text:
    Celia Bochner, Appellant, v. Samuel H. Rosen, Also Known as Samuel Rosen, Appellee.
    Gen. No. 43,361.

      Heard in the first division of this court for the first district at the April term, 1945.
    Opinion filed June 25, 1945.
    Released for publication July 19, 1945.
    Benjamin Meister, of Chicago, for appellant.
    Gabriel Goldberg, of Chicago, for appellee.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.

This is an appeal by plaintiff from a judgment in favor of defendant entered upon the finding of the court in an action for forcible entry and detainer. The premises consist of a private dwelling apartment known as 2-E at 1350 South Avers avenue in Chicago. Defendant held under a written lease for seven months, expiring by its terms April 30, 1944. February 22, 1944, plaintiff landlord obtained from the 0. P. A., a certificate of eviction, effective three months thereafter. This suit was brought in the municipal court of Chicago December 1, 1944. The cause was tried by the court. Plaintiff put in evidence the certificate of eviction issued by the O. P. A. February 22, 1944. It appeared from the evidence that after this certificate was issued plaintiff on June 1, 1944, sued in forcible entry and detainer in the circuit court of Cook county for the possession of these premises; that the cause was tried by Judge Fisher; that it appeared upon the triahthe plaintiff had accepted from the defendant rent for the entire month of May 1944; that Judge Fisher, therefore, rightly found the result of this was to extend the original lease at the option of defendant for another seven months’ period at a like rental, and that the extended lease would, therefore, not expire until November 30, 1944.

On December 1 thereafter, plaintiff filed this suit in forcible entry and detainer in the municipal court of Chicago. She showed on the trial before the court that before filing suit she had duly notified defendant of her determination to end his tenancy on November" 30, 1944, in conformity with the local law (Ill. Rev. Stat. 1943, ch. 80, sec. 3 [Jones Ill. Stats. Ann. 72.03]) and also that upon beginning this suit she duly notified the O. P. A. in conformity with the local law and regulations pursuant to the O. P. A. Maximum Rent Regulations for Housing (sec. 6 (b) (1), sec. 6 (b) (2) and sec. 6 (d) (2)).

Defendant undertook to interpose as defenses that •plaintiff did not in good faith wish the premises for her own personal use; that the certificate of eviction issued February 22 was ineffective and a second certificate necessary; further, that the case heard by Judge Fisher in the circuit court of Cook county was res adjudieata of the issues in this case. There is no merit to any of these contentions.

A representative of the O. P. A. was present at the hearing and stated without objection: “Do you want me to explain our regulation . . . this is in full force and effect. It was not knocked out on a technicality so far as the taking of rent was concerned, it is still in full force. .We have not revoked that Certificate.” The certificate of eviction was therefore in force and was conclusive of plaintiff’s right to proceed under local law without regard to the Price Administration Act. Indeed, the municipal court of Chicago was wholly without jurisdiction to try the question of plaintiff’s intention to personally occupy the premises and the evidence introduced was therefore wholly inadmissible. Jones v. Shields, 63 Cal. App. (2d) 846, 146 P. (2d) 735; United States v. Hansen, Dist. Ct. E. D. Wis., 52 Fed. Supp. 693. The evidence tending to show plaintiff wished the premises for another was mere hearsay and inadmissible, and since the trial court was without jurisdiction to try that issue it should not have been admitted at all. Lockerty v. Phillips, 319 U. S. 182; Rottenberg v. United States, 137 F. (2d) 850.

We also hold on the undisputed facts the former circuit court judgment was not res adjudicata of the issues arising in this suit. It is true the parties were identical but the cause of action, while of the same kind in form, was not the same in substance. Steele v. Grand Trunk Junction Ry. Co., 20 Ill. App. 366; Merrin v. Lewis, 90 Ill. 505. The judgment there was res adjudicata of the question decided by the circuit court at that time. It was not res adjudicata of the issue whether plaintiff was entitled to recover at the time this case was begun and tried. Keeley Brewing Co. v. Mason, 116 Ill. App. 603. See also Louisville, N. A. & C. R. Co. v. Carson, 169 Ill. 247, and Stone v. Salisbury, 209 Ill. 56. We hold on the uncontradicted evidence plaintiff was entitled to recover.

The judgment of the municipal court will be reversed and the cause remanded with directions to issue a writ of restitution against defendant and in favor of plaintiff.

Reversed and remanded with directions.

Niemeyer, and O’Connor, JJ., concur.


source: Caselaw Access Project

author: Mr. Justice Niemeyer

license: Public Domain

text:
    Walden Home Builders, Inc., Appellant, v. Frank Schmit and Frank J. Kane, Trading as Great Northern Plumbing and Heating Supply Company et al., Defendants. Frank Schmit et al., Appellees.
    Gen. No. 43,318.

      Heard in the first division of this court for the first district at the February term, 1945.
    Opinion filed June 25, 1945.
    Released for publication July 19, 1945.
    Samuel G. Rautbord, of Chicago, for appellant; Irwin S. Baskes, of Chicago, of counsel.
    J. Thomas Moore, of Chicago, for appellees; Harold J. Finder, of Chicago, of counsel.
   Mr. Justice Niemeyer

delivered the opinion of the court.

Plaintiff appeals from an order dismissing its action for want of capacity to sue because of its dissolution by a decree of the superior court of Cook county entered in a proceeding brought by the attorney general.

The action was commenced May 22, 1942 by the filing of a praecipe and statement of claim and issuance of summons. Service was not had upon the defendants involved in the appeal until June 27, 1942. The complaint alleged that at the time of the transaction sued upon the plaintiff was an Illinois corporation, and thereafter on May 24, 1940 was dissolved by decree of court; that on or about April 7, 1937 plaintiff paid to defendants $2,640, in consideration whereof defendants in writing agreed to furnish to plaintiff certain boilers, pipe fitting, radiation and valves complete for heating six buildings; that none of the materials so contracted for was delivered to plaintiff and that defendants retained and converted to their own use the money paid them by plaintiff. Defendants, after filing an answer, withdrew it by leave of court and filed a motion to dismiss the action upon the ground that to give the court jurisdiction “it became necessary for plaintiff to file suit and cause service of process to be had upon the defendants within two years from its corporate dissolution on. May 24, 1940, in compliance with the statutory provision of the State of Illinois then in force and effect” (Ill. Rev. Stat. 1939, ch. 32, par. 157.94 [Jones Ill. Stats. Ann. 32.096]), providing that the dissolution of a corporation “shall not take away or impair any remedy given against such corporation, its directors, or shareholders, for any liability incurred prior to such dissolution if suit thereon is brought and service of process had within two years after the date of such dissolution.” By stipulation the motion to dismiss was heard before three judges of the trial court, who concurred in the entry of the order sustaining the motion and dismissing the action as to the defendants.

No transcript of proceedings was filed. The record contains what purports to be a letter from the secretary of state of -Illinois," and franchise tax receipts for the years 1939 through 1944; also a certified copy of a decree of the superior court of Cook county entered June 30,1944 vacating the prior decree of dissolution of plaintiff. Defendants have moved to strike these papers from the record. Plaintiff’s counsel attempt to show by affidavit that they were considered by the court in determination of the motion to dismiss, and should be considered as an answer to defendants’ motion. There is nothing in the record from which any inference, can be drawn that these papers were filed as an answer or part of an answer, and, if considered by the trial court as evidence, such evidence should have been preserved by transcript of proceedings certified by the trial court. The motion to strike is allowed. The record properly before us is entirely devoid of anything showing why the plaintiff corporation was dissolved, and there is therefore no basis for defendants’ contention, not raised in their motion to dismiss, that plaintiff could not sue because of failure to pay its franchise tax. .

Plaintiff contends that the court erred in sustaining defendants’ motion because in 1941, section 94 of the Corporation Act was amended to preserve to a corporation rights of action in its name if commenced within two years from its dissolution, and that this amendment applied to corporations dissolved prior to its enactment. Defendants “contend that the amendment is not retroactive, and point out that the legislature did not intend to make it retroactive because to have done so would have made the amendment unconstitutional.” At the time of plaintiff’s dissolution there was no statute preserving any remedies on behalf of a dissolved corporation. Section 94, relied upon by defendants in their motion to dismiss, had no relation to actions by or in behalf of a dissolved corporation. It purported only to preserve remedies against the corporation, its directors and stockholders. Taking the complaint as true, as we must on the motion to dismiss, plaintiff had a meritorious cause of action, and defendants were indebted to it prior to its dissolution. This liability of the defendants did not terminate with the dissolution of the corporation, for in the absence of statutory provision creditors and stockholders of a dissolved corporation may bring suit in equity to recover corporate assets. Wheeler v. Pullman Iron & Steel Co., 143 Ill. 197, 204; Shayne v. Evening Post Pub. Co., 168 N. Y. 70; 13 Am. Jur., Corporations, §1352, p. 1197. The amendment of 1941, therefore, did not create a new liability or cause of action against the defendants. It did not revive a cause of action which had lapsed, as in the case of Board of Education Normal School Dist. v. Blodgett, 155 Ill. 441, cited by defendants. The amendment related solely to the remedy to enforce a liability against defendants which had never ceased to exist. A similar question arose in the case of Wilner Friends Credit Ass’n v. Scheffres, 175 Misc. 909, 25 N. Y. S. (2d) 664. In that case plaintiff corporation had been dissolved under the provisions of sec. 203-a of the Tax Law, which provided that dissolved corporations could wind .up their affairs, including the collection of their debts, only pursuant to the method outlined in sec. 106 of the Stock Corporation Law; on March 2, 1940, subsequent to the dissolution of plaintiff and prior to the institution of the suit, sec. 203-a of the Tax Law was amended by providing that sec. 29 of the General Corporation Law should apply to a dissolution of a corporation under sec. 203-a. In holding that the amendment was retroactive and that the benefits thereunder were available to the plaintiff corporation, the court said: “It is plain that if the amending statute creates a new cause of action or substantive rights where none existed before the effective date of the Act, it cannot apply to a state of facts occurring before March 2, 1940. Jacobus v. Colgate, 217 N. Y. 235, 111 N. E. 837, Ann. Cas. 1917 E, 369. If, however, it merely affects the procedure or remedies for the collection or enforcement of previously existing rights, it may be held to apply to the creditor corporation in this proceeding. Compton & Co. v. Williams, 248 App. Div. 545, 290 N. Y. S. 984. To my mind, the statute is one which merely provides a different method of winding up and administering the affairs of dissolved corporations. It creates no causes of action and deprives no one of property. I reach this conclusion because it appears to be well settled that when a corporation is dissolved, its assets do not vanish and its debtors are not absolved or released. Delaware & Hudson Co. v. Mechanicville & Fort Edward R. Co., 268 N. Y. 394, 398,197 N. E. 325; Shayne v. Evening Post Publishing Co., 168 N. Y. 70, 61 N. E. 115, 55 L. R. A. 777, 85 Am. St. Rep. 654; and MacAffer v. Boston & Maine Railroad, 268 N. Y. 400, 406, 197 N. E. 328.” Stockholders of Peoples Banking Co. of Smithsburg, Md. v. Sterling, 300 U. S. 175, involved the liability of stockholders of the banking corporation under the constitution and statutes of the State of Maryland; at the time the bank in question was organized and certain stockholders acquired their stock, every creditor of the corporation had an action for his individual use and not as a class representative against the holders of the shares of an insolvent bank; later, by statutory enactment, the cause of action formerly enforceable by the creditors separately, each suing for himself, became enforceable only by the receiver, assignee or trustee of the bank as the representative of all creditors. It was held that the change did not impair the obligation of the contract between the corporation and the stockholders in contravention of the provisions of the constitution of the United States, because the changes were “directed to the implementing remedies rather than the substantive liability . . . ” To like effect are Crawford v. Branch Bank of Mobile, 7 How. (U. S.) 279, and Stein v. Indianapolis, Bldg. Loan Fund & Savings Ass’n, 18 Ind. 237, where new parties plaintiff were given right of action as to existing liabilities of the defendant.

