text:
    C. F. Barton, Appellant, v. Mary M. Barton, Appellee.
    Opinion filed May 26, 1944.
    Robert W. Tunnell and Henry B. Eaton, both of Edwardsville, for appellant.
    Philip G. Listeman, of East St. Louis, for appellee.
   Mr. Justice Stone

delivered the opinion of the court.

C. F. Barton, plaintiff appellant, and Mary M. Barton, defendant appellee, were respectively, plaintiff and defendant in the lower court and will be so referred to here. Plaintiff filed suit for divorce in the circuit court of M,adison county, on June 3, 1941. Defendant filed an answer and counterclaim for separate maintenance. The case was heard without a jury, and on March 19, 1942, the court denied plaintiff a divorce and granted defendant separate maintenance. Plaintiff prosecuted an appeal to the Appellate Court for the Fourth District, and on March 2, 1943, the Appellate Court reversed the decree of the circuit court, with directions to the trial court to dismiss the counterclaim of defendant for want of equity, and for further hearing on the complaint of plaintiff, for divorce. (Barton v. Barton, 318 Ill. App. 68.)

A motion for expense money and attorney fees was filed on April 19, 1943, by the attorney for defendant. This petition recited the history of the case, as herein stated, and further set forth that defendant had until March 26, 1943, within which to file her petition for leave to appeal to the Supreme Court; that defendant had employed counsel ‘ and that said counsel had ordered the record made in the Appellate Court, and was preparing an abstract of record and petition for leave to appeal and that the probable costs were $133. The petition further stated that defendant was without funds with which to pay her attorney for the work in connection with the filing of the petition for leave to appeal and that she had no funds for expenses, that defendant was an able-bodied man, engaged in a gainful occupation, and prayed that an order be entered ordering plaintiff to pay to defendant for the use of her attorney, a reasonable sum as his attorney’s fees and also the expense of filing the petition for leave to appeal to the Supreme Court. The petition was not signed by defendant, nor verified, but was signed by said counsel.

Plaintiff entered his limited appearance, and filed a motion to strike said petition. The court entered an order on June 2, 1943, which order provided for the payment by plaintiff of the sum of $150 as a reasonable attorney fee and expense money in the sum of $133. Motion to set this order aside was filed by plaintiff, entering his limited appearance and this motion was denied on July 29, 1943, from which order plaintiff prosecutes his appeal to this court. On November 30,1943, the Supreme Court denied the petition for leave to appeal from the Appellate Court, Fourth District to the Supreme Court.

It is contended among other things by plaintiff that the trial court erred in allowing said attorney’s fees and expense money; that the order and judgment is not based upon the inability of Mary M. Barton to pay her attorney fees and expenses; that the testimony of her attorney was insufficient, immaterial and contrary to the law, and that the trial court erred in denying the motion to set aside the order of June 2,1943.

The separate maintenance statute provides, “. . . The court at any time after service of summons and proper notice to the wife or the husband may make such allowance of temporary alimony, attorney’s fees, and suit money as may appear just and equitable, as in cases of divorce ... ”. Chapter 68, par. 22, Ill. Rev. Stat. 1941; Jones Ill. Stats. Ann. 109.189. And the statute with reference to divorce, provides, “In all cases of divorce the court at any time after service of summons and proper notice to the husband or wife, may require the husband to pay to the wife or pay into court for her use, or may require the wife to pay to the husband or pay into the court for his use during the pendency of the suit, such sum or sums of money as may enable her or him to maintain or defend the suit; and in every suit for divorce the wife or the husband when it is just and equitable, shall be entitled to alimony during the pendency of the suit, provided that no order or decree for alimony shall be entered until the court . . . shall have determined from evidence the condition and life of the parties and their circumstances. ... ”. Chapter 40, par. 16, sec. 15, Ill. Rev. Stat. 1941; Jones Ill. Stats. Ann. 109.183. It therefore follows that the court should not arbitrarily fix the amount of fees or expenses, but the order should be based upon the requirements of expense for prosecution or defense, as evidenced by pleadings, affidavits or examinations in court. Benham v. Benham, 107 Ill. App. 424. The court will also consider the husband’s income, the estate of the wife, as well as the ages and condition in life of the parties and all the circumstances affecting the propriety of the allowance. Harding v. Harding, 144 Ill. 588; Plaster v. Plaster, 67 Ill. 93; Bergen v. Bergen, 22 Ill. 187.

It is true that the record here discloses some testimony as to the amount of expense attendant upon talcing the appeal to the Supreme Court and with reference to the reasonableness of the.attorney fee, but there was no competent evidence as to the inability of defendant to pay her own fees and expenses or the ability of the plaintiff to pay same. The only showing made was the statement in an unverified petition, not even signed by defendant, to the effect that defendant was without funds with which to pay her attorney for the work in connection with the filing of the petition for leave to appeal and that she did not have funds with which to defray the aforesaid expenses incident to the filing of such petition, and with respect to the means of plaintiff, it alleges vfiguely that he was an able-bodied man, engaged in gainful occupation and earning a substantial salary. In addition thereto, counsel for defendant testified that defendant was without any funds to finish the litigation.

Counsel for defendant, in his argument, in answer to the claim of plaintiff that there was no showing that plaintiff had the financial ability to pay the expenses in question, states, that the court did not need to hear evidence on that question; that the court judicially knew what the plaintiff had testified to, as to his financial ability in the parent case. Plaintiff’s financial ability at that time, March 1942, might have certainly changed for better or for worse, by the time of the hearing on the allowance, which was June 2, 1943.

In any event there was no competent evidence before the court to inform him, as to the inability of defendant to pay her expenses and of plaintiff to pay same.

It is also contended on the part of plaintiff that in the allowance of fees and expenses, it should appear at the time of making the request that defendant had a probable cause of action. It seems to be the well-settled principle in Illinois, that where the wife is without means to prosecute her suit and has probable ground that it is proper for the court to enter an order for attorney fees. Jenkins v. Jenkins, 91 Ill. 167; Rawson v. Rawson, 37 Ill. App. 491. In the case before us, this court had previously held in Barton v. Barton, 318 Ill. App. 68, that upon no theory of the law, would defendant be entitled to separate maintenance, under the evidence there adduced. The Supreme Court subsequently denied defendant’s petition for appeal to that court. There should be an end to this litigation and to defendant prolonging it in absence. Whether or not an allowance should be made to the wife for solicitor’s fees rests largely in the discretion of the court, but an abuse of such discretion is subject to review. Klekamp v. Klekamp, 275 Ill. 98. We are of the opinion that nothing in this record justified the order of the court with reference to attorney fees and expenses and the judgment of the circuit court of Madison county will be reversed.

Reversed.


source: Caselaw Access Project

author: Justice Wolfe.

license: Public Domain

text:
    Robert D. Shields et al., Appellees, v. Lee Stickel et al., Appellees. Monarch Finance Corporation, Appellant.
    Gen. No. 9,925.
    opinion filed January 26, 1944;
    rehearing denied June 27, 1944.
    Clark B. Montgomery, for appellant; Walter D. Boyle and Fred W. Potter, Jr., for appellees.
   Opinion by

Justice Wolfe.

Not to be published in full.


author: Presiding Justice Dove.

text:
    John Chucklin, Appellee, v. Joseph B. Fleming and Aaron Colnon, Trustees, Appellants.
    Gen. No. 9,954.
    opinion filed April 27, 1944;
    rehearing denied June 27, 1944.
    Stafford & Schoede and Edward C. Schoede, for appellants; Milton V. Thompson, of counsel; Huber & Reidy, for appellee; Isador I. Katz, of counsel.
   Opinion by

Presiding Justice Dove.

Not to be published in full.


author: Per Curiam.

text:
    Mary Weinberg et al., Appellees, v. Edwin M. Jenkins et al., Appellees. Donald C. Allensworth, Appellant.
    Gen. No. 9,917.
    opinion filed April 27, 1944;
    rehearing denied June 27, 1944.
    Donald C. Allensworth pro se; Woolsey, Stickney & Lucas, for certain appellees; H. Glenn Kinsley, for certain other appellees.
   Per Curiam.

Hot to be published in full.


author: Justice Bristow.

text:
    Harry C. Kinne et al., Appellants, v. Dick Duncan et al., Appellees.
    opinion filed May 26, 1944.
    Andrew O. Niehoff, for appellants; Russell Wilson, for appellee Dick Duncan.
   Opinion by

Justice Bristow.

Hot to be published in full.


text:
    John Brown et al., Appellants, v. County of Lawrence, Appellee.
    opinion filed June 1, 1944.
    A. J. McMahan, for appellants; J. L. McLaughlin, of counsel; Maurice E. Gosnell, State’s Attorney, for appellee.
   Opinion by

Justice Bristow.

Hot to be published in full.


author: Mr. Justice Riess

text:
    Illinois Highway Transportation Company, Appellant, v. Walter Hantel et al., Appellees.
    Gen. No. 9,426.

      Opinion filed April 12, 1944.
    Opinion modified and rehearing denied July 6, 1944.
    George Z. Barnes and Clyde R. Birkett, both of Peoria, for appellant.
    Homer B. Harris, of Lincoln, and Shelton McGrath, of Peoria, for appellees.
   Mr. Justice Riess

delivered the opinion of the court.

Plaintiff, Illinois Highway Transportation Company, a corporation, has appealed from certain decretal orders of the circuit court of Tazewell county, wherein a temporary injunction previously granted against defendants appellees, Walter Hantel, Victor Sandel and M. A. Kirkhart was dissolved; damages and solicitors’ fees were awarded to the defendants and the plaintiff’s complaint was dismissed for want of equity.

