text:
    Thomas H. Fisher, Appellant, v. Homer P. Hargrave et al., Copartners Trading as Merrill Lynch, Pierce, Fenner and Beane, Appellees.
    Gen. No. 42,425.
    Opinion filed April 20, 1943.
    Rehearing denied May 4, 1943.
    Norman Crawford, of Chicago, for appellant.

      Levinson, Becker, Peebles & Swiren, of Chicago, for certain appellee; Don M. Peebles and Joseph P. . Antonow, both of Chicago, of counsel.
   Mr. Justice Friend

delivered the opinion of the court.

In December 1940, and January 1941, plaintiff had certain commodity transactions with Fuller, Rodney & Co., brokers, resulting in losses for which he sought an accounting from the copartnership of Merrill Lynch, Pierce, Fenner & Beane, successors in interest of Merrill Lynch, E. A. Pierce & Cassatt, who took over some of the accounts of Fuller, Rodney & Co. upon their dissolution at the close of business April 30, 1941. Service of summons was had on Homer P. Hargrave, one of the defendant copartners, who resided in Cook county. He answered the complaint and made a motion for summary judgment, supported by his own affidavit and that of Byron G. Webster, who had been a partner of Fuller, Rodney & Co. Plaintiff moved to strike Hargrave’s motion and affidavits for summary judgment,, as well as his appearance and answer, and for a default judgment against all the defendants. The court denied his motions, and upon consideration of the affidavits presented by the respective parties, granted Hargrave’s motion and entered judgment in his favor for costs, from which plaintiff has taken an appeal.

Plaintiff’s suit is predicated on the theory that since he paid $6,500 to Fuller, Rodney & Co., as his brokers, in certain commodity transactions for which no accounting had been made, he is entitled to secure such accounting for moneys alleged to be due him, not only from Fuller, Rodney & Co., with whom the transactions were admittedly and exclusively had, but from any other firm or partnership which “succeeded” to their business or “has merged or consolidated therewith.” He contends that on a motion for summary judgment he is entitled to the disclosure of all the evidentiaryfacts showing the relationship between the two firms, many of which were within the exclusive control of defendants and could not be ascertained until trial or until discovery is made; that the court denied him the discovery of documents and matters relevant to the succession in interest between the two firms, to which he was entitled; that the affidavits of the parties are squarely in conflict with each other, and required proof before the chancellor could determine whether defendants o'r their predecessors in interest had rendered themselves liable for handling or taking over some of Fuller, Rodney & Co.’s customer accounts;' and that the conflicting affidavits, without discovery, could not be made the basis for a final decree upon motion for summary judgment in favor of defendant.

The question presented is whether the competent evidence contained in the affidavits supports the court’s conclusion that defendants and their predecessors in interest did not assume the liabilities of Fuller, Rodney & Co., it being conceded that all plaintiff’s brokerage transactions were had with the latter firm before their dissolution and undenied of record that plaintiff’s account was not one of those which were taken over by defendants or their predecessors. The affidavits are too voluminous to be set forth verbatim within the reasonable confines of an opinion, but the salient allegations of facts which would be admissible in a trial may be summarized as follows: ,

Hargrave’s affidavit alleges that he is and was a partner o"f Merrill Lynch, Pierce, Fenner & Beane and their predecessors in interest throughout the existence of both partnerships, and that he had, at all times from April 1, 1940, personal knowledge of their affairs. From such personal knowledge he states unequivocally that neither Merrill Lynch, Pierce, Fenner & Beane nor their predecessors in interest had any transactions whatsoever with plaintiff either in December 1940 or January 1941, or at any other time; that there was no merger or consolidation of Fuller, Rodney & Co. with Merrill Lynch, Pierce, Fenner & Beane or their predecessors; that neither of the latter firms in any way became the successors in interest to Fuller, Rodney & Co., nor did either of them assume the liabilities of the Fuller firm; that defendants’ predecessors arranged with Fuller, Rodney & Co. to take over „ such customer accounts as were satisfactory to defendants’ predecessors and where the customer consented thereto; that Merrill Lynch, E. A. Pierce & Cassatt did not assume any liability in respect to accounts not transferred to them from Fuller, Rodney & Co.; and that plaintiff’s account was not transferred.

Attached to Hargrave’s affidavit is a correct copy of the entire agreement between Fuller, Rodney & Co. and Merrill Lynch, E: A. Pierce & Cassatt, stating that it embodied “all of the terms and conditions of the transactions between said two co-partnerships.” It sets forth that the partnership of Fuller, Rodney & Co. was to be dissolved and their affairs wound up as promptly as possible after April 30, 1941; that Fuller, Rodney & Co. desired to transfer those accounts where the customer consented and the account was satisfactory to defendants’ predecessors; that no liability was to be incurred by defendants’ predecessors in respect to any account not transferred to them; that there was no obligation on them to assume the employment contracts with any employees of Fuller, Rodney & Co., nor any lease liabilities, with the one exception that defendants’ predecessors would take over the lease of Fuller, Rodney & Co. with respect to their New York office at 745 Fifth avenue; that all files and records of Fuller, Rodney & Co. remain the property of that firm; and that two of the partners of Fuller, Rodney & Co. were to become partners of Merrill Lynch, E. A. Pierce & Cassatt.

The affidavit of Byron Gr. Webster states that at all times in 1940 and until April 30, 1941, he was a co-partner of Fuller, Rodney & Co. or of their predecessor in interest, Fuller, Rodney & Redmond, and had personal knowledge of the affairs and transactions of said copartnerships; that in December 1940, and January 1941, plaintiff had certain transactions with the Fuller firm and their predecessors, in the course of which he paid to them the sum of $6,500; that the transactions, had in connection with the purchase and sale of certain butter, had been fully executed and completed prior to February 1, 1941, and no further transactions occurred thereafter; that upon dissolution of Fuller, Rodney & Co. at the close of business April 30,1941, many of the company’s customers transferred their accounts to other brokerage firms, including Merrill Lynch, E. A. Pierce .& Cassatt, the predecessors in interest of defendants; that all transfers made to defendants’ predecessors were with the consent of the customer and of Merrill Lynch, E. A. Pierce & Cassatt; that no consent to the transfer of the account of plaintiff was obtained from him or from the copartnership, and that plaintiff’s account was not transferred either to Merrill Lynch, E. A. Pierce & Cassatt or their successors in interest; that defendants’ predecessors did not assume any liabilities of the copartnership of Fuller, Rodney & Co., nor take over any of their assets; that there was no merger or consolidation of the two firms, nor did Merrill Lynch, E. A. Pierce & Cassatt in any way become the successors in interest to Fuller, Rodney & Co. Webster further alleged that the copartnership of Fuller, Rodney & Co. exists and is in the process of liquidation; that it is entirely solvent and amply able to pay the entire amount claimed by plaintiff, or any portion thereof, in the event that a judgment should be rendered, against the firm or any partner thereof; that a partner of Fuller, Rodney & Co. is and has been, at all times since the dissolution of the copartnership April 30, 1941, resident in the city of Chicago and is, and has at all times been, subject to the jurisdiction of the courts of Cook county, Illinois, where service could have been had upon him; that affiant resides at the Ambassador East Hotel, Chicago, is employed in the local offices of Merrill Lynch, Pierce, Fenner & Beane, and that the facts of his residence and employment were made known to plaintiff; that the- copartnership of Fuller, Rodney & Co., which still exists for the purpose of liquidation, has through its agent, Harold M. Keele, who'was duly authorized in that respect, offered to enter the appearance of the firm and its individual partners in this cause, upon assurance of plaintiff that he would dismiss his suit as to defendants; and that the copartnership of Fuller, Rodney & Co. has also offered through its agent, Keele, in addition to entering its appearance and the appearance of the respective partners in this proceeding, to deposit with the court or with suitable eserowee, security for payment of any judgment which plaintiff might obtain against Fuller, Rodney & Co. or any of its partners in these proceedings, if plaintiff would give assurance that upon the entry of such appearance and the deposit of such security, he would dismiss his complaint as to Hargrave and Merrill Lynch, Pierce, Fenner & Beane. Webster’s affidavit is predicated on his personal knowledge of the matters stated, and he alleged that if sworn as a witness, he could and would testify thereto.

Plaintiff’s affidavit in opposition to the motion for summary judgment and in support of his allegation in the complaint that he “paid to defendants or their predecessors in interest the sum of Six Thousand Five Hundred Dollars ($6,500) as fiduciaries for plaintiff, to wit, as brokers,” etc., although prefaced with the statement that it is based on his personal knowledge, admits that “The true and material facts concerning the transactions between the partnership of Fuller, Rodney & Company and Merrill Lynch, Pierce, Fenner & Beane and its predecessors in interest are unknown to this affiant except by information and belief and are known only to members of said partnerships and their respective members, agents, attorneys and employees whose affidavits affiant is unable to procure by reason of hostility, since they are defendants or take the part of the defendants to this cause.” In the succeeding ■ paragraphs of his affidavit, which embraces some nine pages of the abstract, plaintiff sets forth at length what he believes such persons would testify to if sworn, based upon “his knoivledge, information and belief concerning not only the transactions between the foregoing partnerships but other similar transactions between other brokerage firms doing a similar business and entering into substantially similar transactions.” He states what he believes to be the material facts concerning the transactions between the two partnerships, tending to support his theory of a merger or consolidation under which defendants or their predecessors in interest took over all the assets of Fuller, Rodney & Co., including their good will, and thereby assumed all their liabilities. Obviously plaintiff would not be competent to testify to most of the allegations made, because he admits at the outset that the true and material facts concerning the transactions are unknown to him “except by information and belief.” He undoubtedly hoped, by discovery, depositions and order of the court, to compel the production of “necessary papers and documents in their [defendants’] possession” to prove that the transactions conformed to his theory of a merger or consolidation and were otherwise than appear from the affidavits of Hargrave and Webster and the written agreement between the two partnerships which embodied “all of the terms and conditions of the transactions”; and if he had availed himself of the provisions of the Civil Practice Act with respect to discovery (Ill. Rev. Stat. 1941, ch. 110, par. 182 [Jones Ill. Stats. Ann. 104.058]) and of the rules of the Supreme Court prescribing the procedure under which discovery may be had (Ill. Rev. Stat. 1941, ch. 110, pars. 259.17, 259.19 [Jones Ill. Stats. Ann. 105.17, 105.19]), he could have compelled the production of such documents as would be material to the issues involved, and he could have taken the depositions of the persons whose affidavits he was unable to procure, as he says, “by reason of hostility.” But since he failed to pursue the remedies afforded him by statute, the trial court properly excluded from consideration the numerous speculative and conjectural allegations which plaintiff could not have sustained by his own testimony.