The 1941 amendment, preserving right of action in the corporation for claims existing at its dissolution, merely simplified proceedings and created no new liabilities against debtors of the corporation. There could be only one recovery and no rights of the defendants were impaired. “No one has a vested right in any remedy granted by the Legislature which will enable him to successfully resist a reasonable modification of such remedy, or the substitution of a new and improved one in its place.” Compton & Co. v. Williams, 248 App. Div. 545, 290 N. Y. S. 984, 989; Kingston v. Old Nat. Bank of Centralia, 359 Ill. 192, 201. The amendment of 1941 supplied an omission in the Corporation Act of 1933 and restored to dissolved corporations a right which had existed under former statutes. No valid reason has been suggested why the amendment should not apply to corporations previously dissolved.

The trial court erred in sustaining defendants’ motion and dismissing plaintiff’s action. The judgment is reversed and the cause remanded for proceedings in conformity with this opinion.

Reversed and remanded.

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


text:
    Peter C. Orminski, Appellant, v. Hyland Electrical Supply Company, Appellee.
    Gen. No. 43,353.

      Heard in the first division of this court for the first district at the April term, 1945.
    Opinion filed June 25, 1945.
    Released for publication July 19, 1945.

      Chino & Schultz, of Chicago, for appellant; Theodore L. Forsberg, of Chicago, of counsel.
    Rothbart & Rosenfield, of Chicago, for appellee.
   Mr. Justice Niemeyer

delivered the opinion of the court.

Plaintiff’s action, for overtime wages as a truck driver at the hourly rates prescribed for such overtime in written contracts between defendant and plaintiff’s union, was dismissed on defendant’s motion interposing as a bar to plaintiff’s suit a summary judgment for defendant in an action brought by plaintiff in the district court of the United States to recover overtime wages, liquidated damages and reasonable attorneys’ fees under the provisions of the Fair Labor Standards Act of 1938. He appeals.

Plaintiff’s claim is based upon allegations that during the years from 1934 to 1941, both inclusive, plaintiff, a member of the Chicago Truck Drivers, Chauffeurs and Helpers Union of Chicago — Local 705, was employed as a truck driver by defendant; that successive written contracts were entered into by the defendant and the union prescribing the weekly wages for truck drivers based on 51 hours a week, and increased hourly rates for additional work in any week; that during each year plaintiff worked a stated number of overtime hours without receiving the extra compensation specified in the contracts. For this overtime, aggregating $1,748.35, he asks judgment.

The summary judgment held to be a bar to the present action was entered in a federal court action brought by plaintiff, claiming to be engaged in interstate commerce, to recover $631.01 — wages for overtime between October 29, 1938 and February 22, 1941 at the rate of time-and-a-half of the regular hourly wage under the employment contracts, liquidated damages in the same amount and reasonable attorneys’ fees in accordance with the provisions of the Fair Labor Standards Act. Defendant moved for a summary judgment upon the sole ground that plaintiff was not within the provisions of the Act because power was vested in the Interstate Commerce Commission under federal legislation to establish qualifications and maximum hours of service for plaintiff and all other persons employed by defendant driving its trucks. No other question was decided by the court or presented to it for decision. The rule of res judicata is stated in Charles E. Harding Co. v. Harding, 352 Ill. 417, 426: “The doctrine of res judicata is, that a cause of action finally determined between the parties on the merits, by a court of competent jurisdiction, cannot again be litigated by new proceedings before the same or any other tribunal, except as the judgment or decree may be brought before a court of appellate jurisdiction for review in the manner provided by law. A judgment or decree so rendered is a complete bar to any subsequent action on the same claim or cause of action, between the same parties or those in privity with them. The doctrine extends not only to the questions actually decided but to all grounds of recovery or defense which might have been presented. (Wright v. Griffey, 147 Ill. 496; Markley v. People, 171 id. 260; Terre Haute and Indianapolis Railroad Co. v. Peoria and Pekin Union Railway Co., 182 id. 501; Harvey v. Aurora and Geneva Railway Co., 186 id. 283; Godschalk v. Weber, 247 id. 269; People v. Harrison, 253 id. 625.) Where the former adjudication is relied on ,as an absolute bar to a subsequent action, it must be shown that the cause of action, the thing to be recovered and the parties are the same in both proceedings.” In the instant case and in the federal court proceeding plaintiff brought suit for overtime wages. Each action is based upon the contracts of employment. In the federal court action under the Fair Labor Standards Act the recovery is one and a half times the rate fixed by the contracts of employment, plus liquidated damages in the same amount and reasonable attorneys’ fees. Overnight Motor Transp. Co. v. Missel, 316 U. S. 572; Northwestern Yeast Co. v. Broutin, 133 F. (2d) 628, 630. The statute becomes a part of the employee’s contract of employment (D. & L. Production Co. v. Cuniff (Tex. Civ. App.), 180 S. W. (2d) 205), and the “liability is for the wages due employees under the working agreements which the federal statutes require employer and employee to make.” Loggins v. Steel Const. Co., 129 F. (2d) 118, 120. Recovery cannot be had under the Fair Labor Standards Act unless the plaintiff is engaged in interstate commerce in employment where the interstate commerce commission does not have power to establish qualifications and maximum hours of service. Sections 7 and 13 (b) (1) of the Fair Labor Standards Act. (U. S. Code, 1940 ed., title 29, § §207, 213.) Southland Gasoline Co. v. Bayley, 319 U. S. 44. Neither of these questions is material' in the case before us. The federal court having held on defendant’s motion that the Fair Labor Standards Act did not cover plaintiff’s employment, the judgment entered is res judicata as to his right of action under the Act. It is conclusive on the question of the applicability of that statute, but not of any claim for overtime independent of the statute. “The doctrine of res judicata is not available as a bar to a subsequent action if the judgment in the former action was rendered because of a misconception of the remedy available ... ” 30 Am. Jur., Judgments, § 210, citing, with many other cases in federal' and state courts, Schenck v. State Line Tel. Co., 238 N. Y. 308, where Justice Cardozo said (311-312): “The plaintiff thought he had a remedy at law, and so thinking sued for damages. In truth he had no such remedy, for, irrespective of his knowledge of the fraud, his right of action for damages had been barred by lapse of time. The defendants have blocked his recourse to a remedy which he had not. They now say that because of his mistake, he must be held to have renounced forever the remedy he had. ‘There would be no sense or principle in such a rule’ (Holmes, J., in Snow v. Alley, supra [156 Mass. 193]).”

The situation presented here is analogous to that involved in Pillsbury v. Early, 324 Ill. 562. There plaintiff brought suit for the specific performance of an alleged oral agreement of the decedent, John Early, to give to plaintiff at his death the farm on which decedent and his parents were living in consideration of plaintiff’s services in caring for decedent and his parents; this bill was dismissed for want of equity; plaintiff filed her claim in the probate court against decedent’s estate, claiming the reasonable value of the services rendered by her; the claim was allowed. In overruling the defense that the decree in the chancery suit was res judicata as to all matters involved in the claim against the estate, the Supreme Court said (565):“ . . . where the former adjudication is relied on as an answer and a bar to the whole cause of action it must appear that the things sought to be recovered and the cause of action in both suits are the same, (Hanna v. Read, 102 Ill. 596; Silurian Oil Co. v. Neil, 277 id. 45;) and that the former judgment necessarily involved the determination of the same fact to prove or disprove which it is offered in evidence: (Wells v. Robertson, 277 Ill. 534.) The issues in the chancery case and in the instant case were not the same. The chancery suit was for the specific performance of an express contract, and to” entitle plaintiff to a decree in that suit it was necessary that she prove, among other things, such express contract by clear and convincing proof. Plaintiff was not of kin to the deceased, and in the instant cáse it was not necessary that she should prove that the services were rendered under an express contract but recovery could be had upon an implied contract as well.” The trial court erred in holding the summary judgment to be a bar to the present action, and the cause must be remanded for a trial upon the merits.

