text:
    Walter J. Hansen, Appellee, v. Henrici’s, Inc., Appellant.
    Gen. No. 42,503.

      Opinion filed June 21, 1943.
    Eckert & Peterson, of Chicago, for appellant; A. R. Peterson, Owen Rall and Harold W. Huff, all of Chicago, of counsel.
    Thompson, Chambers & Thompson, of Chicago, and Matthews, Jordan & Dean, of Aurora, for appellee; Everett Jordan, of Aurora, and Percival E. Thompson, of Chicago, of counsel.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.

In an action brought to recover damages for personal injuries received by plaintiff on October 14,1939, and on trial by jury, there was a verdict against defendant for the sum of $7,000. Motions of defendant for a new trial and for judgment notwithstanding were denied and judgment entered on the verdict.

For reversal error is contended in failing to direct a verdict for defendant at the close of all the evidence, in rulings of the court on the admission of evidence and in denying defendant’s motion for a new trial.

Material facts are practically undisputed. Defendant conducted a restaurant at 71 West Randolph street in the city of Chicago. Entrance to it was from the south side of the street and by two doors. The first, immediately adjacent to the sidewalk, was a swinging door. Just inside the swinging door was a space of about 5 feet leading to a vestibule in which was a revolving door. This door was about 7 feet in diameter by 7 feet 6 inches in heighth. It was a “Yam Kannel, C type” door, built about 30 years ago. It weighed approximately 1,600 pounds. The revolving door had four panels of about equal size dividing the door into four equal compartments. The door was suspended from a ball bearing device in the ceiling and turned around a pivot dropped into a bronze bushing in the floor. The door was inclosed within circular walls. There was a rail across each panel. By placing the hand on this rail the door was set moving and going. At the top of each panel and on the side and at the bottom were rubber and felt flanges, all of which were removable. As the door revolved the flanges contacted the floor, side walls and ceiling.

Plaintiff lived in Aurora. He was 79 years of age. On the day of the accident he had come to Chicago with members of his family. They separated with an agreement to meet at this restaurant about 6 p. m. The party consisted of plaintiff, his daughter, Mrs. Laura Miller, her husband, Mr. Charles Gr. Miller, and plaintiff’s son Norbert. The daughter and her husband arrived first at the restaurant and waited outside until they saw plaintiff and his son approaching. They then entered the restaurant through the swinging and revolving doors and stood by the bakery counter. Plaintiff entered through the swinging door, then entered the second or revolving door. A preponderance of the evidence indicates his son Norbert followed just behind in another compartment of the same door. Two young men came through the swinging door and just as plaintiff was leaving the revolving door one of these gave it a push, causing it to move rapidly. One of the panels struck plaintiff, threw him to the floor and severely injured him.

The complaint was filed July 16, 1940. It alleges negligence of defendant in construction of the revolving door and in the manner in which it was maintained. Evidence tended to show flanges or strips at the bottom of the door were frayed; that there ,was a space of about an inch between the flanges and the floor; that the flanges or strips on the side of the door were bent and curved; that the door revolved very fast; that the flanges on the sides of the door did not touch the wall half way up from the floor. There was evidence tending to show at the bottom of the door there was a space of about l/16th of an inch between the flanges and the floor. There were also witnesses who testified for defendant in substance that they had examined the door and did not see anything wrong with it, but evidence as to alleged negligence in the construction as well as maintenance of the door was conflicting.

We hold the court did not err in refusing to direct a verdict for defendant or in denying the motion of defendant for judgment notwithstanding the verdict. As to each motion'the question was whether there was any evidence from which, considered with all just inferences favorable to plaintiff, the jury could reasonably return a Verdict in favor of plaintiff. Defendant says there was no defect in the door and to that point cites Buzzell v. R. H. White Co., 220 Mass. 129, 107 N. E. 385. The Buzzell case was tried on a stipulation of facts, among others that the purpose of the pieces of rubber and felt, called flanges, was to prevent the entrance of cold air into the building to which the door was an entrance. The case turned on that point. In the later case of Norton v. Chandler & Co., 221 Mass. 99, where- it appeared the purpose of the rubber strips was not Only to shut out the cold air but to retard the speed of the revolving door, defendant was held liable. The evidence here indicates the strips on the door were placed there for both purposes. From the evidence the jury could reasonably find that the door (either through fault of construction or maintenance)' was in a condition-in which it revolved around the pivot unretarded by friction tending to lessen its speed. The jury could reasonably find the door defective in this respect.

A closer question arises through defendant’s contention that, assuming a defect in the door, it was not, on the uncontradicted evidence, the proximate cause of plaintiff’s injury. The evidence tends to show the immediate cause of the rapidity with which the door moved was a push on one of the bars by one or the other of the two young men who were going into the restaurant, following the plaintiff and his son. Defendant "cites Wiedanz v. May Department Stores Co. (Mo.), 156 S. W. (2d) 44, which is a similar case, held the defect of the door was not the proximate cause. The Massachusetts cases above cited are all to the contrary on this phase of the case. To these may be added Norsiff v. Worchester County Institute for Savings, 264 Mass. 228. Defendant invokes the rule announced in some cases that a defendant who does no more than create a condition which makes possible the happening of an accident is not liable because some third person, by an independent act, acting upon the condition created, brings about im'ury to another. Defendant cites Klomp v. Chicago M. & St. P. Ry. Co., 210 Ill. App. 375; Munsen v. Illinois Northern Utilities Co., 258 Ill. App. 438, and Campion v. Chicago Landscape Co., 295 Ill. App. 225, 14 N. E. (2d) 879.

We much doubt whether the manifold problems arising out of the doctrine of proximate cause can be solved by any metaphysical formula or made easier to solve bv changes of nomenclature. Whether we call the cause “proximate,” “legal” or “direct” matters little. It matters much that.legal liabilitv for bringing to pass that which harms another should be placed on the right person. Here, it seems facts recited show this plaintiff entirely free from any negligence tending to bring- about his own injury. The young men who, in haste and hurry, gave the push to the door which put it in motion at a dangerous speed, were, of course, responsible. Whether the defendant in the construction and maintenance of this door was also at fault was, we hold, a question for the jury to decide. Defendant invited plaintiff to its restaurant. The business was managed and controlled by it. Upon it was the duty of seeing to it that the ways of ingress and egress to its place of business were reasonably safe. The evidence shows one of the purposes of the strips of rubber and felt was that by contact with the door at the floor, at the top and on the sides of the several compartments, any unusual and dangerous speed might be checked or prevented. The question of whether defendant performed that duty was for the jury. Thomas v. Chicago Embossing Co., 307 Ill. 134, 139. We do not undertake to define the difference between “direct,” “proximate” and “concurring” causes. It is sufficient to say the jury was justified in finding the injury plaintiff received was one which, • in the exercise of care, defendant ought to have foreseen would probably occur.

In Restatement of Torts, section 447, is this statement.

“The fact that an intervening act of a third person is negligent in itself or is done in a negligent manner does not make it a superseding cause of harm to another which the actor’s negligent conduct is a substantial factor in bringing about, if (a) the actor at the time of his negligent conduct should have realized that a third person might so act, or (b) a reasonable man knowing the situation existing when the act of the third person was done would not regard it as highly extraordinary that the third person had so acted, or (c) the intervening act is a normal response to a situation created by the actor’s conduct and the manner in which it is done is not extraordinarily negligent.’’

This rule of the Restatement has been approved often by this and the Supreme Court of this and other States. Illinois Cent. R. Co. v. Oswald, 338 Ill. 270, 170 N. E. 247; Sullivan v. William Ohlhaver Co., 291 Ill. 359; Anderson v. Karstens, 218 Ill. App. 285; Dabrowski v. Illinois Cent. R. Co., 303 Ill. App. 31, 24 N. E. (2d) 382; Clark v. New York Hotel Statler Co., 223 App. Div. 237, 238; Dunn v. First Nat. Bank of Portland, 149 Ore. 97, 121.

Defendant also contends the court erred in excluding evidence offered in its behalf. This alleged error occurred in the examination of defendant’s manager witness. Having stated that he had worked for the defendant for thirteen years (five of these as manager) the record shows:

“Q. In the event that there were any accidents that occurred because of the rapidity of the revolving doors, would that be called to your attention?
“A. ' Yes.
“Mr. Peterson: As manager . . .
“Mr. Thompson: I object.
“The Court: Yes, sustained.
“Mr. Peterson: I do not want to transgress the ruling of the court, but I want to put another question, another way.
“Q. During the five years you were manager, had you ever had any accident there to your knowledge, of anyone being injured by reason of the rapidity with which the doors operated?
“Mr. Thompson: I object to that question.
“The Court: Sustained.
“Mr. Peterson: All right. Then you may cross examine.”

Defendant says these questions should have been permitted for the purpose of showing defendant did not have notice or knowledge of any dangerous condition of the revolving door. Defendant cites Wolczek v. Public Service Co. of Northern Ill., 342 Ill. 482, where a judgment for plaintiff was reversed because the court excluded evidence tending to show there had been no prior accident at a pole carrying an electric wire, on which a young boy climbed and was electrocuted. Other authorities cited are Campion v. Chicago Landscape Co., 295 Ill. App. 225; 2 Jones Commentaries on Evidence, 1272, sec. 683; Lewis v. Washington R. & E. Co., 285 Fed. 977. In the WolcseTc case the evidence given before the question was asked tended to establish the fact that the pole, at the time of the injury to the boy, was substantially in the same condition as it had been during the entire period concerning which the witness was questioned. There was no such showing here, and there was no offer to prove any such fact. In the absence of such a showing, evidence of this kind would not be admissible. There was no evidence nor offer to produce evidence tending to show the revolving door, at the time plaintiff was injured, was in the same condition it was in the period covered ‘by the testimony of the witness. The court did not err in excluding this evidence.

