text:
    Daniel Rapp v. C. A. Stoner et al.

      Filed at Ottawa November 20, 1882.

    1. Mortgage—personal liability of purchaser from mortgagor. A grantee of a mortgagor who merely purchases the equity of redemption, is not liable to the mortgagee for any part of the mortgage debt not satisfied by sale on foreclosure; but if he purchases the property of the mortgagor, and-as a part of the contract of purchase assumes and agrees to pay the mortgage indebtedness, he becomes personally liable to the mortgagee, and an appropriate action may be maintained against him to enforce his liability under the contract.
    2. Where a party receives a warranty deed, containing a clause that it is made subject to a prior mortgage given upon the land by -the grantor to a third person, this of itself will create no personal liability on the part of the grantee to pay the outstanding incumbrance.
    3. A deed, for the expressed consideration of $15,000, conveyed certain lots, and recited that it was made subject to three mortgages on the property, given by the grantor, whicK'were described, amounting to $10,191, for which conveyance, and another for a house and lot, the grantee therein conveyed to the grantor 560 acres of other land, estimated at the value of some $5000. The deed from the mortgagor provided that the grantee should pay all taxes for the year of the sale, then a lien on the property, but omitted to make provision for the payment of the mortgage indebtedness, and the proof was that the deed of the mortgagor was drawn as the parties had agreed and directed it to be made. It was held, that the purchaser did not thereby assume and bind himself to pay the mortgages, nor did the fact he expected to pay them in time, and even paid some interest on them, operate to fix his personal liability to the mortgagees.

      Appeal from the Appellate Court for the Second District; —heard in that court on appeal from the Circuit Court of Bureau county; the Hon. Geo. W. Stepp, Judge, presiding.
    Mr. John Scott, and Messrs. Farwell & Warren, for the appellant:
    Did Beiss agree to pay the mortgages as a part of the purchase price, or did he purchase merely the equity of redemption ? The written agreement by which he assumed payment of the mortgages was not abrogated or rescinded by the subsequent parol agreement, but was only modified in regard to the price. It was competent for the parties to thus vary, modify or change it, or to supplement it by a verbal agreement, changing the price, yet leaving all the other provisions in full force. Cooke v. Murphy et al. 70 Ill. 96; Bishop v. Busse et al. 69 id. 403.
    The amount of the incumbrances was deducted from the purchase price of the land. This being so, the law implies an agreement to .pay them, and holds the purchaser personally liable. Comstock v. Hitt, 37 Ill. 542; Fowler v. Fay et al. 62 id. 375; Maher v. Lanfrom et al. 86 id. 313; 1 Jones on Mortgages, secs. 749, 750, 758, and 2 id. sec. 1711, et seq; Wilson v. King et al. 23 N. J. Eq. 150; Brown v. Kurtz, 37 Iowa, 239; Drury v. Tremont Improvement Co. 13 Allen, 168 ; Braman v. Dowse, 12 Cush. 227; Halsey et al. v. Reed et al. 9 Paige Ch. 445; Marsh v. Pike, 10 id. 595.

      Dehors the deed and the written agreement, Beiss promised the mortgagor and the mortgagees, respectively, to pay the mortgage debts. These promises were not collateral, but original, the consideration being, from the mortgagor, the -conveyance of the property; from the mortgagees, the extension of the time of payment. And the Statute of Frauds does not apply. Eddy et al. v. Roberts, 17 Ill. 505; Brown v. Strait, 19 id. 88; Rabberman v. Wiskamp, 54 id. 179 ; Runde v. Runde, 59 id. 98; Beasley v. Webster, 64 id. 458; Clifford

      v. Luhring, 69 id. 401; Farley v. Cleveland, 4 Cowen, 432; Nelson v. Boynton, 3 Mete. 396; Alger v. Semille, 1 Gray, 391; Brown v. Kurtz, 37 Iowa, 239.
    Mr. William Abbott, for the appellee C. G. Reiss:
    A rescission may be effected by entering into a contract which takes the place of, and puts an end to, the original one, or by mere agreement to rescind. 2 Parsons on Contracts, 677-681; Browne on Statute of Frauds, secs. 429-436; Fry on Specific Performance of Contracts, chap. 11, secs. 682, 696-699, et seq; Follansbee v. Adams, 86 Ill, 13; Bishop v. Busse, 69 id. 403; Huey v. Grinnell, 50 id. 179; King v. Mason, 42 id. 223.
    Taking a deed subject to an outstanding mortgage, creates no personal liability on the grantee to pay off the incumbrance, unless he has by contract, expressed or clearly implied, specially agreed to do so. To charge the purchaser, there must be apt words used in the deed itself, which clearly imply an obligation intentionally created by the one party and assumed by the other, to constitute a personal obligation for its payment. 2 Washburn on Real Property, 571, 518, 545; 1 Jones on Mortgages, (2d ed.) secs. 740, 748, 749, 751-756, 761, 762, and 2 id. sec. 1712; 2 Parsons on Contracts, 547—566; Comstock v. Hitt, 62 Ill. 375; Maher v. Lanfrom, 86 id. 513; Belmont v. Cowan, 22 N. Y. 438; Hubbard v. Ensign, 19 Conn. 372.
   Mr. Justice Craig

delivered the opinion of the Court:

This was a bill in equity, brought by Daniel Rapp, in the circuit court of Bureau county, to foreclose a mortgage executed by Christian A. Stoner and wife to the complainant, on certain premises in Princeton, Bureau county. The bill prays for a foreclosure of the mortgage, and a decree against G. G. Reiss, who purchased the premises of Stoner after the mortgage was executed, for the amount of any deficit after a sale. On the hearing in the circuit court upon the pleadings and evidence, a decree was rendered dismissing the bill as to Reiss, which decree was affirmed in the Appellate Court, and the complainant in the bill has appealed to this court.

The record, although quite large, presents but a single question. Did Reiss, the appellee, when he purchased the mortgaged premises of Stoner, assume, and agree to pay, the mortgage indebtedness, or did he purchase merely the equity of redemption, subject to the mortgages on the property? If Reiss purchased merely the equity of redemption, and made no contract to pay the mortgages on the land, the decree of the circuit court was correct. If, on the other hand, Reiss purchased the property of Stoner, and, as a part of the con-' tract of purchase, assumed, and agreed to j)ay, the mortgage indebtedness, he became personally liable, and an appropriate action may be maintained against him to enforce his liability under the contract.

The property involved is described as lots 3, 4 and 5, in subdivision of lot 13, in Stoner’s addition to ’ the town of Princeton, upon which had been erected a two-story brick block, divided into three stores. Prior to the sale to Reiss, Stoner had mortgaged lot 3 to E. H. Swayne, and lots 4 and 5. to John Prouty. These two mortgages were a first lien on the property. Stoner had also executed a second mortgage on lots 3 and 4 to Daniel Rapp, complainant in the bill. At the time of the sale to Reiss, August 27, 1875, the mortgage indebtedness on the three mortgages was all due, and amounted, in the aggregate, to the sum of $10,191. The deed from Stoner and wife to Reiss, for the three lots, bears date August 27, 1875. The consideration expressed is .$15,000. It recites that it is made subject to mortgages, as follows: One given to E. H. Swayne, April 9, 1868, due in three years, $2000, at ten per cent interest; one given to J. Prouty, July 25, 1868, due in two and five years, $5000, at'ten per cent interest; one given to D. Rapp, July 16, 1873, due in two years, $3070, at ten per cent interest. The deed required Reiss to pay all taxes for 1875, and contains the usual covenants of warranty, except as to the above incumbrances. For the conveyance of this property, find for the conveyance of a house and lot in Princeton, valued at $-> Reiss conveyed to Stoner 560 acres of Kansas lands.

The position of complainant is, that Reiss, as a part of the consideration of the purchase of the property, assumed, and agreed to pay, the mortgages upon it. Much evidence bearing upon this question was introduced on the hearing, which we have carefully examined, and while the question of fact is one not entirely free from doubt, still we are not prepared to say that the evidence preponderates against the decree rendered in the circuit ‘ court. In the first place, a proposition to trade was written out and executed by the parties, which was as follows:

“Proposition made this 24th day of August, A. D. 1875, to trade, by and between 0. A. Stoner and C. G. Reiss. The said 0. A. Stoner proposes to trade his brick block of three stores, located in Princeton, Illinois, including lots 3, 4 and 5, in subdivision of lot 13, in Stoner’s addition to the town of Princeton, for property owned by said C. G-. Reiss, located in the State of Kansas, to-wit, 480 acres of land located in Waubansee county, and 320 acres of land located in Pottawatomie county, in the said State, for the total sum of $7920,—the said C. G. Reiss to assume the incumbrances on said Stoner’s property, amounting to $10,191.40. * * * The acceptance of the above trade by said C. G. Reiss is depending on the obtaining of needful extension of time on said incumbrances. This proposition is to stand good until two (2) days after the return of Mr. Jacob Miller from Pennsylvania, the trade depending on his report of Mr. Rapp’s mortgage.

C. A. Stoner,

C. G. Reiss.”

It will be observed that this proposition provides that Reiss is to assume the incumbrances on the property, but unless the proposition was adhered to by the parties in the consummation of the agreement, and became a part of the final contract which was concluded on the 27th day o'f August, it can have no bearing on the case. There is much evidence in the record tending to prove that this written proposition was abandoned, and a new and different contract agreed upon before the contract between the parties was closed. Weimer testified that the written jwoposition was canceled, and on the return of Miller from Pennsylvania a new trade was consummated, on other conditions; that the terms of the new contract were not reduced to writing. Reiss testified that a new arrangement was made, the terms of which were different from the written proposition. Indeed, there is no dispute in regard to the fact that upon the consummation of the trade there was a material departure from the terms of the original written proposition. By the original proposition 800 acres of Kansas lands were to be given in exchange for the block, but by the terms of the trade, as consummated, 400 acres were given for the block, and 160 acres for a tenement house, which was not mentioned in the original proposition. The fact that there was such a clear departure from the written proposition when the trade was finally closed, in connection with the evidence that the written proposition was rescinded, when considered in connection with the further fact that the deed conveying the lots did not bind Reiss to pay off the incumbrances, was enough, in our judgment, to justify the circuit court in holding that the written proposition was canceled by the parties, and a new agreement made.