After the order of dismissal was entered plaintiff made a motion for a ruling on that part of defendant’s motion which sought to strike from the complaint all claims for overtime not accruing within five years from the commencement of the action. The court on hearing sustained defendant’s motion and held upon the record then before it that plaintiff’s action was covered by the five year statute of limitations governing oral contracts, because it would be necessary to resort to parol évidence to show that plaintiff was a member of his union and therefore entitled to the benefits of the contract between defendant and the union. This ruling is correct. Novosk v. Reznick, 323 Ill. App. 544, 549-551.

The judgment is reversed and the cause remanded.

Reversed and remanded.

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


text:
    Michael Mical, Also Known as Mike Mical, Appellee, v. International Workers Order, Inc., Defendant. Emily Obartuch, Executrix of Estate of Adam Sambor, Deceased, Appellant.
    Gen. No. 43,364.

      Heard in the first division of this court for the first district at the April term, 1945.
    Opinion filed June 25, 1945.
    Released for publication July 19, 1945.
    Simon A. Zelden, of Chicago, for appellant.
    Thaddeus C. Toudor, of Chicago, for appellee.
   Mr. Justice Niemeyer

delivered the opinion of the court.

This is an appeal by the executrix of the estate of Adam Sambor, deceased, from an order directing payment to the plaintiff of $844.50, the benefits payable under a benefit certificate issued on the life of Sambor by the International Workers Order, Inc., a fraternal benefit society incorporated in the State of New York.

Sambor became a member of the Order August 22, 1935 and died August 12, 1939; in the benefit certificate secured by him, plaintiff, a cousin, was named as beneficiary; plaintiff brought suit against the Order; by leave of court it filed its answer and bill of interpleader, making additional parties defendant Julia Obartuch, sole beneficiary under the last will and testament of Sambor, and Emily Obartuch as executrix ; by order of court it deposited with the clerk $844.50 and was dismissed from the proceedings; upon hearing, the amount.due under the benefit certificate, less allowance to the Order, was directed to be paid to the plaintiff. Although the point is not made, we suggest that the allowance of solicitor’s fees was erroneous. Metropolitan Life Ins. Co. v. Kinsley, 269 Ill. 529.

The executrix contends that the plaintiff was not a legal beneficiary under the constitution and bylaws of the benefit society and that the money should be paid to her as executrix. This contention must be upheld. At the death of Sambor the constitution and by-laws of the Order (sec. 109) provided: “As beneficiary a member may designate the father, mother, brother, sister, children, legally adopted children, wife, . . . and, further, provided such designation is permitted by the law of the State in which the insured resides.” This provision governed payment under the benefit certificate. Columbian Circle v. Auslander, 302 Ill. 603; Ill. Rev. Stat. 1943, ch. 73, par. 898 [Jones Ill. Stats. Ann. 66.961]. The named beneficiary being ineligible, payment should be made to the executrix. Novotny v. Acacia Mut. Life Ins. Co., 287 Ill. App. 361; Smith v. Supreme Tent, Knights of Maccabees of the World, 127 Iowa 115; Clarke v. Schwarzenberg, 162 Mass. 98; Boyden v. Massachusetts Masonic Life Ass’n, 167 Mass. 242.

The judgment is reversed and the cause remanded with directions to enter judgment in favor of the executrix.

Reversed and remanded with directions.

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


text:
    Edward Piper, Administrator of Estate of Helen Piper, Deceased, Appellee, v. Dr. Elaine Epstein et al., Defendants. Dorothy Dye et al., Appellants.
    Gen. No. 43,377.

      Heard in the first division of this court for the first district at the April term, 1945.
    Opinion filed June 25, 1945.
    Released for publication July 19, 1945.
    Lord, Bissell & Kadyk, of Chicago, for appellants.
    Krohn & MacDonald and Irving N. Stenn, all of Chicago, for appellee; Stuart B. Krohn and Ian P. MacDonald, both of Chicago, of counsel.
   Mr. Justice Niemeyer

delivered the opinion of the court.

Plaintiff as administrator of the estate of his deceased wife, brought suit for her wrongful death re-suiting from infection caused by leaving a laparotomy sponge in her abdomen following an operation known as a Caesarean section, and recovered a judgment for $10,000 against the defendant hospital, a charitable institution, the operating surgeon and two nurses taking part in the operation. The operating surgeon settled with plaintiff by the payment of $4,500, and by stipulation the judgment as to her was vacated, her motion for new trial was granted and the cause dismissed as to her. The remaining defendants then moved for the vacation of the judgment entered on the verdict of the jury against all of the defendants, and for a new trial, or in the alternative and without abandoning the motion for a new trial that the judgment against the defendants be reduced $4,500. The court subsequently vacated and set aside the judgment for $10,000 entered on the verdict of the jury against all the defendants, and, the plaintiff remitting $4,500 from the amount of the verdict, judgment was entered against the hospital and the nurses for $5,680.55, being, according to plaintiff, the residue of the amount of the verdict and interest on the verdict from the date of its return to the entry of the judgment. Defendants appeal.

The principal contention of the hospital is that, being a charitable institution, the rule of respondeat superior does not apply to it, and therefore it is not liable for the negligence of its agents or servants. Plaintiff concedes that the hospital is a charitable in-' stitution and that under the law of Illinois it is exempt from liability for the negligence of its officers, agents and employees, but seeks to hold it liable because at tlfe time of the negligence charged there was in force and effect a policy of insurance issued by a solvent insurer insuring the hospital ‘ against loss from the liability imposed by law upon the assured for damages . . . respecting bodily injuries or death at any time resulting therefrom ... by reason of (a) all operations and work undertaken by the assured.” In addition the insurer was obligated “to investigate all accidents covered by this policy, and to defend in the name and on behalf of the Assured any claim or suit covered by this policy and brought against the Assured, whether groundless or not, for damages suffered or alleged to have been suffered on account of such bodily injuries or death.”

By the greater weight of authority, charitable organizations are exempt from liability for negligence of their officers, agents and employees. Various reasons are assigned for this exemption. Geiger v. Simpson M. E. Church of Minneapolis, 174 Minn. 389, 393. In Illinois it is based on the trust-fund doctrine. As said in Parks v. Northwestern University, 218 Ill. 381, 384, “. . . the exemption accorded to char! table institutions does not rest alone on the doctrine that the State or the sovereign is not liable for the acts of its servants. The doctrine of respondeat superior does not extend to charitable institutions for the reasons, ‘first, that if this liability were admitted the trust fund might be wholly destroyed and diverted from the purpose for which it was given, thus thwarting the donor’s intent, as the result of negligence for which he was in nowise responsible; second, that since the trustees cannot divert the funds by their direct act from the purposes for which they were donated, such funds cannot be indirectly diverted by the tortious or negligent acts of the managers of the funds or their agents or employees.’ (5 Am. & Eng. Ency. of Law,-2d ed.-923.) These reasons for exemption apply as well to private as to public charitable corporations.” In a few states recognizing the trust-fund doctrine charitable institutions have been held liable for negligence, but satisfaction of a judgment against it has been limited to property, if any, not directly connected with the charitable purposes of the organization or a part of the trust fund, Gamble v. Vanderbilt University, 138 Tenn. 616; St. Mary’s Academy v. Solomon, 77 Colo. 463; Fordyce v. Woman’s Christian Nat. Library Ass’n, 79 Ark. 550. The weight of authority supports defendant hospital’s contention that the fact that the charitable institution carries indemnity insurance indemnifying it from liability, does not create liability in instances where such charitable institutions are immune from liability. 10 Am. Jur., Charities, §152; Williams’ Administratrix v. Church Home for Females and Infirmary for Sick, 223 Ky. 355; McKay v. Morgan Memorial Co-op. Industries and Stores, Inc., 272 Mass. 121; Enman v. Trustees of Boston University, 270 Mass. 299; Herndon v. Massey, 217 N. C. 610; Susmann v. Y. M. C. A. of Seattle, 101 Wash. 487; Mississippi Baptist Hospital v. Moore, 156 Miss. 676; and the more recent cases of Schau v. Morgan, 241 Wis. 334, and Stedem v. Jewish Memorial Hospital Ass’n of Kansas City, 187 S. W. (2d) 469, decided by the Kansas City Court of Appeals of Missouri on April 30, 1945.

