text:
    James D. Shannessy, Appellee, v. Walgreen Company, Appellant.
    Gen. No. 43,146.

      Opinion filed February 6, 1945.
    Released for publication February 20, 1945.
    Lord, Bissell & Kadyk, of Chicago, for appellant; Leonard F. Martin and Guy C. Baltz, both of Chicago, of counsel.
    Boyle, Morrissey & Wagner, of Chicago, for appellee; John S. Kavanaugh and Charles A. Boyle, both of Chicago, of counsel.
   Mr. Presiding Justice Niemeyer

delivered the opinion of the court.

Defendant appeals from a judgment for $6,000 entered against it in an action for injuries sustained by plaintiff in a store of the defendant as a result of an assault by the manager of the store.

The law governing the case was stated by this court in Shein v. John R. Thompson Co., 225 Ill. App. 490, as follows: “We understand the rule to be that in order to make a master liable, it is necessary to show, first, that the tort-feasor was the servant of the defendant; second, that such relationship existed at the time of the injury; and third, that such relationship existed with respect to the particular transaction from which the tort arose. Johnson v. Wm. Johnston Printing Co., 263 Ill. 236,” and in the case of Metzler v. Layton, 373 Ill. 88, 91, cited by plaintiff, where the court said “the negligence of the servant is imputable to the master, if the relation existed at the time and in respect to the transaction out of which the injury arose.”

The evidence is without conflict. Defendant offered no testimony as to the occurrence. Waugh, the manager of the store, was not in the employ of defendant at the time of the trial and was said to be in the Navy. The altercation between the manager and plaintiff occurred in the early morning between 3 and 4 o’clock; on the preceding evening plaintiff and his companion, Coffey, were at a public dance hall until shortly after midnight; they then went to a restaurant where they had something to eat and then to a bar where they played the 26 game and had about half a dozen bottles of beer each; they left the bar about 3: 30 in the morning and went to defendant’s store where they had some coffee and waited for a street car; as they were getting ready to leave, plaintiff went to the lavatory, and in his absence the manager said to Coffey, “I just as soon you didn’t come in. Every time he comes in here he causes trouble. The last time he was in here he stole a hot water bottle or electric heating pad. If he comes in here again I will hit him with a baseball bat. ’ ’ Coffey insisted that the manager was wrong in making charges against the plaintiff, paid the bill and left with plaintiff immediately on the latter’s return from the lavatory; when they got out on the street Coffey said to plaintiff, “That fellow doesn’t like you very much. He accused you of stealing a hot.water bottle or electric heating pad.” Coffey testified that plaintiff started right back into the store again and that he followed plaintiff because he didn’t want any trouble. Plaintiff testified that he did not go back to buy anything, but because of the remark that Coffey had told him about; that he wanted to verify it and went back for the purpose of straightening it out; when plaintiff re-entered the store the manager was arranging merchandise about 15 feet from the door; before plaintiff had said anything the manager said, “You get the hell out of here, ’ ’ and plaintiff replied, ‘ ‘ This is a public store; ’ ’ the manager came toward plaintiff, picked up a bat and struck plaintiff three times, breaking his arm; Coffey stopped the fourth blow and, with plaintiff, left the store.

The controlling question is whether the relation of master and servant existed between defendant and its manager in respect to the occurrence out of which plaintiff’s injury arose. Defendant concedes that the manager was charged with the duty of protecting the property of defendant entrusted to his care from theft or damage, but contends that this duty extended only to present theft or damage of the employer’s property and not to the correction or redress of prior wrongs, and that in this case the manager was not acting within either the express or implied authority of his position in commenting on the alleged trouble previously caused by plaintiff and plaintiff’s alleged theft of merchandise on a prior visit to the store, in threatening to hit plaintiff with a baseball bat if he again entered the store and in executing the threat.

The cases relied upon by plaintiff are cases in which the employee was attempting to protect the property of the employer from present injury or to recover property just stolen. In Metzler v. Layton, supra, the office manager of defendant had been placed in a closet by robbers seeking defendant’s money and other property; on hearing the outer door close the manager emerged from the closet and, in immediate pursuit of the robbers, mistakenly shot the plaintiff. In Central Motor Co. v. Gallo (Tex. Civ. App.), 94 S. W. (2d) 821, the man in charge of defendant’s repair department lost his temper and assaulted a customer during a discussion regarding work done on plaintiff’s automobile and the rectifying of any work which might be found defective. In Bearman v. Southern Bell Telephone & Telegraph Co., 17 La. App. 89, 134 So. 787, plaintiff and other boys had entered the garage of defendant, where the only employee on duty was engaged in the repair of a tire, and were wasting gasoline of the defendant and interfering with and annoying the employee, who ordered the boys to leave and on refusal whipped the plaintiff. The court commented upon the fact that from the record it appeared the boy had never had any previous personal encounters with the defendant’s employee and there was no ill feeling between them. In Eldridge v. Black Canyon Irr. Dist., 55 Idaho 443, the assault complained of occurred while the superintendent of the district, charged with the duty of keeping a canal in repair and protecting it from damage, was discussing with plaintiff, an employee on an irrigated farm which bordered on the canal, the prevention of waste water flowing into the canal from the land on which plaintiff was employed.

In opposition to these cases defendant cites Brown v. Boston Ice Co., 178 Mass. 108, and Pruitt v. Watson, 103, W. Va. 627. In the Brown case an employee of defendant, while engaged in delivering ice, punished certain children who had broken the handle of an ice ax. In holding that the defendant was not .liable the court said: “The ground on which the plaintiffs contend that the defendant is liable for Sprague’s acts in beating them with the handle of the ice ax is that, from what Sprague said at the time, the jury were warranted in finding that he punished them, in whole or in part, for the purposé of making it easier for bim to deliver ice from the defendant’s ice cart in the future, without an assistant, and with slight care of the tools; and therefore the case is brought within Howe v. Newmarch, 12 Allen 49. But in this case Sprague’s attack on the boys was an act of punishment inflicted for a past injury to his master’s property, and not in doing an act which he had to do if he performed the duty owed by him to his master. It is not within the scope of the authority of a servant to whose custody his master’s property had been confided to undertake to secure it from future injury by committing the illegal act of inflicting personal chastisement on persons who have done damage to it in the past.” In the Pruitt case the plaintiff, a customer in defendant’s store, had folded up some little dresses in a small package, put them under her arm and started towards the door; a clerk stopped her, brought her back and took possession of the goods and then turned her over to the store manager, reporting to him what had occurred; plaintiff escaped through the door but was pursued into the street by the manager, who held her by the arm and forced her back into the store, where she was detained until a police officer arrived who took her into custody and before a justice of the peace, where a formal complaint was made charging her with the theft of the goods. In reversing a judgment for the plaintiff the court pointed out that she complained only of the treatment inflicted by the manager and that there was no claim by her nor any evidence or contention that the manager “or any other employee was pursuing her in an effort to recover other goods which she was supposed to have concealed about her person. All seem to agree that she had surrendered all the goods which she had been seen to lift from the counters or tables in the store; and all the witnesses examined on this subject, and the concurrent facts proven, go to show that the sole object of her detention was to hold her for prosecution and the vindication of the law.” The court said: “Agents intrusted with the possession of their master’s property and responsible for its safekeeping have the implied power to do anything reasonably necessary to that end, and for any wrong done by them in that behalf, the master is liable to the injured party; but that is as far as their authority or his liability goes, unless he be present and approve their wrongdoing. . . . But many decisions, some of which are cited and relied on by plaintiff in error, say in consonance with our own, that when an employee, to protect the property of his employer, makes an arrest or assault upon another, not in an effort to recover or protect Ms possession, he acts without the scope of his employment, and his principal is not liable for his unauthorized conduct. ??

Plaintiff did not return to defendant’s store with the intent of becoming a customer or for any purpose connected with defendant’s business. His return was solely for the purpose of adjusting a difference between Mmself and the manager of the store arising out of the manager’s charge that the plaintiff on a prior occasion had stolen a hot water bottle or electric heating pad. When plaintiff returned to the store the manager, without waiting for any announcement or indication of the purpose of plaintiff’s return, struck the plaintiff with a baseball bat. The manager of the store, either through fear of personal violence at the hands of plaintiff (a younger and larger man than the manager) because of the charge made against him, or in resentment because of the prior alleged misconduct of the plaintiff when in defendant’s store or as punishment therefor, made the assault complained of. In any event, he was not then engaged in protecting defendant’s property from immediate theft or damage, or in recovering property which had just been stolen from defendant, as in the case of Metzler v. Layton, relied upon by plaintiff. The case is more nearly analogous to Lynch v. Florida Cent. & P. R. Co., 113 Ga. 1105, and Georgia R. & Banking Co. v. Richmond, 98 Ga. 495. In the latter case the plaintiff had an argument with the station agent relative to the checMng of Ms trunk on a passenger train about to leave; the trunk was not checked, and some time after the train had departed, plaintiff, who had been obliged to remain over until the following day, returned to the station to arrange for his transportation on a later train, and in further discussion with the agent relative to his failure to check the trunk when the first request was made, was assaulted by him. The reviewing court, after discussing the rights of plaintiff if he had returned to the station to transact business as a prospective passenger, said (p. 502): “If, however, the truth be that Richmond went to the station, not really for the purpose of transacting any legitimate business with the agent, but simply to upbraid or reproach him because of a real or supposed grievance occurring at an earlier hour of the day and a difficulty then arose between these men, it was one in which the company had no concern whatever, and should be treated as any other fight occurring between ordinary citizens.” The trial court should have directed a verdict for defendant or entered judgment for defendant notwithstanding the verdict. The judgment is reversed.

Reversed.

Hatchett and O’Cohnur, JJ., concur.


source: Caselaw Access Project

author: Mr. Justice Matchett

license: Public Domain

text:
    Ada Blackwell et al., Administratrix of Estate of Pernell Ratliff, Deceased, Appellees, v. Alfredo Rodriguez Fernandez et al., Appellants, and Walter J. Cummings, Receiver et al., Trading as Chicago Surface Lines, Separate Appellants.
    Gen. No. 43,170.