But it is said the incumbrance was deducted from the contract price of the property conveyed by Stoner to Reiss, and this alone would create a personal liability on Reiss to pay the complainant’s mortgage. There is no doubt in regard to the law, where A sells to B a tract of land for a certain specifie cl sum of money,» and receives a part of the consideration, and B, in payment of the balance, assumes and agrees to pay a mortgage on the premises, such an agreement will render B personally* liable to the holder of the incumbrance. But where a party receives a warranty-deed containing a clause that it is made subject to a mortgage given upon the land by the grantor to a third party, this will create noxpersonal liability on the part of the grantee to pay the outstanding incumbrance. In this case there is; perhaps, no doubt, from the evidence, that the parties, in making the trade, estimated the value of the Stoner lots at some $15,000. The incumbrances were known to be some $10f000, and the Kansas lands estimated at some $5000;' but there was no such deduction of the ten thousand dollar incumbrance from the purchase money agreed to be paid, and leaving it in the hands of the purchaser, as to create a personal liability. It may be, if Reiss had paid $15,000 to Stoner for the property, and the latter had left in the hands of Reiss $10,000 of the amount, to be paid by him in discharge of the mortgages, the money might, under such circumstances, be regarded as a trust' fund, and Reiss as a trustee, holding the money for the benefit of those who had the mortgages. But no such case is presented by this record. Here was a mere exchange of Kansas lands for incumbered property. Doubtless Reiss expected, when he made the trade, that he would, in time, pay off the incumbrances and clear the property of all liens. Unless he entertained this expectation, it would have been folly on his part to have made the trade, and paid anything for a deed from Stoner; but the fact that he expected to pay the mortgages, and even paid some interest to the holders of the mortgages, can not be held sufficient to fix his personal liability. It will be observed that the deed made by Stoner to Reiss recites that the lots are conveyed subject to the mortgages, and then contains a provision that Reiss is to pay the taxes of 1875. At the time the deed was made the tax was a lien on the land. So, too, were the mortgages. If it was the contract that Reiss was to pay the mortgages as well as taxes, why insert one and leave out the other ? If it was important that the deed should contain a clause binding Reiss to pay the tax, it was of much greater importance that a clause should have been inserted embracing the mortgages, if such was the contract of the parties. But, independent of the terms of the deed, Jacob Miller, who wrote the deed, and who, at the time, had been employed by Stoner to assist in making the trade, testified expressly that he wrote the deed as he understood the parties to have agreed, and as they directed him. The execution of the deed was the final consummation of the trade between the parties, and the fact that it contains no provision binding Reiss to pay the mortgages, but declares that the property is conveyed subject to the mortgages, in connection with the evidence of Miller that the deed was written as the parties had agreed, would seem to be sufficient to lead to the conclusion reached by the circuit court,—that Reiss had assumed no personal liability under the contract.

The judgment of the Appellate Court affirming the decree of the circuit court will be affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Sheldon

license: Public Domain

text:
    David Preston et al. v. William T. Johnson, Collector.

      Filed at Ottawa November 20,1882.

      Taxation—remedy-—assessment of property which is exempt—remedy at law, not in chancery. The county board has jurisdiction to give relief against an assessment of property for taxation which is exempt, and if it refuses such relief the remedy of the party is by an appeal from its decision, and not by a bill in chancery to enjoin the collection of the tax. The legal remedy in such case is adequate and exclusive.

      Appeal from the Circuit Court of Cook county; the Hon. M. F. Tuley, Judge, presiding.
    Mes'srs, Hoyne, Horton & Hoyne, for the appellants:
    Section 1, article 9, of the constitution, provides, that laws' shall he enacted “so that every person and corporation shall pay a tax in proportion to the value of his, her or its property, ” and that the legislature shall have power to tax peddlers and “persons or corporations owning or using franchises and privileges, in such manner as it shall, from time to time, direct, by general law, uniform as to the class upon which it operates. ” Private bankers are not included in the list of persons named in this section. By the rules of construction this is in effect a provision that the legislature shall not tax bankers and others not enumerated by any class enactments.
    Deposits made with appellants are not their “moneys, ” under the Revenue law. Such moneys must be listed for taxation by the depositors. So appellants were impropeidy assessed for $100,000 of deposits. The United States levies a tax on deposits. U. S. St at. sec. 3408.
    Mr. Consider H. Willett, for the appellee:
    The assessment being made after the fourth Monday of June, upon notice, the county board .alone had jurisdiction to cure the defects claimed by the three following points:
    First—To strike out property assessed, as exempt from taxation, because such property is government securities. Rev. Stat. chap. 120, sec. 97, clause 8; also, each case cited under third point.
    Second—To strike out property if doubly assessed. Cooley on Taxation, 158-173; Burroughs on Taxation, 17, 172; Yuba County v. Adams, 7 Cal. 35; Finley v. Philadelphia, 32 Pa. St. 381; Danville Banking and Trust Co. v. Parke, 88 Ill. 170; People v. Rhoades, 15 id. 304; Toll-Bridge Co. v. Osborn, 35 Conn. 7.