The only case in which a reviewing court of Illinois has considered the effect of liability insurance carried by a charitable institution upon its liability for negligence of its officers and agents is Myers v. Y. M. C. A. of Quincy, Ill., 316 Ill. App. 177. There the trial court struck the second count of the complaint alleging that the defendant carried public liability insurance to protect it from any loss which might occur or any liability which might accrue through the negligence charged in the complaint. This action was sustained on the ground that it was the well-settled doctrine of the courts of review of this State that it is improper to inform the jury either directly or indirectly that the defendant is insured against liability on a judgment that may be entered against him in the trial of a case. The same conclusion, based upon a similar reasoning, was reached in Greatrex v. Evangelical Deaconess Hospital, 261 Mich. 327. The cases relied upon in the Myers case (Kavanaygh v. Parret, 379 Ill. 273; Smithers v. Henriquez, 368 Ill. 588; Mithen v. Jeffery, 259 Ill. 372) are cases in which the fact that defendant was insured was brought to the notice of the jury in examination of jurors or by an inadvertent reference by counsel or witness to the matter of the defendant carrying indemnity insurance. In none of the cases was the question of insurance an issue affecting the right of plaintiff to recover or the liability of the defendant. It was an irrelevant matter prejudicing the defendant. If carrying insurance by a charitable institution creates a liability not otherwise existing, the fact that such insurance was carried and the nature and terms of the policy become material issues, and evidence relating thereto, although prejudicial to the defendant, is competent. People v. Durkin, 330 Ill. 394, 404. More substantial reasons for denying liability of a charitable institution carrying indemnity insurance are given in the cases cited above. In the Williams’ case (223 Ky. 355) the court answered the argument of plaintiff that procurement of indemnity insurance by a charitable institution is sufficient of itself to make the institution liable, on the ground that no diversion of trust funds would result, by quoting from Levy v. Superior Court, 74 Cal. App. 171, 239 Pac. 1100, as follows: “If a liability may be created or an exemption waived by the acts of the trustee of a charity in- procuring and accepting the promise of a third person to make good the losses following such liability or waiver, and the trustee thus allowed to accomplish indirectly that which is not permitted to be done directly, the protection afforded by the rule stated (exemption from liability based on the trust-fund doctrine) would be destroyed. No authorities holding in accordance with the argument of counsel in this behalf have been called to our attention; and it is our opinion that the theory that a charity, not otherwise subject to liability, may become liable by reason of the procurement by those administering it of indemnity insurance cannot be supported in principle.” In the latest case brought to our attention, Stedem v. Jewish Memorial Hospital Ass’n of Kansas City, supra, the court had under consideration a policy similar to the one before us. It said: “It thus appears, by the terms of the policy, that the insurance company agreed to pay any loss of the insured (the defendant) to the extent of the latter’s liability, only. In other words, the insurance covered the liability of the defendant whatever that might become and not some other or greater liability. To hold that defendant’s liability was increased by the mere existence of the insurance policy would, in effect, be writing a different contract of insurance than that entered into between the parties.” The court also held that, notwithstanding the nonliability of the defendant, “It may have been also good business judgment on the part of the defendant to have taken out insurance against loss by reason of liability, alone, for although it seems to be the well settled policy in this state to hold charitable institutions exempt from liability in cases of this kind, suits are constantly being brought against such institutions in an effort to have the courts modify or whittle away the rules of immunity. ’ ’

Plaintiff relies upon decisions of the courts of Colorado, Tennessee and Louisiana. As shown above, Colorado and Tennessee permit judgments against charitable institutions for the torts of their agents, but prohibit the levying of an execution under such judgment on any property which is a part of the charitable trust. In O’Connor v. Boulder Colorado Sanitarium Ass’n, 105 Colo. 259, cited by plaintiff, the court noted that plaintiff affirmatively alleged “That a judgment against the said defendant will not affect or deplete the charitable trust funds of said defendant in any respect, and that no property impressed with a charitable trust will be levied upon for the satisfaction of said judgment herein, and the Court’s decree herein may and will fully safeguard any charitable trust fund, and plaintiff consents thereto,” and then held: “It would seem, therefore, that no depletion of the trust fund of a charitable institution is here sought. Under the circumstances, and in harmony with our previous pronouncements, it would be just and reasonable to hold that defendant herein is subject to this qualified liability. Counsel for defendant cite cases to the effect that the procurement of indemnity or liability insurance does not impose liability for torts where insured would not otherwise be liable. 14 C. J. S. 550. These cases are primarily from jurisdictions where, unlike Colorado, liability of charitable institutions for torts, under the circumstances, is in any event precluded. In view of the qualified liability rule adopted in this state, we feel we are not at liberty to follow these authorities, even if we should see any just reason for doing so, which we do not.” Cases relied upon by plaintiff as indicating the Tennessee rule are McLeod v. St. Thomas Hospital,, 170 Tenn. 423, decided by the Supreme Court of the State in July 1936, and Vanderbilt University v. Henderson, 127 S. W. (2d) 284, decided by the court of appeals in July 1938 and certiorari denied by the Supreme Court. In the McLeod case it was expressly held that the carrying of liability insurance by the defendant gave no additional right to the plaintiff, the court saying (426-427): “The policy is in the record. It is an ordinary liability policy, on which no right of action exists in the plaintiff, and no liability attaches to the insurance company, except on claims for damages imposed by law upon the defendant, for an accident resulting in injury or death, within the amount of liability fixed in the policy, and subject to its conditions. The insurer’s liability is ‘for all claims for damages imposed by law’ upon defendant for injury to or death of persons within or upon defendant’s premises, etc. It is such policy as has been construed in Gray v. Houck, 167 Tenn. 233, 68 S. W. (2d) 117, and Associated Ind. Corp. v. McAlexander, 168 Tenn; 424, 79 S. W. (2d) 556, to be an obligation upon the part of the insurer to pay such obligation as the law may impose upon the insured, under the terms of the policy. We think the fact that the defendant obtained and carried this liability insurance gives the plaintiff no additional right, and imposes no other obligation upon the defendant.” In considering the liability of a charitable institution for the negligence of its agents the court referred to cases previously determined by it and said (429-430): “Upon consideration of the cases dealing with the question, and reflecting upon the true principle involved, we think it fairly may be said that the exemption and protection afforded to a charitable institution is not immunity from suit, not nonliability for a tort, but that the protection actually given is to the trust funds themselves. It is a recognition that such funds cannot be seized upon by execution, nor appropriated to the satisfaction of a tort liability. And certainly it is no defense to a tort action, that the defendant has no property subject to execution.” By this decision the charitable institution is liable, as in Colorado, for its torts and subject to suit therefor, but its trust funds cannot be seized by execution nor appropriated to the satisfaction of the tort liability. Accordingly the court held that the demurrer to plaintiff’s replication setting up the indemnity policy should have been overruled and the case tried upon the merits. In the later case of Vanderbilt University v. Henderson, the court of appeals followed the McLeod case in holding that the rule of nonliability of a charitable institution is not changed by reason of the fact that it carries liability insurance to protect it against liability which the law imposes upon it, and said: “That the exemption of immunity afforded a charitable institution in this State goes no further than the protection of its trust funds from being taken to satisfy its liability for a tort of its agents or servants, we think, is established by the recent case of McLeod v. St. Thomas Hospital, 170 Tenn. 423, 95 S. W. 2d 917, 919. . . . (p. 287) This we think is a recognition that a charitable institution is liable for a tort of its agent and may be pursued to judgment; but that the institution’s trust property cannot be taken to satisfy such judgment; and that where such institution has liability insurance, such insurance is not trust property of the institution and may be appropriated to the satisfaction of such judgment.” The Louisiana cases (Rome v. London & Lancashire Indemnity Co. of America, 169 So. 132, and Messina v. Societe Francaise De Bienfaissance, et D’Assistance Mutuelle de la Nouvelle Orleans, 170 So. 801), decided by courts of appeal, cited by plaintiff, have no application because they are based upon statutes giving a right of action to the insured party against the insurance company and' denying to it defenses purely personal to the insured not growing out of or connected with the accident or the policy, and the holding of the court that the defense of immunity from liability is a defense purely personal to the charitable institution.

Illinois has not adopted the rule of qualified liability of a charitable institution, which prevails in Colorado and Tennessee. The holding in Parks v. Northwestern University, supra, has been followed in an unbroken line of decisions. The exemption from liability is absolute. The rule of respondeat superior is not applicable to charitable institutions,'and there is no basis for a judgment against them. The policy here involved insures the defendant hospital only against liability imposed by law. It was procured to protect the hospital, not to enlarge its liability. Reason for procuring the insurance is found in the provisions requiring the insurer to investigate and defend all claims and actions for damages, whether groundless or not, based on negligence of the officers and agents of the hospital. To hold the hospital liable because it carried this protection is to create a new liability and a new contract between the insurer and the insured. The Tennessee cases cited by plaintiff are in harmony with the greater weight of authority that procurement by a charitable institution of insurance to protect it against liability which the law imposes upon it does not impose liability for torts where the insured would not be liable in the absence of insurance. Only the Colorado cases are cited to the contrary. We follow the majority rule and hold that the defendant hospital, as a charitable institution, is not liable.

On behalf of the nurses, Dorothy Dye and Beulah Cox, it is contended that the action against them was not instituted within one year after the death of plaintiff’s intestate, and that there is no evidence showing negligence on the part of either nurse. Plaintiff’s intestate died March 22, 1942; action for her wrongful death was commenced October 16, 1942 by filing a complaint in which the hospital and two surgeons later dismissed from the proceedings were made defendants; on March 19, 1943 a summons was issued against the defendants Dye and Cox; this summons bears the notation, “Pursuant to order of court entered on 3/15/42,” but the order does not appear in the record before us; personal service was had upon each of the additional defendants March 22,1943; the amended complaint, purporting to be filed by leave of court and in which for the first time the defendants Dye and Cox were named and charges of negligence made against them, was filed on March 24, 1943. We assume that an order was entered in apt time authorizing the issuance of the summons March 19, 1943 and permitting the filing of the amended complaint. The summons was served on defendants Dye and Cox on the last day permitted by the statute for the institution of suit (Ill. Rev, Stat. 1943, ch. 70, par. 2 [Jones Ill. Stats. Ann. 38.02]); the amended complaint was filed two days after the expiration of the time for bringing the action. Section 5 of the Civil Practice Act (Ill. Rev. Stat. 1943, ch. 110, par. 129 [Jones Ill. Stats. Ann. 104.005]) provides: “Every civil action, unless otherwise expressly provided by statute shall be commenced by the filing of a complaint.” Section 25 [Ill. Rev. Stat. 1943, ch. 110, par. 149; Jones Ill. Stats. Ann. 104.025], relating to bringing in new parties, provides: “ A new party shall be brought in by the service of a summons, which shall be drawn in the usual form with the addition of the statement, preceding the teste thereof, that this summons is issued pursuant to an order of the said court made on a date named.” The question presented is whether the service of the summons on defendants Dye and Cox, without the filing of the amended complaint, constituted commencement of the action for the wrongful death of plaintiff’s intestate within the provisions of the present practice Act. Apparently the question is presented for the first time.