On March 5, 1942, the plaintiff, a public utility company operating certain motor bus lines under Certificates of Convenience and Necessity previously granted by the Illinois Commerce Commission, filed a suit in equity wherein it was charged that the defendants were unlawfully operating motor busses as public utilities and as carriers of passengers for hire without a Certificate of Convenience and Necessity over a part of the route designated in plaintiff’s certificates, in competition with and to the financial injury of the plaintiff. The verified complaint sought both a temporary and a permanent injunction restraining the defendants from continuing such operation of motor bus service and prayed for the recovery of alleged damages. A temporary injunction without notice or hearing was issued upon an interlocutory order of the chancellor, followed by motions in the nature of demurrers by the defendants to dissolve the same, which motions were overruled and the defendants then filed separate answers denying that they were unlawfully operating as public utilities or as carriers of passengers indiscriminately for hire requiring such certificates but averring that they operated as private carriers under contractual arrangements with two groups of employees of the Caterpillar Tractor Company between the homes of said employees in Lincoln and certain intervening points, to and from the manufacturing plant of said company in East Peoria, Illinois, where such workmen were severally' employed on one of three daily eight hour shifts in war work by the Tractor Company which was engaged in the manufacture of necessary war materials.

The case was referred to the master in chancery to take and report the testimony with findings and conclusions of law and fact and to recommend form of decree. The testimony of witnesses of the respective parties was duly heard and the master’s report with findings, conclusions and recommendations was filed with the court, together with objections to certain findings and conclusions of the master which had been filed by the plaintiff and overruled by the master and stood as exceptions before the court. The exceptions were heard and overruled by the chancellor; the report of the master was approved and the temporary injunction was dissolved. Suggestions of damages were filed by the defendants and evidence was heard thereon upon reference to the master, duly reported to the court, and damages were assessed by the court together with solicitors’ fees for alleged services of defendants’ counsel in procuring a dissolution of the temporary injunction.

Plaintiff assigned errors on the part of the trial court in approving the findings of the master in chancery that the busses owned and operated by appellees were not subject to the jurisdiction of the Illinois Commerce Commission under the provisions of the Illinois Public Utilities Act, and in overruling the plaintiff’s exceptions to such findings; in approving the master’s findings ‘ ‘ that the bus lines owned and operated by the appellees were operated as private and not as public or common carriers, and in overruling appellant’s exceptions to such finding”; in refusing to grant a permanent injunction as prayed and in dismissing plaintiff’s complaint for want of equity; in dissolving the temporary injunction and in assessing damages against the plaintiff in favor of the defendants, asserting that such damages were not supported by the evidence; error in overruling each and all of plaintiff’s exceptions to the original and supplemental reports of the master in chancery, asserting that the decree was contrary to the law and the evidence.

As to some of the material facts,, there is no conflict, while there is a material conflict in the evidence concerning arrangements for and services rendered and furnished in the operation of the two motor busses by the respective defendants under certain purported verbal and subsequently written contractual arrangements between the defendants and said respective groups of employees of the Caterpillar Tractor Company, which employed approximately 16,000 workers. It appears in substance from the findings of the master in chancery as approved by the court, which we deem to be in accord with the greater weight of the evidence, that employees of the Tractor Company were obliged to travel to and from their daily work during one of the three eight hour shifts or periods of employment at said plant, beginning at approximately 8 a. m., 4 p. m., and midnight of each week day or Sunday on which the respective employees were obliged to report for duty. It further appears that numerous employees of said Tractor Company resided at various places and were obliged to reach their daily place of employment and to return to their respective homes by such means of conveyance as were available to them; that in December 1941, when America entered the. World War, a tire rationing program of the National Government was put into effect, prior to which time many of the war workers who so resided in Lincoln or intervening points between that city and the Caterpillar plant at East Peoria had either used their own cars or shared with others in the use of automobiles in going to and from their work. It further appears that under the emergency which had thus arisen, they then sought to make other suitable arrangements for such necessary transportation and means of conveyance and that at such time no schedule of any public utility met or had suitably arranged to adequately meet their necessary requirements for travel between their various homes and said place of employment. The plaintiff utility company had operated a certificated motor bus line as a public or common carrier of passengers for hire between Peoria, East Peoria and Pekin, Illinois, since 1927. On March 18,1941, an additional certificate was granted extending its route from Peoria through Pekin to Lincoln and Decatur, Illinois and intervening points along said route, and it procured valuable additional equipment and busses and maintained a regular rate and time schedule for the use of the public in general including a number of employees of the Tractor Company who lived along portions of its travel route.

Following the tire and gas rationing orders, a number of said workers residing at Lincoln held group conferences or meetings for the purpose of procuring or arranging for transportation to meet the necessities of the existing emergency. Some of them discussed their problem with the Chamber of Commerce, the local Defense Co-ordinator, the Interurban Railroad Company operating between East Peoria and Lincoln, a Lincoln taxicab company, and some of them also called upon the plaintiff company at its office in Lincoln. Their spokesman was told in substance by the agent of the plaintiff company that if they procured seventy-five or more daily passengers, they would be given a rate of seventy-five cents per round trip per passenger on a weekly ticket basis of $4.60, with no alternative refund for traveling a less number of days per. week nor for any subsequent use of the tickets and that necessary bus transportation would then be provided. A list was circulated by one of the men named Claude McAllister who was at that time able to procure only twenty-four signers and he testified that he therefore did not return to the Company’s office. The men caused an item or announcement to be placed in the local daily newspaper at Lincoln which was printed without charge to them requesting employees of the Tractor Company who were interested in the above transportation to call at the newspaper office and sign a paper, to which forty-eight signatures were then obtained prior to February 12. No further negotiations between the men and the plaintiff company were had. The former did not return to the company office hut thereupon sought other means of transportation. Part of the group of employees discussed the question of furnishing' bus service to meet their necessities with defendant Walter Hantel, who agreed to procure a bus and furnish conveyance to war workers employed at the Caterpillar plant who might wish to join their group, at the price of sixty-five cents per round trip per person or $3.90 per week on the basis of three round trips per day and for sixty cents per round trip per person if, the number of daily employees so joining in said arrangement exceeded sixty passengers per day, with refunds on weekly tickets for days not traveled. A lesser rate was so arranged for the workers who lived at intervening points nearer to the plant at East Peoria, including those not located on the route traveled by plaintiff company. The busses were to leave from in front of the City Hall in Lincoln and pass along a route, which would substantially shorten the distance to the Tractor plant and also pick up those employees who joined in the arrangement at the three intervening stops or villages not located on the route of the plaintiff company. Some of the employees were delivered at the main entrance and the remainder continued on to the parking lot on the premises of the Tractor Company. Some of the men began work as much as 15 or 20 minutes before the hour and some continued work for that length of time after the approximate hour of each of the shifts on which they were employed, and the busses were to remain there for such length of time as was necessary to protect the employees against the weather, and to arrive in time or remain until all the. men reached or left their said place of employment on the different shifts, regardless of the length of time such service would require. No provision was made for carrying any other passengers than said employees, who were identified by badges which they wore and some also by the shoes required by the Tractor Company, while many of the men were personally known to the bns drivers. Daily or weekly round trip tickets were furnished and sold to each of them as above indicated. A similar arrangement to that of the Hantel group was made between another group of said war workers and the defendants Sandel and Kirkhart, who operated their bus as copartners. Two International school type busses were purchased; one by Hantel for $3,024, being a twenty-eight passenger bus and another by Sandel and Kirkhart for $2,500, being a forty passenger bus. Two tiers of the seats were removed from the rear and the remainder so spaced as to allow ample room between the seats to thereby better accommodate travel by the employee passengers. A notice or announcement to Caterpillar workers of the time and place when the busses would leave Lincoln was inserted in one issue of the Lincoln daily newspaper by each owner, which notice the bus owner testified to having been published to invite or notify the men entering the arrangement in lieu of personal or telephone notices to each of them, and only one notice was so given by each owner. No schedule was carried in any advertisement to the general public nor were the above notices directed to the public in general. No reference was made therein to any person but employees of the Caterpillar Company. Before using his bus, Hantel caused the following inscription to be placed or painted upon the exterior of his bus; “Walter Hantel, Caterpillar men only.” The Kirk-hart-S andel bus bore the inscription “Bee-Line Bus Service, Caterpillar workers Only.” Liability insurance was procured and carried by each of the defendants. The operation of the two busses was begun by the respective defendants pursuant to the above verbal agreement and arrangements on February 18, 1942, and the busses continued to make the three round trips daily for the ensuing two weeks, when the temporary restraining order of the court was served upon them and was continued in effect for forty-two days at which time it was dissolved and was followed by the subsequent action and orders of the chancellor hereinabove recited. It clearly appears from the greater weight of the testimony that no passengers other than the respective groups of employees with whom the defendants had negotiated and other employees who might expressly join in that arrangement were either invited or permitted to ride upon the above busses aside from three or four individuals who rode one trip only to the tractor plant on the busses without charge while seeking employment there, according to the testimony of the defendants, and it also appears from the master’s approved report of testimony and from the evidence that passengers were neither indiscriminately given transportation nor was the public in general invited or permitted to travel on the above busses.

Reference was made in the testimony of the defendants to advance trips made by them to Springfield where they had consulted George W. Anderson, Superintendent of Motor Vehicles of the Illinois Commerce Commission, as to whether or not they would be required to obtain Certificates of Convenience and Necessity and that they were advised that if the bus service consisted of transportation of the particular group of individuals under some private contractual arrangement with the operator, and if the service is not to be made available for general public use, the operation was not subject to any regulation either of the Commission or other State departments. Objection to this proof was made and sustained by the master as hearsay and as immaterial upon the questions as to whether or not they were legally required to take out such certificates as public utilities or as carriers of passengers indiscriminately for hire in furnishing the transportation in question. The statement was permitted to stand in the record as tending only to show the good faith of the defendants in seeking such information.

