text:
    Gertrude Shapiro et al., Appellants, v. Chicago Title and Trust Company et al., Appellees.
    Gen. No. 43,693.

      Opinion filed May 6, 1946.
    Rehearing denied May 27, 1946.
    Released for publication May 27, 1946.
    Shulman, Shulman & Abrams, of Chicago, for appellants; Meyer Abrams, of Chicago, of counsel.
    Concannon, Dillon, Snook & Arthur, of Chicago, for certain appellee.
    Cassels, Potter & Bentley, of Chicago, for certain other appellees.
   Mr. Justice Niemeyer

delivered the opinion of the court.

Plaintiffs appeal from an order dismissing their complaint to construe the terms of a trust agreement, to restrain an amendment of the agreement and to have the trust property sold under the direction of the court, and an order refusing to vacate the order of dismissal and to grant leave to file an amendment to the complaint.

Under the trust agreement, dated February 9, 1932, following a foreclosure decree and sale of the trust property situated in Evanston, Illinois, and known as the Raymond Park Apartments, the defendant trustee held title “for the purpose of the operation, management, sale or liquidation and the distribution of the income and proceeds thereof.” The beneficiaries of the trust are of two classes: (1) The holders of 68,500 cumulative preferred units (par value $10 each), issued by the trust in exchange for mortgage gold bonds aggregating $685,000, secured by the trust property, and (2) The holders of 100 common units (no par value), issued to holders of junior liens.

For the purposes of our decision it is necessary to refer only to articles 2, 6, 16 and 17 of the agreement.

Article 2, defining the powers of the trustee, provides that the trustee “shall hold all of the Trust Property in trust, to sell and convert the same into cash or other personal property, . . . And said Trustee shall have full power to grant options to purchase, to contract to sell and to sell the Trust Property and any part or parts thereof on any terms, . . . to partition or exchange and re-exchange the Trust Property or any part or parts thereof for other real or personal property, encumbered or unencumbered, or any part or parts thereof, as often as desired; to sell, contract to sell, lease and sublease, assign, dispose of, convert and re-convert the same; . . . provided, however, that the Trustee shall not, except as herein otherwise specifically provided, prior to the termination of this trust, make any . . . sale, lease, sublease, mortgage, assignment, contract or other disposition of any of the property at any time held by it under the provisions of this trust, nor make any disbursements of any funds under this trust, for any purpose whatever, nor perform any acts or duties under this trust, except upon written order signed by the Trust Managers as hereinafter provided, it being the intention hereof that the affairs of this trust shall, except as herein otherwise specifically provided, be directed in all things by such Trust Managers.”

Article 6 provides that the holder of each cumulative preferred unit shall be entitled to cumulative distributions thereon at the rate of 30 cents, but no more, per annum, and that “In the event of the termination of the trust or a sale of all the Trust Property or upon any distribution of the capital of the trust there shall be paid to the holders of the Cumulative Preferred Units of Beneficial Interest the sum of $10 per unit and the amount of all unpaid accumulated distributions thereon before any sum shall be paid or assets distributed among the holders of the Common Units of Beneficial Interest; and after the payment to the holders of the Cumulative Preferred Units of Beneficial Interest of $10 per unit and the unpaid accumulated distributions thereon the remaining assets and funds of the trust shall be divided among and paid to the holders of the Common Units of Beneficial Interest according to the number of units held by them respectively.”

Article 16 provides: “The Trust Managers shall have the power to amend this agreement from time to time, and all amendments shall be filed with the Trustee. If in the judgment of both the Trust Managers and the Trustee (which shall be conclusive and binding), any such amendment does not materially alter the rights of the Certificate Holders, it shall, when so filed, become binding upon all persons with or without notice. If in the judgment of either the Trust Managers or the Trustee any such amendment shall materially alter the rights of the Certificate Holders, notice shall be given to the Certificate Holders by mail in such form as shall be designated by the Trust Managers, briefly specifying the nature of such proposed amendment, in the manner herein provided, and no such amendment shall be put into effect' if within 20 days from the date of mailing such notice the holders of 35 per cent or more of the interest units represented by Certificates of Beneficial Interest then outstanding shall file with the Trustee written objections to such amendment. No such amendment or modification shall materially change or alter the duties, rights or powers of the Trustee without its consent thereto in writing.”

Article 17 provides: “Section 1. Unless sooner terminated, as herein provided, this trust shall terminate 20 years from the date hereof. Section 2. This trust may be terminated at any time by an instrument in writing delivered to the Trustee signed by a majority of the Trust Managers, provided that notice pf such termination in such form as the Trust Managers may prescribe, shall be mailed to all holders of certificates issued hereunder, at their addresses as shown on the books of the Trustee, and the holders of not less than two-thirds of each class of units of beneficial interest then issued and outstanding hereunder shall not disapprove in writing of such termination within 20 days from the date such notice was mailed. Section 3. Immediately upon the termination of this trust, by lapse of time or otherwise, as hereinabove provided, all of the then undisposed of Trust Property held by the Trustee hereunder shall be sold by the Trust Managers as a whole, or in parcels, at public or private sale or sales; and upon any such sale or sales, the Trustee shall have the power to transfer and convey to any purchaser or purchasers thereat (in the case of lands, by deeds without covenants) the said lands and properties of the trust, or any part or parts thereof, so purchased, and the net proceeds of such sale or sales, less the expenses thereof, and after the payment of all costs, charges and expenses of the Trustee, of the Trust Managers, and the Bondholders Committee, shall be in proportion to the number of interest units held by such Certificate Holders, respectively.”

August 28, 1945 the trustee sent to all holders of certificates of beneficial interest in the trust a letter advising such holders that on August 14, 1945 the trust managers adopted an amendment to the trust agreement; that each holder of a beneficial interest had the right to file with the trustee on or before 20 days from the date of the mailing of the trustee’s letter, written objections to the amendment, and that unless written objections were so filed by the holders of at least 35 per cent of the beneficial interest, the amendment would become effective. Enclosed with the letter was a copy of the amendment and a copy of a letter from the trust managers purporting to explain the effect of the amendment and the reason for its adoption. The amendment referred to was intended to replace original Article 17. It provided that at any time prior to the termination of the trust, all or substantially all of the property of the trust might be sold for such consideration and upon such terms as to the trust managers in the exercise of their discretion shall be deemed proper, and the trustee, upon the written direction of the trust managers, shall be authorized to consummate such sale, transfer or other disposition of the property, provided that notice of such proposed sale, transfer or other disposition, and the substance of the terms and conditions thereof in such form as the trust managers may prescribe, shall be mailed to all holders of certificates of beneficial interest, and provided that within 20 days of the date of the mailing of such notice one-third or more of the holders of certificates for cumulative preferred units of beneficial interests shall not file with the trustee their written objections to such intended sale. transfer or other disposition; that 95 per cent of the net proceeds remaining after payment of any mortgage or certificate indebtedness and all other obligations, expenses and charges specified in the amendment, shall be distributed to the holders of certificates for cumulative preferred units of beneficial interest in proportion to their respective holdings, and the remaining 5 per cent of such net proceeds shall be paid to the holders of certificates for common units of beneficial interest in proportion to their respective holdings; that upon the consummation of any sale of all the property of the trust and distribution of the proceeds thereof, the trust shall terminate and the duties and responsibilities of the trustee and of the trust managers under the agreement shall thereupon cease; that unless sooner terminated as therein provided, the trust shall terminate February 9, 1952. The letter of the trust managers recites that several prospective buyers have become interested in the purchase of the trust property; that the trust managers had made a careful investigation of the authority granted in the trust agreement to sell the trust property, and have been advised by counsel that there is serious doubt whether the trust managers have authority to authorize the sale of the property except pursuant to the provisions of Article 17, which covers the termination of the trust; that under this article the holders of one-third or more of the preferred or common units .of beneficial interest “have the right to disapprove the termination of the Trust and thereby prevent the sale of the property”; that Article 6 provides that the holders of preferred units of beneficial interest shall be paid in full, including accumulated annual distributions, before any payments shall be made to the holders of common units; that the provisions of Article 17, with reference to distribution, are ambiguous and susceptible of a possible construction permitting holders of common units to share and share alike with the holders of the preferred units in the distribution of the proceeds of a sale, and the holders of the common units have informed the trust managers that they will disapprove the termination of the trust under any sale at a price which will not permit them to participate in the distribution of the proceeds; that it is the opinion of the trustee and the trust managers that the property cannot be sold for an amount sufficient to pay in full the holders of the preferred units and provide for any distribution to the holders of the common units; that in order to clarify the authority of the trust managers to sell the property and to eliminate the right of the holders of common units to object to a termination of the trust, an amendment to the trust agreement has been adopted, pursuant to Article 16, permitting the holders of common units to receive 5 per cent of the net proceeds from a sale of the property and giving the holders of preferred units the exclusive right to approve or disapprove k sale of the property; that in the judgment of the trust managers the proposed change is fair „ both to holders of preferred and common units alike, benefiting the holders of common units by securing to them a participation in the distribution of the proceeds, and benefiting the holders of preferred units by removing the right of the holders of common units to prevent a sale which might be satisfactory to the holders of the preferred units; that the holders of preferred units have received an annual distribution in the sum of $164,017.50, amounting to $2.50 per preferred unit; that no distributions have been made to the holders of common units; that the trust managers are of opinion that as an alternative to the proposed amendment it may be necessary to file a complaint in chancery for the purpose of obtaining a decree modifying the trust agreement in such manner as outlined above to accomplish the sale of the property and distribution of the proceeds; that this procedure would require an expenditure of time and expense which might be avoided by amending the trust agreement without court action.

