Mid-States’ representative stated that it would “take care” of the shipment. Werner used three trailers in bringing the shipment to Chicago and Mid-States would require four semi-trailers to carry the shipment to the eastern destinations. The poultry in transit was of a perishable nature, requiring intensive refrigeration. Each bill of lading bore the legend “Keep truck properly iced all the way.”

When the shipment arrived in Chicago on Friday, June 25, 1943, an agent of the Werner company called up Mid-States. The representative of the latter refused to accept the shipment at that time for the reason that it (Mid-States) did not have available the 'special refrigerated type equipment necessary to transport the perishable goods which comprised the shipment. Plaintiff was notified. Plaintiff and Werner then endeavored to procure another carrier to take the shipment east from Chicago, but were unsuccessful. In the meantime, Mid-States was awaiting the arrival of suitable equipment expected in Chicago on a return trip from the east. There was evidence that this equipment might be available Saturday, Sunday or Monday. Such equipment became available on Monday, June 28, 1943. On Monday morning one trailer was delivered to Mid-States. The contents of that trailer consisted of butter. The butter, although very soft, was again frozen and transported to the east in equipment of Mid-States. There was no claim filed as to the handling or transportation of this load of butter. That afternoon, Monday, June 28, 1943, two trailers loaded mostly with poultry were moved by Werner to Mid-States’ yard in Chicago. Werner’s driver testified that he backed the two trailers against a platform. At the time he brought the third trailer, in the afternoon, he coupled his tractor to the first trailer, which he had brought in the morning, and took it back to Werner’s dock. Testimony for Mid-States was that when its employees inspected the contents of the two trailers brought over in the afternoon, they found that some of the poultry was “spoiled” and that there was “a terrible stench” coming out of the trailers. Thereupon, Mid-States refused to accept the shipment of the two trailers delivered Monday afternoon. On Tuesday the two trailers were brought to the plant of plaintiff in Chicago for the purpose of sorting the goods. Employees of plaintiff and Werner salvaged most of the poultry. Of 523 boxes of poultry, 111 had spoiled and 72 boxes were salvaged by refreezing. The balance of the boxes of poultry were frozen hard. The damages are based on the market value of the spoiled poultry, plus interest. There is no contention that the damages are excessive. -

We shall first consider the judgment in favor of plaintiff and against the Werner company. It was stipulated that at the time the goods were delivered to the initial carrier they were in “good first class condition.” The proof showed that on Friday afternoon when the three trailers arrived from Minnesota, the chickens were in good condition and that there was adequate ice in the trailers. The weather was warm. There was evidence that on Friday, Saturday and Sunday evenings, employees of the "Werner company put dry ice in the trailers; that during this period the trailers were inspected; and that the quantity of ice used and the way it was distributed and the condition of the refrigerated equipment preserved the contents in good condition. There was competent evidence that on Monday morning the trailers were inspected, and that the contents were then in good condition and properly iced. The evidence shows that when the trailers were examined by employees of Mid-States there was no ice and that the contents had deteriorated so that part of the poultry could not be used for human consumption.

The relation of 'plaintiff to the Werner company was that of shipper and common carrier. The Carmack Amendment to the Interstate Commerce Act applicable to interstate transactions, provides that a common carrier receiving property for transportation from a point in one State to a point in another State shall issue a receipt or bill of lading therefor, and shall be liable -to the lawful holder for any loss, damage or injury to such property, caused by it or by any common carrier to which such property may be delivered, or over whose line or lines such property may pass, and that any such common carrier so receiving property for transportation shall be liable to the lawful holder of the receipt or bill of lading for the full actual loss, damage or injury to such property caused by it or by any such common carrier to which such property may be delivered, or over whose line or lines such property may pass. This amendment is made applicable to motor carriers by the Federal Motor Carrier Act of 1935, now the Transportation Act of 1940. The courts hold that a carrier which accepts goods for shipment to a point on another line is treated as having made a through contract, and having thereby elected to treat the connecting carrier as its agent. The Gamble-Robinson Commission Co. v. Union Pac. R. Co., 262 Ill. 400; Galveston, H. & S. A. R. Co. v. Wallace, 223 U. S. 481; Chicago & E. I. R. Co. v. Collins Produce Co., 249 U. S. 186. Upon acceptance of the shipment, Werner became liable for the safe transportation of the merchandise until it reached its final destination beyond its own line. Werner urges that under the circumstances plaintiff was obligated to find a connecting carrier. We cannot agree with this contention. While plaintiff was interested in procuring a connecting carrier and made an effort to secure one, the evidence shows that Werner recognized that it was obligated to move the shipment to destination and that it eventually did move it by delivering the three trailers to the Mid-States’ yard. On Monday, June 28, 1943 plaintiff and the two defendants were endeavoring to move the shipment to the east, and had the trailers been properly iced while in the possession of the defendants, the poultry would not have spoiled. As between plaintiff and the two defendants, it is clear that the loss was caused by the negligence of one of the defendants. Under the Carmack Amendment the action was properly brought and judgment entered against Werner. Werner also contends that it ceased to be a carrier, that it became a warehouseman and as such was not negligent in the handling of the shipment. Werner held plaintiff’s shipment for three days while it was endeavoring to secure a connecting carrier. We are of the opinion that it continued to be a common carrier.