On behalf of the defendants, all of them testified, together with their drivers and the witness McAllister and another employee group leader and Caterpillar worker named Kavelman. For the plaintiff, aside from the exhibits offered and admitted, the officers or agents of the Company at Lincoln and Peoria testified, together with two of the passengers who rode upon the busses as applicants for employment at the Caterpillar plant and contended that they had paid for their tickets, which was denied by the defendants. These witnesses were subsequently employed by the plaintiff company and were so employed at the time they testified. Certain witnesses also testified as to time and rate schedules, costs of operation of the busses and service furnished by plaintiff and defendants, and on the question of damages and solicitors’ fees. We cannot herein detail all of the testimony of record in controversy relating to the operation of the busses on each of these daily trips and the number of passengers concerning whom extended direct and cross-examination of witnesses was had, but from carefully reading and considering the entire record, we are satisfied that in the finding of facts which were material to the issues herein, the master’s report and the decree of the chancellor confirming the same were in accord with the greater weight of the evidence, and we further find and hold that the master did not err in his recommendation nor the court in its decree finding under the particular facts and circumstances disclosed by the evidence that the respective defendants were not operating as public or common carriers or as public utilities who would be required to procure Certificates of Convenience and Necessity from the Illinois Commerce Commission, but were operating as private carriers under specific contractual arrangements with the particular group of employees to whom they furnished such transportation, and that the written agreements signed by the respective parties and offered in evidence, although signed subsequent to the filing of the suit by the plaintiff, confirmed in substance the oral agreements and arrangements previously entered into by the parties and in no way prejudiced the rights of plaintiff, who was seeking by its suit to obtain not only the continuation of the temporary but also a permanent injunction restraining all future operations by the defendants.

In the appellant’s brief, it is said that “The question at issue in this case is whether the bus lines were operated as private carriers, which were not subject to regulation by the Illinois Commerce Commission, or as public utilities, ’ ’ and that the court erred in holding “that the bus lines owned and operated by the appellees were operated as private, and not as public or common carriers.”

Concerning the second of the foregoing questions or contentions of the appellant, which also constitutes its second specific assignment of error, the rule applies that when the plaintiff affirms and the defendant denies that the defendant is operating as a common carrier, the question becomes a controverted question of fact to be determined by a consideration of the evidence by the trial court. Rathbun v. Ocean Accident & Guarantee Corp., Ltd., 299 Ill. 562, 132 N. E. 754; Bare v. American Forwarding Co., 242 Ill. 298, 89 N. E. 1021; Hinchliffe v. Wenig Teaming Co., 274 Ill. 417, 113 N. E. 707; Beatrice Creamery Co. v. Fisher, 291 Ill. App. 495-498, 10 N. E. (2d) 220.

The weight and trend of authority in Illinois holds that a colnmon carrier is one who undertakes for the public to transport from place to place such persons or the goods of such persons as choose to employ him for hire. Transformer Corp. of America v. Hinchcliff, 279 Ill. App. 152; Rathbun v. Ocean Acc. & Guar. Corp., Ltd., supra; McCusker v. Curtiss Wright Flying Service, Inc., 269 Ill. App. 502; Beatrice Creamery Co. v. Fisher, supra.

Concerning the further question and first assignment by the appellant of error on the part of the chancellor below in holding under the factual situation presented that the busses operated by appellees were of a class not subject to the jurisdiction of the Illinois Commerce Commission under the provisions of the Illinois Utilities Act, the statute (sec. 55a, par. 57, Public Utilities Act, ch. 111%, Ill. Rev. Stat. 1943 [Jones Ill. Stats. Ann. 112.077]) relating to the operation of motor vehicles “along or upon any public street or highway in this state” applies to the “carriage of passengers for hire, indiscriminately accepting and discharging such persons as may offer themselves for transportation, along the course on which such vehicle is operated. . . .” One of the recognized tests to be applied to the prevailing facts is whether or not the carrier serves all of the public alike, who apply to him for carriage. This distinction is thoroughly discussed in the case of Rathbun v. Ocean Acc. & Guar. Corp., Ltd., supra, and the authorities cited therein. In the case of Austin Bros. Transfer Co. v. Bloom, 316 Ill. 435, 147 N. E. 387 a discussion of the distinction between private carriers and public or common carriers and what constitutes a public utility is set forth in succinct language. There, the question of whether or not a taxicab operator could lawfully furnish service to all members of the public who applied along a fixed route between Centralia and Sandoval, Illinois, in competition with a duly certified company, without first having procured a Certificate of Convenience and Necessity from the Illinois Commerce Commission, was before the court. It was there said, in paraphrasing part of the language of the applicable statute before the court, that “The term ‘public utility’ includes every person who now or hereafter may own, control, operate or manage within the State, directly or indirectly for public use, any plant, equipment or property used or to be used for or in connection with the transportation of persons between points within the State,” citing section 10 of the Public Utilities Act, supra, and the case of State Public Utilities Commission v. Bartonville Bus Line, 290 Ill. 574, 125 N. E. 373. It is further said that “The question whether a person, company or corporation is owning, operating or controlling a public utility is one that necessarily depends upon the special facts connected with the management, operation or control of such business. (Public Utilities Com. v. Noble, 275 Ill. 121.) Whether a given business or industry is a public utility depends upon the public character of the business or service rendered, which makes its regulation a matter of public consequence and concern because it affects the whole community. (Public Utilities Com. v. Monarch Refrigerating Co., 267 Ill. 528).” Concerning private and common carriers, it is there said that “Private carriers, as ordinarily defined, are those who, without being engaged in such business as a public employment, undertake to deliver goods or passengers for hire or reward. A common carrier of passengers has been defined as one who- undertakes for hire to carry all persons indifferently who may apply for passage so long as there is room and there is no legal excuse for refusal, and accordingly jitney bus proprietors, owners of stage coaches, hacks and omnibuses have generally been held to be common carriers. This is so because in their business they serve all the public alike who apply to them for carriage, so long as they have room, and they are held common carriers regardless of the fact whether they operate in cities or from town to town or from city to city, so long as they maintain their status as public carriers, carrying all who apply and refusing none unless they have no room or for some other legal reason may refuse. (Rathbun v. Ocean Accident Corp., 299 Ill. 562.)”

Plaintiff cites in support of its contention the case of South Suburban Motor Coach Co. v. Levin, 269 Ill. App. 323. There, the busses in question were driven up to the curb in front of the Sherman Hotel in Chicago. Defendant would stand upon the sidewalk and sell tickets to anyone who might desire to become a passenger to and from a dog race track and occasionally the defendant would also pick up passengers en-route to the track. Tickets were kept on sale by a ticket agent in the hotel and the service was publicly announced in the hotel lobby. The nature of this service to the public in general in competition with an existing public utility was therefore held to place the defendant in that class of cases wherein a complainant operator of a public utility is entitled to a decree enjoining the individual who, without authority of law, operates a similar utility which competes with and injures his business. The court, at page 333, stated that “We are not unaware that in order that the property owned by a person should be affected by a public use all persons must have an equal right to the service (State Public Utilities Commission v. Noble, 275 Ill. 121) and that it is the right of public use rather than the extent to which an instrumentality is in effective use that determines whether or not it is a public utility. However, the uncontradicted evidence shows that the public without any particular discrimination was invited to avail itself of the service provided by defendant and that the contracts for carrying these persons were, not in any sense private contracts. We hold that defendant in operating his business acted as a public carrier and is therefore subject to the laws and rules regulating and governing such instrumentalities.” The case of Austin Bros. Transfer Co. v. Bloom, supra, is then cited in support of the court’s conclusion. We think the distinction between that class of cases and the instant case is clear. Here, the service was not offered to the public indiscriminately nor did they pick up all passengers who applied at any terminal point or along the route but confined this service to the individual employees with whom specific arrangements were made for going to and from their places of employment at certain stated hours when such individual’s service was required; thus acting, under the particular facts and circumstances disclosed herein as this court and the chancellor below viewed them, as a private carrier and neither as a common carrier nor as a public utility requiring a Certificate of' Convenience and Necessity from the State Commerce Commission. The type of school busses as used herein by the defendants bore inscriptions indicating their traffic restrictions and were similar in make and service to those in general use throughout the State in transporting groups of students from their homes to the various schools, and to a considerable extent in general use by groups of workers under the present emergency which exists on account of the World War in which we are now engaged and in the furtherance of which unusual and extraordinary demands for service by private carriers, as well as increased and unprecedented demands upon all public carriers has arisen.

The contractual arrangements of the defendants as such private carriers, although providing for definite starting and stopping points, rates and times of furnishing such restricted transportation to its individual contract patrons and not “indiscriminately” as expressly provided in the language of the Public Utilities Act cited, supra, did not render the defendants subject to the jurisdiction of the Commerce Commission as public utilities or otherwise, and the Commerce Commission, in so ruling and so advising the defendants, properly held under the circumstances detailed in their opinion and likewise appearing in the evidence and so found by the chancellor below, that the defendants were not operating under their jurisdiction nor required to procure Certificates of Convenience and Necessity.

While those who have procured Certificates of Convenience and Necessity as public utilities and common carriers upon the streets and highways of this State are entitled to protection and redress against unlawful competition, it is equally true that private carriers who operate by special contractual arrangements in serving individual patrons under circumstances which do not require the procurement of such Certificate of Convenience and Necessity are entitled to like protection in the exercise and enjoyment of their lawful rights and privileges and are equally entitled to recover damages sustained as a proximate result of the unlawful invasion of and interference with the exercise of such lawful rights.

