author: Mr. Justice Scanlan

text:
    C. E. Hellberg et al., Appellants, v. Gustave P. Warner et al., Appellees.
    Gen. No. 42,486.
    Opinion filed March 2, 1943.
    Rehearing denied June 4, 1943.

      John C. DeWolfe, of Chicago, for appellants.
    Louis A. Rosenthal, of Chicago, for appellees.
   Mr. Justice Scanlan

delivered the opinion of the court.

This is an interlocutory appeal by plaintiffs from an order entered staying all proceedings in the above cause during the military service of Franz L. Warner, and until sixty days thereafter under the provisions of the Soldiers’ and Sailors’ Civil Relief Act of 1940. Plaintiffs (respondents) appeal.

Defendants filed the following verified petition in the aforesaid cause:

“The Petitioner, Gustave P. Warner, as the duly authorized agent of Franz L. Warner and for and on his behalf, and on behalf of Patrick L. Warner and himself, as Defendants, represents . . . :

“1. That this action for $10,000.00 is based on a claim of purported super-added liability of Mrs. Hildur Lindstrand Warner as holder and owner of one hundred shares of stock in the Union Bank of. Chicago, a defunct bank, and the fact that the Defendants were the devisees'of certain property of said Mrs. Warner.

“2. That in June, 1932, a complaint was filed in the Superior Court of Cook County to enforce stockholders’ liability against the stockholders, of the Union Bank of Chicago, amongst whom was Mrs. Warner, holder of one hundred shares. Mrs. Warner died in 1936, while said cause was pending. In November, 1936, the estate of said Mrs. Warner was opened [in the Probate court], an inventory filed and approved, listing the said one hundred shares she held at no value, and listing as assets mainly real estate. The Defendants were devisees under the will of Mrs. Warner of her said estate, which was closed in November, 1940. No claim was filed by the creditors of the Union Bank of Chicago or the Plaintiffs in this action in said estate, though proper publication for claims was duly made by the administrator. In June, 1940, a decree was entered in the stockholders’ liability suit and said decree included Mrs. Warner. In March, 1941, the said stockholders’ liability decree was amended, striking Mrs. Warner’s name out of the decree and joining the Defendants herein in that action .... In July, 1941, Defendants herein were dismissed from said action . . . without prejudice. The present action was filed July, 1941.

“3. That the action in the above entitled cause is for $10,000.00 and based on the claim of purported super-added liability of Mrs. Warner for holding one hundred shares of stock in the Union Bank of Chicago, a defunct bank, and the fact that the Defendants, including Franz L. Warner, were devisees of certain property of the deceased; that the present action is based upon certain sections of the Statute of Frauds in conjunction with the claim of super-added liability of Mrs. Warner..

“4. That the above cause was referred to a Master in Chancery; that a number of hearings have been had before said Master . . . but have not been concluded.

“5. That Franz L. Warner has been inducted into the armed services of the United States of America and he is presently a person in military service in the Navy of the United States of America.

“6. That the object of the Plaintiffs in this cause is to secure a personal decree against the Defendants, including Franz L. Warner, for $10,000.00 and to reach by levy or otherwise certain real estate and the rents, issues, and profits thereof, devised to the Defendants under the last will and testament of said Mrs. Warner.

“7. That the conduct of the defense by the Defendants, and especially the Defendant Franz L. Warner, will be and is materially affected by reason of his said induction into military service for the reasons that he will be and is unable to appear and testify in this cause in connection with an accounting for rents, issues and profits of the said properties, and to show that he has changed his position together Avith the other Defendants by incurring obligations in connection with said property inherited; • that one of the defenses to the Complaint herein is a denial of profits out of rents since the Defendants have operated the properties which have descended to them as aforesaid, and another defense is one of laches by reason of failure by the Plaintiffs or the creditors of the Union Bank of Chicago to file suit in apt time, as a result of Avhich Defendants have changed their position by virtue of making themselves personally liable on mortgages of the property and in other ways.”

Petitioner prays in behalf of said Franz L. Warner and all the defendants that pursuant to the provisions of the Soldiers’ and Sailors’ Civil Relief Act of 1940, the above action be stayed during the period of the military service of Franz L. Warner and until sixty days thereafter; and that the plaintiffs be enjoined and restrained from proceeding in any way in the above entitled cause until further order of the court.

Respondents filed a verified answer to the petition, in Avhich they admit the nature of the action against the petitioners, the death of the ancestor, the provisions of the will of the deceased, and that the personal property of the deceased was insufficient to pay her debts; that the deceased left íavo parcels of real estate that came into defendants’ possession on her death; that respondents’ claim is based upon section 10 of the Frauds and Perjury Act; that the will of the deceased Avas fraudulent and void as to plaintiffs ’ demands and that the personal estate being insufficient to pay her debts defendants, as her legatees, are liable under section 12 of the Act to the full amount of the parcels of real estate and for rents and profits on the same; that respondents believe that petitioners have purposely delayed and hindered the proceedings before the master until petitioner Franz L. Warner was actually inducted into the military service in order that they might have an excuse for a continuance; that petitioners might easily have presented their evidence before the master many months before the filing of the petition; that the conduct of the defense would not be materially affected by the induction of Franz L. Warner into military service; that respondents offered to stipulate that if he were to appear before the master he would testify to any material facts that he would state in an affidavit; that the interest of Franz L. Warner will be fully protected by the attorney and the other two petitioners and that the cause should not be delayed as to Franz L. Warner because of his induction into military service; that the case should not be delayed as to Gustave P. Warner and Patrick L. Warner, who are not in military service.

Petitioners filed a verified reply to the answer, in which they deny that they have been guilty of dilatory tactics in the hearing before the master and state “that Franz L. Warner, the defendant who is now in military service, prepared the accounting of rents and profits of the buildings herein involved, has personal knowledge of many of the items in dispute, and is qualified to testify thereto, and would have adduced testimony thereto had he not been called into the military service”; further state that the action of plaintiffs against defendants under the law is a joint action and not joint and several; that plaintiffs cannot be harmed by any stay of proceedings because the action is lis pendens as to the real estate involved and defendants could not sell the same except subject to the purported claims of plaintiffs.

In passing upon the motion to stay proceedings the trial judge heard evidence and the arguments of counsel before entering the stay order.

The following facts are undisputed: On June 27, 1932, a stockholders’ liability suit was filed in the Superior court of Cook county. Hildur Lindstrand Warner was made a defendant and filed her answer to the complaint. While the case was pending before a master in chancery she died, on November 10, 1936. Her estate was probated in the Probate court of Cook county and letters testamentary were issued to Gustave P. Warner, her husband, on November 16, 1936. The estate consisted of personal property of the value of $766.70 and three parcels of real estate. Mrs. Warner left her surviving her husband and Patrick L. Warner and Franz L. Warner, her sons. The will provided that after the payment of debts, her estate was to be divided equally between her husband and the two sons. The plaintiffs in the stockholders’ liability suit did not file a claim against the estate of Mrs. Warner “though proper publication for claims was duly made by the administrator.” After the death of Mrs. Warner the master filed a report in the Superior court proceeding recommending a decree against her for $10,000, and on June 28, 1940, a decree was entered against her and others. Subsequently the decree as to her was vacated, the plaintiffs claiming that they were not aware at the time the decree was entered that Mrs. Warner was dead. The three defendants in the instant cause were then made parties to the stockholders’ liability suit, hut in July, 1941, the suit was dismissed as to them. On July 23, 1941, the instant complaint was filed and “Gustave P. Warner, Franz L. Warner, and Patrick L. Warner, as heirs at law of Hildur Lindstrand Warner, deceased, and as legatees under her last will and testament,” were made parties defendant. When the order appealed from was entered litigation to enforce alleged stockholder’s liability of Mrs. Warner had been pending in the courts of Cook county against Mrs. Warner or her heirs at law for over ten years.

Section 100 of the Soldiers’ and Sailors’ Civil Belief Act of 1940 provides as follows:

“In order to provide for, strengthen, and expedite the national defense under the emergent conditions which are threatening the peace and security of the United States and to enable the United States the more successfully to fulfill the requirements of the national defense, provision is hereby made to suspend enforcement of civil liabilities, in certain cases, of persons in the military service of the United States in order to enable such persons to devote their entire energy to the defense needs of the Nation, and to this end the following provisions are made for the temporary suspension of legal proceedings and transactions which may prejudice the civil rights of persons in such service during the period herein specified over which this Act remains in force.”

Section 201 of that Act provides as follows:

“At any stage thereof any action or proceeding in any court in which a person in military service is involved, either as plaintiff or defendant, during the period of such service or within sixty days thereafter may, in the discretion of the court in which it is pending, on its own motion, and shall, on application to it by such person or some person on his behalf, be stayed as provided in this Act, unless, in the opinion of the court, the ability of plaintiff to prosecute the action or the defendant to conduct his defense is not materially affected by reason of his military service.”

The Soldiers’ and Sailors’ Civil Belief Act of 1940 is substantially a reenactment of the 1918 Act of the same name, and if it were necessary many cases might be cited wherein the rule is announced that such Acts must be liberally construed in favor of the rights of men engaged in military service, but respondents concede, as they must, that such is the rule.