It is contended a new trial should have been granted because of prejudicial conduct of plaintiff’s attorney. The facts of this case were very earnestly presented to the jury by respective counsel. The circumstances of the case required care to prevent much sympathy for plaintiff. He had been severely injured. He was an elderly man and was brought before the jury on an ambulance cot, from which he testified. The circumstances were unusual. The parties were represented by able and experienced counsel. The arguments to the jury have not been fully abstracted. Plaintiff has presented an additional abstract. We have taken time to read the arguments in full as preserved in the record.

Defendant argued on the theory plaintiff’s case was built up by perjury. He asked: “Are you going to give them a premium for concocting that kind of a case? If you allow a dollar, you will say by your verdict: ‘Yes, we do.’ This is a very bold statement for me to make but I think we ought not to pussyfoot about this thing at all; I don’t believe you would want me to pull any punches.” Attorney for plaintiff, in his closing remarks, did not pull any punches either.

In a pre-trial deposition O’Toole, manager for the defendant, testified to the effect that the flanges on the door at the time of the accident were removed about six weeks afterwards and destroyed. On the trial he stated this was a mistake and, as a matter of fact, flanges were produced said to be the ones on the door at the time of the accident. An investigator for defendant had obtained written statements from Mr. and Mrs. Miller as to the circumstances under which the accident happened. Referring to their testimony the attorney for defendant said: “Did you see how they both squirmed and twisted to try and get out from under their statements?” Further he declared: “Why, it was the most contemptible thing that11 think anybody ever tried to perpetrate on a jury.” Attorney for plaintiff, referring to the change of testimony by the manager, said: “Then, when he swore to tell the truth he comes in here and takes it all back. ' Why? The answer is patent why he is doing it and I don’t think there is any question that this is the worst trumped-up, framed defense that was ever presented to a jury anywhere. ’ ’ Again, referring to this matter, he said: “I will tell you what happened. Ten days> before he came over there an order was entered in this court and Mr. Peterson wasn’t in the -case then. He was in, but he wasn’t taking care of it. So he sent his assistant, Mr. Collins, his understudy, and Collins and O’Toole got together and decided what the story was going to be.” At this point Mr. Peterson objected stating that there wasn’t a bit of evidence about Collins and O’Toole getting together and took exception to the remark as being highly prejudicial. The court said: “There is no such evidence. The jury will disregard that statement and all statements not borne out by the evidence.”

Later in the argument, attorney for plaintiff said:

“Now, when the great Peterson gets in the case, when payday is near, when they have to hand this man the money he has coming as the result of their negligence, what happens? That story isn’t good enough for Peterson. So, we find Peterson up in Henriei’s restaurant at six o’clock, not having his dinner, no, but working on Joseph White and Grod knows how many others.” Again counsel for plaintiff said: “I subpoenaed records in this case. I had a subpoena served on Mr. O’Toole to bring in the records with reference to when it was, prior to this accident, that they put these rubber flanges on the door and I thought that was something We were entitled to know. O’Toole comes in and tells us that this corporation for which he is an employee does not have any records. Do you believe that? That they don’t have any records as to when those flanges were changed prior to the . . . the only records they have there are in 1940? Maybe we should have gone to John B. Thompson, or maybe I should have subpoenaed the John B. Thompson Company’s record because that is where he had to go when Mr. Peterson wanted them and he didn’t have any trouble getting them.” Further on attorney for plaintiff said: “I don’t think those are the flanges. I don’t think there is any question but that they have brought in a second set of flanges.”

Later, attorney for plaintiff called attention to the fact the suit was for $10,000. He said: “Mr. Peterson ■ has not argued the question of injuries here at all and the reason for that is to preclude me from talking about them at all. That is tantamount to a plea of guilty. As far as the injuries went, there wasn’t any answer to those injuries.” For the second time Mr. Peterson objected and the court said: “Yes, the jury will disregard the statement that that is tantamount to a plea of guilty.” Then to an inquiry by Mr. Thompson the court further said: “I am telling the jury that they must disregard your remark that not arguing about the injuries is a plea of guilty. That is not true.” A little later Mr. Thompson said to the jury: “Well, he didn’t argue it.” As a matter of fact, that is true and it is also true on this appeal. There is no question in the case as to the extent of the injury nor is it argued that the amount allowed is excessive.

■'Summarizing the record it appears that twice attorney for plaintiff made remarks to which the attorney for the defendant objected. The objections were sustained by the court and the jury properly instructed with reference thereto. As a matter of fact, defendant proceeded on the theory that plaintiff’s case was framed, and plaintiff argued the case on the theory that the defense was framed. In his closing remarks attorney for defendant said: “Bear with me for repeating this ... it goes right to the gist of this thing, to the principle involved in this case, which is as big as the all outdoors. Both sides cannot right. Someone is not telling the truth.”

One of the functions of a jury is to decide issues of fact like this. There is nothing about this verdict to indicate this jury was prejudiced against either of the parties. The trial court well understood the situation. We think the court did not err in refusing to grant a new trial.

The judgment will be affirmed.

Affirmed.

0 ’Connor, J., concurs.

Mr. Justice McSurely participated in the decision of this case but passed away before the opinion was filed.


source: Caselaw Access Project

author: Mr. Presiding Justice Matchett

license: Public Domain

text:
    Chicago Title and Trust Company, Trustee, Appellee, v. Olive A. Leitch, Appellant.
    Gen. No. 42,526.
    Opinion filed June 21, 1943.
    Rehearing denied July 6, 1943.
    Edward H. S. Martin, of Chicago, for appellant.
    Harold L. Reeve and A. Edmund Peterson, both of Chicago, for appellee.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.

Dollie F. and Olive A. Leitch executed 80 bonds for the sum of $500 each, payable to bearer, and at the same time executed and delivered to the plaintiff a trust deed by which they conveyed real estate in Cook county to secure the debt evidenced by the bonds. Default was made and plaintiff on demand of the owners filed its complaint to foreclose. With others, Dollie F. and Olive A. Leitch and the owners of unpaid bonds were made defendants. Dollie F., not being within the jurisdiction, was served by publication. Olive A. was within the jurisdiction and was served personally. The cause was put at issue and referred to a master, who reported the equities were with plaintiff and recommended a decree of foreclosure and sale, which was entered April 1, 1937. The decree was in the usual form with provisions for application of rents pending the redemption period and entry of deficiency judgment. The master sold and filed his report of sale and distribution. It showed a deficiency of $34,753.01 and recommended a deficiency judgment for that amount. The report was approved, and on April 2, 1941, judgment was entered in favor of plaintiff trustee. Inadvertently, judgment was entered against both Olive A. and Dollie F. Leitch. The entry of judgment against Dollie F. was erroneous, since the judgment was a personal one and the court, as we have already seen, did not have jurisdiction of the person of Dollie F.

March 31, 1942, Clive A. Leitch filed her motion to vacate the deficiency decree for the reason, as stated, that it was null and void, first, because the court had never acquired jurisdiction of the person of Dollie F. Leitch, and secondly, because, as she said, all of the indebtedness for which the foreclosure sale was had was paid from the proceeds of the sale, except principal and interest due on bonds of the defendant bondholders. Therefore, Olive A. said, no balance whatever was due plaintiff, and the court had no jurisdiction to enter a decree for' any balance due to any defendants nor jurisdiction to render a decree in the name of plaintiff for the use of any defendant. In support of her motion Olive' A. submitted her affidavit.

May 26, 1942, the matter came up on the motion of Dollie F. Leitch to set aside the judgment as to her for Avant of jurisdiction because she had been served by publication and not personally with original process. She moved that the deficiency judgment be vacated and set aside as to her without prejudice. The court found that the deficiency judgment entered against defendant Olive A. Leiteh was valid and binding upon her; that the name of Dollie F. Leiteh was erroneously included in the deficiency judgment. It was therefore “amended and corrected by striking the name of Dollie F. Leiteh therefrom . . . leaving said deficiency judgment as against Olive A. Leiteh alone, and said deficiency judgment and execution against said Olive A. Leiteh is hereby ratified and confirmed as amended; that the motion of Olive A. Leiteh to vacate the deficiency decree be and is hereby denied.”

August 21,1942, Olive A. Leiteh appealed from that portion of the order entered May 26,1942, denying her motion to vacate the deficiency decree and amending the deficiency decree so as to make it a deficiency decree or judgment against her alone and confirming and ratifying same, as amended. She asks in this court a judgment reversing that order and remanding the cause with directions to vacate the deficiency decree as to her also.

It is argued the deficiency judgment, as amended, is null and void in that it exceeds the jurisdiction of the court. First, it is said the judgment in favor of plaintiff trustee for the use of defendant owners is erroneous and entered without jurisdiction. Defendant says rightly that the jurisdiction of a chancery court to enter a deficiency judgment is derived solely from section 17, chapter 95 of Ill. Rev. Stat. [Jones Ill. Stats. Ann. 83.17], She points out that the statute declares and authorizes a deficiency judgment only for money due to the plaintiff in the cause. She says that the proceeds of the sale were sufficient to pay all sums due to the plaintiff personally and that the deficiency judgment is for money due only to the plaintiff trustee for the use of the defendant bondholders. Therefore, it is said, the deficiency judgment is without authority of the statute. Defendant cites Lewis v. Matteson, 257 Ill. App. 1, 5; Okon v. Kaenas, 222 Ill. App. 45, 48; Great Western Tel. Co. v. Barker, 56 Ill. App. 402, 418, 419.