The Civil Practice Act expressly declares when an action is commenced against the original defendants. We find no statutory provision declaring when an action is commenced against new parties, except the provision of section 25 providing that “A new parvy shall be brought in by the service of a summons.” In Vincent v. McElvain, 304 Ill. 160, 163, the court said: “It is well established by repeated decisions of thm and other courts that a suit or action is commenced when a party puts in motion, under his claim, the instruments of the court. Where the court is one of general jurisdiction it acquires jurisdiction of the plaintiff and the plaintiff’s cause when he applies for its power and assistance to compel the defendant to render him his rights under the law. We know of no authority which holds that a suit is not commenced until the court gets jurisdiction of the defendant.’’ The instruments of the court were set in motion and the defendants Dye and Cox were brought into the action and jurisdiction of them acquired by service of summons within the statutory period for commencement of the action. The amended complaint, based on the same transaction or occurrence declared on in the original complaint, related back to the commencement of the action against the original defendants. Metropolitan Trust Co. v. Bowman Dairy Co., 369 Ill. 222. The action was commenced against Dye and Cox within apt time.

There are no contradictions in the evidence relating to the handling of the sponges at the operation. Plain gauze sponges, not involved here, and laparotomy sponges were used; the laparotomy sponges came in packages of five each, fastened together by a string; as these packages were broken the student nurse, Miss Dye, counted the number of sponges and found five in each package; the strings were hung on a rack to indicate the number of packages broken; each laparotomy sponge used at the operation was handed to the surgeon by Miss Dye; the surgeon was the only person who inserted the sponges in the incision and removed them during the course of the operation; the used sponges were dropped into a basin; the supervising nurse, Miss Cox, then hung each used sponge on a rack on the wall having bars with hooks for ten sponges on each; on completion of the operation Miss Cox, who was charged with the counting of the sponges, counted the unused sponges, the strings — indicating the number of packages that had been broken, and the used sponges on the rack, and then informed the operating surgeon that the sponge count was correct; the incision was closed, leaving in the abdomen of the patient a laparotomy sponge with a string and metal ring attached to it. Miss Dye had nothing to do with the used sponges hung on the rack and did not count them. She had only to do with the unused sponges left on the table. She was not asked by the operating surgeon about the sponge count and made no statement as to the count. The error in the count was made by the supervising nurse. There is no evidence of negligence on the part of the defendant Dye. The court should have directed a verdict finding her not guilty or entered judgment for her notwithstanding' the verdict. There is ample evidence to support the verdict against the defendant Cox.

There is no merit in defendants’ contention that the trial court erred in not vacating as to all defendants the judgment for $10,000 entered on the verdict of the jury against all defendants when vacating this judgment as to the operating surgeon, granting her a- new trial and dismissing her out of the proceeding. The disposition of the case as to the operating surgeon occurred November 10, 1944; on November 22 the remaining defendants filed their motion to vacate the judgment entered on the verdict of the jury against them and the operating surgeon and for a new trial, or in the alternative and without abandoning the motion for a new trial that the amount of the judgment theretofore entered against the defendants be reduced $4,500; on December 26 the judgment theretofore entered for $10,000 was vacated and set aside as to all defendants and, plaintiff having entered a remittitur of $4,500, judgment was entered against the hospital and the two nurses for $5,680.55, which, plaintiff contends without contradiction by defendants, was made up of the principal amount of $5,500, the damages found by the jury less the remittitur and interest from the date of the verdict to the entry of the judgment. It therefore appears that the action of the court was based in part on defendants’ motion. It also conformed to the rule announced by the Supreme Court in Fredrick v. Wolf, 383 Ill. 638, and Brown v. Zaubawky, 388 Ill. 351. The court did not err in adding to the verdict of the jury interest between the time when the verdict was rendered and judgment entered. Ill. Rev. Stat. 1943, ch. 74, par. 3 [Jones Ill. Stats. Ann. 67.03]. Reitz v. Yellow Cab Co., 248 Ill. App. 287.

The. judgment is reversed as to the hospital and Dye. It is affirmed as to the defendant Cox.

Reversed as to defendants Hospital and Dye; affirmed as to defendant Cox.

O’Connor, J., concurs.

Matchett, P. J., takes no part in this decision.


author: Mr. Justice O’Connor

text:
    Julius Roth, Appellant, v. William Kaptowsky and Fannie Kaptowsky. Fannie Kaptowsky and New York Life Insurance Company, Appellees.
    Gen. No. 43,347.

      Heard in the first division of this court for the first district at the February term, 1945.
    Opinion filed June 25, 1945.
    Rehearing denied July 19, 1945.
    Released for publication July 19, 1945.
    Harry A. Kahn and Ode L. Rankin, both of Chicago, for appellant.
    Seymour M. Lewis and Edwabd A. Gorenstein, both of Chicago for certain appellee; Seymour M. Lewis, Edward A. Gorenstein, Julius M. Lorenz, and Franklin J. Stransky, all of Chicago, of counsel.
    Scott, MacLeish & Falk, of Chicago, for certain other appellee; James F. Flanagan and Wendell J. Brown, both of Chicago, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.

By this appeal plaintiff seeks to reverse a judgment of the Municipal court of Chicago discharging the New York Life Insurance Company as garnishee.

April 14,1938, Julius Both brought an action against William Kaptowsky and Fannie Kaptowsky, based on a promissory note executed by them January 16, 1928, for $4,000 with interest thereon. Defendants in their answer admitted they owed $1,040 but contested the balance on the ground that the note was usurious. November 16, 1939, judgment was entered’ for $1,040, the amount admitted to be due, and the cause was continued as to the balance of plaintiff’s claim. November 14, 1941, by agreement, judgment was entered for $2,500. June 6, 1944, an execution was issued on the $2,500 judgment and on the same day the bailiff’s return shows defendants were not found. On the same day plaintiff filed a statement of claim in the original action in the Municipal court based on the $2,500 judgment and afterward brought a similar proceeding based on the other judgment. The actions were consolidated. In both cases the New York Life Insurance Company was named as garnishee. The garnishee answered that it had issued 4 policies of insurance to William Kaptowsky in which Fannie, his wife, was named as beneficiary; that William died May 11, 1944, and there was a certain amount due on each of the 4 policies aggregating $6,644.41. August 21, 1944, by leave of court, Fannie filed an intervening petition in which she claimed the moneys due under the policies and. contended that they were not subject to garnishment. October 5, 1944, the case was heard on the pleadings and a stipulation of the parties as to certain facts; the court found in favor of Fannie, discharged the garnishee and plaintiff appeals.

The record discloses that August 24, 1923, and March 22, 1927, the New York Life Insurance Company issued two policies on the life of William Kaptowsky and afterward two additional policies on April 25, 1930, in which his wife, Fannie, was named beneficiary. The insurance company in its answer admitted its liability under the 4 policies was $6,644.41, specifying the amount due under each policy. There was a provision in the first policy which provided an optional method of settlement with the beneficiary, viz., “The proceeds may be left with the Company subject to withdrawal in whole or in part at any time on demand in sums not less than one hundred dollars. The Company will credit interest annually .on the proceeds so left with it at such rate as it may each year declare on such funds and guarantees that the rate of interest shall never be less than three per cent.”

In the second, third and fourth policies it was provided :

“ Optional Methods op Settlement.
‘ ‘ The Insured, or in case the Insured shall not have done so, the beneficiary after the Insured’s death, may, by written notice to the Company at its Home Office, make the proceeds of this Policy, in whole or in part, payable under one of the following options. Any such election or change in election shall not take effect until indorsed on the Policy by the Company at its Home Office. ...
“Option 1. — The proceeds in whole or in part may be left with the Company subject to withdrawal at any time on demand in sums of not less than one hundred dollars. ...
“Option 5. — The proceeds in whole or in part may be left with the Company at interest and paid in equal annual, semi-annual, quarterly or monthly instalments of such amount as may be agreed upon until the entire proceeds left with the Company, including interest thereon as provided in Option 1 have been paid, provided that the fixed amount payable each year shall be not less than five per cent of the original proceeds left with the Company. . . .
“When the proceeds of the Policy become payable the Company will deliver to each payee a certificate evidencing the rights and benefits of such payee under the option selected.”

The second policy provided that ‘‘ The Insured may direct in writing that the benefits under the above options shall not be transferable nor subject to commutation or incumbrance, during the lifetime of the payee.” And in the third and fourth policies it was provided that “Unless otherwise directed in writing by the Insured, the benefits under the above options shall not be transferable nor subject to commutation or incumbrance during the lifetime of the payee.”

May 23, 1944, Fannie executed proofs of death and a statement, on a blank furnished by the company, and delivered them to the insurance company at its office in Chicago, and selected “Option 5 — One hundred dollars per month until money is exhausted. ’ ’ On the hearing it was stipulated: ‘ ‘ That the form thereof was furnished by the insurance company garnishee and in that statement Fannie Kaptowsky exercised her right of election to receive the proceeds of said policies at the rate of one hundred dollars per month until such proceeds should become exhausted.”

Near the close of the hearing the garnishee insurance company, over objections of plaintiff, was allowed to strike from its answer the paragraph in which it admitted the amount due on each of the policies. But there remained in the garnishee’s answer an allegation that at the time of the service of summons and at. the time of the filing of its answer it was indebted to Fannie for $6,644.41, “subject to (1) the terms of said policies in respect to methods of settlement for death proceeds, (2) the surrender of said policies for cancellation, and (3) the final determination of the rights of the parties by a court of competent jurisdiction of the parties and the subject-matter.”