Respondents contend that “The order staying the proceedings in the case as to defendant, Franz L, Warner, was an abuse of judicial discretion”; that “it is not to be denied that the Act as a whole, should be liberally construed in favor of the person in military service, as stated in Clark v. Mechanics American National Bank, 282 Fed. 589, but on the other hand, the granting of relief under the Act is not mandatory, and the courts may deny relief in cases where the rights of litigants not in service may be so unduly prejudiced, as in the instant case, as to outweigh the-benefits which might accrue in favor of one in service.” Both parties state that there are no Illinois decisions that pass upon the Act.

The opinion in the recent case of Bowsman v. Peterson, 45 F. Supp. 741, wherein the defendant sought a stay of proceedings under the Act of 1940, is instructive. To quote from it (pp. 742, 743, 744) :

“Counsel for the parties have submitted the issue to the court by oral argument. Without neglecting the possibility that recourse to the indulgence of the act may be available, and actually had, in many instances where the legitimate protection of the person in the country’s service is more apparent than real, the court is convinced that the stay must be allowed; and the motion is, therefore, being sustained.

Í 6

“In this instance, the inevitability of absence must be affirmed upon the premise of the national emergency, irrespective of the basis of the defendant’s induction into the military service. The necessity of the presence of a party at the trial of a civil action for damages against him is admittedly not absolute, but it is at least reasonable. Within due limitations, he ought to be allowed to testify personally before the jury rather than through the notoriously indifferent medium of deposition. He should be allowed to scrutinize the jury list, to confront the jury as it is empanelled to observe the responses of its members on the voir dire examination, to make suggestions and have them and his preferences and his possible relation to the jurymen considered, in the very important step of peremptory challenges. He should, if reason-: ably possible, have the opportunity to be personally before the court and the jury during the entire progress of his trial, manifesting his interest in its event and allowing those charged with the burden of decision to observe him, either for his advantage or to his possible detriment. The good faith of the present application is not seriously in question. As to the defendant’s probable attendance upon trial ‘at some reasonable future time,’ the court, in the current circumstances, will abstain from clairvoyance; but will give the applicant the full benefit of any uncertainty upon the point.

“So, even in the absence of a controlling statute, the court would be disposed to grant some indefinite and discretionarily terminable continuance upon the defendant’s request. Both upon considerations of general judicial discretion and on the basis of precedent such indulgence may be supported.

“But here the statute seems to be imperatively controlling both as to the necessity for the stay, 50 H. S. C. A. Appendix Sec. 521, and for practical purposes, as to its duration, 50 U. S. C. A. Appendix Sec. 524.

“By Sec. 524, it is provided that ‘Any stay of any action . . . ordered by any court under the provisions of this Act may, except as otherwise provided, be ordered for the period of military service and three months thereafter or any part of such period . . . ’. It is true that the language is permissive. But it is likewise obvious that it reflects an instructive legislative policy to place the person engaged in the military establishment beyond the effect of the urgencies and uncertainties of pending litigation, and to allow him a reasonable period following his discharge to reorient himself with a view to the trial of his cause. So, if a continuance is in order, there would seem to be a rather clear congressional intimation that in the ordinary case it should be granted in general terms for the duration of the applicant’s service and three months thereafter.’ It is presently impracticable to attempt to limit stays, except in extraordinary cases, to ‘any part of such period.’

“Section 521 deals with the conditions under which a stay of proceedings will be allowed. It provides that: [Here follows section 521.]

“In this case the defendant has applied for a stay of proceedings. He has, therefore, removed the question of allowing a stay from the field of the court’s discretion (if, indeed, it be considered that, circumstances suggesting a stay being available, there is ever any real discretion to deny a stay) and made the allowance of a stay mandatory, ‘unless, in the opinion of the court, the ability of . . . the defendant to conduct his defense is not materially affected by reason of his military service.’ That language of the Act appears to the court to impose upon the party resisting the application for stay the burden of satisfying the court of the absence of material impairment by military service of the defendant’s ability to defend himself.

“No attempt has been made here towards such a showing; and the court can not readily comprehend how such attempt could ordinarily be successful, or the showing made in furtherance thereof persuasive.

“The Soldiers and Sailors Civil Relief Act of 1940 (in like manner with all similar previous acts in our history) was prompted by at least two considerations, first, the maintenance in the armed forces of a reasonable measure of that unbothered serenity and security in respect of personal responsibilities which effectively promotes military efficiency and the national defense ; and secondly, the assurance that in the field of individual justice no advantage in judicial proceedings by or against a soldier or sailor will result from his absorption in his country’s defense.

‘ ‘ The soldier or sailor in seasons of war has neither time nor mental aptitude for litigation. Without unnecessary discussion, it may simply be stated that while the Act recognizes that in some instances ‘the ability of . . . the defendant to conduct his defense is not materially affected by reason of his military service,’ such instances will be relatively rare. And the court is not made aware of any circumstances upon which it may be concluded that this is one of them.

“There is nothing novel either in the legislation which the defendant now invokes, or in the policy of judicial and social indulgence towards the absent soldier. Only presumption would impel a judge, in a memorandum of this character, to assemble from legal and general literature the abundant examples of the latter grace. And as to the former, it will be sufficient merely to mention the numerous statutes enacted during the Civil War upon the point (vide: 13 C. J. 143, Title, Continuances Sec. 42(2), Note 68 and cases cited; 17 C. J. S., Continuances, Sec. 30) and the more recent Soldiers and Sailors Civil Belief Act of 1918, 50 U. S. C. A. Appendix Sec. 101, et seq., especially Secs. 112 and 115.

“It may be granted that a continuance will probably operate at least temporarily and perhaps permanently to the disadvantage of the plaintiff. That result is unfortunate. But it is a reasonable exaction by society from one of its members for its own preservation; a proper imposition by the state upon an individual citizen in the course of its discharge of its constitutional obligation to ‘provide for the common Defence.’ ”

In Korsch v. Lambing, 28 N. Y. S. (2d) 167, the defendant, in military service, sought to stay the proceedings under the Act. In passing upon his motion the court said (pp. 167, 168):

“This motion is granted. The defendant is a necessary witness to the defense of this action. Since he is presently in military service and is stationed at Chanute Field, Ill., it seems unlikely that he can properly defend this action at this time. Under the provisions of ‘The Soldiers & Sailors Civil Relief Act of 1940,’ 50 U. S. C. A. Appendix Sec. 501 et seq., this court will exercise its discretion in favor of the defendant and stay all proceedings until three months after the defendant’s termination of military service or until such time .as his military service does not materially affect the defense of this action, at which time the plaintiff may apply to this court to vacate the stay and to proceed.”

In Clark v. Mechanics’ American Nat. Bank, 282 F. 589, the court held that where a party claiming a mechanic’s lien under Crawford & Moses’ Dig. Ark. Secs. 8555, 8556, requiring that suit be brought on the claim, or that the claim be filed by order of the court, with the receiver of the railroad, within one yéar after the claim accrued, had been in military service, under Soldiers’ and Sailors’ Civil Relief Act, Secs. 100, 205 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, Secs. 3078-%a, SOIS-^e), the period .of such service must be excluded in computing time for the bringing of the suit.

In Hoffman v. Charlestown Five Cts. Sav. Bank, 231 Mass. 324, an officer in the military service of the United States outside of the Commonwealth brought a bill to obtain relief from the foreclosure of a mortgage made in violation of the Soldiers’ and Sailors’ Civil Belief Act of 1918. It was contended by the defendant that the father of the soldier was the latter’s agent in care of the property in question and had full knowledge of the foreclosure sale and not only acquiesced in the foreclosure sale, but, in fact, approved of it, but the Massachusetts Supreme Court held (p. 329) that “The protection given by the act is given to the person in the military service of the United States. The right given to him is personal to him. For that reason the knowledge, acquiescence and approval of the plaintiff’s agent for the care of the property is of no consequence.” See, also, Vaughn v. Charpiot, 213 S. W. (Tex. Civ. App.) 950.

It is true that a trial court in refusing to stay the proceeding does not abuse its discretion, under the Act, if the circumstances justify the refusal. Fennell v. Frisch’s Admr., 192 Ky. 535, is a case in point. There Fennell, the defendant in a personal injury suit, was a captain in the ordnance department of the government and at the time of the trial was located at Cincinnati, Ohio. His official duties were such as to permit him to spend a portion of his time at his home in Newport, Kentucky, which is just across the Ohio river from Cincinnati. In private life he was a contractor for heating and ventilating equipment and at the time of the accident was on his way to his Newport office. When the case was called for trial he moved for a continuance on the ground that he was engaged in the military service of the government and that under the Soldiers’ and Sailors’ Civil Belief Act of 1918 he was entitled to the continuance. The trial court refused the continuance and upon appeal he raised the point that the court erred in refusing him the continuance. In passing upon the point the Supreme Court of Kentucky stated (p. 538):

“It was the evident purpose of Congress to make it discretionary with the trial judge whether, under the facts of a particular case, a stay of proceedings should be had. Unless, therefore, the lower court abused its discretion, no relief can be accorded defendant. Had defendant been away from home in the military or naval service, and because of this fact unable to assist in the preparation of his case or to consult with his counsel, or to be present in person at the trial we would have a case different from that presented by the present record and one the like of which called for the protection of a moratorium such as provided by Congress.