      Third—To decrease the assessment because property was irregularly assessed as deposits, or because property was assessed at an over-valuation. Rev. Stat. chap. 120, sec. 86; Porter v. Railroad Co. 66 Ill. 594; Republic Life Ins. Co. v. Pollock, 75 id. 279 ; Ottawa Glass Co. v. McCaleb, 81 id. 562.
    Assessors act judicially in making an assessment. Const. 1870, art. 9, sec. 1; Republic Life Ins. Co. v. Pollock, 75 Ill. 294; People v. Big Muddy Iron Co. 89 id. 116; Spencer v. People, 68 id. 510; Madison County v. Smith, 95 id. 335; Adsit v. Lieb, 76 id. 198; Peoria v. Kidder, 26 id. 357.
   Mr. Justice Sheldon

delivered the opinion of the Court:

This was a bill in equity, in the circuit court of Cook county, to restrain the collection of certain taxes. The case made by the bill, so far as needful to- be stated under the decision we make, is, that complainants, private bankers in the city of Chicago, had made their return to the assessor, for the year 1878, of their personal property subject to taxation ; that the assessor not being satisfied with the return, ■notified the complainants to appear before him, which they did, and gave to the assessor the information he asked, and a statement of their business affairs, and that afterward the assessor arbitrarily, illegally and fraudulently added to the return of the complainants the sum of $50,000, as the value of additional personal property of theirs subject to taxation for the year 1878; that said addition was in fact an assessment upon the government securities held by complainants, which were exempt from taxation; that the assessment was not-made until after the fourth Monday of June, 1878, which was, too late to apply to the town board of review for relief, and that complainants applied to the county board of review, which commenced its session on the second Monday of July, 1878, and appeared before the proper committee of that board and made their complaint, and that said committee considered the case and concluded to reduce the assessment, and complainants understood that would be done; that the committee made a mistake as to the time within which their report must be made, and by reason of such mistake the committee had delayed their report until on or about the last day allowed by law for the board to act upon such matters, when the committee was informed by the county attorney that their report must be made, and the board must act upon such matters at once, and by reason of such mistake it was impossible to prepare a report in detail of the many matters of this nature before them, whereupon the committee was compelled to make a general report, such as they were able to prepare in the brief space of time remaining to them for that purpose, and that the only reason said assessment was not reduced was the mistake aforesaid, and that complainants were not apprised of said mistake on the part of said committee and said board until too late to take any steps, or do any acts, or file any objections, against such assessment. There was an answer of general denial, proofs were taken, and on hearing the circuit court dismissed the bill, and complainants appealed.

The complaint is as to the $50,000—additional assessment. There is no proof in the ease in regard to what was the property which was thus assessed. It is only to be conjectured what it was from the statement of their affairs and business which complainants submitted to the assessor. There is certainly no evidence that the assessment was upon government securities exempt from taxation, as is claimed by the bill. It is urged in the argument the assessment was upon deposits, and that deposits with a private banker are not taxable against him. But we do not regard the subject of the merits of this assessment as properly before us.

Section 97 of the Revenue law gives to the county board of review, held on the second Monday in July, annually, full power and authority, among other things, “Third, to hear and determine the application of any person who is assessed on property claimed to be exempt from taxation. ” The section gives the right of appeal from the decision of the board. It provides, if the board shall decide that property so claimed to be exempt from taxation is liable to be taxed, and the party aggrieved shall, at the time, pray an appeal, a brief statement of the case shall be made by the clerk, and transmitted to the Auditor, who shall present the case to the Supreme Court, by applying for an order to set aside and reverse the decision of the county board. Here was an adequate remedy at law, and the remedy which complainants should have pursued. It appears that the county board continued their session commencing on the second Monday of July, by regular adjournment from time to time,, until the 31st of August. The record of the board in evidence showed that on the 31st of ‘August the committee of equalization of the board (the same,, committee before whom complainants appeared, as stated in their bill,) submitted their report to the board, by which, after reciting the reference to them of the assessment and railroad list for 1878, together with all the petitions and complaints regarding the same, and having had the same under advisement, they report and recommend “that the personal property, as returned by the assessors in towns, be and remain as returned by said several assessors, except such changes as are shown in the tables annexed, ” and it was - admitted that no changes were made in any personal property, assessment in the town of South Chicago, where complainants were assessed. Any complaint with respect to the doings of the committee we can not consider, —it is the action of the board, only, which we can look to.