Within 20 days after the mailing of this letter and the enclosures, plaintiffs as owners of 250 preferred units filed their complaint “in their own right and for the use and benefit of all other preferred unit holders whose interest is identical with that of the plaintiffs, ’ ’ setting up the ‘foregoing facts and alleging further that under Article 2 the trustee is vested with the right to sell the property and to distribute its proceeds prior to the termination of the trust upon consent given thereto by the trust managers; that no termination of the trust and no consent of the common unit holders is essential for the purpose of making the sale and distribution, and that it is the duty of the trust managers and the trustee to exercise a sound discretion; that there is no equity in favor of the common unit holders, and that the proposed amendment whereby they will receive 5 per cent of the proceeds of any sale, without making the preferred unit holders whole, is unfair and inequitable; that many of the unit holders will be induced not to object to the amendment because of the misstatement contained in the communication from the trust managers to the effect that there is serious doubt in the opinion of the trustee and the trust managers as to the right to sell the property prior to the termination of the trust, and that no sale can be made prior to such termination; that the plaintiffs do not know the names and addresses of the unit holders and do not have a copy of the trust agreement. Plaintiffs ask that defendants he required to make available to them the names and addresses of all unit holders in order that plaintiffs may select a proper group as representatives of each class, and that defendants be required to file a copy of the trust agreement; that the court find and determine that the trustee has the power to sell the trust property upon the consent of the trust managers prior to the termination of such trust and, upon such sale, to distribute the proceeds in accordance with the priorities of the unit holders, as set forth in the trust agreement; that the proposed amendment is unnecessary, is detrimental to the interests of the preferred unit holders, and is unfair and inequitable; that the trustee and trust managers did not give the necessary information to the beneficiaries of the trust, and therefore any consents or failure to dissent should not be considered as binding in order to make the amendment operative, and that such amendment is without force and effect; that it is the duty of the trust managers to exercise a sound discretion and to sell the trust property at the present available market; that the court fix the terms and conditions of such sale and construe any of the other terms and conditions of the trust agreement if there be any doubt, as asserted by the trustee and the trust managers. Attached to the complaint as exhibits were copies of the letter and enclosures from the trustee. Defendants having furnished a copy of the trust deed, the complaint was amended and the copy of the trust agreement attached as an exhibit. The trustee and trust managers then filed separate but identical motions to dismiss the complaint as amended. The grounds of the motions to dismiss are, that the complaint fails to state a case for equitable relief; that the amendment was properly adopted; that the trust managers exercised their judgment and discretion, and the court will not interfere with the exercise of such discretion; that it is immaterial whether the trust managers and the trustee had the power to sell the property under Article 2; that the amendment had become an accomplished fact, and the .will of the beneficiaries should not be overruled.

Before disposition of these motions plaintiffs filed a “supplemental amendment” to the complaint, setting up that the trust managers had served notice they would appear in court and ask the court to approve a form of notice to be submitted to the unit holders concerning an offer of $430,000 for the trust property; that the proposed form of notice stated that the trust managers had declared the amendment operative, and if one-third or more of the holders of the preferred units object, no sale can be consummated; that out of the proceeds of the sale there would be deducted a real estate brokers commission of $13,900, to be paid to the real estate firm of one of the trust managers, and expenses of the trust, leaving available a net sum of $301,885 for distribution (the trust property being subject to a mortgage on which there was an unpaid balance of $103,500); that of this sum there would be distributed to each of the preferred units $4.37, and available for all of the common units, $15,094.25; that such distribution to the common unit holders could only be made if the amendment is held to be valid; that plaintiffs have procured a buyer, through a broker, who is willing to offer for the property $5,000 in excess of the price heretofore made to the trust managers, and to deposit with the clerk of the court as earnest money the sum of $10,000 and such further sum as the court may direct upon the entry of an order directing a sale of the premises free and clear to competitive bidding. By agreement an order was entered authorizing the sending of a revised notice without prejudice to the claims of the respective parties as to the validity or invalidity of the amendment of Article 17 of the trust agreement, nor as to the necessity or non-necessity of the consent of the beneficiaries to the sale.

The respective motions to dismiss were ordered to stand as motions to dismiss the complaint as amended by the “supplemental amendment,” and upon hearing were sustained and the cause dismissed for want of equity. Several days later plaintiffs moved to vacate the order of dismissal and asked leave to file an additional amendment to the complaint as amended. These motions were denied. Plaintiffs appealed to the Supreme Court. Subsequently the property was sold by agreement of the parties for $503,000, from which sum, if the amendment be sustained, the holders of common units will receive approximately $20,000. With the consent of the parties the appeal was then transferred to this court.

The question presented is the validity of the amendment to Article 17. Plaintiffs concede the right of the trust managers to amend the trust agreement, provided 35 per cent or more of the unit holders do not object. They insist that the assent of the unit holders (only 2^ per cent of the preferred unit holders having filed objections) is ineffective because of misstatements and omissions in the letter of the trust managers to the unit holders recommending the amendment as fair and equitable.

The proposed amendment, if effective, would take .from the preferred unit holders 5 per cent (approximately $20,000) of the net proceeds of the sale of the trust property and give it to the common unit holders. No equities exist in favor of the latter. As junior claimants they would have received nothing in the foreclosure proceeding unless the preferred unit holders (owners of the first mortgage gold bonds) had been paid in full. Without doubt, the trust agreement was intended to preserve this situation, and Article 6 expressly subordinates payments to the common unit holders to full páyment to the preferred unit holders. By acceptance of certificates of interest the original holders of the common units acquiesced in that subordination. In so doing they surrendered nothing. If the unnamed present holders of such units are persons other than the original holders, they have no greater equities than their predecessors in interest. Their threat to refuse to assent to a termination of the trust, even though sound business judgment should dictate such termination, unless they are permitted to share in the proceeds of sale of the trust property before the preferred unit holders are paid in full, is taking an unfair advantage of an alleged failure to express the real intent of the parties to the trust agreement. Such efforts toward unjust enrichment should not be encouraged by the court or the trust managers.

Under Article 16, as defendants contend, the trust managers were merely required to send notice of the proposed amendment to the beneficiaries by mail, “briefly specifying the nature of such proposed amendment. ’ ’ However, the trust managers did more. They gave reasons supporting their recommendation that the proposed amendment was “fair both to holders of preferred and common units alike.” In so doing they became advocates, urging the adoption of the amendment. It thereupon became their duty to disclose fully and fairly to the unit holders — and particularly to the holders of preferred units — all facts upon which such holders were required to exercise judgment in determining whether to approve or oppose the amendment. People ex rel. Barrett v. Central Republic Trust Co., 300 Ill. App. 297, 309; Rothschild v. Jefferson Hotel Co., 56 F. Supp. 315, 321. The communication from the trust managers omitted all reference to Article 2, which, as admitted by counsel for defendants on oral argument, at least when standing alone, gave the trust managers full power to sell all" the trust property at any time, upon terms and conditions agreeable to them. We have been referred to no provision of the trust agreement limiting or restricting this power, and our examination discloses none. Under Article 17 of the original agreement, upon termination of the trust by lapse of time, or, in the manner therein provided by consent of not less than two-thirds of each class of unit holders, the trust managers are required to sell all of the then undisposed of trust property, as a whole or in parcels, at a public or private sale or sales. Articles 2 and 17 are not inconsistent. Nowhere in the trust agreement is any right given to the unit holders to approve or disapprove the terms and conditions of any sale made by the trust managers, and only when the trust managers voluntarily submit to the unit holders the question of the termination of the trust before the expiration of the 20 year period, as provided in section 2 of original Article 17, do the unit holders have any part in determining when the trust property shall be sold — the trust managers being obligated to sell the property immediately upon termination of the trust. The trust managers in their letter to the unit holders claim that the provisions of Article 17 relating to distribution “are susceptible of a possible construction permitting holders of common units to share and share alike with the holders of the preferred units in the distribution of the proceeds of the sale.” The language referred to is: “the net proceeds of such sale or sales, less the expenses thereof, and after the payment of all costs, charges and expenses of the Trustee, of the Trust Managers, and the Bondholders Committee, shall be in proportion to the number of interest units held by such Certificate Holders, respectively.” This is meaningless. Something has been omitted between the words “shall be” and “in proportion.” What was omitted is purely a matter of conjecture. It may have been a word like “paid,” or “distributed,” or it may have been and most likely was such word followed by appropriate provisions for the payment or distribution to the preferred unit holders, and, if anything remained after payment to them in full, to the holders of common units “in proportion to the number of interest units held by such certificate holders respectively,” as is provided in Article 6. The language of Article 6 is clear and unambiguous and provides the same distribution whether the trust is terminated under Article 17 or the property is sold by the trust managers under Article 2. Whatever ambiguity or uncertainty is created by the original Article 17, relates only to the distribution of the proceeds of a sale of the trust property upon termination of the trust as therein provided, and has no effect whatever on the power or duty of the trust managers to sell the trust property under Article 2, or the distribution of the proceeds of a sale made under that article. The unit holders were not fully advised, by copies or otherwise, of the provisions of Articles 6, 16, and 17, so that they could judge the effect of these articles for themselves. No reference whatever was made to Article 2. All that the unit holders had before them were the conclusions of the trust managers and their counsel that there was a ‘ ‘ serious doubt whether the trust managers have authority to authorize the sale-of the property except pursuant to the provisions of Article 17, which covers the termination of the trust.” This doubt is the foundation of their recommendation that the proposed amendment be approved as fair to both classes of unit holders" There is no substantial basis for it. It was the duty of the trust managers to give the unit holders facts, in addition to their conclusions. The unit holders had the right to rely upon the performance of that duty by the trust managers and were not required to go beyond the letter sent them to ascertain facts which the trust managers were obliged to disclose. Farwell v. Pyle-National Elec. Headlight Co., 289 Ill. 157, 167. The statement of the trust managers being misleading and erroneous, the purported approval of the proposed amendment by the unit holders is ineffective and void. Farwell v. Pyle-National Elec. Headlight Co., supra, Gilman, G. & S. R. Co. v. Kelly, 77 Ill. 426, 437. As the good or bad faith of the trust managers is not involved, it is immaterial whether they acted with or without the advice of counsel. The cases cited by defendants relating to the exercise of discretionary powers by trustees have no application.