Defendant, while pointing out that this is a direct attack on the deficiency judgment, says that, as a mailer of fact, for this reason it could be attacked even collaterally. Press v. Woodley, 160 Ill. 433, cited by defendant, is, we hold, directly against her contention, and none of the cases cited sustain it. Plaintiff sued as trustee for the holders of the securities and at their request. The instrument under which it acted was executed and delivered by both Dollie F. and Olive A. Leitch. Plaintiff brought suit in its own name for the use of' the defendant creditors.,

A similar decree in a foreclosure ease was approved by the Supreme Court in Chicago Title & Trust Co. v. Rogers Park Apts. Bldg. Corp., 375 Ill. 599. Defendant undertakes to distinguish, citing Boddiker v. McPartlin, 379 Ill. 567, and reminding that a court may not speak authoritatively upon questions not involved in the litigation. This is quite true. However, there the court was construing section 17 of chapter 95, Ill. Rev. Stat., the very section of the same statute we are called upon to construe here (see opinion of the Supreme Court, page 610). We hold the court had jurisdiction to enter a deficiency judgment against Olive A. Leitch.

Defendant next says the original deficiency judgment against Olive A. and Dollie F., jointly, was an entity, and that when set aside as to Dollie, it also ceased to exist as to Olive. A number of cases, the latest of which is Meldahl v. Wallace, 280 Ill. 421, 430, are cited. In this last cited case it was held that when a joint decree was reversed on appeal as to the one of the parties, it would also be reversed as to the other. That, was the general rule as to both judgments and decrees announced by the Supreme Court and followed by the Appellate Court of this State in hundreds of cases decided prior to the enactment of the Civil Practice Act (Ill. Rev. Stat., ch. 110 [Jones Ill. Stats. Ann. 104.001 et seg.]). Section 92 of that act changed the rule, Minnis v. Friend, 360 Ill. 328; Adkins v. Strathmore Co., 278 Ill. App. 183, 185; Fogel v. 1324 N. Clark St. Bldg. Corp., 278 Ill. App. 286, 291, 292; Nash v. Clark, 310 Ill. App. 437, 442. It is quite true, as defendant points out, that section 92 is not expressly made applicable to judgments or decrees entered in nisi prius courts.. However, it has never been held, so far as we are. informed, in this court or the Supreme Court, either before or since the enactment of the statute, that where a judgment against two was void as to one of them because of lack of service, the judgment might not be amended to show that fact without setting the decree aside as to both. We held to the contrary in Price v. Marie, 207 Ill. App. 112, 114. We cannot conceive of any sound reason for such a rule. This much defendant seems to admit in her reply brief, saying:

“That is just what the court did in the instant case and the point was made by us in our original brief, not to show that the amended deficiency decree would have been void if originally entered against Olive A. Leitch alone, but merely to show that our right of appeal dated from the amended deficiency decree and not from the original, and that if the deficiency decree as so amended exceeded the jurisdiction of the court for the reasons argued in Point I it might still be reversed. Right or wrong there is no doubt tliai where a decree is amended the time for appeal begins to run at the date of amendment and not at the date of the original decree.”

To all of which we agree. We have already held that the deficiency decree, as amended, did not exceed the jurisdiction of the court, for the reasons stated by defendant in Point I or for any other reason, and defendant’s appeal has not been dismissed but considered on the merits.

The amended decree will be affirmed.

Affirmed.

O’Connor, J., concurs.


text:
    Village of Palatine, Appellee, v. Palanois Estates, Inc. et al. Blanchard Securities Company et al., Appellants.
    Gen. No. 42,566.

      Opinion filed June 21, 1943.
    Cummings & Wyman, of Chicago, for appellants; Austin L. Wyman, of Chicago, of counsel.
    Thomas A. Matthews, of Chicago, for certain appellee.
    Bluford, Krinsley, Schultz & Voorheis, of Chicago, for certain other appellee; Victor Hedberg, of Chicago, of counsel.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.

In a proceeding to foreclose assessment liens under section 84 — 56, chapter 24 of the Ill. Rev. Stat. [Jones Ill. Stats. Ann. 21.2266], with others the holders of the liens were made defendants. They answered, filed a cross complaint which plaintiff answered, and plaintiff replied to the answers. After notice to all the parties there was a hearing on a day set, at which defendants did not appear, and on June 26, 1942, a decree of sale and foreclosure was entered which defendants have not preserved in the record and from which they have not appealed. Afterwards there was a petition by defendants to set aside the decree, denied, and another petition to modify the decree so as to show that “no proofs of any kind were offered or permitted to be offered” in support of said petition to set the decree aside, which was also denied. There was a sale by the county treasurer after due notice, as required by statute, and decree. Defendants objected to the confirmation of the sale and objected to the approval of the report of sale and distribution. The objections were overruled and the sale confirmed. Defendants appeal from the order of July 23rd denying their petition to set aside the decree and from the orders of Septemher 10, 1942, denying the petition to vacate and approving the report of sale and distribution.

In the petition to vacate, with other things defendants set up that they were not present when the cause was set for hearing, when it was heard or when the decree of foreclosure and sale was- entered. They had due and timely notice and their petition to vacate discloses that any failure to be present on any of these occasions was through a failure on their part to use due diligence. A petition of this kind is addressed to the. discretion of the court and will not be reversed except for abuse. We hold there was no abuse of discretion here. Eule 11 of the circuit court; Barrett v. Queen City Cycle Co., 179 Ill. 68; Hartford Life & Annuity Ins. Co. v. Rossiter, 196 Ill. 277; Nitsche v. City of Chicago, 280 Ill. 268. As to both the petition to set aside as well as the petition to modify the decree it is to be noted that in reviewing the same, the same presumption in favor of the order or decree obtains as in the case of a judgment at law. -See chapter 110, section 64(3) of the Civil Practice Act [Jones Ill. Stats. Ann. 104.064]; First Nat. Bank of Chicago v. 10 West Elm St. Bldg. Corp., 277 Ill. App. 337; Lambert v. Dabbs, 302 Ill. App. 400; In re Estate of Murray v. Appeal of Murray, 310 Ill. App. 121.

The lots subject to this foreclosure are all within the Village of Palatine and number 564, 469 of which are owned by one of the defendants, Palanois Estates, Inc. .All are vacant and unimproved. In their reply brief defendants, without waiving other points, say there are two primary issues: first, whether in a special assessment foreclosure under this statute a sale can properly be made which does not discharge the lien of the general taxes; and secondly, whether under the conceded facts it was an abuse of discretion for the court to approve a sale for 10 per cent or less of the value of the property subject to the liens foreclosed. There was a complaint pending to foreclose a general tax lien against this and other property when the instant foreclosure was begun. Defendants say it is apparent (independent of any law cited) general tax and special assessment foreclosure proceedings must be brought together, and that there must be only one sale. They say there is no authority under the law for the maintenance of an action to foreclose general taxes and special assessments in separate proceedings. They cite to this point People v. Taylorville Sanitary Dist., 371 Ill. 280. We hold it is not the law that liens for general taxes and special assessments must be foreclosed at the same time. If this were the rule of law a municipality could never foreclose a lien under section 56 of the Local Improvement Act unless the State should first choose to foreclose the lien for the general taxes and make the municipality a party defendant to the foreclosure. The municipality, of course, has no right to sue the State. The construction for which defendants contend would in effect nullify section 56 of the Local Improvement Act. Nor is the contention sustained by the opinion of the court in People v. Taylorville Sanitary Dist., 371 Ill. 280. There the State filed a bill to foreclose a lien for the general taxes and also certain liens for special assessments of the Sanitary District of the City of Taylorville which had been returned delinquent. The Supreme Court held there was a parity of lien between the general taxes and special assessments, and in that particular case, of course, there could be only one sale for general taxes and special assessments. Indeed, there would have been only one sale of the premises in the suit even if one of the liens had been held subordinate to the other. Manifestly, the authority of the municipality to foreclose special assessment liens is solely by virtue of section 56 of the Local Improvement Act. The Village has no right to foreclose for general taxes. The statute gives it the right to foreclose special assessment liens. If the municipality has no right to foreclose special assessment liens without also foreclosing the general taxes, then it is precluded from exercising the power conferred upon it expressly by the statute. It has been held that the Village has a right to foreclose liens for special assessments. Village of Downers Grove v. Glos., 307 Ill. 293. The first question raised by defendants must, therefore, be answered in the affirmative. There can be a proper sale in a special assessment foreclosure proceeding which does not discharge the lién of general taxes.

The second question raised by defendants is, whether under the conceded facts in this case it is an abuse of the court’s discretion to approve a sale for 10 per cent or less of the value of the property. This sale was made for less than 10 per cent of such value. We are to decide whether the approval of this order of sale and distribution was an abuse of discretion. Defendants say it is because of unusual circumstances, not disputed. They do not question that notice generally (and particularly to these defendants) was given. They had an opportunity to bid at the sale. They offered no higher price then; they .offer no higher price now. It is said that certain bondholders requested the foreclosure and would be especially benefited by it. These bondholders had .a right to demand foreclosure. Under the law it was the duty of the Village to comply with their request. Village of Lansing v. Sundstrom, 379 Ill. 121. In the same case it was said that a contention that the proceeding was unlawful because it would subordinate the lien of special assessments to liens for general taxes “is without force.” It is argued that in order to protect the defendants the decree should have fixed an upset price. That was a matter within the discretion of the trial judge. It was held this was not a proper objection to the approval of the-report of sale in People ex rel. Schreiner v. Courtney, 380 Ill. 171. It is said the Village had a personal interest in that it desired to get the titles of all real estate within its limits into a situation where it would again be paying all taxes levied against it, generally and specially. This is not" a wicked motive. Indeed, the purpose would seem to be laudable. There is no proof of fraud or irregularity. The mere fact of a sale for 10 per cent or thereabouts of the value of the property sold in the absence of some fraud or illegality, where no higher offer is received, is no reason for refusing to approve the sale. People v. Anderson, 380 Ill. 158; People v. Home Real Estate Imp. Corp., 316 Ill. App. 437. It would seem defendants ought to show something more than that the times and circumstances, so far as they are concerned, are unpropitious. Assuming the truth of all the facts alleged by defendants, we hold the court did not abuse its discretion in entering the order approving the report of sale and distribution or err in entering the other orders from which defendants appeal.

