author: Mr. Justice Scanlan

text:
    John P. Carey, Administrator of Estate of Frank Gabl, Deceased et al., Appellants, v. Anna Funk et al., Appellees.
    Gen. No. 42,875.

      Heard in the second division of this court for the first district at the October term, 1943.
    Opinion filed December 18, 1945.
    Released for publication January 2, 1946.
    John P. Carey, of Chicago, for appellants.
    Theodore A. Kolb and George T. Spensley, both of Chicago, for appellees.
   Mr. Justice Scanlan

delivered the opinion of the court.

Plaintiffs, Hattie Gabl and Charles J. Bussell, appeal from a decretal order entered by Judge Miner on June 15,1943, striking the third amended complaint from the files “on the ground that the matters and things therein set forth, and the issues tendered thereby, aré res judicata, as to both plaintiffs,” and ordering that the cause be dismissed and judgment entered in favor of defendants and against plaintiffs for costs. In the original complaint John P. Carey, Administrator of the Estate of Prank Gabl, Deceased, and Hattie Gabl were, the sole plaintiffs, and Anna Funk, Charles. J. Bussell, Elizabeth Hanck and Matthias Hanck were the defendants. Carey appeared as the attorney for the plaintiffs. The record is silent as to who were the plaintiffs in the amended complaint. In the second amended complaint Carey, as Administrator, Hattie Gabl and Charles J. Bussell were made parties plaintiff and Bussell was dropped as a defendant. Carey appeared as the attorney for all of the plaintiffs. In the third amended complaint, the one now before us, Carey, as Administrator, ceases to be a plaintiff, and Hattie Gabl and Charles J. Bussell are the .sole plaintiffs. Carey appears as their attorney.

On February 11, 1935, the estate of Karoline Gabl owned four notes, executed by Matthias W. Hanck and his wife, Elizabeth Hanck, two of the defendants in the instant case. Two of the notes, one for $2,000 and the other for $1,700, were secured by real estate mortgages, and they constituted the res of the present litigation and a prior one, hereafter referred to. The other two notes were not involved in the prior case nor in the instant proceeding. Two sons of Karoline Gabl were the sole executors of her will. One of them, Frank Gabl, since deceased, and his second wife, Hattie Gabl, became the central figures in a flood of litigation over the ownership of the two notes. In Gabl v. Gabl et al., Intervening Petitioners — Funk v. Gabl, 305 Ill. App. 620, we had before us an appeal from a decree entered in that proceeding in which the ownership of the two notes was Involved. Our opinion upon that appeal was abstracted in the report, and as the chancellor’s decision in the instant cause was based upon our judgment in the former case, we deem it necessary to quote verbatims, part of our opinion:

“The only question originally involved in this proceeding was whether Frank Gabl or his wife, Hattie Gabl, was the owner of two first mortgage notes for $1,700 and $2,000, respectively, and two separate trust deeds securing same, said securities having been received by Frank Gabl as part of his share of his mother’s estate. Hattie Gabl had not been living with her husband at the time he received these securities or for some time prior. thereto. After same were delivered to him she returned to live with him as his wife, but left him again some time thereafter. The then attorney for both Frank and Hattie Gabl [Charles J. Russell], who is the attorney for appellant, Hattie Gabl, on this appeal, instituted separate actions in her name on May 31,1935, to foreclose the aforesaid trust deeds. In each of the foreclosure suits Frank Gabl filed an intervening petition, which alleged inter alia that the note and trust deed involved therein belonged to him and were wrongfully withheld .from him by his wife. Hattie Gabl filed sworn answers to the intervening petitions, in which she alleged substantially that she acquired the securities involved as the result of a contract entered into between herself and her husband. Both cases were referred to a master on the issues formed by the intervening petitions and the answers thereto. On March 27, 1937, by leave of court, Hattie Gabl filed a verified amendment to her answer theretofore filed in each of the foreclosure proceedings, in which amendment without deleting or withdrawing any of the allegations of her original answer she averred that the notes and trust deeds were delivered to her as a gift by her husband. Thus her sworn answers as amended presented two inconsistent (not alternative) versions of the manner in which she acquired title to the notes and trust deeds from her husband. Thereafter Frank Gabl by a written assignment sold, transferred and assigned to his sister, Anna Funic, ‘his title, right and interest’ in all of his personal property, including and specifying the aforesaid notes and trust deeds and two additional notes. G-abl died July 4, 1937, and, his death having been suggested, Anna Funk under her assignment was substituted as intervening petitioner in his place and stead. After a full hearing the master filed his report finding that the assignment of Anna Funk was valid and further finding the- issues in favor of the intervening petitioner. A decree was entered in accordance with the findings and recommendations of the master. Hattie Gabl appeals from this decree, assigning as error that said decree is contrary to the law and the evidence.” The opinion then takes up the motion of Anna Funk, an appellee, “ ‘to affirm the decree of the court below’ because of the failure of appellant to furnish an abstract of the record ‘ sufficient to show the errors relied upon by said appellant, as required by the rules in that behalf, ’ ’ ’ which motion we had reserved until the hearing. After a consideration of the abstract filed by the appellant, we decided that the motion to affirm the decree had to be allowed, and the decree was affirmed. In our opinion we stated that “We have, however, notwithstanding that appellant’s original and reply briefs are well nigh unintelligible, patiently and carefully read them with as much understanding as they would afford and are of opinion that there is no substantial error in the decree.” The plaintiffs in' the instant proceeding contend that we' should treat that statement as mere dictum; that we should hold that our judgment was based upon a technical ruling and that we did not pass upon the merits of the case, and, therefore, our judgment cannot be made the basis for the defense of res judicata that is interposed by defendants. There is, of course, no merit in this contention. When the Supreme court denied an appeal in that case (306 Ill. App. xxiii) the judgment of the Circuit court of Cook county became final. We may add that the foregoing italicized part of our opinion was our considered judgment in the case. After an examination of the instant record and the abstract filed by appellants, we are satisfied that we would be justified in affirming the decretal order because of the failure of plaintiffs to comply with rule 6 of the Rules of Practice of this court. Moreover, what we stated in our opinion in the former case as to the nature of the appellants’ original and reply briefs applies with equal force to appellants’ original and reply briefs filed in the instant appeal.

After the Supreme court denied leave to appeal in the former proceeding a mandate issued from this court and was filed in the Circuit court on February 10, 1941, and on the same date the Circuit court entered an order ordering Hattie Gabl to execute an assignment of the judgment she had taken in the Municipal Court of Chicago on February 21, 1935, on the $1,700 judgment note, and on her failure to do so the master should execute such assignment. On February 19,1941, Charles J. Russell, in his own name, filed a petition in the Circuit court moving that the order of February 10 be modified or vacated. That petition was denied, and on February 24, 1941, Hattie Gabl appeared in this court and asked us to expunge the order entered by the Circuit court on February 10,1941. We refused, of course, to enter such an order. Our opinion in the former case was filed May 28,1940, and we denied a rehearing on June 12,1940. On January 19,1942, Hattie Gabl presented to the Probate court of Cook county a petition alleging that her husband, Frank Gabl, died intestate on July 4, 1937, and praying that letters of administration issue to John P, Carey, who appeared as her attorney. No notice that the petition would be presented was served upon Lorraine' Gabl, the only child of Frank Gabl, nor upon any person. On the same date letters of administration issued to Carey; appraisers were appointed,' who set off a widow’s award of $1,000; the appraisement was approved by the court on February 5, 1942, and on the same date Carey filed his inventory, which was approved. This inventory lists only a chose in action described as follows: “Right of action in the matter of a creditor’s bill to recover from Anna Funk, assignee, and from her assignee or assignees, if any, the amount of the widow’s award and any claims of any other creditors of the estate of Frank Gabl, deceased; the said Anna Funk being the assignee of certain notes owned by the said Frank Gabl and assigned to Anna Funk on June 26, 1937.” On February 9, 1942, Charles J. Russell, the attorney for Hattie Gabl in the former proceeding and her attorney in fact in the instant case, filed a claim for $415 for legal services alleged to have been rendered to Frank Gabl. On February 14, 1942, the present proceedings were started.