To the further contention of the appellant Company that the court erred in allowing solicitors’ fees to the defendants for services performed in procuring the dissolution of the temporary injunction, it need only be said that although the first motion in the nature of a demurrer to dissolve the temporary injunction was denied and the necessity for factual proof arose under the answers which required reference of the case to the master in chancery, followed by a second motion to dissolve the temporary order based upon due proof of such facts, does not preclude the court, in the exercise of its sound discretion, from allowing reasonable solicitors ’ fees to the defendants for services actually rendered in procuring the dissolution of the temporary order which prevented the defendants from continuing' the lawful pursuit of their business until the case was finally disposed of, nor upon suggestion of damages by the defendants which required a reference to the master for factual proof in relation thereto, followed by the allowance of damages shown to have been sustained by thus preventing the operation of the defendants’ business during the forty-two day period that the temporary restraining order continued in force. Much testimony was heard before the master and court in relation thereto and the question of the propriety of allowing damages to the defendants under the evidence, together with reasonable solicitors’ fees, in the procurement of the dissolution of the temporary restraining order, appear to this court to have been properly submitted to the chancellor below. Under the facts in evidence, without specifically reciting or analyzing the same, it appears to this court that the allowance of damages and the amount so allowed were amply sustained by legal and competent evidence and were properly allowed by the court. We further find and hold that the allowance to the defendants of reasonable solicitors ’ fees after evidence heard in relation thereto and the order fixing the same by the court was both proper and reasonable and that the chancellor committed no error therein.

Finding no reversible error in the record, the decretal orders of the circuit court of Tazewell county will be affirmed.

Affirmed.


author: Mr. Presiding Justice Friend

text:
    Robert D. Gordon and David S. Law, Executors of Will of Donald A. Gordon, Appellee, v. Conlon Corporation, Appellant.
    Gen. No. 42,641.

      Opinion filed June 16, 1944.
    Rudolph L. Johnson and David A. Skalitzky, both of Chicago, for appellant.
    Levinson, Becker, Peebles & Swiren, of Chicago, for appellee; Don M. Peebles, of Chicago, of counsel.
   Mr. Presiding Justice Friend

delivered the opinion of the court.

Plaintiff was the owner of two unsecured $1,000 Six Per Cent Sinking Fund Debenture Cold Bonds which were part of a series issued by defendant, Conlon Corporation, in 1926, under a trust agreement with the Chicago Trust Company, as trustee, in the aggregate sum of $450,000. When the bonds matured in 1936 the unpaid balance of the issue, totaling $205,700, was extended by agreement of the bondholders to April 1, 1941. Plaintiff’s two bonds were deposited for extension pursuant to that agreement. The unpaid balance of $166,300 became due by extended maturity in 1941. The company then negotiated for a second five-year extension, to which 87 per cent of the outstanding bondholders consented. Plaintiff did not agree to the second extension, bnt demanded payment of his $2,000'of bonds. Upon the company’s refusal to pay, and without making any prior demand upon the trustee to institute an action in his behalf or on behalf of all bondholders, plaintiff brought suit in his own name. The cause was heard by the court upon stipulated facts, resulting in a finding and judgment in favor of plaintiff for $2,210 and cost’s, from which defendant. appeals.

The sole question presented is whether the trust agreement imposes such a limitation upon the bondholder as to prevent him from bringing suit in his own name at the maturity of the bonds, upon failure of the company to make payment according to their tenor. The answer depends upon the interpretation to be given to the so-called no-action provision of the trust agreement. The bonds in suit recite that they were issued under a certain trust agreement “to all provisions of which . . . this bond and the rights of the bearer or registered holder are subject and . . . which by receipt hereof the bearer or registered holder accepts.” Section 1 of article six of the trust agreement specifies and enumerates the following “Events of Default”: (a) failure to pay interest when due, (b) failure to make redemption of bonds after notice of redemption has been given and published, (c) failure to maintain sufficient assets, (d) failure to maintain the sinking fund, (e) failure in the observance of any performance of a covenant contained in the bond, and (f) a ceasing to do business on the part of the company. Following the “Events of Default” referred to, section 6 of article six contains the following provision, upon which the defense herein is predicated: “All rights of action on or because of the bonds and interest coupons of any of them, or under this trust agreement, except as hereinafter provided, are hereby expressly declared to be vested exclusively in the Trustee, and such rights may be enforced by the Trustee without the possession of any such bonds or interest coupons. No holder of any such bond or interest coupon shall have any right to institute any suit, action or proceeding for the enforcement of any of the terms of this agreement or of such bonds or coupons without first giving to the Trustee written notice that one or more of the events of default hereinabove mentioned has occurred, nor unless the holders of one-fourth in principal amount of the then outstanding bonds shall have requested the Trustee in writing, and shall have afforded it reasonable opportunity to institute such action, suit or proceeding in its own name, and shall have offered satisfactory indemnity to the Trustee, and shall have deposited their bonds with the Trustee if so requested by the Trustee; but if the Trustee shall have failed to take such action for thirty (30) days after such written notice, request, offer of indemnity and deposit of bonds, the holder of any bond or bonds may proceed thereon.”

Plaintiff seeks to support the judgment entered in his favor primarily on the ground that the provisions of the trust agreement do not apply to any action brought at law, for the recovery of the principal, after maturity of the bond by lapse of time, and that the so-called restrictive provision appearing upon the face of the bond is simply a reference to the provisions of the trust deed with respect to the rights of a bondholder prior to maturity and does not in any manner limit or deny his right to sue at law after the bonds mature. Defendant, on the other hand, takes the position that by virtue of the language appearing on the face of the bonds, plaintiff has no right to sue in his individual capacity; that by the language of the bond and the trust agreement under which the bonds were issued, all rights of action, including suit at law on the bond after maturity, are vested in the first instance, exclusively in the trustee, and that no right of action at law vests in the bondholder in the second instance until he has performed the conditions precedent expressed in the contract sued upon, namely, a proper demand upon the trustee to institute suit and the failure of the trustee thereafter to take action within a specified time.

Both parties say there is no case in Illinois precisely similar to the one here presented. Oswianza v. Wengler & Mandell, Inc., 358 Ill. 302, which is commonly cited, presents different questions. In that case, unlike the one at bar, the note was secured by mortgage or trust deed, and the principal question involved was whether the no-action feature of the trust deed could be read into the bonds or, in other words, whether the bonds by their terms were subject to the provisions of the trust deed affecting the right to sue. The court held that the language incorporated in the bond was applicable only to the description of the mortgaged property and the nature and extent of the security, and referred to the rights conferred upon the bondholders in case they desired to look to the securities for payment of the bonds. The trust deed in that case contained a complete no-action clause vesting exclusive right of action in the trustee, but because the language of the bond did not reasonably incorporate therein, by reference, the no-action clause of the trust deed, the court held that the provisions contained in the no-action clause did not bar the right of the holder to sue upon the bond at maturity. In the case at bar there appears on every bond, including those in suit, clear and emphatic language calling the attention of the prospective purchaser or holder thereof, to the fact that the holder’s right to sue at law is qualified. In the Oswianza case the Supreme Court, in drawing the distinction between limitations on the right to sue appearing on the face of the bonds themselves, or solely a reference to a trust deed which contains a no-action clause, cited with approval Lidgerwood v. Hale & Kilburn Corp., 47 F. (2d) 318, Crosthwaite v. Moline Plow Co., 298 F. 466, and Oster v. Buildings Development Co., 213 Wis. 481, 252 N. W. 168.

In the Lidgerwood case the language appearing upon the face of the bonds was almost identical with that appearing on the face of the debentures in this proceeding, with the exception, however, that in this case there is the additional language that “except as otherwise provided in said Trust Agreement all rights of action under this bond and the interest coupons attached are vested in said Trustee.” As here, the limitation on the right to sue in the Lidgerwood case appeared in the no-action clause of the trust agreement which was incorporated by reference on the face of the debenture bonds. Plaintiff there sued at law on the face of the bonds and defendant moved to dismiss the complaint on the ground that plaintiff “has not pleaded performance or satisfaction of the conditions precedent set forth in the extract of the agreement just quoted. The defense is the nonfulfillment of these conditions.” In dismissing the complaint, the court construed the limitations there imposed on plaintiff’s right to sue and observed that the note contained defendant’s undertaking to pay a set sum on a set day, subject, however, to all the provisions of the agreement between the defendant and the trustee, stated that the reference to the agreement was clear, emphatic and comprehensive, and pointed out that in order “to bind the holder beyond peradventure, the note reads, ‘to all the provisions whereof the registered owner or holder, by acceptance hereof, assents. ’ ’ ’ Similar provisions are contained in the trust agreement here under consideration.

In the Crosthwaite case, suit was likewise brought at law on certain debenture notes issued under a trust agreement in which defendant filed a motion to dismiss. The motion was granted. The notes specifically incorporated the terms of the trust agreement which placed a limitation on the right of the holder to sue in a so-called no-action clause. In granting defendant’s motion to dismiss, the court held that the notes and the trust agreement were not inconsistent but had to be read together in order to ascertain the provisions of the entire contract; that the provisions incorporated in the agreement were not at all unusual; that the holders of the notes under the language employed were charged with notice of all the terms of the agreement ; that the notes were not secured by any property and the restrictive provision expressly deprived the noteholder of his right to proceed at law or in equity for the collection of the note, and said that “Its effect is to modify the remedy for its enforcement, and the parties to the contract — i. e., the noteholders — have accepted the notes with notice of the limitation.”