Since the adoption of the Civil Practice Act in 1933, the courts of this State have approved the procedure to be followed by a trial court upon a motion for summary judgment. In Shirley v. Ellis Drier Co., 310 Ill. App. 518, Mr. Justice McSurely, speaking for the court, said that “‘the. Court takes the affidavit of plaintiff and the affidavit of the defendant, compares both of them precisely as if the affidavits represented oral evidence of witnesses appearing on the witness stand, and then determines whether, if the evidence contained in these affidavits was orally submitted to the Court, there would be something left to go to a jury. If there is anything left to go to the jury the motion for summary judgment is denied. If what is contained in the affidavits would have constituted all the evidence before the Court and upon such evidence, there would be nothing left to go to the jury, and the Court would be required to direct a verdict, then a summary judgment will be entered.’ ” Although the decision was overruled by the Supreme Court in Shirley v. Ellis Drier Co., 379 Ill. 105, the test applied by the Appellate Court was approved as correctly announcing the rule when summary judgment may be entered. Applying the test to the affidavits of the respective parties in this proceeding, it is clear that no issue of fact was submitted to the court. As heretofore set forth, the facts in defendant’s two affidavits and the agreement of April 18,1941, which would have been admissible in a trial of the cause, were not contradicted by any evidence in the record except plaintiff’s statement denying the same upon information and belief, with an admission that his allegations were made without knowledge of the facts. The trial court properly disregarded the numerous allegations contained in plaintiff’s affidavit, by which he hoped to prove, through documents which are not of record and depositions which were never taken, that the transactions between the two partnerships constituted a consolidation. Under the ruling in Eagle Indemnity Co. v. Haaker, 309 Ill. App. 406, the court in this proceeding was obliged to disregard the bulk of plaintiff’s affidavit as being improper and insufficient. In that case the court cited rule 15 of the Supreme Court, which provides that the affidavit of a defendant resisting entry of summary judgment “shall not consist of conclusions but of such facts as would be admissible in evidence and shall affirmatively show that the affiant, if sworn as a witness, can testify competently thereto,” and said that the proceeding for summary judgment is an inquisition to determine whether there is any issue of fact to be tried, and that although the pleadings should be considered, “the question to be determined is of fact to be ascertained by the evidence.” The requirements of an affidavit filed in opposition to a motion for summary judgment are no different from those necessary in support of a summary judgment in favor of plaintiff. It was so held in Chicago Title Trust Co. v. Cohen, 284 Ill. App. 181, where we affirmed an order of the superior court striking the affidavit of merits and entering a summary judgment for plaintiff because defendant’s affidavit consisted of conclusions and incompetent evidence in violation of rule 15 of the Supreme Court.

, Plaintiff evidently realizes the insufficiency of his affidavit because he argues that the court refused to grant the discovery of documents which would have established the evidentiary facts relating to the succession in interest between the two partnerships, without which it was ‘ ‘ impossible for the trial court to pass upon the issues . . . and determine whether a merger or consolidation . . . did or did not occur in fact and in law,” and he assigns such refusal as ground for reversal. Upon careful .examination of the record we find nothing which shows that plaintiff presented a motion requesting such discovery, and defendant’s counsel say that they “are frankly puzzled at the statement of the plaintiff that ‘the trial court refused to grant the discovery of documents and matters above referred to.’ ” There does appear of record a notice prepared by plaintiff that he would appear before Judge Boltoh and move for the entry of an order against Hargrave, directing the discovery of certain documents and matters relating to this controversy ‘ ‘ as set forth in the order, a copy of which is attached hereto,” and a proposed order drafted by the plaintiff is incorporated in the record. The statement of defendant’s counsel that plaintiff merely filed these documents in the clerk’s office is substantiated by a certification of the clerk in the record with respect to plaintiff’s notice, but none with respect to his draft order. It is clear, however, that no order was ever entered by the court denying plaintiff’s motion for discovery, and it does not appear of rec.ord that he ever presented the motion or sought the court’s ruling thereon. Since a denial of a right by a court can be evidenced only by a ruling on order of the court, we are obliged to “disregard such facts as outside the record.” People v. Salbar, 282 Ill. App. 506. In Merkel v. Schmidt Baking Co., 72 Ill. App. 239, an appeal was taken from an injunctional order which did not appear in the record, and in the absence of such order the court dismissed the appeal, saying: “The record should show some order of the court as the basis for an appeal. In absence of an order for injunction in the record we feel constrained to dismiss the appeal in this case, of the court’s own motion, which is done accordingly.” And in O’Donnell v. Quinn, 100 Ill. App. 5, the court held that it had no jurisdiction to consider an appeal where there was no record showing the judgment of the court below, even though the bill of exceptions stated what judgment the court had entered.

Aside from the propriety of entering summary judgment upon the pleadings and affidavits presented, plaintiff argues that his action for an accounting does not fall within the provisions of section 57 of the Civil Practice Act [Jones Ill. Stats. Ann. 104.057], and therefore the trial court erred in granting defendant’s motion for summary judgment. Under par. 2 of sec. 57 a defendant is given the right to summary judgment in all cases where the plaintiff would have such right under par. 1 of the same section, and par. 1 gives a party a right to a summary judgment in an action in equity. This proceeding being a suit for an accounting against a fiduciary, it is an equitable action and falls within the provisions of the act. In Gliwa v. Washington Polish Loan & Building Ass’n, 310 Ill. App. 465, the court approved the general rule that summary procedure should be limited to cases simple in their nature, but pointed out that the authorities do not undertake to lay down any precise rule, and that the matter must manifestly be left largely to the discretion of the trial judge, who “should he quick to sense the actual situation. The mere fact that defendant presents complicated defenses may prove he has astute, able and learned counsel. It does not necessarily prove the case is complex or complicated. To so hold would emasculate the statute.” Under rule 113 of the New York Civil Practice Act, summary judgment is permitted “in an action to recover a debt or liquidated damage arising on a contract, express or implied . . . .” This provision is substantially identical with section 57 of the Illinois Act. Construing that provision in City Bank Farmers’ Trust Co. v. Charity Organization Society of City of New York, 265 N. Y. Snpp. 267, the court entered an order for summary judgment in an equitable action which sought an accounting by a trustee, and the decision was affirmed by the New York Court of Appeals in the case bearing the same title, reported in 191 N. E. 504. Plaintiff argues that under the provisions of the Illinois Civil Practice Act, motion for summary judgment can be made only in suits upon contracts express or implied, or judgments or decrees for the payment of money, and he says that this proceeding is not such an action. However, the theory of plaintiff’s suit is that by agreement, express or implied, defendants or their predecessors in interest assumed the liability of Fuller, Eodney & Co., and par. 1 of sec. 57 includes actions at law or in equity, upon contracts express or implied, and therefore ive think this proceeding falls within the provisions of the statute.

In support of his legal conclusion that defendants or their predecessors assumed the liabilities of Fuller, Eodney & Co., plaintiff stresses two provisions of the agreement of April 18, 1941, (a) the assumption of the lease, by defendants’ predecessors, of one of the partnership offices in New York, and (b) the entrance into the firm of Merrill Lynch, E. A. Pierce & Cassatt, of two of the partners of Fuller, Eodney & Co., and he argues that these circumstances, and especially the admission of two of the partners of the dissolved firm into membership in another firm, create in the latter new partnership liability for all the acts, obligations . or duties of the former partnership. No applicable cases are cited to support the argument, and we do not understand the Uniform Partnership Act, which plaintiff invokes as his authority, as so holding. If that were the law, a partner of a liquidated and dissolved firm would, as defendant’s counsel suggest, forever be denied access to membership with any other partnership.

Since plaintiff seeks only an accounting and a money decree for transactions had exclusively with Fuller, Eodney & Co., it is difficult to understand why he does not avail himself of their offer to appear in the suit and give security for any judgment that may be entered against them or any of the partners, instead of pursuing the doubtful theory of a merger or consolidation of the two firms, without any evidentiary basis to support it. In reply to this query by the court on oral argument, plaintiff answered that he was convinced Fuller, Eodney & Co. would persist in defending his suit and he preferred settlement; that he was well acquainted with various of the defendant partners, for whom he professed friendship, and was quite confident that he could prevail upon them to make a settlement. The implication of that statement, aside from indicating a confession of weakness in his own cause, is that plaintiff sued these defendants, rather than Fuller, Eodney & Co., because he thinks they may be induced to settle a claim, however doubtful, rather than engage in protracted litigation, with its attendant nuisance and expense.