Plaintiffs have abstracted only eighteen of the sixty-eight paragraphs of their third amended complaint. It would serve no useful purpose to state all of the allegations of that lengthy pleading. It alleges the death of Frank Gabl on July 4, 1937; the appointment of Carey as administrator on January 19, 1942; that the intestate left him surviving his widow, Hattie Gabl, and his daughter, Lorraine; the appointment of appraisers; the setting off of the widow’s award and its approval by the court; the approval of the inventory, and that Hattie Gabl, as the widow, is entitled to an award. It also - alleges that the claim of Russell for fees was allowed in the Probate court on May 27, 1942 (one hundred and two days after the instant suit was commenced). It alleges the execution of the two mortgages by the Hancks, and that Frank Gabl was the owner of the notes on June 26,1937; it sets up a judgment by confession in the Municipal court of Chicago on the $1,700 mortgage note on February 21,1935, and alleges that on February 17, 1941, the master in chancery of the Circuit court assigned that judgment to Arma Funk pursuant to the decree of the Circuit court in the former case. Plaintiffs rely largely upon the allegations made in sections 16 to 21 of the said complaint. Briefly stated, these sections allege that on June 26, 1937, Frank Grab! assigned the two notes to Anna Funk; that this assignment was fraudulent and was made to hinder and defraud Hattie Gabl in and about the collection of her widow’s award; that the assignment was also made to defraud Charles J. Bus-sell in and about the collection of his claim for attorney’s fees against Frank Gabl. Plaintiffs prayed that the assignment of the notes to Anna Funk be declared fraudulent and void as against Hattie Gabl and Bussell and that it be cancelled and set aside and the mortgages impressed with the claims of plaintiffs Hattie Gabl and Charles J. Bussell; that Anna Funk be compelled to assign the mortgages to plaintiffs or the administrator, to be applied in satisfaction of the claims of plaintiffs. In a lengthy motion to strike the third amended complaint, defendants set out with particularity the pleadings, evidence, the master’s report, the trial judge’s opinion, and our* opinion in the former proceeding; also the Probate court proceedings. As grounds for the motion defendants allege that the third amended complaint was insufficient in law and, further, that the former litigation was res judicata, both by judgment and by verdict, as to all issues tendered by the third amended complaint. As to plaintiff Bussell it was urged that the complaint be dismissed as to him because of laches. The motion of defendants was verified, and plaintiffs neither replied to the same nor did they file any counter-affidavit; nor did they offer any evidence to contradict the allegations of fact in defendants’ motion. A separate motion filed by Matthias and Elizabeth Hanck, defendants, asked that they be dismissed from the cause on the ground that they were neither necessary nor proper parties because they were not concerned in the matters set up in the said complaint. As heretofore stated, Judge Miner decided the motion “on the ground that the matters and things therein set forth, and the issues tendered thereby, are res judicata, as to both plaintiffs.”

The errors relied upon for reversal are:

(1) ‘"‘It was error for the court below to sustain'the motions of the defendants to strike the name of John P. Carey, Administrator of the Estate of Frank Gabl, Deceased, from the complaint as a party plaintiff, because the ruling of the court below is contrary to law. ’ ’

(2) “It was error for the court below to sustain the motion of the defendants to strike the second amended complaint on the grounds that Charles J. Russell, was made a party defendant, being contrary to law, because, the Circuit Court jurisdiction to vacate a judgment entered in the Probate Court.”

(3) “It was error for the court below to enter an order that the third amended complaint be stricken on motion of the defendants on the grounds that the matters and things therein set forth, and the issues tendered thereby are res adjudicaba, because, the defense of res judicata must be set up by plea or answer. ’ ’

(4) “It was error for the court below to dismiss the third amended complaint on motion of defendants that the matters therein alleged are res judicata, because, two of the elements required to make the matter therein set forth and the issues tendered res judicata are missing. ’ ’

While plaintiffs have seen fit to argue alleged errors (1) and (2), it will be noticed that (1) pertains to the original complaint, and (2) to the second amended complaint. As plaintiffs appealed only from the decretal order striking the third amended complaint they have no right to question any ruling of the chancellor as to the complaint and the second amended complaint. However, if plaintiffs had the right to urge assignments (1) and (2) we would hold that there is no merit in them. As to assignment (1), plaintiffs have not included in the record the motion to strike the complaint, and the order striking it is silent as to the ground or grounds upon which it is based. The order does show that plaintiffs asked and obtained leave to amend the complaint and the record shows that they thereafter filed an amended complaint. The second error assigned is unintelligible, but we will assume that counsel intended to state that the Circuit court lacked jurisdiction to vacate the order entered in the Probate court allowing Russell’s claim for legal services rendered to Frank Grabl. It is difficult to take this second assignment of error seriously. The motion to strike the second amended complaint was based on numerous grounds, only a few of which were abstracted. The record does not show that that motion was passed upon by the trial court, but it does show that on April 9, 1943, on motion of plaintiffs’ attorney, the following order was entered: “It is ordered that leave be and is hereby given to dismiss Charles J. Russell as party defendant, and leave be and is hereby given to make Charles J. Russell a party plaintiff. ...” As to the third error assigned, that the defense of res judicata must be set up by plea or answer, the Practice Act (Ill. Rev. Stat. 1941, ch. 110, par. 172, sec. 48 [Jones Ill. Stats. Ann. 104.048]) provides: “Defendant may . . . file a motion to dismiss the action or suit, where any of the following defects appear on the face . of the complaint, and he may . . . file a similar motion • supported by affidavits where any of the said following defects exist but do not appear upon the face of the complaint: . . . (e) That the cause of action is barred by a prior judgment.” Subsection (3) of par. 172 provides that if upon the hearing of such motion the opposite party shall present affidavits or other proof denying the facts alleged or establishing facts obviating the objection the court may hear and determine the same and may grant or deny the motion, but if disputed questions of fact are involved the court may deny the motion without prejudice. In the instant case, after defendants had filed their verified motion to strike, plaintiffs filed no counter-affidavit, and offered no proof to contradict the allegations of facts in defendants ’ motion to strike, and, therefore, the facts alleged in defendants’ motion stand uncontradicted. There is no merit in the third assignment of' error. As to the fourth assignment of error: The present proceeding presents a clear case where the doctrine of res judicata applies.

“Res judicata has a fixed meaning in law. It embraces not only what was determined in the earlier proceeding but covers any and all matters which might have been presented and an adjudication thereon determined in such proceeding. (Rogers v. Higgins, 57 Ill. 244; Bennitt v. Star Mining Co., 119 id. 9; Lusk v. City of Chicago, 211 id. 183; Marie Church v. Trinity Church, 253 id. 21; Bailey v. Bailey, 115 id. 551; Godschalck v. Weber, 247 id. 269.) When there has been a final judgment or decree neither party thereto should again be permitted to relitigate by undertaking to change his position in the case and to force his adversary again to defend against the same matters and matters collateral thereto as were properly involved or might have been brought forth in the prior litigation, nor should the time of the court be taken in considering and deciding issues between the same parties involving the same subject matter where there' has already been one final decision, which is still in full force and effect. Property rights and civil liberty cannot be properly safeguarded if parties are to be permitted, after final judgment and decree, to again litigate the same matters. Final decrees and judgments must be permanent in their character in order to give to the citizen a sense of security.” (Webb v. Gilbert, 357 Ill. 340, 351, 352.)

“The doctrine of res judicata is, that a cause of action finally determined between the parties on the merits, by a court of competent jurisdiction, cannot again be litigated by new proceedings before the same or any other tribunal, except as the judgment or decree may be brought before a court of appellate jurisdiction for review in the manner provided by law. A judgment or decree so rendered is a complete bar to any subsequent action on the same claim or cause of action, between the same parties or those in privity with them. The doctrine extends not only to the questions actually decided hut to all grounds of recovery or defense which might have been presented. (Wright v. Griffey, 147 Ill. 496; Markley v. People, 171 id. 260; Terre Haute and Indianapolis Railroad Co. v. Peoria and Pekin Union Railway Co., 182 id. 501; Harvey v. Aurora and Geneva Railway Co., 186 id. 283; Godschalck v. Weber, 247 id. 269; People v. Harrison, 253 id. 625.) Where the former adjudication is relied on as an absolute bar to a subsequent action, it must be shown that the cause of action, the thing to he recovered and the parties are the same in both proceedings. The principle of res judicata applies, however, to cases where, although the cause of action is not the same, some fact or question has been determined and adjudicated in a former suit and the same fact or question is again put in issue in a subsequent suit between the same parties. In such cases the determination in the former suit of the fact or question, if properly presented and relied on, will be held conclusive on the parties in the later suit, regardless of the identity of the cause of action, or the lack of it, in the two suits.” (Harding Co. v. Harding, 352 Ill. 417, 426, 427.)