A great deal is said in the briefs that the election was not effective for the reason that at the time Fannie filed the written election she orally asked if she might also have in any one year an additional $100 or $500, and that the company refused to accept her election; that it was not endorsed on the policies, and was therefore not effective. The optional- methods of settlement set forth in the policies provided that after the insured’s death the -beneficiary may, by written notice to the company, make the proceeds “payable” under one of the following options. And option 5, under which Fannie sought to make her election, provided that the proceeds in whole or in part might be made payable in equal annual, semi-annual, quarterly or monthly installments, “as may be agreed upon,” until the entire proceeds were paid. There was no agreement by the company and therefore the election was not binding. But counsel for Fannie contend that in, the last two policies issued it was provided that, “Unless otherwise directed in writing by the Insured, the benefits under the above options shall not be transferable nor subject to commutation or incumbrance during the lifetime of the payee,” and therefore the- amounts due under these two policies could not be reached by garnishment because of this provision. In support of this counsel cite Holowaty v. Prudential Ins. Co., 282 Ill. App. 584, which they say “is very analogous to the case at bar and we believe decisive of the issues.” We think this contention cannot be sustained. The policy involved in that case provided for monthly installments of $100 each. We there said: “By the terms of the policy the proceeds were payable to Mrs. Holowaty in 60 monthly installments of $100.00 each. . . . And further, that “The policy provided that the company should not commute any of the installments payable thereunder after the death of the insured without the previous written consent of the insured. The insured did not give this consent.” We there held that garnishment would not lie. In the case at bar the policies provided that upon receipt of proof of death of the insured' the company would pay the amount due under the policies to the beneficiary.

But counsel for Fannie further contend that the proceeds of the policies are exempt under the provisions of Par. 850, § 238, ch. 73, Ill. Rev. Stat. 1943 [Jones Ill. Stats. Ann. 66.913], That section is a part of the Insurance Code which became effective in 1937. The material part of that section provides that': “All proceeds payable because of the death of the insured . . . payable to a wife . . . whether the power to change the beneficiary is reserved to the insured or not, . . . shall be exempt from execution, attachment, garnishment or other process, for the debts or liabilities of the insured incurred subsequent to the effective date of this Code.” And counsel say that ‘ ‘ The judgments on which the garnishment is predicated were the debt or liability of the insured incurred subsequent to the effective date of the Code. ’ ’ That the judgments were entered November 16, 1939 and November 14,1941 and the Insurance Code became effective in 1937. And it is argued that since the defendant in the two suits interposed the defense that the note which was the basis of the suit on which the judgments were entered' was usurious, there Vas no debt until the judgments were entered, and in support of this cite Grimmer v. Brown, 146 F. (2d) 806. In that case suit was brought by the owner of one-half of a bond against the maker, Grimmer, in the New York Supreme court. ‘' Grimmer interposed an answer alleging that the bond was usurious and void and praying that it be declared void, that the complaint be dismissed and the bond be surrendered for cancellation.” . And it was held that afterward the parties settled their controversy as to the amount that should be paid and that the debt was not a liability until the date of the settlement.

The provisions of the New York statute, where the defense of usury is interposed, is not mentioned, but apparently it was contended that because the bond was usurious it was void. Such is not the law in this state. Where the defense of usury is successfully interposed in Illinois, the penalty is that the plaintiff shall forfeit all of the interest so contracted for. Par. 6, § 6, ch. 74, Ill. Rev. Stat. 1943 [Jones Ill.Stats. Ann. 67.06]. Moreover, par. 850 of ch. 73, above quoted from, provides for exemption in the case mentioned for “liabilities of the insured,” while in the instant case the liabilities are not only of the insured but also of the beneficiary — the note was signed by both of them.

Holding as we do that the proceeds of the policies were due and payable upon the proof of the death of the insured, and that the election of the manner of payment sought to be made by Fannie, the beneficiary, not having been agreed to as the policy required, it was ineffective and the proceeds are subject to garnishment.

The judgment of the Municipal court of 'Chicago is reversed and the cause remanded for further proceedings in accordance with the views herein expressed.

Reversed and remanded with directions.

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


text:
    Columbia Hardwood Lumber Company, Appellee, v. E. Kopriwa Company and Albert E. Lake. Albert E. Lake, Appellant.
    Gen. No. 43,368.
    Heard in the first division of this court for the first district at the April term, 1945.
    Opinion filed June 25, 1945.
    Released for publication July 19, 1945.
    Albert E. Lake, pro se.

    Nolan H. Tepper, of Chicago, for appellee.
   Mr. Justice O’Connor

delivered the opinion of the court.

July 27, 1944, plaintiff brought a civil action to revive a judgment entered in its favor on January 26, 1932, against the defendants for $300.39 and costs. In the statement of claim filed in the original suit plaintiff alleged that its claim was for a balance due on a promissory note executed by the defendant, E. Kopriwa Company, a corporation, and guaranteed by the defendant Albert E. Lake. In the instant case, upon filing the statement of claim, summons issued .against the two defendants and the return of the bailiff shows that he served Lake. And counsel for Lake says that the bailiff was directed to serve Lake only. Lake filed his appearance and his answer in which, among other things, he averred “That no revival is sought as to the E. Kopriwa Company, a Corporation.” His answer and his second answer filed by .leave of court, were stricken and it was ordered that the judgment of January 26, 1932 be revived against the defendant Lake for $292.44, part of the judgment having in the meantime been paid. Lake appeals.

Counsel for Lake contends that a joint judgment cannot be revived as to one of two defendants; Where it is sought to revive a joint judgment against one of several defendants, the judgment cannot be revived as to one unless one of the defendants interposes a personal defense such as his discharge in bankruptcy, or the like. Martinez v. Cogan, 320 Ill. App. 468.

On the other side counsel for plaintiff contends that “The common law rule that a joint judgment may not be revived as to one of the defendants has been changed by statute, and in any event, will not apply where the other defendant is a dissolved corporation.” And § 50 [Par. 174] of the Civil Practice Act, ch. 110, Ill. Rev. Stat. 1943 [Jones Ill. Stats. Ann. 104.050] is cited. We think § 50 is in no way applicable to the facts in the case before us. Counsel further says in discussing an authority cited by defondant, which was an action to revive a judgment as to one of the defendants: “That case held that a judgment may not he revived against a surviving judgment debtor without joining the personal representative or the heirs of the deceased codefendant. That case did not involve a dissolved corporation, and cannot be construed to be authority for the proposition, which in effect the defendant is here contending for, that a revival may not be obtained against him without seeking a revival against a corporation which, as a matter of public record, has been dissolved some twelve years ago. If it be a fact that appellee is precluded from relying on that public record, because not a part of the original record on appeal, it is submitted that a grave doubt exists as to the defendant’s good faith in raising that point; he was the treasurer of the dissolved corporation and, it is reasonable to assume, knew of the dissolution of the corporation.” The difficulty with this argument is that there is nothing in the record before us that shows the defendant, E. Kopriwa, a corporation has been dissolved.

Lake in his answer averred that plaintiff did not seek to revive the judgment against the E. Kopriwa Company, a corporation. No answer was made by plaintiff to this, which might have been easily done if the corporation had been dissolved, but on the contrary, plaintiff moved to strike the answer. In this state of the record the order of the court striking the defendant’s answer and reviving the judgment against Lake was erroneous.

The judgment of the Municipal court of Chicago is reversed and the cause remanded.

Reversed and remanded.

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


author: Mr. Justice O’Connor Matchett, P. J.,

text:
    William Bart, Appellee, v. Pine Grove, Inc. et.al., Appellants.
    Gen. No. 43,381.
    Heard in the first division of this court for the first district at the April term, 1945.
    Opinion filed June 25, 1945.
    Released for publication July 19, 1945.
    Milliken & Vollers, of Chicago, for appellants; Seago, Bradley & Vetter, of Chicago, of counsel.
    William Henning Rubin, of Chicago, for appellee.
   Mr. Justice O’Connor

delivered the opinion of the court.

October 19, 1944, William Bart filed his petition praying that a writ of mandamus issue against the Pine Grove, Inc. corporation and its officers commanding them to permit him to examine the books and records showing the names of the shareholders, etc., of the corporation. .Defendants’ motion to strike the complaint on the ground that the petition failed to show that plaintiff had complied with the provisions of § 45 of the Business Corporation Act, ch. 32, par. 157.45, Ill. Rev. Stat. 1943 [Jones Ill. Stats. Ann. 32.045], was denied and defendants ruled to answer. Defendants filed their answer, the case was heard before the court without a jury and January 12, 1945, an order was entered awarding the writ as prayed for. Defendants appeal.

Plaintiff in his petition alleged that he was the owner of 126 shares of stock of the defendant Pine drove, Inc., an Illinois corporation; that on the 17th and again on the 18th of October, 1944, he served notice on the proper officials of defendant corporation that he desired to examine the books and records of the company, including the list of stockholders and that his request was refused. And in paragraph 5 it was alleged that the officers of the corporation owned and controlled 2700 shares of stock of the company and were attempting to make a sale “of their purported holdings which would grant to the purchaser virtual control of the corporation, and place your petitioner and other stockholders in a precarious position and at their mercy because they will have in their possession in excess of one-third of the outstanding shares of this corporation, and will thereby be in a position to elect members of the Board of Directors and prevent a sale of the property for as long a time as they would choose.” He further alleged that by virtue of section 45 of the Business Corporation Act, the individual defendants had become liable to him in a penalty of 10% of the value of the stock held by him in the corporation “in addition to damages sustained by him by reason of liability incurred for attorney’s fees and the expense in retaining and sending to the offices of the defendant corporation a Certified Public Accountant.”

Defendants, after their motion to strike the complaint was denied, in accordance with the order of court, filed their answer denying that either the officers or the directors or anyone in their behalf owned or controlled 2700 shares of stock or that anyone directly or indirectly was offering or attempting to offe.r for sale the 2700 shares of stock, but on the contrary averred that the only sales were made through the customary channels of brokerage houses and averred that none of the defendants had been approached directly or indirectly by any shareholder or broker or agent for the purpose of selling or offering for sale any such number of shares. The answer further avers that plaintiff acquired his 126 shares on the following dates: July 18, 1944, — 16 shares; September 20 — 35 shares; October 4 — 20 shares; October 13 — 30 shares; and October 13 — 25 shares. It was further averred in the answer that plaintiff had failed to comply with the requirements of section 45, of the Business Corporation Act as interpreted in Morris v. Broadview, Inc., 385 Ill. 228. That defendants offered and were willing to exhibit to plaintiff all of the records except the list of shareholders but that he refused such offer. It is further averred in the answer that the only property of the corporation was a six-story apartment building located on Pine Grove avenue, Chicago.