We are of opinion that the decree of the superior court granting summary judgment to Homer P. Hargrave, as a copartner of Merrill Lynch, Pierce, Fenner & Beane, was proper, and it is therefore affirmed.

Decree affirmed.

Sullivan, P. J., and S.canlan, J., concur.


source: Caselaw Access Project

author: Mr. Justice Friend

license: Public Domain

text:
    Fred A. Gariepy, Appellee, v. Max A. Springer, Appellant.
    Gen. No. 42,436.
    Opinion filed April 20, 1943.
    Thomas J. McCormick and B. M. Steiner, both of Chicago, for appellant; B. M. Steiner, of Chicago, of counsel.
    Vincent D. McConnell, of Chicago, for appellee; John Spalding, of Chicago, of counsel.
   Mr. Justice Friend

delivered the opinion of the • court.

Fred A. Gariepy filed a complaint in chancery seeking to restrain defendant, Max A. Springer, “from further issuing, uttering, mailing, preparing or causing to be prepared and mailed or delivered manually, or in any other manner,” a certain circular alleged to be libelous, or any similar communication. A temporary injunction issued without notice. Thereafter defendant answered the complaint, and plaintiff filed an additional count for damages. Defendant then moved for trial by jury on the additional count, but his motion was denied and he was ordered to answer the additional count. The matter was thereafter referred to a master who, pursuant to a hearing, recommended that the injunction be made permanent, that plaintiff recover from defendant $2,000 as compensatory damages and $2,000 as punitive damages, together with costs of the proceeding, and that malice be found to be the gist of the action. After overruling defendant’s exceptions to the master’s report, the court entered a decree in accordance with the master’s recommendations, from which defendant has taken an appeal.

From the essential allegations of the complaint it appears that Gariepy is a practising attorney in Chicago, in good repute, and that his sole source of livelihood is derived from the practice of his professio'n; that defendant, in an attempt to ruin him and deprive him of his means of livelihood, “has been and daily is continuing to publish and circulate” to plaintiff’s clients, friends, lawyers, judges and others with whom plaintiff has business and social contact, the following reprint of an article appearing in the Chicago Tribune August 2, 1940, with a note prepared by defendant appended thereto:

“ ‘Court officer again ordered to county jail. For the third time yesterday Attorney Victor P. Frank was ordered sent to the county jail on a citation for contempt of court. He is accused of shortages totaling $5,569 in his accounts as a special Superior court commissioner. Yesterdays commitment was issued by Judge John S. Lewe for failure to turn over to the court $2,955 collected on a foreclosure sale. Under the contempt order Frank can be held in jail until the funds are repaid. A citation for a sanity hearing for Frank set for yesterday in County court, was withdrawn. The petition for" the tests was filed July 25 by Frank’s brother Seymour Frank. Frank was found in a coma in St. Luke’s hospital last week.’

“Note: Mr. Victor P. Frank, 33 North LaSalle St. is associated with Mr. Frederick A. Gariepy, 1 North LaSalle St., Chicago, 111.

1 ‘ 5000 copies — 8/3/40. ’ ’

The complaint denies the truth of the note appended to the circular, states that Victor P. Frank is not an associate of plaintiff, and has never been employed by him. It is further alleged that on or about December 3, 1939 defendant composed, published and sent out the following telegram on the form of a Western Union blank: “F. A. Gariepy, Shyster egomaniac megalomaniac hypocrite par excellence, 1 North LaSalle St.: On the approaching first anniversary of your and Mrs. Springer’s complete success in dismembering and wrecking my family consisting of 4 minor children and your frustrated attempts by many diabolical means such as deliberately false statements separate maintenance conservator and insane declaration proceedings in order to ruin me financially and socially it behooves you to spend a day with your God praying for his forgiveness and may he have mercy on your soul. Max A. Springer,” copies of which were mailed to some 20 persons. It is alleged that the communication “is false, malicious, scandalous, scurrilous, and the same was sent out with the intent, purpose and design of doing great harm and injury to the plaintiff and depriving him of his livelihood and doing damage and injury to the plaintiff’s standing, credit and position at the bar.”

The complaint alleges that plaintiff is unable to continue the practice of law while such communications are being circulated by defendant; that the larger part of plaintiff’s time each day is spent in explaining the communication to persons who interrogate him concerning it; that defendant, well knowing plaintiff’s social contacts and his standing as an attorney, and “contriving and maliciously intending to injure the plaintiff and to bring him into public scandal and to disgrace and deprive him of his livelihood and to cause a loss of clients, income, business and social connections,” has continued daily and will continue to send copies of the communication to a large number of plaintiff’s clients, friends and associates, unless re- ' strained from further so doing.

Assuming that the evidence adduced before, the master substantially supports the salient allegations of the complaint with respect to the mailing of the alleged libelous communication to various persons and the receipt thereof, the social contacts and good repute of plaintiff as an attorney, the injury to his standing and prestige in the profession, and the inconvenience and embarrassment to which he has been subjected, the principal question presented is whether equity will enjoin the publication of an alleged libel. We had occasion to consider that question under similar circumstances in Lietzman v. Radio Broadcasting Station W.C.F.L., 282 Ill. App. 203, wherein plaintiff unsuccessfully sought to enjoin publication of statements concerning his labor policies by means of daily radio broadcasts. His complaint was predicated on the theory that the publication of the alleged libelous statements was intimidating, coercive, made in pursuance of a conspiracy among the broadcasting company, its officials and others, and calculated to injure plaintiff’s0 business and profession. It was there contended that the libel was continuing in its nature, incidental to the conspiracy to injure plaintiff, and that it should therefore be enjoined. After reviewing the allegations'of the complaint we concluded that since the alleged false statements and the objectionable matter in the broadcast did not amount to coercion or intimidation in law, and since such statements were not made in pursuance of a conspiracy, equity would not afford injunctive relief against the publication of a mere scandal or libel, and we reviewed and discussed numerous decisions, State and Federal, announcing the settled law of practically every jurisdiction in this country, including Illinois, that equity will not ordinarily enjoin libel or slander defaming the credit and business standing of an individual or corporation. High on Injunctions, 4th ed., vol. 2, sec. 1015, states that “courts of equity would not restrain the publication of libels or works of a libelous nature, even though such publications were calculated to injure the credit, business, or character of the person aggrieved, and that he would be left to pursue his remedy at law.” In Pomeroy’s Equity Jurisprudence, 2nd ed., vol. 5, sec. 2050 (sec. 629), the author states that “Equity will not restrain by injunction the threatened publication of a libel, as such, however great the injury to property may appear to be,” citing the early case of Francis v. Flinn, 118 U. S. 385, wherein Mr. Justice Field said: “If the publications in the newspapers are false and injurious, he can prosecute the publishers for libel. If a court of equity could interfere and use its remedy of injunction in such cases, it would draw to itself the greater part of the litigation properly belonging to courts of law.” In another case cited by Pomeroy, Kidd v. Horry, 28 Fed. 773, decided in 1886, an injunction was asked to restrain the defendants from publishing certain circular letters concerning the business of the complainants. The injunction was refused, and the court after reviewing various cases, concluded that the “law clearly is that the court of chancery will not interfere, by injunction, to restrain the publication of a libel; .... We do not think that the existence of malice in publishing a libel, or uttering slanderous words, can make any difference in the jurisdiction of the court. Malice is charged in almost every case of libel, and no cases of authority can be found, we think, independent of statute, in which the power to issue an injunction to restrain a libel or slanderous words has ever been maintained, whether malice was charged or not. Charges of slander are peculiarly adapted to and require trial by jury; and exercising, as we do, authority under a system of government and law which by a fundamental article secures the right of trial by jury in all cases at common law, and which by express statute declares that suits in equity shall not be sustained in any case where a plain, adequate, and complete remedy may be had at law, as has always heretofore been considered the case in causes of libel and slander we do not think that we would be justified in extending the remedy of injunction to such cases.” In Citizens’ Light, Heat & Power Co. v. Montgomery Light & Water Power Co. (C. C.), 171 Fed. 553, the court pointed out that the difficulties in the way of affording injunctive relief against libel and slander are insurmountable, and grow alike out of constitutional provisions and want of jurisdiction in the court of equity; they cited various cases holding that the jurisdiction of equity does not extend to libels and where courts have refused injunctions to restrain their publication. In American Malting Co. v. Keitel, 209 Fed. 351, the court quoted from Vassar College v. Loose-Wiles Biscuit Co., 197 Fed. 982, wherein a bill seeking to restrain a libel was dismissed with the statement that “ ‘In this country a court of equity is without jurisdiction to restrain the publication of a libel.’ ” It was pointed out in the American Malting ease that courts have sometimes issued injunctions to restrain the publication of false statements injurious to business or property, but that cases in which such jurisdiction was assumed were those which involved conspiracy, intimidation or coercion.

In the case at bar neither the allegations of the complaint nor the proof adduced before the master charge or show either conspiracy, intimidation or coercion, and therefore this proceeding resolves itself into the question whether the court was warranted in exercising its equitable power to restrain the alleged libelous communication. Plaintiff stresses the point that defendant’s conduct in mailing numerous copies of the communication to plaintiff’s friends, clients and associates at the bar amounted to a continuing libel, and he argues that there is no adequate remedy at law against the assault upon his reputation as an attorney for honesty and integrity, and the resultant injury to his means of livelihood from his profession. It should be noted, however, that there is no proof indicating any threat on the part of Springer to continue publishing the alleged, libelous matter, and the finding in the decree that “the plaintiff has been humiliated, embarrassed and disgraced and has suffered and will continue to suffer irreparable damage and loss of large sums of money,” is not supported by any allegation in the complaint or proof adduced in support thereof that defendant had threatened to continue the publication. It would be difficult to find a reported case where the publication of an alleged libel was more continuous than in the Lietsman case, wherein the defendant broadcasting station repeated the statements almost every day for a considerable period of time; nevertheless, we were constrained to sustain the decree dismissing the complaint, in conformance with the overwhelming weight of authority that equity is without jurisdiction to restrain the publication of a libel, except in cases involving conspiracy, intimidation or coercion. None of these factors enters into the case at bar.