“The fact that defendant was a commissioned officer in the army did not of itself compel the court to grant a continuance of the case or to suspend proceed-" ings. We are cognizant of the fact the armistice had been signed more than a year at the time of trial. It does not appear that the purpose of the act, to-wit: the enabling of the United States to more successfully' prosecute and carry on the war, was violated or frustrated in any wise; nor that defendant was prevented from devoting his entire energy to the military needs of the nation; nor that the time he found necessary to give to the case interfered in any way with his oficial or military duties; nor is there any showing that defendant was hindered or prevented from giving to his, defense such attention and preparation as he and his counsel deemed necessary. The courts should and will protect persons engaged in the military service of the country from any loss or injury on account of their absence from the states, or their inability to properly attend to legal proceedings in which they are interested. But where, as in the instant case, the defendant resided in the county where the trial was had and probably continued to attend to his contracting business we are satisfied he was accorded full opportunity to prepare his case for trial without the least interruption to or interference with his military duties, and that the circuit judge was within his rights when he overruled the motion to postpone the trial.”

To refer, briefly, to cases cited by respondents in support of their contention:

Tulley v. Superior Court, 113 P. (2d) 477, involved a petition for a writ of prohibition. The sole question presented was whether a nonresident officer of the armed forces of the United States who was temporarily in the State of California on official business is exempt from process in a civil action. The petitioner did not claim that the Act of 1940 exempted him from process in a civil action, but he contended that as a matter of public policy, “members of the armed forces of the United States during the present emergency should not be subject to civil process in a state where they are not residents while they are temporarily within such state in the service of their country. ... that the courts of this state have no jurisdiction over such persons in a civil action.” (p. 478) While the court held against this contention and denied a peremptory writ of prohibition, it took occasion to state that under the Act of 1940 the trial courts possessed ample powers to protect the rights of those in the military service of the United States.

In Clarke v. Clarke, 25 N. Y. S. (2d) 64, the wife had been awarded alimony and the husband asked “that the" Soldiers’ and Sailors’ Civil Belief Act of 1940, 50 U. S. C. A. Appendix, Sec. 501 et seq., be invoked during the period of his military service and asks that the order of October 1, 1940, awarding alimony, be modified.” It will be noted that the soldier merely asked the court to modify the amount fixed in the alimony order. The court stated that there was insufficient data before the court to determine whether a modification of the order should be granted and decided that it would take proof as to the financial situation of the parties; that “such proof may be submitted either by affidavits or the court will take testimony thereon”; that “if defendant is away at camp, his testimony may be taken by deposition”; that “the court will then be in a position to pass on defendant’s application. In the interim the decision on the motion will be held in abeyance.”

Tolmas, Inc. v. Streiffer, 199 La. 26, involved an original proceeding in the Supreme Court of Louisiana for a writ of mandamus commanding a nisi prius judge to revoke his order staying relator’s proceedings to evict Streiffer from premises leased to him by relator. In that case the relator had instituted proceedings by rule to evict Streiffer from certain premises and the proceedings were stayed by the trial judge under the provisions of the Soldiers’ and Sailors’ Civil Belief Act. In his response to the rule issued by the Louisiana Supreme Court the respondent judge stated that he had granted the stay order for the sole reason that he was of the opinion that an ambiguity existed in the lease and that the advice and assistance of the soldier was essential to the establishment of the true intention of the parties to the lease before it could be determined whether or not the lease had expired by reason of the alleged breaches. The Supreme Court held that it was plain that there was no ambiguity in the lease and the stay order was therefore set aside and the cause was remanded for further proceedings.

None of the cases cited by respondents supports their contention'that there was an abuse of discretion by the trial judge in the instant proceeding.

Bespondents contend that defendants were guilty of dilatory tactics in the proceedings before the master and for that reason the soldier is not entitled to the benefit of the Act. No authority is cited in support of this contention. Petitioners assert that they are fully warranted in charging respondents with dilatory conduct; that proceedings have been pending in the nisi prius courts for over ten years; that Franz L. Warner is now a soldier in the United States army and unable to attend the hearings and that the real motive of respondents in fighting the stay order is to obtain an unfair advantage of the soldier. In reaching the conclusion that the instant contention is without merit we have noted, inter alia, that the petitioners (defendants) set up as a bar to the action alleged in the complaint the Statute of Limitations and laches.

Respondents contend that the trial court erred in staying the proceedings without imposing just terms upon defendants for the protection of plaintiffs; that section 524 of the Act provides that any stay of any action against the person in military service- shall be “subject to such terms as may be just, whether as to payments in installments of such amounts at such times as the court may fix or otherwise”; that the trial court in staying the proceedings should have appointed a receiver to collect the rents on the two buildings and enjoined defendants from selling or transferring their interest in the real estate. This contention is plainly an afterthought as the record fails to show that plaintiffs requested the court to impose any “terms” on defendants or that they asked the court to appoint a receiver.

Respondents contend that “the trial court was in error in denying the admission into evidence of Plaintiffs’ Exhibit 1.” Respondents’ counsel offered in evidence “a copy of the transcript of the proceedings before the Master, consisting of 172 pages,” but made no explanation to the court as to the purpose of the offer. Counsel for petitioners objected to the admission of the transcript and the court sustained the objection, and “thereupon the said copy of transcript” was marked as Respondents’ Exhibit 1. The exhibit is not contained in the transcript of the evidence and respondents’ counsel concede that it was not filed in the clerk’s office. From the statements of counsel we may assume that the transcript purported to give the testimony offered by plaintiffs before the master. In view of the absence of the exhibit from the record we are not in a position to pass upon the ruling of the trial court. But respondents contend that “the trial court arbitrarily refused to incorporate in the report of trial proceedings in this case the plaintiffs’ ‘refused exhibit’ that “in addition, the trial court refused to enter an order permitting the ‘refused exhibit’ to be filed in order that the clerk might incorporate it in the record on appeal,” and that this court should order that the transcript of proceedings before the master be brought before us so that we may pass upon its - admissibility. There is nothing in the record to justify the contention of counsel that the trial court arbitrarily refused to incorporate in the report of trial proceedings the “refused exhibit” or that he refused to enter an order permitting the “refused exhibit” to be filed with the clerk.

Respondents finally contend that the order staying all proceedings in the case as to defendants not in military service was erroneous. Section 204 of the Act provides, inter alia: “Where the person in military service is a codefendant with others the plaintiff may nevertheless by leave of court proceed against the others.” Respondents’ (plaintiffs’) action is based upon the theory that the heirs are liable for the debts of the ancestor. In Vanmeter v. Love, 33 Ill. 260, the court said (p. 261): “The decree in this case, instead of being several against the defendants should have been joint for the whole debt proved to be due the heirs of Vanmeter. The liability of Love’s heirs. for the debts of their ancestor, both in law and in equity, is to the extent of the full amount which came to them by descent. The decree should have been against them jointly for the whole amount, otherwise, if any one of the heirs be insolvent, the heirs of Van-meter would lose the amount decreed against such insolvent. Cogwell's Heirs v. Lyon, 3 J. J. Marshall, 39.” See, also, Cutright v. Stanford, 81 Ill. 240, 244; Union Trust Co. v. Shoemaker, 172 Ill. App. 365, 406, 407. Respondents cite in support of their contention White v. Kimerer, 200 Pac. 430. In that case plaintiffs sued the defendants to recover damages because of the death of their son. There the cause of action was joint and several. One of the defendants was in the armed service and the other defendants asked for a continuance of the cause under the Act of 1918 because of the absence of their codefendant, whereupon the plaintiffs dismissed the action with prejudice as against the defendant in the military service, and the court thereupon refused to continue the cause as to the other defendants. Upon appeal the Supreme Court of Oklahoma held that in the absence of proof of an abuse of discretion or a showing of prejudicial error the order of the court refusing to grant the continuance would be sustained. From an examination of the pleadings and the evidence in the instant case we think that the trial court might well have concluded that the soldier, in order to fully protect his interest in the property, should have the right to be present and take part in all of the proceedings. We feel that justice will best be served by sustaining the stay order in toto.

The interlocutory judgment order of the Superior court of Cook county entered August 18, 1942, is affirmed.

Interlocutory judgment order affirmed.

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


source: Caselaw Access Project

author: Mr. Justice Bristow

license: Public Domain

text:
    C. A. Prange, Appellant, and George A. Wallace, Plaintiff, v. City of Marion, Illinois, Appellee.

      Opinion filed March 2, 1943.
    Rehearing denied June 1, 1943.

      E. E. Denisoh, of Marion, for appellant.
    David A. Warford, of Marion, for appellee.
   Mr. Justice Bristow

delivered the opinion of the court.

Appellant, C. A. Frange and one George A. Wallace, who does not appeal, as plaintiffs, filed their complaint, in chancery, against the City of Marion, Illinois, for an accounting, and to recover several amounts claimed due appellant from said city. The claim is based upon nonpayment of special improvement bonds issued by said city, for a local improvement, called, “Sidewalk District No. 4.”

Appellant filed counts one and three which charge the same matter, except that count three is to recover on bonds under the seventh instalment of the improvement. Questions for consideration in this appeal are in regard to the charges of liability contained in allegations of paragraphs number 13a, 13b, 13c, 13d and 14a to 14f and 15a to 15f and 16a to 16e, hereafter referred to as paragraphs 13, 14, 15 and 16.

Paragraphs 13 allege that the city unlawfully, wrongfully and knowingly canceled and abated assessments against forty-seven private property owners, omitted same from the roll of the city collector and omitted all assessments levied against itself for public benefits which amounted to $900 per year against the city. _ The total amount so omitted against private property on instalments two to ten was $4,853.70,' of which $1,428.60 should have been paid on appellant’s bonds with interest.

