text:
    George Kelly v. Thomas Gahn et al.

      Filed at Ottawa November 17, 1884.

    Election of town officers—in the town of Lake—at what time. The town of Lake, in Cook county, was incorporated by a special act in 1867, to be governed and managed by five trustees,—a supervisor, assessor and collector, to be elected, and the other two to be appointed by the county judge. In 1869 the charter of the town was revised, when it was provided that the town officers should be elected on the second Tuesday in April. In pursuance of the constitution, the legislature passed an act repealing all conflicting laws on the subject, and fixing the time for the election of town officers on the first Tuesday in April in each year: Held, that the supervisor, assessor and collector, being town officers, were properly elected on the first Tuesday in April, and that their election was governed by the general law, as revised in 1874, and that the two trustees provided in addition to those town officers, should be elected at the same time.
    Appeal from the Superior Court of Cook county; the Hon. Henby M. Shephabd, Judge, presiding.
    This was a petition for a mandamus, which sets out the charter and amendment thereto of the town of Lake, in Cook county, and the provisions therein requiring the annual election for town officers to be held on the second Tuesday of April. The petition alleges that no election was held on said day, in 1884, whereby a vacancy was occasioned; that the appellees are acting as the board of trustees and town clerk of said town; that a demand was made on them that they call an election, but that they have refused so to do, and asks that a writ of mandamus may be issued to compel such action. The answer of the appellants admits all the material averments of the petition, but alleges that the charter provision requiring the annual election to be held on the second Tuesday of April has been changed by the constitution of 1870 and the general laws of the State, so that such election should now be held on the first Tuesday of April; alleges that a legal election was held on the first Tuesday of April, 1884; that such election was legal and regular in every respect; that at such election the appellees were duly elected to the respective town offices which they now severally hold; that they have duly qualified, and entered upon the duties of their respective offices, and are in the full possession and enjoyment thereof; that such election was free from all fraud; that it was notoriously and publicly canvassed and contested; that more than 6000 ballots were east thereat, and the respondents elected by an average majority of more than 800 votes. To this answer the petitioner interposed a general demurrer, which, on hearing, was overruled by the court, and the petition dismissed.
    The main question in this case is, whether the election held in the town of Lake on the first Tuesday of April, 1884, for a supervisor, assessor, collector, town clerk and trustee, was a legal and valid election, or not.
    Mr. John Gibbons, for the appellant.
    Mr. Albert H. Veeder, for the appellees.
   Mr. Justice Craig

delivered the opinion of the Court:

The principal question presented by this record is, whether the election held in the town of Lake on the first Tuesday of April, 1884, for supervisor, assessor, collector, town clerk and trustee, was held on the day provided by law.

Cook county adopted township organization prior to 1867, and is still under that system. The town of Lake is one of the townships of the county. In 1867 the legislature passed an act incorporating the inhabitants of the town of Lake into a body politic and corporate, under the name of the “Town of Lake.” The boundaries of the town, as fixed by the act, were declared to be, “all that district of country now known as the town of Lake, county of Cook, and State of Illinois". ” The government of the town was intrusted to five trustees. The supervisor, assessor and collector of the town of Lake, and their successors in office, were constituted and declared to be ex-officio three of the board of trustees. Two were to be appointed by the county judge, and their successors, in the language of the act, “shall be elected at the next annual election thereafter, and biennially after the said next annual election, in the same manner that the other town officers of said town are elected.” In 1869 the act of 1867 was superseded by an act entitled “An act to revise the charter of the town of Lake, in Cook county, ” which is now the charter of the town of Lake. Section 3 provides : “The officers of said town shall consist of the following officers only, to-wit: a supervisor, assessor, collector, town clerk, and such justices of the peace and constables as are now provided by law, who shall be elected in the same manner, and hold their office for the same length of time, and perform the duties provided by law for such officers, respectively, in other towns in Cook county, except as otherwise provided by this act. The government and corporate powers of said town shall be vested in and exercised by a board of five trustees, to consist of the supervisor, assessor, collector, and two trustees to be elected as provided in this act. The election of town officers and trustees may be contested as in other cases of town officers.” Section 2 provides: “The election for the officers contemplated by this act shall be held on the second Tuesday in April. ” Section 37 provides : “An election shall be held in said town on the second Tuesday of April, 1870, and on the second Tuesday of April in each year thereafter, for the election of trustees and town officers, except justices of the peace and constables.” Section 39 provides: “At the election on the second Tuesday of April, 1870, as herein provided, there shall be elected by the legal voters of said town, two trustees, who, together with the supervisor, assessor and collector, shall thereafter constitute the said board. ”

Under the act of 1869, it is plain that the proper time for holding the election would occur on the second Tuesday of April; but it is insisted by the appellees that the time mentioned in the act of 1869 has been changed by the constitution of 1870, and the legislation which has taken place under and by virtue of that instrument. Section o, of article 10, of the constitution of 1870, provided that the General Assembly shall provide by general law for township organization, and that no two townships shall have the same name, and the day of holding the annual township meeting shall be uniform throughout the State. In compliance with this provision of the constitution, in 1872 the legislature passed a general law for township organization, applicable alike to all the counties in the State which had, or might adopt, that system, repealing all conflicting law's on the subject. In 1874 the law was revised, and it is now chapter 139 of the Kevised Statutes of 1874. The act contains the following provisions: “The annual town meeting in the respective towns, for the election of town officers, shall be held on the first Tuesday of April in each year. ” (Art. 6, sec. 1.) “At the annual town meeting in each town there shall be elected, by ballot, one supervisor, one town clerk, one assessor and one collector, who shall severally hold their, offices for one year, and until their successors are elected and qualified, and such justices of the peace and constables and highway commissioners- as are provided by law. ” (Art. 7, sec. 1.) And then comes article 15, section 2: “Whereas, the constitution requires that the day of holding the annual township meeting shall be uniform throughout the State; and whereas, in the county of Cook the day of election, as fixed by law, is not the same as that in the majority of the counties of this State, and there is doubt whether any election can legally be held in such county for town officers, an emergency exists that this act take immediate effect, and be in force from and after its passage. ”

The constitution, and the laws passed under it, fixed upon the first Tuesday of April as the day on which a supervisor, town clerk, assessor and collector should be elected in every town in the State located in a county which had adopted township organization, and repealed all local or special laws providing for the election at a different date. This necessarily changed the time provided by the act of 1869 for holding the election. The fact that the act of 1869 made the town of Lake a corporation, does not, in our judgment, affect the question. When the charter was passed, the town of Lake had its supervisor, assessor and collector, who had been elected under the Township Organization law. Those officers remained with the same duties and powers after the charter was passed, as before. In addition to their duties and powers as town officers, they were made trustees, to assist in the government of the new corporation, but they continued to be town officers, notwithstanding the new duties which had been imposed upon them by the act of 1869. The town of Lake had its supervisor, collector and assessor, as town officers, with their respective duties, as town officers, to perform, after the enactment of the acts of 1867 and 1869, as before. As supervisor, collector and assessor they were not officers under the act of 1869, but they were merely town officers. If, then, they retained this character, it is plain that they would fall under and be governed by the general law as to their duties and time of election.

The act providing that the annual town meeting for the election of town officers shall be held on the first Tuesday of April, included every town in the State under township organization. Prior to the adoption of the constitution of 1870 there was not uniformity in the elections in towns under township organization. Some towns elected in November, and some in April. The town officers in Cook county were elected in November. Much confusion existed in different localities, growing out of the want of uniformity in the election of town officers. This doubtless led to the constitutional provision that the day of holding the annual township meeting shall he uniform throughout the State. It is a salutary provision, and one, too, which was much needed, and it should be upheld and sustained. There may be some doubt in regard to the time when the two trustees who, in connection with the supervisor, collector and assessor, constitute the board, should be elected; but one thing is apparent, and that is, that the legislature never intended that there should be two elections,— one on the first and the other on the second Tuesday of April. Under the acts of 1867 and 1869, it was designed by the legislature that the trustees should he elected on the same day that the town officers were elected. Section 2 of the act of 1869, heretofore cited,-is plain on this point. The language is: “The election for the officers contemplated by this act shall be held on the second Tuesday in April.” So, also, section 37 declares, that “an election shall be held in said town on the second Tuesday of April, 1870, and on the second Tuesday of April in each year thereafter, for the election of trustees and town officers.” From these and other provisions of the acts of 1867 and 1869, which might be cited, the conclusion is plain that the legislature designed that the town officers and trustees should all be elected on the same day. When, therefore, the day of election for town officers was changed by law, we are of opinion the law necessarily changed the day for the election of trustees. The change followed as a logical result. The provisions of the acts of 1867 and 1869, when considered in connection with the constitution and the Township Organization law, clearly lead to this conclusion.

The judgment will be affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Chief Justice Scholfield

license: Public Domain

text:
    John Spellmyer et al. v. James H. Gaff.

      Filed at Ottawa November 17, 1884.