The principal remaining question is whether the court erred in denying defendant the right of trial by jury. When the original complaint was filed it was simply an action in equity seeking an injunction to restrain defendant from further publishing the alleged libelous matter, and it is conceded that when defendant entered his appearance he had no right to demand a trial by jury, or if he had done so, it would have been entirely discretionary with the chancellor whether he would direct any of the issues to be so tried, and a verdict by a jury would have been purely advisory. The original suit was instituted August 14, 1940, and the additional count at law, which was identical with the original complaint, except that it sought damages, was filed December 20, 1940. The record shows, however, that leave to file the additional count was not had until May 14, 1941, nine months after the original suit for injunction was instituted. Defendant then immediately made an oral motion for trial by jury. That motion was on the same day summarily denied, and an excerpt from the report of proceedings, as amended, filed October 7, 1942, states that the chancellor denied the motion for a jury demand on the following ground: “The reason for the said order denying the motion by defendant was that the defendant,' when he entered his appearance, was bound to know that the plaintiff might during the progress of this suit obtain' leave to file additional counts at law or in equity and that, nevertheless, the defendant entered his appearance without demanding trial by jury as is by statute provided.” Plaintiff concedes that the reason assigned is untenable, but he argues that “ (a) There was no proper demand for a trial by jury by the defendant; (b) The defendant waived any right to jury trial by acquiescing in the reference of the cause to a master in chancery; [and] (c) There were no severable issues raised by the Additional Count and equity properly did compíete justice.” With respect to the first of these contentions, it is argued that defendant failed to make his demand in writing and to pay the appropriate fee to the clerk of the court, as provided by section 64 of the Civil Practice Act (Ill. Rev. Stat. 1941, ch. 110, par. 188 [Jones Ill. Stats. Ann. 104.064]) and section 33 of the Fees and Salaries Act (Ill. Rev. Stat. 1941, ch. 53, par. 51 [Jones Ill. Stats. Ann. 48.034]). It appears, however, that he had no opportunity to do either of these things. The order giving plaintiff leave to file an additional count instanter contained the provision, “and defendant’s resistance and motion for a jury trial is denied.” That was evidently defendant’s first intimation that the additional count would be filed, and he had no alternative except to make the motion for jury trial orally, and no opportunity to pay the fees before the order was entered. Having demanded a jury at the earliest possible moment after being confronted with a suit for damages, as to which he was entitled to a trial by jury, it is difficult to conceive that he could have asserted the right guaranteed him by the constitution, as well as the law of the State, at any earlier time.

The contention that there were no severable issues raised by the additional count, and that ‘1 equity properly did complete justice, ’ ’ is likewise untenable. The original complaint was for injunctive relief. The additional count sought damages, both compensatory and punitive. Plaintiff certainly intended to treat the count at law as distinct from the count in equity, and the court evidently decided that the two causes of action were distinct, for it did not refuse a jury trial on the ground that the two counts could be tried together as a proceeding in equity, but for the reason heretofore set forth.

The remaining ground upon which the denial of trial by jury is sought to be justified is defendant’s alleged waiver by proceeding to a hearing before the master. However, he had no other recourse. Having demanded trial by jury and being denied that right by the court’s order, he .was obliged to proceed with the hearing before the master. - Plaintiff cites and relies on Mulloy v. Consoer, Older & Quinlan, Inc., 301 Ill. App. 609 (Abst.), for support of the proposition advanced. That case is not applicable to the proceedings at bar because the parties there both agreed to the entry of an order appointing a referee, and the court rested its conclusion that plaintiff was not entitled to a trial by jury upon an order indicating that such an agreement had been made. In the case at bar the court did not refer the cause to a master for hearing until after defendant’s motion for a jury was denied. Having insisted upon a trial by jury and having preserved his objections to the court’s denial, it was not necessary for defendant to object to every other step that took place during the progress of the case.

During the pendency of this cause plaintiff moved to dismiss the appeal for failure to file certain reports of proceedings within the time provided under the rules of this court. That -motion is denied.

For the reasons indicated, we are of opinion that ’that portion of the decree which permanently enjoined defendant from further issuing, uttering, mailing, or causing to be prepared and mailed, or delivered manually or in any other manner, the communication in question, or any similar communication, should be reversed, and it is so ordered. With respect to the additional count, we hold that defendant was entitled to a trial by jury, and that he made his demand in apt time, and that such right was wrongfully denied him. Therefore, the decree awarding plaintiff damages under count two, is reversed and the cause remanded with directions that defendant be allowed a jury trial upon payment of the statutory fee, and that such further proceedings be had under that count as are not inconsistent with the views expressed herein.

Motion to dismiss the appeal denied; that portion of the decree permanently enjoining defendant reversed; that portion of the decree awarding plaintiff damages under count two reversed and cause remanded with directions.

Sullivan, P. J., and Scanlan, J., concur.


text:
    City of Chicago, Appellee, v. Adolph F. Michalowski, Appellant.
    Gen. No. 42,518.
    Opinion filed April 20, 1943.
    Rehearing denied May 4, 1943.
    W. G. Anderson and Jay J. McCarthy, both of Chi- • cago, for appellant; Francis J. Callahan, of Chicago, of counsel.

      Barnet Hodes, Corporation Counsel, for appellee; James A. Velde and Alphonse Cerza, Assistant Corporation Counsel, of counsel..
   Mr. Justice Friend

delivered the opinion of the court.

Dr. A. E. Lowinger, in the name of the City of Chicago, presented a complaint in the municipal court charging defendant, Adolph F. Michalowski, with having violated (1) section 93-10 of the Municipal Code making it unlawful to move a dead human body without first securing a permit from the Board of Health, and (2) section 181-1 of the code making it unlawful to engage in the undertaking business without first securing a license from the city. Defendant waived trial by jury, and pursuant to a hearing by the court he was found guilty of violating the ordinances as charged, and fined $200 and costs. On certification by the court that the cause involved the constitutionality of two ordinances, defendant perfected a direct appeal to the Supreme Court of Illinois, which transferred the cause to the Appellate Court without an opinion, thus eliminating from consideration any of the constitutional questions presented.

The only remaining question is whether the issuance of a State license to a funeral director precludes the city from requiring a license for the same occupation. Under paragraphs 73.1 to 73.31, ch. 111%, 111. Rev. Stat. 1941 [Jones 111. Stats. Ann. 44.17(1) to 44.17(31)], it became unlawful for any person to practice funeral directing after January 1, 1936 without a certificate of registration issued by the State Department of Registration and Education. The qualifications prescribed for a person qualified to receive a certificate as a registered funeral director were a minimum age limit of 21 years, good moral character and temperate habits, and a satisfactory examination conducted by the department to determine his fitness. There was a proviso, however, that “any person of good moral character and temperate habits who was engaged in the practice of funeral directing in the State of Illinois, on July 1, 1935, shall be issued a certificate of registration . . . upon application therefor, prior to July 1, 1936, without examination and without complying with the other provisions” of the section.

The gravamen of defendant’s contention is that the power of the city to license undertakers was impliedly withdrawn by the passage of the 1935 statute herein-before referred to, and his counsel say there is a conflict between the statute and the ordinance which renders the latter invalid, upon the theory that the ordinance was impliedly repealed when the statute was enacted. It should be noted, however, that paragraph 73.29 specifically provides that “Nothing in this Act shall have the effect of limiting the power of cities and villages to tax, license and regulate funeral directors, undertakers and undertaking establishments. The requirements hereof shall be in addition to the requirements of any existing or future ordinance of any city or village so taxing, licensing or regulating funeral directors, undertakers and undertaking establishments.” It thus appears that although defendant would not be required to pass an examination under the State law, the saving clause of the statute preserves the city’s licensing power and makes the license issued by the State subject to the exercise of the city’s licensing power. Our courts have held that there is nothing inherently obnoxious in the requirement that a person engaged in a business shall have two licenses, one from the State and the other from the city (33 Am. Jur., Licenses, sec. 24). Both the city and the State may occupy the same field of regulation if the legislature so intends, and it has been held that a city may regulate an occupation which is also regulated by the State, provided there is; no inconsistency or repugnancy between the two. City of Chicago v. Union Ice Cream Mfg. Co., 252 Ill. 311. The saving clause in the statute would seem to eliminate from consideration any question of inconsistency or repugnancy between the State law and the city ordinance.

It is also urged by defendant that the Cities and Villages Act merely authorizes municipalities to “regulate” but not to license undertakers. The Supreme Court has repeatedly held that the delegation of a power to a city to regulate includes the power to license. City of Chicago v. Drogasawacz, 256 Ill. 34; City of Chicago v. Arbuckle Bros., 344 Ill. 597. These decisions are in accordance with the general rule which includes within the power to license, the means of regulation. Kinsley v. City of Chicago, 124 Ill. 359; Chicago Packing & Provision Co. v. City of Chicago, 88 Ill. 221.