Affirmed.

O’Cohhor, J., concurs.


author: Mr. Justice O’Connor

text:
    Henry J. Handelsman, Jr., Inc., Appellant, v. S. E. Schulman Company and Philip Lome, Appellees.
    Gen. No. 42,488.

      Opinion filed June 21, 1943.
    Rehearing denied July 6, 1943.
    Samuel A. Maremont, of Chicago, for appellant; Mayer Goldberg, of Chicago, of counsel.
    Karlin & Cohen, of Chicago, for certain appellee; Joseph J. Karlin, of Chicago, of counsel.
    Louis C. Rappaport and Ode L. Rankin, both of Chicago, for certain other appellee.
   Mr. Justice O’Connor

delivered the opinion of the court.

Plaintiff brought suit against defendants claiming they had breached a contract entered into between him and defendant Lome, whereby Lome agreed to have manufactured for plaintiff 100,000 cameras which afterward Schulman Co. agreed to manufacture. Defendants filed separate motions to dismiss, which were allowed, the suit was dismissed and plaintiff appeals.

The question for decision therefore, is, whether the complaint stated a cause of action.

January 8,1942, plaintiff filed his complaint in chancery in one count in which it was alleged that August 14,1941, plaintiff and defendant Lome, entered into an oral agreement whereby Lome agreed to have manufactured exclusively for plaintiff, 100,000 cameras similar in size, quality and design to the camera which plaintiff was then selling, together with a simulated leather case, at a price of 50 cents for each camera and case; that they were to be delivered at the rate of 5,000 per week beginning October 14, 1941; that the agreement was known to defendant Schulman Co., that pursuant to the agreement defendants entered into another agreement whereby Schulman Co., in consideration of $3,000 paid to it by Lome, agreed to manufacture the 100,000 cameras exclusively for plaintiff and to sell them to plaintiff for 40 cents each, to be delivered at the rate of 5,000 per week beginning October 14, 1941. That pursuant to the agreements plaintiff entered into negotiations with the Sehulman Co. regarding the manner in which the cameras were to be packed in certain size cartons and it was arranged between plaintiff and the Sehulman Co. for the insertion in each carton of printed matter “advertising film and developing”; that at the request of plaintiff, Sehulman Co. changed the name by which the cameras were to be known from “Rolls” to “Photo Master” all of which was known to defendant Lome.

It is further alleged that afterward, pursuant to the agreements, Sehulman. Co., at the request of plaintiff, delivered to plaintiff its original advertising drawing to be used by plaintiff in advertising the cameras; that by reason of the agreements, and relying upon defendants to carry' out the terms of the agreements, plaintiff, with the knowledge and acquiescence of defendants, represented itself as the exclusive distributor of the “Photo Master Camera”, and entered upon a campaign of advertising the cameras and case at $1 each, and for this purpose had contracted with approximately 50 radio stations and magazines for placing such advertising for which advertising plaintiff expended in expess of $10,000 and rendered itself liable for large sums; that as a result of the advertising campaign, plaintiff received in the space of four months more than 2,500 orders for cameras and afterward continued to receive such orders at approximately 5,000 pér week; that defendants had failed and refused to deliver the cameras or cases; that by reason of the unreasonable delay, plaintiff had brought suit in the municipal court of Chicago against defendant Lome to recover its losses and defendants had threatened that unless that suit was dismissed, they would withhold delivery unless restrained by a writ of injunction. The prayer was that defendants be decreed to specifically perform the agreements and for other relief.

January 13,1942, defendant Lome filed his motion to dismiss the complaint and January 27, following, the Sehulman Co. filed a similar motion. January 29, the motions were overruled and it was ordered that plaintiff be given leave to amend his complaint so as to embody the cause of action which he then had pending in the municipal court. February 14, 1942, plaintiff amended his complaint by adding three counts at law. Each count set up the facts substantially as alleged in the original count in chancery. In addition, plaintiff alleges that in its advertising of the cameras and cases it expended more than $14,800 as a result of which plaintiff received in excess of 25,000 orders for cameras and cases and in excess of 4,000 orders for films for the cameras } that many ,of plaintiff’s customers notified it that unless the cameras were delivered prior to Christmas 1941, the orders would be can-celled and that plaintiff was compelled to and did go upon the open market and buy 4,000 cameras being all that were available at the lowest price for which it could procure them which price was far in excess of the price at which defendants agreed to sell the cameras to plaintiff. That because of the delay other customers refused to accept delivery; that plaintiff had ón hand in excess of 21,000 orders for cameras which it was unable to fill and upon which it would be compelled to refund all money it had received, as a result of which plaintiff would be deprived of profits of $15,000 from the sale and $25,000 from the sale of films. Plaintiff’s damages were laid at $50,000 in each of the three counts. The chancellor sustained motions to dismiss filed by defendants to the chancery count and the cause was transferred to the law division where defendants’ motion to dismiss the three counts was sustained and the suit dismissed.

One of the contentions made by defendants was that the oral contract for the purchase of the cameras and cases, for which the price to be paid was over $500, was void under § 4 of the Uniform Sales Act. Ill. Rev. Stat. 1941, ch. 121%, § 4 [Jones Ill. Stats. Ann. 121.08]. That section provides: “(1) A contract to sell or a sale of any goods ... of the value of five hundred dollars . . ; shall not be enforceable by action unless the buyer shall accept part of the goods . . . or give something in earnest to bind the contract, or in part payment,- or unless some note or memorandum in writing of the contract or sale be signed by the party to be charged or Ms agent in that behalf.

“(2) The provisions of this section apply to every such contract or sale, notwithstanding that the goods may be intended to be delivered at some future time or may not at the time of such contract or sale be actually made, . . . ; but if the goods are to be manufactured by the seller especially for the buyer and are not suitable for sale to others in the ordinary course of the seller’s business, the provisions of this section shall not apply.” This section is referred to in the record and briefs as the “Statute of Frauds.” We think the oral contract was enforceable and that no note or memorandum need have been signed to make it binding for the reason that the cameras and cases ware to be “manufactured by the seller especially for the buyer” and were not suitable for sale to others in the ordinary course of the seller’s business because they were to be marked “Photo Master Camera and Case” and from the allegations this designation indicated that they were being sold by plaintiff. Such a contract as the one involved may be enforced by either party. Indiana Limestone Co. of N. Y. Inc. v. Cut Stone Co. Inc., 32 N. Y. S. (2d) 956. And the contract was for the sale of chattels and not for the work and labor. Berman Stores Co. v. Hirsh, 240 N. Y. 209; Lee v. Griffin, Vol. 1, Best & Smith’s Reports 272; 1 Williston on Sales, 2d Ed. §§55 and 55a; Williston on Contracts, Eev. Ed. Yol. 2, §§ 508 and 509; Pratt v. Miller, 109 Mo. 78.

Defendants further contend that the judgment dismissing the suit is right and should be affirmed for the reason that any benefits that plaintiff might have derived from the alleged contract of Lome with the Sehulman Co. would be merely incidental and therefore plaintiff would not have the right to sue as a third party beneficiary. It is argued that plaintiff would have no right to sue on the alleged contract between Lome and the Sehulman Co. The rule of law, as contended for by defendants, we think, is sound but inapplicable to the facts as alleged in the complaint. Plaintiff alleged that it had entered into an oral contract with Lome whereby he agreed to have manufactured 100,000 cameras and to sell them to plaintiff, together with the cases, for 50 cents each. That pursuant to the agreement Lome and Sehulman Co. entered into an agreement, in consideration of $3,000 paid by Lome to the' Sehulman Co. and the latter agreed to manufacture the “cameras especially for plaintiff and to sell same to plaintiff” at 40 cents each; that pursuant to the two agreements plaintiff entered into negotiations with the Sehulman Co. regarding the manner in which the cameras were to be packed, etc. In these circumstances we think the Sehulman Co. became a party to the agreement and was bound by it although no memorandum of the contract was written, as provided in § 4 of the Sales Act, for the reasons heretofore stated, that that section did not apply.

The judgment of the superior court of Cook county is reversed and the cause remanded for further proceedings in accordance with the views herein expressed.

Reversed and remanded.

Matchett, P. J., concurs.

Mr. Justice MoSurely participated in the decision of this case but passed away before the opinion was filed. '


text:
    L. E. Myers Company, Appellee, v. Sanitary District of Chicago et al., Appellants.
    Gen. No. 42,500.
    Opinion filed June 21, 1943.
    Ernst Buehler, Thomas F. Donovan, Meyer C. Edelman and William C. Oehlsen, all of Chicago, for appellants.
    Joseph Keig, of Chicago, for appellee.
   Mr. Justice O’Connor

delivered the opinion of the court.

November 28, 1941, plaintiff filed its complaint against The Sanitary District of Chicago and its officers, praying that a writ of mandamus issue commanding them to pay forthwith $5,885.23. After the issues were made up the cause was heard by the court without a jury. The court found the issues for plaintiff, awarded the writ and defendants appeal.