      Opinion filed February 6, 1945.
    Rehearing denied February 20, 1945. Released for publication February 20, 1945.
    Lord, Bissell & Kadyk, of Chicago, for certain appellants; Robert W. Macdonald and Fred E. Inbau, both of Chicago, of counsel.
    Frank L. Kriete, Charles E. Green, Arthur J. Donovan and C. A. Wynne, all of Chicago, for separate appellants.

      David Alswang, Benjamin Sugar and Melbourne A. Chapp, all of Chicago, for appellees; David Alswang, of Chicago, of counsel.
   Mr. Justice Matchett

delivered the opinion of the court.

This record brings appeals from four judgments entered for plaintiffs on the verdict of a jury.

The suits arose out of the conduct of Earl Tanner on the morning of October 31, 1942. He was then living at 218 East 43rd street with a roommate named Bryan. He was married but lived apart from his wife, who resided on the west side of the city. Tanner visited her the day before. They contemplated arrangements to again live together. He went from there to his, room, where he awaited the return of his roommate. The Coney Island lunchroom, a tavern conducted by defendant Fernandez on premises owned by defendant Live Stock National Bank, was in the same building. Tanner and Bryan went there and Bryan bought a half pint of whiskey. They returned to their room, where he shared it with Tanner. Other friends came, and it was suggested they go to the Indiana Liquor Store, Inc., a tavern located at 4300 Indiana avenue. They went. Tanner bought a half pint bottle of “Ancient Age ’ ’ whiskey and drank 'a part of it there. He then boarded a northbound street car, intending to go to the west side, changing cars at 22nd street, to again visit his wife.

The evidence shows that when Tanner boarded the street car he quarreled with the conductor about his fare; that the car was crowded; that he insulted the passengers, some of whom were ladies, and used obscene and abusive language in their presence and about them. All the passengers were colored, as was Tanner. He quarreled with one of these passengers, named Pernell Ratliff, drew his knife, stabbed Ratliff, then kicked the glass out of the window and escaped through it to the street, where he was arrested by a police officer. He was indicted, tried by jury, con- ' victed of manslaughter, sentenced to Pontiac. He was brought from there to testify.

Ratliff left surviving him his mother, plaintiff Ada Blackwell, and his grandmother, plaintiff Viola Smith. An administratrix, Standley, was appointed. The administratrix sued Cummings, et al., receivers of the Surface Lines, and Tanner under the Injuries Act. Ada Blackwell and Viola Smith separately sued Fernandez, the Live Stock National Bank of Chicago and . Indiana Liquor Store, Inc. under the Dram Shop Act. These causes were tried together. Judgment was entered in favor of the administratrix against the receivers for $3,000 and against Earl Tanner for $5,000. Judgment was entered in favor of Ada Blackwell for $6,000 against Fernandez, the Live Stock National Bank of Chicago and Indiana Liquor Store, Inc., and ’ a judgment against the same defendants in favor of Viola Smith for $1,000. Fernandez, the hank, the liquor store and the receivers each made motions for a new trial and for judgment notwithstanding the verdict and in arrest of judgment. These motions were overruled and judgments entered as stated. Tanner did not file an answer, was not represented by counsel and has not appealed.

Tanner testified he was not drunk. The evidence shows he was. The verdict of the jury, approved by the trial court, is sustained by the evidence on that point.

The theory of plaintiffs is that the railway receivers are liable because an intoxicated passenger, who assaulted and quarreled with deceased, was negligently allowed by their servants to ride on the street car without restraint. The theory of the receivers is that there is no evidence in the record that the crew in charge of the street car had any notice Tanner was dangerous or likely to assault a fellow passenger. The receivers say the court erred in refusing to give the instructions requested by them at the close of plaintiff’s evidence. He says (citing Chicago City Ry. Co. v. Rood, 163 Ill. 477-482) that a prima facie case was not made out by merely showing an injury was inflicted. He cites Putnam v. Broadway & S. A. Ry. Co., 55 N. Y. 108. The question of whether under the facts as proved at the close of plaintiffs’ case a peremptory instruction in defendants’ favor should have been given is a question of law preserved by the motion for a directed verdict (Alton R. Co. v. Gillarde, 379 Ill. 308-311) and the motion for judgment notwithstanding the verdict (Merlo v. Public Service Co. of Northern Illinois, 381 Ill. 300-311) unless defendants waived it by presenting evidence.

The evidence was conflicting. Tanner testified. He admitted he had been drinking but denied he was drunk when he got on the street car or afterwards. His testimony tended to show the street car was crowded; and that he got into an altercation with Bailiff and stabbed him in self-defense. If Tanner’s testimony was the only evidence the receiver would probably-have been entitled to an instruction in his favor. His was not the only evidence.

Scott, a disinterested passenger testified, that when he boarded the car at 39th street and Indiana avenue he saw Tanner standing up, talking in a loud voice to the conductor, cursing and quarreling about his fare. He heard Tanner curse a woman who boarded the car and says when the car reached 25th street Tanner came in from the back platform with a cigarette in his hand and went up the aisle saying to the passengers, “You got a match?” “The conductor sent me here to ask for a match.” Bailiff replied, “No.” The deceased then asked Tanner, “Why don’t you go over there and sit down?” Tanner sat down but by the deceased; who asked him not to sit there. Tanner arose, put his hand to his pocket. Ratliff got up to pass him. Tanner struck him. The blood flew out of his throat. Scott then cried out for the street car to stop and got out of it. He stood by the front door, where the conductor let out passengers. He looked inside the street car and saw Tanner on top of Ratliff. Tanner arose, looked both ways and said, “Let me out of here.” He then broke the glass in the door with his fist, put his head through it and went out into the street. Scott’s testimony is also to the effect that neither the conductor nor the motorman did anything at any time to protect the passengers from Tanner. The receivers did not produce either the conductor or the motorman or any other of the numerous passengers as witnesses but stood on their motion for a directed verdict at the close of plaintiffs’ evidence.

The receivers contend, however, the evidence was insufficient to establish a prima facie case and throw the burden of proof on them, citing Chicago City Ry. Co. v. Rood, 163 Ill. 477-482. They argue no unfavorable presumption arose against the street car company from its failure to produce these witnesses, citing 22 C. J. 111 and 31 C. J. S. 850-851.

It is quite true defendant railways had the legal right to stand upon its motion made at the close of plaintiffs’ evidence for an instructed verdict and perhaps considered from that standpoint no unfavorable inference could be drawn from the fact that neither conductor nor motorman testified. The appeal is from the judgment entered on the verdict of a jury, approved by the trial court. Scott’s testimony tended to show the conductor and motorman both knew Tanner’s intoxicated condition and improper conduct and did nothing to indicate disapproval of it or attempt to prevent it.

Defendants point out that there is no case in the Appellate and Supreme Courts of Illinois precisely like this. It relies on the Putnam case and argues the request for an instruction in favor of defendant should have been given. If Tanner had been the only occurrence witness and circumstances had tended to corroborate what he said, this might have been true. However, that is not the record. The duty of the train crew in handling the case of a drunken and quarrelsome passenger is not always easy to determine. If the conductor did not know of Tanner’s-misconduct he was dull indeed. Batliff was a passenger entitled to the highest reasonable degree of care. It was for the jury to decide whether he received it. They decided he did not. The trial court approved. This court does not disagree.

It is contended for the railways the court erred in refusing to give an instruction requested to the effect that if, after Tanner paid his fare, he gave no appearance or indication of an intention to assault anyone before injuring the intestate, a verdict of not guilty should be returned for the Surface Lines. The carrier was obligated to protect the deceased not only from assault but from insult. Chicago & A. R. Co. v. Pittsburg, 123 Ill. 9; McMahon v. Chicago City Ry. Co., 239 Ill. 334; Be statement of Law of Torts, Vol. 2, § 449, p. 1202; Michie “Carriers,” vol. 3 (1915 Ed.), par. 2555, p. 2020; 10 C. J., par. 1334, p. 906. The instruction was not accurate and directed a verdict. Whatever of merit was in it was fully covered by other instructions. It was not error to refuse it. Daubach v. Drake Hotel Co., 243 Ill. App. 298; East St. Louis & S. R. Co. v. Zink, 229 Ill. 180, 190. The judgment is just. This disposes of the suit against the receivers of the Surface Lines. The judgment against them must be affirmed.

On behalf of defendants Live Stock National Bank of Chicago and Alfredo Fernandez it is urged the court erred in refusing to give an instruction in their favor at the close of all the evidence and in denying their motion for judgment notwithstanding the verdict. This contention, an examination discloses, must be sustained for the reason that there is no evidence tending to show that Earl Tanner purchased from or was given any intoxicating liquor by Fernandez at any time. Fernandez did not testify. Tanner was the only witness on that point. He said his roommate was Charley Bryan; that he (Tanner) went to his apartment on the evening in question in response to a telephone call from Charley, who asked him to come and bring the key with him so that he (Charley) could get into his room. Tanner went there about 8:00 or 9 o ’clock. Charley was not yet there. Tanner went to bed. Charley came about 11: 00 or 11: 30 p. m. that night. Charley asked Tanner to let him have a dollar. Tanner did so. Charley then said, “Come on downstairs and I will buy you a drink.” They went. Charley bought a bowl of chili and got a half pint of whiskey. Tanner stood about two feet away from him when Charley bought the whiskey. Tanner says, “We carried the whiskey bought in the Coney Island lunch room back upstairs, and me and Charley took a drink out of it and while we were sitting there two of the boys came and knocked on the door.” Tanner also says that one of the boys asked him to come up to the corner with them, where he could buy some liquor, to which Tanner relied that he had no money but the other boy said, ‘ ‘ They got some. ’ ’ He says they then walked into the liquor store at 4300 Indiana avenue, where he (Tanner) bought a half pint of “Ancient Age.” Tanner says, “I drank a good big swallow out of that bottle, I think not over two. They drank about the same, and anyway with three it was just about half full, you know, one drink. It was just, about 1: 30 when I bought that whiskey over at the Indiana Liquor Store. Then I asked the boys if they wanted any more. They said, ‘No,’ so I said, ‘Well, I got enough, too.’ I put the whiskey in my pocket, what was left in the bottle.” He further says, “Charley had chili that night along about 11:00 or 11:30; I didn’t have anything. At most I had three drinks of whiskey that evening. I take one and Charley had two swallows out of the bottle, so that it ran three at the most. Three drinks of whiskey at that time sure didn’t make me intoxicated. ’ ’