Since defendant does not question or argue the propriety of the fine imposed on him with respect to the violation of section 93-10 of the Municipal Code, which makes it unlawful to move a dead human body without first securing a permit from the Board of Health, it becomes unnecessary to discuss that phase of the litigation. Considering, therefore, only the question of the validity of section 181-1 of the Municipal Code, which makes it unlawful for any individual to engage in the undertaking business without first obtaining a license from the city, we find that the ordinance is supported by grants from the* State of Illinois contained in ch. 24, 111. Rev. Stat. 1941 [Jones 111. Stats. Ann. 21.1111 et seg.]. Paragraph 23 — 5 authorizes the city “To fix the amount, terms, and manner of issuing and revoking licenses”; paragraph 23 — 81, “To do all acts and make all regulations, which may be necessary or expedient for the promotion of health or the suppression of disease”; paragraph 23 — 83, “To locate and regulate . . . undertaking establishments”; and paragraph 23 — 106, “To pass all ordinances and make all rules and regulations, proper or necessary, to carry into effect the powers granted to municipalities, with such fines or penalties as may be deemed proper.” These sources of power were written into the Cities and Villages Act beginning with 1872, whereas the statute relied on by defendant was enacted in 1935. In 1941 the legislature codified the Cities and Villages Act without making any substantial changes in the cities’ power to license and regulate undertakers, and it may therefore be assumed that it did not intend to withdraw from the city any of the powers theretofore conferred upon it.

It must be conceded that the licensing of undertakers and funeral directors, which involves the power of regulating them, may affect the public health of the city in many ways. There is nothing in the statute, or in any of the decisions cited by defendant, which would justify us in holding that this right was impliedly taken from the city by the enactment of the statute in 1935. We therefore perceive no convincing reason why the judgment of the municipal court should be reversed, and it is accordingly affirmed.

Judgment affirmed.

Stjllivah, P. J., and Scahlah, J., concur.


author: Mr. Justice Scanlan

text:
    Live Stock National Bank of Chicago, Administrator of Estate of Magnus Rinnan, Deceased, Appellant, v. Guy A. Richardson and Walter J. Cummings, Receivers, et al., Appellees.
    Gen. No. 41,967.

      Opinion filed April 20, 1943.
    V. Bussell Donaghy and Matkovic & Nelson, all of Chicago, for appellant; David A. Schallman, of Chicago, of counsel.
    Frank L. Kriete, Charles E. Green and Arthur J. Donovan, all of Chicago, for appellees; John B. Guilliams, of Chicago, of counsel.
   Mr. Justice Scanlan

delivered the opinion of the court.

An action to recover damages for the death of Mag-nus Binnan, who was struck by a street car and died three days later as the result of the injuries received in the accident. At the close of plaintiff’s case the trial court, upon motion of defendants, instructed the jury to find defendants not guilty. Plaintiff appeals from a judgment entered upon the verdict.

Plaintiff’s complaint consists of two counts. The first count charges general negligence; also that defendants (a) carelessly and negligently operated the street car at a speed greater than was reasonable and proper, and (b) operated and controlled the street car without keeping a good, proper and sufficient lookout. The second count charges wilful and wanton conduct in the operation of the street car, but as plaintiff in its brief does not contend that defendants were guilty of wilful and wanton conduct the second count may be disregarded.

Plaintiff’s intestate, at the time óf the accident, was forty-six years of age, single, and resided with his mother and father at 749 North Lockwood avenue, Chicago, where he was horn. His eyesight was good. He was a machinist by trade. He served in the first World War and upon his return from France he became a truck driver, and at the time of the accident was in the employ of the Cuneo Press. On the day of the accident he finished his work about noon. He was wearing an American Legion cap, as the Legion was holding a convention in Chicago. The accident occurred about three o’clock p. m. The only witness who testified as to the accident was William Lee Spain. Upon direct examination he stated that at the time in question he and his wife were walking north on the sidewalk on the east side of Wabash avenue; that they were about 200 feet south of Jackson boulevard when they first saw the decedent; that he “happened to see a man — there were quite a few people there —but this man in particular seemed as though he wanted to get on the car, which was coming north. He stepped out and the street car slowed up. It slowed up quite a bit like it was going to stop, and he stepped out a little further. The street car picked up speed and hit him. The front end of the car caught him, spun him around, striking the panel, I believe is what you call it. It caught him and threw him, and it seems as though he fell underneath;” that when he, the witness, first saw the street car it was going about ten or fifteen miles an hour; that he did not hear any warning sounded by the car; that the decedent, when he first saw him, was about fifty feet south of Jackson boulevard; “he was looking towards the street car, I would say it was toward the west.” Upon cross-examination the witness testified that it was a clear, bright day'; that there were quite a few people on the sidewalk; that he saw a great many men with American Legion caps on or wearing Legion uniforms; that when he first saw the decedent the latter was about fifty feet south of the Jackson boulevard crosswalk; that he was standing by a pillar of the “L,” on the south side of the pillar; that he was standing about five feet east of the east rail of the northbound track; that the street car was on the northbound track and was making the usual noise; he could hear the wheels on the rails; that when he first saw the man the street car was about 150 feet away — south from him; that the man was looking west; that he “don’t know which way he was looking, but his head was turned west;” that when he first observed the man standing there the street car was about 150 feet away, south of him; that when he first saw the car it was 150 feet south of Jackson boulevard; that “there was a [street] car right ahead of it at that time;” that when the street car that was approaching from the south started to slow up the man started to walk; that he stepped over to the track; that the street car was about forty or fifty feet away from him when he started to walk toward the track; that “he got just about right where I, or anyone else, would get on the car;” that he did not step on the east rail of the northbound track; “I don’t think he was plumb on the rail, but was standing right there where you catch the car, and stepped right out towards the rail;” that he took about three or four steps toward the rail; that he was standing behind the first pillar from the comer, about forty or fifty feet south of the crosswalk of Jackson boulevard; that the man was standing there five feet east of the northbound track, and “there was nothing to obstruct his view;” that the street car was about fifty feet away when it started to slow down and he just stepped out; that “by stepping out I mean he stepped out just like anyone else would when the car was going to stop to get on. The car never stopped until after he was struck,” about fifty feet south of the south crosswalk of Jackson; that he saw the corner of the front end of the car hit the decedent and spin him around; that he stepped out there when the car was still fifty feet from him when it started to slow down; that “he stepped out there just like most anyone would catching the car;” that then the street car picked up speed and when it came to a stop the man was under the rear trucks of the car. From the testimony of other witnesses it appears that decedent’s leg was caught between the two wheels of the rear truck of the car and was partially severed from the body. The street car was raised and decedent was extricated, a tourniquet was applied to the leg below the hip to stop the bleeding, and decedent was taken in a patrol wagon to St. Luke’s hospital, where he died on September 29.

The law is clear that if the decedent intended to become a passenger upon the car and was struck by the car because he stood too close to it as it approached he would be guilty of contributory negligence as a matter of law. See McCausland v. Chicago City Ry. Co., 198 Ill. App. 200; Covert v. Rockford & Interurban Ry. Co., 299 Ill. 288, 290; Foreman Bank, Admr. v. Chicago Rapid Transit Co., 252 Ill. App. 151, 154; Garvey v. Rhode Island Co., 26 R. I. 80. Many other cases to the same effect might be cited, but the able counsel for plaintiff deny "that the evidence supports the theory of fact that the decedent was intending to become a passenger upon the car and insist that the evidence supports the theory of fact that he was intending to cross Wabash avenue from the east to the west side; “that by decreasing the speed of the street car when it was a considerable distance away from the place where plaintiff was in the street, the motorman thereby indicated that he did so for the purpose of permitting plaintiff’s intestate to cross in front of said street car; that if he didn’t give him an express invitation, at least an implied one was thereby given him to continue to cross the street; that the carelessness and negligence of the motorman in suddenly and without any warning increasing the speed of the street car after first slowing it down and after said decedent proceeded to further cross the street, was the proximate cause of the injuries which resulted in the death of said decedent, and that therefore the defendants are liable for the death.” Defendants contend that the evidence of the witness, Spain, does not support plaintiff’s theory of fact that the decedent was attempting to cross Wabash avenue when he was struck. We are forced to the conclusion that Spain’s testimony does not support plaintiff’s theory of fact. When Spain first saw the dece-, dent the latter was standing about five feet east of the east rail of the northbound track and just south of an “ L” pillar that was located about fifty feet south of the crosswalk of Jackson boulevard. In that position he was safe from passing cars or from northbound • vehicles passing to the east of the pillar. How long the decedent had been standing there prior to the time that Spain first observed him does not appear. That he was waiting there for some purpose is obvious. If he intended to cross Wabash avenue the safe place for him to cross was the crosswalk used by pedestrians at Jackson boulevard, which was only fifty feet away from where he was standing. He had lived all his life in Chicago, was employed as a teamster, and undoubtedly had the common knowledge that street cars stop with the front end of the car at or near the crosswalk, which places the rear end of the car approximately fifty feet away from the crosswalk. It is significant that the decedent was waiting fifty feet south of the crosswalk, at a place where he would stand if he intended to board the rear platform of the car when it stopped at the regular stopping place. Spain testified that when he first saw the deceased, “he was looking towards the street car;” that the car was then 150 feet to the south of the decedent and traveling “about ten or fifteen miles an hour,” so that the decedent had had ample time to cross the northbound track, ahead of the street car, if he intended to cross Wabash avenue, but he waited until the car “was forty or fifty feet away from him,” “when he stepped out just like most anyone would catching the car;” “when the street car started to slow up, he stepped over to the track.” When the decedent was standing just south of the pillar he was “about five feet east of the east rail.” The street car overhangs the rail at least one and one-half feet, and as the decedent was struck by the northeast corner of the front of the car he had moved but three and one-half feet from the place where he had been standing to the place where he was struck. As Spain testified: “He got just about right where I, or anyone else, would get on the car. He didn’t step on the east rail of the northbound track. I don’t think he was plumb on the rail, but was standing right there where you catch the car.” The only reasonable inference from the testimony of Spain is that the unfortunate decedent, while in a place of safety, made an overstep that brought him just within the range of the northeast corner of the front of the car. He came in contact with that corner in such a way that he was spun around. In support of their theory of fact that the decedent was crossing Wabash avenue at the time in question counsel for plaintiff emphasize the fact that Spain testified that when the car was within forty or fifty feet of the place where the decedent was standing the motorman decreased the speed of the car, and they argue that the motorman thereby indicated that he decreased the speed of the car for the purpose of permitting the decedent to cross in front of said street car, and that the proximate cause of the injuries which resulted in the death of the decedent was the result of the action of the motorman in suddenly and without any warning increasing the speed of the street car. Spain testified that there was another street car on the northbound track right ahead of the street car in question, which fact accounts for the slowing down of the speed of the car in question. When the car ahead cleared the stopping place it was necessary to apply additional power to the car in question to enable it to proceed to the stopping place. Spain testified that “the street car picked up speed.” There is no evidence to warrant the assumption that the speed was increased more than enough to enable the car to reach its stopping place at the crosswalk. Spain further testified that the car in question “never stopped until after the decedent was struck.” That the car ahead cleared the stopping place is evident from the fact that when .the car in question finally stopped its front end was near the' Jackson boulevard crosswalk. In our judgment no other reasonable inference can be drawn from the evidence than that the decedent intended to board the car in question. Spain repeatedly stated that the actions of the decedent indicated to him that the decedent intended to board the car. While plaintiff’s counsel would have been justified in moving to strike such testimony they did not see fit to do so. In our judgment, to hold with plaintiff that the testimony of Spain supports its theory of fact that the decedent was crossing Wabash avenue at the time that he was struck would require the application of guesswork and conjecture. There is no evidence tending to prove that plaintiff’s intestate was in the exercise of due care for his own safety at the time and place in question, and therefore the trial court was warranted in instructing the jury to find defendants not guilty.