We turn to a consideration of the points urged for reversal of the judgment against Mid-States. Werner did not claim any damages for the time when its trailers were inactive from Friday afternoon until Monday. It wishes to be indemnified for the amount of the judgment recovered by plaintiff. Thére was evidence that Mid-States led Werner to believe that when the shipment of poultry arrived on Friday, it (Mid-States) would have refrigerated equipment available for carrying the shipment to the east. The equipment did not become available until Monday. In Chicago & A. R. Co. v. Kirby, 225 U. S. 155, it was settled that a special contract to transport by a particular train or on a particular day is illegal when not provided for in the tariff. This proposition was again considered in Davis v. Cornwell, 264 U. S. 560. Apparently, the trial court took the view that under all the circumstances plaintiff could have supplied the equipment to move the shipment Friday or Saturday. ■ In the view we take of the case, it is not necessary for us to decide whether Mid-States was at fault in failing to provide refrigerated equipment for the movement on Friday or Saturday. The equipment was available on Monday. The three parties involved were satisfied to move the shipment on Monday. No damages were claimed for any alleged delay in the movement of the merchandise. Mid-States introduced testimony that on the first trailer delivered Monday afternoon the liner over the door was missing and that there was an opening in the top of the second trailer delivered that afternoon. It also introduced testimony that the trailers had soot and dirt in them. If this testimony be accepted as true, the trailers delivered in the afternoon by Werner were not in good condition as refrigerated equipment. The testimony introduced by Werner is that the trailers were at all times properly and adequately iced; that the shipment was properly and adequately iced when inspected Monday morning prior to the delivery to Mid-States’ yard; and that the trailers were in good condition. The trial judge was justified in finding from the evidence that when the poultry in the trailers was delivered to Mid-States Monday afternoon, it was in good condition. Mid-States introduced evidence that the trailers were inspected on Monday, that the spoiled condition was discovered and that both plaintiff and Werner were notified. This testimony is controverted by testimony introduced by Werner. Gordon Greenberg, a witness for Werner, testified that Mr. Martin of Mid-States called him on the telephone Monday morning and told him to send over the first load as quickly as could be done, and the other two loads in the afternoon; that he inspected the trailers Monday morning and found 300 pounds of dry ice in each trailer; that there was no odor coming from the trailers in which the poultry was loaded; that the first trailer was sent over to Mid-States at about 10:00 a. m.; that the second trailer was sent over at 4:00 p. m. and the third trailer at 5:00 p. m.; that this was in accordance with the order in which Mid-States wished the, trailers sent over; that when the driver delivered the third trailer, he brought back the empty first trailer; and that Mr. Martin told him on Monday morning that the shipments would ‘ definitely move east that day. ’ ’ Witness testified further that the next development was a call from Martin Tuesday afternoon, wherein Martin said that “they had just started to transfer to the other two trailers and he had found an odor in one of the trailers and he was therefore not accepting it.” Witness, answering a question as to whether in his talk with Mr. Martin on Tuesday afternoon, anything was said as to whether or not Mid-States had re-iced the trailers on Monday night, stated that he (witness) had asked “very definitely” if “they” had re-iced the trailers, and that Mr. Martin answered that they had not. In answer to the question: “Did he [Martin] indicate that they were just then reopening them for the first time?” Mr. Greenberg said: “Yes.” Witness further stated that Mid-States “finally accepted the balance of the shipment which was left on those two trailers on Wednesday.” Mr. Martin testified he took a vacation at that period and that he was not in Chicago on Monday or Tuesday. He denied having the conversation with Mr. Greenberg attributed to him as having taken place on Tuesday. Theodore S. Eeichel, a witness on behalf of Werner, testified that he spotted the trailer at Mid-States’ dock Monday morning and brought the other two trailers over in the afternoon. On cross-examination, this witness testified that Mr. Sullivan, dispatcher for Mid-States, told him to ask Mr. Martin where he (Martin) wanted the trailers placed, and that Martin told him “in the yard where you got the other one.” In this cross-examination he also testified that he talked to Martin only once that afternoon; that then he asked Martin where he wanted the trailers placed and “that is where I put them.” The court had a right to believe this testimony on behalf of Werner. While Mr. Martin testified that he was not in Chicago on Monday or Tuesday, Eeichel testified that he talked to him on Monday afternoon, and Gordon Greenberg testified that he talked to him over the telephone on Monday and Tuesday. There was competent evidence from which the court could find that when the trailers containing the poultry were delivered to Mid-States’ yard on Monday afternoon, they were properly iced and in good condition. The employees of Mid-States did not ice the equipment on Monday evening. The testimony of Greenberg as to his conversation with Martin, was that Mid-States’ employees did not discover the spoiled condition of the poultry until Tuesday. There is support in the record for Werner’s position that Mid-States failed to open the shipment until Tuesday, having had possession of it over night without re-icing it. We are satisfied that the court did not err in entering judgment for Werner and against Mid-States.

For the reasons stated the separate judgments of the superior court of Cook county in favor of Wilson & Company, a corporation, and against Werner Transportation Company, a corporation, and in favor of Werner Transportation Company, a corporation and against Mid-States Freight Lines, a corporation, are affirmed.

Judgments affirmed.

Lews, P. J., and Kilby, J., concur.