Likewise in the Osier case, where the language appearing on the face of the bond was held to be sufficient to incorporate by reference limitations on the right of individual bondholders to sue, the court enforced the limitations of the agreement and denied thé noteholder the right of recovery.

Plaintiff relies principally on Bullowa v. Thermoid Co., 114 N. J. L. 205, 176 Atl. 596, where the court had before it a trust agreement which specified events of default similar to those before us, but the trust agreement differed from the instant agreement in that the no-action clause contained a proviso or exception stating expressly that nothing therein should impair the obligation to pay at maturity or the right of action by the noteholder to enforce such payment; and the court held that solely for that reason the no-action clause did not apply to a bondholder’s right to sue at maturity.

Plaintiff seeks an interpretation which would draw a distinction between the right of a bondholder to sue in his own name for one of the events of default set forth in the trust agreement, and his right to enforce payment after maturity by lapse of time. The suggested distinction is largely predicated on the absence in section 1, article six of the agreement of a provision relating to the failure to pay the bond at maturity as an event of default, and his counsel argue that this omission should be construed to mean that the limitation on the right of the bondholder to sue is confined to the events of default specifically enumerated. However, we find from an examination of the trust agreement that section 1 of article six also provides that “if default shall be made in the payment of the principal of any of said bonds when the same shall become due and payable by lapse of tune,” the trustee in its own name may take such proceedings at law or in equity as may be advised by counsel to enforce the payment of the bonds and to obtain all other appropriate relief. This language unquestionably includes the trustee’s right of action on behalf of the bondholder in the. event of default in the payment of principal at maturity, as well as for any of the interim defaults specified in the first section of article six.

The only exception in the whole of article six to the trustee’s right of action appears in section 6 thereof in the following language: “All rights of action on or because of the bonds ... or under this trust agreement, except as hereinafter provided, are hereby expressly declared to be vested exclusively in the Trustee .... No holder of any such bond . . . shall have any right to institute any suit, action or proceeding for the enforcement of any of the terms of this agreement or of such bonds . . . .” This provision includes actions on the bonds or under the trust agreement, and does not except suit on bonds due by lapse of time. The exception “as hereinafter provided” in favor of an individual bondholder’s action is stated in section 6 as follows: “. . . but if the Trustee shall have failed to take such action for thirty (30) days after such written notice, request, offer of indemnity and deposit of bonds, the holder of any bond or bonds may proceed thereon.” Plaintiff concedes that the exception noted did not happen. In fact his counsel stipulated that no demand was made upon the trustee before starting suit. A similar provision was found in the trust agreement in the Lidgerwood case and the court pointed out that under one of the provisions a noteholder could not sue for the enforcement of any of the covenants unless and until certain things came to pass, and held that the clause in question must apply to the defendant’s covenants or agreements in the notes to pay the principal sum on maturity, “or else ordinary language has lost its meaning. ’ ’

As an additional ground for affirming the judgment, plaintiff argues that the no-action provision cannot apply in any event because the company, by extending the agreement, so altered its terms without plaintiff’s consent as to render the clause inapplicable. Judge Fisher adopted that view as one of his reasons for entering judgment in favor of plaintiff, and stated his conclusion as follows: “If any bondholder cannot obtain the feoncurrence of one-fourth of the holders of the outstanding bonds to such a request he may never sue in his own name no matter how unreasonable or arbitrary the trustee would be. Here 87 per cent of the holders of the outstanding bonds entered into an agreement with the makers of the bonds to extend the period of payment for five years. There is not a fourth left to make the request or capable of making the request that the trustee should sue. By this action the defendant and other bondholders have made the condition precedent upon which the defense rests impossible of performance.” It would be more accurate to say that plaintiff’s inability to obtain the requisite number of consents is the direct effect of the contract and not the result of an unwarranted act by defendant. There was nothing unusual or illegal in asking for a second extension. A considerable part of the indebtedness had been paid after the first extension was granted, and defendant undoubtedly believed that the balance would be liquidated within the second five-year period without suit. It must be conceded, of course, that plaintiff could withhold his consent to defendant’s request, but the large majority of bondholders were equally within their rights in acceding thereto. In obtaining the consent of the large majority of bondholders, the effect on plaintiff’s right to sue was the same as if no extension had been granted, and 87 per cent of the bondholders had refused to join in a demand on the trustee to enable plaintiff to obtain the required concerted action of 25 per cent of the bondholders. In any event, the request did not alter defendant’s contract with plaintiff in any respect; the promise to pay still remained in the agreement, as did the original limitation on plaintiff’s right to enforce that promise. (Allan v. Moline Plow Co. (C. C. A. 8), 14 F. (2d) 912, citing Crosthwaite v. Moline Plow Co., supra.)

The same question was raised in the Crosthwaite case where more than 95 per cent of the bondholders had agreed with the debtor. Plaintiff there contended that the no-action clause would prevent any suit from being brought and therefore was not binding upon him, but the court in answering that contention said: “It is apparent, of course, that the plaintiff has not complied and could not comply with this condition precedent, as not even a small fraction of 25 per cent of the noteholders are represented here, and all others have assented to the plan of reorganization and distribution. It might be argued that plaintiff’s contention only better illustrates the necessity or the force of the provision limiting the rights of noteholders to sue. ’ ’

For the reasons indicated we are of opinion that the court erred in entering judgment for plaintiff, and the judgment is therefore reversed and the cause is remanded with directions that the complaint be dismissed.

Judgment reversed and cause remanded with directions.

Scanlan and Sullivan, JJ., concur.


author: Mr. Justice Scanlan

text:
    Benjamin B. Morris, Appellant, v. Robert S. Beatty and Myrtle G. Beatty, Defendants. Chicago City Bank and Trust Company, Appellee.
    Gen. No. 42,783.

      Opinion filed June 16, 1944.
    Benjamin B. Morris, pro se; David I. Spark, of Chicago, of counsel.
    Rathje, Hinckley, Kulp & Sabel, of Chicago, for appellee; Joseph J. Sullivan, Jr. and William E. Fisher, both of Chicago, of counsel.
   Mr. Justice Scanlan

delivered the opinion of the court.

Benjamin B. Morris secured a judgment against Robert S. Beatty and Myrtle Q-. Beatty, in the Municipal court of Chicago, for $2,457.93. An execution issued and was returned by the bailiff “no property found and no part satisfied.” Morris commenced garnishment proceedings against the Chicago City Bank and Trust Co., as garnishee, and the garnishee filed its answer to the interrogatories filed by Morris. The trial court, without a jury, heard evidence and found the issues against plaintiff, entered judgment on the finding, and discharged the garnishee. Plaintiff appeals.

The answer of the garnishee states that at the time of the service of the garnishment summons upon it, it had and ever since that time has had, and now has in its possession belonging to Robert S. Beatty the sum of $82.35; that it has applied the said sum in part payment of an unpaid note of Beatty in the sum of $3,100 held by the garnishee; that at the time of the service of the summons upon it, it had and ever since that time has had and now has a contract for the rental of a certain safe deposit box to Robert S. Beatty and Myrtle Gr. Beatty; that it has no control over the contents of said box; that it has no other rights, credits, ¿hoses in action, effects, estate, property or moneys in its possession belonging to Robert S. Beatty and Myrtle G. Beatty. On March 30, 1936, the United States District court, in a bankruptcy proceeding, entered an order enjoining plaintiff from further prosecuting any proceedings in the Municipal court of Chicago to enforce the collection of the judgment in question until the further order of the court, and it was not until March 13, 1942, that an order was entered vacating the injunction order. On May 19, 1942, the garnishee filed a written motion that it be discharged on certain grounds, one of which was that plaintiff had failed to file a traverse to its answer, and at the same time the trial court entered a rule upon the garnishee to file a petition in support of its motion within five days. The garnishee never filed such a petition.

The garnishee contends that because plaintiff failed to file a traverse to its answer, which set up that it had no funds or property of the judgment debtor subject to garnishment, its answer must be taken as true, and therefore the judgment appealed from should be affirmed. It would be a sufficient answer to this contention to say that as the garnishee failed to file a petition in support of its motion for discharge, as required by the aforesaid rule, it thereby abandoned its motion for discharge. Moreover, upon plaintiff’s motion the court entered an order setting the garnishment proceedings for hearing and giving plaintiff leave to contest the answer of the garnishee. In that state of the record it was proper to proceed to trial without the fqrmality of further pleading. Sec. 7 of the Garnishment Act (ch. 62, par. 7, Ill. Rev. Stat. 1941 [Jones Ill. Stats. Ann. 109.290]), under the heading, “Issue — How made and tried,” provides that “the court or justice of the peace shall immediately (unless the case shall for good cause, be continued) proceed to try such cause, as against such garnishee, without the formality of pleading.” (Empire Car-Roofing Co. v. Macey, 115 Ill. 390, 397; Finch v. Alexander County Nat. Bank, 65 Ill. App. 337.) In the instant case, as the garnishee failed to stand on its answer and introduced evidence to sustain its answer, it cannot now contend that its answer should have been taken as true. In Pink v. Chinskey, 303 Ill. App. 55 (Abst. Dec.), the plaintiff filed no traverse of the garnishee’s answer, but the cause proceeded to trial in the Municipal court without a jury. Mr. Justice Friemd, speaking for this court, said:

“The garnishee takes the position that its verified answer should be taken as true if not denied or contested ; that the burden of proof in a garnishment proceeding is on the plaintiff to establish a garnishable debt; . . . and it is argued that under the provisions of Sec. 7 of the Garnishment Act (Chap. 62, Sec. 7, Smith-Hurd Ill. Rev. Stats. 1937) and Rule 226 of the Revised Civil Practice Rules of the Municipal Court of Chicago, the answer of the garnishee under them should be taken by the court as true where no traverse thereof is made, and that the court was justified in rendering judgment for the garnishee. Under ordinary circumstances these contentions could be justified by the statutory provisions and the decisions cited by garnishee’s counsel, but a careful examination of the abstract of the record clearly discloses that the parties submitted the cause to the court for trial and the question therefore arises whether the judgment was justified by the evidence adduced before the court. . . .
“The garnishee contends, of course, that since no traverse was made of its answer and of the intervening petitions, all of the facts averred in the answer and petitions were taken as true and that no evidence was necessary. If the garnishee and the petitioners had stood on their answers without a trial there might be some force to this contention, but they proceeded to introduce evidence, and having done so the real question presented to the court was whether the pleadings of the garnishee and intervening petitioners could be sustained by evidence. Plaintiff did make an oral traverse of all these pleadings and the parties having submitted the cause to the court for hearing plaintiff had a right to insist on a full trial.” (Italics ours.)