Paragraphs 14 allege that the city collected assessments from private property owners and that the city negligently, improperly and wrongfully diverted same and used same for some other purpose and should be liable to appellant for such pro rata amounts due him under instalments five to ten with interest from the dates each instalment was due.

Paragraphs 15 allege that the city was a trustee for the benefit of bond owners and had the duty to use every reasonable effort and legal means to collect instalments; to pay into the fund assessments levied against it, but that it intentionally failed to pay assessments of $900 on each instalment two to ten against it and refused to pay interest at 6 per cent under the ordinance and statute whereby there was a deficiency; that the total amount assessed against the city which it had not paid into the instalment fund was $8,100 and that with interest at 6 per cent thereon under such instalments, the amount for which the city was indebted to appellant was $3,417.92.

Paragraphs 16 allege that assessments against private properties in the amount of $32,931.90 became delinquent from which the pro rata share of appellant’s bonds was $10,893.18; that such properties became delinquent and were forfeited to the State; that it was the duty of the city to perfect tax titles and tender same to the unpaid bondholders in lieu of unpaid assessments, and that the city negligently, wrongfully and unlawfully failed to perform its statutory duties as trustee, as alleged under said paragraphs 13, , 14, 15 and 16 whereby there was a deficit and appellant’s bonds were not paid.

Upon motion of the defendant, the trial court entered an order dismissing said paragraphs 13 and 16 and denied motion to strike said paragraphs 14 and 15.

Defendant filed answers denying averments in the complaint and then filed counterclaims to each count, alleging overpayment of interest made to appellant or former owners of his bonds and claimed same as a set off against the amounts due on appellant’s bonds. On motion of appellant, the counterclaims were stricken. Defendant then in same wording as used in the counterclaim, filed pleas of payment on the bonds by overpayment of interest. Motion to strike these special pleas of payment were made and overruled. The cause was referred to a special master to take proof and report his findings. He made his findings of fact and his report both as to the facts and also his conclusion of law. He reported as a matter of law there could be no recovery under said paragraphs 14 and 15, though proven, which the court by its ruling had directed him to consider as setting up legal grounds of.liability. Various exceptions and motions were made to the master’s report but were overruled, and later the cause coming up before another trial judge, a decree was entered approving the report of the master.

This decree, in substance, held that appellant plaintiff, could not recover from the defendant under said paragraphs 13 because of any rebating or canceling of assessments levied against private property; that no recovery lay under said paragraphs 16 because of failure of defendant city as trustee to perform its duty as trustee and collect assessments levied against private properties or obtain such tax titles against private properties and to tender such tax titles to the bondholders; that no recovery could be had under paragraphs 15 because of the city’s failure and refusal to pay the amount of public benefits assessed against itself, with interest. The decree held that the city was liable under paragraphs 14 for assessments collected by it from private landowners which had been wrongfully diverted by and used by the city for other purposes with interest on same from the date of the last collection made. Under the plea of payment, the decree directed that the amount of $3,840 with interest, should be deducted from the amount it otherwise found due plaintiff appellant from assessments which the city had collected and diverted to other uses. After such deduction the decree awarded appellant plaintiff a judgment against the appellee defendant in the amount of $7,823.04.

The evidence showed- the proceedings for this improvement was divided into ten instalments, of which number two to ten each were in the amount of $12,700. Total amount assessed against the city w'as $9,718.51 and in the amount of $900 under each of said instalments two to ten. Against private properties $11,800 was assessed on each of said instalments two to ten. Money was borrowed against instalments two to ten by the city and bonds were issued for the amount of $11,800 against each of the first seven of said instalments; $5,000 against the eighth and $7,500 against the ninth of said instalments two to ten. Appellant owned 61 bonds in the total face amount of $29,900 payable under instalments five to ten which matured annually from July 1, 1927 to July 1, 1932. Some payments were made upon these bonds up to the year 1935 being in the total amount of $4,460.50. The city collected, diverted to use for other purposes $9,032.06 on instalments five to ten. That amount with interest at 5 per cent from the respective dates of collection by the city calculated to January 1, 1941, would be $14,369.92. The total amount of $900 per year which the city did not collect, with interest on same at 6 per cent from the date each of said $900 instalments were due calculated to January 2, 1941, would be $14,418.

The city collected on interest accounts certain amounts from private property but not in an amount equal to the coupons due. The city claimed it had paid in full all of the coupons and as interest had paid on appellant’s bonds more than the amount of the coupons in the total sum of $3,848. No overpayment was made to plaintiff appellant. The records of the city and testimony of witnesses failed to show the name' of any person to whom any overpayment of interest had been made.

The foregoing is a synopsis of the detailed statement of pleadings, proceedings and facts recited in appellant’s brief. Appellee agrees that the foregoing matter we have recited, is correct.

On one point only do appellant and appellee disagree as to facts proved. Appellant contends that the evidence showed that a certificate of final completion and acceptance of the improvement was filed in the county court, notices of hearing thereon given and proceedings had in the county court and judgment entered by the county court finding that the improvement had been completed in accordance with the ordinance. Appellee contends that the proof made was by evidence which was not competent and that the finding of the special master and of the court in its decree that all proceedings had been had strictly in compliance with the law in the county court, was an erroneous finding. But appellee has filed no cross-errors or cross-appeal.

The trial court by its denial of motion to strike paragraphs 15a to 15f held as a matter of law that if same were proven, liability would lie against the city. These paragraphs charged that the city had deliberately omitted all assessments against itself from the roll of its city collector and had paid nothing on assessments against itself. Such facts were also proven.

Appellant first earnestly argues that since the trial court in the first instance so held liability under said paragraphs and that since the special master wrongfully exceeded his authority by reporting his conclusion of law to the contrary, that this case should be reversed. Authorities cited are Hards v. Burton, 79 Ill. 504; Fordyce v. Shriver, 115 Ill. 530, 540; Wilhite v. Pearce, 47 Ill. 413, 416; Ennesser v. Hudek, 169 Ill. 494; Kelly v. Fahrney, 145 Ill. App. 80; Barnes v. Barnes, 282 Ill. 593; Hollaban v. Sowers, 111 Ill. App. 263.

These cases do set out the duties and authority of a master in chancery and proper procedure in accounting in chancery cases. They emphasize that the master is not vested with judicial powers and that same cannot be delegated to him by the court.

In Hards v. Burton the decree provided that, if future notes secured by a mortgage, should become due and affidavit to that effect be filed, that the master should sell the property. The court held this in effect, allowed the master to find the amount due, decree the sale and execute his own decree. The court further said at page 509 “All the acts of the master become binding only by being approved and adopted by the court. Hence, the court alone can find, adjudge and decree so as to bind the parties and the subject matter.” In the case under consideration, the court, by another judge sitting, did adopt, and approve the master’s report and by its decree did adjudicate and bind the parties. The distinction between the case of Hards v. Burton and the case under consideration is therefore, quite apparent. An examination of the other cases cited, and relied upon, reveals that they are likewise readily distinguishable.

The trial court though presided over by a different judge had the right to and did adjudicate the question of liability under said paragraphs 15a to 15f. That it so did adjudicate is shown by its decree which covers 20 pages of the record. Although its final adjudication was different from the preliminary ruling of the first trial judge, is no ground for reversal. We are reviewing -the final decree and judgment entered in this case. Therefore, we do not think that the assigned errors, that this case should be reversed because of improper action by the special master in refusing to find and report a liability under said paragraphs 15a to 15f, and reporting his conclusion as to law, are grounds for reversal of this cause.

The next question is whether, under paragraphs 15a to 15f, the city is liable for assessments levied against it with interest, which it failed to levy and refused to pay on bonds. We are of the opinion that it is liable.

Assessments against the city are subject to payment of interest the same as assessments against private property. City of Chicago v. People ex rel. Union Trust Co., 215 Ill. 235, 240; City of Chicago v. Union Trust Co., 138 Ill. App. 545, 552; Burke v. City of Chicago, 185 Ill. App. 228. The charges are, that the city wilfully, negligently and deliberately failed to collect or pay on bonds any of the assessments which had been confirmed against it. Appellant’s bonds were issued against these assessments on instalments five to ten. The city obtained this public improvement and credit on these assessments against itself and accruing interest. It would be inequitable to relieve the city from payment to appellant of the amount it should have placed into the fmid together with interest at 6 per cent from the date of the issuance of the first voucher on account of this work. Ill. Rev. Stat. 1923, ch. 24, Local Improvements, sec. 42; Rothschild v. Village of Calumet Park, 350 Ill. 330. This money should be considered as though it were in the hands of the city when due, subject to be applied upon appellant’s bonds. Grand Carniolian S. C. U. v. Village of Rochdale, 314 Ill. App. 308, 311-313; Shade v. City of Taylorville, 212 Ill. App. 512, 515; Conway v. City of Chicago, 237 Ill. 128.

Assessments against the city drew interest at the rate of 6 per cent per annum, from the date of the issuance of the first voucher or bond, until such assessments are paid. Illinois Session Laws 1921, Local Improvements, pages 195, 199, sec. 42; Ill. Rev. Stat. 1941, ch. 24, par. 84 — 42 [Jones Ill. Stats. Ann. 21.2251],

Contention is made that suit in chancery was improperly instituted. We believe this suit in chancery for accounting properly lies. Grand Carniolian S. C. U. v. Village of Rockdale, supra. Appellee cites several cases and argues that suit must be instituted in assumpsit or mandamus. On examination of cases cited, it appears that they do not hold that a proceeding in equity for accounting, is not also proper, in a case like the one under consideration, where the accounts are complicated. Rothschild v. Village of Calumet Park, 350 Ill. 330, 338.