The res in the former case and the present case is the same, viz., the two mortgage notes in question, and the essential relief sought in both proceedings was to have the assignment of Frank Gabl to Anna Funk set aside. In the former proceeding, in her effort to have the assignment set aside, Hattie Gabl, in her original sworn answer to the intervening petition filed by Frank Gabl, stated that she acquired the securities in question as the result of a contract entered into between herself and her husband. Later she filed a verified amendment to her answer in which she averred that the notes and trust deeds were delivered to her as a gift by her husband. She also alleged that the assignment was procured by fraud and undue influence ; that Frank Gabl was insane at tffe time in question; that he lacked legal capacity to make the assignment ; that he was ignorant of the contents of the document when he signed it. She also alleged that there was no estate of Frank Gabl involved in the proceedings; that prior to his death he had been an inmate of the Hines hospital and she had information that she could verify that he had been placed in a strait jacket and had been kept in the psychopathic ward at the Hines hospital for observation for fifteen days. In the instant suit it is alleged that the assignment to Anna Funk was made for the purpose of delaying, hindering and defrauding her, and, more particularly, to prevent her from collecting her widow’s award out of the assets of the estate of Frank Gabl, and the prayer is that the assignment may be impressed with the amount of the widow’s award and that the court decree that Anna Funk assign the notes to her or to the administrator of the estate of Frank Gabl “to apply in satisfaction of her widow’s award and the claim of the said Charles J. Bussell.” The new ground advanced for the setting aside of the assignment is plainly an afterthought and without merit. In the former proceeding the master found all of the issues in favor of the intervening petitioner and against Hattie Gabl, and specifically found that the assignment to Anna Funk was valid; that at the time it was executed the notes in question rightfully belonged to Frank Gabl, and that Anna Funk succeeded to all of the rights, title and interest of Frank Gabl in and to the notes in question; that Frank Gabl was rational and capable of transacting business when he made the assignment. The chancellor sustained, in toto, the findings of the master. In Geiger v. Merle, 360 Ill. 497, 510, 511, it is stated: “A husband has the power to dispose of his personal property during his life independently of the concurrence of and exonerated from the claim of his wife, provided the transaction is not merely colorable and attended with circumstances indicative of fraud upon the rights of the wife. (Blankenship v. Hall, 233 Ill. 116; Padfield v. Padfield, 78 id. 16.)” But, in any view, the new ground urged, viz., that the assignment was in fraud of Hattie Gabl’s right to a widow’s award, should have been presented in the former proceeding. Frank Gabl died on July 4, 1937. The master’s report was not filed until April 18, 1938, and the decree was not entered until June 20,1938. Our opinion in the former case was filed May 28, 1940, but it was not until January 19, 1942, that Hattie Gabl procured the appointment of John P. Carey as administrator of the estate of Frank Gabl. In her petition Hattie Gabl gave the address of Lorraine Gabl, the only child of Frank Gabl, as 3220 No. Halsted street. That address was the residence of Hattie Gabl and Attorney Bussell, and the latter has his law office at that place. This false statement as to the address of Lorraine was plainly intended to prevent her from learning of the Probate court proceedings. As we have heretofore stated, the inventory filed by Carey lists as the only asset a claim of the estate against Anna Funk. That claim was intended as the basis, for Carey, as administrator of the estate of Frank Gabl, to commence the present proceedings, and it was asserted by Carey in the original complaint, the first amended complaint and the second amended complaint, but in the third amended complaint Carey, administrator, voluntarily dropped out as a plaintiff, and in the third amended complaint Carey appears as attorney for Hattie Gabl and Charles J. Russell, the sole plaintiffs in that pleading. The right of Carey, administrator, to enforce the alleged claim of the estate against Anna Funk was thereby abandoned by thé action of Carey, attorney for Hattie Gabl and Russell. That Carey was a mere tool of Attorney Russell is clear from the record. The proof of service of notice of appeal in the instant case is signed by Russell as “agent of John P. Carey.” Carey’s conduct in permitting the claim of Attorney Russell for attorney’s fees against Frank Gabl for $415 to be allowed in the Probate court reflects upon his integrity as administrator. Russell’s claim was not allowed until May 27, 1942. Instead of fighting the claim, as he should, Carey, as administrator, commenced the present proeeédings, on February 14,1942, in which he appeared as attorney for himself, as administrator, and for his coplaintiff, Hattie Gabl. While he made Russell a defendant he prayed for no relief against him. The record shows that Russell represented Hattie Gabl throughout the former proceeding and thereafter; that he represented Hattie Gabl in the two mortgage foreclosure suits commenced in the Circuit court on May 31, 1935, in which the two notes in question were involved. That he is her real attorney in the present proceedings seems reasonably clear from a study of the record. The bill filed by Russell in the Probate court against the estate of Frank Gabl contains a number of items, the first dated February 2, 1935; the last date given in the bill is December 13, 1936. No date is given for the last item. His claim in. the Probate court was filed February 9,1942, and it appears, therefore, that over five years elapsed after the last date mentioned in his bill and the date of the filing of his claim. If he had a bona fide claim against Frank Gabl, he knew that he had the right to have proceedings started in the Probate court wherein he might assert his claim. From May 31, 1935, he had been engaged in litigations to enforce Hattie Gabl’s alleged rights in reference to the two notes, during most of which time Hattie Gabl was bitterly attacking the right of Frank Gabl to make the assignment to Anna Funk, and Russell’s action in presenting his claim against the estate of Frank Gabl long after the death of the latter and the administrator of the estate being his tool and his present attorney, seriously taints the claim, to say the least. We have seen fit to state the nature of Russell’s claim and the conduct of Carey, administrator, in reference to the same for the reason that it appears from plaintiffs’ brief that they contend that the allowance of Russell’s claim in the Probate court and his appearance as a plaintiff in this case defeats the defense of res judicata asserted by defendants. There is no merit in that contention, as the doctrine of res judicata applies to Russell’s claim as well as to Hattie Gabl’s. He now contends that the assignment was in fraud of his rights as a creditor of Frank Gabl. As the attorney for Hattie Gabl in the former proceeding, if he had any such right as he now claims, he could, in an apt way, have asserted it in the former proceedings. That he is bound by the former decree, see Board of Education of Chicago v. Crilly, 312 Ill. App. 16, 28, 29, where the authorities bearing upon the subject are cited. There is force, also, in the contention of defendants that , even if Russell had an honest claim against Frank Gabl, the record shows that he was guilty of laches in an aggravated form.

Defendants contend and strenuously argue that the decretal order in the instant case might be sustained upon another ground, urged by defendants in the trial court, viz., that the third amended complaint was insufficient in law, but in view of our conclusion that the doctrine of res judicata applies to the case we do not deem it necessary to pass upon the instant contention.

The present proceeding presents a plain case of an . attempt to relitigate the former suit.

The decretal order of the Circuit court of Cook county should be and it is affirmed.

Decretal order affirmed.

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


source: Caselaw Access Project

license: Public Domain

text:
    Avery W. Blanchard, Appellee, v. Jackson Funeral System Association, Appellant.
    Gen. No. 43,532.
    Heard in the second division of this court for the first district at the October term, 1945.
    Opinion filed December 18, 1945.
    Released for publication January 2, 1946.

      Harris B. Gaines, of Chicago, for appellant.
    E. P. Blakemore, of Chicago, for appellee.
   Mr. Justice Scanlan

delivered the opinion of the court.

An action upon a certificate of insurance issued by a burial society upon the life of Arnold Frank Blanchard in the sum of $225. Plaintiff was the beneficiary named in the certificate. The case was tried by the court, without a jury, and there was a finding and judgment for plaintiff for $225. Defendant appeals from the judgment.

The certificate was issued on July 14, 1941, and attached to it and made a part thereof was an application purporting to have been signed by the insured on July 2, 1941. No medical examination of the insured was made prior to the issuance of the certificate. In the application the following questions and answers appear: “Question 13: ‘Are you in good and vigorous health now?’ Answer: ‘Yes.’ Question 14: ‘Have you received medical or surgical attention within the last two (2) years?’ Answer: ‘No.’ Question 15: ‘Have you been afflicted with or treated for tuberculosis or heart disease?’ Answer: ‘No.’” Following the questions and answers appears the following: “I hereby represent that the foregoing statements and answers are complete, true and correct, and I understand and agree that this application shall be the basis and form a part of the Certificate hereby applied for and that such Certificate shall not be in force unless and until the same is issued and received during my lifetime.” On page one of the certificate appears the following: “This certificate is issued in consideration of the membership application and the payment in advance of application fee of Seventy Cents, which maintains -this certificate in force for two weeks following its date of issue, and the payment of weekly dues of Thirty-Five Cents on Monday of each and every week thereafter during the lifetime of the member. ...”