    1. Amendment of sheriff’s return—lapse of time. A sheriff’s return of service of a chancery summons was allowed to be amended after the lapse of sixteen years, upon satisfactory evidence, so as to show the fact of a legal service as to minors, there having been no intervening adverse rights acquired to be injuriously affected thereby, and it was held proper.
    2. If, however, the evidence on a motion for leave to a sheriff to amend his return to a summons as to service sixteen years after it was made, leaves it doubtful whether it fails to show the facts truly, the amendment may be refused. So, if third persons have in good faith acted and acquired rights upon the return as made, the amendment should not be made to their prejudice; but when the rights of third parties, acquired in good faith, do not intervene, and the error in the return is beyond question, and the officer is present and desirous of correcting the return, mere lapse of time is no bar to the amendment.
    3. Same—former decision. There is nothing in the case of O’Conner v. Wilson, 57 Ill. 226, to be understood as inconsistent with this ruling. It was not held in that case that such an amendment should not be allowed after the expiration of twelve years,—on the contrary, the court there expressly said a period would not be fixed within which such an application should be made.
    4. Same—admissibility of parol evidence. Where the officer is willing and desirous of correcting his return to process, so as to show a legal service, parol evidence is admissible for the purpose of showing the propriety of amending his return.
    Appeal from the Appellate Court for the Second District;— heard in that court on appeal from the Circuit Court of Livingston county; the Hon. Franklin Blades, Judge, presiding.
    Messrs. Wallace & Terry, for the appellants:
    As to the right to amend the return after so great a lapse of time, see O’Conner v. Wilson, 57 Ill. 232; McCoy v. Morrow, 18 id. 519; Bernard v. Stevens, 2 Aiken, (Vt.) 429; Chicago Planing Mill Co. v. National Bank, 86 id. 587; Thatcher v. Miller, 13 Mass. 271.

      Parol evidence is not admissible to determine the propriety of amending the return. Coughran v. Gutcheus, 18 Ill. 390; Botsford v. O’Conner, 57 id. 72; O’Conner v. Wilson, id. 226; Barlow v. Standford, 82 id. 298.
    Mr. C. C. Straw, for the appellee:
    The indorsement made by the sheriff is not the service, but only affords evidence of that fact. Dunn v. Rodgers, 43 Ill. 262.
    That the lapse of time is not a bar, when no intervening rights have been acquired, see Slicer v. Bank of Pittsburg, 16 How. 571; Chicago Planing Mill Co. v. National Bank, 97 Ill. 294; Church v. English, 81 id. 442; Montgomery v. Merrill, 14 Port. 102; Kirkwood v. Reedy, 10 Kan. 453; Foreman v. Carter, 9 id. 674; Mason v. Messenger, 17 Iowa, 261; Jeffreys v. Callis, 4 Dana, 465; Montgomery v. Brown, 2 Gilm. 581; Mahurin v. Bracket, 5 N. H. 9; Freeman on Executions, sec. 359; Whittier v. Varney, 10 N. H. 291.
    Amendments have been allowed years after the making and filing of the original returns. Freeman on Executions, sec. 359; Woodward v. Harbin, 4 Ala. 534; Jarboe v. Hall, 37 Md. 345; Williams v. Houston, 71 N. C. 163; Muldrow v. Bates, 5 Mo. 214; Blaisdell v. Steamer, 19 id. 157; Irvin v. Scobee, 5 Litt. 70; Thatcher v. Miller, 11 Mass. 413; Rucker v. Harrison, 6 Munf. 181; Scott v. Trustees, 5 U. C. Pr. 228.
    An amendment was allowed after twenty years, in Gilman v. Stetson, 16 Maine, 271, and an amendment was allowed after twenty-one years, in Scruggs v. Scruggs, 46 Mo. 271.
    It is established by an overwhelming weight of authority that a return may be amended after the officer who made it has gone out of office. Adams v. Robinson, 1 Pick. 461; Wilson v. Ray, Charlt. (T. U. P.) 109; Johnson v. Donnell, 15 Ill. 97; Morris v. Trustees, 15 id. 266; Gray v. Caldwell, Hard. 63; Newton v. Prather, 1 Duv. 100; Hutchins v. Brown, 4 Har. & McH. 498; Miles v. Davis, 19 Mo. 408; Keen v.
      Briggs, 46 Maine. 467; Palmer v. Thayer, 28 Conn. 237; Bean v. Thompson, 19 N. H. 290.
    An ex-sheriff was permitted to amend a return made by his deceased deputy, in Avery v. Bowman, 39 N. H. 393; Cushing v. Laird, 4 Ben. 70.
    An amendment was permitted after the officer had been suspended by an act of the legislature, and his functions transferred to another, in Blaisdell v. Steamer, 19 Mo. 157.
   Mr. Chief Justice Scholfield

delivered the opinion of the Court:

On the 31st of August, 1882, James H. Gaff, as ex-sheriff of Livingston county, presented his motion to the circuit court of that county for leave to amend the return made by him, while sheriff of the county, on a certain summons. Those interested, in opposition to the motion, were made defendants, and appeared and resisted its allowance.

It is conceded by both sides to be true, namely, that William F. Spellmyer, on the 4th of February, 1864, executed a mortgage upon an eighty and a forty-acre tract of land, specifically described in the record, situated in Livingston county, to secure the payment of his promissory note, to William D. Yansant. Soon afterwards, Spellmyer died intestate, leaving a widow, Sarah, and three children,—John, Laura and Caroline,—his heirs at law. After the death of Spellmyer, his widow, Sarah, intermarried with James Warner, and he thereafter resided with her and the children of Spellmyer, on the mortgaged land, as the head of the family, and cultivated the land for a support for such family for several years. While he was thus residing with them on the mortgaged land, as the head of the family, (in December, 1866,) the note secured by the mortgage not having been paid, Yansant filed his bill to foreclose the mortgage, in the Livingston circuit court, making the said James Warner, the said Sarah, his wife, and the said John, Laura and Caroline Spellmyer, defendants. Summons was thereupon issued, in due form, and placed in the hands of James H. Gaff, then sheriff of Livingston county, to execute. He returned this summons on the 22d of December, 1866, with this indorsement thereon:

“I have executed this writ by reading the same to and leaving a true copy of the same with James Warner and Sarah Warner, and leaving a true copy of the same at the regular place of abode for each of the within named John Spellmyer, Laura Spellmyer, and Caroline Spellmyer, with a white person over ten years' of age, and explaining to him the contents of the same, this 22d day of 'December, 1866.
J. H. Gafe,
Sheriff of Livingston county, Ill.

On the 30th of January, 1867, the circuit court of Livingston county rendered a decree in the cause, taking an account and determining the amount due on the mortgage, and directing a sale of the mortgaged property for the payment of that amount, etc., and on the 27th of April, 1867, the mortgaged property was sold, pursuant thereto, by the master in chancery, and F. Plumb became its purchaser. On the 11th of January, 1868, Plumb assigned and transferred his certificate of purchase to said Sarah Warner, and on the 17th of August, 1868, the master in chancery executed a deed of the property to her. On the 12th of October, 1878, she conveyed the lands to Albert Lawrence, Jr., and O. P. Bourland, and on the 13th of November, 1879, Lawrence conveyed his interest therein to Edgar Cook. On the 9th of November, 1880, Cook and Bourland conveyed the forty-acre tract to F. Kennedy, and on the 18th of May, 1881, they conveyed the eighty-acre tract to A. C. Fosdick. On the 5th of April, 1882, Fosdick conveyed this tract to W. A. Haynes, H. P. Gordon, and W. G. Haynes.

It was offered to introduce Gaff and other persons, whose affidavits had been filed with the motion, and examine them orally, as witnesses, touching the question of service, and allow the defendants opportunity to cross-examine them, severally ; but the defendants waived this, and consented that the affidavits might be read and considered, for the purposes of the motion, as the evidence of such persons, respectively. The respect wherein leave was asked to amend the return was, to state that the true copy of the summons returned as left “at the regular place of abode for each of the within named John Spellmyer, Laura Spellmyer, and Caroline Spellmyer, with a white person over ten years of age, and explaining to him the contents, ” was in fact left for each of them, at their usual place of abode, with the said James Warner, a white person, (who was the head of the family of said Spellmyer,) over the age of ten years, and residing with them, and informing him of the contents. The circuit court allowed the amendment to be made, and this, on appeal to the Appellate Court for the Second District, was affirmed.

The appellants do not object that the evidence is insufficient to warrant the action of the circuit court, and there is not the slightest ground for objection in that regard. Gaff shows that he thoroughly recollects what he did in making service of the writ, and gives reasons which are entirely satisfactory why he should have such recollection. He is corroborated, in all respects, by the testimony of Warner, and they are both, to a considerable extent, corroborated by others. That the service was, in fact, properly made, there can be no reasonable doubt. The only objection urged to the correction of the return is the great lapse of time,—almost sixteen years,—that has intervened. This is undoubtedly a very important circumstance to take into consideration in passing upon such a question, but it is not necessarily controlling.