The record discloses that the building corporation resulted from a proceeding in the Federal court under 77B of the Bankruptcy Act and stock in the corporation was given in exchange for bonds secured by a mortgage on the property and that there were 7909 shares of stock of the defendant corporation.

At the opening of the trial a statement was made by counsel for each side and in response to a question put up by the court to counsel for defendants (as to why plaintiff was not entitled to examine the list of stockholders) counsel replied, because plaintiff had failed to show that he wanted to examine the list of stockholders for a proper purpose, as required by § 45 of the Business Corporation Act, which he was required to do in accordance with the opinion in Morris v. Broadview, Inc., 385 Ill. 228. That defendants in their answer had challenged the good faith of plaintiff in bringing the action. At the conclusion of the statements and interrogation of counsel by the court, counsel for plaintiff said: “. . . we have no evidence other than the rumors that are circulated on LaSalle Street” that the officers and directors desire to sell the 2700 shares of stock. Thereupon counsel for defendants called John J. Bickel, Jr., vice president of defendant corporation, who testified that so far as he was advised, there was no bona fide offer to purchase any of the stock except through the regular channels. This was the only witness in the case and the court awarded the writ.

Our Supreme court in Morris v. Broadview, Inc., 385 Ill. 228, construed § 45 of the Business Corporation Act and held that in an action for a writ of mandamus, to authorize a stockholder to examine the records and list of stockholders, he must allege and prove that the examination was for a “proper purpose.” In the instant case there was no such allegation and no proof offered. Nor is there any allegation in the petition nor proof of any wrongdoing by any of the defendants, the only allegation is that the officers owned and controlled 2700 shares of stock and were attempting to make a sale of it, which would give to the purchaser virtual control of the corporation and place plaintiff in a precarious position at “their mercy because they will have in their possession in excess of one-third of the outstanding shares of this corporation” etc. This is denied by defendants’ answer and by the uncontradicted testimony of Mr. Bickel, Jr. Obviously a stockholder has a right to sell his stock or to buy the stock of a corporation without let or hindrance, unless there is some charge that in doing so he would be violating some obligation to the plaintiff or to someone else. The order appealed from cannot stand.

But counsel for plaintiff in his brief says that if this court feels that the trial court “did not consider enough evidence in the matter before reaching its decision, then the case should be remanded with instructions that further evidence be heard.” We think this ought not be done because, as stated by the Supreme court of the United States in Stoll v. Gottlieb, 305 U. S. 165: “It is just as important that there should be a place to end as that there should be a place to begin litigation.”

The order of the Circuit court of Cook county appealed from is reversed.

Order reversed.

Niemeyer, J., concurs.

Matchett, P. J.,

specially concurring. I concur in this result although I think the statute should be liberally construed in favor of the stockholder.'


author: Mr. Presiding Justice Burke

text:
    Crown Building Corporation, Appellee, v. Monroe Amusement Corporation, Appellant.
    Gen. No. 43,419.

      Heard in the third division of this court for the first district.
    Opinion filed June 29, 1945.
    Released for publication July 24, 1945.
    Isaac M. Mills, Sonnenschein, Berkson, Lautmann, Levinson & Morse, all of Chicago, for appellant; Isaac E. Ferguson and Morton Lane, both of Chicago, of counsel.

      Soelke & Keehn, of Chicago, for appellee.
   Mr. Presiding Justice Burke

delivered the opinion of the court.

On Monday, February 26, 1945 the Crown Building Corporation filed a verified complaint in chancery in the superior court of Cook county against Monroe Amusement Corporation, alleging that defendant leased the theatre at 59 West Monroe street, Chicago, for the term beginning September 1, 1940 and ending August 31, 1945; that plaintiff on December 1, 1944 purchased the fee of the real estate and became the assignee of the lessor; that plaintiff served a notice of cancellation on defendant, demanding possession of the premises March 5, 1945; that defendant received the notice of cancellation and informed plaintiff it would surrender possession of the premises on March 5, 1945; that defendant expressed willingness to sell to plaintiff a 50 horsepower compressor unit with cooling coils, which was used to cool the demised premises, and two projector machines; that defendant had asserted that if unable to sell this equipment to plaintiff, it would remove the same upon surrendering possession; that on February 21, 1945 defendant informed plaintiff that the compressor had been dismantled and was about to be removed; that the compressor unit became the property of the lessor under the terms of the lease, on the termination thereof, because it was an essential-part of the air cooling and ventilating system; that the projectors were essential to the operation of the theatre,; that by reason of the war it would be'practically impossible “except at an exorbitant price, ’ ’ to replace the compressor unit and projectors; that the compressor unit was installed pursuant to defendant’s obligation under the lease to expend $10,000 or more in alterations and improvements; and that on information and belief defendant had no substantial assets other than its leasehold, and that a money judgment against it would be uncollectible. Plaintiff prayed that defendant, its agents, employees and attorneys be enjoined from dismantling, disconnecting or removing any part of the 50 horsepower compressor unit, ventilating and air cooling system or the projectors, and from damaging them; that the defendant be required to deliver to plaintiff upon the expiration of the lease on March 5, 1945 the compressor unit and projectors; that if defendant “has already removed said compressor unit and projectors, or parts thereof,” it would be required to return the same to the premises, and for other relief. On Tuesday, February 27, 1945, the court, without requiring notice to defendant, entered an order directing the issuance of an injunction restraining the defendant and its agents from removing from the premises the compressor unit and projectors and from selling or disposing of them. The court required that plaintiff give bond in the sum of $5,000, which was done, and the injunction issued. On February 28, 1945 defendant’s attorneys served' notice on plaintiff’s attorneys that they would appear before the chancellor on March 2, 1945 and move to dissolve ‘' and vacate ’ ’ the injunction order. On March 2, 1945 a written motion “to dissolve and vacate” the injunction order was presented.' This motion adequately presented the points subsequently urged before the chancellor and argued in the briefs filed here. On March 2, 1945 the court overruled defendant’s motion and it perfected an appeal to this court.

Defendant maintains that the court erred in issuing the injunction without notice. Plaintiff insists that the issuance of the injunction without notice was' within the discretion of the court under the facts alleged in the complaint and in the supporting affidavit for the purpose of preserving the status quo until the case could be heard on the merits. The complaint states that on February 10, 1945 defendant’s attorney telephoned plaintiff’s attorney that his client intended to comply with the cancellation notice by turning over possession of the premises on or about March 5, 1945; that defendant intended before surrendering possession of the theatre to sell or otherwise dispose of the 50 horsepower compressor unit and the two projectors, but that defendant was willing to sell the compressor unit to plaintiff for $15,000 and the projectors for $1,100 each; and that the apparatus and machines mentioned were the property of defendant and did not on the termination of the lease become the property of the lessor. The complaint further alleges that on February 16, 1945 certain agents of plaintiffs were shown the compressor unit by Mr. Edward Trinz, general manager of the theatre, and were told by him that defendant was negotiating with certain parties not named for the sale of the unit, and that if it was not sold by March 5, 1945 it would be dismantled and removed from the premises; that on February 21, 1945 defendant’s attorney stated over the telephone to plaintiff’s attorney that the compressor had been dismantled and would be removed from the premises; that the projectors would also be removed from the premises, and also that the projectors would be replaced with certain other projectors previously discarded as obsolete.

Sec. 3, ch. 69, Ill. Rev. Stat. 1943 [Jones Ill. Stats. Ann. 109.351], reads:

“No court or judge shall grant an injunction without previous notice of the time and place of the application having been given to the defendants to be effected, thereby, or such of them as can conveniently be served, unless it appears, from the complaint or affidavit accompanying the same, that the rights of the plaintiff will be unduly prejudiced if the injunction is not issued immediately or without notice.”

Where a preliminary injunction is issued without notice, in a case where a notice should have been given, it is the duty of this court aside from any other question and without reference to the merits of the case as made by the averments of the complaint, to reverse the order denying the motion to dissolve the injunction upon that ground. Koelling v. Foster, 150 Ill. App. 130; Kessie v. Talcott, 305 Ill. App. 627. The apparent purpose of requiring a notice is to give defendant an opportunity to show that the injunction should not issue. In Brin v. Craig, 135 Ill. App. 301, this court said (306):

‘' This court has spoken many times in no uncertain voice in condemnation of the practice of granting an injunction without notice unless it is made clearly and indisputably to appear from facts recited and verified, that the rights of a complainant will be unduly prejudiced unless the same be granted without notice. No presumptions are to be indulged in favor of action without notice, but parties must, on facts stated and sworn to, bring themselves within the exception of the statute before being entitled to an injunction without notice. Failing so to do, ah injunction granted will be held to be improvident and dissolved.”

See also Thulin v. National Ice & Fuel Corp., 293 Ill. App. 155; Grossman v. Grossman, 304 Ill. App. 507.

On February 10, 1945 the attorneys for the respective parties discussed the matter now in issue. These discussions were renewed on February 16 and February 21, 1945. Defendant’s attorney frankly stated that his client was asserting ownership of the property now in dispute and offered to sell it to plaintiff. Plaintiff’s attorney was given to understand that if a purchase was not arranged, the property would be removed on or about March 5, 1945, the date when, under the cancellation notice, defendant was required to vacate the premises. The theatre was in operation and located only three blocks from the court house. Service of notice could have been made in a few minutes. The action of the attorney for defendant in ne-gotiatin'g with the attorney for the plaintiff and frankly telling him the position taken by his client shows that the defendant was acting in good faith. To obviate the necessity of giving notice a mere possibility that the giving of notice of the application for -injunction might produce or enhance imaginary mischief is not sufficient. Sprague v. Monarch Booh Co., 105 Ill. App. 530, 533.