The certified copy of the medical death certificate (signed by H. F. Machlan, M.D., of the Hines hospital) shows that Arnold Frank Blanchard died January 29, 1942; that the immediate cause of death was “Tuberculosis, pulmonary, chronic, far advanced active, 3, moderate Duration Unknown”; that he also had “Pneumoconiosis (silicosis) Duration Unknown”; that the disease was related to the occupation of the deceased by “Breathing dust.” Dr. Gioner, connected with the Hines hospital, stated that the deceased was treated at the Hines hospital from March, 1941^ to September 4,1941, and from October 19,1941, to January 29, 1942, the date of his death; that the hospital records show that when he was admitted in March, 1941, his ailments were diagnosed as “Pneumoconiosis (silicosis) Probable Chr. Pul. Tbc.”; that when he was admitted to the hospital on October 19, 1941, the diagnosis was “Tuberculosis, Pul. Chr. far advanced. Pneumoconiosis (silicosis).” The doctor further stated that the cause of death was “Tuberculosis, pul. chr., far advanced Pneumoconiosis (silicosis).” Dr. Beverly, called by defendant as an expert witness, testified that pneumoconiosis (silicosis) and tuberculosis, pulmonary, chronic, far advanced, would have to exist at least six to eighteen months before they became chronic and that silicosis usually existed one year before becoming chronic; that the deceased must have known that he was sick on July 2,1941, the date of the application. Plaintiff offered no evidence to contradict the foregoing testimony produced by defendant.

A number of defenses were interposed by defendant,' but in our view of this appeal we need notice only one : Defendant calls attention to the questions and answers in the application, heretofore referred to in this opinion, and contends that the undisputed evidence shows that the application upon which the certificate was based contained misrepresentations of fact material to the risk to be assumed by defendant in that it did not disclose (1) that the insured had received medical treatment during the two years before the signing of the application for the certificate; (2) that he had been treated in Hines hospital in March, 1941; (3) that he had received medical treatment from Dr. Frederick Frazier in the early part of 1941; (4) that at the time the said application was made the insured was suffering from pulmonary tuberculosis and pneumoconiosis (silicosis).

Defendant cites a number of cases that hold that misrepresentations will avoid a policy of life insurance if they are in fact false and material to the risk, even though made through mistake, or in good faith, but the law is sp well settled that it is not necessary to refer to the cases cited. Plaintiff concedes, apparently, that defendant’s contention would be sound if the certificate in the instant case were an insurance policy, but he contends that the certificate issued by defendant is not an insurance policy and that the foregoing rule of law applies only to insurance policies and has no application to the certificate issued by defendant; that the instant case is governed by Article XIX of the Insurance Code (ch. 73, Ill. Rev. Stat. 1945 [Jones Ill. Stats. Ann. 66.1013 et seq.]), that applies exclusively to Burial Societies; that Article XIX specifically prescribes the provisions that may be incorporated in the certificate of a burial society; that these provisions are mandatory and that no other provisions may be incorporated in such a certificate. Plaintiff argues “that the matter of health condition is not and should not be considered as a part of any provision under such benefit. The holder of a certificate as such when he dies has fulfilled the obligation imposed upon the Burial Society to pay the required amount payable as set forth in the certificate”; that the insured had paid all premiums required and the defendant must pay the policy regardless of the cause of the insured’s death or the state of his health at the time of the application or prior thereto. Counsel for plaintiff convinced the trial court that his interpretation of Article XIX was sound and the court followed that interpretation and entered judgment for plaintiff. There is not the slightest merit in the contention of plaintiff that the certificate in the instant case is not an insurance policy. Par. 614, Sec. 2, of the Insurance Code (ch. 73, Ill. Rev. Stat. 1945 [Jones Ill. Stats. Ann. 66.677]) provides: “(n.) ‘Policy’ means an insurance policy or contract and includes certificates of fraternal benefit societies, assessment companies, mutual benefit associations, and burial societies(Italics ours.) Par-. 950, Sec. 338, of Article XIX [Jones Ill. Stats. Ann. 66.1013], provides: “Scope of Article.) (1) This article shall apply to (a) all societies organized or operating, prior to the effective date of this Code, under an Act entitled ‘An Act relating to burial insurance societies,’ approved June 10, 1911.” (Italics ours.) Par. 955, Sec. 343 [Jones Ill. Stats. Ann. 66.1018], prescribes the form of the certificate that must be used under Article XIX, and it commences as follows:

“....................Illinois.

“Certificate Number

<6

“(A Burial Insurance Society) [Italics ours] “Incorporated under the Illinois Insurance Code.”

The prescribed form also contains the following words: “This certificate is issued in consideration of the application and the payment in advance of a first....... premium ...” (Italics ours.) It also prescribes six provisions that must be incorporated in the certificate, and these provisions are incorporated in the instant certificate. While Article XIX clearly contemplates that an application precede the issuance of a certificate it does not prescribe any particular form for the application nor does it prescribe what it should contain. It is the settled law of this State that the parties to an insurance contract may incorporate in it such provisions, not in violation of law, as they choose, and it is the duty of the courts to construe and enforce the contract as made, and the courts have neither the right nor the power to make a new contract for the parties. (Moscov v. Mutual Life Ins. Co., 387 Ill. 378, 383.) The questions in the application, concerning the health of the applicant, are certainly not against the statutory law nor against public policy, and they were material to the risk. A burial society would not long exist if it had no right to inquire into the physical condition of the applicant for a certificate, nor to make the answers of the applicant the basis for the issuance of the certificate.

Defendant admits in its pleadings that it was liable to refund to plaintiff the premiums which had been paid and it alleges that it had theretofore tendered to plaintiff said premiums and that he had refused to accept the same, and it further alleges that it brings into open court and tenders to plaintiff the premiums paid. The amount of the premiums paid is $10.50.

The judgment of the Municipal Court of Chicago is reversed and the cause is remanded with directions to the trial court to enter a judgment for defendant, upon the latter’s depositing with the clerk of the court $10.50 for the use of plaintiff.

Judgment reversed and cause remanded with directions.

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


author: Mr. Justice Sullivan

text:
    Edward C. Steinhauer, Administrator with Will Annexed of Estate of James A. Beeby, Deceased and Luella Jane Beeby, Appellees, v. Christine J. Botsford et al. Appeal of Christine J. Botsford, Appellant.
    Gen. No. 43,272.

      Heard in the second division of this court for the first district at the December term, 1944.
    Opinion filed December 18, 1945.
    Rehearing denied January 2, 1946.
    Released for publication January 2, 1946.
    Louis I. Shapiro, of Chicago, for appellant.
    James J. Mejda and Francis E. Luthmers, both of Chicago, for appellees.
   Mr. Justice Sullivan

delivered the opinion of the court.

On July 30,1941 Edward C. Steinhauer, as administrator with the will annexed of the estate of James A. Beeby, deceased, filed a complaint for an “Accounting and Reconveyance” against Christine J. Botsford. George R. Hillstrom, individually and as trustee, was also named as a defendant but no relief was sought against him and he filed no appearance or answer. Christine J. Botsford will hereinafter for convenience be referred to as the defendant. Thereafter Luella Jane Beeby was made an additional party plaintiff and an amended complaint was filed which asked for an accounting and the reconveyance of the real estate involved herein, which had been conveyed by James A. Beeby to Christine J. Botsford by a quitclaim deed on June 29,1933 and also asked that the court declare that said quitclaim or absolute deed was given merely as additional security for a first mortgage indebtedness. The cause was referred to a master and in conformity with the findings and recommendations contained in his report a decree was entered in favor of plaintiffs, wherein the trial court found inter alia that said quitclaim deed from James A. Beeby to Christine J. Bots-ford, although absolute on its face, was given as additional security for a first mortgage indebtedness which was owned and held by said Christine J. Botsford and ordered that “the defendant, Christine J. Botsford, account for the rents, issues and profits from said premises, and expenditures made upon said premises, from May 1, 1933, and that the plaintiffs be permitted to redeem said property if such accounting shows any balance due to the defendant, Christine J. Botsford, and if there is no balance found to be due to Christine J. Botsford, then the said Christine J. Botsford shall reconvey, and is hereby ordered to reconvey said premises to the plaintiffs and pay said plaintiffs such amount as may be found to be due from said accounting.” The decree also ordered a rereference to the master “to take an account” between the parties. Defendant, Christine J. Botsford, appeals from the decree.