Defendants strenuously contend that even if it could be held that there was evidence to support plaintiff’s contention that the decedent was crossing Wabash avenue at the time in question, nevertheless, under the facts and circumstances in-evidence, the decedent was guilty of a want of due care as a matter of law, but we do not deem it necessary to pass upon this contention.

The fatal accident to the deceased, a former soldier, upon a day when his comrades in arms were holding their reunion in Chicago, was a most regrettable event, but we are bound, under the facts and the law, to hold that défendants were not responsible for the accident.

The judgment of the superior court of Cook county is affirmed.

Judgment affirmed.

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


text:
    Margaret Vizard, Appellee, v. Walter J. Cummings and Daniel C. Green, Receivers, et al., Appellants.
    Gen. No. 41,979.
    Opinion filed April 20, 1943.
    Frank L. Kriete, Warner H. Robinson and Arthur J. Donovan, all of Chicago, for certain appellants; John R. Guilliams, of Chicago, of counsel.
    W. Harold Rutherford, for certain other appellant; Richard E. Keogh, of Chicago, of counsel.

      Royal W. Irwin, of Chicago, for appellee.
   Mr. Justice Scanlan

delivered the opinion of the court.

A suit brought to recover for personal injuries sustained by plaintiff on July 30, 1937, while walking on the street to make a transfer from a Chicago avenue street car to a Grand avenue street car. A jury returned a verdict against both defendants and assessed plaintiff’s damages in the sum of $5,000. Both defendants appeal from a judgment entered upon the verdict.

The complaint charges as negligence “(a) that defendants carelessly and negligently caused, permitted and allowed divers bricks, stones, pieces of concrete and asphalt to be removed from said highway, thereby rendering the same rough and uneven for travel and (b) that the defendants carelessly and negligently failed to provide and keep the surface of said highway at a place where the plaintiff was permitted to dismount from said street car in reasonably safe condition and repair.”

The accident happened about one o’clock p. m. on July 30, 1937. “It was a beautiful, warm day.” The City of Chicago, at the time, was repaving the south side of Chicago avenue and the work was being done by its contractor, White Paving Company, defendant. The Surface Lines had nothing to do with the work and no part of the street car right of way was interfered with in the course of the work, which was started in April, and extended from a point five blocks east of Grand avenue to a point three blocks west of Grand avenue. The old brick pavement on the south side of Chicago avenue was entirely torn out. Later a concrete foundation was laid and left to dry, or cure, before the asphalt surface could be laid. A row of brick which was adjacent to the street car rail was not disturbed but two rows of brick were laid outside of that row. When the two adjacent rows of brick were laid the top surface of the brick was two and three-quarters inches above the concrete, according to the testimony of the engineer who was in charge of the work. A man whose gas station was located at the intersection testified that the edge of the brick was four inches above the concrete. ' An asphalt surface three inches thick was to be laid over the concrete after it had cured. After the two rows of brick were laid the street was cleaned up; all of the debris was removed. On the day of the accident plaintiff, then about seventy-four years of age,was on her way to the Navy Pier, accompanied by Mrs. Decker, who was about the same age. They took an eastbound Chicago avenue street car at Austin avenue and were given transfers, as they intended to transfer from the Chicago avenue street car to a Grand avenue street car, which would take them to the Navy Pier. Plaintiff testified that they were going to take the Grand avenue car on the corner of Grand avenue and Chicago, “right at Chicago avenue.” Plaintiff had transferred at that point once before early in the spring of the same year, when “the street was perfectly normal.” When the Chicago avenue street car arrived at Grand avenue it stopped on the west side of the intersection at the traffic light; the traffic light was red against the street ■ car. The Chicago avenue street car remained standing still at that place until after the accident. When the street car stopped plaintiff proceeded to alight from the front end of the car. The door at the front end was open and “it was then that I could see that the street was under repair;” “I saw that it was torn up just as I was getting off. I noticed it when I ' started to step down into this light sand, then I noticed the street was torn up there.” Plaintiff testified: “I got off the street car, stepped down on this concrete and walked a couple of steps over to get in front of the car, to cross over to the Grand avenue car. I stepped with one foot, the right foot, on the pavement of the street -car, and was lifting up the left foot when my heel caught on the brick of the pavement and threw me forward on my left side. . . . There were some blocks raised up there. I could see them. After I saw those blocks, I just stepped, put my right foot upon the pavement there in front of the street car. I was walking very slowly because Mrs. Decker couldn’t walk fast and so she could catch up with me. I looked down. I could see what I was stepping on. I put one foot down and brought the left foot up. I raised my left foot up and my heel caught. My heel caught on the edge of this granite- block. Evidently I hadn’t raised my heel quite high enough. You wouldn’t raise your left foot up as high as you do your right foot when you are stepping there. When my left heel caught in the edge of that row of stones is when I lost my balance and fell forward on my left side. ... I was taking my time, looking down where I was walking. The street car was standing still all the time;” that “the edge of those stones was a foot or a foot and a half away from the track, I should think, so far as I can remember. There were about three rows of blocks there. When you are hurt like that, you don’t remember. As I was approaching there, I saw it. I saw the condition.” Plaintiff also testified that when she started to cross she did not look back of her because she was looking down, “picking my way over the street.” '

A number of important points, several of them meritorious, are raised by defendants in support of their contention that the judgment should be reversed, but in our view of this appeal it is only necessary to consider one point made by defendants. Defendants contend, and strenuously argue, that plaintiff’s own testimony shows conclusively that her injuries wure due to her failure to exercise due care at the time and place in question and that therefore the trial court erred in refusing to direct a verdict in favor of both defendants at the close of all of the evidence, and further erred in denying the motion of both defendants for judgment notwithstanding the verdict. After a careful examination of the evidence bearing upon the care exercised by plaintiff at the time and place in question, we are satisfied that the contention as to the conduct of plaintiff is a meritorious one. When plaintiff boarded the street car she received a transfer which entitled her to change ears at any transfer point on the line that she might elect. She chose to transfer at Grand avenue. This ds not a case of a passenger alighting or transferring in the dark. It was midday, of a beautiful, warm day. Plaintiff looked and saw the condition of the street before she alighted, and she stepped from the steps of the car onto the concrete in perfect safety, so that the place where the street car permitted her to alight caused her no injury. The concrete had a solid footing and was clear of all debris or loose material. After plaintiff alighted in safety she plainly saw the situation, the condition of the street and the row of brick against which she struck her left heel. She walked a few steps east on the concrete, passed the front end of the street car and then turned north so as to cross over to the Grand avenue car. She testified that she walked slowly, “picking her way;’’ that, “as I was approaching there, I saw it. I saw the condition;’’ that she saw the blocks; “I could see what I was stepping on. I put one foot down and brought the left foot up. I raised my left foot up and my heel caught ... on the edge of this granite block. Evidently I hadn’t raised my heel quite high enough. . . . When my left heel caught in the edge of that row of stones is when I lost my balance and fell forward on my left side.” The top of the brick was but a few inches above the concrete. Plaintiff did not claim that she saw any danger in this slight elevation and her testimony shows that she saw the situation plainly and did not hesitate to step up on the brick. She frankly stated that the reason her left heel caught on the edge of the block was that she had not raised her left heel quite high enough. It seems quite clear that the accident was due solely to the manner in which she stepped with her left foot upon the brick. Plaintiff, alone, controlled the simple matter of lifting her ■ left heel high enough to clear the edge of the brick. In a few words she stated the sole reason for the accident. If plaintiff, when she boarded the street car, had raised her right foot to the step of the car and then raised her left foot in* such a manner that her heel caught on the edge of the step and threw her, could it be reasonably argued that her fall was due to any other cause than her own negligence 1 Mrs. Decker did not testify. In the light of the testimony of plaintiff, we are forced to the conclusion that at the time and place of the accident she was guilty of contributory negligence as a matter of law.