We do not find a scintilla of evidence that Fernandez or any of his servants either sold or gave intoxicating liquor to Tanner. The undoubted fact that the liquor was sold to his roommate, Charley Bryan, and by Bryan afterwards in his own room shared with Tanner, would not make Fernandez or Live Stock National Bank liable under the statute. This appears from an examination of the case of Aden v. Cruse, reported in volume 21, E. B. Smith, Ill. App. at 391, affirmed in the same case, 127 Ill. 231. In that case, at page 239, the Supreme Court said:

“We concur in the conclusion reached by the Appellate Court, that section 9 of the Dram Shop Act does not apply to persons who are not, either directly or indirectly, or in any way or to any extent, engaged in the liquor traffic, and that the right of action given by said section to one injured in her means of support is not intended to be given against a person who, in his own house, or elsewhere, gives a glass of intoxicating liquor to a friend as a mere act of courtesy and politeness, and without any purpose or expectation of pecuniary gain or profit.”

To the same effect are Austin v. Bass, 206 Ill. App. 435; Gunderson v. First Nat. Bank of Chicago, 296 Ill. App. 111.

Plaintiffs contend, however, that the Dram Shop Act does not require the selling or giving must be directly to the intoxicated person and cite on this point Bennett v. Auditorium Bldg. Corp., 299 Ill. App. 139. It was there contended that drinks served to a woman who became intoxicated and paid for by her escort did not constitute sale to the woman but a sale to the escort. This court in that case did not accept this contention. It was there held in substance that liquor served to one person and paid for by another and drank in the presence of both of them on the premises, amounted to a sale of liquor Jo the person to whom it was served. No such contention is raised by the facts in this case. The drinking of the liquor by these two in their own room and entirely outside the restaurant in which it was purchased was wholly disconnected from the act of Bryan in buying the whiskey. The cases are distinguishable on the facts.

Proof of a sale or gift of intoxicating liquor to Tanner by Fernandez was necessary in order to establish his liability or that of his landlord to third persons injured by Tanner’s acts resulting from his intoxication. It follows, that the instruction requested in favor of the bank and Fernandez at the close of all the evidence should have been given and that the court erred! in refusing their motion for a judgment in their favor notwithstanding the verdict.

It follows as a matter of course that the court erred in submitting one general form of verdict as to the issues with respect to both dram shop operators. Hedlund v. Geyer, 234 Ill. 589; Morrill v. Lindemann, 86 Ill. App. 75; Adams v. Jurich, 160 Ill. App. 522; Hansen v. Crocker, 160 Ill. App. 514.

The judgment, therefore, as to the Indiana Liquor Store will be reversed and the cause remanded for a new trial as to that defendant. The judgment against Alfredo Rodriquez Fernandez and the Live Stock National Bank of Chicago will be reversed and the cause as to them remanded with directions to the trial court to grant the motion for a judgment in their favor notwithstanding the verdict. The judgment in favor of the administratrix of the estate of Pernell Ratliff against the receiver of the Surface Lines will be affirmed.

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

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


author: Mr. Justice O’Connor

text:
    Guy Read, Appellee, v. Walter J. Cummings, Receiver et al., Trading as Chicago Surface Lines, Appellants.
    Gen. No. 43,142.

      Opinion filed February 6, 1945.
    Released for publication February 20, 1945.
    Frank L. Kriete, W. F. McLaughlin and Arthur J. Donovan, all of Chicago, for appellants; William J. Flaherty, of Chicago, of counsel.
    Clarence M. Dunagan, of Chicago, for appellee.
   Mr. Justice O’Connor

delivered the opinion of the court.

Plaintiff brought an action against defendants to recover damages claimed to have been sustained by him as a result of the negligence in starting a street car, which he was in the act of boarding, before he had time to do so. There was a jury trial and a verdict and judgment in plaintiff’s favor for $1,250. Defendants appeal.

Plaintiff’s theory of the case is that about 10 o’clock on the morning of May 21, 1941, he was waiting for a southbound Clark street car at the proper place just north of Adams street. The day was warm, bright and the street dry; that the car stopped or virtually came to a stop at the proper place for a second or two; that as he reached for the bar or grab handle near the rear of the car it started up and he was thrown in the street and injured. Defendants’ theory was that the street car stopped at the regular place, several passengers boarded the car and others alighted from it. That the conductor saw no one else waiting and signalled the car to go ahead, the traffic lights being green. The car started and when it had proceeded a short distance, plaintiff undertook to board it while it was moving and was thrown and injured.

Counsel for defendants say that the trial judge in passing on defendants’ motion for a new trial refused to consider the weight of the evidence and for this reason, the judgment should be reversed and the cause remanded. On the other hand, counsel for plaintiff says that the record discloses the court did consider the weight of the evidence in passing on the motion for a new trial. We think defendants’ contention must be sustained.

In passing on defendants’ motion at the close of all the evidence for a directed verdict in their favor, the court said that he was going to let the case go to the jury; that he did not feel he had the power of the Appellate court to judge the manifest weight of the evidence. “I still feel the rule that the nisi prius judge is subject to is, to let it go to the jury if the plaintiffs evidence, with its best face, reasonably tends to prove his case and even if the witnesses against him were ten to one, I feel that it is an Appellate Court matter, if it is anybody’s.” The law on this subject is plain. Where a motion is made by defendant at the close of all the evidence to direct a verdict, the court cannot weigh the evidence, but the evidence must be considered in the light most favorable to plaintiff and obviously such motion should then be denied if there is any evidence, more than a scintilla, that may be reasonably construed to prove plaintiff’s case. Libby, McNeill & Libby v. Cook, 222 Ill. 206. But after the verdict is returned a different question arises. It is then the duty of the trial judge to consider the weight of the evidence and if he is of opinion that plaintiff has not proven his case by a preponderance of the evidence, taking into consideration the fact that the jury has found otherwise, it is his duty to set aside the verdict and grant a new trial. And if the court does not do so but overrules the motion and enters judgment and the case is then brought to this court, we are not authorized to disturb the verdict on this ground unless the verdict and judgment are against the manifest weight of the evidence. This court in passing on the question must take into consideration not only the verdict of the jury but the fact that the trial judge saw and heard the witnesses, overruled the motion for a new trial and entered judgment. It requires much more for this court to set aside a verdict and judgment than is required of the trial judge. It is his duty to set aside the verdict if he is of opinion that the plaintiff has not sustained his case by a preponderance of the evidence, while the question of the preponderance of the evidence does not arise at all in this court. (Valant v. Metropolitan Life Ins. Co., 302 Ill. App. 196; Sears, Roebuck & Co. v. Mears-Slayton Lumber Co., 226 Ill. App. 287-290.) We are not authorized to disturb the verdict and judgment unless we are of opinion that it is against the manifest weight of the evidence. In the late case of Emiers’ Motor Service, Inc. v. Cummings, et al., 323 Ill. App. 653 (Abst.), we said: “Their verdict was in favor of plaintiff. They saw and heard the witnesses testify, their verdict was sustained by the trial judge who- also saw and heard the witnesses testify. They were in a better position to determine the truth of the matter in controversy than are we sitting in a court of review where we have but the printed page before us. Upon a consideration of all the evidence in the record and the argument of counsel, we are unable to say that the verdict of the jury, approved as it was by the trial judge, is against the manifest weight of the evidence.” This has long been the law in this state. See also Elmore v. Cummings, 321 Ill. App. 234; Miller v. Cummings, 323 Ill. 297; Parthie v. Cummings, 323 Ill. App. 296; Stein v. Cummings, 319 Ill. App. 646.

In the instant case the court, in passing on defendants’ motion for a new trial, filed a written statement in which he, among other things, said: “I still feel that the court which, knowing all of the evidence and the facts, must submit it to the jury under the law, should not, because he disagrees with a verdict, reverse same. In effect, this tells them that if they agree with the court their verdict stands, if it does not, it is worthless.” We think this is an incorrect statement of the law and was not in accordance with what we have hereinbefore stated.

The trial court, in passing on the motion for a new trial having failed to consider the weight of the evidence, the judgment cannot stand, and since we have no authority to pass on this question (Ottawa, Oswego & Fox River Valley R. R. Co. v. McMath, 91 Ill. 104; Armour v. Penn. R. R. Co., 353 Ill. 575; Walaite v. C. R. I. & P. Ry. Co., 376 Ill. 59; Zwiersycki v. Met. Life Ins. Co., 316 Ill. App. 345) the judgment of the Superior court of Cook county is reversed and the cause remanded to that court with directions to pass on this question.

Reversed and remanded with directions.

Niemeyer, P. J., and Hatchett, J., concur.


author: Justice Hatchett.

text:
    People ex rel. Paul F. Jones, Director of Insurance of State of Illinois, Appellee, v. New Home Benefit Association, Respondent. Sarah A. Scaggs, Appellant.
    Gen. No. 43,162.

      opinion filed February 6, 1945;
    released for publication February 20, 1945.
    George A. Bosomburg and Peter S. Sarelas, for appellant; Glenn, Real & Browning, for appellees; O. W. Barnes, of counsel.
   Opinion by

Justice Hatchett.

Not to be published in full.


author: Justice O’Connor.

text:
    Live Stock National Bank of Chicago, Administrator of Estate of Ruth Tavenner, Deceased, Appellee, v. Walter J. Cummings, Receiver, et al., Trading as Chicago Surface Lines, Appellants.
    Gen. No. 43,165.
    opinion filed February 6, 1945;
    released for publication February 20, 1945.
    Frank L. Kriete, Charles E. Green and Arthur J. Donovan, for appellants; Wm. J. Flaherty, of counsel; Alfred Roy Hulbert, for appellee.
   Opinion by

Justice O’Connor.