It appears that on the afternoon of Saturday, August-31, the counsel of complainants appeared before the board and requested to be heard in the matter, which was refused. At that time complainants seem to have been denied the opportunity of a hearing before the board; but if complainants were not allowed a fair hearing, or were aggrieved by any action whatever of the board, their plain remedy was by appeal. ' No sufficient reason is shown why this remedy was not pursued. The county board of review had jurisdiction to give relief as to property exempt from taxation, and appellants failing to appeal from a decision of the board refusing to reduce their assessment for such reason, they can not now seek relief by a bill in equity. The remedy through the county board of review and by appeal we regard as adequate and exclusive.

The decree dismissing the bill must be affirmed.

Decree affirmed.


author: Mr. Justice Walker

text:
    Francis E. Hinckley v. M. S. Dean.

      Filed at Ottawa November 20,1882.

    1. Rule of goubt—providing preliminary call of docket to ascertain cases for trial, is valid. A rule of court, providing for a preliminary call of the docket of the first fifty cases on the first day of each term of court, on which call the cases shall be either marked for trial, dismissed, or continued for cause shown, and that if neither party answers, the case shall be dismissed, and that at the close of the preliminary call the court will announce the number of cases, not exceeding fifty, subject to a similar call on the next day, is not repugnant to the provisions of any statute, and is a proper and valid rule. Such rule is a proper exercise of the discretion given the court' in section 17 of the Practice act, and is not arbitrary or uncertain itii its operation, and does not necessarily work any hardship.
    2. Same—all the judges of the court not required to act jointly in making. A rule of court adopted in a branch court of the Superior Court of Cook county, applicable only in such branch, is not invalid or void because not adopted by all the judges of such court, and made uniform in each branch of such court.
    3. Supebiob Coubt of Cook oounty—powers of judges holding branch courts. The law has empowered -each of the judges of the Superior Court of Cook county to hold a branch court, and this power to act as a court implies authority to exercise the full powers and functions of a court, among which is the power to make and enforce rules of practice not repugnant to the statute. All of such judges being authorized to hold separate courts, each, when so acting, may exercise all the judicial powers of the court.
    4. Same—each judge holding branch court bound by its rules.' Where a rule of court is adopted in any branch court of the Superior Court, applicable only in such branch court, any of the judges holding that branch will be governed by such rule.
    5. Constitution—clause relating to courts construed. Section 29, article 6, of the constitution, requiring all laws relating to courts of the same grade to be uniform, etc., refers alone to laws passed by the legislature, and not to mere rules of court regulating practice.
    6. Practice—dismissal under rule of court. Under a rule of court providing for a call of the docket to ascertain the cases to be set for trial, and that if neither party answers on such call the suit shall be dismissed, an appeal may properly be dismissed, on motion of the appellee, on such preliminary call, the appellant failing to appear or answer.
    7. Same—when defendant appealing fails to appear, a trial by jury not

      required. It is not error to dismiss an appeal taken by a defendant from the judgment of a justice of the peace, for want of prosecution, without a trial by jury. The defendant not appearing, the plaintiff is not required to establish his demand before a jury before the appeal is dismissed. 0
    8. Default—setting aside, a matter of discretion. The setting aside of a default or dismissal of an appeal for want of prosecution, is a matter addressed to the discretion of the court, and the exercise of such discretion will not be interfered with by a court of review unless it is clear that it has .been abused, to the injury of the party in default.
    9. Same—sufficiency of affidavit for setting aside. Where an appeal was dismissed for want of prosecution, a motion was made fifteen days afterward to set aside the order of dismissal and reinstate the ease on the docket, based on affidavit that the appellant and his attorney were absent from the State, attending to legal business of appellant, at the time the appeal was dismissed, it not appearing that his attorney had no partner or clerk that could have answered to the call of the case, it was held no abuse of discretion in refusing the motion.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. Sidney Smith, Judge, presiding.
    Mr. Geo. W. Cothran, for the appellant:
    The rule under which the appeal in this case was dismissed is void, as being in contravention of section 16 of the Practice act, requiring all causes to be tried or disposed of in the order they are placed on the docket. This court has repeatedly held that the five day rule of the Superior Court of Cook county was void, under the statute referred to. Benson v. Johnson, 90 Ill. 94; Clapp v. Rauch, id. 468; Braidwood v. Weiller, 89 id. 606; Griswold v. Shaw, 79 id. 449; Fisher v. National Bank of Commerce, 73 id. 34; Kidder v. Rand, id. 38; Angel v. Blume & Atwood Manf. Co. id. 412. See, also, Nelson v. Akeson, 1 Bradw. 165; Smith v. Lozano, id. 172; Sea v. Glover, id. 335; Brown v. Davis, 3 id. 639.
    Courts may adopt rules in furtherance—not in contravention—of law. Rozier v. Williams, 92 Ill. 190; Linnemeyer v. Miller, 70 id. 244.
    A single judge holding a “branch term” of a court composed of seven judges, has no authority to establish a general rule of practice. Buies of practice must be-uniform in all branches of the Superior Court of Cook county, within the requirements of section 29, article 6, of the constitution.
    • On an appeal from a justice’s court the appellant is entitled to a new trial; and unless this court conceives itself bound by the law of stare decisis, established by the case of Lawler v. Gordon, 91 Ill. 602, and eases cited therein, it was error to dismiss the appeal, instead of requiring the party to prove his cause of action. Kilian v. Clark, 9 Bradw. 430.
    The court erred in overruling the motion to set aside the default. It is submitted that the affidavit read on the motion sufficiently excused the absence of appellant at the call of the case.
    Messrs. Quigg & Tgthill, for the appellee:
    The rule does not conflict with any statute of the State, and is reasonable and just. Its operation is to weed out the rubbish—to eliminate from the call dead and abandoned cases, and to reduce the calendar to a working basis, and save expense to litigants. The cases, under this rule, are twice called,—preliminarily and peremptorily. The statute provides, that “all cases shall be tried, or otherwise disposed of, in the order they are placed on the docket, unless the court, for good and sufficient cause, shall otherwise direct.” (Rev. Stat. chap. 110, sec. 17.) If the continuance or dismissal of a cause or appeal is not a disposition of the same, in its order, on the first call, then the court, by this general rule, for sufficient cause has directed otherwise.
    Each judge of the circuit and Superior courts of Cook county is invested with all the powers of any other circuit judge, and may hold the court of which he is a member. Const. 1870, art. 6, sec. 24.
    The constitutional prohibition against legislation destroying the uniformity of the organization and practice of all courts of the same class, has no reference to rules of court, but only to laws of the legislature.
    It is matter of sound discretion whether the court will set aside an order dismissing an appeal, and unless such discretion is abused this court will not interfere. Peoria and Rock Island Ry. Co. v. Mitchell, 74 Ill. 396; Smith et al. v. Davis, Admr. 89 id. 205.
   Mr. Justice Walker

