author: Mr. Justice Niemeyer

text:
    Joseph B. Woodruff, Appellee, v. City of Chicago, Appellant.
    Gen. No. 43,301.
    Heard in the first division of this court for the first district at the December term, 1944.
    Opinion filed October 15, 1945.
    Rehearing denied October 30, 1945.
    Released for publication October 30, 1945.
    Barnet Hodes, Corporation Counsel, for appellant; J. Herzl Segal, L. Louis Karton and Sydney R. Drebin, Assistant Corporation Counsel,, of counsel.

      Concannon, Dillon, Snook & Arthur, of Chicago, for appellee.
   Mr. Justice Niemeyer

delivered the opinion of the court.

Plaintiff’s action, instituted June 5, 1937, is to recover moneys paid as special assessments levied in separate proceedings for the widening of Taylor street and south Jefferson street in Chicago. On trial before the court without a jury in 1944, judgment was entered for the plaintiff in the sum of $10,480.76, the amount of the special assessment paid by him for the widening of Taylor street, and judgment was rendered against the plaintiff and in favor of defendant on plaintiff’s claim in the sum of $7,804.34, paid for the widening of Jefferson street. Defendant appeals from the judgment entered against it as to. the Taylor street assessment. Plaintiff has filed a cross-appeal alleging error in the failure of the court to include interest in the judgment in respect to the Taylor street assessment, and in the entry of judgment denying recovery of the assessment in the Jefferson street proceeding.

Taylor street is an east and west street; Jefferson street runs north and south. In 1921 the defendant filed a petition to condemn 20 feet of the property on the" south side of Taylor street from. Halsted street on the west to Canal street on the east. In the same year proceedings were instituted to condemn 20 feet on each side of south Jefferson street between west Harrison street and west Boosevelt Boad. Plaintiff’s property is located on the northeast corner of Taylor street and Jefferson street within the termini of the proposed improvements. Pinal judgment confirming the revised assessment roll in the Taylor street proceeding was entered February 29, 1928, and payment of the assessment ($10,480.76) was made on June 14, 1928. Final judgment confirming the revised assessment roll in the Jefferson street proceeding was entered March 3, 1927, and the total assessment ($7,-804.34) was paid September 20, 1927. During the pendency of the condemnation proceedings ordinances were passed for the paving of the respective streets, as widened, with granite paving blocks, and these ordinances were received in evidence in the condemnation proceedings. Subsequently, and because of the excessive cost, the ordinances were repealed and in 1929 new ordinances were enacted providing for the pavement of the respective streets, as widened, with asphalt on 8 inches of concrete, and special assessment proceedings based on the new ordinances were instituted. Judgment was entered in the Taylor street proceeding confirming the assessment for the paving; bids received, after proper advertising, were opened August 21, 1930; the lowest bid being approximately $31,000 more than the total of the assessments confirmed, all of the bids were rejected and no effort was ever made to procure new bids or to collect the assessments levied. All the property condemned on Taylor street, was acquired and paid for by 1938; buildings thereon were removed but the 20-foot strip acquired, was not made suitable for street purposes; in 1936 and 1937 defendant through a W. P. A. project resurfaced the old roadway of Taylor street; in 1940 defendant by ordinance designated Taylor street as widened as an arterial highway of the State of Illinois and allocated $100,000 from the motor fuel tax fund for paving the street; this allocation was approved by the State but plans for the paving were never completed and the paving has not been commenced.

Plaintiff’s claim is based on a failure of consideration arising out of the alleged abandonment of the improvement of Taylor street necessary to make it suitable for use as a public thoroughfare. It is stated in his brief as follows: “We do not contend, and did not contend in the trial court, that the City abandoned the widening of Taylor street. . . . Our contention is that the City has failed to improve the widened street and in that respect has failed to comply with the representations made by it in the condemnation proceeding that the street would' be improved when widened.” The cases relied upon by plaintiff are Bradford v. City of Chicago, 25 Ill. 349, 359; District of Columbia v. Thompson, 281 U. S. 25; 30 F. (2d) 476; Valentine v. City of St. Paul, 34 Minn. 446, 449 ; Grimes v. Merced County, 96 Cal. App. 76, 273 Pac. 839; and City of San Antonio v. Walker (Tex. Civ. App.), 56 S.. W. 952, 953. In each of the cases cited recovery of assessments or special taxes paid was allowed. However, the facts in the present case do not bring it within the rule of these cases. In each case cited abandonment of the projects for which the assessments or taxes were levied was conceded and no claim of intention to proceed with the contemplated improvements was made by the municipality. In the Bradford case the assessment for the opening and extension of south La Salle street in the City of Chicago was held to be void on its face. No attempt was made by the city to procure another assessment, nor was any claim made of an intention to prosecute the work. In the District of Columbia case, where plaintiff recovered an assessment paid in a condemnation proceeding to acquire property for opening and extending a street, the auditor of the District, in response to a request for the return of the assessment, stated that it was never the intention of the District to open the street, “because of the excessive grade.” This position was adopted by the District on the trial of the case, which made no claim in its pleadings or proof that it desired or intended to make such extension at any future time. In the Court of Appeals and in the Supreme Court of the United States the Bradford, Valentine and City of Antonio cases, relied upon by plaintiff, were cited. In the Valentine case the plaintiff had paid an assessment levied against his property in a proceeding to open and extend a street; subsequently the city was perpetually enjoined from appropriating a portion of the land sought to be condemned, and the improvement rendered impossible. In the City of Sam Antonio case plaintiff paid an assessment levied on his property as benefits under an ordinance providing -for the widening of a street; the ordinance was later revoked and the city charter so amended that the original work could not be carried into effect, and the work therefore abandoned. The District of Columbia case and the cases cited therein were commented upon and distinguished in the case of Boss v. District of Columbia, 134 F. (2d) 14, where the court affirmed the trial court in holding as a conclusion of law that there had been no abandonment and no intention to abandon the extension of the street there involved. In the present case the city denies abandonment of the contemplated improvement of Taylor street as widened; it points to the general depression existing in 1930 and thereafter, reducing the value of assessment bonds and making impossible the procurement of bids for the paving of Taylor street, as widened, within the assessments confirmed for such paving or at a reasonable price; to its efforts as late as 1940 to effect the pavement with funds from the motor fuel taxes of the State after designation of the street as an arterial highway, and to inability to pave the street under war restrictions without priorities granted by the federal government. These facts negative an intention on the part of the defendant to abandon either the widening of the street or its improvement as widened. Intention is a necessary element of abandonment. Burns v. Curran, 275 Ill. 448; Shirk v. City of Chicago, 195 Ill. 298.

Defendant contended on oral argument that the remedy, if any, of the plaintiff for the failure of defendant to proceed with the improvement of the street as widened — the widening of the street not being abandoned — was an action for damages. Support of this position is found in plaintiff’s argument that it was necessary for the defendant in the condemnation proceeding to show an intent to improve the street as widened, where he says: “Forest Preserve District v. Ecfchoff et al., 372 Ill. 391, is one of many cases under the Eminent Domain Act, holding that when a part of a tract of land is taken and the owner claims damages to the part not taken, the petitioner may show in the condemnation proceeding on the question of damages the manner in which it intends to improve the land which it is taking, and that, if it thereafter fails to so improve the land taken, it becomes liable in damages. It would seem that this rule is very similar to the rule in condemnation cases under the Local Improvement Act.” As stated above, plaintiff’s contention is “. . . . that the City has failed to improve the widened street and in that respect has failed to comply with the representations made by it in the condemnation proceeding that the street would be improved when widened. ’ ’ Plaintiff’s action, if any — the project not being abandoned — must be for damages.

The facts with respect to Jefferson street are substantially the same, except that in 1942 the street as widened was fully paved and improved with money allocated from the motor fuel tax fund. Plaintiff insists that his action being one at law, a defense arising after the institution of the suit is unavailable. In the case of Boss v. District of Columbia, supra, where right to recover assessments was denied, defendant was permitted to show the completion of the improvement after the institution of the suit. Plaintiff’s action is for money had and received, which is of an equitable nature. In equity matters arising subsequently to the institution of the suit are available under supplemental pleadings to plaintiff and defendant. In People ex rel. Horejs v. Stedronsky, 321 Ill. App. 310 (Abst.), a mandamus proceeding to compel payment of salaries of firemen and policemen of the Town of Cicero, where judgment was entered directing payment of salaries accruing after institution of the suit, we said: “By section 39 of the Civil Practice Act (Ill. Rev. Stat. 1941, chap. 110, par. 163) supplemental pleadings, setting up matters which have arisen after the original pleadings have been filed, may be filed within a reasonable time by either party by leave of court and upon terms. This provision makes the general rules of chancery as to supplemental bills applicable to actions at law (McCaskill, Illinois Civil Practice Act Annotated, section 39), and therefore upon proper pleading permits judgments to be entered upon facts existing at the time of hearing of actions at law instead of at the time of the commencement of the suit, as under the former practice. ” '

The judgment against the defendant for the amount of the Taylor street assessment is reversed and the judgment for defendant in respect to the Jefferson street assessment is affirmed.