Not to be published in full.


text:
    People ex rel. Genevieve Christner, Appellant, v. W. J. Hamilton et al., Appellees.
    Gen. No. 43,175.

      opinion filed February 6, 1945;
    rehearing denied February 20, 1945; released for publication February 20, 1945.
    Emmett M. McDonald and Earl Wilcox, for appellant; William H. Meyer, for appellees.
   Opinion by

Justice O’Connor.

Not to be published in full.


text:
    Continental Illinois National Bank and Trust Company of Chicago, Executor et al. of Henry Edwin Sever, Deceased, Appellee, v. Franklin P. Sever et al. Lewis C. Murtaugh, Trustee, Impleaded with Hannibal-La Grange College, St. Louis University, Appellees, v. Washington University, Appellant.
    Gen. No. 43,199.
    opinion filed February 6, 1945;
    released for publication February 20, 1945.
    Thomas B. Brown and Beach, Fathchild & Scofield, for certain appellants; Bell, Bóyd & Marshall, for certain other appellant; Thomas L. Marshall and Samuel M. Mitchell, of counsel; Kirkland, Fleming, Green, Martin '& Ellis, for certain appellee; Weymouth Kirkland, Howard Ellis, William H. Symmes and Bartlett S. Marimon, of counsel.
   Opinion by

Justice O’Connor.

Not to be published in full.


author: Per Curiam.

text:
    People of State of Illinois ex rel. Eugene A. Barry, Appellee, v. Walter L. Gregory et al., Civil Service Commissioners of City of Chicago, Appellants.
    Gen. No. 43,324.

      Opinion filed December 16, 1944.
    Released for publication December 18, 1944.
    Barnet Hodes, Corporation Counsel, for appellants; J. Herzl Segal and L. Louis Karton, Assistant Corporation Counsel, of counsel.
    Isadore Goldstein, of Chicago, for appellee.
   Per Curiam.

A complaint for certiorari was filed in the superior court of Cook county, resulting in a judgment (entered October 30, 1944) “that the record of the proceedings of the defendants Walter L. Gregory, James B. Cashin and William F. Clarke as Civil Service Commissioners of the City of Chicago in the matter of the charges filed against and the removal of the plaintiff, Eugene A. Barry, as Captain of Police in the classified service of Department of Police of the City of Chicago as set forth in the return of the defendants to the Writ of Certiorari heretofore issued in said cause be and the same is hereby quashed and for naught esteemed.” On November 16, 1944 defendants filed their notice of appeal to this court and asked that the judgment order be reversed. On November 20,1944 defendants moved in the trial court that the notice of appeal be ordered to operate as a supersedeas without the filing of a bond by defendants. On November 22,1944 the court under authority of section 82 of the Civil Practice Act [Ill. Rev. Stat. 1943, ch. 110, par. 206; Jones Ill. Stats. Ann. 104.082] excused the filing of a bond by the defendants, but denied their application for supersedeas. Defendants filed the record, abstracts and briefs in this court and moved that the appeal operate as a supersedeas, “staying the force and effect of the judgment order of the Superior Court.” Defendants filed suggestions in support of their motion and relator presented counter suggestions. Belator maintains, under the authority of People ex rel. McDonnell v. Thompson, 316 Ill. 11, that judgments in certiorari proceedings are self-executing, require no process to enforce them and are, therefore, not stayed by an appeal, supersedeas bond or writ of error.

Paragraph 1 of sec. 74 of the Civil Practice Act (par. 198, ch. 110, Ill. Rev. Stat. 1943 [Jones Ill. Stats. Ann. 104.074]) provides:

“Every order, determination, decision, judgment or decree, rendered in any civil proceeding, if reviewable by the Supreme or Appellate Court of this State by writ of error, appeal or otherwise, shall hereafter be subject to review by notice of appeal, and such review shall be designated an appeal and shall constitute a continuation of the proceeding in the court below. Such appeal shall be deemed to present to the court all issues which heretofore have been presented by appeal and writ of error. ’

Section 82 of the Act (par. 206, ch. 110 [Jones Ill. Stats. Ann. 104.082]) provides that an appeal shall operate as a supersedeas only if and when the appellants, after notice duly served, shall give and file a bond in a reasonable amount to secure the adverse party. This section provides that if notice of appeal is served within 20 days after the entry of the judgment, and if bond is given and filed and approved within 30 days after such entry, or within such further extended time as the trial court may allow within such 30 days or any extension thereof (no extension or aggregate of extensions to exceed 45 days, except by stipulation of the parties), the notice of appeal shall, upon approval of the bond, operate as a supersedeas; that after the expiration of such 30 days or proper extension thereof, no appeal shall operate as a supersedeas except upon express order of the reviewing court; and that where an appeal is prosecuted by a public, municipal, governmental or quasi-municipal corporation, or by any public officer in his official capacity for the benefit of the public, the trial or reviewing court or any judge thereof, may, without requiring any bond to be given, order that the appeal shall operate as a supersedeas.

The Civil Practice Act became effective January 1, 1934. The opinion in the Thompson case was filed on February 17, 1925, when the 1907 Practice Act was in effect. Review by the Appellate and Supreme Courts remains fundamentally the same as under the Act of 1907, as amended, except that the two methods of review heretofore provided (by appeal and writ of error) have been consolidated and certain technical defects in the practice have been eliminated in the abolition of the old appeal and writ of error and in: the consolidation of the two methods. Under the new notice of appeal procedure an effort is made to preserve the merits of both the prior methods. The general rule is that a self-executing judgment is not affected by a supersedeas or stay of proceedings pending the appeal. Am. Jur., vol. 3, sec. 540. It is obvious that an executed portion of a judgment cannot be stayed by supersedeas. In the instant case the City could not appeal until the judgment quashing the return was entered. This judgment was self-executing and the return was quashed at the time the judgment was entered. Hence, when the notice of appeal was filed and, of course, when the motion for supersedeas was made, the judgment was executed. A judgment which is self-executing is not within the statute governing the granting of a supersedeas, as there is nothing upon which the supersedeas can operate. The trial judge in his opinion, evidently addressing the attorneys for relator, stated: ‘This return is quashed. Draft an order restoring this man to his job and he is entitled to it with back pay from the time he was released. ’ ’ However, the order entered was in accordance with the usual practice in certiorari cases. It quashed the return, but did not embrace the direction of the trial judge that relator be restored to his position with back pay from the time he was discharged.

Defendants state: “Properly construed, the Thompson case simply means that the appeal does not automatically act. as a supersedeas, nor does a supersedeas bond act as a supersedeas, but there is nothing contained in the decision which would preclude a specific order of an appellate tribunal in aid of its appellate powers from staying the force and effect of a judgment of a trial court during the pendency of the appeal.” In. their oral argument on this motion, the attorneys for defendants also stated that the Thompson case was decided under the Practice Act of 1907, as amended, and that under the provisions of the Civil Practice Act the Appellate Court has the right to grant a supersedeas. Prom the opinion in the- Thompson case it appears that John C. McDonnell was discharged by the Civil Service Commissioners of Chicago on September 23,1922 from the office of second assistant fire marshal. On December 18, 1922 in certiorari proce.edings in the circuit court the record of the Civil Service Commission was quashed. On January 4,1923 McDonnell served a notice upon the mayor, city treasurer, comptroller and fire marshal, notifying them of the judgment in the certiorari case and demanding that he be restored to Ms position and that he be paid the salary appropriated for his office from the date of the judgment of the circuit court. Defendants did not comply. They appealed from the judgment in the certiorari case. McDonnell was given leave to file an original petition for mandamus in the Supreme Court for a writ commanding the defendants to recognize him as second assistant fire marshal, to place him upon the payroll and to pay him the monies appropriated for the salary of his office. Defendants answered. One of the defenses was that the appeal to the Appellate Court of the certiorari judgment operated as a supersedeas. A demurrer to defendants’ answer was sustained and the Supreme Court awarded the writ of mandamus as prayed. While the case was pending in the Supreme Court the parties filed a- stipulation to the effect that the relator had been restored and assigned to duty as second assistant fire marshal. The court retained the ease only for the purpose of determining the extent of relator’s right to compensation for the period which he was deprived of and excluded from his position. The Supreme Court said (p. 15):

“As the right of the relator to his salary depends upon the sufficiency of the allegations in the petition, and as to whether or not the demurrer to the defendants’ answer should be sustained or overruled, we consider it necessary to pass upon these questions. ’ ’

The Supreme Court said further (p. 15):

‘ ‘ The claim that the appeal from the judgment in the certiorari proceedings operated as a supersedeas cannot be sustained. The judgment of the circuit court in the certiorari proceedings is self-executing and requires no process of any kind to enforce it. The law is, in the absence of a special statute to the contrary, that an appeal or supersedeas bond or writ of error will not operate to suspend such a judgment. (20 Ency. of Pl. & Pr. 1244; People v. Reinberg, 263 Ill. 536; Barnes v. Typographical Union, 232 id. 402.) ”