The complaint alleged that all proceedings under the Local Improvement Act were complied with by the city and the county court and the improvement was in all' respects completed in accordance with the ordinance and contract. Appellee denied these allegations. Appellee contends that the proof failed to show that the county court ever made a finding that the improvement was constructed in substantial compliance, in that such proof was minutes of the judge entered on his docket. The clerk failed to write up a record from these minutes. The proof showed these minutes were in the handwriting of the judge himself and recited that on: December 2, 1922, petitioner makes due proof of posting and publishing notices. No objections filed. Default. The court finds that the improvement conforms substantially to the requirements of the original ordinance for the construction of same. Certificate of final completion and acceptance confirmed. Sidewalk District No. 4, Marion, Ill. appellee cites Case v. City of Sullivan, 222 Ill. 56, 58; People v. Townsend, 352 Ill. 254 and Gage v. People ex rel. Hanberg, 219 Ill. 634, 635. In each case the court positively stated that by stipulation, allegation or proof it appeared no certificate of substantial construction had ever been filed in the county court. Appellee also cites two cases holding that proof of a money judgment must be made by production of the court record and disallowance of a claim in bankruptcy cannot be proved by a notation by the referee that claim was denied.

This proceeding is one against the city who was a party to the original proceedings and is not one between third parties. A document written and signed by a judge has been held good between the parties and that it was not essential that it had been recorded by the clerk. Am. Jur., vol. 30, pages 825, 828. However, we believe the city is estopped to make claim that no certificate of substantial completion was filed or found to be substantial by the county court. Twenty years have passed. The City of Marion issued bonds in large amount, secured money from purchasers of these bonds and thereby constructed sidewalks throughout its boundaries. It has collected large amounts of assessments from private properties. It has made payments on bonds and interest issued against a number of instalments. It has also made partial payments on appellant’s bonds. It has raised no question on the validity of the bonds or proceedings until sued for nonpayment of assessments confirmed against itself. It should have followed proceedings it instituted in the county court to final conclusion, — to the recording of whatever decree or order may have been made or become lost or abstracted from the files; and to the enrolling of record of the finding and order, from the minutes of the judge of the county court. We do not believe error can be urged upon the finding of the trial court that all proceedings were made in the county court required by statute. McGovern v. City of Chicago, 281 Ill. 264, 282; Cook v. City of Staunton, 295 Ill. App. 111; C. J. 44, page 305.

The master found and the trial court found as a fact that final certificate of completion was duly filed and' finding and order of the county court was duly entered in the proceedings in all manner prescribed by statute.

Appellant cites a number of cases to the effect that since appellee has filed no cross-errors, its entire contention and argument in regard to improper evidence admitted, should be ignored. However, the Supreme Court of Illinois in Swain v. Hoberg, 380 Ill. 442, 444, has relaxed the technical requirement, where a brief in definite divisions states and argues' points relied upon. Appellee’s brief complies with' the requirements of this recent decision of the Supreme Court.

Under the claim advanced in paragraphs 15a to 15g, appellant is not entitled to the entire amount of principal and interest assessed against the city and which, constructively, the city is charged with holding, if there are any other bonds outstanding. Appellant’s bonds are entitled to payment of such pro rata part of the assessments and interest due from the city as the principal amounts of appellant’s bonds compare with the principal amounts of other bonds originally issued and now outstanding, if any, and which were payable out of each respective instalment. Illinois Session Laws 1921, 198 Local Improvements. Ill. Rev. Stat. 1941, eh. 24, Local Improvements, par. 84 — 86 [Jones Ill. Stats. Ann. 21.2308]; Rothschild v. Village of Calumet Park, 350 Ill. 330, 338, 339, 342.

In paragraphs 13a to 13d, which on motion, were stricken, appellant contends that the city is liable to him for the amount of abatements it made to forty-seven private property owners.

The charge in said paragraphs is that, after the bonds had been sold, the city knowingly, unlawfully and wrongfully canceled or abated sundry assessments which had been levied against private properties, thereby leaving a deficit in the amount to be collected, of which deficit $900 per instalment was the amount assessed against the city. We have already held that the city is liable for its own assessments as. if collected and held by it for payments of bonds issued against such respective instalments.

It is to be noted that the facts stated are that these assessments were abated, canceled or omitted from the roll of the city collector. They were not collected and rebated and the use of the word rebate is statement of a conclusion and not of a fact pleaded. Appellant cites numerous authorities, quotes from a number and contends that, in chancery, the city, as trustee, is liable for abatement of such assessments against private properties. Cases chiefly relied upon by him are Barber Asphalt Pav. Co. v. City of Chicago, 139 Ill. App. 121; Burke v. City of Chicago, 185 Ill. App. 228; Village of Park Ridge v. Robinson, 198 Ill. 571. Appellee cites, quotes and relies upon Conway v. City of Chicago, 237 Ill. 128; Price v. City of Elgin, 257 Ill. 63, 67; Hoehamer v. Village of Elmwood, Park, 361 Ill. 422, 432; Rothschild v. Village of Calumet Park, 350 Ill. 330, 338; Village of Lansing v. Sundstrom, 379 Ill. 121, 124, 125.

The argument turns upon the question, whether the case of Conway v. City of Chicago controls this case under consideration. In that case the Supreme Court reversed the case of City of Chicago v. Conway, 138 Ill. App. 320.

In the case of Barber Asphalt Pav. Co. at page 129, the court said, “it is stipulated that the city has collected sufficient moneys to pay them (vouchers), but has applied the money so collected to another purpose, namely, payment of rebates to property owners assessed for the improvement itself.” It then cites the appellate decision of the Conway case which had been decided three months earlier. Appellant has supplied a certified copy of the full decision of the case of Burke v. City of Chicago, 185 Ill. App. 228, which refers to the Conway case, 237 Ill. 128. It said that counsel conceded liability under the Conway case for amount of rebates shown. The Burke case also said it was stipulated that the city should have had in its hands an amount for payment of such bonds, “but that it had wrongfully paid out that amount in rebates..”

Appellant asserts that there is nothing in the Conway ease intended to overrule Village of Park Ridge v. Robinson. Examination of Robinson case will show questions there involved are not those here, for consideration.

In Conway v. City of Chicago, 237 Ill. 128, 132, 138, the city- made abatements to private property owners, as in this case. Action in assumpsit was brought against the city to recover the amount so abated with interest. A lengthy stipulation of facts recites a situation much like that under consideration and the stipulation stated that the action of the city was taken in good faith and without fraud on the part of its officers.

In the instant case the total amount of assessments was $127,891.98. Instalments number two to ten amounted to $114,300. The total amount of bonds issued against instalments two to ten was $95,100. The total amount of assessments abated against private properties is alleged to be $529.23 on each instalment two to ten ,or a total amount of $4,853.07. Why the abatements were made is not alleged. Fraud is never presumed; on the contrary, good faith, is. No allegations of fact were made that abatements were fraudulently made, or through any conspiracy, deceit, or other than in good faith. Allegations were made that they were unlawfully, wrongfully and knowingly made. The same can be said of the city’s action in the Conway case.

In the Conway case, 237 Ill. at pages 138 and 139, on the point of abatements, the court said “It must be borne in mind that the amount of these rebates never, in fact, came into the hands of the city . . . If appellant is required to pay appellee these rebates, the effect of it will be to establish a general liability against the city for the mere neglect, default or mistake of its officers in regard to the levying and collecting of a special assessment. It is true . . . such rebates were null and void . . . appellee’s remedy, in so far as the amount of these rebates is concerned, is by mandamus to compel the performance of whatever legal duties appellant is under in connection with the collection of these rebates from the taxpayers. It is suggested that difficulties arising out of the lapse of time will prevent the collection of the original assessment or the levying of a supplemental assessment covering these rebates. However this may be, we are not inclined to extend the general liability of a municipality for special assessments beyond that which results from a failure to pay over money actually collected by it. These rebates never having come into the hands of tho city in cash, it is not liable in an action of assumpsit for them, on the theory that by the exercise of due diligence in the discharge of its legal duties it ought to have collected them.”

Appellant contends that such holding only applies to a case in assumpsit and not to liability in a chancery proceeding. He has cited no case holding that liability is different. Many cases cited by both-parties discuss liability in actions at law, on the theory that a municipality is a trustee and liable in certain cases where it has not discharged its legal duty by the exercise of due diligence. Appellant contends that since none of his bonds became due until July 1, 1927, before that date he could not have instituted a suit in mandamus to compel assessments, a part of which were charged with payments of his bonds originally issued, to be restored upon the assessment roll of the city collector. The former owner of his bonds, we think, could have instituted such action. To the contention there was nothing to put the bondholders on notice, the roll itself was a public record and notice. We believe the principle of liability in regard to abatement of assessments is determined by this Conway case and, therefore, that the court did not commit error by sustaining the motion to strike paragraphs 13a to 13d as to the private properties; but that the court was in error in striking that part of said paragraphs 13a to 13d charging assessments against the city for amounts, against itself and interest thereon, which it was charged with holding and which it itself also tried to abate,

The trial court overruled motion to strike paragraphs 14a to 14f. These charged liability against the city for using for other purposes assessments received .by it from private property owners. The trial court held that the city should account for such amounts ■with interest at 5 per cent from the date when the last collection from private property owners was made by the city. Appellant contends that he is entitled to interest from the time he or prior owners of his bonds had 'the right to demand payment on the bonds. The city withheld these funds and has not paid them out. The master found and the court approved the finding that the evidence was indefinite as to date any request was made for payment on the bonds. The record covers 662 pages and there are 227 pages in the abstract. The only evidence pointed out to us and which we can find on the question of presentation of bonds and demands for payment is shown by the testimony of witnesses taken by depositions of Hays, Dukme, Erwin, Pan tier, Mathews, Schmidt and Prange who were former owners of, or representatives of former owners of appellant’s bonds, and by some 100 letters introduced, in evidence. Space will not permit this opinion to set out this testimony at length. It showed conclusively that every bond had been presented to the city for payment when due; that partial payments had been made on bonds; that numerous demands and requests for payments covering years of time, had been made and ignored. It was against the manifest weight of the evidence for the master to hold and the court to confirm that demands were not made or that “the evidence fails to show that said bonds or any of them have ever been presented for payment”; and we so hold.