The amended complaint alleged substantially that .James A. Beeby had been the owner of the real estate located at 10240 South State street, Chicago, Illinois, which on June 29,1933 was subject to a first mortgage indebtedness of $2,000 secured by a trust deed; that the defendant, Christine J. Botsford, was the owner and holder of the principal note representing this indebtedness ; that said real estate was also subject to a second mortgage indebtedness which had been reduced to $134.60; that on June 29, 1933, Beeby conveyed the property in question to defendant by a quitclaim deed; that “said deed of conveyance, although appearing to be absolute on its face, was not intended to be such-by said James A. Beeby and said Christine J. Botsford, but on the contrary the said parties then and there orally agreed that the same would be additional security for the mortgage indebtedness . . . held and owned by said Christine J. Botsford and owed by said James A. Beeby; that it was then and there mutually understood and agreed as part of said oral agreement that the deed and the premises thereby conveyed were to be held by the said Christine J. Botsford simply and only as additional security for the payment of said sum of money and interest due under said mortgage aforesaid and not as an absolute conveyance; that said Christine J. Botsford would collect and account for the rents, issues and profits of said premises and after applying the same to the reasonable expenses of the maintenance of said property, would then apply the balance of said rents, issues and profits in payment of said mortgage indebtedness; and that upon the payment and satisfaction of said mortgage obligation and the interest thereon in the mantier and sum aforesaid or by the prior satisfaction thereby by said James A, Beeby that said Christine J. Botsford would thereupon reconvey said premises to said James A. Beeby by an absolute deed, free and clear of said mortgage indebtedness”; that on or about June 29,1933 defendant entered into the possession of the premises and thereafter collected and retained the rents and profits thereof which were sufficient to satisfy her mortgage obligation; that defendant failed and refused to account to Beeby during his lifetime or to plaintiffs for said rents and profits and has refused to reconvey said premises “in accordance with the agreement herein-above set forth”; and that “by reason of the aforesaid, plaintiffs are now entitled to a reconveyance of said premises and to an accounting incident thereto.”

The amended complaint further alleged that James A. Beeby died on April 20, 1934 leaving a will, dated May 3,1932, in which he devised and bequeathed all of his real and personal estate to his daughter, Luélla Jane Beeby; that said will was filed in the office of the clerk of the probate court but that George R. Hillstrom' who was named executor therein neglected and refused to probate same or otherwise administer Beeby’s estate; that the property involved herein is registered under the Torrens system and on April 30, 1934 plaintiff, Luella Jane Beeby, filed an affidavit in the Office of the Registrar of Titles of Cook county claiming an interest in said property; that defendant is still the owner and holder of the principal note representing the $2,000 first mortgage indebtedness and that she has paid the second mortgage indebtedness out of the rents received from the property; that by reason of the failure of Hillstrom to probate Beeby’s estate plaintiff, ■ Edward C. Steinhauer, was appointed as administrator with the will annexed of said estate on May 8,1941 and qualified as such; and that plaintiffs through their attorneys have repeatedly requested from defendant an accounting of the rents and profits of the aforesaid premises but that she has refused to comply with such requests.

Defendant’s answer denied all the material allegations of the amended complaint bearing on. plaintiffs’ right to a reconveyance of the real estate and to- an accounting for any rents and profits received by her from same and averred that James A. Beeby conveyed the property to her for a valuable consideration and not as additional security for the first mortgage indebtedness owned and held by. her at the time of said conveyance.

Defendant first contends that “the gist of the amended complaint is that Beeby, the grantor, and Botsford, the grantee, orally agreed that the quitclaim deed was to be considered merely as additional seenrity for the mortgage indebtedness”; and that “no evidence was introduced to support such alleged oral agreement.”

Plaintiffs’ answer to this contention is that “the gist of the amended complaint is that the quitclaim deed was intended as additional security for the mortgage indebtedness” and that “the evidence introduced supported such contention”; that “the complaint alleges the ultimate fact that the deed was intended as additional security, and the evidence supported this allegation”; and that “the court properly found in its decree that the allegations in the amended complaint were true as therein stated as the evidence supported such findings. ’ ’

The only ground or theory alleged in the amended complaint upon which plaintiffs predicated their right to the relief sought was that when Beeby executed and delivered the quitclaim deed to defendant on June 29, 1933, he and defendant “then and there orally agreed that the same would be additional security for the mortgage indebtedness . . . held and "owned by said Christine J. Botsford and owed by said James A. Beeby.” The complaint then went on to allege the details of the oral agreement and repeatedly referred to same. It is asserted in plaintiffs’ brief that the above quoted allegation avers “the ultimate fact that the deed was intended as additional security, and the evidence supported this allegation.” In our opinion this is not a correct statement of the substance and meaning of this averment. The ultimate fact set forth therein was that the parties “ orally agreed” that the quitclaim deed would be additional security for the mortgage indebtedness and the proof required to support, this allegation was that Beeby and defendant did enter into an oral agreement that manifested their intention that the quitclaim deed was given merely as additional security for the mortgage indebtedness. Not only is there no evidence in the record to show that Beeby and the defendant entered into the alleged oral agreement but plaintiffs made no attempt to prove any such agreement. Inasmuch as the only cause of action alleged in plaintiffs ’ amended complaint was that when Beeby executed and delivered the quitclaim deed to defendant, he at the same time “orally agreed” with her that said deed would be merely additional security for the mortgage indebtedness and since plaintiffs made no attempt to prove this cause of action, the trial court, instead of finding in its decree that “the allegations of the amended complaint are true as therein stated,” should have sustained defendant’s exceptions to the master’s report and found that plaintiffs had failed to prove the aforesaid oral agreement and dismissed their amended complaint for want of equity. Citation of authorities is not necessary in support of the well established rule that a party to a suit, either at law or equity, cannot have relief under proofs without allegations, nor under allegations without proof in support thereof. (Leitch v. Sanitary Dist. of Chicago, 386 Ill. 433.) It is elemental that where a plaintiff fails to prove the cause of action made by his complaint he is not entitled to recover, although the facts actually proved would have entitled him to relief had his bill been framed upon a different theory. (Oetting v. Graham, 373 Ill. 247.) The rule that proofs without corresponding allegations are in equity as unavailing as allegations without proofs is familiar to every lawyer. (Angelo v. Angelo, 146 Ill. 629.)

Even though it be assumed that plaintiffs might properly present evidence extraneous from the alleged oral agreement under the averments of the amended complaint to show that when Beeby delivered the quitclaim deed to defendant the parties intended that such deed was merely given as additional security for the mortgage indebtedness, was the evidence introduced by them sufficient to establish such intention?

It is legally presumed that an absolute conveyance of real estate is what it purports on its face to be and the burden of proof rests upon the party asserting that a deed absolute is in fact a mortgage or additional security for a mortgage indebtedness and was so intended by the parties and such proof must be clear, satisfactory and convincing.

It appears that the real estate in question was improved with a five-room frame cottage on a concrete foundation; that Beeby was a widower and lived therein with his daughter, Luella Jane Beeby, until about the middle of May 1933; that at that time he and his daughter moved to the home of defendant under an arrangement whereby he was to pay the latter $30 per month for his own room and board and $15 per month for his daughter’s ; that Luella Jane Beeby lived at defendant’s home about a month, when she left to take a position doing housework; that Beeby continued to live at defendant’s home about three months longer; that he had no income except a pension which he received from his former employer; that prior to moving into defendant’s home he was in debt for coal and had numerous liens against his property for both general taxes and special assessments; and that before he executed the quitclaim deed to defendant on June 29, 1933 he was in default as to principal and interest on both the first and second mortgages.

We will now consider the only evidence presented by plaintiffs that could possibly be considered material to the question as to whether Beeby and defendant intended, the quitclaim deed to be given merely as additional security for the first mortgage indebtedness.