Counsel for appellants seize upon an expression in O'Conner v. Wilson, 57 Ill. 226, and insist that it holds that such an amendment should not be allowed after the expiration of twelve years. This is a misapprehension. As counsel concede, the court there expressly said a period would not he .fixed within which such an application should be made; and the language used with reference to the time that had there elapsed, was with special reference to the facts of that case. In Church v. English, 81 Ill. 442, an amendment of a record showing that an order for change of venue had been made, .was allowed after the expiration of ten years, and it was said: “As between the original parties, we are not aware of any limitation as to the time in which such amendments may he allowed. No reason suggests itself why such amendments may not be made at any time, so long as anything definite and certain remains to amend by. ” And in Planing Mill Co. v. National Bank, 86 Ill. 690, in speaking of the language of the opinion in O'Conner v. Wilson, supra, it was said: “Nor was it determined in the O'Conner case what would be a reasonable time within which to ask leave to have the amendment made, and it will not be necessary to determine that point here. ” Mere lapse of time, where the rights of third persons will not be injuriously affected, as a general rule will not bar an amendment. Gilman v. Stetson, 16 Maine, 124; Scruggs v. Scruggs, 46 Mo. 271.

But counsel contend parol evidence is not admissible to determine the propriety of amending this return, and they cite Coughran v. Gutcheus, 18 Ill. 390, Botsford v. O’Conner, 57 id. 72, O’Conner v. Wilson, supra, and Barlow v. Standford, 82 id. 298. The authorities cited do not sustain the position. The last three cited cases hold simply that the return of the officer can not be contradicted by parol testimony. No one asserts the contrary in the present case. The question, here, is not whether the officer’s return shall be contradicted, but whether he shall, himself, he allowed to amend it. In the first cited case the question was, whether the court would hear oral testimony as to the character of judgment it was intended should be rendered in a particular case, and it was held such evidence is inadmissible,—a question not at all analogous. Whether amendments of this character shall be allowed after the lapse of time, depends upon the peculiar circumstances of the case, and which, oftentimes, can alone be disclosed by oral evidence. If it is at all doubtful whether there is error in the return, the amendment ought not to be allowed. If third parties have in good faith acted and acquired rights upon the return as made, the amendment should not be allowed; but where the rights of third parties, acquired in good faith, do not intervene, and the error in the return is beyond question, and the officer is present and desirous of correcting the return, it is not perceived why any length of time should bar the amendment. The rights of third parties, here, instead of being adversely affected by the return, are promoted by it. The property has passed, by successive sales and transfers, to what we are to assume are purchasers in good faith, relying upon the decree under which the property was sold as authorizing the sale and divesting appellants’ .title. Appellants have taken no steps to remove the cloud thus east upon their title, nor to repossess themselves of the land. This court has said, and truly so, that the indorsement made by the sheriff is not the service, but only affords evidence of the fact; and so where the sheriff amends the return, he does not change the fact, but the evidence, only, of the fact. Dunn v. Rodgers et al. 43 Ill. 260. See, also, Montgomery v. Brown, 2 Gilm. 581.

Appellants’ position, therefore, is, notwithstanding they had the service to which they were entitled by law, and they have long since parted with the possession of their property, which has passed to bona fide purchasers, yet the court should, for the mere technical reason of the lapse of time, refuse to allow that evidence put upon the record. The position is utterly untenable.

We think the court properly allowed the amendment to be made. The judgment is affirmed.

Judgment affirmed.


author: Mr. Justice Sheldon Mr. Justice Craig,

text:
    Clinton L. Conkling v. Nicholas H. Ridgely & Co.
    Filed at Springfield September 27, 1884.

    1. Confession of judgments in vacation—what is a “vacation,” within the meaning of section 66 of the Practice act. Where a circuit court adjourned over for thirty-two days, it was held that the period intervening in which the court did not sit and transact business was to be regarded as vacation, within the meaning of that word in section 66 of the Practice act, authorizing judgments by confession in vacation. But the word is not to be understood as embracing all the time the court is not actually in session, or as embracing the time of an adjournment from day to day.
    2. Same—by whom the entry may be made—powers of the judge. The judge of a circuit court has no power to make an order for the entry of a judgment by confession in vacation.' Nor does the statute authorizing judgments to be confessed in vacation, in terms authorize the clerk of the court to enter them upon the record, but by necessary implication it confers the power.
    3. Same—entry of judgment, whether a judicial act. The entry of a judgment by confession in vacation, by the clerk of the court, is not a judicial act, though the statute gives such judgment the same force and effect as judgments entered in term time.
    4. Terms of court—their duration—power of the judges. Section 18 bf the act of February 22,1872, confers upon circuit courts, when in session, the power to adjourn to any day not beyond the first day of the next term fixed by law; and the effect of the legislation now in force is to change the former law in respect to the peremptory adjournments made necessary by the laws before in force, and to leave the duration of the terms of the courts practically at the discretion of the judges.
    5. Construction of statutes—remedial. In construing a remedial statute, the courts should consider the old law, the mischief, and the remedy; and the new act should be so construed, if it can fairly be done, as to suppress the mischief in the old law and advance the remedy.
    Writ of Error to the Appellate Court for the Third District ;—heard in that court on writ of error to the Circuit Court of Sangamon county; the Hon. Charles S. Zane, Judge, presiding.

      Mr. James C. Conkling, for the plaintiff in error:
    The statute does not confer upon clerks the power to enter confessions of judgment in vacation, and it must be ordered by the judges. The clerk being a ministerial officer, can not exercise judicial powers. Freeman on Judgments, sec. 2; Field v. People, 2 Scam. 79; 2 Sellon’s Practice, 43; Impey’s Practice, 448.
    As to the power of judges in vacation, see Hurd’s Stat. 1878, chap. 37, secs. 47, 49.
    When a court is open, the term continues until it is ended by order of final adjournment, or until the efflux of the time fixed by law for its continuance. Labadis v. Dean, 47 Texas, 100.
    Every term continues until the call of the next succeeding term, unless previously adjourned sine die. Freeman on Judgments, sec. 90; Townsend v. Chew, 31 Md. 247.
    The power of a court over its judgments during the entire term at which they are rendered, is unlimited. Ashley v. Nyde, 5 Ark. 100; Underwood v. Sledge, 27 id. 295; State v. Treasurer, 43 Mo. 228; Doss v. Lynch, 14 How. 297; Taylor v. Lusk, 9 Iowa, 444.
    A court held by adjournment is not a new term, but a continuance of the former term. Smith v. Smith, 17 Ind. 75.
    The general rule is, that the term is to be considered as one day. Barrett v. State, 1 Wis. 175.
    When the February term of the district court was continued to the 24th of May thereafter, and the court did not convene on the 24th, pursuant to adjournment, the court is legally open until it adjourns sine die, or expires by law. State v. Bohan, 19 Kan. 28.
    A court legally open for all general purposes continues in session until it adjourns sine die, or expires by law. Railroad Co. v. Hand, 7 Kan. 380.
    A vacation is the time between the end of one term and the beginning of another. 2 Abbott’s Law Dic. 625; 6 Jacobs’ Law Die. 323.

      A “term” is the space of time in which a court holds a session. (Bouvier’s Law Die.) It is a definite time prescribed by law for the administration of judicial duties. Horton v. Miller, 38 Pa. St. 270.
    A term of the circuit court continues until the call of the next succeeding term, unless it affirmatively appears that before that time it was, by order of the judge, adjourned sine clie. Freeman on Judgments, sec. 90; Townsend v. Chew, 31 Md. 247.
    The court having been regularly convened, continues open until actually adjourned. People v. Central City Bank, 53 Barb. 412.
    The terms of a court fixed by law are terms whether there is a judge to hold court or not. Downey v. Smith, 13 Ill. 671.
    During the term, in the absence of the judge, ministerial officers have no power to open or adjourn court. Wright v. Wallbaum, 39 Ill. 555.
    Messrs. Palmers, Robinson & Shutt, for the defendants in error:
    The entry of a judgment by confession is not a judicial act. Durham v. Brown, 24 Ill. 93; Ling v. King, 91 id. 571; Keith v. Kellogg, 97 id. 147.
    The judge would have no power to order the entry of judgment in vacation unless it was conferred upon him by statute. Ling v. King, 91 Ill. 147.
    The statutes relating to the vacation powers of judges do not include the power in question. See statute cited by plaintiff in error.
    The practice sanctions the entry of judgments in vacation by the clerk.
    By the adjournment to a distant day the court parted with all jurisdiction, completely, until the day fixed for the resumption of business, and the intervening time may be taken as a vacation.