delivered the opinion of the Court:

This was an action ex contractu, brought originally before a justice of the peace in Cook county. Appellee recovered a judgment before the justice for $137.50, and costs. Defendant appealed therefrom to the Superior Court of that county. The case was dismissed for want of prosecution, under a rule of court made and entered on the records of the court on the 14th of February, 1880. The rule is this:

“Ordered, That the following be entered of record for reference, and for information of attorneys as to the manner of calling and disposing of eases in the branch of the Superior Court of Cook county presided over by Sidney Smith. Immediately upon the opening of court on Monday, January 5, 1880, there will he a preliminary call of the first fifty cases. On this call cases will be either marked for trial, dismissed, or continued for cause shown. If neither party answers, the case will be dismissed. After motions there will be a peremptory call of cases marked for trial. At the conclusion of the preliminary call the court will announce the number of cases, not to exceed fifty, which will be subject to preliminary call at the opening of court the following day; and such will be the course of proceedings from day to day, till further announcement.

“The rule had been published in the ‘Chicago Law Bulletin,’ which has a general circulation among the members of the Chicago bar, and was also published in the daily papers of the city. The rule was generally known to attorneys practicing in the court. The rule had been acted upon from the time of its adoption, from time to time. When the judge began the call of cases upon the trial calendar, a preliminary call of fifty had been made, from time to time, under the rule, notice having been given thereof on the morning the calls were made, in the ‘Law Bulletin’ and the daily papers of the city. On the morning of October 14, 1881, a notice was published, by the authority and direction of the said judge of said court, in said ‘Law Bulletin,’ and in each of the daily newspapers published in said city of Chicago, in the place where the proceedings of the branch of said Superior Court presided over by said Sidney Smith, judge, were printed, to the effect that on the opening of court on said 14th day of October, 1881, there would be a preliminary call of said calendar, beginning at No. 400 and .extending to No. 450, inclusive, on said calendar. On the 14th day of October, 1881, the number on the trial calendar of said cause was 410. No. 400 on said trial calendar had not, at said date, been disposed of by trial, continuance, or otherwise. Upon the opening of court on the morning of said day last aforesaid, the judge of said court, in pursuance of said rule of court and said published notice, proceeded to make a preliminary call of said trial calendar from No. 400 to No. 450, under said rule, and upon reaching said No. 410 on said call, counsel for the defendant not then being present, counsel for the plaintiff being present, the appeal of said cause from the justice’s court was dismissed, on motion of the appellee.”

This case would not have been reached, in a regular call and trial of the docket, until the 24th of the month. On the 31st day of the same month, appellant, by his counsel, entered a motion to set aside the order dismissing the appeal. The motion was based on an affidavit that appellant and his attorney were absent from the city, attending to legal business of appellant in the State of Iowa, at the time the appeal was dismissed. The court overruled the motion, and refused to reinstate the cause for trial, and appellant appealed to the Appellate Court, where the judgment of the Superior Court was affirmed, and the case comes to this court under a certificate, in pursuance of the statute.