Under the practice at the time the Thompson case was decided, a judgment could be reviewed by appeal or writ of error. Before the enactment of the Civil Practice Act, bond was required to be given in ease of appeal, except where excused when prosecuted by a governmental body or public official in his official capacity. A writ of error could be procured without bond, but operated as a supersedeas only if a bond were given and the writ of error ordered to be a supersedeas by the court of review, or some judge thereof in vacation. With the replacement of writ of error and of appeal by notice of appeal under the present act, bond is necessary only if a supersedeas is desired. Under the former practice, an appeal allowed by the trial court was, in contemplation of law, pending in the appellate tribunal the moment the appeal bond was executed and filed with the clerk of the court, as provided in the order of the appeal. Merrifield v. Western Cottage Piano & Organ Co., 238 Ill. 526, 532. Under the old practice the appeal stayed the proceedings to the same extent as a supersedeas in a case brought up by writ of error. We are of the opinion that the provisions of the Civil Practice Act have not changed the operation of the principle announced in the Thompson case. In that case the Supreme Court stated that a judgment in a certiorari proceeding is self-executing and requires no process of any kind to enforce it. That opinion also states that in the absence of a special statute to the contrary, an appeal or supersedeas bond or writ of error will not operate to suspend such a judgment. At that time an appeal operated as a supersedeas, removing the case to the Appellate Court. To perfect the appeal it was necessary to have a bond approved and filed, or to have the giving of a bond excused. In the Thompson case there was an appeal to the Appellate Court from the judgment in the certiorari case. Therefore, the Supreme Court had before it the proposition presented by the motion in the instant case — whether the perfecting of the appeal, which in the ordinary case stayed the enforcement of the judgment, had any efficacy as to a judgment in certiorari. The Practice Act of 1907 was not a special statute, nor is the Civil Practice Act a special statute. There is no special statute governing the practice in petitions for common-law writs of certiorari. As the Practice Act of 1907 governed when the Thompson case was decided, so the Civil Practice Act applies today. At the time the Thompson opinion was filed theré was no special statute that a supersedeas bond or an appeal (when the bond was approved), would operate to suspend the judgment in a certiorari case, and there is no special statute today that it would so operate. In People v. Reinberg, 263 Ill. 536, where the respondents failed to abide by a judgment in a quo warranto case and the plaintiff was given leave to file an original petition for mandamus in the Supreme Court, the court, in awarding the writ of mandamus, said (p. 543):

“It is further contended that to grant the writ in this case would prejudicially affect the rights of the parties in the quo warranto proceeding pending on appeal in the Appellate Court for the First District. The judgment of the superior court is self-executing and requires no process to enforce it. An appeal bond or supersedeas bond will not operate to suspend such a judgment. ’ ’

In the Reinberg case the defendants perfected an appeal to the Appellate Court from a judgment in the quo warranto case. Under the practice prevailing at that time, the perfecting of an appeal removed the quo warranto case to the Appellate Court. Nevertheless, the Supreme Court said that even where the appeal is perfected and an appeal or supersedeas bond given, the operation of the judgment was not suspended.

In the instant case the judgment entered was self-executing and no supersedeas may be granted. Even should a supersedeas be granted, it would be ineffective. The judgment remains in effect unless and until it is reversed. A supersedeas operates against the enforcement of a judgment and not against the judgment itself. The final judgment of the Appellate Court operates on the judgment of the trial court, affirming, reversing or modifying, as the case may be. It will be observed that defendants urge that there is nothing in the opinion in the Thompson case “which would preclude a specific order of an appellate tribunal in aid of its appellate powers from staying the force and effect of a judgment of a trial court during the pendency of the appeal.” The defendants, in this statement, recognize that a supersedeas does not stay the judgment, but the “force and effect” of the judgment. Defendants could not appeal without the judgment. There is nothing to stay. Defendants, in the judgment, are not required to do anything, as the only order entered by the trial court was that the return be quashed.

For the reasons stated, the motion of the defendants that the appeal operate as a supersedeas is denied.

Motion denied.


author: Mr. Presiding Justice Dove

text:
    Waukegan Times Theatre Corporation, Appellee, v. Nellie Conrad et al., Appellants.
    Gen. No. 9,984.

      Opinion filed February 8, 1945.
    Released for publication February 26, 1945.
    Snyder & Clarke, of Waukegan, and Ashcraft & Ashcraft, of Chicago, for appellants; Gerald C. Snyder, of Waukegan, and Norman L. Olson, of Chicago, of counsel.
    Max M. & Samuel Grossman, of Chicago and George W. Field, of Waukegan, for appellee; Max M. Grossman, and Louis N. Grossman, both of Chicago, of counsel.
   Mr. Presiding Justice Dove

delivered the opinion of the court.

This cause is here by an appeal by the defendants below from a decree of the circuit court of Lake county, making permanent an injunction restraining each of the appellants from prosecuting a pending forcible entry and detainer suit theretofore instituted by Nellie Conrad or from prosecuting any other action for possession of the premises involved in this proceeding. The decree held a certain lease, hereinafter mentioned, to be in effect between the parties, it construed the ninth paragraph thereof relating to the division of the cost of fuel oil for heating the premises adversely to the contention of appellants and dismissed for want of equity the counterclaim of Nellie Conrad, for possession, double rent, attorney’s fees, and for an equitable lien on the personal property in the theatre, except that part thereof pertaining to the amount claimed to be due her for such fuel oil. No question is raised as to the dismissal of those parts of the counterclaim not pertaining to the fuel oil. Cross error is assigned on the refusal of the trial court to permit the filing of a supplemental complaint. The record discloses that this suit was instituted by appellee against appellants in January 1939. At that time, and for several years previously, appellant Nellie Conrad was the owner of a large business property in the City'of Waukegan, encumbered by a trust deed held by Western and Southern Life Insurance Company, the. other appellant. Prior to December 1934, the building had a large auditorium, previously used as a dance hall, occupying more than one half the ground area, and the remainder of the building was tenanted by small stores, apartments, and offices, the entire premises being heated by one furnace. Under date of December-27, 1934, Nellie Conrad executed a ten-year written lease of the auditorium to Manning Silverman, from March 1, 1935 to February 28, 1945, inclusive, at a term rental of $90,000, payable in monthly instalments of $750 each, in advance each month, with a provision that the leasee should expend $10,000 or more, within 60 days, to convert the dance hall into a motion picture house, and furnish lien waivers keeping the premises free from liens.

The lease provides that the lessee may sublet in whole, but shall not assign the lease without the consent in writing of the lessor first had and obtained; and that “If lessee, or anyone or more of the lessees, if there be more than one, shall ... be adjudged a bankrupt, lessor may terminate this lease,” with a provision that in such event payment shall be made at once of a sum equal to the rent for the .then unexpired term, as liquidated damages.

The ninth clause of the lease provides:

“Lessor shall furnish to lessee in the radiators in said demised premises, a reasonable amount of hot water heat or steam heat at reasonable hours if the weather and temperature require it, for the use of lessee. . . . Lessee shall pay one half the cost of the fuel furnished to the heating plant used to heat said premises, it being specifically understood that said heating plant heats, in addition to the premises herein demised, the so-called ‘Pantheon Building’ located at 38 S. G-enesee Street, Waukegan, Illinois, consisting of stores, apartments and offices.”

The counterclaim alleges money due for fuel oil, and appellee’s answer thereto prays for a construction of the ninth clause, denying it was indebted to defendants as alleged in the counterclaim.

The lease was signed by both parties on December 27, 1934. At that time a proceeding to foreclose the trust deed had been filed, on account of its being in default, and the insurance company would not consent to the lease until an agreement assigning the rents to it was executed. Accordingly, on January 14, 1935, its consent, and an assignment by the lessor of “her entire interest in and to the within lease, and the rent thereby reserved” were indorsed on the lease, and contemporaneously therewith, a written agreement was entered into between Nellie Conrad, the insurance company, and Schwartz and Co., appointing the latter as agent for the renting and management of the property, and paying the net rentals to the insurance company, and assigning all the rentals to the insurance company “in order better to secure the payment of said mortgage indebtedness and the performance of all covenants of said trust deed and this agreement and the payment of all amounts which may be due from time to time hereunder.”

Mr. Silverman remodeled the dance hall, and in March 1935- incorporated the Silver Illinois Theatres Corporation, which operated the theatre from April 1935, until some time in January 1937, when a notice was served on Silverman by the Schwartz agency to terminate the lease on account of an arrearage of rent for one month and $1,400 or $1,500 for fuel oil. Ben Miller, a lawyer representing another party interested in the corporation organized by Silverman, called on Schwartz to adjust the matter, and Schwartz told him he was willing to co-operate if Silverman was out of the picture, as defendants did not want any further dealings with him. This resulted in an assignment of the lease by Silverman to Miller on January 29, 1937, who went into immediate possession and paid the rent until March 2, 1937, when he, in turn, assigned all of his right, title and interest in the lease to Charles H. Penikoff. The latter operated the theatre from that time, under the New Valencia Theatre Corporation, until May 1, 1937, when the name of the corporation was changed to The Waukegan Times Theatre Corporation, appellee. The rent was paid by the New Valencia Theatre Corporation to Schwartz and Company until May 4, 1937, when Mr. Penikoff assigned his interest in the lease to appellee, and the latter continued in possession and paid the rent thereafter. Mr. Penikoff testified that he told Mr. Schwartz of the assignment to him and that it would remain in his name until he was certain how he was going to operate and that later it would be assigned to the new corporation.

In February 1937, Nellie Conrad obtained a judgment against Silver Illinois Theatres Corporation for $1,611.40 on account of its purchase of the carpet which was in the dance hall at the time the Silverman lease > was made, and which was still there at the time of the hearing in this cause. The testimony indicates that shortly before the lease was assigned to Mr. Penikoif Mr. Schwartz told him of the unpaid fuel oil bill, the judgment, and a small item due a painting contractor, and said that Mrs. Conrad would probably not be interested in withdrawing the cancellation of the lease un- • less these items were paid, and that Mr. Penikoif agreed to pay them. Mr. Schwartz testified that Mr. Penikoif and Mr. Miller said that the proceeds of Mr. Penikoif’s deal would be set aside in such a way that all bills would be taken care of before any money was turned over to Mr. Silverman. Mr. Penikoif testified that he did not remember making the statement. He also testified that he asked Mr. Schwartz if the latter could grant consent to the assignment of the lease, and that Mr. Schwartz told him not to worry about it, to go ahead, and that it would be all right and that it would all be taken care of. Mr. Schwartz testified that he told Mr. Penikoif that he was sure he could get the consent of the owners of the property to the assignment, provided the defaults were cured, including the judgment. Apparently upon the advice of Mr. Penikoif’s attorney, early in May 1937, that it was not necessary to get consent in writing, he did not procure a written consent to the assignment, and no written consent to any of the assignments was ever obtained, but Schwartz and Company had knowledge of each of them at the time or shortly after each of them was made. They accepted the. rent each month from the various assignees until the month of December 1938, rendered statements of the amounts due for fuel oil, and took care of the transferring of the insurance to each of the assignees in policies under their control. Nothing was ever paid on the judgment. On September 20, 1937, Mr. Penikoff as president of appellee, wrote Schwartz and Company, agreeing to pay the old oil bill of $1,591.32, by paying $91.32 on that day and $100 per month thereafter. $91.32 was paid thereon in September 1937, and subsequent payments reduced the original amount to $1,000. Some of the current oil bills were paid, some were uiipaid, and Mr. Schwartz testified there was still $1,000 unpaid on the original bill, and that the total amount due for oil at the time he testified was $1,988.65, allowing a credit of $400 for interest on a deposit of $5,000 advanced by the lessee under the terms of the lease, and that credit was given annually for such interest against the amount due for oil.