It is interesting to note that the complaint was filed on Monday, February 26, 1945, but that the plaintiff did not make application for an injunction until the following day. In oral argument the attorney for defendant stated that assignments of chancery cases are not made until the day after they are filed. We call attention to rule 6 of the superior court, which states that on representation made by the solicitor for the plaintiff that the matter is one of ’emergency and requires an immediate hearing, the head of the chancery division, or in his absence, the judge calling the lowest numbered chancery calendar, may order that the clerk immediately deliver the files to the secretary of the judges for the attention of the executive committee. The assignment is then made. "Sec. 4 of rule 17 of the superior court provides that in the case of any motion, the court retains the power by order entered ex parte, of enlarging or reducing the time of notice prescribed by the rule. Under these rules plaintiff could have procured the immediate assignment of the case and an ex parte order reducing the time of notice, and defendant could have been 'served with the notice to appear within a comparatively short time. We agree with defendant that the complaint makes no adequate showing that defendant could not conveniently and speedily have been served with notice of the application for the injunction, or that the rights of the plaintiff would be unduly prejudiced if the injunction did not issue immediately and without notice. The court erred in granting the injunction without notice and in overruling the motion to vacate and dissolve.

From the report of proceedings it appears that defendant, without answering, filed affidavits of Edv ward Trinz, manager of the theatre, and Henry Her-, lett, an employee of a concern engaged in the installation and removal of ice machinery, and introduced the testimony of the attorney who represented defendant in the telephone conversations mentioned. He testified about the negotiations over the telephone with the attorney for plaintiff. Sec. 16, ch. 69, Ill. Rev. Stat. 1943 [Jones Ill. Stats. Ann. 109.362], provides that a motion to dissolve an injunction may be, made at any time upon answer, or for want of equity on the face of the complaint. Sec. 16, provides that upon a motion to dissolve an injunction after answer, the court shall not be bound to take the answer as. absolutely true, but shall decide the motion upon the. weight of the testimony. Sec. 17 [109.363] provides, that plaintiff may support his complaint and defendían! may support his answer by affidavits filed with the same, which may be read in evidence on the hearing of the motion to dissolve the injunction. Sec. 20 [109.364] provides that depositions taken upon a motion to dissolve an injunction may be read in the final hearing of the cause. In Dunne v. County of Rock Island, 273 Ill. 53, the court said (56) :

“It is not correct practice in this State, where n'd answer or plea is filed to the bill, to receive or consider affidavits where a motion is made to dissolve an injunction. Such a motion would operate in the samé way as a demurrer to the bill, and being based On matters intrinsic and appearing on the face of the' bill, no affidavits showing extraneous matters "cquld be used. After answer is filed denying the allegations of the bill, upon motion to dissolve the injunction it is allowable to either party to introduce testimony or affidavits to support the bill and answer. In such a case the preliminary motion is to be decided upon the weight of the testimony without accepting the answer as absolutely true. (Wangelin v. Goe, 50 Ill. 459.) For the same reason that affidavits are not received on motion to dissolve an injunction before answering or pleading to the bill, we hold that they should not be filed or considered on a motion for a preliminary injunction in any case. It is the office of an answer to deny the allegations of a bill in equity or to set up some affirmative matter as a defense, and it is the office of a demurrer to test the sufficiency of a bill upon its face. Issues of fact should be made up before any evidence is heard, and if only questions of law are to be raised, the bill should be taken as true as to all facts well pleaded and as stating the whole case for the court’s consideration until the facts are denied by answer or further facts are pleaded by the defendant as matters of defense to the bill.”

The Civil Practice Act has not affected the rule announced in the Dunne case. On oral argument when we suggested that the introduction of affidavits and testimony, an answer not having been filed, was contrary to the views expressed in the Dunne case, the attorneys expressed the view that under the Civil Practice Act and the rules adopted by the Supreme Court the doctrine announced in the Dunne case was not applicable. The attorneys appeared to rely on Supreme Court rule 31, which provides that where an interlocutory order or decree is entered on an ex parte application, the party proposing to take an appeal therefrom shall first present, on notice, a motion to vacate the order or decree to the trial court entering such order or decree, and that appeal may be taken if the motion is denied, or if the court does not act thereon within seven days after its presentation. This rule does not affect the doctrine announced in the Dunne case. Under rule 31 the chancellor is given an opportunity to pass on the points urged, before an appeal may be prosecuted. We are of the opinion that the rule announced in the Dunne case is the law today, and for that reason we have disregarded the affidavits and the testimony introduced by defendant.

For the reasons stated, the order of the superior court of Cook county of February 27, 1945 directing the issuance of the injunction, and the order of the superior court of Cook county of March 2, 1945, overruling the motion to dissolve the injunction, are reversed:

Orders reversed.

Kilby, J., concurs.

Lewe, J., took no part.


author: Mr. Justice Kiley

text:
    Northwestern Institute of Foot Surgery and Chiropody, Appellant, v. Frank G. Thompson, Director of Department of Registration and Education of State of Illinois, et al., Appellees.
    Gen. No. 43,156.
    Heard in the third division of this court for the first district at the June term, 1944.
    Opinion filed June 29, 1945.
    Released for publication July 24, 1945.

      David H. Jackson, of Chicago, for appellant.
    George F. Barrett, Attorney General, for appellees; William C. Wines, Assistant Attorney General, of counsel.
   Mr. Justice Kiley

delivered the opinion of the court.

This is a common law certiorari transferred to this court from the Supreme Court of Illinois. Northwestern Institute of Chiropody v. Thompson, 386 Ill. 615. The writ issued to review the action of the Director of the State Department of Registration and Education, removing the Institute from the list of schools approved by the Department as reputable and in good standing. Respondents filed their return which was sustained and the writ of certiorari was quashed. The Institute appealed.

The action of the Director was based upon findings and recommendations of a Special Chiropody Committee appointed by the Director to hear the complaint of an inspector of the Department. The complaint charged that in October and November 1939, the teaching staff of the Institute was not in accordance with the rules and regulations of the Department referring to the make-up of the faculty. The rules required that there be at least 9 doctors of medicine, 10 chiropodists, 1 chemist, 1 pharmacist, 1 roentgenologist and 1 laboratory technician, and that doctors of medicine should lead the departments of physiology, physio-therapy, roentgenology, pathology, dermatology, neurology, Chiropodial medicine and surgery.

After extensive hearings the Special Committee on April 9,1941, certified its findings to the Director. Its recommendation stated that the school “now is approved” by the Department as reputable and in good standing and recited the filing of the complaint, notice, extensive hearings and the taking of evidence, the transcript of which was incorporated in the report. The Committee found that the Institute “was and now is” approved as reputable and in good standing; that in October-Nov ember of 1939, the teaching staff was not in accordance with Department Bules and Begulations, requiring 9 doctors of medicine, etc.; that the Institute caused a catalogue to be printed and presented to the Department as correctly setting forth the required number of faculty members; and that the catalogue was inaccurate and presented names of men who were not faculty members. The Committee recommended on the basis of the foregoing finding the removal of the Institute from the list of schools approved as reputable and in good standing. The Director approved the Committee’s report and took the action, subject of the certiorari.

The return of the respondent, director and the Department consisted of the complaint, proceedings before the Committee, findings and recommendations of the Committee and the action of the Director thereon. The return should have been quashed. The court committed error in quashing the writ.

The finding of the Committee, which was adopted by the Director as the basis of his action, states no evidence or any facts to justify the conclusion that the Institute failed to meet the minimum requirements of the Department. There are no facts stated to support the conclusion, no foundation laid for it, nothing stated from which the Circuit Court, or we, on review of the action, can determine whether the Committee or the Director was justified in drawing the conclusion and taking the action which followed the hearing. Funkhouser v. Coffin, 301 Ill. 257; Carroll v. Houston, 341 Ill. 531; K. & G. Ry. Co. v. Commerce Com., 340 Ill. 266; Murphy v. Houston, 250 Ill. App. 386. It is impossible from a study of the finding to know in what manner the regulation was violated or how the faculty was deficient. The Institute was entitled as a matter of justice to know how specifically it had failed to meet the requirements of the Department. The Circuit- Court had no way of knowing what facts shown by the evidence were the basis of the Committee’s finding. We cannot tell from a review of the record. We consider it unnecessary to pass on any other points.

For the reasons given the judgment of the Circuit Court is reversed and the cause remanded with directions to quash the return.

Judgment reversed and cause remanded with directions.

Burke, P. J.,.concurs.

Lewe, J., took no part.


text:
    Lorraine E. Wooster, Appellee, v. Walter Scott et al., Appellants.
    Gen. No. 43,273.
    Heard in the third division of this court for the first district at the December term, 1944.
    Opinion filed June 29, 1945.
    Released for publication July 24, 1945.
    Scott, MacLeish & Falk, of Chicago, for appellants; Robert S. Cushman and Joseph A. Dubbs, both of Chicago, of counsel.
    No appearance for appellee.
   Mr. Justice Kiley

delivered the opinion of the court.

This is a forcible detainer action to recover possession from a tenant of the grantee in a tax deed. After trial without a jury, the court gave judgment for plaintiff and defendant appeals. Plaintiff has filed no brief in this court.

The property was purchased by plaintiff in 1926. She last visited the premises about 3% years before the trial. September 11, 1939 the premises were sold for taxes to Jarvis. A tax deed conveying the property was delivered to him May 19, 1944. The following day he went to the property. The doors of the building were unlocked and open. He entered and found the building had been vandalized. The building was filthy and the boiler and the electric wiring had rotted. The only occupants were some cats. Jarvis took possession without objection.

The same day he leased the premises to defendant Cornelia Tilford and placed her in possession with instructions to clean and operate the building. Since then she has been in possession as tenant of Jarvis and has operated a rooming house collecting the rents and exercising full dominion over the property.

A question of law arises since there is no substantial dispute in the evidence. The question is answered in Beach v. Boettcher, 323 Ill. App. 79. The delivery of the tax deed to Jarvis suspended plaintiff’s right to maintain this suit. The judgment is reversed.

Judgment reversed.

Burke, P. J., and Lewe, J., concur.