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

Judgment reversed.

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


author: Mr. Presiding Justice Huffman

text:
    In re Estate of Annie F. Velie, Incompetent. Francis J. Coyle, Appellee, v. Moline National Bank and Marjorie Velie Heard, Conservators of Estate of Annie F. Velie, Incompetent, Appellants.
    Gen. No. 9,828.

      Dove, J., dissents.
    Opinion filed April 28, 1943.
    Kenworthy, Harper, Sollo & Graham, of Moline, for appellants; 8. R. Kenworthy and R. G. Graham, both of Moline, of counsel.
    Francis J. Coyle, pro se; Bell, FarRar & Scott, of Rock Island, for appellee; Benjamin S. Bell and Earl L. Scott,' both of Rock Island, of counsel.
   Mr. Presiding Justice Huffman

delivered the opinion of the court.

This is an appeal from an order of the trial court granting a motion for new trial. Ajppellee was plaintiff below. The jury returned a verdict for defendants. The court granted plaintiff’s motion for new trial, and defendants prosecute this appeal.

The trial court filed written remarks giving his reasons for granting the motion. They clearly indicate he was dissatisfied with the evidence, and that this was the reason he granted the motion for new trial.

At common law, a motion for new trial was addressed to the sound discretion of the trial court, and its discretion on such motion was not the subject of review. However, many States by statute, permit an appeal from an order granting a new trial. Such provision was incorporated in the present Civil Practice Act of this State. Some jurisdictions permit review of such order only where a question of law is involved, and not where the action of the court rests solely upon questions of fact.

Such motions have long been common to the practice. ■ Their origin is of such extremely ancient date, that it has been referred to as being “concealed in the night of time.” It is generally considered that the matter of new trials addresses itself to the sound discretion of the trial court, and where no positive rule of law forbids, a court of general jurisdiction is possessed of an inherent power to grant a new trial where in its opinion, justice requires. In this connection, it is to be remembered that the trial court has a tremendous advantage in its opportunity to observe witnesses as well as the general conduct of a trial, and this is particularly true with respect to cases to be determined upon questions of fact.

It has been said: “Notwithstanding the provision of the recently enacted Civil Practice Act authorizing an appeal from an order granting a new trial, the trial courts are, generally speaking, clothed with a discretion, as at common law, to be exercised in such manner as will best answer the ends of justice when granting motions for a new trial.” Adamsen v. Magnelia, 280 Ill. App. 418, 422; Randall v. Randall, 281 Ill. App. 169, 174; Barthelman v. Braun, 278 Ill. App. 384, 388. It has also been said that such motions are addressed to the sound judgment of the trial court, and that its action thereon will not be reversed except in case of a clear abuse of such discretion, which must affirmatively appear. Couch v. Southern Ry. Co., 294 Ill. App. 490, 492; Josate v. Mack, 302 Ill. App. 246, 248; Ledferd v. Reardon, 303 Ill. App. 300, 307; Adamsen v. Magnelia, supra, at p. 422.

A discussion of the evidence in this opinion is not deemed pertinent as the case is to be retried.

The order of the trial court granting motion for new trig! is affirmed.

Order affirmed.

Dove, J., dissents.


author: Mr. Justice Dove

text:
    Peter Ancateau for use of Trust Company of Chicago as Administrator of Estate of Albert Goodman, Deceased, Appellee, v. Commercial Casualty Insurance Company, Appellant.
    Gen. No. 9,869.

      Opinion filed April 28, 1943.
    Samuel Levin and Stanley Watson, both of Chicago, and Edgar J. Elliott, of Wheaton, for appellant; E. R. Shaw, of counsel.
    Martin & Schwartz, of Chicago, for appellee.
   Mr. Justice Dove

delivered the opinion of the court.

At the October 1942 term of this court, we affirmed a judgment of the circuit court of Du Page county for $7,500 against Peter Ancatean in favor of the Trust Company of Chicago as administrator of the estate of Albert Goodman, deceased, on account of the death of the plaintiff’s intestate, resulting from an automobile accident in which three persons riding on the rear seat of the automobile driven by Peter Aneateau were killed. The facts appear in the opinion in that case. Trust Co. of Chicago v. Ancateau, 317 Ill. App. 186.

The judgment mentioned was entered by the circuit court at its January 1942 term. Later, in the same term of that court, appellee in the instant case, instituted a garnishment proceeding against appellant, based on the judgment, to reach the proceeds of an antoinobile accident insurance policy issued by appellant to Theodore Aneateau, the father of Peter Aneateau, on the theory that the policy covers'the liability of the latter as being included in the policy definition of. the word, “Insured.” The policy covers liability of $5,000 for bodily injury to each person, with a limit of $10,000 liability for each accident.

Appellant filed a motion in the trial court to strike the complaint, on the ground that the suit was premature, because an appeal in the original suit was pending, and that pending the disposition thereof the court could not determine whether Peter Aneateau was indebted to the beneficial plaintiff, or the amount of such indebtedness, if any. Appellant also answered the interrogatories and additional interrogatories filed by appellee, who thereupon filed a motion for judgment. Without hearing any testimony, the court denied appellant’s motion to strike, and on October 1, 1942, while the appeal in the original suit was still pending in this court, entered a judgment in favor of appellee against appellant for $5,259.50, which includes $5,000 principal, $242.70 interest, and $16.80 costs incurred by the plaintiff in the original action. The cause is here on the garnishee’s appeal.

The grounds urged for reversal are that the garnishment proceeding was premature, for the same reasons urged in the trial court; and that the court erred in not finding that certain facts, showing violations of the policy provisions, and set out in the answers to the interrogatories, are a complete defense. Such alleged facts, as set out in the answers, are: That at the time of the accident the automobile was not being used “with the permission of the named insured”; that it was being operated by Peter Aneateau to carry persons for a charge; and that Theodore Aneateau in procuring the policy, fraudulently represented himself to be the owner of the automobile, when in truth and in fact, he was not such owner. Appellant also claims that no reply to the answers was filed, and that on that account, the answers must be taken as true.

Appellee contends that the garnishment proceeding was not premature, because, for want of a bond on the appeal in the original suit, the appeal did not operate as a supersedeas, as provided by section 82 of the Civil Practice Act (111. Eev. Stat. 1941, ch. 110, par. 206 [Jones 111. Stats. Ann. 104.082]); that appellant waived its defenses under the policy by defending the original suit; that by participating in the hearing without a reply to the answers being filed, appellant waived a reply; that appellant is in no position to urge that the answers must be taken as true for want of a reply, because the point was not raised in the trial court; and that appellee’s motion for an order to set the cause for a contested hearing was a sufficient traverse of the answer.

The claim that appellant waived its defenses under the policy by defending the original suit cannot be upheld. The record shows that in one of the other suits against Peter and Theodore Aneateau on account of the same accident, appellant notified each of them that because of similar alleged misrepresentations and vio“lations of the policy provisions, the defense would be undertaken with the distinct understanding that the company did not intend to waive any right it might have under the policy because of any breach of the conditions thereof, or misrepresentations as to its coverage. Prior to the trial in the original suit in the case at bar, separate non-waiver agreements were executed between appellant and Theodore Ancateau and between appellant and Peter Ancatea,u, and later a similar agreement was executed between- appellant and Theodore and Peter Ancateau jointly. Peter Ancateau was a minor, which fact is relied upon by appellee as showing the non-waiver notices and agreements were ineffective. The validity of' the non-waiver agreement, as such, is of no consequence% The notices in the other suit and the non-waiver agreements show the intention of appellant to reserve all its rights under the policy. This was all that was necessary. The consent of the defendants need not be expressed, but may be inferred from their acquiescence. (Associated Indemnity Corp. v. Wachsmith, 2 Wash. (2d) 679, 99 P. (2d) 420, 127 A. L. R. 531, 540, 29 Am. Jur. Insurance, 673; see also Annotations in 76 A. L. R. 169 and 81 A. L. R. 1382, et seq.)

Besponsive to an order of the trial court, upon the motion of appellee, copies of statements of Peter Ancateau and Theodore Ancateau, allegedly made shortly after the accident, were attached to the answers to the interrogatories. These documents, in some degree, tend to corroborate appellant’s claims as to violations of the policy provisions and the ownership of the automobile. As to their ultimate probative force, on a hearing of the testimony in the case, we express no opinion.

Section 7 of the Garnishment Act (111. Bev. Stat. 1941, ch. 62, par. 7 [Jones 111. Stats. Ann. 109.290]) provides:

“When the plaintiff in any garnishee proceeding shall allege that any garnishee . . . hath not truly discovered the . . . moneys ... in his possession, custody, or charge, or from him due and owing to the defendant at the time of the service of the writ, or at any time after, or which shall or may thereafter become due, the. court . . . shall immediately . . . proceed to try such cause, as against such garnishee, without the formality of pleading. The trial shall be conducted,as in other civil cases,” etc. Ordinarily, where -the answers of a garnishee are not traversed, they are taken as true, and on an appeal by the garnishee the only question will be whether the plaintiff is entitled to judgment on the facts disclosed by the answer. (Wabash R. Co. v. Dougan, 142 Ill. 248.) This follows the general rule of pleading. Another well established rule of procedure is that when both parties treat the issue as properly made, the want of a reply is waived. (Imperial Fire Ins. Co. v. Shimer, 96 Ill. 580; Butts v. County of Peoria, 226 Ill. 270.)