Luella Jane Beeby testified that “she [Mrs. Bots-ford] said it was best for us to go to her place; that the rent was to apply on the mortgage, to get the mortgage off”; and that defendant made this statement to her on the day she moved into defendant’s home about the middle of May and that.her father was not present at the time. Defendant denied that she told Luella Jane Beehy that “the rent was to apply on the mortgagé, to get the mortgage off.” Defendant admitted in her testimony that, when Beehy delivered the quitclaim deed to her she retained in her possession the principal mortgage note, the trust deed and the extension agreement, instead of cancelling same and turning them over to him. Plaintiffs also introduced evidence by which they attempted to show that the consideration received by Beehy for his quitclaim deed was grossly inadequate.

It certainly cannot be held that the flimsy, uncorroborated testimony of Luella Jane Beehy that Mrs. Botsford told her that “the rent was to apply on the mortgage” constituted the clear, satisfactory and convincing proof required to show that a deed absolute was intended to be merely additional security for a mortgage indebtedness.

It is true that under the particular circumstances of some cases there is a presumption that “where the grantor is indebted to the grantee at the time of the conveyance and the note evidencing such indebtedness is retained by the grantee, such indebtedness was not satisfied by the conveyance, and, until the contrary is shown, the presumption is that the instrument, though a deed absolute on its face, is a mortgage.” Wallace v. Greenman, 321 Ill. 423, 430. However, a different situation arises where, as here, the defendant testified positively that her note and mortgage were paid by the quitclaim deed and that she thereafter paid all general taxes levied against the property and expended considerable money in keeping same in repair. In addition defendant made no demand upon Beehy during his lifetime or upon his daughter after his death for payment of principal or interest on the mortgage.

In Kimmel v. Bundy, 302 Ill. 514, under a comparable factual situation the court said at p. 517:

“It is contended that appellee retained possession of the notes and mortgage of appellant which he held when the deed was made, and that circumstances shows the debt was not satisfied by the conveyance. The notes and mortgage were not delivered to appellant when he made the deed. He testified appellee promised to send them by mail but did not do so, and appears never to have made any demand or request for them. It is difficult to understand why appellee promised to send them to him if they represented an existing indebtedness. In addition to that, appellee testified positively they were paid by the conveyance, and so far as the evidence shows their payment was never afterwards mentioned by either of the parties. The proof shows the consideration paid was the full value of the land at the time.”

We have carefully examined all the evidence in the record bearing on the adequacy of the consideration which Beeby received for the quitclaim deed but it would serve no purpose to discuss same except to further lengthen this already long opinion. There can be no question but that Beeby’s mortgage indebtedness was satisfied by his quitclaim deed and that defendant assumed the burden of satisfying the numerous liens against the property for general taxes and special assessments. We think that the proof shows that the consideration paid was the full value of the property at the time the quitclaim deed was delivered and that the conclusion reached by the master that the consideration received by Beeby was grossly inadequate was against the manifest weight of the evidence. It is a matter of common knowledge that when this property was conveyed by Beeby to defendant in 1933, many property owners, who were in default as to mortgages and taxes and had no means of paying same, quitclaimed their property in satisfaction of the mortgage debt and for an additional nominal consideration in order to avoid the possibility of having deficiency judgments entered against them in foreclosure proceedings.

We are impelled to hold that there is no merit in Luella Jane Beeby’s claim of interest in the property involved herein and that the trial court erred in entering the decree in plaintiffs’ favor.

As an additional reason for reversal defendant contends that plaintiffs were guilty of laches. That they were guilty of laches in instituting this action is conclusively shown by the facts in this case.

Beeby delivered the quitclaim deed to defendant on June 29, 1933. He died April 20, 1934 without making any claim up to the time of his death that said deed was merely given as additional security for his mortgage indebtedness to defendant. As heretofore shown, the real estate involved herein was registered under the Torrens system, and plaintiff, Luella Jane Beeby, filed an affidavit prepared by Attorney Hillstrom claiming an interest in the property. This affidavit was dated April 30, 1934 and registered in the Office of the Registrar of Titles May 11, 1934. Hillstrom was named as executor in Beeby’s will. He filed the will in the probate court clerk’s office on May 4, 1934 but he failed and refused to probate same. He renounced his appointment as executor on May 4,1941, at which time plaintiff, Edward C. Steinhauer, was appointed administrator with the will annexed. This suit was filed July 30, 1941 and prior to its institution, which was more than eight years after the delivery of the quitclaim deed and more than seven years after Beeby’s death, Luella Jane Beeby made no demand on defendant for an accounting nor did she make any inquiry concerning the real estate at any time before this action was brought. Upon the delivery of the quitclaim deed deféhdant took possession and control of the real estate and thereafter collected the rents, paid taxes and made repairs. The only person present at the time the quitclaim deed was delivered other than Beeby and the defendant was one Martin Johnson, a notary public, who acknowledged Beeby’s signature to the deed. Johnson could not be located at the time of the hearing and he had not been heard from for about four years prior thereto. When the quitclaim deed was delivered to defendant on June 29, 1933, real estate values were low because of the depression and when this suit was filed, more than eight years later, there had been an appreciable increase in the value of the real estate involved herein.

Plaintiffs have shown absolutely no reason to justify their delay in bringing this suit. The master’s conclusion, which was confirmed by the chancellor, that plaintiffs were not guilty of laches was predicated primarily on his finding that “within three weeks after the date of the death of James A. Beeby, Luella Jane Beeby filed with the Registrar of Titles of Cook County, Illinois, her affidavit of claim of interest in the premises herein involved; that George R. Hillstrom, the executor named in the will of James A. Beeby, failed, refused and neglected to probate said estate or to renounce his appointment as executor until May 8, 1941; that there has been no change in the situation of the parties since the execution of the quitclaim deed from James A. Beeby to Christine J. Botsford . .• . and the situation was exactly the same when this litigation was instituted as when the quitclaim deed was executed from James A. Beeby to Christine J. Bots-ford.”

The situation “was not exactly the same” as the master found. The notary public, Johnson, who was the only witness to the transaction, when the quitclaim deed was executed and delivered, had disappeared and was not available to testify at the hearing and the property had substantially increased in value.

It cannot be said that Hillstrom’s failure and refusal to probate Beeby’s estate or to renounce his appointment as executor thereof constituted even the slightest excuse for plaintiffs’'lack of diligence in commencing this suit. Under the law Hillstrom could have been removed as executor as far back as 1934, because of his refusal to act as such. Hillstrom was a lawyer as well as a real estate broker. He prepared Luella Jane Beeby’s claim of interest in the real estate in question and was fully acquainted therewith. Having been named in her father’s will as executor of his estate, it is fair to assume that if Hillstrom thought that there was any merit in said claim of interest,.which was the only asset of the estate, he would not have neglected for more than seven years to have same adjudicated.

The rule applicable to the factual situation presented here is clearly enunciated in Capper v. Poulsen, 321 Ill. 480, where the court said at p. 483:

“Good faith and reasonable diligence of parties seeking the relief of a court of equity are the elements that call it into activity. In the absence of these elements the court remains passive and declines to extend its aid. It has always been the policy of equity to discountenance bad faith and neglect. A party who challenges the title of his adversary to real property must be diligent in discovering that which will avoid the title or render it invalid and diligent in his application for relief. (Booker v. Booker, 208 Ill. 529; Fitch v. Miller, 200 id. 170; Walker v. Warner, 179 id. 16.) Appellants have shown no circumstances which excuse their delay in asserting their claim to these premises, and for this additional reason appellants are not entitled to the relief asked in the cross-bill.”

A court of equity will refuse relief after inexcusable delay because of the difficulty, if not the impossibility, of arriving át a safe and certain conclusion as to the truth of the matters in controversy and doing justice between the parties, where evidence has been lost through the disappearance of witnesses to the transaction involved in the suit. (Corpus Juris Secundum, vol. 30, sec. 119, p. 542.) “A marked appreciation or depreciation, according to the circumstances, in the value of the property involved where the right might have been asserted before such change, and the granting of relief would in consequence of the change work inequity, is ordinarily fatal to plaintiff’s case.” Corpus Juris Secundum, vol. 30, sec. 118, p. 541.

As was said in Capper v. Poulsen, supra, “A party who challenges the title of his adversary to real property must be diligent in discovering that which will avoid the title or render it invalid and diligent in his application for relief.” Luella Jane Beeby had knowledge of her purported interest in the property in question at the time she filed her claim of interest therein in the office of the Registrar of Titles in 1934 and since no circumstances have been shown which excused her delay in asserting her claim until 1941, plaintiffs are not entitled to the relief sought in the amended complaint.