Judgment against defendant in re: Taylor street, reversed; judgment for defendant in re: Jefferson street, affirmed.

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


source: Caselaw Access Project

author: Mr. Justice O’Connor

license: Public Domain

text:
    Ralph McKirchy, Appellant, v. Robert Van Sweringen et al. Elgin, Joliet & Eastern Railway Co. and Carnegie-Illinois Steel Corporation, Appellees.
    Gen. No. 43,389..

      Heard in the first division of this court for the first district at the June term, 1945.
    Opinion filed October 15, 1945.
    Rehearing denied October 30, 1945.
    Released for publication October 30, 1945.
    Henry Mitgang, of Chicago, for appellant; Arthur A. Wolfinsohn, of Chicago, of counsel.
    Knapp, Cushing, Hershberger & Stevenson, of Chicago, for appellees; Harlan L. Hackbert, of Chicago, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.

Plaintiff brought an action against defendants to recover damages for, personal injuries sustained by him through the claimed negligence of the three defendants. Van Sweringen filed, his answer. The Railway Company and the Steel Company moved to strike the complaint and for judgment in their favor, for the reason that they contended no cause of action was stated against either of them. The court sustained the motions, entered judgment for costs against plaintiff and in favor of the two corporations and plaintiff appeals.

The question for decision is the sufficiency of the second amended complaint. The substance of the allegations is that on January 12, 1944 (on oral argument it was stated by counsel that the accident occurred about midnight) defendant Railway maintained and operated two tracks which extended east and west, immediately south of the south side of 86th street, and across Burley avenue, a north and south street in the city of Chicago. At the time in question some cars were , being backed in an easterly direction to the plant of the Steel Company, which was located a short distance east of Burley avenue, and south of 86th street. The Railway Company maintained and operated gates immediately north and south of the two tracks where they crossed Burley avenue. Defendant Van Sweringen, was driving an automobile north in Burley avenue a short distance south of 8'6th street and plaintiff, who had been employed for some time as a switchman by the Railway Company, came south on 9 southbound street car in Burley avenue and alighted just north of 86th street, for the purpose of going to his place of employment in or near the Steel Company’s plant, where he was to board the cars which were being backed, as above stated.

The Railway Company employed a man who was in a tower west of Burley avenue, who operated the gates; that as the train was about to cross Burley avenue he lowered the gates then raised them and was lowering them again when Van Sweringen, in an endeavor to avoid the gates, and from being trapped on the crossing, speeded up his automobile and struck plaintiff as he was crossing Burley avenue. It is alleged that plaintiff was in the exercise of due care. In the second count of the complaint it was alleged that Van Sweringen was guilty of wantonness in the manner in which he drove the automobile, but that count is not before us on this record.

The allegation made against the Steel Company is that it had long been the custom, prior to the accident, for it to have a watchman with a lantern and a stop sign to warn northbound automobile traffic in Burley avenue that a train was approaching to cross that street; that the railway crossing was used in interstate commerce and the train was backing up to haul goods and material in interstate commerce between Illinois and Indiana, and contained cars on which plaintiff was to work; that plaintiff relied upon the duty of the two defendants in operating the gates and signaling the automobilists; that they failed in their duty in that the Steel Company failed to have a watchman, and the gates were improperly operated by the Railway Company, as a result of which, plaintiff was injured through their negligence, combined with the negligence of Van Sweringen.

Counsel for the Railway and the Steel Companies contend that the operation of the gates was to protect the people crossing the railway tracks and was in no way applicable to plaintiff who was walking across Burley avenue to the east at the north crossing of 86th street, and a number of cases are cited. Two of them are Chesapeake & O. R. Co. v. Mihas, 280 U. S. 102 and Speiring v. Chicago & E. I. Ry, Co., 325 Van Sweringen App. 576. We think neither of these cases is in point.

In the Wlihas case the suit was brought in the Superior court of Cook county, Illinois, for damages, in an action under the Federal Employer’s Liability Act. Plaintiff had a verdict and judgment for $20,000,. which was affirmed in this court, 249 Van Sweringen App. 446. Certiorari was denied by our Supreme court. The case was then taken to the Supreme court of the United States where it was held there should have been a directed verdict for the defendant at the close of the evidence. In that case plaintiff was an employee of the Railway Company, to care for switch lights and lamps along the right-of-way and had been so employed for about four years prior to the injury. He lived near the switch tracks in the yards of the Railway Company at Peru, Indiana, and the Supreme court said he was thoroughly familiar with the switching operations. In doing his work he used a small speeder car which was kept at the opposite side of the tracks from where he lived and.it was necessary for him to cross these tracks to get the car. He crossed over between some of the cars on one of the tracks to get the speeder car when he was thrown and severely injured by a string of nine cars propelled by means of a flying switch against the standing car over which he was climbing. Plaintiff contended it was the established custom of the Railway Company to give notice and warning to all persons on or about the cars before moving or shunting other cars against the standing cars, which had not been done. The court held that such warning was exclusively- for persons engaged in unloading cars and not employees of the company. They further held that the Railway Company had no knowledge that plaintiff was in any position of danger. The court on this point said: “There is nothing in the record to show that employees engaged in the switching operation knew or had reason to believe that Mihas was in any position of danger. In the absence of such knowledge or ground for belief, they were not required to warn him of the impending switching operation or take other steps to protect him.”

The Speiring case was brought by an employee of the defendant Railway Company and was also based on the Federal Employer’s Liability Act. The employee was injured in a switching operation in the yards of the Railway Company. We held that a rule of the railroad requiring the whistle to be sounded near the whistling post was not applicable for a number of reasons and that it applied only to the public, not to employees of the railroad. We further said: “Moreover the rule did not apply to this switching movement. ’ ’

In the instant case plaintiff’s action is not brought under the Federal Employer’s Liability Act but is an ordinary, common law action to recover damages occasioned by defendants’ claimed negligence. To be under that act both the Railway Company and plaintiff must be engaged in interstate commerce at the time of the injury and such was not the case here. Plaintiff was on his way to work. Boyer v. Pennsylvania R. Co., 162 Md. 328. In that case the court in speaking of the Employer’s Liability Act said (p. 332"): . . the act contemplates only the liability of a carrier engaged in interstate commerce for injuries sustained by its employees while engaged in such commerce,” citing Second Employers’' Liability Cases, 223 U. S. 1, 47, 48, and numerous authorities.

We think it obvious the complaint sufficiently charges that the Railway Company negligently operated the gates as a result of which Van Sweringen speeded up his automobile to avoid being struck or trapped, and injured plaintiff. The combined negligence of both directly resulted in plaintiff’s injuries.

We think there were not sufficient allegations of fact as against the Steel Company to make it liable. The only charge was that it customarily had a watchman with a lantern to warn northbound traffic of the approach of trains in Burley avenue. There is no allegation that plaintiff relied on the custom in this respect nor is there any allegation that would warrant us in holding that the Steel Company was required to maintain a watchman at the crossing.

We have examined all of the authorities cited, and many others, and are clear that a discussion or analysis of them is wholly unnecessary and would but lead to confusion. The charge is plain, simple and easily understood and is sufficient in the eyes of the law to charge the Railway Company and Van Sweringen with liability.

The judgment of the Superior court of Cook county in favor of the Steel Company is affirmed. The judgment in favor of the Railway Company is reversed and the canse remanded for further proceedings in accordance with the views herein expressed.

Judgment affirmed in part, reversed in part and remanded.

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


text:
    Armin F. Hillmer et al., Appellees, v. Chicago Bank of Commerce et al. Robert J. Graf, Appellant.
    Gen. No. 43,401.
    Heard in the first division of this court for the first district at the June term, 1945.
    Opinion filed October 15, 1945.
    Rehearing denied October 30, 1945.
    Released for publication October 30, 1945.
    Jerome F. Dixon, of Chicago, for appellant.
    Owens & Owens, Seytarth & Atwood, Murphy & Pearson, Leonard & Leonard, John A. Russell, and George A. Curran, all of Chicago, for appellees; Thomas L. Owens and George E. Leonard, both of Chicago, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.

August 10, 1944, Robert J. Graf filed his second amended petition (hereafter referred to as the petition) on behalf of himself and other stockholders, .alleging that he had paid more than his constitutional liability as a stockholder of the bank and that the amount of such overpayment be refunded out of the funds in the hands of the receiver to him and to other stockholders who are similarly situated. Hillmer,, and some of the other plaintiff creditors, filed their motion to dismiss the complaint setting up various legal grounds and on November 2, 1944, the motion was sustained, the petition dismissed and Graf prosecutes this appeal.

June 25,1932, certain creditors of the Chicago Bank of Commerce, brought suit against Graf and other stockholders to enforce the constitutional liability of the stockholders. The bank was then being liquidated by the Auditor of Public Accounts in a suit brought by him. Some of the matters are still undisposed of and pending in the trial court. Various phases of the matter have been before courts of review a number of times. Hillmer v. Graf, et al., 294 Van Sweringen App. 612, (abst.); 303 Ill. App. 43; 304 Ill. App. 430; 316 Ill. App. 411; 375 Ill. 266.