      As to the meaning of the words “terms” and “vacations,” reference is made to 2 Abbott’s Law Dic. 553; 2 Bouvier’s Law Dic. 579; 2 Wharton’s Law Lex. 1001; Webster’s Dic.
    The rule in construing a remedial statute, .though it maybe in derogation of the common law, is, that everything is to be done in advancement of the remedy that can be done consistently with any fair construction that can be put upon it. Chicago Railroad v. Dunn, 52 Ill. 260.
    The 66th section of the Practice act is remedial, and should be liberally construed, in order to effect the intention of the legislature. Huguet v. Wallace, 4 Dutch. 523; Middleton v. White, 35 Ill. 114.
   Mr. Justice Sheldon

delivered the opinion of the Court:

This was a motion in the circuit court to set aside a judgment by confession in favor of N. H. Eidgely & Co., against Kimber, Eagsdale & Co., before the clerk of the circuit court of Sangamon county, Illinois, as of vacation. The regular term of the Sangamon county circuit court commenced October 2, 1882, when the court convened, and continued to transact business until December 27, 1882, at which time an order was entered adjourning the court to January 29, 1883, at which date the court again opened, and transacted business until February 3, 1883, when it adjourned sine die. On January 12, 1883, Kimber, Eagsdale & Co., by their attorney, appeared before the clerk of the said circuit court and confessed a judgment in favor of N. H. Eidgely & Co., for the sum of $36,319.89, upon certain promissory notes, for which sum judgment was accordingly entered, upon which an execution was afterward issued. On the 29th day of January, 1883, the assignee of Kimber, Eagsdale & Co., under a voluntary assignment, entered his motion in said court to set aside the judgment and vacate the execution, which motion the court overruled. On appeal to the Appellate Court for the Third District, the judgment overruling said motion was affirmed, and the assignee appealed to this court.

The chief question presented upon this record is, whether in this case the 12th day of January, 1883,—the day this judgment by confession was entered,—was in term time or in vacation, within the meaning of our statute authorizing the entry of judgments’by confession in vacation. Judgments by confession can be entered before the clerk only in vacation. During term time they must be entered in open court. The judgment here was entered before the clerk as in vacation. But it is contended by plaintiff in error that it was not in vacation when the judgment was entered, but that the 12th day of January, 1883,—the time the judgment was confessed and entered,—was a day in term time; that it was part of the preceding October term, which commenced on October 2, 1882, and was not adjourned sine die until the 3d day of February, 1883, and that not having been taken in open court, the judgment was null and void. No doubt an application of the strict common law definition which we find of the term “vacation, ” to-wit, “a vacation is all the time between the end of one term and the beginning of another, ” (6 Jacobs’ Law Die. 323,) would make the time of the entering of this judgment not to be in vacation, as the October term, which commenced on October 2, 1882, did not end by final adjournment until February 3, 1883. The inquiry is, whether we must adopt this as the meaning of the word “vacation, ” in the construction of the 66th section of the Practice act, authorizing the confession of judgments in vacation.

We think that under this act the term “vacation” may well be given a different meaning from what it had at common law, as above given. Under the earlier organization of courts in England, “terms ” of the courts were four periods in each year. They commenced on fixed days, and had a fixed time of termination, and they aggregated ninety-one days. The vacations embraced all the days in 'the year not -included in the “terms.” Any such a period of recess of a court of more than a month’s duration, as we find in this case, was unknown in that system. The early laws of this State, prior to December 9, 1871, provided for dividing the State into judicial circuits, and fixed the times for the commencement of the terms of the circuit courts in each county. In no case did the statutes in express terms fix the duration of the terms of such courts, though as the judges were required to hold terms in the different counties on fixed days, and had no authority to hold court in one county at a time the law required them to hold court in another, and only one term of a circuit court could be held or be open at any one time in a circuit, it followed, as a necessary construction of the statute, that upon the occurrence of the time fixed by law for the opening of the court in any one county in a circuit, the circuit courts in every other county stood adjourned until court in course. (Archer v. Ross, 2 Scam. 303.) In Cook v. Skelton, 20 Ill. 107, it was recognized that “the custom has always prevailed of adjourning from day to day, and for such other short periods as the convenience of the court and the dispatch of business might require. ” By the first section of the “Act to provide for holding regular and special terms of the circuit court in two or more counties in the same circuit at the same time,” approved December 9, 1871, it was provided that terms of the circuit court might be held in two or more counties in the same circuit at the same time, and that it should not be necessary to close any term in any county before the business of that term was disposed of, in order to begin a term in any other county in, the same circuit, if any circuit judge of the State could be had to preside over either of said terms. The 18th section of the act of February 22, 1872, conferred upon the circuit courts, when in session, the power to adjourn to any day not beyond the first day of the next term of the court in that county fixed by law. The effect of these statutes was to change the law in respect to the peremptory adjournments made necessary by the laws in force before, and to leave the duration of the terms of the counts practically at the discretion of the judges. By the 27th section of chapter- 83, of the Revised Statutes of 1845, it was provided that “any person, for a debt bona fide due, may confess judgment by himself, or attorney duly authorized, with or without process.”

Thus stood the general law upon this subject until the passage of the act in regard to practice in courts of record, approved February 22, 1872, (Laws 1871-72, p. 348,) the 65th'section of which, being identical with the 66th section of the present Practice act, provides that “any person, for a debt bona fide due, may confess judgment by himself, or attorney duly authorized, either in term time or vacation, without process. Judgments entered in vacation shall have like force and effect, and from the date thereof become liens, in like manner and extent as judgments entered in term. ” In Middleton v. White, 35 Ill. 114, it was said, in reference to a similar local law passed in 1857, for the benefit of Kane and three other counties, “the counties of Kane, etc., are large commercial counties, and required greater facilities for the transaction of business than theretofore existed in them, and to meet this exigency the act of 1857 was passed. ”

There are law writers who give a broader definition of the term “vacation” than the one above quoted. Abbott says: “Any continuous authorized sitting of the courts is probably known in most of the States as a term. ” (2 Abbott’s Law Die. 552.) Bouvier defines “term” as “the space of time during which a court holds a session.” Burrill says, in defining the word vacation: “In practice: intermission of judicial proceedings ; the recess of courts; the time during which courts are not held. ” He also gives, as one of the definitions of the word, that quoted above from Jacobs. Wharton defines the word vacation: “Intermission of judicial proceedings, or any other stated employment; recess of courts or senates. ”

The statute in question is a remedial one, and a point to be considered in the construction of all remedial statutes is, the old law, the mischief, and the remedy; and it is the business of the judges so to construe the act as to suppress the mischief and advance the remedy. (1 Blackstone’s Com. 87.) As was said in Railroad Co. v. Dunn, 52 Ill. 260: “The rule in^construing a remedial statute, though it may be in derogation of the common law, is, that everything is to be done in advancement of the remedy that can be done consistently with any fair construction that can be put upon it.”

In accordance with what was said in Middleton v. White, as before cited, greater facilities in the taking of judgments by confession were required than was afforded by the former law limiting the taking of such judgments to open court in term time, to meet which exigency the 18th section of the statute of February 22, 1872, was enacted, authorizing judgments by confession in vacation, as well as in term time. That is, practically, to allow judgments to be confessed at any time, as, according to the practice which had before prevailed, it would, essentially, always be either term time or vacation. We would not be understood as holding that under this act, vacation means all the time the court is not in actual session, or that it embraces .the time of adjournment from day to day; but we are clearly of opinion that where there is the adjournment of court for any such period of time as is found in the present case, the true construction of this 66th section of the Practice act requires that the broader definition which we find of the term “vacation” should be adopted, and that the time of recess should be considered as in vacation, for the purpose of admitting the taking of judgments by confession. This we regard as the practical and reasonable interpretation, and the one that should be given in furtherance of the intention of the act, and in advancement of the remedy which it seeks to give.

The propriety of this construction finds illustration in the condition, as counsel for defendants in error state, which existed in the circuit from which this cause comes, at the time of the preparation of their brief,—April 16, 1884. It is said that on that day, in three of the six counties constituting the circuit, sessions of court were being held by judges present; that in the three other counties the courts stood adjourned, but not finally, under the judge’s order. Under the construction contended for by counsel for plaintiff in error, judgments by confession could not at that time have been taken in the three latter counties in which the.courts stood adjourned, because it was term time there, although the judges of the circuit were bolding actual sessions of their courts in the other three counties. Manifestly, such was not the intention of the act. The term time of the courts in that circuit was in the counties where the courts were being actually held, and in the other counties it was in reality vacation, within the intendment of this 66th section of the Practice act, so as to admit the taking of judgments by confession as in vacation. To hold otherwise would be to adopt a legal fiction, and give it effect over what was the real condition, to the denial of the enlarged remedy which was intended to be given by the statute.

A point is made that the clerk of the circuit court had no authority to enter a judgment by confession in vacation without an order of the judge directing,it to be done. It has been repeatedly held that the entry of a judgment in vacation is not a judicial act. ([Durham v. Brown, 24 Ill. 93; Ling v. King, 91 id. 571.) With us the judge has no power to make orders in vacation, unless it be conferred on him by statute. (Ling v. King, supra.) The statutes giving powers to the judges in vacation do not include the power to order the entry of judgments by confession. It is true the statute does not - in terms authorize the clerk to enter up the judgment; but as it provides that judgments may be confessed in vacation, it by necessary implication gives such authority.

Because in the several local laws authorizing judgments by confession, which had theretofore been passed for the benefit of particular named counties, there was the provision that such judgments might be entered “upon filing the proper papers with the clerk of the court, ” it is argued that the absence of such a provision in this general act denotes the purpose not to confer upon the clerk the power to enter such a judgment. This can not truly be said, in view of the fact that the want of such power would render the act of no effect, and the omission of that provision signifies no more, we think, than that it was deemed superfluous to express that which was necessarily implied.