The record discloses that March 6, 19.24, plaintiff entered into a contract with defendant, The Sanitary District of Chicago, by which plaintiff was to do certain work for The Sanitary District for which it was to be paid upon calculations made upon the number of units of work done. Plaintiff completed the work and it was accepted by The Sanitary District October 15, 1924. Plaintiff had been paid on estimates made as the work progressed a total of $41,196.57, while the actual cost of the completed work was $47,081.80, the difference being 12% per cent reserve or $5,885.23 withheld by defendant, for which plaintiff sues. Work was completed, the payments made as above stated. Plaintiff claimed $35,266 more which it said was due and owing for the work done as figured under the terms of the contract. This was disputed by The Sanitary District. Negotiations were carried on for a time between the parties but no result was reached.

The evidence shows that The Sanitary District had audits of its records made by persons selected by the Auditor of Public Accounts, as required by the statute, for the years 1932 to 1938.. In each of these audits appears the c&ntract of L. E. Myers Co. with The Sanitary District; the work shown to be done, “McCormick Road- — Spoil Bank Removal,” the date of the contract, ‘ ‘ 3-6-24. ’ ’ Then follow the ‘ ‘ Original Estimate, ’ ’ another column of extras, and the total of the cost of the completed work at $47,081.30. The next column shows the payments made totalling $41,196.57. The column following is “Reserve withheld” $5,885.23. These same items are again shown on the statement of the annual audits as of December 31, 1940. The audits were approved by the board of trustees of The Sanitary District for the years 1935 to 1940, both inclusive, by including them in the annual budgets of The Sanitary District. There is no dispute that the facts are as above stated,' in fact counsel for defendants on the hearing said: “I admit we held in reserve at the time that this work was completed $5,885.23, and I set up [in defendants’ answer] that a cause of action to recover it accrued that day. . . . but he [plaintiff] slept on his remedy to collect.” Apparently the reason the matter was not adjusted was that the parties could not agree as to the extra payment claimed by plaintiff, above mentioned.

October 1,1941, plaintiff’s attorney wrote Mr. Woodhull, president of The Sanitary District, a long letter about the claim in which he seeks to explain the reason for plaintiff not pressing its claim, which is not important here, and stating that plaintiff had instructed him to make no claim for the extras but only for what is due, as shown by the records of The Sanitary District.. Counsel suggested that probably the claim is barred by the Statute of Limitations, but he thinks The Sanitary District should not interpose such a defense. But in the last paragraph of the letter counsel said: “Since I originally wrote this letter, I find that the public records of the Sanitary District acknowledge in 1940 the existence of the debt. I am therefore not too sure that the Statute of Limitations is a bar which might successfully be invoked by it. However, I would prefer that the Sanitary District would pay its acknowledged debt rather than put me to the expense of compelling it to do so, even if I could. A record of the showings in the Sanitary District audit for the year ending December 31, 1940 is attached to this letter.” Apparently this audit showed that the District still had in reserve the $5,885.23.

Counsel for defendants say: “The bookkeeping entries made by the accountants in their audits to the Auditor of Public Accounts were not the best evidence and were otherwise incompetent.” We think there is no merit in this contention. The audits were prepared as required by the statute by a person selected by the Auditor of Public Accounts. They were approved almost yearly for a number of years in the annual budget* the annual appropriation ordinance, and in the tax levy ordinance, all of which were approved by a vote of the trustees of The Sanitary District.

We are also of opinion that the claim was not barred by the 5 or 10 year Statute of Limitations for the reason, "as stated, that the records of The Sanitary District showed that as late as December 31, 1940, it admitted that it held the $5,885.23 which was due and owing to plaintiff, Coulson v. Hartz, 47 Ill. App. 20.

We are further of opinion that there is no merit in defendants’ contention that plaintiff was required to make a demand for payment before bringing its suit and that no proper demand was shown. The record shows that a demand was made by counsel for plaintiff October 1, 1941, when he wrote a letter to Mr. Woodhull, president of The Sanitary District, and the demand was refused as shown by a letter from the attorney for The Sanitary District October 20, 1941, in which counsel stated that plaintiff’s claim, as evidenced by its counsel’s letter, was taken up by The Sanitary District, and the officials had refused to pay the claim because it was barred by the Statute of Limitations.

Moreover, it is clear that any demand made would have been unavailing and in such circumstances no demand is required as the law never requires the doing of a useless act, 26 Cyc. p. 182; Chicago Kansas & Western R. Co. v. Board of Commrs. of Chase Co., 49 Kan. 399; State v. Wrightson, 56 N. J. L. 126; Santa Fe County v. Coler, 215 U. S. 296; High’s Extraordinary Legal Remedies, 3rd Ed. § 13, p. 18. Somewhat analogous is the rule in replevin cases which holds that where the record discloses a demand would he unavailing, none is required. Nat. Bond & Inv. Co. v. Zakos, 230 Ill. App. 608; Kee & Chapell Dairy Co. v. Penn. Co., 291 Ill. 248.

The record discloses that in the summary of estimated revenues and expenditures for the fiscal year 1942, as shown by the records of The Sanitary District, there was an excess revenue over appropriations of $7,144.84. In these circumstances, The Sanitary District has the money with which to pay this judgment, long overdue, and to which there is no defense. The money has been withheld, as shown by the records of The Sanitary District.

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

Judgment affirmed.

Hatchett, P. J., concurs.

Mr. Justice McSurely participated in the decision of this case but passed away before the opinion was filed.


text:
    In re Estate of Frank Konrath, Deceased. Rose Studnicka, Administratrix of Estate of Frank Konrath, Deceased, Appellee, v. Frank Konrath, Appellant.
    Gen. No. 42,511.

      Opinion filed June 21, 1943.
    Rehearing denied July 6, 1943.
    Jose Ward Hoover and George B. Cohen, both of Chicago, for appellant.
    Tage Joranson and Jerry Pech, both of Chicago, for appellees.
   Mr. Justice O’Connor

delivered the opinion of the court.

By this appeal defendant, Frank Konrath, seeks to reverse a decree entered by the probate court of Cook county that a certain piece of real estate be sold to pay the debts of Frank Konrath, deceased, the father of defendant.

The record discloses that Frank Konrath died intestate December 29, 1925, owning an undivided one-half interest in two lots known as 2300 West 50th Place, Chicago, improved by a two-apartment building, leaving four children by his first wife whom he had divorced and his. widow and four children of the second marriage surviving as his only heirs at law and next of kin. One of the apartments was occupied by the widow and her children at the time of her husband’s death as a homestead, the other apartment was rented and the widow was collecting the rents. Nothing was done towards probating the estate of the deceased for more than 15 years after his death, when on April 14, 1941, the widow filed a petition in the probate court of Cook county, in which she set up the date of the death of the deceased; that he left no personal property, but real estate of the value of not to exceed $520, leaving him surviving the widow, 2 sons and 6 daughters,-and alleging that the widow and 3 of the daughters resided in the premises in question. The prayer was that Mrs. Bose Studnicka be appointed administratrix of the estate of the deceased and that Mrs. Studnicka who was the widow’s sister lived in the other apartment. That letters of administration were issued to Bose, as prayed for, appraisers were appointed who fixed the widow’s award at $1,000, which was approved by the court May 5, 1941; that an inventory was filed showing the deceased left no personal property but left an undivided one-half interest in the property above mentioned.

The inventory set up that the real estate was subject to the right of homestead and dower of the widow; that it was occupied by her as a residence; that the premises were improved by a frame residence consisting of two flats. The inventory was approved May 5, and June 11, 1941, the administratrix filed her verified petition to sell the deceased’s interest in the real estate to pay the expenses of administration, the claims against the estate, and the widow’s award; that the sale be made subject to the estate of homestead and dower rights of the widow and to the lien of a trust died securing an indebtedness on the property.

The petition further alleged the death of Frank Konrath intestate December 29, 1925, the appointment of the petitioner on April 14, 1941, as administratrix of the estate; that letters of administration were issued to her; that an inventory and appraisement were filed and approved May 5,1941; that she had filed her verified statement of the condition of the estate as of May 6, 1941, showing liabilities of two items: $1,000 widow’s award and estimated costs and expenses, $475, totaling $1,475, and that this was the amount of the deficiency of personal property. That May 3,1941, which was within one year after the letters of administration were issued, the widow acknowledged her election in writing to take a dower interest in the real estate instead of an absolute one-third and that such election had been recorded in the Becorder’s Office of Cook county. That the dower had not been assigned or allotted.

It was further alleged in the petition that September 26, 1936, subsequent to the death of the deceased, two of the children quit-claimed their interest in the property to their mother, the widow; that July 29, 1938, the widow executed a trust deed conveying the two lots to secure her installment note of that date under the provisions of the National Housing Act, payable to the Merchants National Bank of Chicago, in 60 monthly installments of $23.39 each; that there was now unpaid on that installment note $334.13, which was then owned by the Merchants National Bank of Chicago. That since the death of the deceased, defendants, Charles Vita and Bose, his wife, from time to time furnished the widow and her four daughters, who lived with her in the premises, “with care and maintenance, paid the general taxes levied” on the premises, furnished improvements and paid from their own funds all payments on the installment note, above mentioned, and that the widow and two of the daughters, August 21, 1940, conveyed their interest in the property by warranty deed to Charles and Bose Vita, as joint tenants, but reserved unto the widow “the exclusive right to occupy that portion of the real estate” during her natural life without liability or any charge; that the dower rights of the widow had not been allotted; that the deed did not convey the widow’s dower rights nor release the widow’s right of homestead; that the conveyance was made subject to unpaid taxes, special assessments and to a trust deed dated July 29, 1938, and that from January 5, 1926 to May 27, 1930, Charles and Bose Vita made payments on account of principal and interest aggregating $2,571.65 on a mortgage made by Prank Konrath and his wife, to a building and loan association and the mortgage was released of record.