Graf in his petition alleges that the master in chancery to whom the stockholders’ liability cause was referred, filed his report April 7, 1937, and fixed Graf’s liability at $134,563.20, and on July 30, 1937, upon the petition of Graf, the court entered a “decretal order” which is attached to and made a part of the petition, in which the pleadings in the case are recited and the intervening petition of Graf; that the suit was brought to recover from the stockholders the liability imposed upon them by the constitution; that the master had fixed Graf’s liability at $134,563.20 that the court finds the report of the master in this respect was erroneous and that Graf’s liability was not to exceed $75,000. The court further found that the receiver, with the approval of the court, had 'inherent power to make compromises, etc.; that Graf had offered to pay the receiver representing the creditors, $56,250, in full satisfaction and discharge of his liability; that the offer was fair and reasonable and its acceptance had been recommended by the receiver, and it was decreed that Graf pay the receiver in full satisfaction of his liability the $56,250 in cash, and that other creditors be enjoined from further proceedings against- him. An appeal was taken to this court where the decretal order was reversed and the cause remanded, 294 Ill. App. 612 (abst.).

The petition further alleges that on September 17, 1938, a final decree was entered approving the master’s report [but Graf’s liability is not mentioned] and an appeal taken to this court where the decree was affirmed December 22, 1939, 303 Ill. App. 43. A further appeal was prosecuted to the Supreme court, where on December 16, 1940 (375 Ill. 266) the judgment of this court was affirmed in part, reversed in part and remanded with directions. The effect of the Supreme court decision was to reduce the liability of Graf and some of the other stockholders.

It is further averred in the petition that after thjudgment of this court was entered the trial court entered a decree May 27, 1940, which is attached to and made a part of the petition, in which the court found that “all of the attorneys of record for the representative plaintiffs in this case are present in open court and have consented in open court to the entry of this decree;” that Graf had paid the $56,250 to the receiver, and by his petitions subsequently filed May 20 and May 27, 1940, offered $95,000 in full settlement of his liability as stockholder of the bank; that the offer was conditioned upon its immediate acceptance on behalf of all the creditors of the bank, their attorneys and the receiver; that all of the attorneys and the receiver consented to the acceptance of the offer and it was decreed that the offer be accepted in full settlement of Graf’s stockholder liability and that he pay the bank $38,750, the balance of the $95,000 which the decree finds he did, and it was accepted and approved.

The petition further avers that the receiver collected $945,352.50, substantially all of which was from the stockholders on account of their liability, and that he had paid the receiver in the liquidation suit, $405,805.41; that he had also paid out costs and expenses totalling $428,839.31, and that there remains in the hands of the receiver appointed in the creditor’s suit $110,647.54. It is out of this latter sum that plaintiffs seek to be reimbursed.

The decree of May, 1940, was entered about 6 months after the affirmance by this court of the decree of the trial court in which Graf’s liability was not mentioned, but before the judgment of this court was reversed in part on December 16, 1940, by the Supreme court.

On September 21, 1943, the Supreme court filed its opinion in Holderman v. The Moore State Bank, 383 Ill. 534, which was a suit brought to enforce the stockholders ’ liability of a bank in liquidation, and sometime after the stockholders’ liability had been fixed, some of them filed their petition praying a refund on the ground that they had paid more than they were legally liable for. The court there said (p. 538): “The principal point for decision is whether stockholders of the bank are entitled to a refund where they paid to the creditors’ receiver upon their constitutional liability a sum of money which, together with the amounts collected from the assets of the bank by the liquidating receiver, exceeded the sum due creditors for the periods during which they were stockholders.” The Circuit court and the Appellate court in that case decided against the petitioners but on appeal the decision was reversed and the matter remanded, the court holding that under the law, a refund was proper and said: “If it so happens the creditors’ receiver collects more than is necessary, or dividends paid by the liquidating receiver reduce the amount for which judgment has been rendered, any sum held by the creditors’ receiver in excess of the amount necessary to discharge the stockholders ’ liability is held in trust, and upon order of the court may, upon equitable principles, be returned.” We are unable to find anything in the record before us that would render the law laid down in the Holdermam case inapplicable here.

Plaintiffs have made a motion to dismiss the appeal on the ground that the order appealed from was only subject to review by an original bill in the nature of a bill of review and that the decree of May 27, 1940, is res judicata of all the issues sought to be raised. The motion was reserved to the hearing. We think there is no merit in the motion and it is denied.

The order of November 2, 1944, is reversed and the cause remanded for further proceedings in accordance with what we have said.

Reversed and remanded.

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


author: Presiding Justice Bristow.

text:
    Anna Van Hooser, Appellee, v. Ray E. Fick, Appellant.
    Term No. 44,014.

      Heard in this court at the May term, 1945;
    opinion filed July 7, 1945;
    rehearing denied October 23, 1945;
    released for publication October 26, 1945.
    Chas. Durfee, for appellant;
    Chas. J. Huffman, for appellee.
   Opinion by

Presiding Justice Bristow.

Not to be published in full


author: Presiding Justice Matchett.

text:
    Francis A. Adamaitis, Appellee, v. Henry A. Gardner, Trustee for Alton Railroad Company, Appellant
    Gen. No. 43,394.
    Heard in the first division, first district, this court at the June term, 1945;
    opinion filed October 15, 1945;
    released for publication October 30, 1945.
    Winston, Strawn & Shaw, for appellant;
    Douglas C. Moir, Gerard E. Grashorn and Edward J. Wendrow, of counsel;
    Edward B. Henslee, for appellee;
    Melvin L. Griffith, of counsel.
   Opinion by

Presiding Justice Matchett.

Not to be published in full.


author: Justice Niemeyer.

text:
    Emmons C. Carlson, Appellant, v. Irna Phillips, Appellee.
    Gen. No. 43,294.

      Heard in the first division, first district, this court at the December term, 1944;
    opinion filed October 15, 1945;
    rehearing denied October 30, 1945;
    released for publication October 30, 1945.
    Arthur A. Sullivan, J. A. Cobbey, Jacob Shamberg and Earl K. Schiek, for appellant;
    Kirkland, Fleming, Green, Martin & Ellis, for appellee;
    Weymouth Kirkland, Howard Ellis and J. B. Martineau, of counsel.
   Opinion by

Justice Niemeyer.

Not to be published in full.


text:
    William D. Gordon, Appellee, v. Edwin L. Read, Appellant. Carl H. Borak, Frank Katz and Ruth Katz, Appellees.
    Gen. No. 43,384.
    Heard in the first division, first district, this court at the June term, 1945;
    opinion filed October 15, 1945;
    rehearing denied October 30, 1945;
    released for publication October 30, 1945.
    Friedlund, Levin & Friedlund, for appellant;
    Mural J. Winstin and Dorothy M. Stalzer, of counsel;
    Julius L. Kabaker, for appellee;
    John V. Clinnin, of counsel; Golden & Golden, for certain appellees;
    Joseph L. Golden and Maurice P. Golden, of counsel.
   Opinion by

Justice Niemeyer.

Not to be published in full.


text:
    In re Estate of Edward J. O’Hare, Deceased. George Remus, Appellant, v. Northern Trust Company, Executor of Estate of Edward J. O’Hare, Deceased, Appellee.
    Gen. No. 43,396.
    Heard in the first division, first district, this court at the June term, 1945;
    opinion filed October 15, 1945;
    rehearing denied October 30, 1945;
    released for publication October 30, 1945.
    Chancellor & Chancellor, for appellant;
    Wilson & McIlvaine, for appellee;
    J. P. Dammann, Clarence E. Fox and F. A. Reichelderfer, of counsel.
   Opinion by

Justice Niemeyer.

Not to be published in full.


text:
    Valentine Kubiszewski, Appellant, v. Edward Lynch, Appellee.
    Gen. No. 43,410.
    Heard in the first division, first district, this court at the June term, 1945;
    opinion filed October 15, 1945;
    released for publication October 30, 1945.
    Sinon A. Murray and Louis A. Rosenthal, for appellant;
    no appearance for appellee.
   Opinion by

Justice Niemeyer.

Not to be published in full.


text:
    People of State of Illinois, Defendant in Error, v. Stanley Sumoski, Plaintiff in Error.
    Gen. No. 43,439.
    Heard in the first division, first district, this court at the June term, 1945;
    opinion filed October 15, 1945;
    rehearing denied October 30, 1945;
    released for publication October 30, 1945.
    Thaddeus C. Toudor, for plaintiff in error;
    William J. Tuohy, State’s Attorney, for defendant in error;
    Edward E. Wilson, John T. Gallagher, Melvin S. Rembe and Joseph A. Pope, Assistant State’s Attorneys, of counsel.
   Opinion by

Justice Niemeyer.

Not to be published in full.


text:
    American National Bank and Trust Company of Chicago, Appellee, v. National Mineral Company, Appellant.
    Gen. No. 43,468.
    Heard in the first division, first district, this court at the June term, 1945;
    opinion filed October 15, 1945;
    released for publication October 30, 1945.
    Adolph A. Rubinson, for appellant;
    Sonnenschein, Berkson, Lautmann, Levinson & Morse, for appellee;
    Isaac E. Ferguson and Ben Liss, of counsel.
   Opinion by

Justice Niemeyer.