In Imperial Fire Ins. Co. v. Shimer, Adm’r, 96 Ill. 580, the court said (pp. 582, 583):

“Appellant was brought into court by proceedings of garnishment by creditors of Cunning, on the allegation that the company was liable to Cunning upon a policy of insurance. Appellant answered denying the liability. A jury trial was had on the issue thus formed. It is contended that all these proceedings at the trial should be disregarded and set aside, because no replication to the answer was filed. Whether siich a replication be necessary or not to make a case for a jury, we need not decide. Both parties treated the issue as properly made, and proceeded with the trial to verdict without objection on this ground. Appellant after that surely can not be allowed to object on that ground.” (Italics ours.)

See, also, Finch v. Alexander County Nat. Bank, supra, where the court said (p. 341): “There is nothing in the garnishment act to support the theory that the technicalities of common law pleading can be invoked in garnishment proceedings for the accomplishment of an inequitable end.”

The contention of plaintiff that as a result of the service of the .garnishment summons upon the garnishee a lien was created in his favor upon the property of defendants in the possession or control of the garnishee, is a meritorious one. (See Fornoff v. Smith, 281 Ill. App. 232, 237, 238.)

Plaintiff contends that “the contents of the safe-deposit box rented by the defendants from the garnish.ee in its vaults constituted effects or estate of the defendants in the possession, custody or charge of the garnishee, and were subject to garnishment.” This contention is, apparently, not contested by the garnishee. In its brief it states that plaintiff cites numerous cases from other jurisdictions holding that the contents of a safe deposit box are subject to garnishment, but it contends that said rule “is not directly involved in this case.” In any event, the contention of plaintiff is sustained by the authorities.

In Washington Loan & Trust Co. v. Susquehanna Coal Co., 26 App. D. C. 149, the Court of Appeals for the District of Columbia discusses the question at considerable length. The court states the contention of the garnishee as follows (pp. 152, 153):

“A safe-deposit box, it is urged, does not fall within the ‘goods, chattels, and credits’ of the defendant which may be attached. The trust company has no right to open its customer’s box, cannot know its contents and does not ‘have in possession or under its control’ any property of defendant which may be in the box; and these interrogatories, therefore, seek a vain thing, and also seek to violate the private and confidential relations existing between a safe-deposit company and its customers.”

In disposing of the garnishee’s contentions the court states (p. 154):

“Property of a defendant in a safe-deposit box of a trust company is either in the possession of the defendant, or in the possession of the trust company. . . . If it is in the possession of the trust company, such company may be garnished therefor, as in possession of personal property of the defendant capable of being seized and sold on execution. A mere device to guard from intrusion the defendant’s property in the vault of the trust company neither devests the defendant of his property, nor releases the company from its charge of defendant’s property. There is no magic in two keys, a master key and a customer’s key, to put property belonging to a defendant in an attachment beyond the reach of creditors and the process of the courts.” (Italics ours.)

To the same effect are Trowbridge v. Spinning, 23 Wash. 48, and Tillinghast v. Johnson, 34 R. I. 136.

In National Safe Deposit Co. v. Stead, 250. Ill. 584, it was held that where a safety deposit company leases a safety deposit box or safe and the lessee takes possession of the box or safe and places therein his securities or other valuables, the relation of bailee and bailor is created between the two parties and the fact that the safety deposit company does not know the character or description of the property that is deposited in the box, does not change that relationship. The court quotes with approval the following from Lockwood v. Manhattan Storage & Warehouse Co., 28 App. Div. 68, 50 N. Y. S. 974 (p. 595): “It is urged upon the part of the defendant that it was not the bailee because it was not in possession of the plaintiff’s property. If it was not, it is difficult to know who was. Certainly the plaintiff was not, because she could not obtain access to the property without the consent and active participation of the defendant. She could not go into her safe unless the defendant used its key first and then allowed her to open the box with her own key, thus absolutely controlling the access of the plaintiff to that which she had deposited within the safe. The vault was the defendant’s and was in its custody, and its contents were 'under the same conditions. As well might it be said that a warehouseman was not in possession of silks in boxes deposited with bim as warehouseman because the boxes were nailed up and he had no access to them.” The court held that the safety deposit company in that case “is in the legal custody and control of” the property deposited in the box. The court was not called upon to pass upon certain questions now before us.

It appears from undisputed evidence introduced upon the trial that after the garnishee was served in the garnishment proceedings it allowed defendants access to their safe deposit box on at least three occasions, December 11, 1935, November 17, 1936, and December 31, 1936. The first occasion was three and one-half months before the United States District court issued the injunction order. Plaintiff contends, (1) “The garnishee having answered that it has in its possession a safe-deposit box rented to the defendants, but that the defendants were indebted to it in a large sum of money, and then having allowed the defendants access to such box after answer and before trial, the garnishee must be said to have admitted that the property in its possession was that of the defendants, and there should be a judgment against the garnishee.” (2) “The plaintiff having introduced evidence to show that the garnishee allowed the defendants access to the safe-deposit box in its possession after answer and before trial, the burden devolved upon the garnishee to explain the unauthorized entries by the defendants, and, having failed to discharge such burden, there should be a judgment against the garnishee.”

“In Addyston Pipe Co. v. City of Chicago, 170 Ill. 580, 584, the court states: ‘The process of garnishment and a creditor’s bill are, in effect, instituted for the same purpose. They are, as a general rule, instituted to reach money in the hands of a third party due and owing from a judgment debtor to a judgment creditor. A reference to the statute under which the two proceedings are instituted will show their similarity.’ The court, after quoting section 1 of the Garnishment Act and section 49 of the Chancery Act, further states (p. 585):

“ ‘Under the section of the statute providing for garnishment, where an execution has been issued and returned no property found a summons may be issued against the person supposed to be indebted, commanding him to answer as garnishee; under the other statute, where an execution has been issued and returned no property found a creditor’s bill may be filed. The object attempted to be reached in each case is practically the same. In one case a judgment may be rendered as in an action at law, while in the other a money decree may be rendered. An execution may issue in either case.’
“In Goodwine State Bank v. Wise, 263 Ill. App. 291, the court said (p. 295): ‘ . . . it is also settled law, that a creditor’s bill is considered in the same legal category as a garnishment proceeding when filed to accomplish the same purpose.’
“Sections 24 and 22 of chapter 62 (Garnishment Act) confer equitable powers upon the court in garnishment proceedings.
“In LaSalle Opera House Co. v. LaSalle Amusement Co., 289 Ill. 194, a garnishment proceeding involving a question different from the one in the instant case, the court, after referring to Adams v. Young, 200 Mass. 588, states (p. 199): ‘That case was a suit in equity while this is a proceeding in garnishment, but under section 24 of the Garnishment Act, which gives the court power to make all orders in regard to property under the control of the garnishee which may be necessary or equitable between the parties, the court exercises an equitable jurisdiction.’ ” (Fidelity Coal Co. v. Diamond, 322 Ill. App. 229, 240, 241. Italics ours.)

In West Cache Sugar Co. v. Hendrickson et al. (Zion’s Savings Bank & Trust Co., Garnishee), 56 Utah 327, 190 Pac. 946, it was sought in garnishment proceedings to reach the contents of a safety deposit vault in the garnishee’s possession. In its opinion the Supreme court of Utah states (p. 949):

“ . . . It is true that in 20 Cyc. 1022, it is said: “ ‘According to the weight of authority, property
or funds deposited with a safety deposit company cannot be reached by garnishment proceedings. ’
“The text just quoted, however, was written more than 14 years ago, and since then a number of courts of last resort have held the law to be otherwise under statutes the provisions of which are substantially the same as those of this state. If we keep in mind that the relationship existing between the lessor of a safety deposit box and that of his customer is one of bailee and bailor for hire, we should encounter little, if any, difficulty in arriving at the conclusion that the contents of such boxes are subject to the process of garnishment or attachment, and that the boxes themselves may be ordered opened by the court for the purpose of reaching their contents. To that effect are the following well-considered cases: Tillinghast v. Johnson (1912), 34 R. I. 136, 82 Atl. 788, 41 L. R. A. (N. S.) 764, Ann. Cas. 1914 A, 960; Washington Loan, etc., Co. v. Susquehanna Coal Co., 26 App. D. C. 149; Trowbridge v. Spinning, 23 Wash. 48, 62 Pac. 125, 54 L. R. A. 204, 83 Am. St. Rep. 806; National Safe Deposit Co. v. Stead, 250 Ill. 584, 95 N. E. 973, Ann. Cas. 1912 B, 430; United States v. Graff, 67 Barb. (N. Y.) 305, affirmed in 4 Hun, 634.
“It certainly would be a reproach to our jurisprudence and to the administration of the law if it were held that the law may successfully be defied by human agencies, and that courts cannot make their processes effective merely because valuable property may be locked and concealed in a steel safe or receptacle. The court’s orders may not be baffled merely because the lessee or owner of a safety deposit box refuses to surrender the key by which the box, in connection with the master key, is opened. If, therefore, there is any method or device available by means of which such boxes can be opened without destroying them and their contents, the courts have ample power to direct those who have possession and control of such boxes to open them by any available method, and to deliver the contents thereof into the custody of the law as hereinafter more specifically pointed out.”