The plaintiffs acted promptly, filing their complaint within the time given for objections to the proposed amendments, and if the defendants were in doubt as to their rights or duties, they should have welcomed the opportunity to cooperate with the plaintiffs in getting a judicial construction of the trust agreement before taking from the preferred unit holders and giving to the holders of common units the sum of approximately $20,000, involved in this proceeding.

The decree of the trial court is reversed and the cause is remanded with directions to proceed in conformity with the views expressed in this opinion.

Reversed and remanded with directions.

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


source: Caselaw Access Project

author: Mr. Justice O’Connor

license: Public Domain

text:
    H. C. Ohge, Appellee, v. La Salle-Randolph Garage Corporation, Appellant.
    Gen. No. 43,667.
    Opinion filed May 6, 1946.
    Released for publication May 27, 1946.

      George A. Gordon, of Chicago, for appellant.
    Baker, Holder, Hagstrom & Murray, of Chicago, for appellee; Joseph G. Hagstrom and Edward J, Murray, both of Chicago, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.

Plaintiff brought an action against defendant to recover damages for the loss of a 1942 Pontiac sedan automobile and certain goods, chattels and personal property which were in the rear compartment, referred to in the briefs as the trunk of the automobile. He also claimed other items of damage but on the trial the only claim made was for the contents of the trunk. There was a verdict and judgment for $600 in plaintiff’s favor and defendant appeals.

The record discloses that May 24, 1943, plaintiff, with his wife, drove the Pontiac automobile from Indianapolis, where they resided, to Chicago. They reached defendant’s garage about 6 o’clock in the evening of that day, left their car in defendant’s garage, received a check and then went into the Hotel Sherman which adjoins and is immediately east of the garage, where they stayed all night. About 5 o’clock in the afternoon of the next day plaintiff went to the garage, presented his claim check at the cashier’s cage but was informed that the car had been stolen. The loss was reported to the police.

Plaintiff was a traveling salesman and field engineer for the Clayton Manufacturing Company, manufacturing valves, and his duties consisted of selling valves to jobbers and educating them as to the use of his company’s products. Prom Chicago he intended to go to Kansas City and St. Louis on business but on account of the fact that his car and the contents had been stolen he did not continue his trip until May 28.

The evidence shows that when plaintiff drove his car into the garage, which is located on the northeast corner of Randolph and La Salle streets, in Chicago, he turned it over to defendant’s employees. The garage was about 4 stories high and the car was taken on an elevator to one of the upper floors. The trunk was in the usual place at the rear of the automobile and in it were movie cameras and projectors together with valve models which were incident to the business in which plaintiff was engaged.

There was but one entrance and exit to the garage which would permit but one automobile to pass into or out of the garage at a time. Plaintiff was given a check or slip, as is usual, when he left his car with defendant. He testified that he told defendant’s agent that he wanted to unload some grips to take into the adjoining Hotel Sherman, which he did, and examined the door of the trunk to see if it was locked before he left for the hotel, which he and his wife then entered and registered. He testified further that the things which he and his wife personally needed on the trip were inside of the car — -“I had a small bag with personal articles for the night’s use.”

Counsel for defendant in his reply brief, in explaining why plaintiff sought only to recover damages for the loss of the contents of the trunk says: “To clarify the matter for this Court, the fact is that plaintiff was compensated for the loss of his car before it was recovered and the car was turned over to the party who made the payment. This statement of fact, while not supported by the record, is presented in this brief without any objection by counsel for plaintiff.” There is no explanation as to what took place when the automobile was taken from the garage. In these circumstances obviously defendant is liable for the loss of the car. Clemenson v. Whitney, 238 Ill. App. 308; Byalos v. Matheson, 243 Ill. App. 60, affirmed, 328 Ill. 269; Miles v. Int. Hotel Co., 289 Ill. 320; Schaffer v. Washington Safety Dep. Co., 281 Ill. 43; Cumins v. Wood, 44 Ill. 416; Heyman & Bros. Inc. v. Marshall Field & Co., 301 Ill. App. 340.

David Meyers, president of defendant corporation, testified that he had been operating the garage for ten years, overseeing the employees, etc.; that he supervised the management of the entire business; that the garage would hold about 200 cars; that there were about twelve employees. That defendant made no charge for storing the contents of an automobile. “We have an office to store any articles in a car, if the customer wants it done.” That signs were posted all over for that purpose some of which he produced and they are in the record; that these signs were in the garage May 24, 1943, when defendant drove his car in; that the signs were illuminated and located between two elevators facing the entrance to the garage. When a car drives in the signs face it and the signs cannot be missed by the driver or anyone in the car. One of these signs was enclosed by a black frame about 2 x 2% feet and on a white background in, large letters was printed: “Please check valuables with cashier. Not responsible for articles left in cars. The Management.” Directly below this sign was a larger sign which also faced the entrance, enclosed ■ in a black frame about 2 x 3% feet with a white background on which the following was painted in large letters: “Bead your claim check.' Employees do not have authority to accept responsibility for articles left in cars. Free checking service in office. Bemove key to spare tire compartment — from your key ring. Thank you. David X. Meyers and Staff.”

It is clear that the trunk at the rear was locked at the time. Counsel further say that “Within the car, in open line of vision to anyone seated in the automobile, were articles such as traveling bags, cases, models, cameras, projectors, all suitable, incident and necessary to the occasions of traveling.” There is no merit in this statement. The items mentioned were not visible. They were locked in the trunk at the rear of the car.

There was no evidence offered that the defendant or any of its employees knew that plaintiff was a traveling salesman and was en route to St. Louis, Kansas City or any other place. There is not a word of evidence or argument on this question to indicate that any of defendant’s employees knew that plaintiff had anything in the car which he would use on his trip; that he was going to take a trip, or that he had ever been to the garage before.

Counsel for defendant contends that the court erred in denying defendant’s motion for judgment notwithstanding the verdict and also in denying its motion for a new trial and that in any event there is no evidence to warrant the amount of damages assessed, except as to the value of nine of the articles, the total value of which amounted to $389.50. But two of these, .viz., the bag and its contents amounting to $44 could be considered personal effects, while the verdict and judgment is for $600.

Plaintiff in his complaint set up 34 specific items and the loss occasioned as to each, the total aggregating $951.45. In reply to this contention counsel for plaintiff say that: “Where damages are of such a character that their amount is properly to be estimated by the jury from the facts and circumstances in evidence, there may be an award of substantial damages, although there is no evidence directed toward their amount.” In the instant ease we think there is no merit in this contention. The only items plaintiff was claiming damages for, as the case went to trial, were the losses occasioned by the failure of defendant to return the 34 items mentioned in the complaint. We hold that no recovery can be had in this case for any item plaintiff had in his locked trunk. Willis v. Jensen, 82 Utah 148, 22 Pac. (2nd) 220. There defendant operated a garage. Plaintiff drove in, got a claim check and went over to his brother’s home. At the time there were two extra tires and tubes, attached to the car, and inside the car 4 sample cases containing samples of merchandise plaintiff was selling. The following morning plaintiff returned to the garage, presented his check and was informed that the car had been delivered to a third party. Later in the day the car was recovered but the two extra tires, tubes and merchandise in the 4 sample cases were missing. Plaintiff brought an action against defendant to recover the value of the tires, tubes and merchandise. Judgment was entered in plaintiff’s favor for the value of the two tires with tubes. The case was appealed to the Supreme court where the judgment was affirmed. The court said: “In the present case there was no express notice of the presence of the sample cases. There is no evidence that the defendant or any of his employees had knowledge of the presence of the cases, or of their contents. ” In a specially concurring opinion it was said: “There may be some things, not a part of the automobile or attached to it, such as an ordinary traveling bag or suitcase, in the car on the seat or otherwise so open and obvious that but to look is to see it, which, though no notice is given or special attention called to it by the bailor, may nevertheless be covered by the bailment, not only as to the bag or suitcase itself but also as to the contents of ordinary wearing apparel or the like, but not as to unusual things such as money, jewelry, or other unusual things or articles or things not of personal effects ordinarily expected to be carried in a bag or suitcase for personal use in travel.” In the instant case, looking at the automobile (and the trunk) defendant would have no notice as to the contents of the trunk.’ Substantially to the same effect are Rogers v. Murch, 253 Mass. 467; D. A. Schulte, Inc. v. North Terminal Garage Co., 291 Mass. 251; Moss v. Janetti Body Co., 101 Pa. Super. Ot. 1.

Since in any view .of the facts plaintiff was not entitled to recover, the court should have entered judgment notwithstanding the verdict.

The judgment of the Circuit court of Cook county is reversed.

Judgment reversed.

Matchett, P. J., and Niemeyer, J., concur.


author: Presiding Justice Friend.

text:
    People of State of Illinois ex rel. Florence L. Klopfer and Henry Klopfer, Appellants, v. City of Chicago et al., Appellees.
    Gen. No. 43,339.
    opinion filed December 18, 1945;
    rehearing denied February 19, 1946;
    released for publication February 19, 1946.
    Harry P. Hensel and Crow & Loeff, for appellants; Harry P. Hensel and Martin G. Loeff, of counsel;
    Barnet Hodes, Corporation Counsel, and Thomas E. Kluczynski, for appellees.
   Opinion by

Presiding Justice Friend.

Not to be published in full.


author: Presiding Justice Matchett.

text:
    Ellen Holt, Appellant, v. Chicago Hair Goods Company, Appellee.
    Gen. No. 43,676.

      opinion filed May 6, 1946;
    released for publication May 27, 1946.
    Henry L. Blim, for appellant;
    Phillips & Suekoff, for appellee; Raymond I. Suekoff and Walter Gainer, of counsel.
   Opinion by

Presiding Justice Matchett.