Not to be published in full.


author: Justice O’Connor.

text:
    Esther Hoppe, Appellee, v. Yellow Cab Company, Appellant.
    Gen. No. 42,861.
    Heard in the first division, first district, this court at the October term, 1943;
    opinion filed October 15, 1945;
    released for publication' October 30, 1945.
    Jesmer & Jesmer, for appellant;
    Julius Jesmer, of counsel;
    Samuel A. Einella, for appellee;
    Joseph Barbera, of counsel.
   Opinion by

Justice O’Connor.

Not to be published in full.


author: Mr. Presiding Justice Matchett Mr. Justice O’Connor

text:
    Westinghouse Electric Elevator Company, Appellee, v. La Salle Monroe Building Corporation, Appellant.
    Gen. No. 43,327.

      Heard in the first division of this court for the first district at the February term, 1945.
    Opinion filed October 15, 1945.
    Rehearing denied November 16, 1945.
    Released for publication November 17, 1945.
    Barrett, Barrett, Costello & Barrett, of Chicago, for appellant; Wendell H. Shanner, of Chicago, of counsel.
    Abraham Lepine, of Chicago, for appellee.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.

April 12, 1939, defendant, owner of an office building at 39 South La Salle street, 14 stories high; made a contract with plaintiff to construct certain improvements on it, particularly the elevators. Mr. O’Brien, assistant superintendent of construction for plaintiff, on June 21 met Mr. Harr, defendant’s building manager, and Mr. Lowenberg, representing the architect, and agreed on a program for the work.

Elevators Nos. 1 and 2 (most westernly elevators of the building) were to be turned over to plaintiff. The new elevators required doors and frames should be installed first. Solid barricades were to be built on each floor by another contractor. These were built so that ingress and egress from the areas behind the barricades were by doors, usually kept locked. The barricades were so built as to include the elevator shafts of elevators Nos. 1 and 2. The old grillwork and door frames were removed by another contractor. Rough “bucks” (metal elevator or door frames) were installed instead. This work was begun on the 14th floor and continued downward from floor to floor.

Clarence Beichert was an employee of plaintiff on the' job. He was a journeyman electrician installing signal lanterns in the boxes of the bucks. The lanterns were being put in around the openings of shaft No. 1 on the different floors. Both plaintiff and defendant were operating under the Workmen’s Compensation Act.

Beichert was working behind the barricades on the 10th floor. There was no eyewitness to the occurrence, but the manner in which he usually did his work was described to the jury. He would place a stepladder on the hallway floor about six inches from and parallel with the opening into the elevator wall. He then went up the ladder and drilled screw holes through the top part of the buck. In completing the operation he would lean over the upper frame to break off the protruding ends-of the screws with pliers. This brought his head, arms, and shoulders into the elevator shaft. The evidence tends to show that while in that position he was struck by a falling elevator car and received injuries from which a little later he died. The occurrence took place about 3: 30 p. m. on July 21, 1939.

The elevator was of the hydraulic type. The operator moved it by a lever extending upward through the floor of the car. Only three workmen were on the job when the accident occurred. Two of them were Mr. Botchford and Mr. Daley, working for the Dahlstrom company, a subcontractor. They had just completed removing frames and grillwork in front of the elevator shafts Nos. 1 and 2, working in the well at the bottom of the shaft on the first floor. They knew Beichert was working on a floor higher up and the kind of work he was doing. Shortly before the accident he came down to borrow some washers. Botch-ford went to the second floor, got the washers and gave them to him: Elevator No. 1 was then at the bottom of the shaft, “killed” and out of service. Botch-ford and Daley wished to have the car taken to the 14th floor, the top, of the building. Castiglia was an elevator, operator in the service of the owner. Botch-ford asked him to take the car to the top, and Castiglia took it there, put the lever in neutral and after a few minutes left, passing through the barricade door, which he locked. He went back to the first floor in another car.

Botchford was the only person who saw the car come down through the shaft. He felt the “governor rope” against his elbow and, looking up, saw the elevator car at the 4th floor, coming down “fast.” He grabbed his partner, Daley, and together they jumped out of its way. Photographs are in evidence showing the situation.

Mr. Sparks was one of five engineers of the building employed by the defendant. He was not chief engineer on the day of the accident, but he was in charge when the accident occurred. He had the shift from 3: 00 p. m. to 11:00 p. m. of that day. He says he talked with' Castiglia after Botchford asked Castiglia to take the elevator to the 14th floor, and that Castiglia told him what Botchford wished him to do. He said he told Castiglia he could take the elevator to the 14th floor if he wished it done. Sparks says the engineer of the building was the boss of the elevator starter.

Before the work was started O’Brien was present and heard Harr tell the elevator starter that plaintiff was to have entire control of the elevator shafts and wells. Keith, an elevator operator, said the operators had received instructions from Harr prior to the 21st of July 1939, not to operate elevators when construction was under way. Harr did not testify. He was a nonresident and was not available. • The contract required plaintiff to have a superintendent or responsible person present on the work at all times. Mr. O’Brien was the only person meeting this requirement, and he was supervising other jobs concurrently. He was not present at the time of the accident.

The action of plaintiff is based on Secs. 6 and 29 of the Workmen’s Compensation Act of Hlinois, ch. 48, pars. 143, 166, Ill. Rev. Stat. 1943 [Jones Ill. Stats. Ann. 143.21, 143.44]. The complaint avers the relationship created by the contract of April 12, 1939, between plaintiff contractor and the defendant owner; the employment of Beichert, his death under circumstances described, obligating plaintiff under the compensation law to pay compensation to his wife and children; plaintiff’s payment thereof and its subrogation under the Act to the right of action of the representative of Beichert against the defendant for its negligence which caused his death.

The trial was by jury. At the close of all the evidence there was a motion by the defendant for an instructed verdict, as also was a motion by plaintiff for an instruction in its favor. Both were denied. The jury returned a verdict for the plaintiff for $5,500. The court overruled motions by defendant for judgment notwithstanding or a new trial and entered judgment on the verdict, from which defendant appeals.

The principal defense interposed at the trial was that by the terms of the contract between plaintiff and defendant the plaintiff contractor agreed to indemnify and hold harmless the defendant owner from this claim on which the action is based. This affirmative defense was interposed three times by pleadings which set up the very language of the contract on which defendant relied and three times it was stricken by the court. The major contention of the defendant on this appeal is that the court erred in striking this pleading. The language of the contract, is as follows:

“The contractor agrees to provide and pay compensation for injuries sustained by any of his employes arising out of or in the course of employment on the within mentioned building, in accordance with the requirements of the State Laws, and further agrees to carry insurance in a company satisfactory to the owner fully protecting himself, the Architects and Engineers, the Consulting Engineer, and the Owner against claims which may be made under said laws and agrees to deposit said policy or a true copy thereof (or a certificate from the Insurance Company issuing said policy, showing insurance in force) with the Architects and Engineers.
“The contractor further agrees to indemnify and hold the owner, the owner’s employes and agents, the Architects and Engineers, and the City of Chicago,' wholly harmless from any damages, claims, demands or suit by any person or persons arising out of any acts or omissions by the Contractor, his agents, servants or employes in the course of any work done in connection with any of the matters set out in these specifications, and the contractor shall carry at his own expense insurance in a company satisfactory to the owner to cover the aforesaid liabilities.”

It is argued that either of the above paragraphs discloses the intention of the parties that plaintiff contractor should bear the burden of any liability resulting from the negligence of the owner defendant in connection with work to be done under the contract, and that the repetition in the' second paragraph makes this intention quite certain. We do not find that intention in either paragraph. Each consists of a single sentence. The subject matter of the first is compensation for injuries to the employees of the contractor. For these the contractor agrees to “provide and pay” according to “State Laws.” He also agrees to “carry insurance” protecting himself, the architects and engineers and “Owner” against claims which may be “made under said laws,” to deposit the same, etc. There is not a word about the negligence of the owner or any one in the sentence.

The second paragraph might be designated as the indemnity clause. This paragraph likewise contains a single sentence. The subject matter is indemnity. The contractor agrees to do this for persons named, including the “Owner.” The indemnity is limited, however, to claims, demands, etc., “arising out of any acts or omissions by the Contractor, his agents,” etc. This clause by inference excludes negligence of the owner as we interpret it.

Section 29 of the Compensation Act [Ill. Rev. Stat. 1943, ch. 48, par. 166; Jones Ill. Stats. Ann. 143.44] expressly and clearly covers negligence. In view of the language there used, we hold that any intention to require the contractor to assume the burden of the owners own negligence would have to be clearly and unambiguously expressed in the agreement. It is not so expressed. Indeed, we think the protection intended to be covered, in so far as the owner is concerned, is only from the liability imposed' upon him under sec. 31 of the Workmen’s Compensation Act [Ill. Rev. Stat. 1943, ch. 48, par. 168; Jones Ill. Stats. Ann. 143.47].