The judgment of the Appellate Court must be affirmed.

Judgment affirmed.

Mr. Justice Craig,

dissenting:

I do not concur with a majority of the court in the decision of this case, and I have concluded to express my own views in reference to the questions involved.

Section 66, chapter 110, of the Revised Statutes of 1874, provides: “Any person, for a debt bona fide due, may confess judgment by himself, or attorney duly authorized, either in term time or vacation, without process. Judgments entered in vacation shall have like force and effect, and from the date thereof become liens, in like manner and extent as judgments entered in term.” Under what was supposed to be the authority conferred by this statute, on the 12th day of January, 1883, the judgment in question was confessed before the clerk of the circuit court of Sangamon county, and entered up in due form. It appears from the record that the fall term of the circuit court of Sangamon county commenced on the 2d day of October, 1882, and continued in session from day to day until December 27, when an order was entered adjourning the court until January 29, 1883, when the court convened, and continued with the business of

the term from day to day until February 3, 1883, when court adjourned sine die, or until court in course. If the judgment in question was confessed in term time, it is manifestly void, as the statute only authorized a judgment by confession before the clerk of the court in vacation. But it is contended that the period of adjournment from December 27 to January 29, within the meaning of the statute, is to be regarded as vacation, and hence the judgment is valid.

The important inquiry then presented by the record is, what is the proper construction to be placed upon the words of the statute, “in term time,” and the words, “in vacation.” This statute being in derogation of the common law, in passing upon it, the well known rule that it should not be enlarged by construction, must be kept in view.

Words and phrases in a statute, the meaning of which have been ascertained, are, when used in a subsequent statute, to be understood in the same sense. (Potter’s Dwarris, 274.) If, therefore, the words “in term time, ” and “vacation, ” at the time they were incorporated into the statute had a well known legal meaning, it will be presumed that the legislature intended they should be used in that sense. In 6 Jacobs’ Law Dic. 323, the author defines vacation as follows: “Is all the time between the end of one term and the beginning of another, and it begins the last day of every term as soon as the court rises.” Bouvier, (vol. 2, page 619,) defines the word vacation as follows: “That period of time between the end of one term and beginning of another.” In speaking of the word term, the same author says: “The whole term is considered as but one day, so that the judges may at any time during the term revise their judgments.” These definitions of the words used are in harmony with those given by other law writers. Indeed, no writer that we have examined gives any other or different meaning of the terms used, and we think it may be safely said that the words, at the time the statute was adopted, had a well' known legal meaning.

But aside from this view of the question, it seems to be well settled by decisions of courts, that “vacation,” when used in reference to courts, is that time between the end or final adjournment of a term and the beginning of another. In Mechanic’s Bank of Alexander v. Withers, 6 Wheat. 106, where the regular term began on the third Monday in April and continued until the 16th of May, when it adjourned to the fourth Monday of June, it was held that the adjournment from the 16th of May to the fourth Monday in June was but a continuation of the April term. The same doctrine was announced in Commonwealth v. Sessions of Norfolk, 5 Mass. 436, where it is said: “It is well understood by the people generally, that a court holden by adjournment is not a new term, but a continuance of' the former term of court, and it is not unfrequent for courts of sessions to adjourn for the accommodation of persons having business in it. ” In Lieb v. Commonwealth, 9 Wall. 200, it was held that a day to which a court was adjourned is a part of the same term at which the adjournment was made. In Sawyer v. Bryson, 10 Kan. 200, it was held that an adjourned term of court is in no proper sense an independent, distinct term, but merely a prolongation or continuance of that already begun. In Smith v. Smith, 17 Ind. 75,-an adjourned term was held to be a part of the regular term.

Under section 35, chapter 37, of the Be vised Statutes of 1874, the circuit judge had authority to adjourn from day to day, or to any day not beyond the first day of the next term of court, and the adjournment shown by the record was authorized by this statute. But we are satisfied that the adjournment from December 27 to January 29 did not close the term, nor was the interim a vacation, within the meaning of the statute. The interim could not be vacation, as the full term of court had not ended. No final adjournment of the term had taken place, and hence vacation had not commenced. If there was a vacation here, and the clerk was authorized to act because the court had adjourned for a period of thirty-two days, for the same reason and upon -the same principle he might act if the adjournment was but for ten days, or one day, or even one hour. I do not think the statute will bear such a construction. Suppose the court had adjourned for two hours, instead of thirty-two days, and defendant in error had appeared before the clerk and confessed the judgment, would any reasonable person contend.that the judgment was confessed in vacation ? I apprehend not; and yet in principle there is no difference between a short adjournment and a long one, unless the adjournment exceeds the time provided by the statute. It is a mistake to suppose that on the 12th day of January, when the judgment was entered, the court had no power to act. The court has the power to review orders made during the term, at any time before final judgment, and had the court seen proper, on the 12th day of January the order of adjournment might have been vacated, and upon a proper showing the business of the court resumed. At all events, I am satisfied that the vacation intended by and within the meaning of the statute can not begin until a final adjournment of court has taken place, and as the court had not adjourned for the term when the judgment was confessed before the clerk, the judgment was unauthorized, and void.


author: Mr. Justice Mulkey

text:
    Henry L. Schmidt et al. v. Frank G. Braley.

      Filed at Ottawa November 17, 1884.

    1. Chancery—setting aside interlocutory orders, and allowing a new answer. A motion by a defendant in a bill, to set aside an interlocutory decree and for leave to file a new answer, is addressed to the sound discretion of the court, with which this court will not interfere, unless it can see that such discretion has been abused.

      2. Same—practice in respect to filing new answer. The proper practice in a case where a defendant desires to file a new answer to the bill, is to prepare the answer and submit it to the court with the motion for leave to file it. If the proposed new answer is frivolous, impertinent or scandalous, the court should not allow it to be filed. ,
    3. Presumptions in support of, judgment, or decree. Appellate tribunals will indulge in all reasonable presumptions in favor of the action of the court below, in order to sustain the judgment or decree reviewed.
    Appeal from the Superior Court of Cook county; the Hon. George Gardner, Judge, presiding.
    On the 22d of June, 1882, Frank G. Braley, the appelee, exhibited his bill in the Superior Court of Cook county, against Frederick Kirchoff, Henry Schaller, and Henry L. Schmidt, praying that a certain deed absolute in form, executed by himself and wife on the 24th day of January, 1879, to Kirchoff and Schaller, for a certain'lot and premises in the city of Chicago, be declared a mortgage, and that complainant be permitted to redeem therefrom upon the terms and conditions specified in a written agreement executed by Schaller and Kirchoff, bearing date December 20, 1878, and in pursuance of which the said deed from Braley and wife had been executed. The defendants appeared by their solicitor, Eugene E. Prussing, and filed a joint and several answer to the bill. There was a hearing of the cause upon the pleadings and proofs, resulting in a decree finding the equities with the complainant, and the cause was referred to the master to state the account. While the case was in this condition, Prussing withdrew from it as solicitor for defendants, and Martin Beam, Esq., appeared for them in his stead. The latter, on the 28th of May, 1882, entered a motion in the cause that the proceedings theretofore had in it be set aside, and that the defendants be permitted to file a new answer. The motion was denied, and a final decree entered in the cause ip conformity with the prayer of the bill, and the defendants have appealed from that decree.

      Mr. Martin Beam, and Mr. Henry Booth, for the appellants.
    Mr. A. A. Exline, for the appellee.
   Mr. Justice Mulkey

delivered the opinion of the Court:

It is in effect conceded that the decree, upon the pleadings as they now stand, is correct; but the contention of appellants is, that the court erred in overruling appellants’ motion to set aside the interlocutory decree, and in not permitting them to file a new answer, and that the decree, for these reasons, should be reversed. The application in question was a matter addressed to the sound discretion of the court, and this court will not interpose unless it is able to say there was an abuse of that discretion. That we can not do. The affidavits offered in support of the motion do not present such a state of facts as made it imperative on the court to set aside the proceedings and permit a new answer to be filed, and such being the case, we are not permitted to interfere with its action in the premises.

But there is another insuperable objection to the position of appellants. It does not appear from the record what was the character of the new answer which appellants proposed to file, nor, indeed, does it appear that an answer had been prepared at all. How can this court say there was error in refusing to permit an answer to be filed which is not embodied in the record ? Even if we assume one was prepared by counsel, which we have no right to do, still we can not judicially know what it contained, and must presume it was of such a character as warranted the court below in refusing to permit it to be filed.

It is a familiar doctrine that appellate tribunals will indulge in all reasonable presumptions in favor of the action of the court below, in order to sustain the judgment or decree reviewed. Applying this doctrine to the case in hand, it is clear we would not be authorized to disturb the decree on the ground suggested, for, assuming an answer to have been prepared, and submitted to the court with the motion, as should have been done, for aught that we know it may have been frivolous, impertinent or scandalous, in either of which events the court should not have allowed it to be filed. The proper practice in such cases is to prepare the answer and submit it to the court with the motion for leave to file it. (2 Daniell’s Chancery Practice', 915.) This was not done,—at least the record does not show it to have been done, which, in legal effect, amounts to the same thing.