Not to be published in full.


text:
    Giovanni Fiorella, Appellant, v. Louise Fiorella, Appellee.
    Gen. No. 43,616.
    opinion filed May 6, 1946;
    released for publication May 27, 1946.
    Herman P. Haase, for appellant;
    Louis B. Goldberg, for appellee.
   Opinion by

Justice Niemeyer.

Not to be published in full.


author: Mr. Justice Scanlan

text:
    Cornelia DeYoung, Appellee, v. Sadie H. Ralley, Executrix of Will of Leopold Ralley, Deceased, Appellant.
    Gen. No. 43,379.

      Opinion filed April 11, 1946.
    Rehearing denied June 12, 1946. Released for publication June 13, 1946.
    Braun & Brodie, of Chicago, for appellant; Philip E. Ryan, of Chicago, of counsel.
    Joseph D. Ryan and Louis P. Miller, of Chicago, for appellee.
   Mr. Justice Scanlan

delivered the opinion of the court.

On December 11, 1941, plaintiff was injured as she was crossing Chicago avenue, in Oak Park, Illinois, in a northerly direction on the west crosswalk of Elm-wood avenue, when she was struck by an eastbound automobile driven by Leopold Bailey, the original defendant in the suit. Subsequently he died and Sadie H. Bailey, executrix of his will, was substituted as defendant. The jury returned a verdict finding defendant guilty and assessing plaintiff’s damages at $8,958.33. Defendant appeals from a judgment entered upon the verdict.

The grounds of recovery relied upon by plaintiff in her amended complaint are: Negligence generally; high speed; failure to keep a lookout; failure to yield the right of way to a pedestrian upon the crosswalk; failure to sound a horn or warn plaintiff; driving with a sheet of celluloid over the windshield, which partially obscured the driver’s vision. Plaintiff’s theory of fact was that “the plaintiff, who had alighted from a bus, after letting some traffic pass, started north on the west crosswalk of Elmwood Avenue. She looked both ways until she reached the center of the street, where she stopped to let westbound traffic pass and was struck by Bailey’s eastbound automobile. The driver had a sheet of cellophane pasted over his windshield, supposedly to keep it from getting frosted. This interfered with his clear view of the road ahead, and he did not see plaintiff at all until after he had struck her.” Defendant’s theory is “that this was a dark, poorly lighted street, with trees along the sides, which arched over the street, and that the plaintiff and her daughter were thereupon rendered more or less invisible, especially as they were wearing dark clothing; that the deceased noticed them when about 10 feet away and immediately attempted to stop; that the plaintiff had a full, clear and unobstructed view of the street, insofar as the approach of the decedent’s automobile was concerned and did not at any time see it approaching; that she reached a point where she was still south of the center of the street and in the path of the eastbound traffic and thereupon turned and faced in the opposite direction; that according to the testimony of at least one of the plaintiff’s own witnesses, she stepped into the path of defendant’s automobile when it was only 20 feet away; that on the face of the record she was guilty of the grossest kind of contributory negligence, which would bar her recovery; and that therefore the court should have also directed a verdict on the negligence count.” For the purposes of this appeal it is sufficient to state that each party introduced evidence tending to support her theory of fact.

Defendant raises a number of points in support of her contention that the instant judgment should be reversed, but in our opinion it is only necessary for us to consider one, viz: “The court erred in permitting the plaintiff to testify to all of the facts relating to the accident after she had been asked but one question (an admission) on cross-examination under Section 60 by defendant’s counsel.” Plaintiff was called as a witness in her own behalf and after a few preliminary questions the following occurred: “Q. [by Mr. Byan, plaintiff’s attorney]: Then what next occurred after you got off the bus? Mr. Brodie [attorney for defendant]: That is objected to. Mr. Byan: He did not object to asking these preliminary questions, now he is objecting to her telling how the accident happened, and if he does, of course, I cannot introduce her testimony. It is not competent evidence against the executor of the estate so that ends that. The Court: All right. Mr. Byan: That is all.” (Italics ours.) Whereupon plaintiff rested her case in chief. Defendant called plaintiff as a witness under Section 60 of the Civil Practice Act of Illinois [Ill. Rev. Stat. 1945, ch. 110, par. 184; Jones Ill. Stats. Ann. 104.060] and, interrogated by defendant’s counsel, the witness stated that on July 21, 1942, in the office of counsel for defendant, she testified by deposition before a notary public. The following then occurred-: “Q. [by defendant’s counsel]: At that time, were you asked this question and did you make this answer? ‘Q. Did you see the automobile that you had the accident with at any time before the accident happened?’ And did you answer, ‘No, sir.’? Mr. Byan: Just a moment, I object to that. It is incompetent evidence. Mr. Brodie: It is only for one purpose, it is an admission against interest. The Court: I think she may answer. The Witness: A. No, sir. Q. You mean you did say it or you did not say it? A. I did say it.” (Italics ours.) Thereupon plaintiff’s counsel proceeded to interrogate plaintiff as to what occurred at the time of the accident. Defendant’s counsel objected to the examination upon the ground that it was improper; that he did not examine plaintiff as to what occurred at the time of the accident. Counsel for plaintiff contended that the question put to the witness by defendant opened the door to the transaction, and thereupon the trial court overruled the objection of defendant and despite repeated objections of defendant permitted counsel for plaintiff to interrogate her fully as to all that occurred at the time of and just prior to the accident and also as to the injuries and damages she sustained as a result of the accident. At the conclusion of the examination of plaintiff by her counsel defendant’s counsel asked that the record show that he was not asking any questions of the witness, and he thereupon made the following motion: “Mr. Brodie: I move to strike all of her testimony, and especially her testimony with reference to the accident, on the ground that it is not competent and on the further ground that the only testimony elicited when I questioned her under Section 60 was a request for testimony relating to an admission against interest, made at a certain time and place, and not any questions relating to the accident itself. The Court: Overruled.” The evidence given by plaintiff was so helpful to her case that defendant is justified in arguing that it may have controlled the verdict of the jury. That the trial court erred in permitting the examination by plaintiff’s counsel, see Merchants’ Loan & Trust Co. v. Egan, 222 Ill. 494, where the law bearing upon the question as to what evidence adduced by the adverse party from a disqualified witness will remove the disqualification of the witness and permit him to testify upon all of the issues in the case, is exhaustively discussed. The decision in that case, in our judgment, settles the instant contention, and adversely to plaintiff. In Garrus v. Davis, 234 Ill. 326, the court followed the ruling in Merchants’ Loan & Trust Co. v. Egan, and said (pp. 330, 331):

“The first section of the act in regard to evidence and depositions removes the common law disqualification on account of interest in the suit or proceeding except as limited by subsequent sections. The second section of the act renders any party to a suit incompetent to testify as a witness ‘of his own motion or in his own behalf, . . . when any adverse party sues or defends as . . . executor, administrator, heir, legatee or devisee of any deceased person, . . . unless when called as a witness by such adverse party so suing or defending,’ except in certain cases specified. The prohibition of this section of the statute is against the party testifying in his own behalf of his own motion. There is no, prohibition against the adverse party calling- as a witness a party disqualified by the statute from testifying on his own motion and in his own behalf, and if such adverse party chose to do so he could examine the witness upon every matter pertinent and relevant to the issues involved. We do not, however, understand and construe the statute to have been intended to mean that if in such case the witness is called by the adverse party to testify as to one thing or upon one matter the disqualification against his testifying of his own motion and in his own behalf is waived or removed and that he is thereby rendered competent to testify upon all the issues involved in the ease. To so construe the statute would be in a measure to defeat its objects.”

If defendant had examined plaintiff as to the accident the disqualification of the witness would have been removed and her counsel would then have had the right to cross-examine her fhlly as to the accident. Combs v. Younge, 281 G. App. 339, cited by plaintiff in support of the trial court’s ruling, is a case in point. The opinion of the court shows (p. 345) that “During the trial in this action, and as part of his evidence in chief, the plaintiff called the defendant for examination under section 60 of the Civil Practice Act and by leading questions examined him fully and with exactness upon the disputed and material issue* of the actionable negligence of the defendant.” The Appellate court held, of course, that in view of the plaintiff’s action the incompetency of the defendant was removed and the defendant’s counsel had the right to examine defendant as to all matters relative to which he had been interrogated by plaintiff. In the instant case, defendant did not interrogate plaintiff as to what actually happened at the time of the accident but merely proved by the witness that in the taking of the deposition she had made a certain answer to' a certain question, the counsel stating that the answer was competent as an admission against interest. Plaintiff’s counsel then had the right to interrogate plaintiff as to any other part of the deposition that related to the subject matter that might tend to explain or modify the alleged admission. (See Merchants’ Loan & Trust Co. v. Egan, supra, p. 502.) But plaintiff’s counsel did not see fit to follow the correct procedure and he caused the court to hold that defendant by putting the single question to plaintiff had thereby rendered her competent to testify generally in her own behalf. While counsel admits that defendant had the right to prove the alleged admission by producing the court reporter or some person who heard the admission made, nevertheless, he argues that defendant’s question to plaintiff went to “the meat of our case” and thereby her disability to testify generally was removed; that defendant “in calling the plaintiff to prove an admission by her, was thereby introducing substantive evidence.” We have carefully considered the argument in support of the ruling of the court, but we are satisfied that the ruling was erroneous and that it calls for a reversal of the judgment. Defendant called plaintiff, a hostile witness, under Section 60 of the Civil Practice Act and counsel limited the examination to a single purpose, an admission against interest, and there is force in the argument that if the question of the incompetency of the witness be ignored, nevertheless, the cross-examination by plaintiff’s counsel was not germane to the evidence adduced from the witness by defendant’s counsel and was, therefore, improper.