The testimony shows that during the time the theatre was operated by the original lessee and his successor-assignees, large amounts were spent for advertising, and that Mr. Penikoff bought the business from Silver-man at the price of $30,000; that, with the knowledge and approval of the agent, he spent approximately $20,000 in remodeling and improvements; that at the same time, the agent spent $170 for work on the outside; and that appellee’s assets in the theatre are worth close to $34,000.

Mr. Silverman was adjudged a bankrupt on September 8, 1938 and his obligation under the lease was thereby cancelled. Notice of the adjudication was received by Schwartz and Company on September 10, 1938, and was turned over to Mrs. Conrad’s attorney. On September 15, 1938, appellee paid the rent for September to Schwartz and Company and it was accepted. On September 19,1938, Mrs. Conrad’s attorney wrote Mr. Penikoff advising him of the receipt of the notice of Silverman’s bankruptcy, the provision of the lease for cancellation in such event, and that the lease would be cancelled unless the Conrad judgment be satisfied, the past due oil hill be paid, and the existing lease be placed in a satisfactory condition so that the agent might know with whom he was dealing. Under the Schwartz agency’s knowledge of the assignments, their transfers of the insurance, and receipt of the rent it is difficult to understand how they did not know with whom they were dealing. On October 13, 1938, an agreement was entered into between Mr. Schwartz and Mr. Bernstein, “who succeeded Mr. Penikoff as president of appellee corporation, that the rent would be accepted thereafter without prejudice to the right to cancel the lease. A notice to that effect from Schwartz and Company was received by Mr. Bernstein on October 17. The rent for October was paid, and the rent for November was paid on November 15. On November 14, 1938, a notice of termination of the lease, dated November 12,1938, signed by Nellie Conrad, addressed to Silverman, appellee, and others, was received by appellee. The only cause of termination stated in the notice was the bankruptcy of Silverman and the provision of the lease in respect thereto. The rent for December 1938, was tendered and refused. The suit for forcible entry and detainer was begun shortly thereafter, followed by the suit at bar. The rent for December 1938, and thereafter, was deposited with the clerk of the court, until $9,700 was in his hands. On December 2, 1939, upon appellants’ petition, and over objection of appellee, the court ordered the amount on hand to be turned over to Schwartz and Company, without prejudice to the rights of any of the parties, to be credited to appellee on-the final accounting, on account of its occupance of the premises. On March 25, 1940, appellee filed its motion for leave to file a supplemental complaint showing such payment, and subsequent payments by the clerk to the Schwartz agency of the rent for January and February 1940 alleging that by reason of the acceptance of such rent Nellie Conrad has no right to maintain the forcible entry and detainer action, and that the instant litigation should be terminated immediately in appellee’s favor. The motion was denied and cross-error is assigned on the ruling.

The court construed the ninth paragraph of the lease as meaning that the lessee is liable to and should pay one half the cost of the fuel furnished to the heating plant used to heat the demised premises, and is not liable to pay for any portion of the fuel furnished to the heating plant to supply heat or hot water to heat the so-called Pantheon Building, its stores, apartments and offices, or any other building except the theatre premises, and ordered the cause re-referred to a special commissioner to state the amount due from appellee, and to give effect to the testimony of an engineer who testified on that subject, retaining jurisdiction to pass upon the account, and for fixing commissioner’s fees and costs.

We first consider whether the lease was in effect between the appellants and appellee, and in approaching this subject we must take notice of the long-established principle of law that forfeitures are not favored by the courts and they will readily adopt any circumstances that indicate an intent to waive a forfeiture. (Patterson v. Northern Trust Co., 132 Ill. App. 208, 220; Famous Permanent Wave Shops, Inc. v. Smith, 302 Ill. App. 178, 190.) That covenants against assignments will be strictly construed in order to prevent forfeitures, is an elementary proposition of law. (Traders Safety Bldg. Corp. v. Shirk, 237 Ill. App. 1.) Although appellants knew of the several assignments of the lease, they at no time gave any notice to appellee or to any of the predecessor assignees of any termination of the lease for a failure to procure consent in writing to any such assignment, but treated the lease as in effect, and continued without objection to accept the rent from each of them, upwards of a year and two thirds after the first assignment, and also the payments on the fuel oil above mentioned, until October 1938. As was said in Webster v. Nichols, 104 Ill. 160, 171; “The clause in the lease providing that the premises shall not be assigned without the written consent of the lessors, is clearly for the benefit of the lessors only. It does not render the assignment, when otherwise made, absolutely void, but voidable only, at the option of the lessors or their representatives. But even if the lessors, instead of here attempting, as they now are, to enforce rights under an assignment otherwise made, were attempting to have such an assignment declared void, they could not succeed. They, have knowingly accepted rent from Abiah G. Webster since she has been in possession as purchaser from Gage, and this concludes them, for it is well settled that ‘any act done by a landlord knowing of a cause of forfeiture by his tenant, affirming the existence of the lease, and recognizing the lessee as his tenant, is a waiver of such forfeiture. . . . The receipt of rent subsequently accruing from the tenant by the landlord is such an act, and the forfeiture thereby waived. ’ ” This well-recognized rule has its foundation, at least in part, upon the fundamental rule, that one having the exclusive right to terminate an executory contract, must abrogate it altogether, if at all. He cannot be heard to say it is valid for one purpose, and, in the same breath, that it is invalid for all other purposes, but is founded chiefly upon the principle of common honesty and natural justice, which the law exacts of mankind in their intercourse and dealings with each other. (Schimp v. Cedar Rapids Ins. Co., 124 Ill. 354, 357.) In the case at bar, as in Webster v. Nichols, supra, appellants are attempting to enforce rights under an assignment, by seeking to recover for the unpaid fuel oil bill, under the terms of the lease, and in addition to accepting the rent from the several assignees, including appellee, they accepted rent from appellee, without protest or condition, for the month of September 1938, after they had notice of the bankruptcy of Silverman. Under the doctrine laid down in Webster v. Nichols, supra, this was also a waiver of forfeiture on account of such bankruptcy. Although the lease contains a clause that the acceptance of rent after it falls due, “or after having knowledge of any breach hereof by lessee, or the giving or making of any notice or demand, whether according to any statutory provision or not, or any act or series of acts except an express written waiver,' shall not be construed as a waiver of lessor’s right to act without notice or demand or of any other right hereby given lessor, or as an election not to proceed under the provisions of this lease,” such a clause is for the benefit of the lessor, and has no force as to waivers implied by law from conduct of the lessor amounting to an estoppel, and does not render an oral waiver inoperative, since such a provision may itself be waived. (Bennett v. Union Cent. Life Ins. Co., 203 Ill. 439, 450; Phenix Ins. Co. v. Grove, 215 Ill. 299, 302; Reinhardt v. Security Ins. Co. of New Raven, Conn., 312 Ill. App. 1,12.) A condition once waived is forever gone. (Continental Life Ins. Co. v. Rogers, 119 Ill. 474, 487; Sheldon v. Dunbar, 200 Ill. 490, 493.)

In re Scholtz-Mutual Drug Co., 298 Fed. 539, is cited and relied upon by appellants, as holding that such a covenant is a valid restriction. In that case bankruptcy proceedings were instituted against a lessee, and the assignee of the lessor filed a petition in the bankruptcy proceedings asking for possession of the premises because a receiver had been appointed for the lessee in possession of the premises. The lease contained a provision similar to the cancellation clause in the case at bar. The court held it was within the power of the parties to so contract, but there is no question here about the validity of such a provision, and that case is not in point.

In Empress Theatre Co. v. Horton, 266 Fed. 657, also cited and relied upon by appellants, the lease provided: “The bankruptcy or insolvency of the party of the second part (the lessee), or other tenants who may go into possession of the premises, with the written consent of the party of the first part, shall, at the option of the party of the first part, work an immediate forfeiture of the lease.” The cause involved the bankruptcy of the assignee of the lessee, the tenant in possession, and manifestly is not applicable here.

In re Lindy-Friedman Clothing Co., Inc., 275 Fed. 453, also cited and relied upon by appellants, the corporation assignee of the lessees went bankrupt. The lease contained a clause similar to the bankruptcy clause of the lease in the case at bar. The lease named two individuals as lessees, and it was contended that the clause applied only to them. The court said that the contention was too narrow because it did not accord with the contemplation of the parties to the lease, and -further said: “It is not to be doubted that the organization of the corporation, now the bankrupt, was contemplated, for the lease itself shows such to be the fact,” and further held that it was intended by both parties that the corporation should step into the shoes of the original lessees, and become as fully bound in every respect. No such factual situation exists here, and that case is manifestly not in point. In In re Lindy-Friedman Clothing Co., Inc., 285 Fed. 22, the facts are similar to those in the Lindy-Friedman Company case, above mentioned, and is in the same category, as is also In re Famous Fain Co., Inc., 13 F. (2d) 529, cited by appellants, where the determinative facts and issues were analogous to those in the Friedman Company cases.