Demands by personal calls, presentation through banks; by letters; by forwarding bonds by registered mail to the city treasurer, occurred continuously from 1928. Answers by the city treasurer were uniformly evasive and to the effect that there were no funds for payment. Many addresses of former owners as well as of appellant were in the hands of the city treasurer but the city gave no notice, although it promised repeatedly to do so, of any funds available for payment. Paragraph 6 of the decree recites these collected and diverted payments were paid to the city each year in large amounts from July 1, 1927 to - February 1936. Under such undisputed evidence we believe the city is liable for interest from time when each respective bond was due and entitled to demand payment. Such interest should be calculated from such bond due date, on moneys theretofore received by the city and which should have been then on hand. Conway v. City of Chicago, 237 Ill. 128; Rothschild v. Village of Calumet Park, 350 Ill. 330; Cook v. City of Staunton, 295 Ill. App. 111, 121-123; Shade v. City of Taylorville, 212 Ill. App. 512; People ex rel. Decker v. City of Park Ridge, 275 Ill. App. 97. The court erred in allowing interest only from the dates of the last payments made to the city.

Paragraphs 16a to 16e charge that it was the duty of the city, under the statutes of Illinois, to have prevented delinquent properties being forfeited to the State or to have withdrawn them from sale or to have bought them in and secured tax titles and to have tendered the tax titles to the owners of unpaid bonds. Provisions of Illinois statutes relied upon are Ill. Rev. Stat. 1941, cli. 24, par. 84-90 [Jones Ill. Stats. Ann. 21.2316]. Appellant cites and quotes at great length many decisions from foreign courts, textbooks and annotations, to the general effect of diligence required by a trustee. He cites Donohue v. Village of La Grange, 183 Ill. App. 222, aff’d 263 Ill. 607; and Conway v. City of Chicago, 237 Ill. 128. In these decisions the city had been purchaser at tax sales, and had delivered or tendered tax titles to owners of delinquent bonds. The court held that the city had done its full duty. The argument of appellant is, that the converse is therefore true, that if it has not so purchased at tax sales and made tender of tax titles, the city is liable for the amount of unpaid bonds. Appellee cites many statutory provisions for collection of assessments and remedies for collection, some of which it insists still are available to appellant, to-wit, Ill. Rev. Stat. 1941, ch. 120, pars. 697, 727, 753, 756 [Jones Ill. Stats. Ann. 119.713, 119.743, 119.769, 119.772].

The question, we think, turns upon the provision of the statute which granted the city the right to be buyer at tax sales. That statute states that a city may, pursue one of several remedies for collection, one of which is, purchase at tax sales. In this case it permitted forfeiture to the State. We think discretion is vested in the municipality and that it is not mandatory that it pursue any certain remedy. People v. Wagemann, 293 Ill. App. 37; People v. Anderson, 380 Ill. 158; People v. Chicago & Northwestern Ry. Co., 308 Ill. 54; City of Chicago v. Gage, 268 Ill. 232, 242; Conway v. City of Chicago, 237 Ill. 128, 139.

We do not believe the court erred in "sustaining motion to strike paragraphs 16a to 16e.

Appellee tiled a counterclaim, which, on motion of appellant, was stricken on the ground that the matter should be set up by a plea of payment. Appellee then pleaded in the same words, the same matter in its answer, as a defense of payment. Motion was made to strike same and denied. Appellant contends at great length and cites numerous authorities contending that such matter could not be raised by an answer claiming payment as a special defense but should be raised by counterclaim. We do not believe appellant is now in position to raise such technical point since he so had the counterclaim stricken at his own instigation. However, we think the matter was properly raised by answer. Ill. Rev. Stat., ch. 110, pars. 167, 168, secs. 43, 44 [Jones Ill. Stats. Ann. 104.043, 104.044]; House v. John Linn & Co., 179 Ill. App. 114; Judson v. First Trust & Savings Barth of Springfield, 238 Ill. App. 531; Thomas v. Turner, 157 Ill. App. 16.

The defense of payment was, that the city had paid through the course of years after 1927 interest coupons in full and that from property owners, as interest payments, it had received a less amount. The claim was, that the excess was payment on bonds and chargeable as a deduction against appellant from the amount otherwise due on his bonds. The court held that the amounts of such over-payments was $3,848 and that interest on same should also be deducted from amounts otherwise to be due. Accordingly, the court deducted $5,184.06 from the amount it otherwise found due appellant on his bonds. Interest was calculated on such claimed over-payments, from the date of maturity of respective bonds. If the city were entitled to such deductions as payment, such interest should have been considered a payment made upon the principal of a given bond at the date such excess interest was paid out by the city, even though the maturity date of a given bond had not arrived. The court erred in calculating such interest from the maturity date of the bond.

Appellant cites many authorities from foreign jurisdictions and courts of Illinois to the effect that payment is not payment as a matter of law, unless accepted as payment of a given debt, by the one receiving the money. He contends that if' coupons were presented and paid in full, thé only intention of the city and of the one receiving the payment was to pay and receive interest only, evidenced by the coupon, and not to pay or receive thereby, any payment on the principal of any bond. He contends that independent suit must be instituted against one receiving an over-payment and not by plea of setoff or counterclaim. He next contends and cites many authorities in support of the point, that, if a person or a municipality voluntarily pays money through no mistake of fact nor by fraud or improper influence or collusion, but through mistake or ignorance of law, that such may not be recovered back; that the same rule applies to municipalities; and that the remedy of the city is against the city treasurer and his bondsmen.

Appellant then cites many authorities and argues to the effect that a setoff or counterclaim can be pleaded only where there is an indebtedness from plaintiff to defendant which might have been recovered in an independent suit; and that a counterclaim is not a defense to the merits but is an assertion of an independent caiise of action; and then argues that the special defense of payment in this ease was not proven by the evidence.

Appellee points out that such cases cited by appellant were in regard to negotiable instruments; general rules concerning payments by mistake of law; that the bonds are not general obligations of .the city; that both principal and interest were payable only from a special fund; that these bonds were not strictly commercial securities; and then asserts that the case of Galt v. City of Chicago, 315 Ill. App. 91 is conclusive against all of appellant’s contentions.

The burden of proving payment was on appellee. Such proof cannot he made by guess or surmise. In Galt v. City of Chicago, supra bonds had been owned by four successive hanks. It was stipulated that, during each successive period of such ownership, payments had been made 'to each bank on the bonds, in excess of the pro rata share of collections applicable to payment thereof and in total amounts in excess of any amount due the plaintiff on a pro rata basis.

Plaintiff filed his complaint in chancery against the city for payment of his bonds and accounting. As in the present case, plaintiff in the Galt case, had no notice of such payments, and contended that he was an innocent purchaser for value. The court sustained the defense of payment. In that case a real estate agent, for plaintiff, had checked properties in the neighborhood but had made no inquiry at the office of the comptroller of Chicago as to whether the bonds were being honored. The language of the court in the Galt case, will, in the light of facts stated by us hereafter, show a marked distinction, we believe, between the situation in that case and the case at bar. At page 98 the court said, “We think that plaintiffs, about to purchase the special assessment bonds, could without difficulty, have inquired of the city comptroller or other proper official as to the collections made and how the funds had been disbursed, and ascertain whether overpayment had been made on the bonds about to be purchased. This they did not do and we think they were not innocent purchasers for value . . . and it follows that plaintiffs are not entitled to recovery.”

In the present case, it is not claimed that payments on the bonds themselves were made to the owners thereof. The evidence in this case is the testimony of one witness for defendant who was a certified public accountant, employed by the city to make an examination of the records for the purpose of being a witness in this case. From his testimony it appears that a number of days were required to check the records and that he was assisted by some other person from his office.

This witness arrived at the conclusion that an overpayment of interest had been made. He found that a certain amount of interest had been paid to the city by property owners. He then made a calculation on a percentage basis, on his own theory that interest had been paid out and made on a pro rata basis; that interest coupons on appellant’s bonds was a certain per cent of interest coupons on all bonds payable from a given instalment, and if equitable distribution had been made, that certain amounts would have been paid on coupons from bonds now owned by appellant. No payment on bonds had been made on such pro rata basis. He test-checked a number of bonds, “as best he could” from the treasurer’s disbursement record. That record was not complete. He could not say that all - coupons which had been attached to the bonds had been paid. Coupons were not produced. He could not tell from the records which coupons had been paid. During a recess of the hearing from Tuesday to Friday he had further checked records and found dates when some of the coupons had been paid but would need time to furnish dates when the balance were paid. The records did not show to whom any interest had been paid. There was no evidence in the case that any payment of interest was made to any former owner of appellant’s bonds. None was ever made to appellant. The most the evidence showed was that in certain cases a record showed a certain amount paid as interest. It did not show from what funds if was paid. There was no proof it was paid from funds received from private property owners to pay principal on bonds. There was no proof that any over-payment of interest was shown by any record as being payment on principal of any bonds. Such, in substance, was the entire testimony of facts appearing of record stated by the accountant.