As this case may be tried again we deem it advisable to state that the contention of defendant, strenuously argued, that “plaintiff failed to exercise, under the evidence in this case, due care for her own safety as a matter of law,” is without merit. (Italics ours.) When defendant’s brief was filed in this court the case of Moran v. Gatz, 324 Ill. App. 45, had not been passed upon by the Supreme court, and defendant was justified in arguing that it tended strongly to support her contention. The Supreme court later passed upon that case (see Moran v. Gatz, 390 Ill. 478) and squarely held that the Appellate court erred in holding that the plaintiff therein was guilty of contributory negligence as a matter of la\w and that it was for the jury to determine whether the plaintiff was in the exercise of ordinary care for his own safety at the time and place in question. The decision of the Supreme court, in our judgment, disposes of defendant’s contention, and adversely to her.

The judgment of the Superior court of Cook county is reversed and the cause is remanded for a new trial.

Judgment reversed and cause remanded for a new trial.

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


author: Mr. Presiding Justice Kiley.

text:
    Chester A. Bowles, Administrator, Office of Price Administration, for and on behalf of the United States, Appellee, v. Beatrice Alexenburg et al., Individually and as Co-partners, Trading as Harper Market, Appellants.
    Gen. No. 43,574.

      Opinion filed April 24, 1946.
    Rehearing denied June 5, 1946. Released for publication June 5, 1946.
    Golan & Golan and Edgar A. Jonas, all of Chicago, for appellants.
    Amos J. Coffman, Regional Attorney, and George E. Leonard, Regional Litigation Attorney, for appel-lee; Jacob Cohen, Chief, Appellate Unit, of counsel.
   Mr. Presiding Justice Kiley.

delivered the opinion of the court.

This is a consolidation of two actions under the Emergency Price Control Act of 1942 (56 Stat. 23; 50 U. S. C. A. App. sec. 901, et seq.). Under section 925 (a), (c) plaintiff is authorized to apply for injunctions in State courts. Under section 925f (2) he has authority to petition a State court for the suspension of licenses of those under his jurisdiction where he has reason to believe that violation of the provisions of a license to do business, or regulations, etc. have beeii repeated. In the first proceeding commenced in September, 1944, an injunction issued restraining defendants from violating ceiling prices upon meat. These prices were established pursuant to regulations promulgated by plaintiff under authority of the Act. After warning, the second proceeding was begun in March, 1945, seeking suspension of defendants’ license which had theretofore been issued by plaintiff under the Act. March 27, 1945 the same violations alleged in the suspension proceeding were made the basis of a petition for a rule to show cause why defendant should not be held in contempt of court for violation of the injunction issued in thé original action,-'April.3.0, 1945..the suspension, and. contempt proceedings were consolidated. May 24, 1945 after a hearing the trial court suspended defendant’s license for sixty days; and adjudging defendants guilty of contempt, fined Beatrice Alexenburg and Albert Alexenburg $200 each, and sentenced Max Alexenburg to the County Jail for a period of sixty days. Defendants have appealed.

The central question is whether the contempt proceeding is civil or criminal. This is so because the order does not recite the presence of defendants when the order was entered. If the contempt is civil, there is no requirement that the order contain that recital. Defendants contend that plaintiff, representing an Agency of the United States, cannot maintain civil contempt proceedings. Plaintiff contends to the contrary and insists that, in Ulinois, proceedings for violation of prohibitory injunction must be civil.

Few facts are needed for an understanding of the issues. Defendants’ business is located in Chicago, and amounts to about $200,000 annually. The amounts of the excesses over ceiling prices in the transactions specified as violations are relatively insignificant. The violations alleged as a basis for the injunction in the original action were admitted. The injunction issued pursuant to stipulation.

There is no dispute that contempt proceedings in this State for violation of a prohibitory injunction are civil in nature. This has been repeatedly held to be the rule. Loven v. The People, 158 Ill. 159; O’Brien v. The People, 216 Ill. 354; Flannery v. The People, 225 Ill. 62; O’Brien v. International Ladies Garment Workers Union, 214 Ill. App. 46. These cases hold that contempt proceedings for violation of a prohibitory injunction, seek to advance a remedy and, only incidentally, to vindicate public justice and are, therefore, civil contempt proceedings.

Plaintiff had the right to sue in the United States District Court .or in the courts of this State. Having chosen the courts of this State, he is bound by their procedures. Parthun v. Elgin J. & E. Ry. Co., 325 Ill. App. 408. The issue on the contempt proceeding involves a matter of procedure. Rothschild & Co. v. Steger Piano Co., 256 Ill. 196, 207. If plaintiff cannot maintain a civil contempt proceeding, therefore, he cannot maintain contempt proceedings in this State for violations of injunctions which he is authorized by Congress to sue out of State courts.

To sustain their contention defendants rely on Bowles v. Camillaci, 53 Fed. Supp. 976; and Federal Trade Commission v. A. McLean & Son, et al., 94 Fed. (2d) 802. The first case was decided by a United States District Court in the State of New York. The second by the United States Circuit of Appeals for the 7th District. In the McLean case the Circuit Court decided that an Agency of the United States could not maintain a civil contempt proceeding since it represented no private interest of its own and could not avail itself of procedures intended to safeguard the interests of private persons. The United States Supreme Court in McCrone v. United States of America, 307 U. S. 61, decided that the United States can maintain the civil proceedings. The contention had been made that the United States and its agents could not do so. It is true that in that case the Collector of Internal Revenue was seeking information in an income tax matter under specific authority of Congress. The Supreme Court, however, in a footnote expressly refers to the Federal Trade Commission v. McLean case in rendering the McCrone decision. We think that the McCrone case is decisive of the central issue in this case. Unless that decision were the rule, the authority given plaintiff by Congress to apply to State courts for injunctions to enforce the Emergency Price Control Act, would he ineffective indeed.

The proceeding was treated as a civil contempt in the trial court. Defendants did not seek to file an answer so as to purge themselves. They made the motion for the consolidation of the proceedings, and we assume had in mind at the time the rule they now insist on, that a criminal contempt hearing cannot he joined with the hearing in a civil proceeding. There was no objection to the hearing of testimony on the contempt matter. They, themselves, produced testimony.

We find the contempt proceedings were civil in nature. Violations alleged as the foundation of that proceeding were likewise the foundation of the suspension proceedings. Defendants moved to consolidate and they cannot now complain of the consolidation. Since the contempt proceeding was civil, the consolidation served to expedite disposal of both proceedings.

The contempt order provided that “Max Alexenburg be sentenced to the County Jail for sixty days. . . . Let capias issue and be stayed until June 10, 1945.” Complaint is made that the order does not limit the jail sentence by means of the words, “or until discharged according to law. ’ ’ These words are not necessary. They could neither benefit nor prejudice Max Alexenburg. Bonney v. Bonney, 151 Ill. App. 221; Kanter v. Clerk of the Circuit Court, 108 Ill. App. 287. We also think the sentence is definite.

Defendants Beatrice and Albert Alexenburg contend that the contempt order is void as to them since it fails to name anyone to receive the fine imposed upon them. They rely upon Smith v. Tenney, 62 Ill. App. 571; McDonald v. The People, 86 Ill. App. 558; The People v. Saylor, 238 Ill. App. 142; and Farwell v. Horton, 301 Ill. App. 372 to sustain the contention. ' In all but the Farwell case the contempt orders provided either for jail sentences until the fines were paid, or jail sentences unless the fines were paid. The order was reversed in the Smith case because no notice was given to Smith of the application for the contempt order and because the order was defective in that it was wholly incapable of performance for want of a person to receive payment of the fine. In the McDonald case the court found reversible error in a provision under which the imprisonment of each of three respondents might continue, not only until his own fine, but those of the others were fully paid. The court said the order was defective in failing to name someone to receive the payments of the fines because where imprisonment is imposed in default of payment of a fine, the contemnor should be able to understand from the order precisely what he must do to • obtain his discharge. It further said it was unnecessary, in view of the reversible error noted, to decide whether failure to name someone to receive payments of fines was of itself reversible error. In the Saylor case the order was held void for failure to set out the facts stating the offense of which respondents were' found guilty. The court added on authority of the McDonald case, “the order should also state to whom the fines are payable . . . .” In the Farwell case respondent was sentenced to imprisonment and ordered to pay a fine. The court held, citing the McDonald and Saylor cases, that that part of the order fining respondent was defective “in not stating to whom the fine was payable.”

Plaintiff points out that following the Smith and McDonald cases, the Appellate Court in Oster v. People, 94 Ill. App. 288, held that the Smith and McDonald cases should be modified to the extent that it should not be held reversible error where the contempt order fails to designate a person to whom the fine should be paid. The court there held that the Schools Act, in sections in effect at the time of the instant proceeding, as Secs. 238-243 [pars. 261-266], Chap. 122, Ill. Rev. Stats. 1943 [Jones Ill. Stats. Ann. 123.330 et seq.], supplied the deficiency. The defendants do not deny that; these sections were effective at the time of the instant trial.

Defendants contend that in the Saylor and Farwell cases, the Appellate Courts followed the McDonald and Smith cases and not the Oster case. Neither the Saylor case nor the Farwell case gave or referred to the reason, announced in the McDonald case, underlying the holdings in the Smith and McDonald cases. It is plain that the reason is not applicable in the instant case where there is no imprisonment linked to the fines.

In view of the sections of the School Act referred to, under which the fines in this case were payable to the County Superintendent of Schools, we believe that the Oster case is the proper precedent for us to follow. We, therefore, conclude there is no merit in defendants ’ contention.

Defendants say that the order is not definite and clear so as to be understood by them or to show authority of the- court to make the order. The record in this case contains the pleadings leading to the hearing upon the contempt matter. The transcript of the testimony on the violations is before us. The order of contempt recites the court’s jurisdiction, its full advice, the hearing of the evidence and the finding that its injunction of November 1, 1944 was violated by defendants’ sales of meat in excess of the ceilings. We believe in this respect the order was sufficient as a basis for the fines and sentence. We believe also that the order is understandable.