For the reasons stated herein the decree of the superior court of Cook county is reversed and the cause is remanded with directions to dismiss plaintiffs’ amended complaint for want of equity.

Decree reversed and cause remanded with directions.

Friend, P. J., and Scanlan, J., concur.


text:
    People of State of Illinois for Use of William A. Jones, and William A. Jones, Appellants, v. Harry Leviton et al., Appellees.
    Gen. No. 43,359.

      Heard in the second division of this court for the first district at the April term, 1945.
    Opinion filed December 18, 1945.
    Released for publication January 2, 1946.
    Peter S. Sarelas, of Chicago, for appellants; G. A. Bosomburg, of Chicago, of counsel.
    Aaron R. Eppstein, of Chicago, for appellees.
   Mr. Justice Sullivan

delivered the opinion of the court.

This action was brought by plaintiffs, People of the State of Illinois for the use of William A. Jones and William A. Jones (hereinafter for convenience referred to collectively as plaintiff or William A. Jones), against defendants, Harry Levitón, United States Fidelity and Guaranty Company and Harry K. Ward, and this appeal seeks to reverse a judgment order dismissing this suit, which was entered after the motion of defendants, Harry Levitón and United States Fidelity and Guaranty Company, to strike plaintiff’s complaint had been sustained. Defendant Ward filed an answer which the trial court permitted him to withdraw on the same day the suit was ordered dismissed, although he had not filed or joined with the other defendants in filing a motion to strike the complaint. Ward was actually in default when the suit was dismissed as to him. Levitón and the United States Fidelity and Guaranty Company will sometimes hereinafter for convenience be referred to as the defendants.

The complaint consisted of two counts, the first of which alleged in substance that Harry Levitón, after he had been elected to the office of Justice of the Peace, had taken his oath of office and filed his qualifying bond with the United States Fidelity and Guaranty Company as surety; and that in violation of his oath of office and of the obligation of his bond he committed the several corrupt acts hereinafter set forth in and concerning an attachment proceeding pending before him, wherein Harry K. Ward, one of the defendants herein, was plaintiff, Thomas R. Jones was the principal defendant and William A. Jones, the plaintiff herein, was garnishee.

It was then alleged in the first count that Harry Levitón, for the purpose of benefiting Harry K. Ward and injuring the plaintiff, “struck out garnishee’s sworn answer, which showed that the garnishee had no assets of any kind belonging to the main defendant”; that “Levitón assumed the power to and did enter a rule on the garnishee to answer oral interrogatories on August 21,1942 at 1: 00 p. m.”; that “although Levitón knew and his records showed that no copy of the rule and no subpoena was served on the garnishee before August 21, 1942, he entered a final judgment against the garnishee, William A. Jones, on August 21,1942, at 1: 00 p. m. for $210.75, without any evidence in support of said final judgment”; that up to that time no attempt had been made to secure service on the principal defendant, Thomas R. Jones, either by personal service or by publication; that at the time of the entry of the final judgment for $210.75 against the garnishee no judgment had been entered against the principal defendant, Thomas R. Jones, and none could have been entered because of lack of service upon him; that notwithstanding such lack of service the defendant, Levitón, corruptly certified to the circuit court on the garnishee’s appeal, case No. 42-C-12301, that judgment by default had been entered for $325 against the principal defendant, Thomas R. Jones, before the final judgment against the garnishee was entered; and that Levitón certified in his transcript that judgment by default was entered against the principal defendant, Thomas R. Jones, on August 21, 1942 in an effort to “cover up” the corrupt entry of final judgment for $210.75 against William A. Jones, his garnishee.

It was further alleged that “Harry Levitón is a lawyer who, for many years prior to the acts complained of, specialized in Justice of the Peace matters and, therefore, knew and ought to know that what he was doing in the attachment case in question was unlawful, illegal and a violation of his duty as Justice of the Peace and the obligation of his bond”; that “he committed the said wrongful and illegal acts with intent to injure the plaintiff herein, William A. Jones, who was garnishee in his court, and to help his co-conspirator and defendant herein, Harry K. Ward; that said wrongful acts caused considerable expense to the plaintiff herein; and that “the Circuit court of Cook County, to which an appeal was perfected by garnishee, William A. Jones, from the final judgment corruptly entered by Harry Levitón, quashed the attachment writ and dismissed the attachment suit.”

The first count concluded with a prayer for “judgment against the defendant, Harry Levitón, for $10,000, said judgment to include and incorporate therein that malice is the gist of the action; and judgment against the defendant, United States Fidelity and Guaranty Company, a corporation for $2,000.”

Although Harry K. Ward was named as a defendant in the first count of the complaint no relief against him was sought therein.

The second count of the complaint averred in detail the alleged corrupt acts of Harry Levitón as heretofore set forth in the first count and charged that said acts were committed by him as Justice of the Peace as the result of a conspiracy between him and Harry K. Ward, plaintiff in the attachment proceedings, for the purpose of exacting large sums of money from William A. Jones, the garnishee in said attachment suit and the plaintiff herein, and that the attachment writ, the attachment proceedings in their entirety, the rule on the garnishee to answer oral interrogatories and the corrupt entry and certification to the circuit court on appeal of a judgment against the principal defendant , as well as a judgment against the garnishee constituted a malicious abuse of process for which Justice of the Peace Harry Levitón and his confederate Harry K. Ward are answerable to the plaintiff for both actual and punitive damages.

The motion of Harry Levitón and the United States Fidelity and Guaranty Company to strike plaintiff’s complaint and for judgment was directed only to the first count of the complaint and the following grounds were asserted in said motion: “1. There is a misjoinder of parties defendant. 2. There is a misjoinder of counts. 3. Paragraphs 5, 6, 8, 9,10,11,12, 13,14, 15, 16 and 17 of said complaint are insufficient because they set forth conclusions of law and fact.”

.Plaintiff’s theory as stated in his brief is that “misjoinder of parties or counts is not ground for involuntary dismissal”; that “a motion to strike admits all facts well pleaded,” that “the facts alleged in Count 1 show a breach of the obligation in Harry Levitón’s bond to ‘well and faithfully perform all the duties of his office’ as Justice of the Peace, for which both the Justice and his surety became answerable to the plaintiff herein for damages” and that “the facts alleged in Count II state a good cause of action of abuse of process against the Justice, Harry Levitón, and his confederate Harry K. Ward.”

Defendants’ theory is that “there was a misjoinder of defendants and a misjoinder of causes of action in the manner in which the plaintiffs pleaded’ ’; that “the two counts stated conclusions and not ultimate facts, and each of the two counts was substantially insufficient in law and did not state a cause of action”; that ‘ ‘ the plaintiffs did not ask leave to amend, but elected to stand on their complaint, and the court properly dismissed the suit”; that “in this situation the plaintiffs are not warranted in asking the appellate court to remand the cause”; and that “there was no error in allowing defendants to amend the motion to strike.” In the same order in and by which plaintiff’s complaint was stricken and his suit dismissed, the trial court granted the defendants, Harry Levitón and the United States Fidelity and Guaranty Company, leave “to amend motion to dismiss to include Count 2 of the Complaint.” It is asserted that “there was no error in allowing defendants to amend the motion to strike.” This may be conceded and while it is true that the trial court did grant them leave to amend said motion to strike to include count two of the complaint, the record fails to disclose that such amendment was ever made or filled by them. It will therefore be only necessary to consider defendants’ motion to strike in -so far as it pertains to count one of the complaint.

While it is of course the rule that if a complaint is stricken and the plaintiff does not ask leave to amend same but elects to stand thereon, the court may dismiss the suit, it is also the rule that where a plaintiff elects to abide by his stricken complaint and the dismissal of his suit follow's, he is entitled to have the sufficiency of such complaint reviewed on appeal.

It will be noted that defendants’ motion to strike is in the form of a general demurrer. They claim that they filed said motion under section 45 of the Civil Practice Act (par. 169, chap. 110, Ill. Rev. Stat. 1943 [Jones Ill. Stats. Ann. 104.045]), which provides as follows:

“All objections to pleadings heretofore raised by demurrer shall be raised by motion. Such motion shall point out specifically the defects complained of, and shall ash for such relief as the nature of the defects may mahe appropriate, such as the dismissal of the action or the entry of a judgment where a pleading is substantially insufficient in law, or that a pleading be made more definite and certain in a specified particular, or that designated immaterial matter be stricken out, or that necessary parties be added, or that designated misjoined parties be dismissed and so forth.