Upon the record before us we can not do otherwise than to affirm the decree.

Decree affirmed.


author: Mr. Justice Dickey

text:
    John T. Temple et al. v. John R. Lemon.

      Filed at Ottawa November 17, 1884.

    1. Stockholders—condition to their liability—necessity of the entire capital stock being subscribed. There is no liability on a subscription to the stock of a corporation, the amount of whose capital stock is fixed, until the whole amount of the stock is subscribed.
    2. A subscriber to the capital stock of a proposed corporation, when the full amount of stock fixed by law or by the action of those connected therewith is not subscribed, can not be held liable individually for a debt of such corporation, unless for some cause he has estopped himself from alleging that the whole of the fixed capital stock was never subscribed.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. George Gardner, Judge, presiding.
    Mr. John S. Miller, for the appellants.
    Mr. F. W. S. Brawley, for the appellee.
   Mr. Justice Dickey

delivered the opinion of the Court:

This is a creditor’s bill, brought on August 26, 1880, by Lemon, in the Superior Court of Cook county, against the Industrial Life Association, located in the city of Chicago, and John Temple, John H. S. Quick, and others. The complainant shows that he recovered a judgment against that corporation at the January term, 1877, for $1872.24, and that an execution upon that judgment was issued January 6, 1877, which, on April 6, 1877, w'as duly returned nulla bona. Complainant seeks a decree against Temple and others, upon the allegation that they are, respectively, indebted to the corporation upon their several subscriptions to its capital stock. They, respectively, deny the allegation as to their indebtedness. Issues were formed by answers and replications, and proofs taken. The cause was heard upon the pleadings and proofs, and a decree rendered July 16, 1883, finding that the judgment was obtained, and execution issued and returned, as alleged in the bill; that there is now due to Lemon from the association, $2613.15; that before the judgment, Temple had subscribed for one hundred shares of the stock, at $100 a share, and by reason of the same remaining unpaid, is now indebted to the corporation in a sum greater than the amount due on the judgment; that before judgment, Quick had subscribed for fifty like shares, and by reason of non-payment thereof is also indebted to the corporation' in a sum larger than what is due upon the judgment; and decreeing that the defendant corporation, and Temple and Quick, pay to complainant the amount so'found due to him from the corporation, with interest from the date of the decree, and also his costs. From this decree Temple and Quick each appealed to the Appellate Court, where the decree was affirmed, and they bring the cause here by appeal.

The proof shows that on February 16, 1865, an act was approved declaring Abel P. Buckley, and others named, and their associates, successors and assigns, a body corporate, under the name of “the National Insurance Company of Illinois, ” with full power to transact an accident and life insurance business, and a general insurance business; to establish agencies in or out of this State; to make by-laws for the management of" its affairs, with a provision that the act shall be void unless the directors organize the company at Morris, in the county of Grundy, within one year from the passage of the act. The charter gives no directions as to the mode of organization, or what shall constitute an organization,—in fact does not require, except by implication, that there shall be directors, makes no express provisions for issuing any stock or receiving subscriptions to the stock, and says nothing about the amount of stock. Power is given “to make insurance and take risks, * * * and charge and receive * * * premiums therefor, * * * either upon the mutual or stock principle, or both." This charter declares the corporation subject to the “operation of such general laws as may hereafter be passed upon the subject of insurance companies. ” The proof also tends to show that an organization of some kind was effected at Morris within the year, sufficient to keep alive the charter; but it is not shown that any stock was subscribed within the year, or that any thing was done more than the election of officers by the corporators named in the act. The proof further shows meetings of the corporators from time to time, and successive elections of officers, until March 3, 1873, when, at a meeting held at Morris, the name of the corporation was changed to that of the Prudential Life Association, and its place of business was changed to Chicago. The subscriptions to stock made by Temple and by Quick, respectively, were made after this change of name and location of the company, and on their face aré payable to the “Prudential Life Association of Chicago. ” The proof further shows that the capital stock was fixed at $100,000, and had this not been shown, the general act of 1869, in relation to insurance companies, (to which this corporation, by its charter, was made subject,) required a capital of at least $100,000 to be subscribed before any legal organization for business could be accomplished. The proof farther shows that prior to the time of the hearing in this cause not more than about $40,000 had ever been subscribed.

In this state of affairs it can not be held that appellants are indebted on their subscriptions. The bill states that they are “indebted to, ” and “that there is money due from them to the Prudential Life Association, according to the tenor and effect of a certain subscription to the capital stock of said Prudential Life Association. ” There is no liability on a subscription to the stock of a corporation, the amount of whose capital stock is fixed, until the whole amount of the stock is subscribed. Stoneham Railroad Co. v. Gould, 2 Gray, 277; Proprietors Newburyport Bridge v. Storey, 6 Pick. 45, note ; Burt v. Farrer, 24 Barb. 518; New Hampshire Central Railroad Co. v. Johnson, 3 N. H. 390; Allman v. Havana, Rantoul and Eastern Railroad Co. 88 Ill. 521.

In the last named case, Mr. Justice Bbeese, speaking for this court, says: “The question is, and it is the important question in the case, was it in the power of these directors to make this call, the full amount of the capital stock not having been subscribed? This question is to be decided by authority. On reference to a leading work on railways, (1 Redfield on the Law of Railroads, 176,) we find it is there said that it is an essential condition to making'calls in these companies, when the number of shares and the amount of capital is fixed, that the whole stock shall be subscribed before any call can lawfully be made. Reference is made in support of the text to Stoneham Branch Railroad Co. v. Gould, 2 Gray, 277, in which Ch. J. Shaw uses this emphatic language: ‘It is a rule of law too well settled to be now questioned, that when the capital stock and number of shares are fixed by the act of incorporation, (in this case by the articles filed and recorded,) or by any vote or by-law passed conformedly to the act of incorporation, no assessment can lawfully be made on the share of any subscriber until the whole number of shares has been taken. This was held in Salem Mill Dam v. Roper, 6 Pick. 23, and 9 Pick. 187; Cabut and West Springfield Bridge v. Chapin, 6 Cush. 50; Worcester and Nashua Railroad Co. v. Hinds, 9 Cush. 110.’ * * * By the articles of incorporation filed and recorded, a corporation was created as efficient for all the contemplated purposes as if its power had been conferred by a special charter. The capital stock was fixed definitely at $1,000,000, to be divided into 10,000 shares, of $100 each, and that amount must have been subscribed before the corporation could have a legal existence. It was a condition precedent to the legal existence of the company. There is nothing in the ‘articles’ or in the statute which authorizes the corporation to commence operations when a less amount is subscribed. ” See, also, Somerset and Kennebec Railroad Co. v. Cushing, 45 Maine, 124.

If this be the law, it follows that this association could not have maintained any action against appellants upon this subscription, and consequently the complainant’s bill will not lie to enforce payment of such subscriptions, unless for some cause appellants are precluded from alleging that the whole of the fixed capital was never subscribed. We find nothing in the bill setting up any cause or ground of estoppel in this regard, and certainly nothing in the proofs. The appellee testifies that the claim on which his judgment against the corporation is founded, was for services as secretary of this corporation, and for money lent and advanced when he was made secretary, and that before accepting that office and before advancing that money he had inquired into the state of this company, and had ascertained that not more than some $37,500 had ever been subscribed to the stock of this corporation, and that he knew the officers of the company made him secretary, at a salary of $3000 a year, chiefly for the purpose, through his efforts, of getting the balance of the $100,000 of stock subscribed, and that no more "stock was subscribed. He was bound to know the law, and thus knowing the facts he knew that appellants were not liable on their subscriptions, and never would be, unless all the balance of the stock was subscribed. Under these facts he can, as a judgment creditor, have no better position against appellants than that of the corporation itself in an action by it upon their subscriptions. Clearly, no action by the corporation could be sustained unless the whole of the stock necessary to complete the organization were subscribed.

The judgment of the Appellate Court affirming this decree we think was erroneous. The proofs tend strongly to show that appellee was a subscriber to the stock, and as completely one of the promoters of this corporation as was either of the appellants, and that the money he advanced and the services he rendered were advanced and rendered as a promoter. If he were not one of the promoters, and simply served the promoters and advanced money to their use under a contract in form with this inchoate corporation, it may be this would give him a right of action for his demand, against the promoters, as partners; and if a promoter himself, it may be he had equities against his fellows for contribution which might be considered on a bill, wherein the advances of each of the others might be brought in and the accounts adjusted. It may be that on a bill for contribution, against appellants and the'other subscribers "and promoters, he could, and might have a right to, show that equitably he should receive money from them. These questions are not submitted for decision here. No relief of that kind is sought in this case.

The judgment of the Appellate Court is reversed, and the cause remanded, that the decree of the Superior Court may be reversed and the cause remanded, that further proceedings may be had, if necessary, not incompatible with the views herein expressed. , 7

, Judgment reversed.


text:
    Marcus A. Farwell v. Claude J. Adams.