In Trainer v. Saunders, 270 Pa. 451, it was held that the trial court had the power to compel the trust company to open the safety deposit box. (See, also, National Safe Deposit Co. v. Stead, supra.)

Plaintiff contends that had the garnishee complied with the provisions of the Garnishment Act and performed the duties imposed upon it by the Act, it would have refused defendants access to their safety deposit box until the final proceedings, in which event the contents of the box would have remained intact until such hearing; that at the hearing the court would have been authorized to issue an' order requiring the garnishee to open such box, inventory its contents, deliver the same to the bailiff and apply the same toward the payment of the judgment of plaintiff against defendants ; that the garnishee acted at its peril in permitting the judgment debtors access to the box and the trial court should have entered a judgment against it for the amount of plaintiff’s judgment against defendants. The garnishee’s answer to this contention is that no proof was offered by the judgment creditor as to the contents of the box between the date of the service of the garnishment writ and the filing of the garnishee’s answer and therefore there is no authority or statutory basis for a judgment against the garnishee. In support of its contention the garnishee cites Framheim v. Miller, 241 Ill. App. 328, as a case that supports its position. That case, in our opinion, is distinguishable from the instant one. The opinion states, as it well might, that “the record is somewhat confused. ” It is clear, however, that there was no evidence introduced that the garnishee had permitted the judgment debtor to enter the safe deposit box after service had been had upon the garnishee. The opinion states that the garnishee had refused and failed to comply with an order to open the safety deposit box and that the trial court entered judgment against the garnishee for its failure in that regard. The judgment creditor apparently justified the entry of the judgment upon section 25 of the Garnishment Act, and the court held that that section did not authorize a punishment of the garnishee for contempt or to enter judgment against the garnishee unless it appeared that the garnishee had property in its possession belonging to the defendant. It would appear that section 24 of the Act was not called to the attention of the court. That section reads as follows (ch. 62, par. 24, Ill. Rev. Stat. 1943 [Jones Ill. Stats. Ann. 109.307]):

“24. Equitable powers of court.] § 24. When it shall appear that any garnishee has in his hands, or under his control, any goods, chattels, choses in action or effects, belonging to or which he is bound to deliver to the defendant, with or without condition, the court or justice of the peace may make any and all proper orders in regard to the delivery thereof to the proper officer, and the sale or disposition of the same, and the discharging of any lien thereon, and may authorize the garnishee to sell any such property, or collect any choses in action, and account for the proceeds thereof; or, if the proceeding be in a court of record, the court may appoint a receiver to take possession and sell, collect or otherwise dispose of the same, and make all orders in regard thereto which may be necessary or equitable between the parties.”

It will be noted that in the Framheim case the court said (p. 332): “. . . it has been held in other jurisdictions, in proceedings somewhat similar to the one at bar, that the garnishee may be compelled, by order of court, to open a safety deposit box. West Cache Sugar Co. v. Hendrickson, 56 Utah 327, 190 Pac. 946, 11 A. L. R. 216; Trainer v. Saunders, 270 Pa. 451, 19 A. L. R. 861.” We are satisfied that under section 24 of the Garnishment Act, the trial court, in the instant case, in the exercise of the equitable powers given it by that section, had the power to order the garnishee to open the box in question, but plaintiff did not request such an order because the unauthorized and illegal conduct of the garnishee in allowing defendants access to their safety deposit box after the service of the garnishment summons made it plain that such an order would have been but an idle gesture. The garnishee does not attempt to justify its conduct in allowing defendants access to the box — indeed, it cannot justify it — but it boldly asserts, in effect, that even though it made it impossible for plaintiff to prove the contents of the box, nevertheless, plaintiff, under the law, cannot recover a judgment against it. If such were the law, it would lie in the power of safety deposit companies to defeat garnishment actions against them regardless of the equities of the cases. We take judicial notice of the well known fact that a considerable number of people now place their money, securities, jewelry, etc., in safety deposit boxes, and the law is not so weak that it will permit a safety deposit company, acting in concert with a box holder, to defy and frustrate a garnishment summons by permitting the safety deposit box holder to have access to his box after the service of summons. Under the facts of this case the garnishee acted at its peril when it saw fit to put it out of the power of plaintiff to prove the contents of the box, and equity requires that the garnishee bear the burden of proving the contents of the box. It refused to assume that burden, although it appears that it was on friendly terms with defendants. A safety deposit company that obeys the law will not be called, upon to bear such a burden.

It appears that on October 3, 1935, the garnishee bank held a note for $3,100 signed by Robert S. Beatty, defendant, and indorsed by Myrtle G. Beatty, defendant, and it held as collateral security for the note a certain mortgage in the sum of $5,000 on a piece of real estate owned by one Beatty. The garnishee was served with summons on November 9, 1935, but it did not liquidate the collateral in its hands and apply the proceeds on account of the debt due it from defendants. On December 7, 1935, it renewed the obligation. On February 25, 1936, it accepted $50 from defendants and reduced the obligation from $3,100 to $3,050. On April 7, 1936, it renewed the indebtedness for the reduced amount. It subsequently renewed the indebtedness on May'2, 1936, June 10, 1936, July 6, 1936, September 3, 1936, March 17, 1937, May 11, 1937, and August 10, 1937. On May 24, 1938, it sold the collateral for $1,500 and accepted the $1,500 in full satisfaction of the note. It further appears from the records of the garnishee bank that on. July 30, 1936, it charged the sum of $3,050 due upon the note to undivided profits as a loss. It decided, apparently, on that day, to consider the amount due on the note an absolute loss although it had in its possession at the time the collateral heretofore mentioned. But for some reason not shown by the record, on September 3, 1936, it renewed the note. Plaintiff contends that ‘ ‘the garnishee having answered that it holds collateral which the defendants have deposited with it as security for the repayment of a debt to it, and then, instead of applying the collateral to the payment of such debt to it, renewed the note for such debt after answer and before trial, the garnishee must be said to have waived its right to such collateral, and there should be a judgment against the garnishee;” that the right the garnishee bank had to apply the collateral toward the payment of the note was lost when it constantly continued to renew the note; that each renewal constituted a new arrangement between the parties. Plaintiff cites in support of this contention Obergfell v. Booth, 218 Ill. App. 492, and other cases, and he insists that he would be entitled, in any event, to a judgment against the garnishee for the amount realized upon the collateral. In our view of this appeal it is not necessary to pass upon this contention although we feel impelled to say that there is force in the argument of plaintiff that the record shows that the garnishee pursued a course wherein it completely disregarded the rights of plaintiff and its duty as garnishee. In further support of this argument, plaintiff cites the fact that after the service of the summons the garnishee honored two checks drawn by Robert S. Beatty, defendant, on his account with the garnishee bank.

The judgment of the Municipal court of Chicago is reversed, and the cause is remanded with directions that a judgment be entered against the garnishee for the amount of the judgment of plaintiff against defendants Robert S. Beatty and Myrtle Gr. Beatty.

Judgment reversed and cause remanded with directions.

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


text:
    Samuel S. Palumbo, Trading as Palumbo Excavating Company, Appellee, v. Harry M. Quinn, Inc., et al., Defendants. Harry M. Quinn, Inc., Appellant.
    Gen. No. 42,894.

      Opinion filed June 16, 1944.
    John M. Mahoney and Edward McTiernan, both of Chicago, for appellant.
    Eckhart, Klein, McSwain & Campbell, of Chicago, for appellee; Paul Hassel and M. A. Palumbo, both of Chicago, of counsel.
   Mr. Justice Scanlan

delivered the opinion of the court.

Samuel S. Palumbo, doing business as Palumbo Excavating Company, sued Harry M. Quinn, Inc., Carrie F. Sittig and Charlotte D. White. Harry M. Quinn, Inc. filed a counterclaim against plaintiff. The case was tried by the court and at the conclusion of plaintiff’s evidence the cause was dismissed as to Charlotte D. White. At the conclusion of all of the evidence the trial court found defendant Harry M. Quinn, Inc. guilty and assessed plaintiff’s damages at $4,295.50; found the issues for defendant Carrie F. Sittig and entered judgment in her favor; and found the issues as to the counterclaim in favor of counterdefendant. While defendant Harry M. Quinn, Inc. (hereinafter called defendant) prayed an appeal from the judgment for $4,295.50 entered against it and also from the judgment entered on the counterclaim, it makes no point as to the judgment on the counterclaim.