It is insisted the court had no power to make and enforce such a rule, and it is void, and being void the court had no power to dismiss the appeal before it was regularly called for trial; that the court had no power to dismiss the appeal, but appellee was required to prove his case, and have the finding of a jury in the case; and that the court erred in not setting aside the order dismissing the appeal on the ground disclosed in the affidavit, on which the motion was made.

We are referred to sec. 17, chap. 110, Rev. Stat. 1874, entitled “Practice.” It provides, that “all cases shall be tried, or otherwise disposed of, in the order they are placed on the docket, unless the court, for good and sufficient cause,shall otherwise direct,” etc. It is claimed that the object of the rule, and the purpose to be accomplished by it, do not constitute good and sufficient cause for such a preliminary call, and to do so is to call and dispose of cases out of their order on the docket. The dispatch of business, the saving of time and expense to litigants, witnesses and jurors, almost imperatively demand that some discretion, or at least power, must be possessed by the judge over his docket. This rule enables the judge, in advance, to ascertain what cases will be for trial. On the preliminary call causes not ready can be continued, defaults entered, and appeals dismissed for want of prosecution, so the court can fix in advance the calendar for trial on each day. It was for just such purposes, and others, that the statute gave the discretion to the judge to dispose of cases out of their order, for good and sufficient cause. It is within the provisions of the statute. The rule operates fairly, equally and uniformly .on all litigants. It is not arbitrary or uncertain in its operation, and all have due and timely notice of each preliminary call of fifty cases. We therefore regard the rule as fully warranted by the statute, and that it tends to the dispatch of the business of the court without jeopardizing the rights of litigants, nor is it calculated to work hardship of injustice.

It is contended, that if the rule is not repugnant to the statute, still the Superior Court consists of seven judges, and the rule could be adopted alone by the court composed of the seven judges, and that one of the seven, holding a branch of that court, has no power to establish and enforce rules of practice,—that the constitution and statute have only conferred the power on the Superior Court, composed of all its judges, to adopt .rules of practice. If this be the true construction of those instruments, then every question presented for decision, when it relates to practice in the court, would require the action of the seven judges for its determination. And not only so, but the same would be true of the circuit courts. Such a construction would render the administration of justice impracticable. It would defeat the great purpose of the establishment of our courts of justice. Every step taken and everything done in a case, from its inception to its termination, has a prescribed mode, and that mode relates to and is a part of the practice of the court. Nor does or can the practice of any two judges of that or other courts conform in every particular. If the construction contended for were adopted, then a deviation from the same rule, in any particular, would be error, and but few judgments could be maintained. Justice would be defeated and the courts rendered useless, if not worse.

The 29 th section of article 6 of our constitution will not bear the construction contended for by appellant. It provides, that “all laws relating to courts shall be of general and uniform operation; and the organization, jurisdiction, powers, proceedings and practice of all courts of the same class or grade, so far as regulated by law, * * * shall be uniform.” From the reading of this section it is too plain to be misunderstood that it refers alone to legislation, and not mere rules of court regulating practice. There can be no question that the practice there referred to is that regulated and prescribed by legislative action. It would be simply impossible for the General Assembly to regulate the details and minutiEe of thé practice in our courts. The General Assembly has authorized these courts to adopt rules of practice not inconsistent with statutory rules, and it has fully empowered the judges of the Superior Court each to hold a branch court, and the power to act as a court implies the power to exercise the full powers and functions of a court, and of these is the power to make and enforce rules of practice not repugnant to statutory provisions. It is true that the Superior and circuit courts of Cook county consist of a number of judges, and so does the circuit court in each circuit outside of Cook county; but we are aware of no statute that requires them to act conjointly in the performance of any judicial function. They are all authorized to hold separate courts, and this authority necessarily empowers them, severally, when so acting, tp exercise all judicial power of the court. It may be that the General Assembly has power to require all the judges of a circuit, or the full number of the judges of the Superior Court, to act together as one court, and. to perform duties and functions of a court; but we are not aware that such power has yet been conferred. This was a branch of the Superior Court, and the rule was adopted by and professes to apply only to, and to govern the practice in, that branch, and any other judge holding that branch of the court would be governed by the rule as in a branch circuit court; the judge holding a branch circuit court in different counties must be governed by the rules of practice in force in each county. Moreover, there is nothing in. this record from which it may be inferred that the same rule has not been adopted in the other branches of this court. The views here expressed are sustained in the case of Ettinghausen v. Marx, 86 Ill. 475.

The case of Lawler v. Gordon, 91 Ill. 602, and the cases there cited, are conclusive that it was not error to dismiss the appeal for want of prosecution, and without a trial by jury. Those cases accord with the practice that has prevailed in this State, it is believed, since its organization. There is no force in this assignment of error.