It was further alleged that from the death of the deceased December 29, 192-5, until the end of the year 1940, the real estate had no value in excess of the right of homestead and dower of the widow but that during the last 5 months Charles and Eose Vita made various improvements and repairs on the property thereby increasing its value so that it now had a value of $250 in excess of the combined value of homestead and dower rights of the widow but that such excess was less than the amount of the widow’s award; that the interest of the deceased in the real estate was subject to the widow’s estate of homestead and to her dower right and that the property was also subject to a lien of the trust deed; that the premises were then occupied by the widow and 4 of her daughters and the other apartment by Charles and Eose Vita and Charles and Eose Studnicka, the administratrix. The petition then set up that certain parties claimed interest in the premises and were made parties defendant, some of whom were made defendants as unknown owners, etc., and the prayer was that the court order and direct the petitioner to sell decedent’s interest in the real estate or such portion thereof as was necessary to pay the expenses of administration and claims against the estate but subject to the homestead and dower right of the widow and of the lien of the trust deed.

Defendant, Frank Konrath, son of the deceased and one of his sisters, filed their answer admitting some of the allegations and denying others. They denied that the estate was insolvent and averred that the widow’s award should not have been allowed because it was barred by the Statute of Limitations; that defendants were informed and believed that the widow had collected rents from the other apartment in the building and denied that petitioner was entitled to have the real estate sold to pay the debts and that the petition should be dismissed or, in the alternative, that an accounting and discovery be had and the widow be required to account for the rents which she collected from the persons occupying the other apartment in the building.

June 19, 1942, a decree was entered as prayed for finding substantially all of the facts as alleged in the petition of the administratrix and decreeing that the interest of the deceased in the property be sold subject to the estate of homestead and dower right of the widow to pay the debts and expenses of adnlinistration; that the sale be made at public auction after advertising, etc.

Counsel for defendants say there was no evidence adduced on the hearing but that the court entered the decree on the pleadings, while on the other side, counsel say that evidence was heard and that this is shown by the recital in the decree. Under the state of the record we shall assume there was sufficient evidence to prove the allegations of the petition.

Frank Konrath, defendant, who appeals, contends that the widow’s award was barred by the delay, no sufficient reason being shown for the delay. On the other side, counsel for the administratrix contend that the delay was satisfactorily explained and therefore the widow’s award was properly allowed and the decree of sale entered. In support of this counsel say: “Where after many years letters of administration are granted to one not the widow, why should the delay in such case necessarily be attributable to the widow? While she has the right to apply for letters, she is not required under the law to do so. In the instant case there were eight other persons, each of whom also had the right to apply for-letters. Nor is there any sound reason why the widow should be required to apply for letters in order to protect her widow’s award. The law does not require her to do anything with respect to her widow’s award until there has been an appraisement in the estate,” and that the laches against the widow in this respect commences “to run from the appraisement, and not from the date of decedent’s death.” And counsel cite Cruttenden v. Finlay, 123 Ill. App. 523; In re Peters’ Estate, 305 Ill. App. 485, and cases from other jurisdictions.

In the Cruttenden case it was held that the statute had not provided a period of limitations within which administrators must sell lands to pay debts but by analogy such petition must be filed within a period of 7 years unless the delay is satisfactorily explained. In that case a petition was filed to sell real estate to pay debts of the deceased. A demurrer was sustained to the petition, it was dismissed and an appeal followed. There the deceased died testate March 26, 1882; he devised to his wife certain real estate so long as she should live and remain unmarried. James F. Carrott was named as executor and qualified February 12, 1884, and April 11, 1884, the widow filed her claim against the estate, which was allowed. There was a balance remaining unpaid of this claim and April 2, 1904, the petition to sell the real estate was filed. The executor did nothing _ except prepare an inventory which was filed February 12, 1884, and at once withdrawn by him and retained. The appraisement of personal property was not made until January, 1903, which showed personal property of $157.25 and a widow’s award fixed at the same time at $1,203. The contention was that the widow was guilty of laches in not proceeding to enforce the collection of her claim allowed against the estate. She contended that she had satisfactorily explained the delay of the' executor, Carrott, who was a nephew of the deceased; that she had placed great reliance upon him and asked him from time to time when her debt would be paid and that he would take steps that this was done; and in November, 1901, she employed other counsel. The court held the delay was sufficient to bar the claim of her judgment which was allowed in April, 1884, but not to bar her widow’s right because no step was taken by the executor to have the widow’s award fixed until January, 1903.

In the Peters case, which is an abstract opinion, it was held that where the executrix delayed settling the estate for 7 years and 5 days and where a judgment creditor filed a petition to have her removed on the ground of mental incapacity and an administrator de bonis non with the will annexed was appointed in her place he was not prevented by the delay from proceeding to sell the real estate to pay claims allowed against the estate.

Counsel for defendant, in support of their contention that the allowance of the widow’s award was barred by a laches cited Graham v. Brock, 212 Ill. 579; Goetz v. Wenzel, 177 Ill. App. 484; White v. Horn, 224 Ill. 238.

In the Graham case, a petition filed by the administrator, praying for an order to sell real estate owned by the deceased to pay debts, was dismissed and an appeal taken. The facts were as follows: The deceased died intestate August 30, 1884, leaving his widow and 7 children as his heirs at law. Letters of administration were issued September 3,1884 to August L. Craig and James M. Brock, who filed an inventory of the real and personal estate. Claims were allowed. January 2, 1885, the administrators filed a report showing the condition of the real estate and a petition for an order to sell real estate to pay debts. The court found the widow was entitled do a homestead in a certain piece of property and dower in all of the real estate. Commissioners were appointed who assigned to the widow the homestead and dower rights. The administrator sold all the real estate under the decree except a portion set off to the widow for homestead and dower. April 28, 1887, the administrators filed their final report showing the widow’s award and claims of the first class unpaid and August 28, 1887, the administrators were discharged. Nothing further was done in the estate until January 4, 1904, when Graham was appointed administrator de bonis non. January 20, 1904, he filed his petition for the sale of the lots and blocks set off to the widow for her homestead and dower. It was averred that the widow had abandoned the homestead in 1899. The petition as to the homestead was dismissed and the only property involved was that which was assigned to the widow as dower. This property was claimed by third parties under the conveyances by the widow and heirs» All of the property was claimed under the. Statute of Limitations by virtue of color of title and payment of taxes for 7 years. The petition was dismissed. The court in speaking by Mr. Justice Cartwright said: “Nineteen years had elapsed after the death of Benjamin F. Brock . . . when the petition in this case was filed, and unless a good reason was given for the delay the proceeding was barred by laches. There is no statutory limitation of the right to file such a petition, but it must be done within a reasonable time, and seven years has been adopted by this court as' the proper time within which application shall be made. The bar arises from laches rather than legal limitation, and if sufficient excuse is given for the delay the mere lapse of time will not bar the proceeding. The determination of the question must depend largely upon the circumstances of each case. (Bursen v. Goodspeed, 60 Ill. 277.) . . .

“The only excuse offered to the court, in the petition or proof, of the long delay, was, in substance, that the property was practically worthless for many years, and for that reason the creditors did not care to have it sold and practically abandoned all intention of proceeding against it; but finding that it had increased in value they concluded to institute the proceeding and appropriate it to the payment of their debts.” The court held this was not a sufficient excuse, discussed a' number of authorities and affirmed the judgment.

We think the rule under the facts announced in the Graham case (holding that the delay was not satisfactorily explained) is applicable to the facts in the case at bar. Here the widow was occupying part of the premises in question, collecting rents from the other apartment for more than 15 years and the excuse for the delay is that the property would have brought very little if it had been offered for sale before the petition in the instant case was filed. Moreover, we are of opinion that it would bring very little even if the sale was carried out for the reason that it was to be sold subject to the estate of homestead and dower rights of the widow and the lien of a mortgage.

Upon a consideration of all the facts we are of opinion that the court should have dismissed the petition.

The decree of the probate court of Cook county is reversed and the cause remanded with directions to dismiss the petition.

Reversed and remanded with directions.

Matchett, P. J., concurs.

Mr. Justice McSurelt participated in the decision of this case but passed away before the opinion was filed.


text:
    Lee Becker et al., Appellants, v. Bernard C. Brummel et al., Copartners Trading as Brummel Motors, Appellees.
    Gen. No. 42,522.
    Opinion filed June 21, 1943.
    Rehearing denied July 6, 1943.
    McKinley & Price and Joseph Rozen, all of Chicago, and Guy C. Guerine, of Melrose Park, for appellants ; Paul E. Price, of Chicago, and Guy C. Guerine, of Melrose Park, of counsel.
    Burt A. Crowe, of Chicago, for appellees.
   Mr. Justice O’Connor

delivered the opinion of the court.

Plaintiffs brought suit against defendants to recover damages for personal injuries claimed to have been sustained by them on account of the negligence of one of defendants’ employees in driving an automobile. The case went to trial before a jury and at the close of plaintiffs’ evidence the court directed a verdict for defendants and plaintiffs appeal.

The record discloses that on Sunday afternoon, November 19, 1939, plaintiff, Dave Becker, was driving a new truck easterly on Ogden avenue, near Naperville, Illinois. His wife and children, the other plaintiffs, were with him in the "truck. Bernard Schwartz, claimed to be employed by defendants, was driving an automobile owned by defendants, in the opposite direction on Ogden avenue. It collided with a car ahead of plaintiffs’ truck and then struck plaintiffs’ truck causing injury to plaintiffs.

There seems to be no contention that the collision and the resulting injury to plaintiffs was not caused solely by the negligence of Schwartz, and the only argument is as to whether Schwartz, at the time, was the agent or servant of defendants.