      Filed at Ottawa November 17, 1884.

      Officer—failure to take oath of office and give bond during a contest. The statute requiring a town collector to take the oath of office and file his bond within the time prescribed, applies only to the person declared elected by the canvassing board, and to whom the certificate of election has been given. In case of a contest of the election, it will be sufficient if the contestant qualifies within the said time after a judgment is rendered in his favor to entitle him to the fees and emoluments of the office which may have been received by his unsuccessful opponent.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Circuit Court of Cook county; the Hon. William H. Barnum, Judge, presiding.
    Messrs. Leaming & Thompson, for the appellant.
    Mr. Joseph Wright, for the appellee.
   Mr. Justice Mulkey

delivered the opinion of the Court:

At the annual town election held in the town of South Chicago on the 5tli day of April, 1881, the appellant, Marcus A. Farwell, and Claude J. Adams, the appellee, were opposing candidates, and voted for by the electors of said town, for the office of town collector. Upon a canvass of the returns of the election, the canvassing board, of which appellant was a member, declared Farwell duly elected, whereupon he qualified, and assumed the duties of the office. Adams not being satisfied with the action of the canvassing board, instituted proceedings in the county court of Cook county to contest Farwell’s election, and upon such contest it was found and decreed by the county court that Adams, and not Farwell, was elected to said office, which finding and decree of the court have not been, nor are they novq questioned by appellant. The order in the cause was entered on the 16th of March, 1882, and on the 21st of the same month appellee took and subscribed the oath of office as collector of said town of South Chicago, and filed the same in the office of the clerk of said town, as required by law. It further appears that the decision of the county court declaring appellee entitled to the office has not only been acquiesced in by appellant, but that it was made in pursuance of an express stipulation between the parties, to the effect the order should be entered up at the time and in the manner it was, and that the said Farwell should, at the date of its entry, to-wit, the 16th day of March, 1882, turn over to appellee “said office, and all official papers, documents, books and property in his possession as such collector.” When the election contest was thus terminated, appellee’s term of office wanted but a few days of having expired, and appellant in the meantime had collected the taxes for the current year, made return of the tax books to the proper office, and had settled his accounts as collector. By this settlement he received, as collector, out of the fees of the office, after defraying all expenses of collection, the sum of $1500 cash. Upon this-state of facts appellee brought an action of indebitatus assumpsit in the circuit court of Cook county, against the appellant, to recover the amount of the fees of the office thus received by the latter in excess of the necessary expenses of collecting the same. The circuit court, to whom the cause was submitted, without a jury, found the issues for the plaintiff, and assessed his damages at $1500. Final judgment was entered in favor of the plaintiff for this amount, which, on appeal by the defendant, was affirmed by the Appellate Court for the First District, and the present appeal is brought to review the judgment of the latter court.

It appears from the record, the circuit court announced its conclusion upon the merits of the case a short time before the 16th of March, 1882,—the day on which the formal judgment was entered up; and the evidence tends to show, that upon the court’s announcing its decision, the parties entered into a verbal agreement, to the effect that the entry of the formal judgment should be"postponed to the 16th, in order to give appellant time to make return of the tax books and adjust his accounts as collector, so as to discharge his sureties from their liability on his official bond, and that in consideration of such postponement appellant was to pay to appellee $1500, the net emoluments of the office, and that this agreement was fully executed on the part of appellee. The existence as well as the terms of this alleged verbal agreement, and its subsequent performance by appellee, presented controverted questions of fact, which the trial and Appellate courts must have found adversely to appellant, and in our review of the case here, we must, of course, proceed upon that hypothesis.

It is, in effect, conceded that appellant not having been elected to the office of town collector, he is not entitled to the fees and emoluments thereof; but the contention is, that appellee, though duly elected to that office, by reason of not qualifying in the manner and within the time prescribed by the statute, he himself is in no position to demand them, and hence can not maintain this action. Sections 85 and 86, of chapter 139, of the Revised Statutes, are relied on as sustaining this position. They are as follows:

“Sec. 85. Every person elected or appointed to the office of supervisor, town clerk, assessor, commissioner of highways, or collector, before he enters upon the duties of his office, and within ten days after he shall be notified of his election or appointment, shall take and subscribe, before some justice of the peace or town clerk, the oath or affirmation of office prescribed by the constitution, which shiall, within eight days thereafter, be filed in the office of the town clerk.
“Sec. 86. If any person elected or appointed to either of the offices above enumerated shall neglect to take and subscribe such oath, and cause the certificate to be filed as above required, such neglect shall be deemed a refusal to serve. ”

It is admitted on the record that appellee did not, until after the determination of the election contest, take or subscribe the official oath contemplated by the above sections of the statute, and the question presented is, whether, under the circumstances stated, his failure to do so is to “be deemed a refusal to serve. ” We do not think it is. We are of opinion these sections of the statute are intended to apply only to such persons as are prima facie entitled to some office contemplated by the act. In Benoit v. Miller, 16 Mich. 56, where a statute similar to our own was before the Supreme Court of Michigan for consideration, it was said: “A certificate of election, whether rightfully or wrongfully given by the board of canvassers, confers upon the person holding it the prima facie right to the office, until his right is rejected by a voluntary surrender, or by a judicial determination against him. The statute requiring the oath of Office and bond to be given within a certain time, applies only to persons declared elected, and to whom the certificate of election has been given.” We fully concur in this view of the subject, and it is conclusive of the case before us. But the Michigan case just cited is not the only authority on the question. In Pearson v. Wilson, 57 Miss. 848, it is said: “Where an election is contested, the requirement to qualify within a prescribed time does not apply until the termination of the contest. ”

What we have heretofore said with respect to appellee’s failure to take and subscribe the oath of office pending the election contest, is equally applicable to the objection that he did'not execute a collector’s bond within the time prescribed by the statute, and it follows this latter objection must be disposed of in the same way. In short, we do not perceive any error of law requiring a reversal of the judgment of the Appellate Court, and it "will therefore be affirmed.

Judgment affirmed.


author: Mr. Justice Craig

text:
    Harris H. Williams v. C. N. Johnson et al.

      Filed at Ottawa November 17, 1884.

    1. Will—subsequently acquired estate—whether it will pass by will— a will construed in that regard. In this State, property acquired by a testator subsequent to the making of his will, may pass thereby without a re-publication of the will. It is only a question of intention whether subsequently acquired real estate shall pass, or not.
    2. A testatrix, by her will, requested her administrator to pay her grandson out of her means not more than $300, and if at the end of three years he had not made a good use of it, to let him have no more, and bequeathed to her niece $1000, after which she expressed a desire to have a sale made of her personal effects, and her debts first paid out of the proceeds and other personal effects. The will then provided: “I do not want my administrator to pay H. H. W. [the grandson] only six hundred dollars in all, if he does do well with it; and I want the balance of my means to go to the relief of the Affican Kansas Breed Men’s Association, with the exception of what it may cost to procure a grave stone for, ” etc.: Held, that the real estate acquired by the testatrix after making her will did not pass under the general words, “the balance of my means,” and that such real estate descended as intestate property to her heir at law.
    Appeal from the Circuit Court of Warren county; the Hon. S. P. Shore, Judge, presiding»
    Messrs. Stewart & Stewart, Mr. E. J. Grier, and Messrs. Lanphere & Brown, for the appellant:
    A foreign corporation can not acquire real estate, either by purchase or devise, unless such corporation is legally tran-sacting business in this State, and then only w'hat is necessary for the transaction of its business, or purchased in the collection of its debts. Carroll v. East St. Louis, 67 Ill. 568; Bank v. Earle, 13 Pet. 589; Starkweather v. Bible Society, 72 Ill. 55.
    The fact that such corporation is created in another State, and is a citizen of such State, gives no rights or powers not permitted by our laws. (Ducat v. City of Chicago, 84 Ill. 172;
      Starkweather v. Bible Society, 72 id. 55; Health Co. v. Rosenthal, 55 id. 90; Story on Conflict of Laws, secs. 37, 38; Paul v. Virginia, 8 Wall. 168.) Therefore, each State must settle this question for itself, by its legislation, and the construction thereof by the courts of such State.
    But this bequest is not made to the “Kansas Freedmen’s Belief Association, ” but to “the relief of the Affican Kansas Freed Men’s Association,” and there is no proof whatever that the two associations are identical, or tHfit there is an 'association of the style named in the will. The courts will not permit the terms of a will to be altered, even where there was a mistake, by substituting that which could be clearly proven to have been intended. Of this there is no proof whatever, but the court is asked to presume that such was the intent. Kurtz v. Hibner, 55 Ill. 514, and cases cited.
    If there was a latent ambiguity, no evidence was introduced to explain it. We say, then, that the corporation in question can not take title to the lands in question for the reasons above stated.
    Messrs. Kirkpatrick & Alexander, for the appellees:
    The word “means, ” in the will, is broad enough to include realty. Cate v. Cranor, 30 Ind. 292.
    The same'words in a will when applied to individuals, may require a different .construction when applied to a charity. Adams’ Equity, 219; Heuser v. Harris, 42 Ill. 425; McConnell v. Smith, 23 id. 611; Brownfield v. Wilson, 78 id. 467.
    All parts of a will should be considered together, and the intent of the testator should control. Pond v. Bergh, 10 Paige, 140; Welsch v. Belleville Savings Bank, 94 Ill. 191; Johnson v. Johnson, 98 id. 564; Sorsby v. Vance, 36 Miss. 564; Brearley v. Brearley, 9 N. J. Eq. (1 Stockt.) 21.
    “Property,” “worldly goods,” “rights,” “worldly effects,” have been held to carry real estate. 2 Redfield on Wills, 308, 315-317.