The heart of this defense is that plaintiff, by its contract, obligated itself to indemnify the defendant from liability arising out of defendant’s own negligence. After all, it is a question of the intention of the parties to the contract as expressed in the language of it, considered in the light of the circumstances under which it was made. Long Island R. Co. v. American Bridge Co. of New York,175 App. Div. 170, 161 N. Y. S. 543. We do not gather the intention argued by defendant from the language of these provisions nor consider this a reasonable construction of the paragraphs in view of the circumstances under which the contract was made. Perry v. Payne, 217 Pa. 252, 11 L. R. A. (N. S.) 1173; Anno. 38 A. L. R. 583. We hold that the court did not err in striking the pleading which set up these affirmative defenses.

Defendant insists the instruction requested in its favor at the close of all the evidence should have been given for the reason that Castiglia, who took the elevator which injured Reichert, to the top of the building, acted wholly out of the scope of his authority in doing so. O’Brien, Small and Keith all say Mr. Harr had given instructions to the elevator operators not to operate while the work was on. O’Brien had given like instructions to Rotchford, Daley and Reichert. In addition to being an elevator operator Castiglia was an assistant starter. No one asked Harr for permission to move the elevator. 0 ’Brien was absent from the building when the elevator was moved. Rotchford and Daley, working for another contractor in the well of shaft No. 1, wished the car to be taken to the 14th floor. Rotchford asked Castiglia to take it there. Castiglia spoke to Sparks about the matter, who told him he could do so if he wished. Sparks was an en-' gineer (not the chief engineer, but one of five who worked for defendant in the building). He was in charge at this time. He gave no particular instructions. Castiglia took the elevator to the top of the building, put the lever in neutral, remained in it for about five minutes, then left it and returned to the first floor in car No. 5. He permitted the car (unattended) to remain at the top of the building, which the jury could reasonably find to be negligence. Defendant contends Castiglia’s acts in moving the elevator and leaving it at the top of the building were wholly beyond the scope of his employment and defendant, therefore, not liable. Castiglia evidently did not wish to take the responsibility of moving the elevator without authority. He therefore asked Sparks, who was the engineer present and in charge. The unquestioned facts are that while Castiglia was in charge of the car by permission of Sparks, the representative of defendant, it was permitted to remain unattended and fell from the top floor to the basement. There is a presumption of negligence from that fact. There is no evidence in the record tending to overcome it. Hartford Deposit Co. v. Sollitt, 172 Ill. 222, 50 N. E. 178; Springer v. Ford, 189 Ill. 430, 59 N. E. 953.

We hold the issue of respondeat superior was for the jury and approve their verdict in that regard.

Defendant cites cases such as Johanson v. William Johnston Printing Co., 263 Ill. 236, and Nelson v. Shutz Chicago Factory Branch, 341 Ill. 387. The cases are distinguishable in that defendants there were held to owe no duty to the injured person. That is not so here. Perry v. Payne, 217 Pa. 252, 11 L. R. A. (N. S.) 1173; Anno. 38 A. L. R. 583. See also 44 A. L. R. 1103-1112, and Soderstrom v. Patten, 131 Ill. App. 32. We also think the maxim of res ipsa loquitur is applicable. 9 B. C. L. 1259.

It is contended the court erred in its rulings on the evidence. Mr. Carey, who had been an elevator inspector in the City of Chicago for 23 years, testified as an expert for plaintiff. He was familiar with the mechanism of hydraulic elevators such as this. He was asked whether there were any rules or regulations for the operation of elevators of this kind. He said there were no rules but that certain “customs” were observed. There was no objection to this, but when he was asked whether there was any “custom” as to leaving the elevator unattended, an objection was made. The witness did not answer directly. The question was repeated. Defendant objected, and his objection was overruled. The witness replied it was “bad policy” to do so. He then went on to recite certain circumstances under which it might be permissible. It is contended this allowed the witness to answer the very point it was necessary for the jury to decide. If it was error, we hold it harmless, since Leslie F. Small, an expert witness for defendant testified practically to the same effect.

Defendant also says the court erred in allowing T. U. Sparks, witness for the plaintiff, to say it was against the rules to leave an elevator of this kind unattended. Sparks explained it was not a written rule but that instructions had been given never to leave a car in that way. He again said the rule was not in writing but that at two or three different times instructions had been given operators telling them “never to leave a car unattended.”

Defendant cites Streeter v. Humrichouse, 357 Ill. 234, and other cases holding rules of this kind inadmissible where the action brought is against a third party. These cases are not applicable here. It may be doubtful whether the questions asked could properly be directed to expert witnesses, but if there was error in this respect both parties were alike responsible for it, and we hold it harmless.

It is next contended the court erred in refusing instructions tendered by defendant and in giving instructions requested by plaintiff. Upon the whole the jury seems to have been well and fully instructed on the law from defendant’s standpoint. Nineteen instructions requested by defendant were given. Seven were given at the request of plaintiff. Defendant offered six more, which were refused. We have examined all of them. The first was, we think, erroneous in that it told the jury plaintiff could not recover if any employee of the plaintiff was guilty of any negligence which proximately contributed to cause the injury. This put a greater burden on plaintiff than required by law, because it did not limit the negligence of any such employee to an act occurring in the course of his employment. The second refused instruction concerned a matter on which the evidence was not in conflict, on which, therefore, there was no issue in the case, and it was covered by other instructions. Nos. 3 and 5 were misleading, calling for conclusions of law, and singling out one particular act of negligence, directing a verdict. Moreover, we hold the rule stated in 3 Am. Jur. p. 634, § 1111, applicable.

‘ ‘ One test that has been frequently held determinative of the prejudicial character of error in instructions is the correctness of the result. If that is correct, the error is not reversible.”

See also Cooney v. Hughes, 310 Ill. App. 371.

We hold there is no reversible error in the record; that the result is not other than it must have been, and the judgment will be affirmed.

Affirmed.

Niemeyer, J., concurs.

O’Connor, J., dissents.

Mr. Justice O’Connor

dissenting: I concur in what is said in the foregoing opinion except the construction placed on the paragraph of the contract entered into between the parties, first above quoted. The pertinent part of that paragraph is: “The contractor agrees to provide and pay compensation for injuries sustained by any of his employes arising out of or in the course of employment ... in accordance with the requirements of the State Laws, and further agrees to carry insurance in a company satisfactory to the owner fully protecting himself, . . . and the Owner against claims which may be made under said laws. ’ ’

Plaintiff’s employe, Beichert, lost his life through the negligence of the employees of the defendant owner of the building. All parties here are subject to the compensation law and plaintiff was required under that law to pay compensation for the death of Beichert. And under § 29 he could recover the amount so paid from the defendant owner in the absence of a contract to the contrary. By the contract which is plain and unambiguous plaintiff agreed to carry insur anee protecting the defendant owner against claims which might be made under the compensation laws. The claim here made by plaintiff against the defendant is based upon the Compensation Act.

I flunk the court erred in striking this defense from the pleadings.


author: Mr. Presiding Justice Dove

text:
    Caddie R. Pratt, Appellee, v. Board of Education of District No. 61, County of Kankakee and State of Illinois et al. (Fred C. Hamilton and Ida Beckers), Appellants. Charles P. and Louis Cryier, Separate Appellants. Bradley State and Savings Bank, Separate Appellant.
    Gen. No. 10,006.

      Heard in this court at the February term, 1945.
    Opinion filed October 22, 1945.
    Released for publication November 12, 1945.
    John H. Beckers and Elmer C. Wilson, both of Kankakee, for appellants.
    Armen R. Blanks and Dyer & Dyer, all of Kankakee, for certain appellant; Wayne H. Dyer, of Kankakee, of counsel.

      Cower, Gray & Gower, of Kankakee, for certain other appellant.
    Vernon G. Butz, of Kankakee, for certain appellant.
    C. M. Granger, of Kankakee, for appellee.
   Mr. Presiding Justice Dove

delivered the opinion of the court.

Caddie R. Pratt, as holder of two unpaid anticipation warrants, numbered 2 and 3, dated February 2, 1938, for $2,000 and $5,000 respectively, bearing 6 per cent interest, issued against the 1937 tax levy by the board of education of school district No. 61, in township 31 north, range 12 east, in Kankakee county, brought a suit in chancery in the circuit court of Kankakee county for an accounting arid for payment of her warrants, against the board of education, the township treasurer, Bradley State & Savings Bank, and the following named holders of other anticipation warrants issued against the same tax levy: The trustees of schools, and Annie Knittel, Fred C. Hamilton, Ida Beckers, Virginia Coderre, Bridget Flageóle, Charles P. Cryier and Louise Cryier. Later, the school district, the executors of the estate of a deceased former treasurer, and the sureties on his bond, were added as defendants.