We believe there is no merit to defendants’ contentions that the order of suspension of defendant’s business is disproportionate to the offense. They say, at worst the testimony showed but $7.00' in excess sales, and that sixty days suspension would result in a loss of $34,000 in business. Defendants stipulated to the entry of the injunction, thereby admitting guilt in violating the O.P.A. regulations. Thereafter, before the suspension or contempt proceedings were initiated, defendants were warned of repeated violations. The amount of the excesses in the violations proved is unimportant. There is no contention the suspension exceeds the limit of the Emergency Price Control Act. There is no contention made that the sixty day sentence is excessive.

The orders of the Circuit Court are affirmed.

Orders affirmed.

Lewe and Burke, JJ., concur.


author: Mr. Presiding Justice Stone

text:
    Loren E. Wood et al., Appellees, v. Velma Dillon et al., Appellants. Olen Dillon et al., Co-parties.
    Term No. 46F1.

      Opinion filed May 6, 1946.
    Released for publication May 31, 1946.
    D. L. Duty, of Marion, for appellants.
    Hickman & Hickman, of Benton, W. A. Miller and A. S. Pfaff, both of Salem, for appellees.
   Mr. Presiding Justice Stone

delivered the opinion of the court.

In the months of May and June 1941, Velma Dillon, Harrol Mosley, Lillian Hall, Ruby Batts, Stanley Mosley and Geoffrey Mosley, defendants appellants (hereinafter designated as defendants) being joined by their respective husbands and wives in the instruments of conveyance executed and delivered through A. M. Burpo and Basil Killion, real estate brokers, conveyed to Loren E. Wood, Goldie Pitts, Peter L. Guth, Sylvia Brixius and William Brixius, plaintiffs appellees (hereinafter designated as plaintiffs) certain oil and gas rights, in and under a tract of land in Franklin county, Illinois.

These mineral deeds contained covenants of warranty in the usual form, and were prepared by A. M. Burpo, who took them to the various grantors for their signature, and were delivered to Peter Guth, who paid Burpo the agreed purchase price for the respective interests. None of the grantors ever met any of the grantees before or at the time of the execution and delivery of the mineral deeds in question, the entire transaction being conducted through real estate brokers, Burpo and Killion for the grantors and Guth, and several other brokers, Maddingly and Harmon, for the grantees.

The covenants of warranty in the mineral deeds in question failed and plaintiffs brought suit in the circuit court of Franklin county, for breach of warranty of title, making the respective husbands and wives joint defendants. The complaint consisted of five counts, each mineral deed being declared upon and a copy of each deed attached as an exhibit, all counts being identical except the difference in names of the respective grantors and grantees.

Answer was filed by defendants admitting and denying certain allegations of the complaint and pleading special matters of defense, to the effect that all the plaintiffs, by and through their agents and servants had specifically waived the respective covenants of warranty in said deeds and was therefore estopped from relying thereon. To which answer, reply was filed by plaintiffs categorically denying the allegations in the answer.

Thereafter said cause was set down for pretrial conference and hearing, in which a stipulation was made and entered into to the effect that the sole issue to be determined was whether or not plaintiffs had waived their right to rely upon the covenants of warranty contained in said mineral deeds and were estopped by their action and conduct. The stipulation did not mention the nature or evidence of the waiver agreement.

Upon this issue, the cause went to trial before a jury resulting in a verdict in favor of plaintiffs Sylvia Brixius and William Brixius and against defendant Geoffrey Mosley in the sum of $1,000 in favor of the same plaintiffs and against defendant, Stanley Mosley in the sum of $1,000; in favor of plaintiff Peter L. Guth and against defendants, Lillian Hall and Ruby Batts in the sum of $2,000; in favor of plaintiff Goldie Pitts and against defendant Harrol Mosley in the sum of $1,000; in favor of plaintiff .Loren E. Wood and against defendant, Velma Dillon in the sum of $1,000. Motion for new trial was overruled and judgments entered in accordance with the above verdict. From which judgments, defendants prosecuted their appeal to the Supreme Court of Illinois and the cause was thereafter transferred to this court.

It is alleged as error relied upon for reversal (and we believe this to be the crux of the whole case) that the trial court erred in refusing to admit proof of the waiver of warranty alleged in the answer of defendants. On the trial of the case;, defendants offered to prove by one A. M. Burpo and one Basil Bullion that they, the said Burpo and the said Bullion, were present at all times during the conversations and negotiations leading to and concluding the transactions between the plaintiffs and the defendants as a result of which the mineral deeds in evidence were executed and delivered; and that the said Peter Guth was informed and told by both the said Burpo and the said Bullion that the oil rights in question were then in dispute and in litigation and that the Mosley heirs would not warrant the title thereto; and that the said Guth stated to them, where in the presence of both of them, that he had examined a pipe line abstract to this property and was satisfied with the title as it was, and would waive the warranty contained in said deeds and not rely thereon; and that when the said Burpo and the said Bullion suggested that the Mosleys insisted that the warranty be stricken out from said deeds, the said Guth told the said Burpo and the said Bullion that while he did not rely upon said warranty, that he did not want them stricken out, because he intended to resell the mineral rights being conveyed thereby and that it might cause him some trouble in the sale thereof.

To this offer of proof, the court sustained an objection on the part of plaintiffs. It is contended on behalf of defendants, that a waiver of covenant by the party for whose benefit it is inserted may be shown by parol to have been made, and such waiver is not a modification or change in the terms of the original agreement.

The principle that parol evidence is not admissible to contradict, vary or materially affect written instruments applies to actions based upon covenants. In the absence of fraud, ambiguity, accident or mutual mistake the general rule may be said to be that parol evidence is not admissible to contradict, vary or in any way affect the scope of an unlimited and unrestricted covenant of title in a conveyance of land. A verbal agreement made at the time of the conveyance or prior thereto that one of the parties should be released from the covenants in the conveyance cannot be shown to defeat an action on the covenants. Under this rule, an unqualified covenant cannot be varied by proof that the purchaser knew of the defects in title and intended to except them from the operation of the covenants. 14 Am. Jur. 568, 569, sec. 135.

In the case of Beach v. Miller, 51 Ill. 206, at page 211, the Supreme Court said, “Fact of knowledge of possible title defect does not nullify the effect of a warranty. Where a person obtains covenants for title, he has the right, when obtained, to rely upon them and enforce their performance or recover damage for their breach. The vendor is under no compulsion to make covenants when he sells land, but having done so he must keep them or respond in damages for injury sustained by their breach. Nor is it a release or discharge of the covenant to say that both parties knew it was not true, or that it would not be performed when it was made. A person may warrant an article to be sound when both buyer and seller know it is unsound; so the seller may warrant the quality or quantity of an article he sells when both parties know that it is not of quality or does not contain the quantity warranted. In fact, the reason the purchaser insists upon the covenant for title, or a warranty of quality or quantity is because he either knows or fears that the title is not good or that the article lacks in quality or quantity. If he were perfectly assured on these questions he would seldom be tenacious in obtaining a covenant of warranty.”

The case of Hagen v. Lehmann, 317 Ill. 227, was a suit brought to recover the amount of certain special assessments covenanted against in a warranty deed. Defendants therein claimed that as a part of the consideration mentioned in the deed, plaintiffs agreed that and undertook to pay the unpaid instalments of these special assessments. The court there held that the effect of permitting this to be shown by parol evidence, would be to alter, vary and cut down the written engagement and covenants of the deed.

Counsel for defendants cite a line of cases holding that a waiver of a covenant by the party for whose benefit it is inserted may be shown by parol to have been made, and that such waiver is not a modification or change in the terms of the original agreement. According to the profferred testimony of the witnesses, A. M. Burpo and Basil Bullion, when they insisted upon the warranty being stricken out, Gruth, acting in behalf of plaintiffs, said that while he did not rely upon said warranty, that he did not want it stricken out. There being this understanding, that the warranty would remain in the deeds, and that warranty so appearing in the exhibits admitted in evidence on the part of plaintiffs, to admit parol evidence to show a waiver of the covenants, would be to change and vary the terms of the written instrument. This is in accord with the reasoning of the court in the Beach case, supra, where the court held that it is not a release or discharge of the covenant to say that both parties knew that it was not true or that it would not be performed when it was made.

We are therefore constrained to hold that the trial court did not err in sustaining objection to this testimony offered by defendants.

Defendants contend that because of the fact that there was no motion to strike the answer of defendant, plaintiffs filed a general reply; and because of the pretrial stipulation, that the only issue involved was the question as to the waiver of the covenants of warranty by plaintiff, they should have been permitted to produce the parol testimony profferred as above. Neither the making up of the issues on the pleadings nor the pretrial stipulation affected the rules of evidence, or gave to defendants the right to introduce incompetent evidence. Even though by denying the facts set up in the pleas plaintiffs may have admitted their legal sufficiency it does not necessarily follow that by so doing, they admitted that these facts could be established by incompetent evidence.

It is urged on behalf of defendants that the court erred in refusing to give to the jury their instruction, which embodied the element of waiver of warranty on the part of plaintiffs. There being no evidence of this, there was of necessity no error in the court’s action. An instruction is properly refused, which is not based upon evidence. Rankin v. Sharples, 206 Ill. 301; McGinnis v. Fernandes, 126 Ill. 228; Adams v. Elgin & Belvidere Elec. Co., 204 Ill. App. 1. By the same token there was no error in the action of the court in giving plaintiff’s instructions based upon a warranty of the title to the gas and oil under the real estate in question.

Finding no reversible error in the record, the judgment of the circuit court of Franklin county will be affirmed.

Affirmed.