Count two of the complaint, upon which the judgment for $4,295.50 was entered, alleges, in substance, that oh May 23, 1940, defendant Sittig sold and conveyed to plaintiff, by an instrument in writing, all the top soil from certain property (describing it) for a good and valuable consideration, which was fully paid; that plaintiff immediately stripped said soil, screened, processed and piled it upon the property, thereby making it completely prepared and ready for hauling purposes; that about June 18, 1941, plaintiff attempted to carry away the said soil and upon said date and other occasions he made a demand on defendants and each of them to deliver up possession and control of the said property; that he was at all times ready, willing and able to haul away the property; that on June 18 and 19', 1941, he was forcibly prevented from taking possession of his said property by defendant; that defendant, knowing that plaintiff was the true and lawful owner of said property and having-had good and sufficient notice thereof, wilfully, maliciously and in utter disregard of the rights of plaintiff, assumed possession and control and withheld from plaintiff the said property and converted the same to its own use; that as a direct and proximate result of said acts and doings of defendant he was prevented from performing his contract to deliver said soil to the Federal Housing authorities, as he was bound to do, thereby delaying the completion of his said contract and causing him great expense and inconvenience; that he was compelled to purchase other soil at a great increase in price, which soil was not prepared for hauling, and he was thereby caused other expense for preparing it. The count alleges other damages alleged to have been suffered by plaintiff. Defendant’s principal defense is that the land in question, together with all the hereditaments and appurtenances thereto belonging, including the top soil, was its property.

In May, 1940, and for many years prior thereto, Carrie F. Sittig was the owner of four blocks of real estate on the southwest side of Chicago. The district in which the property is located is flat prairie land. There were no homes for miles around. There were no streets or alleys in the land in question and no improvements upon it. Mrs. Sittig, through her agent, Mrs. White, had been trying to sell the property for ten or twelve years. Someone who wanted the top soil on the land offered Mrs. Sittig $2,500 for the four blocks about six months before defendant bought the property from her. On May 23,1940, she by her agent, conveyed to plaintiff, by bill of sale, all of the top soil from the four blocks of land. No time limit for the removal of the top soil was stated in the bill of sale, but plaintiff told Mrs. White that it would take over a year and that he would deliver the top soil to the Housing authorities from June, 1940, to July, 1941. The custom in the top soil trade is to make piles of the black dirt and allow it to remain standing for one or two years before delivery. Mrs. Sittig sold the four blocks of real estate to defendant and a deed was delivered and the purchase price paid on June 6, 1941. The deed makes no mention of the top soil that was piled upon the land. After the top soil had been conveyed to plaintiff he scraped from eight to ten inches of the top soil from the land, processed it to meet certain specifications, and piled it into eight or ten piles from five to nine feet high. The evidence conclusively shows that the top soil was severed, plowed, disced, pulverized, processed and made into piles on the land as black dirt long before defendant purchased the real estate. This entire work lasted from May, 1940, to August or September, 1940. It is undisputed that Mrs. Sittig and plaintiff treated the top soil, after it was severed, as personalty and both understood and agreed that it was severed for the purpose of removing it from the land.

Defendant contends that the piles of black earth that were allowed to remain on the land are real estate and that title passed to defendant under the deed from Mrs. Sittig. Plaintiff contends that the piles of black dirt were personalty when the said deed was made and that title to the same did not pass by the deed.

In Citizens Nat. Bank v. Kesl & Sons Co., 309 Ill. App. 273, a substantial recovery for the conversion of top soil was allowed. The court, said (p. 277):

“It has been established by the courts of this State that where one wrongfully removes soil from the land of another, the latter is not restricted to a recovery of the difference in value of his real estate before and after the trespass, but he may recover the value of the soil after it is severed from the land and becomes chattel property (Sikes v. Moline Consumers Co., 293 Ill. 112; Washington Ice Co. v. Shortall, 101 Ill. 46; Piper v. Connelly, 108 Ill. 646; Donovan v. Consolidated Coal Co., 187 Ill. 28).” (Italics ours.)

The Supreme court (378 Ill. 428) affirmed the judgment of the Appellate court. Both courts treat top soil after it is severed from the land as personal property.

In Anderson v. Todesca, 214 Mass. 102, 100 N. E. 1068, the Massachusetts court held that soil wrongfully removed from land becomes on severance personalty, for the conversion of which action lies.

In Riley v. Boston Water Power Co., 65 Mass. 11, it. was held that trover would lie against the bona fide purchaser of loads of earth wrongfully taken from the plaintiffs’ land, and without any demand or refusal, although the defendant was ignorant of the trespass when he converted the earth to his own use. The court held that the loads of earth when severed from the land became personal property.

In Phillips v. Bowers, 73 Mass. 21, the court followed the rule stated in Riley v. Boston Water Power Co., supra.

In Board of Commissioners of Rush County v. Trees, 12 Ind. App. 479, the court held (p. 485) that “the severance of the dirt from the realty changed it into personal property.”

In 1 Tiffany, Real Property (2d ed.) the author states (pp. 866, 867):

“Sec. 253. Individual rights of ownership. The ownership of land prima facie includes the soil or earth, and also the minerals in or on the ground, and consequently the tenant in fee simple of the land is ordinarily the owner of all deposits or strata of clay, stone, iron, and other mineral substances, and such substances, while thus in place are things of a real, and not a personal character. The minerals or the soil may, however, be removed from their natural position in or on the ground, and, ivhen thus severed from the land by one authorised to make the severance, they become personalty, even though they still remain on or below the surface of the land, provided, it seems, their removal from their natural position is with a view to their ultimate removal from the land.” (Italics ours.)

The foregoing statement of the law applies to the facts of the instant case. Even manure, like earth, sand, or gravel, when severed from the soil, gathered up and secured for use elsewhere, becomes a personal chattel, and as such is a subject of conversion. (65 C. J. 25.)

But defendant contends that the piles of top soil were covered with weeds and allowed to remain on the land, and the top soil became reattached to the land, and, therefore, is real estate and title to the same passed to defendant under the deed of conveyance. We will consider this contention in connection with a further one urged by defendant, that it had no notice, either actual or constructive, of the interest of plaintiff in the black dirt. Mr. Quinn, the president of defendant corporation,.has been in the business of building and selling homes in Chicago for thirty-five years; he has built about three thousand homes on land that he bought. Long before the purchase of the property in question he was familiar with the property and the character of the surrounding land. He testified that he passed the property every day for six months before he bought it and that it was his duty, before it was purchased, to see that the property was suitable for building purposes. The trial judge was fully justified in finding that Quinn knew that the property was not suitable for building purposes but that the land in question and the land surrounding it had a substantial value for one reason, — black dirt covered the land. As we have heretofore stated, Mrs. White testified that she had been trying to sell the property for ten or twelve years and that six months before defendant bought it she had been offered $2,500 for it by a man who wanted the top soil. In other words, it was the black dirt, detached from the land, that was valuable. In his testimony, Quinn attempted to convey the impression that he was not familiar with black dirt as personalty. Indeed, he testified that he had often “seen piles of black dirt in different locations, but I don’t know what it is used for.” He admitted, however, that practically all homes are landscaped and that landscaping involved, the spreading of black dirt upon the soil. The trial court was fully justified in finding that Quinn was familiar with the use of black dirt as personalty. In the fall of 1940 defendant, through Quinn, purchased a large tract of land at 77th street and Western avenue for a building project in which defendant agreed to furnish the landscaping. -Plaintiff testified that defendant’s attorney told him in May, 1941, that his client needed the dirt on the property in question “for his own property. ’ ’ Quinn testified that when he inspected the property in question he could see that about twelve inches of dirt had been taken off the soil and that he saw piles of dirt on the land. Frank Hametta, a witness for defendant, testified that the ground had been stripped and the dirt put on mounds. The evidence also shows that before defendant bought the Sittig property there were piles of black dirt on two adjoining properties and that plaintiff had bought the black dirt on the said properties. The argument of defendant that the piles of black dirt on the Sittig property were covered with weeds and the ground surrounding the piles was covered with grass and weeds and that this condition caused the piles of black soil to be reattached to the land, hardly merits serious consideration. Indeed, all who saw the piles had no difficulty in recognizing them as piles of black dirt. The piles varied in height from six feet to nine feet; they were fifteen to thirty feet wide at the base and from five to six feet wide at the top. A mere view of the premises plainly disclosed that the top soil had been stripped from the land and placed into large piles and that where the land had been stripped it left a depression from eight to twelve inches deep. Defendant received its deed to the land and paid for the property on June 6, 1941. Quinn admits that Palumbo told him in May, 1941, of his ownership of the top soil, and that his attorney contacted plaintiff around the end of May, 1941, in reference to “the dirt.” Mrs. White, a witness for defendant, testified that in May, 1941, the people who bought the property told her that Palumbo was on the property and that he was taking soil off the lots. In May, 1941, the police told plaintiff that they had orders from Quinn to stop plaintiff from removing the dirt.

We find that the evidence conclusively shows that defendant had not only constructive notice but actual notice of plaintiff’s interest in the black dirt piles before it received the deed from Mrs. Sittig and paid for the property. The argument that plaintiff’s title to the black dirt was not recorded is, of course, without merit, as the piles of black dirt were personalty and not real estate. The piles of black earth, in their processed condition, at the time defendant bought the Sittig property were worth, as personalty, $4,295.50, at least, and Quinn then knew their value. Defendant paid Mrs. Sittig, for the four blocks, $1,575, and yet it makes the unconscionable claim that it acquired, by its deed, not only the land in question but the piles of black earth that were upon it. Defendant purchased the land only, but the conclusion is unavoidable that Quinn had in mind, at the time of the purchase, holding by force the piles of black earth thereon. Defendant drove plaintiff off the land by force before it acquired the property and it retained possession of the piles of black dirt. It would be a serious reflection upon the administration of justice if defendant’s scheme were to prevail.

Several other contentions are raised by defendant, but it would unduly lengthen this opinion to pass upon the questions raised therein. Suffice it to say that we have considered all of the contentions and find them without merit.

An able and experienced judge tried this cause, and we are satisfied that the judgment he entered was the only one that could justly be entered under the facts.

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

Judgment affirmed.

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