The complaint, after reciting the 1937 tax levy, its extension, the adoption of a resolution for the issuance of tax anticipation warrants, the collection of a major portion of the levy, the plaintiff’s purchase of the two warrants mentioned, and a refusal of the treasurer to pay the same, alleges that the other warrants above mentioned, except warrant No. 1, if outstanding, are invalid, or, if valid, are inferior and subordinate to the plaintiff’s warrants; that she had been informed by the treasurer that a part of the 1937 taxes had been used by the board of education to pay operating expenses, and in part had been used to pay alleged warrants held by Bradley State & Savings Bank; and that the balance in his hands was and is insufficient to pay her warrants. The prayer is for an accounting, and payment of her warrants, with contribution by any of the defendants having participated in the diversion of monies applicable to the payment of her warrants, of any amount necessary to pay the same in full, with legal interest from the time of such diversion. Answers were filed, and those of the defendants who held anticipation warrants filed counterclaims, to which replies were filed. The board of education and the school district were dismissed as parties on their motions, and the cause was referred to a special master, who filed a report with his conclusions, to which exceptions were overruled, and a decree was entered in conformity with the special master’s conclusions.

The decree finds, and the record shows, that on June 29,1937, the board of education adopted a resolution levying $21,000 for educational purposes and $7,000 for building purposes, and on November 3,1937, adopted a resolution reciting that there was not sufficient money in the treasury to meet and defray the ordinary and necessary expenses of the district, and authorizing the issuance of anticipation warrants, bearing 6 per cent interest, against the 1937 tax levy, not to exceed 75 per cent thereof; that $20,818.12 of the levy was collected and turned over to the treasurer; that out of that amount the then treasurer and his successor paid Bradley State & Savings Bank $6,234 to retire a renewal anticipation warrant held by it; that $82.50 interest was paid the trustees of schools on the same kind of a warrant held by them; and that $5,862.40 was expended by the hoard of education for corporate purposes, leaving a balance of $8,628.78 in the treasurer’s hands. The decree further finds that all the anticipation warrants, except those of the plaintiff, and an anticipation warrant for $2,000 issued to Ida Beckers on January 28, 1938, (prior to the issue of the plaintiff’s warrants), are invalid; that the amount due the plaintiff on her two warrants was $9,640.21; and orders that the treasurer, as such, pay Ida Beckers the sum of $2,275.61, being the amount of her $2,000 warrant and interest to the date of the decree, and that he apply the balance in his hands to the payment of the plaintiff’s $5,000 warrant; that Bradley State & Savings Bank pay her $3,718.07; and that the trustees of schools pay her $48.97, as her portion of the amounts severally paid them by the treasurer on their respective warrants. The decree reserves jurisdiction to determine the issues against the executors of the estate of the deceased former treasurer and the sureties on his bond, and apportioned the costs among the plaintiff and the other defendants. Notice of appeal was filed by Fred C. Hamilton and Ida Beckers. Notices. of separate appeals were respectively filed by Bradley State & Savings Bank, by Charles P. and Louise Cryier, and by the trustees of schools, but the record does not show service of notice of the one last mentioned on counsel for the other parties. None of the other defendants have appealed, and the decree is therefore final as to them.

The record shows that from July 1, 1931 to July 1, 1938, there was a growing deficit in the financial affairs of the school district, and that the anticipation warrants issued against the 1937 tax levy and in issue in the trial court, aggregated $41,000.

The plaintiff paid the treasurer for her two warrants at the time they were issued. Ida Beckers had two warrants, one of them being the $2,000 warrant ordered by the decree to be paid, for which she paid the treasurer at the time it was issued. Her other warrant, for $5,000 dated November 10, 1937, issued against the 1937 levy, was a renewal warrant issued in exchange for her 1936 warrant of the same amount issued against the 1936 levy, and which, was the product of like successive renewals of a 1934 anticipation warrant for $7,000 on which $2,000 had been paid.

Fred C. Hamilton did not pay any money for his warrant of $7,300, at the time it was issued on November 25, 1937, and it was a renewal warrant replacing a similar warrant issued against the 1936 tax levy. He testified that he had been renewing his warrants since 1932, the first of which was for $5,000; that he had collected some interest, and that the increase in the amount of the warrant was because the board of education got more money of him from time to time.

Charles P. and Louise Cryier held a warrant for $5,600, dated October 20, 1937, issued against the 1937 levy. This was also a renewal warrant. They introduced in evidence three anticipation warrants of the aggregate face of $4,200, issued against the 1936 tax levy which were surrendered to the treasurer when he received the $5,600 warrant. They first purchased a warrant from the treasurer in 1935, and when it came due it was renewed for an increased amount by adding the interest and some cash. In their brief they claim that they also paid a difference in cash when the $5,600 warrant was issued. Issue was joined in the pleadings on this alleged payment of a difference, and the reference in their brief to their additional abstract does not show the payment of any such difference. Our attention is not called to any place in the record or the original abstract which shows any testimony on the question, and we do not search the record to uphold the claim. The special master’s report finds and the decree holds that the $5,600 warrant, having been issued by the treasurer prior to the adoption of the resolution by the board of education for the issuance of any tax anticipation warrants, was void for want of authority to issue it.

The former school treasurer was also township treasurer. The school trustees held an anticipation warrant for $1,650, dated November 5, 1937, issued against the 1937 levy, on which the treasurer paid $82.50 interest. The special master’s report and the decree find that this was a renewal warrant, replacing a 1936 warrant of like amount, and nothing is called to our attention which tends to refute those findings.

During the period from December 12, 1936 to April 1, 1937, Bradley State & Savings Bank purchased school orders issued by the school district, mainly to teachers and janitors, to the amount of $10,051.44, and exchanged them for an anticipation warrant for that amount, dated April 1, 1937, issued against the 1936 tax levy. Payments were made on l;he anticipation warrant, reducing it to $6,000 and on November 30, 1937, it was exchanged for a renewal warrant in the latter amount, issued against the 1937 levy. Subsequently the former treasurer, since deceased, paid $4,000 on the renewal warrant, and his successor paid the balance of $2,234 including the interest.

The pertinent portion of the statute authorizing the issuance of anticipation warrants by school officers, in effect at the time the warrants in this case were issued against the 1937 tax levy, (Ill. Rev. Stat. 1943, ch. 122, par. 125 [Jones Ill. Stats. Ann. 123.132]), provided that when there is no money in the treasury of any school district to defray the necessary expenses of the district, including amounts necessary to pay maturing principal and interest on bonds, warrants may be issued, or a fund provided to meet such expenses by issuing and disposing of warrants drawn against and in anticipation of any taxes levied for the payment of the necessary expenses of the district, either for educational or building purposes, or for the payment of maturing principal and interest of bonds, as the case may be, to the extent of 75 per cent of the total amount of the tax so levied, and that “Such warrants shall show upon their face that they are payable in the numerical order of their issuance solely from such taxes when collected . . . and such taxes shall be set apart and held for their payment.”

It is so well settled as to admit of no argument to the contrary, that when an anticipation warrant is issued, it is a closed transaction. An anticipation warrant is simply an assignment of tax money which directs the treasurer to pay the holder. No debt is created thereby, and after delivery, there is no obligation upon it, either absolute or contingent, to pay out of anything except the levy anticipated, when collected. They are not liabilities of the municipality or school district by which they are issued, and are not, and cannot be, corporate obligations under section 12 of article IX of the constitution. Changing them into bonds or other forms does not make them corporate liabilities or change the character of the liability, and acts purporting to authorize the issue of such bonds have been held unconstitutional. Even a judgment entered on tax anticipation warrants cannot be paid with the corporate funds. If a supposed liability has inception in a tax anticipation warrant, such liability is still based upon such warrant, in whatever form the claim may thereafter assume, and the invalidity of the original claim cannot be avoided by simply changing the form in which it is presented in an effort to conceal its identity. (Newberry Library v. Board of Education, 390 Ill. 48, 52, 53; Lubezny v. Ball, 389 Ill. 263, 268; Leviton v. Board of Education, 374 Ill. 594; Dimond v. Commissioner of Highways of Ottawa, 366 Ill. 503; Berman v. Board of Education, 360 Ill. 535.) These holdings are in harmony with the provision of the statute that anticipation warrants are “payable solely from such taxes when collected,” from which it follows that an anticipation warrant issued against the taxes of a particular year, can be paid only from the taxes levied for that year, and does not lose its identity by being exchanged for something else, whether it be a bond, a judgment, or a warrant of á subsequent year. The power to issue and pay anticipation warrants is purely statutory, and is expressly confined to payment thereof from the taxes collected from the particular levy against which they are issued, and renewal warrants payable out of taxes of a subsequent year in exchange for warrants of a prior year are issued without statutory authority and are void. (In re Estate of Stevenson, 318 Ill. App. 178,182. Leave to appeal denied, 321 Ill. App. XIV.) Under these holdings, the trial court correctly held that the $5,000 warrant held by Ida Beckers, the $7,300 warrant held by Fred C. Hamilton, and the $5,600 warrant held by Charles P. and Louise Cryier, were void. The $1,650 warrant held by the trustees of schools, and the $6,000 warrant of Bradley State and Savings Bank, on which payments were made were likewise void for the same reason. We are further of the opinion that the $5,600 warrant held by Charles P. and Louise Cryier was also void for the reason stated in the special master’s report and the decree. The resolution for the issuance of anticipation warrants, which is the authority for their issuance, was not adopted until November 3, 1937. The Cryiers have not shown that the board of education took any action prior to that time authorizing the issuance of their $5,600 warrant on, October 20. The fact that the board of education had left signed blank warrants in the possession of the treasurer, would not make the $5,600 warrant valid. Powers conferred upon a board of education can be exercised only at regular or special meetings of the board. (Ill. Rev. Stat. 1943, ch. 122, par. 119 [Jones Ill. Stats. Ann. 123.126]; People v. Smith, 149 Ill. 549, 551.)