Appellants claim that the phrase: “If lessee, or any one or more of the lessees, if there be more than one,” in the termination clause relating to bankruptcy, clearly shows an intention to extend the provisions to the rights of appellee, and cite Gillette Bros. v. Aristocrat Restaurant, 239 N. Y. 87, 145 N. E. 748, which was a suit by the plaintiff corporation against the defendant restaurant for rent. The Schulte Realty Company had leased the premises to Maurice and Charles Gillette, as copartners, described therein as “the tenant,” and they assigned the lease to the plaintiff corporation without consent of the lessor, and the plaintiff in turn executed an instrument, in form a sublease, but which the court held was an assignment, for the entire term, to the defendant. Receivers for the plaintiff were appointed and a petition in involuntary bankruptcy was filed against it, whereupon the lessor served notice of the termination of the lease upon the Gillettes, the plaintiff, and the defendant. Upon receiving the notice, the defendant voluntarily vacated the premises. The bankruptcy suit and the equity suit in which receivers were appointed having been dismissed, the suit for rent was instituted by the plaintiff. The defendant took the position that because of the bankruptcy of an intermediate assignee, it was obliged to treat the lease as terminated and to vacate the premises. The court held that there was no privity of contract between the corporation assignee and the lessor, but only privity of estate; that it was bound by such covenants as ran with the land so long as it remained as assignee of the lease and in possession, but might discharge itself from further liability by assigning its interest in the premises to a stranger; and that the final assignee was liable on the ground that it was never intended that an intermediate assignee, who had reassigned, and whose liability of every kind to the lessor had ceased, should be described by the word “tenant,” or that bankruptcy of such a third party should result in a forfeiture of the lease. That case does not support the contention of appellants. The same holding as to privity in such cases is found in Leitch v. New York Cent. R. Co., 388 ll. 236, 242, but no question of waiver was involved in that case or the Gillette case, supra.

Appellants claim that, under the doctrine of those two cases, appellee could have abandoned the premises at any time before this suit was instituted, without liability for future rent. The 18th paragraph of the lease provides: “All covenants, promises, representations and agreements herein contained shall be binding upon, apply and inure to the benefit of the heirs, executors, administrators or assigns respectively of Lessor and Lessee.” We think there can be no doubt that the word “assigns” includes successive assigns. If there be any such doubt it is resolved'against the lessor (Goldberg v. Pearl, 306 Ill. 436) and it follows' that appellee, as assignee, is bound by the obligations of the lessee. Furthermore, even if this conclusion is not correct, appellee has evinced no intention to abandon the premises, or to escape liability under any of the provisions of the lease, but, on the contrary, by its complaint in this cause states that it “is ready, willing and able to comply in all respects with the terms and provisions contained in the lease, and has tendered to the defendants the rents which has become due, but defendants refused to accept said rent; and plaintiff does hereby tender and offer to pay any such rent and any charges legally due from it under the terms and provisions of said lease.” The statement that it is willing, ready and able to comply in all respects with the terms and provisions of the lease manifestly includes payment of the stipulated rent for the full term, when and as the same becomes due, and for its portion of the fuel oil already used and to be used during the remainder of the term. Appellee thus assumed the obligations of the original lessee under the lease, and there is no showing that it is not ready, willing, and able to carry out and perform them. Under the decree granting the relief sought on those grounds, it could not escape liability for its obligations thereunder by abandoning the premises before the expiration of the lease. Appellants are in no worse position than if written consent to the assignments had been obtained, or if the bankruptcy of Silverman had not occurred. Under the circumstances, we do not think that the doctrine that there is no privity of contract between the lessor and an assignee of a lease without consent is a controlling factor in this case.

A case directly in point is Smith v. Gronow, 2 Law Rep., Queen’s Bench, 394, 65 Law Times Rep. (N. S.) 117, where a lessor sued the assignee of the lease to recover possession on account of the bankruptcy of the lessee. The lease contained a covenant against assignment thereof without written consent of the lessor, and a provision that if the lessee, his executors, administrators, or assigns, shall become bankrupt or take the benefit of the act for the relief of insolvent debtors, the lessor could re-enter, and the lease be terminated. The bankruptcy, as in the instant case, took place after the assignment of the lease, and the court held that the provision referred only to the bankruptcy of the person holding the estate, that is to the bankruptcy of the lessee, his executors or administrators if there had been no assignment, or if there was an assignment, then to the bankruptcy of the assignee. That case is cited with approval in Gillette Bros. v. Aristocrat Restaurant, 209 N. Y. App. Div. 597.

As to the meaning of the phrase above quoted, the rule of law is that leases are most strongly construed against the lessor, and if there is any doubt or uncertainty as to the meaning of the grant, it is to be construed in favor of the lessee. We think the master correctly interpreted it in his holding that the parties to the lease knew that the lessee, Manning Silverman, was a sole individual, and by no stretch of the imagination could he be more than an individual or the plural applied to him; that the lessors, when they adopted this phrase, contemplated that the lease, if assigned, might be to one or more persons. It is evident that such assignee or assignees were meant to be embraced in the term “or any one or more of the lessees, if there be more than one”; and in line with the Gronow case, supra, we think that the provision as to bankruptcy refers to Silverman, if he was still the lessee, and, in the alternative, to the assignee or assignees if they be the tenant. The doctrine that any doubt or uncertainty as to the meaning of a provision in a lease is construed most strongly against the lessor, applies equally here. In this connection, it is to be remembered that Silverman was forced out of the picture, and appellee was welcomed as successor, by appellants, and it would be highly inequitable to impose upon appellee, a forfeiture of its rights thereunder, with resulting great financial loss, when appellee is ready, willing and able to' carry out and perform all the terms of the lease, with no loss to appellants.

-In a later case, In re Larhey, and In re Konner, 214 Fed. 867, a lease contained a cancellation clause similar to that in the case at bar. There was a subletting with consent of the lessor, and the sublease contained the same provision. An involuntary proceeding in bankruptcy was instituted against the lessee, and a receiver was appointed. Almost immediately thereafter the lessor filed an intervening petition, expressing an election to re-enter, and prayed for an order requiring the alleged bankrupt and the sublessee to surrender the premises. In denying the petition, the court said that it was clear from the evidence that the landlords knew before they consented to the sublease, who the subtenant was to be, and that they approved of him and of the purpose for which he was to use the premises. Mentioning the two grounds of the petition (1) that proceedings in bankruptcy had been instituted, and (2) a receiver had been appointed, having in mind the principles that forfeitures are not favored either at law or in equity, and that a provision therefor will he strictly construed in favor of the tenant, the court held that there had been no breach of the covenant in either of those respects which worked a forfeiture, and denied the petition on two grounds, the first of which was that the proceeding had not yet culminated in an adjudication of bankruptcy; and, on the merits, that the enforcement of the forfeiture would cast an undue hardship on the assignee, who was acceptable to them; that the lessors were in exactly the same position as if there had been no breach, and that there was no question of the subtenant’s financial responsibility. The court said the only conceivable benefit which a forfeiture would confer upon the landlords was that they might, if relieved of the present tenants, be able to lease the premises at a larger rental, a consideration which should not commend itself to a court of equity. The holding on the merits precisely fits the circumstances in the case at bar. The chancellor correctly held that the lease is in effect between appellants and appellee, and correctly made the injunction permanent. This eliminates any necessity of passing upon the sufficiency of the notice of termination.

Grommes v. St. Paul Trust Co., 147 Ill. 634; Jaeger v. United States Brewing Co., 163 Ill. App. 216; and Halloran v. Hall, 165 Ill. App. 440, further cited and relied upon by appellants, involve the liability of an original lessee for rents after assigning his lease, and have no bearing on the issues in this case.

This leaves for consideration the question of the court’s holding as to the proper division of the cost of fuel oil. Mr. Schwartz testified that when the terms of the lease were being discussed it was said that the tenant would have to pay for his share of the fuel, and the question arose as to what that share might be; that the actual amount of space to be heated in the theatre proper, and in the other parts of the building was not computed, and it was impossible to arrive at any figure, or definite basis, and it was agreed that the lessee and the lessor, should each pay one half of the oil bills. His testimony was not contradicted, unless it be by the terms of the lease itself, which we do not think does so. It is to be remembered that the parties themselves treated the provision in accord with Mr. Schwartz’ testimony. "Where construction of a lease is doubtful, the practical construction by the parties may be resorted to. (United States Brewing Co. v. Wolf, 181 Ill. App. 509.) Appellee wrote a letter to him agreeing to pay the amount unpaid at that time on that basis, and made some payments thereunder, and it was not until this suit was started that appellee claimed the clause in the lease should be interpreted differently. We are of the opinion that under the wording of the lease and the testimony of Mr. Schwartz, appellee is liable for the fuel oil bills as rendered. The decree makes no finding as to the Conrad judgment, and we are not concerned therewith.

As to the cross-error on the denial of leave to file the supplemental complaint, the rents deposited with the clerk were ordered turned over to appellants’ agent without prejudice to the rights of any of the parties, to be credited to appellee on the final accounting, on account of its occupancy of the premises. The money would be the property of appellants in any event, because of such occupancy, regardless of the outcome of the suit and there was no error in denying leave to file the supplemental petition.

The decree is affirmed in all respects except as to the holding on the amounts for fuel oil for which appellee is liable, and as to that holding the decree is reversed and the cause is remanded, with directions to modify the decree in this respect in accordance with the views herein expressed.

Reversed in part and remanded.


text:
    H. H. Antrim, Appellant, v. Guyer and Calkins Company, Appellee.
    Gen. No. 9,998.

      Opinion filed February 8, 1945.
    Released for publication February 26, 1945.
    Harold R. Nettles, of Freeport, for appellant.
    Hunter & Hunter, of Freeport, for appellee.

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

   Mr. Presiding Justice Dove

delivered the opinion of the court.