“Where a pleading or a division thereof is objected to by a motion to dismiss or for judgment or to strike out the pleading, because it is substantially insufficient in law, the motion must specify wherein such pleading or division thereof is insufficient.

“After rulings on motions, the court may make such orders as to pleading over or amending as may be just.” (Italic ours.)

As heretofore shown, the third ground set forth in defendants’ motion to strike was that “Paragraphs 5, 6, 8, 9,10,11,12,13,14,15,16 and 17 of said complaint are insufficient because they set forth conclusions of law and fact.” We will first consider whether this alleged reason for striking the first count of the complaint met the requirements of the foregoing section of the Civil Practice Act. Defendants did not even claim in this averment that the first count of the complaint was insufficient in law to state a cause of action but merely that certain paragraphs thereof “set forth conclusions of law and fact.” It is almost impossible to draft a complaint which does not include allegations of conclusions of law and fact and such allegations do not render a complaint defective if facts are averred therein which warrant prima facie the conclusions alleged. The first count of the complaint charged Levitón as Justice of the Peace with wilfully, corruptly and maliciously entering a judgment and falsifying his record as to same and committing the other acts enumerated in said count and asked for punitive and actual damages and a finding against Levitón that malice was the gist of the action. The first count also asked that the United States Fidelity and Guaranty Company be found liable on the obligation of its bond. In our opinion the facts alleged in the first count sufficiently stated a cause of action against both Levitón and the United States Fidelity and'Guaranty Company.

It is readily apparent that defendants’ motion to strike did not conform in the slightest degree with the provisions of section 45 of the Civil Practice Act, under the authority of which section they claim to have filed such motion. If as defendants contend the first count was duplicitous because it stated two distinct and separate causes of action against Levitón as Justice of the Peace and the United States Fidelity and Guaranty Company as surety on his bond, it was mandatory under section 45 that their motion to strike (1) “point out specifically the defects complained of” and (2) that they “ask for such relief as the nature of the defects may make appropriate.”

While the law is settled that a Justice of the Peace is not liable for damages for any error or irregularity in the performance of his duties within the scope of his jurisdiction, it is also the law in this State that a Justice of the Peace, even though he is acting within the scope of his jurisdiction, can be made to answer civilly or criminally if he has acted maliciously and corruptly in the performance of his duties or has falsified his record. Defendants contend that all the acts complained of were acts within the jurisdiction of the Justice of the Peace,” that “they all were the exercise of judicial powers” and that although Levitón ‘ ‘ acts corruptly within his jurisdiction he is not civilly liable.” In'support of this contention they rely principally upon People ex rel. Cech v. Christy, 245 Ill. App. 517, where the court quoting from 35 C. J. 471, section 32, said at p. 522: “By the weight of authority a justice acting within his jurisdiction is not civilly liable, even though he acts corruptly or maliciously, the remedy for fraud or corruption being by impeachment. ’ ’ The Christy case refers to Lancaster v. Lane, 19 Ill. 242, Outlaw v. Davis, 27 Ill. 467, and Feld v. Loftis, 240 Ill. 105, as supporting the rule that a Justice of the Peace acting within his jurisdiction is not civilly liable even though he acts corruptly or maliciously. An examination of these cases discloses that none of them supports or even refers to any such rule. All that these cases hold is that a Justice of the Peace is not liable for damages for any error or irregularity in the performance of his duties within the scope of his jurisdiction. The sentence immediately following the rule quoted in the Christy case from 35 O. J. states that in some jurisdictions the rule is “that corrupt or malicious acts on the part of a Justice will render him liable for damages.” In support of this latter rule the case of Reddish v. Shaw, 111 Ill. App. 337, is cited. In that case the court said at p. 339: “If the justice has acted corruptly, or falsified his record, he can be made to answer civilly and criminally. Garfield v. Douglass, 22 Ill. 100.” In Garfield v. Douglass, 22 Ill. 100, the court said at p. 102: “If the justice corruptly, or from improper motives, changed the original entry made by him, he may be prosecuted both civilly and criminally . . . .”

In so far as we have been able to ascertain the law as enunciated in the foregoing cases has never been deviated from. Therefore, while the rule may be otherwise in some jurisdictions, in this State if a Justice of the Peace “has acted corruptly, or falsified his record, he can be made to answer civilly or criminally.”

In the comparatively recent case of People v. Braun, 303 Ill. App. 177, a police magistrate was indicted with others, including several police officers. They were charged with conspiring unjustly and oppressively to extort money from motorists. In that case the police officers arrested the motorists in large numbers and brought them before the police magistrate, where they were each charged with driving in excess of the speed limit provided by law and tried on such charge by the police magistrate. There was no question in the Braun case but that the magistrate had jurisdiction of the offense and of each accused motorist who was tried by him. There the magistrate was found guilty and sentenced to one year in the House of Correction and fined $2,000. His conviction was affirmed by this court in People v. Braun, supra, and by the Supreme Court (People v. Braun, 375 Ill. 284).

This brings us to the consideration of defendants’ contention that “the court properly sustained the motion to strike on the ground of misjoinder of defendants and causes of action. ’ ’ A complete answer to this contention is found in sections 24 (1) and 26 of the Civil Practice Act (pars. 148 and 150, ch. 110, Ill. Rev. Stat. 1943 [Jones Ill. Stats. Ann. 104.024, 104.026]). Said sections provide as follows:

‘ ‘ Sec. 24 (1): Any person may be made a defendant, who, either jointly, severally or in the alternative, is alleged to have or claim an interest in the controversy, or in any part thereof, or in the transaction or series of transactions out of which the same arose, or whom it is necessary to make a party for the complete determination or settlement of any question involved therein, or against whom a liability is asserted either jointly, severally or in the alternative arising out of the same transaction or series of transactions, regardless of the number of causes of action joined.

“Sec. 26. No action shall be defeated by nonjoinder or misjoinder of parties. New parties may be added and parties misjoined may be dropped by order of the court, at any stage of the cause, before or after judgment, as the ends of justice may require.”

Where each of several counts of a complaint sufficiently states a cause of action and complies in all other respects with the foregoing statutory provisions, a mere reading of these sections of the Civil Practice Act demonstrates that they prohibit the dismissal of an action because of the claimed misjoinder of the defendants or the causes of action. Since we have already held that the facts alleged in the first count of the complaint were sufficient in law to state a good cause of action and since in both counts common questions of law and fact are involved and the asserted liability against the defendants arose out of the same transaction or series of transactions the dismissal of this action was improper on the grounds that there was a misjoinder of parties or causes of action in the complaint (Baker v. S. A. Healy Co., 302 Ill. App. 634, 24 N. E. (2d) 228).

We are not unmindful of the fact that the first count of the complaint was inaptly drawn in that there was blended therein an action in tort against Levitón and an action in contract against the United States Fidelity and G-uaranty Company as surety on his bond, but even the blending of these two causes of action in one count did not warrant the order of dismissal of the suit. On an appropriate motion under section 45 of the Civil Practice Act, pointing out specifically the defects complained of, the trial judge could have directed plaintiff to state his cause of action in contract against the United States Fidelity and G-uaranty Company in a separate count, since said section provides that “the court may make such orders as to pleading over or amending as may be just.” It will also be noted that section 26 [Ill. Rev. Stat. 1943, ch. 110, par. 150; Jones Ill. Stats. Ann. 104.026] after providing that “no action shall be defeated by nonjoinder or misjoinder of parties,” further provides that “new parties may be added and parties misjoined may be dropped by order of the court, at any stage of the cause, before or after judgment, as the ends of justice may require.”

We think that sections 24 (1), 26 and 45, if properly complied with, afford ample protection to the rights of defendants who claim that there has been a misjoinder of defendants or causes of action in a complaint. This is especially true since “at any stage of the cause” the right is given the trial court to add new parties, to drop misjoined parties and to “make such orders as to pleading over or amending as may be just.”

We are impelled to hold that the trial court erred in sustaining defehdants’ motion to strike plaintiff’s complaint and in dismissing this suit.

For the reasons stated herein the judgment order of the circuit court of Cook county is reversed and the cause is remanded with directions that the judgment order which sustained defendants ’ motion to strike the complaint and dismissed the suit be vacated; that the defendants be required to answer the complaint; and that such further proceedings be had as are not inconsistent with the views expressed herein.

Judgment order reversed, cause remanded with directions.

Friend, P. J., and Scanlan, J., concur.