As to the $5,000 warrant of Ida Beckers, her husband testified that the former treasurer told him when the exchanges for renewal warrants were made, that the old warrant could be paid if they wanted the money and always called them up to see whether they did or did not want it. It is argued that the effect of taking the renewal warrant was the same in equity as if the old warrant had been paid and a new warrant purchased, and she invokes the presumption that official acts are legally performed. There is no testimony to indicate the amount of money collected on the levies for the years prior to 1937, or to show how many warrants were issued in any of the prior years, or their amount, or their priority, if any, and no showing that there was sufficient money in the treasury of the school district in any prior year to pay the $5,000 warrant in its proper order, or to pay any other anticipation warrant. So far as the statement of the treasurer is concerned, he may have intended to retire the matured $5,000 warrant by selling a warrant of the current year to someone else and paying the matured warrant out of the proceeds. Mr. Beckers did’ not testify that the treasurer suggested the course pursued, or that Mrs. Beckers purchase a new warrant, but only stated that the matured warrant could be paid. Taking a renewal warrant amounted to a rejection of the treasurer’s offer, and a voluntary election to take a renewal warrant instead. Both parties are presumed to have known the applicable law, and in this case the presumption that official acts are legally performed, vanishes.

Appellants all claim that the court erred in dismissing the suit as to the board of education and the school district, Fred C. Hamilton and Ida Beckers say that the board received full and adequate benefits from the $5,862.84 expended by them for. corporate purposes out of funds which belonged to the holders of the 1937 warrants, and they argue that to hold that the board could use money set apart for the specific purpose of paying -these warrants without becoming liable therefor, would do violence to every equitable principle and the doctrine of trusts. The answer to this claim is that the warrants upon which they invoke it, are void and they could not participate in the fund even if restored. They have no standing to complain of anything which does not affect them.

The claim of Charles P. and Louise Cryier, that even if their 1937 warrant is invalid, the hoard of education should account for moneys received from them in 1935 and 1936 and used for corporate purposes, is equally untenable. Their counterclaim is based only upon the theory that the board of education should account for the proceeds of the 1937 levy, and the prayer is only to that end.

The Bradley State & Savings Bank’s claim that it is in a different position than the other defendants because it was a creditor of the school district and not merely the holder of an anticipation warrant, and that its debt, being the total amount of the orders of the district, originally purchased by it, was paid by the district before the litigation commenced, is without merit. The record shows that the bank surrendered the original orders when it received the $10,051.44 warrant, and the payments to the bank were made, not on the original orders surrendered, but on that anticipation warrant and the renewal warrant of $6,000. Although the cashier testified that the teachers’ orders were not cancelled when he received the original anticipation warrant, and were kept for the purpose of substantiating the anticipation warrant, it is obvious that the fact that the treasurer did not manually cancel them could not have the effect of keeping them alive for the benefit of the bank after they were surrendered to him in exchange for an anticipation warrant. The cashier’s testimony that the treasurer called and asked if the bank would accept the anticipation warrant in return for those orders, and that they accepted the warrant, but that there was no understanding at that time that if the bank purchased those orders that it would be paid by an anticipation warrant, does not support the contention that.the anticipation warrant was merely additional security, and cases cited holding that the acceptance of additional security does not operate as a satisfaction of the original obligation, have no application here. None of the appellants are in a position to claim that the court erred in dismissing the suit as to the board of education and the school district.

The remaining question is whether the court erred in ordering the bank to pay appellant $3,817.07 out of the payments made by the treasurer on the 1937 warrant of the bank. The decree and the claim of appellee is based on the doctrine of a constructive trust. The statute expressly provides that anticipation warrants are payable “solely from such taxes when collected . . . and such taxes shall be set

apart and held for their' payment. ” This is an explicit segregation of that portion of the taxes for that particular purpose in the hands of the school treasurer for the benefit of the holders of valid anticipation warrants issued against it. A trust is defined as an obligation arising out of a confidence reposed in a person, for the benefit of another, to apply property faithfully and according to such confidence. (Gurnett v. Mutual Life Ins. Co. of New York, 356 Ill. 612, 617.) A trust is also said to be in the nature of a deposition by which a proprietor transfers to another the property of the subject intrusted, not that it should remain with him, but that it should be applied to certain uses for the behoof of a third party. (Marble v. Estate of Marble, 304 Ill. 229, 240.) Under these definitions it cannot he seriously contended that the statute does not create a trust and constitute the school treasurer a trustee for the purpose mentioned therein. The language of the statute is notice of the trust, to everybody. Furthermore, the successor treasurer, who paid the $2,234 on the bank’s warrant, was also a stockholder, officer and director of the bank. Knowledge of an officer and director of a corporation is actual notice to the corporation itself. (Indiana, I. & I. R. Co. v. Swannell, 157 Ill. 616, 629.) While the trust is not analogous to the trust for the payment of municipal special assessment bonds, where the special assessment fund is held in trust for the payment of all the bonds pro rata, and anticipation warrants have priority in the order of their issue, (Lubezny v. Ball, supra), the school treasurer is a trustee for their payment in that order, and the statute manifestly does not apply to an invalid warrant, although it antedates a valid warrant, and any unauthorized payment from the fund segregated in trust for the payment of valid warrants is a breach of the statute-and of the trust, with notice of which everybody is charged.

While it is true as a general principle of law, as contended by the bank, that a person cannot recover money paid out by him under a mistake of law, that doctrine has no application here. The plaintiff is not suing to recover money paid out by her to the bank, and the decree is not that the bank pay the money back to the person from which it received payment. In Trustees of Schools of Tp. No. 20, Whiteside County v. Central Nat. Bank of Sterling, 312 Ill. App. 659, relied upon by appellant bank, where the suit was brought to recover money paid by the school treasurer to retire tax anticipation warrants, on a charge that the warrants were invalid because issued by the school trustees instead of by the school directors of the several school districts, and credit was extended the treasurer and the money used by him in paying legitimate withdrawals by the school district, we affirmed a judgment for the defendant on the ground that the principle of subrogation applied, and that even if the warrants were invalid, it would be unconscionable and create unjust enrichment to allow recovery. If the judgment in this case against the bank should be reversed, the bank would be unjustly enriched at the plaintiff’s expense. That case does not tend to uphold the bank’s contention. Nor can the doctrine invoked by the bank be applied in a suit by a cestui que trust to recover money wrongfully diverted by the trustee. Trusts are enforced, not only against those persons who are rightfully possessed of the property, but also against all persons who come into possession of the trust property with actual or presumptive notice of the trust. (School Trustees v. Kirwin, 25 Ill. 73; Breit v. Yeaton, 101 Ill. 242, 268; Wells v. Messenger, 249 Ill. 72, 77.) When the former treasurer, and his successor, paid the bank the $6,000 on the invalid warrant, the bank had actual or constructive notice of the trust, and held the fund acquired subject to the same trust which before existed, and itself became trustee for the original beneficiaries. (Evans v. Moore, 247 Ill. 60, 71; Indiana, I. & I. R. Co. v. Swannell, supra.)

The bank’s claim that it is liable only for the amount necessary to pay the valid warrants with interest to September 2, 1938, the date of the last payment to the bank, is without merit. The holding in VanBukirk v. VanBuskirk, 148 Ill. 9, 26, relied upon by the bank, that where a trustee has acted in good faith, a court of equity will not charge him with proceeds or profits which he might have received, has no application here. No profits on the amount received are embraced in the decree or sought by appellee. The money ordered by the decree to be paid to appellee by the bank, was set apart by law for her, and, under the statute, belonged to her as cestui que trust at the time the bank received it, impressed with the original trust. (Evans v. Moore, supra.) The court correctly ordered the bank to pay appellee the sum of $3,718.07. The same is true of the amount ordered to be paid to her by the trustees of schools. It follows that there was no error in assessing part of the costs against the bank.

We find no error in the decree, and it is affirmed.

Decree affirmed.


text:
    W. F. Holmes, Appellant, v. Wauneta Fanyo, Appellee.
    Gen. No. 10,031.
    Heard in this court at the May term, 1945.
    Opinion filed October 22, 1945.
    Released for publication November 12, 1945.

      Clyde E. Mitchell, of La Salle, for appellant.
    Saum & Nelson and A. Fred Kendall, all of Watseka, for appellee.
   Mr. Presiding Justice Dove

delivered the opinion of the court.

The question in this case is whether, when an execution is stayed on the motion of an intervening third party having an interest in the judgment, and the stay remains in effect until the 7th anniversary of the date when the judgment was entered, an alias execution can be issued on the judgment when the stay order is vacated, and a levy made on real estate of the judgment debtor. The question is presented by an appeal from an order of the circuit court of Iroquois county quashing a levy under such an alias execution, recalling the execution, and discharging the real estate levied on from the lien of the judgment.