In an action by appellant against appellee before a justice of the peace of Stephenson county, judgment was entered against appellant on July 30,1943, including the costs. On August 4,1943, in an attempt to perfect an appeal to the circuit court, appellant filed with the justice of the peace an appeal bond in the sum of $15 executed by himself only. The bond itself does riot show any filing mark nor any written approval thereof, but the office docket of the clerk of the circuit court shows that the bond and the transcript were filed in his office on August 4,1943, and that the advance filing fee of $5 had been paid to the justice of the peace.

At the beginning of the hearing in the circuit court, appellee moved to dismiss the appeal on the. ground that the appeal bond did not appear to have been filed, either with the clerk of the court or with the justice of the peace.; that there was no surety on the bond, and that the statute requires that the bond be taken and approved, either before the justice of the peace or before the clerk of the court, and that it have at least one surety. During the course of the hearing, appellant filed a motion for leave to file an amended appeal bond or a new appeal bond, which motion was denied by the court. At the close of the hearing appellee renewed its motion to dismiss the appeal, and the motion was granted, on the ground that there was not a substantial compliance with the statute, and the cause is here on an appeal from the order dismissing the appeal.

The transcript from the justice of the peace shows $7.50 costs accrued in that court, including the cost of the transcript and appeal bond, and judgment against appellant for that amount. Appellant offered to prove that he paid the same to the justice of the peace; that the latter prepared the appeal bond, and that appellant signed it in his presence; that the justice of the peace accepted appellant as security thereon, and verbally approved the bond by stating that he would take appellant as security, wrote “Appealed” on his docket the same day; and personally delivered the bond and transcript to the deputy circuit clerk on August 4, 1943, and that the deputy stamped them “Filed.” Objections to these offers of testimony were sustained.

The pertinent portion of sec. 1, art. X of the Justices and Constables Acts (Ill. Rev. Stat. 1943, ch. 79, par. 116 [Jones Ill. Stats. Ann. 71.112]), provides:

The party praying for an appeal shall, within twenty days from the rendition of the judgment, pay the fee provided by law for the filing of such appeals and enter into bond with security to be approved and conditioned as hereinafter provided, in substance as follows: (Setting out the form of the bond) . . . The bond shall be approved by and filed with either the justice of the peace rendering said judgment or the clerk of the court to which the appeal is taken.”

Appellant’s brief states the “Errors Belied Upon for Beversal” as: The court erred (1) in overruling appellant’s motion for leave to file an amended or additional appeal bond; (2) in refusing to receive the offered testimony of appellant and the justice of the peace as to the approval of the bond; and (3) in sustaining appellee’s motion to dismiss.

Counsel for appellee contends that the second assignment is not argued and is thereby waived. Although not argued by counsel for appellant under a specific heading, his brief repeatedly refers to the offered testimony on this phase of the case, and his reply brief specifically denies any intention to waive the point, and asserts reliance thereupon. We do not agree with appellee’s claim that the point was waived. Under like provisions of sec. 1 in former acts, it was held that the approval of an appeal bond by a justice of the peace perfects an appeal although the bond is defective. (Miller v. Superior Mach. Co,, 79 Ill. 450.) It has also been held that it is not necessary that a formal approval of the bond be written thereon, but accepting the bond, expressing satisfaction with the security, and acting upon it, amounts to an approval. (Barker v. Smith, 90 Ill. App. 595; Smith v. Ammen, 101 Ill. App. 144.) The evidence on this point was competent, and should have been admitted.

The present Justices and Constables Act is the Act of 1895, as amended. Its title is “An Act to revise the law in relation to justices of the peace and constables.” It contains no clause repealing any prior act. Sections 67-80 of the prior Act of 1872 were omitted from the 1895 Act. Section 69 of the Act of 1872, adopted from the Act of 1853, provides:

“No appeal from a justice of the peace shall be dismissed for any informality in the appeal bond. But it shall be the duty of the court before whom the appeal may be pending, to allow the party to amend the same within a reasonable time, so that a trial may be had on the merits of the case.”

Appellee contends that because the Act of 1895 is a revision of the Act of 1872, the omitted sec. 69 was repealed by implication. Appellant takes the position that it was not so repealed. There are two general rules of law as to repeals by implication, mentioned in numerous cases in courts of review in this State. One of them, invoked by appellee is, that a revision of a law repeals by implication previous statutes on the same subject, although there be no repugnance and though there may be no express repealing clause or section in the revision, and that all parts and provisions of the former Act or Acts that are omitted from the revised Act are repealed. (People v. Borgeson, 335 Ill. 136.) The other rule, relied upon by appellant is, that repeals by implication are not favored, and it is only where two statutes relating to the same subject are clearly repugnant to each other and both cannot be carried into effect, that the former is repealed. To the extent that they are in conflict the first Act is repealed, but the parts of the first Act not affected remain in full force and effect. (City of Geneseo v. Illinois Northern Utilities Co., 378 Ill. 506, 529; Village of Glencoe v. Hurford, 317 Ill. 203, 215, 216.)

Under the rule secondly above mentioned, it was held in Gibson v. Ackermann, 70 Ill. App. 399 (1897) that sec. 76 of the Act of 1872 was not repealed by the Act of 1895. Similarly, in Tongeln v. Knoll, 227 Ill. App. 317 (1923) where sec. 70 of the Act of 1872 was in controversy, it was held that none of the omitted sections of the Act of 1872 were repealed by the Act of 1895. These decisions are relied upon by appellant. In Gibson v. Achermann, supra, it is held that the Act of 1895 does not purport to revise the old law in so far as it contained provisions in regard to the proceedings in the circuit court, and that therefore it cannot be said to be a complete revision of the whole subject matter of the old Act. In McGillen v. Wolff, 83 Ill. App. 227 (1899), it was held that by adding the provisions of omitted sec. 68 of the Act of 1872 to the last sentence of sec. 1, art. 10 of the Act of 1895 (par. 116, supra), of the present statute, there is no repugnance between the two, but they are perfectly consistent and together establish a complete and harmonious rule 'of practice. The holdings in those two cases may well be applied to omitted sec. 69 of the Act of 1872. Furthermore, under the history of the legislation and its contemporaneous construction by the legislative and judicial branches of the State government and the bar, we are not of. the opinion that the first rule above mentioned is controlling in this case.

Prior to the adoption of the Act of 1895, there were numerous decisions, both of the Supreme Court and ' the Appellate Courts of this State, to the same effect as sec. 69 of the Act of 1872. Some of them mentioned that section and others did not. In the view we take of the question, it is unnecessary to cite or discuss them further. In determining whether the omitted sections of the Act of 1872 are to be regarded as repealed by the Act of 1895, we regard as important the holdings in numerous cases since the adoption of the Act. of 1895, including the two cases above mentioned relied upon by appellant. Mo case is cited by appellee, and from our own research, we know of none, which hold's that any of the omitted sections of the Act of 1872 were repealed by implication on account of being omitted from the Act of 1895. On the contrary, since the adoption of the Act of-1895, there have been numerous decisions treating several of the omitted sections as still in force.

In Clarle v. City of Chicago, 233 Ill. 113, 115 (1908), and People v. Burdette, 285 Ill. 48, 50 (1918) omitted sec. 79 of the Act of 1892, prescribing six months limit on certiorari, was cited and treated as still in force. Section 68 was similarly treated in Baldwin v. Economy Furniture Co., 70 Ill. App. 49 (1897); Bevilaugua v. City of Taylorville, 271 Ill. App. 82 (1933); and Ward v. Schiesswohl, 82 Ill. App. 513 (1899), and was held to be not repealed in Bridge & Structural Iron Workers’ Union v. Sigmund, 88 Ill. App. 344 (1900); McGillen v. Wolff, 83 Ill. App. 227 (1899); Scheldt v. Goldsmith, 89 Ill. App. 217 (1900); sec. 70 was treated as still in force in Counselman v. Sullivan, 101 Ill. App. 307 (1902); Ward v. Schiesswohl, supra; Ernst v. Friedl, 93 Ill. App. 5 (1901). In addition to Gibson v. Ackermann, supra, and Tongeln v. Knoll, supra, sec. 69 is treated as still in force in Enright v. Rehbach, 133 Ill. App. 50 (1907); Hepner v. Hepner, 112 Ill. App. 598 (1904); Otis v. Briar, 288 Ill. App. 629 (1937); Lyons v. Ernst’s Estate, 265 Ill. App. 127 (1932). McRae v. Houdeshell, 88 Ill. App. 428 (1899), is based on sec. 74 as still in force. Section 76 is similarly treated in Okerlind v. Fyke, 90 Ill. App. 192 (1900); Simpson v. Sligar, 239 Ill. App. 484 (1926); Chicago Stamping Co. v. Danly, 85 Ill. App. 322 (1899); Schmitt v. Edward Hines Lumber Co., 124 Ill. App. 319 (1906); Couch v. Illinois Cent. R. Co., 213 Ill. App. 429 (1919); Fisher v. Pennsylvania Co., 118 Ill. App. 662 (1905).

In the construction of statutes, from the time of the holding in Phoebe, a woman of color, v. Jay, 1 Ill. (Breese) 268 (Third Ed., p. 207) the rule, as expressed in that opinion is “that the sense which the contemporaneous members of the profession had put upon them is deemed of some importance according to the maxim that contempornea espositio est fortissima in lege (quoted from 1 Kent’s Com. 434) has been followed. In Comstock v. Cover, 35 Ill. 470, 478, the court said in the opinion: “The doctrine is, where a statute uses language of doubtful import, acting under it for a long course of years in one way, may well give an interpretation to that obscure meaning, • and reduce that uncertainty to a fixed rule»” See also People v. Fidelity & Casualty Co., 153 Ill. 25 and Nye v. Foreman, 215 Ill. 285. In our opinion, applying this rule, sec. 69, of the-Act of 1872 must be held as still in force.

The trial court therefore erred in granting appel-. lee’s motion to dismiss the appeal, and should have granted appellant’s motion for leave to file an amended bond within a reasonable time to be fixed by the court.

The order dismissing the appeal is reversed and the cause is remanded with directions to proceed in accordance with the views expressed in this opinion.

Reversed and remanded.