Bartley and Culbertson, JJ., concur.


author: Mr. Justice Bartley

text:
    Merrill J. Kiser, Appellee, v. Imogene Kiser, Appellant.
    Term No. 46F5.
    Opinion filed May 6, 1946.
    Released for publication May 31, 1946.
    Simon A. Zelden, of Chicago, for appellant; Raleigh M. Shaw, of Lawrenceville, of counsel.
    Sumner & Lewis, of Lawrenceville, for appellee.
   Mr. Justice Bartley

delivered the opinion of the court.

On October 4, 1944, Merrill J. Kiser, plaintiff ap-pellee, hereinafter referred to as appellee, was granted a decree of divorce by the trial court on the grounds of desertion from. Imogene Kiser, defendant appellant, hereinafter referred to as appellant. On November 2, 1944, appellant filed a motion to vacate the decree of October 4, 1944, which motion to vacate was heard and denied on May 8, 1945. This appeal is taken from the decree of divorce entered on October 4, 1944.

The complaint for divorce filed by Merrill J. Kiser on December 26, 1942, charged appellant, Imogene Kiser, with having committed adultery. On January 30, 1943, appellant, after having been served by publication, filed her answer, specifically denying that she was guilty of adultery, and on September 15, 1943, she filed a verified amended answer which was in substance, the same as the answer originally filed, and which included a counterclaim for separate maintenance. On June 16, 1944, appellee filed his answer to the counterclaim for separate maintenance. The cause was set for hearing on October 4, 1944.

When the cause came on for hearing, after a number of terms of court had passed after the return day, neither appellant nor her attorney, who was from out of the State were present in court. The court had received a letter from appellant’s attorney which requested an adjournment of the matter, for the reason that the defendant was not physically able to appear in court on that day, and which included a letter from appellant’s physician stating that appellant was not physically able to leave her bed; that she was suffering from acute arthritis, being definitely disabled as far as any physical exertion was concerned; that any journey at that time was distinctly and definitely contraindicated. Appellant’s counsel’s letter was dated October 2, 1944, and the physician’s letter was dated September 30, 1944. The court treated the letter as a motion for continuance upon behalf of appellant and denied the same for the assigned reasons, that the motion was not supported by affidavit and the statement of the physician was not under oath.

The cause was then called for hearing and appellee, upon leave being granted by the court, filed an amendment to his complaint, for the first time charging appellant with desertion. The amendment to the complaint was filed instanter and the court proceeded to hear the evidence in the cause without the appellant’s presence or anyone for her, and without any answer to the amendment to the complaint or any rule on the appellant to plead or any order attempting a default. The court then, after hearing the evidence offered by the appellee, entered the decree of divorce as of October 4, 1944, finding the appellant guilty of desertion as charged in the complaint as amended, and without entering any order disposing of the issues made on the countercomplaint.

There are a number of errors assigned by the appellant, among which are: That the trial court erred in not entering a rule upon the appellant to plead or answer to the complaint as amended, and that the court erred in proceeding with the hearing and entering a decree of divorce upon the complaint as amended, without ruling appellant to plead thereto, and without any issue having been joined thereon. If these assignments of errors are well taken, there will be no occasion to consider the other errors assigned. We shall, therefore, now take up the questions raised by these assignments of errors.

Appellee in his original complaint filed on December 26, 1942, alleged that he and appellant were married on December 29, 1928; that there was one child born of the marriage, who was of the age of eleven years at the time of filing the complaint; that appellee refused to live and cohabit with appellant on about November 1, 1939, when he became acquainted with the fact that on the last day of November 1938, at Lawrenceville, Illinois, and at various other times and places, since their marriage, appellant, in utter disregard and in violation of her marriage duties and obligations, committed adultery and had carnal knowledge with one AB, and at divers other times and places, unknown to appellee, committed adultery with the said AB and divers other men; that appellant became addicted to the excessive use of intoxicating liquors during the years of 1938 and 1939, and did frequent public taverns and become intoxicated and drink promiscuously with strangers; that she was not a fit and proper person to have the care, custody and control of the child born of said marriage, and that he desires to have such custody and control of said child; that said marriage be dissolved and declared null and void.

Appellant filed her answer on January 30, 1943, denying she was guilty of adultery and the other material allegations of the complaint, and stating that custody of the child had been awarded to her by a court of competent jurisdiction. On September 15, 1943, she filed an amended answer, again denying the charge of adultery and the other material allegations of the complaint, and included a counterclaim for separate maintenance, in which she alleged, among other things, that appellee had her committed first to a private sanitaritim, and subsequently, to a State institution for the insane; that in November of 1939, through the intercession of members of her family, appellant was released from the State hospital, and at that time, appellee suggested that appellant go to Milwaukee, Wisconsin, to her people for recuperation; that appellee would go to New York (his place of business) and would make all the necessary arrangements for a place to live in and would reunite the family in the State of New York; that in reliance upon his promise, appellant, accompanied by her sister, went to Milwaukee in November 1939, and since then has never seen or directly heard from appellee; that all the time since November 1939, appellee has steadfastly refused and neglected to pay any money toward the support and maintenance of appellant.

Appellee, in his answer filed on June 16, 1944, to the counterclaim of appellant for separate maintenance, alleges that through the advice of a reputable physician, he spent a considerable sum of money and put her in the Norbury Institute at Jacksonville, Illinois, where she underwent treatment for her mental and nervous condition; that afterwards the physician at the Institute had her committed to a State institution at Jacksonville, for the reason that appellee was not financially able to continue paying for such treatment at the Norbury Institution; that appellee admits that appellant was released from the State hospital in November of 1939; that she went to Milwaukee to visit her parents, but denies that he, at any time, promised appellant to reunite the family, because it came to his knowledge that appellant was guilty of the conduct charged in appellee’s complaint.

Appellant and appellee were at issue on the original complaint on the charge of adultery. Upon the filing of the amendment to the complaint by the appellee, a new and distinct issue was presented, i.e., the charge of desertion. The trial court failed to require the appellant to plead or answer to the amendment filed, and no issue was joined on the complaint as amended nor it in any way obviated. Because of this new issue presented, the trial court could not properly proceed to hear the cause made by it without first ruling the appellant to plead to it. (Gage v. Brown, 125 Ill. 522, 523; Adams v. Gill, 158 Ill. 190, 193; Noll v. Peterson, 338 Ill. 552, 572; Bauer Grocer Co. v. Zelle, 172 Ill. 407, 413.) The statutory ground of divorce for adultery is one thing and the statutory ground of divorce for desertion is another. Appellant was entitled to an opportunity to answer and be heard on the issue of desertion. (Noll v. Peterson, 338 Ill. 552, 572.) The trial court should have ruled the appellant to plead or answer to the complaint as amended, within a certain time, and upon the failure of the appellant to so plead or answer, within the time given, if appellant so failed to plead or answer, an order of default should have been entered against the appellant before the cause proceeded to a hearing.

The decree of the trial court entered on October 4, 1944, is therefore reversed and the cause remanded for further proceedings not inconsistent with this opinion.

Reversed and remanded with directions.

Stone, P. J., and Culbertson, J., concur.


text:
    Angeline Coulson, Administratrix of Estate of Clement Coulson, Deceased, Appellant, v. Luther Discerns and Veatress Discerns, Appellees.
    Term No. 46F10.

      Opinion filed May 6, 1946.
    Released for publication May 31, 1946.
    Harold J. Bandy, of East St. Louis, for appellant.
    Green & Hoagland, of Alton, for appellees; Kenneth F. Kelly, of Alton, of counsel.
   Mr. Justice Bartley

delivered the opinion of the court.

The plaintiff, Angeline Coulson, administratrix of the estate of Clement Coulson, deceased, brought her action against the defendants, Veatress Discerns and Luther Discerns, for the alleged wrongful death of the deceased, a seven year old boy, whose death resulted from injuries sustained when he came in contact with a car belonging to the defendant, Luther Discerns, and driven by the defendant, Veatress Discerns.

A motion by each defendant for a directed verdict at the close of the plaintiff’s evidence was granted, judgment was entered on the verdict, and plaintiff appeals.

No error is assigned as to the granting of the motion of Luther Discerns.

It appears from the allegations of the complaint, which are admitted by the answer, that on May 6, 1944, Veatress Discerns was operating an automobile in a westerly direction along Thomas street, located in Wood Biver Township, Madison County, Illinois; that said street passes through a thickly built up residential section; and that on the date aforesaid, plaintiff’s intestate was in the act of starting to cross from the south side to the north side of the street.

The complaint charges general negligence and various specific acts of negligence, and also alleges due care on the part of the plaintiff’s intestate and his next of kin, all of which the answer denied.

The evidence shows that Thomas street was a crowned dirt street with an oil top about 15 feet wide. It was admitted on the trial that the boy came in contact with the car and that he died as a result. The evidence also shows that the front door handle on thé driver’s side of the car was off and that there was no other damage to the car. The boy was lying in the south part of the road, and the door handle was on his head. There was no cross walk where he was lying.

There were no eyewitnesses to the accident except the defendant, Yeatress Discerns, and possibly Bussell Kearby, a little hoy who had just started to kindergarten. Neither was called by the plaintiff.

One witness, Laura Smith, did not see the accident but testified that she heard an awful noise and the scream of a little hoy, her next door neighbor, and when she ran defendant’s car came up, turned around, “like on two wheels,” she heard it “screak,” like brakes “screak,” that it swerved around, “not real straight, kinda over,” but she could not tell whether the car was going fast or slow; that the plaintiff’s intestate was lying half way between hers and the Ooulson’s house.

Louis Perez testified that noise and the screech of the car called his attention to the accident. He looked and saw the car turn around in the street, that the car was turned around about 25 or 30 feet from the hoy, that he saw a sock laying in the middle and a shoe further on down, that traveling westward at that point there is an upgrade.

Daniel Ebker driving home saw the car setting on Thomas street at an angle, drove by, saw the boy lying about 140 feet from the Discerns’ car, got out of his car and heard Mrs. Discerns say “I hit Dean.”