The facts are as follows: On September 13, 1937, appellant procured a judgment by confession againstappellee in the sum of $1,144.42 and costs of suit, on a promissory note executed by her, and on the same day an execution was issued and delivered to the sheriff, by whom it was personally served on appellee on September 20, 1937.

The record shows the following order of the court: “On this 2nd day of October A. D. 1937, on motion of Iroquois Farmers State Bank they are given leave to intervene in this cause and to file answer and cross-complaint, and it is ordered that the execution be stayed until the further order of this Court.”

On October 9, 1937, the bank filed its intervening petition claiming an interest in the judgment, and asking that the same be amended to protect its interest, and on December 13, 1937, the original execution was returned by the sheriff “no part satisfied.” No further action was taken in the matter until September 9, 1944, when, on appellant’s motion to strike the intervening petition, and for issuance of an alias execution, the hearing on the motion was set for September 13, 1944, and on the latter date, pursuant to a stipulation between appellant and the bank setting out their respective interests in the judgment, the intervening petition was dismissed, the stay order was vacated and an alias execution was ordered to be issued, and was issued and delivered to the sheriff, who personally served the same on appellee on October 3, 1944, and on November 24, 1944, made a levy on certain real estate belonging to her. On December 9, 1944, appellee filed her motion to quash the levy and to stay further proceedings thereon, resulting in the order from which this appeal is prosecuted.

The pertinent portions of the Act relating to Judgments, Decrees and Executions, (Ill. Rev. Stat. 1943, ch. 77 [Jones Ill. Stats. Ann. 107.151 et seq.]), provide:

Section 1. “As to real estate ... a judgment of a court of record shall be a lien on the real estate of the person against whom it is obtained, situated within-the county for which the court is held, from the time the same is rendered or revived, for the period of seven years, and no longer. ’ ’

Section 2. “When the party in whose favor a judgment is rendered is restrained, by injunction out of chancery, or by appeal, or by the order of a judge or court, or is delayed, on account of the death of the defendant, either from issuing execution or selling thereon, the time he is so restrained or delayed shall not be considered as any part of the time mentioned in sections 1 or 6 of this act. ’ ’

Section 6. “No execution shall be issued upon any judgment after the expiration of seven years from the time the same becomes a lien, except upon the revival of the same by scire facias; but real estate, levied upon within said seven years may be sold upon a venditio rei' (Venditioni) exponas, at any time within one year after the expiration of said-seven years.”

Appellant relies upon section 2 of the above statute, and also claims that the alias execution was issued within the statutory seven-year period. Appellee urges: (1) That the execution was issued after the seven-year period expired: (2) that the levy was made after the judgment had ceased to be a lien; (3) that the order staying the execution was void because issued without notice to her or her attorneys, and because the motion for stay was not made by a party to the case, but was made by a stranger. In support of the third ground she invokes section 70 of the Civil Practice Act. (Ill. Rev. Stat. 1943, ch. 110, par. 194 [Jones Ill. Stats. Ann. 104.070]) which provides:

“A party intending to move, to set aside or quash any execution, bond or other proceeding, may apply to the court or to the judge at his chamber for a certificate (and which the said judge may, in his discretion, grant) certifying that there is probable cause for staying further proceedings until the order of the court on the motion, and a service of a copy of the certificate-at the time of, or after the service of the notice of the motion, shall thenceforth stay all further proceedings accordingly. But in no case shall the judge grant such certificate, . . . unless the applicant shall have given notice of such motion to the opposite party, or his attorney of record, if they or either of them can be found in the county from which the writ issues.”

While appellee claims that the bank’s motion was only for leave to intervene, and did not ask for a stay of the execution, she states in her brief that the motion for a stay was apparently oral as no such written motion appears in the record. She thus tacitly admits that the bank did ask for a stay order, furthermore her claim is refuted by the order of October 2, 1937, which indicates that the portion thereof staying the execution was entered on motion of the bank.

Her contention that the bank was not a party to the case, is likewise without merit. It was a party of record as intervening petitioner, by leave of court, claiming part ownership of the judgment, which ownership was admitted by the stipulation between it and appellant. The bank therefore was not a stranger to the record, as urged by appellee. Section 70 of the Practice Act by the words “or other proceeding,” clearly includes the judgment, and if the applicant is part owner of the judgment, and is a party to the record as intervening petitioner, as is the case here, he is a party within the meaning of said section 70. The order of October 2, 1937, indicates that the bank was made a party as intervenor before the stay order was granted, and there is nothing in the order which tends to show that the motion for a stay order was made before the court allowed the motion to intervene. The presumption is, in the absence of a showing to the contrary, that the court did its duty, that the proceedings were regular, and that the legal requirements were complied with. (Jeffries v. Alexander, 266 Ill. 49, 53; Welch v. Sykes, 3 Gilm. 197, 200; People v. Gazelle, 299 Ill. 58, 66; People v. Bain, 358 Ill. 177,186.) Cases relied upon by appellee such as Burnham v. Roth, 244 Ill. 344, 352, and Bonnell v. Neely, 43 Ill. 288, 290, holding that a stranger to the record cannot try his title or his rights by means of the summary remedy by motion, provided for by sections of the statute, which was replaced by section 70 of the Civil Practice Act, are not applicable here. The bank’s part ownership of the judgment was not sought to be tried on a motion, either by it as a stranger or otherwise, but upon its intervening petition in the cause to which it was a party.

The section of the Civil Practice Act relied upon by appellee relates only to motions to set aside or quash the execution, with an incidental stay pending the hearing on the motion, whereas, the motion in this case was not to set aside or quash the execution, but was only for a stay thereof. We further observe that there is no showing in the record that the stay order was granted without notice to appellee, or her attorneys, as claimed by her, and which notice she also claims was necessary under section 70 of the Civil Practice Act. Under the presumption of regularity, above mentioned, appellee is not in any position to claim that neither she nor her attorneys were not notified of the bank’s motion. Furthermore, the granting of the motion could not adversely affect her rights in any manner. Her liability was for the amount of the judgment and costs. Whether the bank participated in the distribution of that amount would not increase or affect her liability. The only party that could be affected was appellant. The statute mentions only one “opposite party” to whom notice is required to be given, and we are of the opinion that even if section 70 of the Civil Practice Act is applicable, that appellant only is “the opposite party” to whom the statute refers. Whether he was notified, (and under the rule it is presumed that he was), could be of no concern to appellee. Appellant is not complaining of a want of notice to him, and appellee is not entitled to complain of anything which does not affect her rights. . Dazey v. Orr, 1 Scam. 535, and Elia v. Bavuso, 209 Ill. App. 113, relied upon by appellee, holding that it is necessary for a judgment debtor to give notice to the judgment creditor of a motion to quash an execution, are not in point. In the case at bar the court had jurisdiction of the subject matter and it must be presumed that it had jurisdiction of the necessary parties. The record does not show that the order granting the bank’s motion for a stay was even erroneous, and hence appellee’s contention that it was void is without merit. On the contrary, under the record presented, we must presume that the statute was complied with, and that the order staying the execution was legally in effect until it was vacated on September 13,1944.

This leaves for consideration the effect of sections 1, 2 and 6 of the statute relating to Judgments, Decrees and Executions. It is a familiar and elementary rule of statutory construction that in construing a statute all of its provisions must be construed together, and effect given to every part of it, if possible. (Haberer & Co. v. Smerling, 307 Ill. 191, 196; Consumers Co. v. Industrial Commission, 364 Ill. 145, 149), and the court must take the words found in the statute in their ordinary and usual meaning. (Illinois Cent. R. Co. v. Village of South Pekin, 374 Ill. 431, 434.) Section 1 and section 6 of the statute in controversy were so construed together in Dobbins v. First National Bank, 112 Ill. 551, 560, and under the rule section 2 must be construed with sections 1 and 6. Under these three sections it cannot be doubted that the legislature intended that ordinarily the lien of a judgment continues from the time it is rendered for seven years and no longer, (Rawlins v. Launer, 369 Ill. 494, 496), but if the judgment creditor be restrained during that period from collecting his judgment, then the lien continues after the seven-year period for a period equal to the period of restraint, and section 2 has the same effect as if it were embodied in éach of sections 1 and 6 as an exception to their o;ther provisions. Giving effect, as we must, to the plain, unambiguous provision of section 2 that where the judgment creditor is restrained by an order of court, the time he was so restrained shall not be considered as any part of the time mentioned in sections 1 or 6, the conclusion is inescapable that the lien of the judgment was still in effect when the alias execution was issued and when the levy under it was made. (Wenham v. International Packing Co., 213 Ill. 397, 402-403; Hier v. Kaufman, 134 Ill. 215, 226-227; Kline v. Marty, 171 Ill. App. 495.) The original execution having been returned the alias execution was properly issued. The.order of the circuit court quashing the levy, recalling the alias execution, and discharging the property levied on from the lien of the judgment was therefore wrong. This conelusion makes it unnecessary to consider the other questions argued.

The order of the circuit court is reversed and the cause is remanded with directions to vacate the order and to deny appellee’s motion.

Reversed and remanded with directions.