The record discloses that defendants operated a Buick-Pontiac Agency in the Village of Naperville. Bernard Schwartz, the driver of the automobile involved in the collision, was employed by defendants as a salesman and had been so employed for a number of months to sell and demonstrate new and used cars. He had a key to defendants’ place of business in Naperville but no set hours — he came and went as he saw fit. He had the right to enter defendants’ salesroom and take out cars for demonstration with a view of selling them whenever he thought he had a prospect. Prior to the day in question he had sold a new Buick car for which the purchaser was. to turn in his 1937 Oldsmobile sedan in part payment. On Sunday morning, November 19, 1939, Schwartz went to defendants’ place of business for the purpose of seeing that the sale of the Buick car was consummated. That morning the purchaser turned in his Oldsmobile — the new Buick had been serviced that morning by Clifford Goehring, employed by defendants, and the purchaser drove away in the new Buick car. Shortly after this, Schwartz took the Oldsmobile, and he and Goehring, who had serviced the new Buick that morning, went to pick up a Mr. Beidy, a friend of theirs, who was then in Naperville, but who-lived at Lisle, 111., which was a few miles east "of Naperville, on Ogden avenue. Schwartz said he had a prospective customer. Jle drove the automobile with the other two men towards Lisle where he sought to locate the' prospective customer, stopping at one or two places but did not find him. Eeidy changed his clothes at his home in Lisle and the three then proceeded, Schwartz driving, to the Ogden Grill which was a tavern about a mile and a half east of Lisle, on Ogden avenue. The three stayed at this tavern for a couple of hours drinking beer and eating sandwiches. On the trial Goehring testified they also had whiskey to drink. About 2 o’clock in the afternoon the three men, Tom Knox and Mrs. Ilengles, whom they met at the Ogden Grill, got into the Oldsmobile which was then driven by Schwartz westward on Ogden avenue towards Naperville.

The evidence further tends to show that Eeidy, Knox and Mrs. Hengles were going to go to a church dinner which was being given that day somewhere near Lisle. Schwartz had left his automobile, as did Goehring, parked near defendants’ garage and they were returning, Schwartz driving, to pick up these two cars when the collision occurred a short distance east of Naperville.

The only evidence offered by plaintiffs on the question of Schwartz’s employment by defendants, his work as a salesman and where he was going after he left defendants’ place of business, was the testimony of Frank J. Brummel, one of defendants, called under section 60 of the Practice Act [Jones Ill. Stats. Ann. 104.060], and Clifford Goehring, employed by defendants, who serviced the Buick car, as above stated. Why Schwartz or any or all of the persons in the Oldsmobile at the time of the collision were not called is a mystery which neither the record nor the briefs mention.

As we said in Kavale v. Morton Salt Co., 242 Ill. App. 205: “The rule of law that fixes liability on the master for the acts of his servant is clear and well established — the master is not liable unless the servant was acting within the scope of his employment. But the difficult question to determine is whether the particular act for which liability is sought to be imposed was committed by the agent within the scope of his employment. This obviously can be determined by no fixed rule, but must he ascertained from the facts in each particular case. Orr. v. Thompson Coal Co., 219 Ill. App. 116.” This question of liability is discussed and a number of authorities cited by our Supreme Court in Darner v. Colby, 375 Ill. 558, and particularly the question whether the person who was claimed to be an agent was acting as such at the time or whether he was an independent contractor, as defendants contend in the instant case, the facts show that Schwartz was not in their employ but was an independent contractor.

Mr. Justice Stone in delivering the opinion in the Darner case said: “The single question for determination here is whether Colby was, at the time of the accident, an employee or agent of the appellee company, or an independent contractor. . . . Whether it exists depends upon the contract between the parties and their relationship as shown by the evidence. Each case must depend upon its own facts. Generally, no one feature of the relation is determinative but all must be construed together. Bristol & Gale Co. v. Ind. Comm. 292 Ill. 16.” In the Darner case the Appellate Court held defendant could not be held for the acts of Colby. The Supreme Court reversed the judgment of the Appellate Court holding that Colby was an employee of defendant and not an independent contractor and that he was acting within the scope of his employment at the time.

In the Kavale case we discussed Moore v. Rosenmonde, 238 N. Y. 358, quoting from the opinion which was delivered by Judge Pound. We there stated the facts of that case — pointing out that the chauffeur, who was driving defendant’s car at the time of the accident, deviated from his work, driving around New York City and getting drunk at different places — and held that the inferences to be drawn as to whether defendant was liable for the acts of the chauffeur vtere for the jury and not for the court; that as the court said, although the chauffeur “was serving defendant badly, defendant was liable.” The judgment of this court in the Kavale case was affirmed by the Supreme Court, 329 Ill. 445.

The question whether defendants were liable for the acts of Schwartz is very difficult but we have reached the conclusion that it was for the jury to determine in the first instance and not for the court. Schwartz had been employed by defendants as a salesman for a number of months; he had a key to the garage; he was to sell new and second-hand automobiles, take them out for demonstration or for sale when he thought he had a prospect. He had sold the new Buick and taken the Oldsmobile in the deal. On the morning in question he drove the Oldsmobile from defendants’ garage partly with a view of Goehring and himself going to the Ogden Grill for pleasure and partly to see if he could obtain a purchaser for the automobile and after Schwartz and Goehring had spent an hour or two at the Grill for their own pleasure, they were returning to the - garage at Naperville so that they could each pick up his car which had been left parked near defendants’ garage. Whether Schwartz was on a frolic of his own at and.before the time of the collision, as defendants contend, or whether he was at least in part performing services for defendants in endeavoring to sell the automobile, we think, was for the jury. Sec. 236, Restatement of the Law, Agency; § 63, Prosser on Torts, p. 473-477.

The judgment of the superior court of Cook county is reversed and the cause remanded.

Reversed and remanded.

Hatchett, P. J., concurs. .


text:
    May H. Deibler and J. B. Deibler, Appellants, v. Bernard Bros., Inc., Appellee.
    Gen. No. 42,677.
    Opinion filed June 21, 1943.
    Rehearing denied July 6, 1943.
    Marvin Wallach, of Chicago, for appellants; Lloyd C. Whitman, of Chicago, of counsel.
    John Tone Kelly and Harry L. Peters, both of Chicago, for appellee.
   Mr. Justice O’Connor

delivered the opinion of the court.

July 8, 1942, plaintiffs, lessors, caused judgment by confession to be entered against defendant, lessee, on a written lease for $583.75, being the amount of rent claimed due under the lease for the months of June and July, 1942, plus $82.50 attorney’s fees and $1.25 for interest. On the next day an execution was issued on the judgment and returned the same day, no property found. On the following day, July 10, a garnishee praecipe and statement of claim was filed in which the Evanston Trust & Savings Bank was named as garnishee. It was served with process July 11, 1942, entered its appearance and answered interrogatories filed. The garnishee’s answer was contested. August 26, 1942, counsel for defendant filed its petition accompanied by an affidavit which set up a number of orders issued by the Federal Government restricting the sale of automobiles for which purpose defendant had rented the premises and that by reason of the governmental orders, defendant vacated and surrendered the premises January 10, 1942. The prayer of the petition was that an order be entered declaring the lease cancelled by operation of law, that the judgment entered by confession be set aside and vacated and the garnishee summons quashed. Plaintiffs filed an answer to the petition. Other pleadings and affidavits were filed and September 24, 1942, the matter came on for hearing; no evidence was heard, the court vacated the judgment, dismissed the suit and plaintiffs appealed to the Supreme Court of Illinois. That court transferred the case and it is now before us.

The lease provided that the premises were to be used for “Automobile Showroom & Garage located at 22 & 24 So. First Street, Highland Park, Ill.,” and for no other purpose. As stated, the judgment by confession was entered July 8, 1942 and defendant’s motion to vacate was not filed until August 26, 1942.

Defendant’s position seems to be that although the motion to vacate was not made until more than 30 days had elapsed after the judgment was entered, yet the court had jurisdiction by virtue of section 21, of the Municipal Court Act, Ill. Rev. Stat. 1941, ch. 37, par. 376, § 21 [Jones Ill. Stats. Ann. 108.046] and also by virtue of Ill. Rev. Stat. 1941, ch: 110, par. 196, § 72 [Jones Ill. Stats. Ann. 104.072], On the other side, plaintiffs’ position is that the “Trial court had no jurisdiction to vacate judgment as defendant failed to show diligence or a meritorious defense at law,” citing Rule 26 of the Supreme Court of Illinois. We think under that rule the court had jurisdiction to hear and determine the motion to open up the judgment and for leave to defend. The proceeding to open up a judgment entered by confession and for leave to defend is not based on section 21 of the Municipal Court Act nor section 72, of the Civil Practice Act but the court, in passing on such motion, exercises equitable jurisdiction. Lake v. Cook, 15 Ill. 353; Solomon v. Dunne, 264 Ill. App. 415. In such a motion the equitable circumstances are of more importance than the question of laches, or lack of due diligence. Elaborated Roofing Co. v. Hunter, 262 Ill. App. 380.

The consideration of the Federal orders entered did not prohibit the use of the leased premises for the sale of automobiles but only restricted the sale of them. Colonial Operating Corp. v. Hannan Sales S Service, 39 N. Y. S. (2d) 217 [265 App. D. 411]. The court in that case, in passing on Federal orders similar to the ones before us said: “the Federal orders in question did not make illegal or prohibit absolutely the showing and selling of both new and second-hand automobiles and accessories. It is clear, also, that nothing in the lease prevented the tenant from selling new automobiles to those within the exceptions above enumerated. Therefore it must be said as a matter of law that the primary purpose of the lease as to use was not frustrated, and likewise that the tenant was not relieved from continuing the use and occupation of the premises and from paying rent reserved in the lease. ’ ’

We think the rule announced in the New York case is sound. These are war times and no one can expect to carry on business as usual.