The evidence showed that when payments had been made on appellant’s bonds the amounts were indorsed on the back thereof by the city treasurer. Nothing had ever been indorsed as payment due to any overpayment of interest.

Former banks had owned appellant’s bonds and the record contains a great many letters written by former owners to the treasurer of the city and answers from the treasurer. These letters continued for years asking the situation in regard to hopes of receiving payments, sending the bonds by registered mail for collection and the like. The treasurer constantly wrote excuses for not making payment; that mining conditions were poor; that money had not been paid in; that funds were in a closed bank but which was insured; that older bonds with interest had not yet been paid: that if bonds would be sent to him, he would credit them with the pro rata share and remit a pro rata payment on same, or not. to sent bonds because there would not be any funds to pay for a year; that the best he could do would be to pay all coupons and a per cent pro rata on bonds if they would be sent in. Such was the contents of letters and replies .covering many years. Every letter showed that the holder expected full payment on the principal of his bond except for payments previously indorsed thereon. No letter of the city treasurer or of any other person made any intimation of the fact that any other charge of payment existed against any bond, other than payments shown indorsed on the back thereof. This series of letters ran from July 1928 to 1936.

In the months of May, June and July 1935, appellant purchased his bonds and the city treasurer had made thirty-three separate payments from 1935 to 1936 in sums from $13 to $25 each and indorsed payments on the back of appellant’s bonds. No intimation was made that such indorsed payments and all payments thereon indorsed did not show every payment that had been made on each bond. Furthermore, appellant had owned other bonds which he had sold and on which he had received like payments. Appellant personally called upon the treasurer, presented and demanded payment of his bonds. The treasurer always said that he had no funds to pay same. Appellant purchased his bonds for a valuable consideration. As early as October 1927, appellant’s bank had been writing the city treasurer and received replies that there were no funds and the treasurer solicited opportunity to sell the bonds for the bank. In 1930 appellant wrote the treasurer for information regarding the status of his bonds, for information and recommendations. The. answer was that there was a small amount of money "in the account to take care of most of the interest coupons. In August the city treasurer requested appellant’s bank to send bonds in and said he would distribute the funds in each issue.- In 1932 appellant again wrote asking information relative to the status of the bonds and in 1934 asked information as to when and how much additional payments might be expected on these bonds. From the foregoing, it impresses us that the situation in this' case is entirely different from that in the case of Galt v. City of Chicago, supra. There, nothing was done that would have lead to knowledge of payments. Here, by appellant and former owners of his bonds, diligence was exercised far beyond any that might be called reasonable. The records of the city were so inaccurate that apparently the city itself had no knowledge of such claimed over-payment until, an elaborate investigation was made after this suit was started. We do not believe appellant was called upon to do 'anything more than he did in regard to investigation concerning his bonds. Had he written and asked the city treasurer how much was paid on his bonds, the answer would probably have been for him to read the payment indorsements made by the treasurer on the back of his bonds.

Consideration of this evidence does not require weighing the veracity of the witness. His statements of fact are not disputed. The evidence was that appellant, C. A. Frange, was an innocent purchaser for value of these bonds. If there was any neglect or deception, it was practiced by the city, itself.. If it made over-payments out of interest funds on bond payments, it should have advised the holder of the bond who presented it numerous times for payments. It should have placed such credit as payment on the back of the bonds which were sent in by registered mail from time to time for indorsement of payments.

To allow the city, at this late date and after the passing of so many years, and under the situation shown in this case, undisputed, to assert against an innocent purchaser for value, payment on bond principal and in addition several thousand dollars of interest, would be a fraud. The city was clearly guilty of laches. This is a court of equity. Estoppel lies against the city. If, under a situation like the undisputed one shown in this case, a buried, forgotten and cancelled defense, even if. it existed, could defeat payment of such a municipal bond, investors would not buy such bonds.

The evidence does not support the special defense of payment. Allowance of this defense was against the manifest weight of the evidence and the court erred in deducting the amount with interest thereon claimed overpaid under the name of interest.

The final decree in this case is reversed and said cause is remanded to the circuit court with directions: To overrule the motion to strike paragraphs 13a to 13d as to charges therein that appellee abated and failed to pay assessments levied against itself; to take evidence thereon; and to take further evidence under all paragraphs of said complaint except paragraphs 16a to 16e and except those allegations in said paragraphs 13a to 13d in regard to abatements to private property owners and except on the special plea of payment; and to proceed according to the findings and rulings appearing in this opinion.

Reversed and remanded, with directions.


author: Mr. Justice Wolfe

text:
    Harry Walters, Administrator of Estate of Charles Joseph Howard, Deceased, Appellee, v. Charles Ind and Raymond Hart, Appellants.
    Gen. No. 9,849.

      Opinion filed April 28, 1943.
    Rehearing denied June 1, 1943.
    Welsh & Welsh, of Rockford, for appellants; C. K. Welsh, of Rockford, of counsel.
    Miller, Thomas & Hickey, of Rockford, for appellee; L. C. Miller and Francis E. Hickey, both of Rockford, of counsel.
   Mr. Justice Wolfe

delivered the opinion of the court.

The defendants, Charles Ind and Raymond Hart, prosecute this appeal from a judgment of $7,500 against them in favor of the plaintiff, Harry Walters, as administrator of the estate of Charles Joseph Howard, deceased, based on the verdict of a jury in a suit under the Wrongful Death Act. At the commencement of the trial, the complaint consisted of three counts. At the close of the plaintiff’s evidence on motion of the defendants, the court directed, and the jury returned a verdict finding the defendants not guilty under counts 1 and 3. Count 3 charged wilful and wanton misconduct, and is not involved in this appeal.

It is first contended by the defendants, that for several reasons the complaint, being now the second count thereof, does not state a cause of action, or as defendants’ counsel state it: The complaint is insufficient to sustain the verdict of the jury. The first reason urged by the defendants as sustaining this contention will be treated alone, and the others together.

We do not deem it necessary to set out the allegations of counts 1 and 2 in any great detail to determine if count 2 is subject to the first objection made to it by the defendants. The first count alleged that plaintiff’s intestate on December 16, 1940, was driving his automobile on Kishwaukee street near the City of Rockford; that Kishwaukee street was designated as a preferential highway; that defendant Ind, by the defendant Hart, as his agent, drove his truck into said highway from a private driveway at a high rate of speed, without stopping the truck, and directly in front of the automobile of plaintiff; that it was the duty of the defendant to bring said truck to a stop before driving upon said highway and to othenvise yield the right of way to the automobile which decedent was driving at the time of the accident. Bach paragraph of count 1 by reference (as was permitted by Rule No. 11% (now 11) of Supreme Court Rules of Procedure and Practice), was incorporated in count 2. In count 2, it is further alleged that: On said date, the date of the accident, there was in full force and effect, the following provisions of the Motor Vehicle Act of the State of Illinois, to-wit, ch. 95%, par. 168 [Jones Ill. Stats. Ann. 85.200]: “The driver of a vehicle about to enter or cross a highway from a private road or driveway, shall yield the right of way to all vehicles approaching on said highway.” Thus, it is apparent that in the second count, the cause of action was founded on the alleged violation of a statutory duty placed on the driver of the truck.

It is urged by the defendants that as the court directed a verdict of not guilty on count 1, and as the charging paragraphs of counts 1 and 2 are identical, there was of necessity a finding by the trial court that the charging paragraph of count 2, namely, that Hart did not stop his truck and yield the right of way to the automobile of the plaintiff’s intestate before entering the highway, was eliminated from count 2, and it does not state a cause of action. We are unable to perceive any merit in this argument. The following statement in the case of Muren Coal & Ice Co. v. Howell, 119 Ill. App. 209, 219, is applicable here. “It is not the practice, and so far as we are advised, has never been held to be the law in this state, that the excluding by the trial court of certain counts of a plaintiff’s declaration, or the directing of a verdict for defendant as to certain counts, constitutes a bar to the action, as stated in any good count, or counts that might remain.”

It is further urged by the defendants that count 2 does not state a cause of action, because it is not therein alleged: 1. The existence of a duty on the part of the defendants to protect plaintiff’s intestate from the injury of which plaintiff complains; 2. A failure of defendant to perform that duty; 3. An injury to the plaintiff’s intestate resulting from such failure. It is provided by section 33 of the Civil Practice Act [Jones Ill. Stats. Ann. 104.033] that pleadings shall be liberally construed with a view of doing substantial justice between the parties. Paragraph 168 of the Motor Vehicle Act, quoted in count 2 of the complaint, determined and fixed the duty of the driver of the truck under the facts alleged in the complaint; paragraph 4 of count 2 clearly alleges-facts, and the failure of the driver of the truck to perform that duty and that his failure, or wrongful act, caused the death of the plaintiff’s intestate. The contention that the complaint does not state a cause of action is not sustained.