. In the case at bar, after appellant answered the first set of interrogatories, and in response to the answers denying possession of any rights, credits or effects due and owing Peter Aneateau, or in which he was interested, and denying .the existence of any policy of insurance “issued to Theodore Aneateau and/or Peter Aneateau,” appellee filed a petition alleging there was a policy issued by appellant insuring Theodore Ancateau and Peter Aneateau, and asking for an order setting the case “for a contested hearing.” It does not appear that appellant claimed in the trial court that no reply had been filed, but treated the issues as joined. We are of the opinion that there was a traverse of the answers which sufficiently meets the requirements of section 7 of the Garnishment Act. (Pink v. Chinskey, 303 Ill. App. 55.) However, a traverse of the answers did not relieve appellee from proving what the garnishee declined to admit. (Manowsky v. Conroy, 33 Ill. App. 141, 143.) The burden of disproving a garnishee’s answer denying all indebtedness at the date of the service of the writ rests upon the plaintiff. (Rippen v. Shoen, 92 Ill. 229; Payne v. Chicago, R. I. & P. Ry. Co., 170 Ill. 607, 609.) From this it follows that the cause should have been tried, not upon appellee’s motion for judgment, but upon a hearing of testimony, either by the court or by a jury, and the court erred in entering judgment without such proof. (Cairo & St. Louis R. Co. v. Killenberg, 92 Ill. 142.) To the same effect is Pink v. Chinskey, supra.

Whether the garnishment was premature, on account of the pendency of the appeal in the original • suit, presents a question seemingly of first impression in this State. The policy in controversy provides: “No action shall lie against the Company unless, as a condition precedent thereto, . . . the amount of the Insured’s obligation to pay shall have been finally determined either by judgment against the Insured after actual trial or by written agreement of the Insured, the claimant, and the Company.” The decisions in other jurisdictions are not in harmony, probably due, in part, to different statutory and policy provisions. For instance, in Materazzi v. Commercial Casualty Ins. Co., 157 Misc. 365, 283 N. Y. S. 942, relied upon by appellee, where it was held that the pend-ency of an appeal from a judgment. in the original suit did not preclude the maintenance of garnishment on the judgment, the policy contained a provision that no action should lie against the company unless brought by the assured for a loss or expense actually sustained and paid in money by him “after actual trial of the issue. ’ ’ The language used in that policy is so different from that of the policy in this case, that the decision is of no assistance here, unless, when we consider that the garnishee in that case is the garnishee in the case at bar, it may be said that the language of the policy here in controversy indicates that the change in language was probably made- to obviate the effect of the holding in the Materazzi case.

In Pape v. Red Cab Mut. Casualty Co., 128 Misc. 456, 219 N. Y. S. 135, also relied upon by appellee, the policy contained a provision that “no action shall be maintained against the corporation under this policy unless brought after the amount of the loss shall have been fixed either by a final determination of the litigation after trial of the issue or by agreement,” etc. The court said in that case: “The express language of the clause in the policy would seem to indicate that it was not intended to fix the insurer’s liability upon the determination of the litigation beyond all possibilities of appeal.” That decision lends some support to the claim of appellee.

It has been held, however, by the courts of California, Texas and South Carolina that garnishment is premature during the pendency of an appeal in the original action. (Arp v. Blake, 63 Cal. App. 362, 218 Pac. 773; Department of Water & Power of City of Los Angeles v. Inyo Chemical Co. (Cal.), 100 P. (2d) 872; Pacific Gas & Electric Co. v. Nakano, 12 Cal. (2d) 711, 87 P. (2d) 700, 121 A. L. R. 417; Waples-Platter Grocery Co. v. Texas & P. Ry. Co., 95 Tex. 486, 68 S. W. 265, 59 L. R. A. 353; Kreisle v. Campbell (Tex.), 32 S. W. 581; Miller v. Newell, 20 S. C. 123, 47 Am. Rep. 833.) The same doctrine is laid down in 28 C. J. (Garnishment), p. 138, sec. 175, and in 4 Am. Jur. 686, sec. 206 where it is said that a claim in a tort action cannot be garnished even after judgment pending an appeal. In Pacific Gas & Electric Co. v. Nakano, supra the court said: “the weight of authority supports the rule that pending an appeal from a judgment rendered in a tort action, the debt represented by said judgment is not subject to garnishment.” The opinion cites 4 Am. Jur. sec. 206 supra, and several of the cases above mentioned. It adopts the holding in Arp. v. Blake, supra, “that the garnishment having been served pending an appeal from the judgment was of no validity, that the effect of that appeal was to deprive the judgment of its finality, and to keep alive the case as one of tort as it existed before the judgment was rendered.” • The annotation following the Nakano case in 121 A. L. R. 420, adopts those holdings as the general rule. The Nahano case also holds that pending such an appeal the judgment is not assignable.

By section 74 of the Civil Practice Act (Ill. Rev. Stat. 1941, ch. 110, par. 198 [Jones Ill. Stats. Ann. 104.074]), an appeal from a judgment of a nisi prius court constitutes a continuation of the proceeding in the court below. Appellant’s obligation under the policy is that of an insurer, and extends no farther than that relation. Garnishment process is remedial in nature designed to reach property belonging to the judgment debtor after ordinary execution has failed, and is not a separate suit, but is an additional or ancillary step in the original action for judgment. (Zimek v. Illinois Nat. Casualty Co., 370 Ill. 572; First Nat. Bank of Palatine v. Hahnemann, Institutions of Chicago, Inc., 356 Ill. 366.) It is elementary that in a garnishment proceeding the plaintiff cannot recover against the garnishee unless the judgment debtor could do so. (Schneider v. Autoist Mut. Ins. Co., 346 Ill. 137.)

While section 82 of the Civil Practice Act provides that an appeal to the Appellate or Supreme Court shall operate as a supersedeas only if and when the appellant, after notice duly served, shall give and file a bond in a reasonable amount, to secure the adverse party, section 76 of the same act [Jones Ill. Stats. Aim. 104.076] provides that the reversal or modification of an order, judgment, decree or other determination shall not affect the right, title or interest in or to any real or personal property of any person, not a party to such action, acquired after the entry of such order, judgment, decree or other determination, but before such appeal operates as a supersedeas under the provisions of the act, nor affect his rights under a certificate of sale issued before such an appeal operates as a supersedeas,- pursuant to a sale based on such order, decree, judgment or other determination. Section 32a of the Judgments Act (Ill. Rev. Stat. 1941, ch. 77, par. 35a [Jones Ill. Stats. Ann. 107.185]) contains similar provisions. These provisions are manifestly for the protection of persons not parties to the suit, where 1 no supersedeas has been issued. It is evident that when a judgment is in process of an appeal it is not final, even though third persons, not parties to the action, are protected thereby in rights they may acquire under it in the absence of a supersedeas. The protection is afforded such third persons only because of the fact that the judgment is not final, for if it were final, there would be no occasion for the protection. It is not conceivable that the legislature meant to protect third parties in rights acquired while no supersedeas was in operation, and at the same time subject them to an assault upon their existing rights during the same period.

Although under section 82, in the absence of a supersedeas, the administrator of the estate of Albert Goodman, deceased, could have had an execution on his judgment against Peter Aneateau while the appeal in the original suit was pending, it does not follow that during the same period Peter Aneateau could have maintained an action against appellant under the insurance policy because of the nonexistence of a supersedeas. We know of no rule of law which holds that the rights of a person not a party to a suit are to be measured by the same yard-stick during the pendency of an appeal as the rights of the litigants against, each other. Under our conception of the scope of section 32a of the Judgments Act, and sections 76 and 82 of the Civil Practice Act, relating to supersedeas, as protecting existing as well as acquired rights of a third person not a party to the original suit, during the pend-ency of an appeal therein, we do not think it can be said that Peter Ancateau could have maintained a suit against appellant under the policy during the pendency of the appeal, and nó authority is cited which holds that he could do so. If he could not do so, then, under the Schneider case, supra, appellee could not maintain the action in the case at bar while the appeal was pending. It is plain that when the provisions of section 32a of the Judgments Act and section 76 of the Civil Practice Act are construed with those of section 82 of the latter act, as must be-done, the provisions as to supersedeas were intended as a shield for and not as a sword against persons not a party to the suit. To hold otherwise would be to abrogate the rule laid down in the Schneider case.

Section 388 of the Insurance Code (Ill. Rev. Stat. 1941, ch. 73, par. 1000 [Jones Ill. Stats. Ann. 66.1063]), relied upon by appellee, requiring a provision in casualty insurance policies pertaining to insolvency or bankruptcy of the insured, has no application here. Neither has the holding in Treolo v. Iroquois Auto Ins. Underwriters, 348 Ill. 93, laying down the elementary principle that a policy of insurance is to be construed liberally in favor of the insured and strictly against the insurer. The language of the policy in this case is clear and unmistakable. The final determination of the insured’s liability by a judgment against him after actual trial, is a condition precedent to maintaining the action. Inasmuch as under the majority rule there can be no final determination of such liability during the pendency of an appeal in the original action, the garnishment proceeding was premature". The judgment of the circuit court is reversed.

Judgment reversed.