      A devise of “all my interest in a suit in De Kalb county,” carried land embraced in the suit. Swift v. Lee, 65 Ill. 337.
    Any construction resulting in a partial intestacy should be avoided. Cate v. Cranor, 30 Ind. 292; 2 Redfield on Wills, 116.
    Intention as to after-acquired estate: Willis v. Watson, 4 Scam. 64; Peters v. Spillman, 18 Ill. 370.
    English decisions are not applicable: Willis v. Watson, 4 Scam. 64; 1 Redfield on Wills, 332.
    For the rule as to changes in condition of property, see 1 Redfield on Wills, 334.
    A will operates upon any estate coming fairly within its terms, in which the testator is seized of a disposable interest at the time of his death. 1 Redfield on Wills, 338, 340.
    A will speaks from the death of the testator. Updike v. Tompkins, 100 Ill. 406.

    The testatrix was in treaty for the property in controversy at the time the will was written, so must have intended to include it.
    Can foreign charitable corporations take by devise ? Foreign corporations are allowed the same privileges as domestic corporations. United States Mortgage Co. v. Gross, 93 Ill. 483; Stevens v. Pratt, 101 id. 206; Insurance Co. v. Scammon, 102 id. 46; Bank v. Montgomery, 2 Scam. 428; Bank v. Godfrey, 23 Ill. 579; Taylor v. Keep, 2 Bradw. 368; Starkweather v. Bible Society, 72 Ill. 57; White v. Hammet, 38 Conn. 342.
    Messrs. Lanphere & Brown, for the appellant, in reply:
    An equitable title can not prevail against a legal title in ejectment. Wales v. Bogue, 31 Ill. 464; Fischer v. Eslaman, 68 id. 78; Chiles v. Davis, 58 id. 411; Escherick v. Traver, 65 id. 379; Valletts v. Bennett, 69 id. 632; Fleming v. Carter, 70 id. 286.
    A foreign corporation can not take and hold real estate in this State unless it has been expressly authorized to take and hold real estate by the act creating it. Starkweather v. Bible Society, 72 Ill. 50.
    Foreign corporations can not hold real estate in trust in this State. United States Trust Co. v. Lee, 73 Ill. 142.
   Mr. Justice Craig

delivered the opinion of the Court:

This was an action of ejectment, brought by Harris H. Williams, to recover certain lots in the city of Monmouth. It was admitted on the trial that both parties claim through a common source,—that is, through Persia N. Williams, who derived title from Azro Patterson and wife, by deed dated May 3, 1881, duly executed on that day, and recorded in the recorder’s office May 16, 1881. It was also stipulated on the trial that Persia N. Williams died May 24,1881, seized in fee of the property; that Harris H. Williams, the plaintiff, was her grandson and only surviving heir. It was also stipulated that Persia N. Williams left a will, which read as follows:

“Monmouth, Wabben County, Ill., March 12,1881.
“Feeling conscious of my declining health, and having no natural heir living niglier than a grandson, I would like to have what little I may have to spare to him in such a shape that he can not spend it immediately, I would therefore request my administrator not to pay him out of my means more than three hundred dollars, and if at the end of three years he finds that he, H. H. Williams, has not been making good use of the money that he has had given to him the administrator shall let him have no more, but keep it and expend it-as I herein direct. I give and bequeathe to my niece, Elanor E. Mock, one thousand dollars to be paid into her own hands, that she can have the spending of it to suit herself, she is of Chili township, Hancock county, Illinois; to her or to her children.
“I would like to have a sale made of my personal effects, and the little there should be coming payed in with the other, and whatever debts may be contracted on my account, payed the first of anything; at this present writing I owe nothing but about two weeks hoard to Mr. Mosher, Sen. I do not want my administrator to pay Harris H. Williams only six hundred dollars in all, if he does do well with it. And I want the balance of my means to go to the relief of the Affican Kansas Freed Men’s Association, with the exception of what it may cost to procure a grave stone for myself, and one for my son, and one for his daughter, and have them all set where they belong. And I hereby appoint M John C. Dunbar, of the town of Monmouth, of the county of Warren, and State of Illinois, as my administrator.
Persia N. Williams. ”

The will was written by the testatrix herself, duly proven, and admitted to probate in the county court of Warren county. It was also stipulated that the testatrix left personal property, which was inventoried and appraised, and that her executor has received from the proceeds of said property the sum of $2916.04. On the trial it was claimed by the defendant that the property in question passed, under the will, to the Kansas Freedmen’s Belief Association, a corporation existing in Kansas under the laws of that State, and the circuit court sustained that view.

It will be observed that at the time the will was executed Persia N. Williams did not then own the property in dispute, but she purchased the same almost two months after she had made the will. In England, and in some of the States, property will not pass, under a will, which was acquired after the execution of the will, unless the will has been re-published. But such is not the law in this State. Here, the power to devise after-acquired property exists, and it is only a question of intention, to be determined from the language used in the will. As said in Peters v. Spillman, 18 Ill. 373 : “It is a mere question of intention in the testator to pass such lands, and not a question of power, when the intention is clear. ”

The question, then, to be determined is, whether the language of the testatrix used in the will is sufficient to pass the title to this real estate to the corporation in Kansas. Does the language of the will manifest an intention on the part of the testatrix that this real estate, which she did not then own or possess, should go to the Kansas organization ?

Neither the word “lands, ” “lots, ” nor “real estate” is mentioned in the will, although the testatrix owned, at the time she wrote the will, thirteen acres of land near Monmouth; and if the lots in question passed by the will, they must be included in the word “means,” as the testatrix only devised to the African Kansas Freedmen’s Association a certain portion of her “means.” In order to arrive at the intention of the testatrix, it is proper to examine and consider all the provisions of the will. The word “means” is used first in the fore part of the will, and it seems quite plain from the use there made of the word by the testatrix, she intended to be understood as meaning personal property or money. . She then requests her administrator not to pay Williams out of her means more than $300,—that is, $300 of her “means” (money) shall go to a certain person. Immediately following this language she provides, if Williams does not make good use of the money, “the administrator shall let him have no more, but keep it and expend it as I herein direct.” What should be kept and expended as directed? Not lots or lands, but money, and the two parties to whom the money is to go are Mrs. Mock and the Kansas corporation.

Again, in the second clause of the will real estate is not mentioned or in any manner alluded to,—and this, too, is the clause relied upon by the defendant. In this clause of the will she directs a sale of her personal effects, and the proceeds paid in with the other, evidently meaning by the word “other” what money she had on hand before the sale of her personal property. Then she directs the payment of her debts,—of course, from the money on hand. Then follows a provision for the payment to Williams of $300 more. This, of course, she intends to be paid out of the money on hand. Then follows this provision: “And I want the balance of my means to go to the relief of the Affican Kansas Freed Men’s Association, with the exception of what it may cost to procure a grave stone for myself, and one for my son, and one for his daughter. ” From the beginning of the second clause of the will, where the testatrix orders a sale of 'the personal property, down to the end of the provision in reference to grave stones, real estate is not mentioned, and it is apparent from the language used that she had no reference to any property except money or personal property. Had the testatrix, in the first part of the second clause of the will, used language which might include real estate, and then said, “and I want the balance of my means to go,” etc., there might be some ground for holding that the words “balance” and “means” referred to real estate; but such was not the case.

But it is said that the testatrix intended to devise appellant only $600, and this construction defeats that intention, and gives him more. It is no doubt true that the testatrix, so far as her will was concerned, intended to give appellant only $600, and that is all he gets, or can get, under the will. What may have been the motive or intention of the testatrix in making no disposition of the lots, but leaving them as intestate estate, is nowhere disclosed, and there is no room for conjecture. The fact that appellant may take the real estate as intestate property, in no manner defeats the intention of the testatrix, as shown by the will. The fact that the testatrix devised appellant only $600 in money, does not, in our judgment, show she did not intend that he might take the lots under the statute.

In conclusion, we are satisfied that the lots in question did not pass by the will.

The judgment of the circuit court will be reversed and the cause remanded. . ,

T 7 . , Judgment reversed.

Mr. Justice Mulkey : I do not concur in the opinion of the majority of the court. As I construe the will, after all the special bequests are paid the residue of the estate belongs to the Freedmen’s Association. The word “means,” in that connection, is used in the sense of “estate. ”

Mr. Justice Sheldon, dissenting.