Over the objection of the defendant, the court allowed May Hadd to testify that approximately at 5:45 p. m. on the day of the accident in question, she saw the decedent, her brother, get into the driver’s seat of the Ford Coupe; that the red lights on the car were turned on, and the car then moved south on ICishwaukee street; that she could see the car for a distance of about a block after it left her home, and then it disappeared out of sight; that she observed the car from the window of her apartment in the City of Rockford, Illinois. The objection to the evidence is that it is too remote to have any bearing on the issues in the case, and that it had no weight or probative force: All matters of weight or probative force in this testimony should be weighed by the jury. We think the evidence was competent, and it is for the jury to decide whether it had any bearing on the question or not.

The appellants strenuously insist that the verdict in favor of the plaintiff was not established by a preponderance of the evidence, either that the plaintiff was in the exercise of due care or caution for his own safety at the time of, or immediately prior to the time of the accident, or that the defendants were guilty of any negligence, as charged against them in the complaint that contributed to, or was the primary cause of the accident. It is conceded by the parties to this suit that where there were no eyewitnesses to the accident, then the careful habits of the deceased can be proven by competent evidence. In this case Harry Walters, without objection, testified that he had known the deceased, Charles Joseph Howard, for a number of years. In his testimony he detailed acts relative to the careful habits of the deceased. This was sufficient evidence to go to the jury for their consideration, together with the other evidence, and circumstances in the case, and it was for them to decide whether the plaintiff had proven due care and caution on the part of the plaintiff’s intestate just before, and at the time of the accident in question. Mrs. George Howard, the mother of Charles Joseph Howard, also testified. While her testimony has little bearing as to the careful habits of her deceased son, Charles, an objection was offered to her testimony, but was withdrawn by the attorney for the defendant when it was stated by the attorney for the plaintiff that it was for the purpose of showing due care on the part of the plaintiff’s intestate. We think there was sufficient evidence to go to the jury for their consideration as to whether the plaintiff’s intestate was in the exercise of due care and caution for his own safety, just prior to, and at the time of the accident.

The defendant, Raymond Hart, was called as a witness on his own behalf, and testified as to how the accident occurred. He stated that he was the driver of the truck, and detailed how the accident occurred. It was insisted by the plaintiff that the defendant, Hart, was an incompetent witness, but the court overruled the objection because the plaintiff, having called the mother of the'deceased, as a witness, and she being a beneficiary in the suit, then the defendant had a right to rebutt the presumption of the careful habits of the deceased, and admitted the testimony. The defendant, Hart, gave his interpretation of how the accident occurred, and on cross-examination, it was shown that four days after the accident he had made a statement which was reduced to writing, as to how the accident had occurred, and it differed so materially from his testimony given at the trial, that the trial court, in his written opinion, in overruling a motion for a new trial, stated that he was still in doubt as to whether there was an eyewitness to the accident. Without stating here in detail what the testimony was, but from a review of all of the testimony, the physical facts, as found at the scene of the accident, and especially the photographs showing the damage to the decedent’s car and the defendants’ truck, it is our conclusion that the verdict of the jury is sustained by the evidence in the case.

It is claimed that the testimony of Harry Walters and the other witnesses relative to the careful habits of the deceased only raised a presumption of due care and careful habits on the part of the deceased, and that when the witness, Hart, testified as an eyewitness as to how the accident occurred, that then, there was no competent evidence in the record in regard to the due care and caution on the part of the deceased. We do not agree with this contention, as we think this was proper evidence to be submitted to the jury for their consideration. However, the • appellants are in no position to raise this question, as there was no motion made to strike this testimony, and it went to the jury without objection. It was proper evidence at the time it was admitted, and remained such until its competency was questioned by a motion to strike, or in some other legal method.

Criticism is made of plaintiff’s given instruction No. 6. In the case of Schaffner v. C. F. Massey Co., 270 Ill. 270, the same instruction was approved by the Supreme Court. The objection to the instruction is practically the same in both cases. It is our conclusion that the court did not err by giving the plaintiff’s instruction No. 6.

It is contended by the plaintiff that defendants’ instruction No. 19, was so modified and interlined that it made the instruction unintelligible and erroneous. The instruction as interlined as claimed by the appellants is neither set forth in the abstract, nor in the record. Neither was it claimed as error in appellants’ motion for a new trial, and it is raised for the first time, as far as this record discloses, in this court. The fact that both sides argued the matter in their briefs, it was evidently raised in the arguments in the lower court. If the interlined matter was not obliterated so that the jury could read it, then it was error on the part of the trial court to give it. The judge recognized this fact. It is also the law that it is not reversible error, unless it is such that the jury would be clearly misled in regard to that portion of the instruction, which was attempted to be obliterated. In the present case we think the appellants have waived any right to object to this instruction. We further believe that it was not reversible error on the part of the trial court in giving the instruction as modified.

We find no merit in the criticism of the defendants’ given modified instruction No. 14. The verdict of $7,500 for the death of a healthy and industrious young man is not excessive in our judgment, especially so when there was no bias, or prejudice shown on the part of the jury in rendering the verdict.

We find no reversible error in this case, and the judgment of the trial court is hereby affirmed.

Judgment affirmed.


author: Mr. Presiding Justice Matchett

text:
    William Barrett, Receiver, Appellant, v. Josephine M. Daly et al., Appellees.
    Gen. No. 42,355.
    Opinion filed May 10, 1943.
    James J. Danaher and Frisch & De Haan, all of Chicago, for appellant; George J. Fox, of Chicago, of counsel.
    Ward, Rabold & Mabrey, of Chicago, for appellees.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.

In an action brought by Augusta Walsh to enforce the constitutional and statutory liability of Josephine, Matthew and George Daly as stockholders of the Chatfield Trust & Savings Bank, an Illinois banking corporation, Barrett was appointed receiver and recovered judgment severally against the above named stockholders for $500, $1,000 and $1,500, respectively, on the 19th day of December, 1935. Execution issued on each judgment and was returned nulla bona.

January 2,1942, plaintiff filed his complaint (a creditor’s bill) under section 49 of the Chancery Act (Ill. Rev. Stat. 1941, ch. 22, p. 267 [Jones Ill. Stats. Ann. 106.12]). The complaint alleged a fraudulent conveyance of assets by the judgment debtors to a third party, prayed an injunction against further transfers, discovery and general relief,, etc. In fact, the complaint was in the usual form of creditor’s bill, well known to the profession. Defendants made a motion to dismiss under section 45 of the Civil Practice Act (Smith-Hurd’s Ann. Stats., par. 169, p. 287 [Jones Ill. Stats. Ann. 104.045]). The motion was allowed, the suit dismissed and plaintiff appeals.

The motion made was based on section 23 of the Civil Practice Act (Smith-Hur-d’s Ann. Stats., par. 147, p. 102 [Jones Ill. Stats. Ann. 104.023]) and section 73 of the same act (par. 197, p. 236 [supp.] [Jones Ill. Stats. Ann. 104.073]) as amended, Laws of 1941, vol. 2, p. 464, § (2), and Rules of the Supreme Court made pursuant thereto. Section 73, as amended, does not purport to repeal or supersede section 49 of the Chancery Act. On the contrary, section 1 of the amended act provides that the act ‘ ‘ shall not he deemed to effect the enforcement of judgments or decree or proceedings supplementary thereto, by any methods now or hereafter provided by law.” Section 94 of the Civil Practice Act (Ill. Rev. Stat. 1941, par. 218, p. 2433 [Jones Ill. Stats. Ann. 104.094]) enumerates the various statutes which that act repeals. Section 49 of the Chancery Act is not included in the enumeration. Section 49 was re-enacted in its present form in the act approved June 27, 1935 (see Laws of 1935, p. 248). This was subsequent to the date on which the Civil Practice Act became effective, which was January 1, 1934 (Ill. Rev. Stat., par. 263 [Jones Ill. Stats. Ann. 104.098]).

Proceedings in favor of judgment creditors similar to that provided for in section 49 of the Chancery Act were sustained in this State even prior to the enactment of that section. Weightman v. Hatch, 17 Ill. 281, decided at the December Term of the Supreme Court, 1855. Defendants misinterpret, we think, the purpose of the amendment to section 73. It was not to create an exclusive but rather additional remedies. In the recent case of Elkin v. Diversey Trust & Savings Bank, 363 Ill. 160, 163, the Supreme Court said:

“It is well settled that where a- statute gives a new remedy and contains no negative, express or implied, of the remedy which existed theretofore, the new remedy thus created is cumulative and not exclusive and that a party may elect between the two.*’

Much more is this true ivhere, as here, the new act contains a positive provision negativing any intention to repeal, modify or restrict the existing statute. Defendants say, however, that the reason for the ruling of the court was that a multiplicity of suits might be prevented. In what way is not stated. If the proceeding had been begun in the original suit, it would have been necessary to have a summons issued against Frank J. Daly and make him a party. This, in effect, would have been, at least so far as he was concerned, the beginning of a new suit. We hold the plaintiff had a right to elect whether he would proceed by the new method provided for by the amendment or under the old which had been so long established. By either method there would be one new suit. There is no question here of any multiplicity of suits within the meaning of the equitable maxim. See Historical and Practice Notes, Smith-Hurd’s Ann. Stats., ch. 110, §73, pages 236, 237 (supp.) [Jones Ill. Stats. Ann. 104.073].

The decree will be reversed and the cause remanded with directions to set aside the order of dismissal and to enter an order directing defendants to answer the complaint.

Reversed and remanded with directions.

O’Connor and McSdrely, JJ., concur.