The judgment of the municipal court, vacating the judgment and dismissing the suit, is reversed and the cause remanded with directions to reinstate the judgment entered by confession.

Reversed and remanded with directions.

Matchett, P. J., concurs.

Mr. Justice McSurely participated in the decision of this case but passed away before the opinion was filed.


author: Mr. Presiding Justice O’Connor

text:
    In re Estate of Alfred Walzer, Deceased. Robert E. Dowling, Jr., Appellant, v. Mary E. Walzer, Appellee.

    Gen. No. 42,552.
    Opinion filed June 21, 1943.
    John C. De Wolfe and Aaron Soble, both of Chicago, for appellant.
    Campbell, Clithero & Fischer, of Chicago, for appellee ; Delbert A. Clithero and Carlton L. Fischer, both of Chicago, of counsel.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.

June 11,1941, Robert E. Dowling, Jr., who will hereafter be referred to as plaintiff, filed his petition in the probate court of Cook county, praying that letters of administration upon the estate of Alfred Walzer, deceased, be issued to him. Mary E. Walzer, the widow of the deceased, who will be referred to as defendant, filed her answer in which she set up certain facts and opposed the issuance of the letters. October 3, an order was entered denying the issuance of the letters of administration, from which plaintiff appealed to the circuit court of Cook county. There was a trial in the circuit court and after hearing, an order was entered dismissing the petition, and plaintiff appeals.

The record discloses that Alfred Walzer, of Chicago, died intestate August 12, 1933, and plaintiff alleged in his petition, as amended, that Walzer left a personal estate of approximately $50,000, and his widow, .Mary E. Walzer and his son, Alfred B. Walzer, his heirs at law; that plaintiff was a creditor of the deceased by virtue of being a creditor of the Garfield State Bank; that the bank failed and was liquidated and a suit was brought to enforce the constitutional and statutory liability of the stockholders. That Walzer’s stock liability was $5,600 in the old Garfield State Bank and $26,300 in the consolidated bank; that the heirs of the deceased fraudulently concealed his death and personal property from plaintiff and his attorneys.

Mrs. Walzer, in her answer, denied the deceased left any personal property and stated that she and her son, Alfred B! Walzer, were entitled to preference over Dowling in case an administrator should be appointed. The answer further denied that she or her son had concealed the death of the deceased and alleged that the matters complained of had been adjudicated in a suit brought to enforce the stockholders’ liability in the superior court of Cook county, which had been appealed to this court, Madigan Bros., Inc. v. Garfield State Bank, 310 Ill. App. 358; where it had been decided that the deceased left no personal property.'

Plaintiff’s theory of the case, as stated by his counsel, is that he, as a representative creditor of the deceased, was entitled to have letters of administration,. under §§ 94 and 95 of the Probate Act, Ill. Rev. Stat. 1941, ck. 3, par. 246, § 94 and par. 247, § 95 [Jones Ill. Stats. Ann. 110.343 and 110.344]; that he is entitled to preference in obtaining the letters because of the conduct of the heirs at law of the deceased; that his petition was filed in apt time and that the proof adduced showed the deceased left assets; that he is not estopped or barred by the decision of this court in the Madigan case.

On the other side, defendant’s theory is that plaintiff failed to prove the essential allegations of his petition ; that there was no evidence that the deceased left any estate to be probated and no excuse was shown why Dowling waited nearly 8 years after Walzer’s death before filing the petition; that the issues whether Walzer left an estate or Whether Dowling was guilty of laches, whether there was fraudulent concealment on the part of the heirs, and whether Walzer made fraudulent conveyances of property in his lifetime were all raised “and specifically passed upon and decided adversely” to plaintiff in the Madigan case; that the decision in that case constitutes an estoppel by verdict.

In the Madigan case we filed an opinion May 19, 1941. That was a suit brought to enforce stockholders’ liability in the Garfield State Bank in which it was decreed that Mary E. Walzer and her son, Alfred B. Walzer, were liable for $26,705.50. We reversed the decree and a petition for leave to appeal from the judgment of this court was denied by the Supreme Court (310 Ill. App. XVI.) In that case we said that neither Mrs. Walzer nor her son had ever been a stockholder of the bank; that the decree was entered July 16, 1936 by the superior court and while that suit was pending in the superior court, Walzer died, August 12, 1933, nearly 3 years before the decree was entered, and July 13, 1938, Mrs. Walzer and her son were first brought into the case by amendment to the complaint. We there said: “in this amendment it was alleged that when Alfred Walzer died, August 12, 1933, he left surviving the defendants who took possession of the property of which the deceased died possessed and were therefore liable for his liabilities. . . .” In their answer Mrs. Walzer and her son 1 ‘ deny they took possession of any properties of which the deceased died seized or possessed” and aver they were not liable for any of the deceased’s liabilities; denied the jurisdiction of the court. The cause was referred to a master who took the evidence, found defendants liable and a decree was entered accordingly. In our opinion we then referred to Trupp v. First Englewood State Bank of Chicago, 307 Ill. App. 258, which was a stockholders ’ liability casé and which we said was similar to the case at bar. And continuing we said: “There the plaintiffs sought to impose a stockholder’s liability upon certain persons made parties for the first time more than two years after the original decree was entered; the affidavit filed in that case supporting the supplemental complaint was to the effect that certain facts had come to the knowledge of plaintiffs subsequent to the filing of the complaint which necessitated the filing of a supplemental complaint; this affidavit is in all respects like that in the instant case. No facts are stated which have come to the knowledge of plaintiffs, nor is any showing made that the fact of death of Alfred Walzer could not by the exercise of ordinary diligence have been ascertained preceding the entry of the final decree of July 16, 1936.” Our opinion then points out that whether the decree was void because it was entered three years after Walzer died need not be passed upon because plaintiffs in that case had omitted this allegation upon which the decree against Alfred Walzer was based. And continuing we said: “Plaintiffs earnestly argue that the trial court had jurisdiction of defendants because they fraudulently concealed the death and assets of the deceased; that their attorneys failed to advise the court of the death of said deceased and permitted a decree to be entered against him after his death, and also misled the court by failing to administer the estate of the deceased.” We held the heirs of Alfred Walzer were under no duty to intervene and suggest the death of Alfred Walzer. The opinion goes on to say: “We are of the opinion the master and chancellor were in error in finding defendants inherited property from Alfred Walzer which could be held liable for his stock liability. Alfred Walzer and his wife Mary E. were in the meat market business for many years; it was a prosperous business and in the spring of 1930 Alfred Walzer, then in failing health, told his son Alfred B. that if he would give up his employment with the Illinois Bell Telephone Company and go into the meat market business with him he would give him one-half interest in the business; this proposition was accepted and there was transferred to Alfred B. stock in the business of the principal value of $12,500. Mary Walzer testified that she and her husband were in the meat market business for many years and during the period they invested in two pieces of real estate and three mortgages — all in joint tenancy; these mortgages were foreclosed, and she claims to be entitled to the properties as surviving joint tenant. The first mortgage shows the master’s deed issued to her. The second mortgage was bought in her name as the legal owner and holder of the note, and the property was bid in by her. The third mortgage was also bought in her name as the legal owner and holder of the note, and the foreclosure sale ran to her. It was sufficiently proven that Mary Walzer was a joint tenant of these properties and the owner by survivorship after the death of her husband. The evidence shows that the bank account in the Garfield State Bank was in the names of Alfred and Mary E. Walzer as a joint account. A former vice president of the bank testified that their bank account and all the transactions and purchases of mortgages were joint, and their safety deposit box was under the same joint arrangement.

“The master apparently was of the opinion there had been fraudulent conveyances of these properties to Mary E. Walzer. An action to set aside fraudulent conveyances cannot take place in a representative suit to enforce a stockholder’s liability. There must first be a recovery of a judgment and the return of an unsatisfied execution and the remedy is then by an independent proceeding in equity. . . . The record fails to establish that either of the defendants received or inherited any property from Alfred Walzer. The constitutional liability of a stockholder in a bank is not inheritable and the heirs cannot bécome. liable for this unless by some overt act they accepted title to the shares of stock or the benefits flowing therefrom. The evidence fails to show these necessary facts.

“While we are of the opinion the evidence fails to show defendants inherited any property from Alfred Walzer which would impress any stockholders ’ liability upon them, our decision is based principally upon our conclusion that the court was without jurisdiction to bring in these defendants as additional parties two years after the final decree of July 16,1936.”

The evidence in the Madigan case was offered in evidence in the instant case and a great deal of other evidence was introduced or sought to be introduced by plaintiff, tending to show that Walzer, in his lifetime, had made fraudulent conveyances to his wife and son; that the mortgages and the bank account mentioned in our opinion in the Madigan case belonged to Walzer. All of these matters, we hold, were involved in the Madigan case and the matter, cannot be relitigated although there is additional evidence in this case that was not produced in the Madigan case. But this cannot be considered in view of our former opinion People ex rel. v. United States F. & G. Co., 306 Ill. App. 518-522. See also Clark v. Chandler, 210 Ill. App. 69, affirmed 286 Ill. 180.

The suit to enforce a stockholder’s liability has been in the courts for many years. As stated, the liability of Mrs. Walzer and her son was before us in the Madigan case and we held they were not liable. The Supreme Court refused leave to appeal from the judgment which we entered. There should be an end to litigation. We have in many opinions quoted from the Supreme Court of the United States in Stoll v. Gottlieb, 305 U. S. 165, where the court said: “It is just as important that there should be a place to end as that there should be a place to begin litigation.” Trustees of Schools v. City of Chicago, 308 Ill. App. 391.

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

Judgment affirmed.

Matchett, J., concurs.