A careful reading of the abstract and the record fail^ to divulge any other facts bearing on how or under what circumstances the accident happened.

The plaintiff contends that the testimony of Ebker indicates that the defendants’ car ran 140 feet after striking plaintiff’s intestate, and that this raises a presumption that defendant, Veatress Discerns, did not have the car under reasonable control and that she was not maintaining a proper lookout; that the testimony of Perez shows that a shoe and sock were knocked off the foot of the little boy and that this, together with the testimony that the door handle was torn off, indicates that the impact was terrific and that the automobile was traveling at a rapid rate of speed; that the foregoing indicates that defendant, Veatress Discerns,, was driving negligently and that her negligence caused the accident, and that it was therefore improper for the court to grant Veatress Discerns’ motion for a directed verdict.

On a motion for directed verdict for defendant, the evidence is considered in its aspect most favorable to the plaintiff, with all the inferences reasonably deducible, to determine whether there is a total failure to prove an element essential to the maintenance of the cause of action alleged. When so considered, if there is no evidence which tends to prove an essential element of plaintiff’s cause of action, a motion to direct a verdict in favor of defendant should be granted. (Beckett v. F. W. Woolworth Co., 376 Ill. 470.) No inference of negligence arises from the happening of an automobile accident. (Casey v. Chicago Rys. Co., 269 Ill. 386; Roberts v. City of Rockford, 296 Ill. App. 469.) The existence of a certain fact cannot be reasonably inferred from the evidence when the existence of another fact inconsistent with the first can be inferred from the same evidence with equal certainty. (Ohio Bldg. Safety Vault Co. v. Industrial Board, 277 Ill. 96; O’Connor v. Aluminum Ore Co., 224 Ill. App. 613.)

. A fact cannot be established by circumstantial evidence unless the circumstances are of a nature and so related to each other that it is the only conclusion that can be drawn therefrom, and mere conjecture, guess or suspicion is insufficient. (Ohio Bldg. Safety Vault Co. v. Industrial Board, supra.) The doctrine of res ipsa loquitur does not apply to the type of case under consideration. (Roberts v. City of Rockford, supra.)

We do not believe Ebker’s testimony that the boy was lying 140 feet from the car gives rise to a reasonable inference that the defendants’ car ran 140 feet after striking the boy or that defendant, Veatress Discerns, did not have the car under reasonable control, or that she was not maintaining a proper lookout. It does not appear what length of time intervened between the accident and Ebker’s coming to the scene, nor whether or not the car had been moved in the meantime. There is no evidence of tire marks or anything to indicate that the car traveled 140 feet before the driver could stop. There is no evidence as to the make of the car, or its mechanical condition, nor evidence indicating that the car did not stop in a reasonable distance. Plaintiff’s witness, Perez, testified that the car was turned around about 25 or 30 feet from the boy. A fact may not be reasonably inferred when the only occasion for an inference is a complete absence of evidence as to the particular fact.

Laura Smith’s testimony as to the car turning around, “like on two wheels” with the brakes “screak-ing” does not help. From the latter it does appear that brakes were applied as the car was turning around, but there is no evidence as to their application at any time before. There is no evidence that the shoe and sock belonged to the boy, nor whether or not they were on his foot at the time of the accident. The bare fact that the door handle was torn off, without any evidence as to its type or condition, does not give rise to a reasonable inference of rapid speed or terrific impact.

Nor do we believe that all of these facts taken together give rise to a reasonable inference of negligence on the part of Veatress Discerns. Insofar as the record in this case is concerned, any proof of negligence on the part of the defendant, Veatress Discerns would be purely a matter of conjecture.

It appears that there was a total failure on the part of plaintiff to prove an essential element of her case, namely, negligence on the part of the defendant, Veatress Discerns. It is therefore unnecessary to consider the question of care on the part of the plaintiff’s intestate or his next of kin argued by appellee. The court acted properly in granting the motion for directed verdict.

The judgment of the circuit court of Madison county will, therefore, be affirmed.

Affirmed.

Stone, P. J., and Culbertson, J., concur.


author: Mr. Justice Culbertson

text:
    James M. Conrad, Appellee, v. Margaret Conrad, Appellant.
    Term No. 46F6.

      Opinion filed May 6, 1946.
    Released for publication May 31, 1946.
    Frank E. Trobaugh and Stephen E. Brondos, both of West Frankfort, for appellant.
    Leonard J. Dunn, of West Frankfort, for appellee.
   Mr. Justice Culbertson

delivered the opinion of the court.

This is an appeal from an order of the city court of West Frankfort, Illinois, granting the motion to strike of James M. Conrad appellee (hereinafter called plaintiff), and denying the motion of appellant, Margaret Conrad (hereinafter called defendant), to vacate an original divorce decree and, likewise, the appeal seeks reversal of an order granting leave to plaintiff to supply the files with plaintiff’s affidavit dated November 10, 1942.

The facts as disclosed by the record indicate that in November of 1942 plaintiff filed suit for divorce on the ground of desertion and caused publication to be made in the Benton Standard at Benton, Illinois, in the same county in which West Frankfort is located. On the hearing of the divorce case plaintiff testified that he had been a resident of the State of Illinois for about 14 months and that his wife had deserted him in 1934. There was no evidence that his wife had ever lived in the City of West Frankfort, or the State of Illinois. A decree was entered on December 27, 1942 finding that the court had jurisdiction of the parties and the subject matter; that defendant was duly served by publication;' and the defendant was defaulted in such proceeding; and a decree fro confesso was entered against her. The decree finds that plaintiff was a resident of West Frankfort for more than one year next preceding “this date” and, likewise, finds the facts with reference to the. abandonment of plaintiff by the defendant. The evidence on the hearing showed that plaintiff had actually lived in Illinois for more than a year prior to the time of filing the complaint, but that he had not been a resident of West Frankfort for a full year prior to the filing of the complaint.

It appears from the record that the defendant had actual notice of the original decree on June 10, 1944, but that no action was taken to set aside the decree until June 29,1945. In response to defendant’s motion to vacate and set aside the decree, plaintiff filed a motion to strike, contending that the defendant’s motion was filed without leave of court, and that defendant was guilty of laches. At the hearing upon the motions it was disclosed that the affidavit of nonresi-dence, upon which service by publication was had, was not in the files. Plaintiff’s attorney then filed a petition to supply the files with plaintiff’s affidavit of nonresidence, and after hearing evidence on the petition, the court granted the prayer and the files were supplied on July 20, 1945 with two affidavits, one dated November 6, 1942, and the other dated November 10, 1942. The evidence disclosed that the first affidavit which was filed was found to be inadequate and that thereafter another affidvait for publication was prepared and it was upon the complete affidavit for publiction containing all of the elements required that publication was had.

It is contended by the defendant that the decree which was entered in 1942 should be vacated and set aside on motion made in the trial court at any time after its entry for the reason that it was void and that there was no evidence in the record to support a finding that the court had jurisdiction of the parties and of the subject matter. It is particularly urged that the desertion alleged did not occur within the corporate limits of the City of West Frankfort, and that the city court of West Frankfort was without jurisdiction on the subject matter. In support of this contention the defendant cites the cases of Werner v. Illinois Cent. R. Co., 379 Ill. 559 and Herb v. Pitcairn, 384 Ill. 237. This contention proceeds from a construction which we do not believe is sound. The city court of West Frankfort, in common with other city courts, is a court of general jurisdiction (Herb v. Pitcairn, 392 Ill. 138; 1945 Ill. Rev. Stat., ch. 37, par. 333 [Jones Ill. Stats. Ann. 108.001]). The evidence discloses clearly that the plaintiff was a resident of the State of Illinois for more than a year before the filing of the complaint and that he was an actual resident of West Frankfort, Illinois for nearly a year before the entry of the decree. The venue was obviously proper and was determined by the resi-deuce of the plaintiff (McFarlin v. McFarlin, 384 Ill. 428), and the fact that the original act of desertion may have taken place outside of the State of Illinois did not deprive the plaintiff of the right to file the action in this State under the facts as disclosed by the record.

Another contention which was made by defendant was that the publication notice having been published in the City of Benton, although in the same county, does not give the city court of West Frankfort jurisdiction of the defendant. This contention is, likewise, untenable. The Illinois Act relating to publication provides that the clerk shall cause publication to be made in some newspaper published “in the County where the suit is pending,” (ch. 110, par. 138, sec. 14, and ch. 100, par. 4, 1945 Ill. Rev. Stat. [Jones Ill. Stats. Ann. 104.014, 107.290]). In ch. 37, par. 347, 1945 Ill. Rev. Stat. [Jones Ill. Stats. Ann. 108.017], it is provided that service by publication in city court matters shall be “in accordance with the practice in other civil cases in Courts of Record.” There is no basis in the statute or the cases for depriving the city court of West Frankfort of jurisdiction for the reason that publication was had elsewhere in the county than in the City of West Frankfort. The intent of the law has been substantially attained by the publication (Fienhold v. Babcock, 275 Ill. 282). The affidavit for publication upon which publication was had was a sufficient compliance with the statute. The fact that an insufficient affidavit had also been filed immediately prior thereto does not invalidate such affidavit which does comply with the requirements of the statute.

We have given consideration to the major points raised in defendant’s appeal in this court, even though the court below might have been justified in striking the pleading which was filed without leave of court (Balulis v. Hooper, 338 Ill. 21). Without giving consideration to the further fact that the long delay by defendant in filing the motion was addressed to the discretion of the court, it is apparent that the decree was entered by a court of general jurisdiction and that on the record the decree was not void.

The action of the city court of West Frankfort in granting leave to plaintiff to supply the files with the copies of affidavits for publication and in denying the motion to vacate and set aside the decree, and in striking such motion from the files, was proper. The orders of the city court of West Frankfort are, therefore, affirmed.

Affirmed.

Stone, P. J., and Bartley, J., concur.