It is insisted that the court erred in not setting aside the order dismissing the appeal. The order was entered on a default in not appearing to answer to the case on the preliminary call. All defaults are subject to the discretion of the court to permit them to stand, or set them aside. Nor will the court of review interfere, unless there has been a clear and unjust exercise of the discretion, to the wrong of the party in default. Here the motion was not made for fifteen days after the order dismissing the appeal was entered,—the case had lost its place on the docket. Nor does it appear that the attorney had no partner or clerk that could have answered to the preliminary call as readily and effectually as he could had he been present. The showing made by the affidavit does not establish an abuse of the discretionary power of the court requiring a reversal of the case.

Perceiving no error in the record the judgment of the Appellate Court must be affirmed.

Judgment affirmed.


author: Mr. Justice Scholfield

text:
    James Clark et al. v. James Donaldson et al.

      Filed at Ottawa November 20, 1882.

    Chancery jurisdiction—bill to remove nuisance. A bill in chancery by property owners, seeking to have removed a building in a highway appurtenant and affording access to their property, and to enjoin the closing up of the highway, there being nothing about the building deleterious to the health of the complainants, or such as to render the use of their habitations uncomfortable or dangerous, it being simply inconvenient to have it occupy the street, shows no case for equitable relief.
    Appeal from the Circuit Court of La Salle county; the Hon. Geo. W. Stipp, Judge, presiding.
    Mr. B. F. Bull, and Messrs. Blanchard & Blanchard, for the appellants.
    Messrs. Leland & Leland, for the appellees.
   Mr. Justice Scholfield

delivered the opinion of the Court:

This case, in our opinion, must be controlled by Dunning v. City of Aurora et al. 40 Ill. 481. Bill is filed by certain property owners, praying that a building in a highway appurtenant and affording access to their property be removed, and that the closing up of such highway be enjoined. There is nothing about the building itself deleterious to the health of the complainants, or that renders the use of their habitations uncomfortable or dangerous,—it is simply inconvenient to have it occupy the street. Nor do we understand the case, as respects the existence of the highway, to be one beyond doubt.

The court said, in the case referred to: “The building having been erected, a court of equity would not, unless in an extreme case, interfere to remove the building. If it were a powder mill or magazine erected by an individual in the populous part of a city, or adjoining to the complainant, or so near to him as to endanger the lives of himself and family, or the destruction of his property, before the question could be passed upon by a jury, it might probably be otherwise. But if it is only, as it is in this case, an inconvenience, no matter how great, a court of equity would have no right to interfere and abate the nuisance, at any rate before the question is settled at law. ” There is nothing decided in any of the cases referred to by counsel for appellee, inconsistent with this. See, also, High on Injunctions, (1st ed.) sec. 468. Irwin v. Dixon, 9 How. (U. S.) 6, is quite analogous in principle. Of like character are, also, Lining v. Geddes, 1 McCord’s Ch. 304, and Robeson v. Pittinger, 1 Greene’s Ch. 57.

The case not being one which, in our opinion, entitled the complainant to equitable relief, the decree must be reversed and the. bill dismissed.

Decree reversed.


author: Mr. Justice Mulicey

text:
    Chicago and Eastern Illinois Railroad Company v. John Rung.

      Filed at Ottawa November 20,1882.

    1. Appeals—reviewing controverted facts. Where a judgment for the plaintiff, in an action based upon negligence of the defendant, is affirmed by the Appellate Court, all controverted questions of fact relating to the case will be settled conclusively in favor of the plaintiff below. In such case this court must hold that all the material allegations in the declaration are fully and conclusively established, and the facts can only be considered with reference to the propriety of the instructions.
    2. Error—when no grov/nd of reversal. A court of review will not reverse for an error when it is clear the result would have been the same without regard to the error. So this court will not reverse a judgment for an error in the-admission of evidence, which it can see had no material effect on the verdict.
    3. Negligence—notice—in use of locomotive out of order. In an action by a switchman of a railroad company to recover damages for the crushing of his hand while coupling cars, from negligence, it appeared in evidence that the accident was caused by the throttle valve of a locomotive then being used being out of repair, which caused a sudden and unexpected movement of the locomotive, and that this defect, and the dangerous condition of the locomotive, had existed some time before the accident, and was known to the engineer, who had often, before and after the injury, told the foreman of the round-house (his immediate superior) of its dangerous condition: Held, that it was but reasonable to assume that the railway company, through the foreman, had notice of the unsafe condition of the' engine, whether he had charge of the machinery or not, and that the company was guilty of gross negligence in allowing such engine to be used.
    Appeal .from the Appellate-Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. Rollin S. Williamson, Judge, presiding.
    Mr. Wm. Armstrong, for the appellant:
    A question to a witness must not assume facts to have been proved which have not been proved. Greenleaf on Evidence, 483, sec. 434; Lumbard v. Cheever, 3 Gilm. 474.

      Notice of the defect in the engine must he brought home to the person empowered, and whose duty it is to furnish or repair such machinery, when needed. Richardson v. Cooper, 88 Ill. 270.
    There is no implied warranty between master and servant, and all that is required of the former is to furnish reasonably safe machinery for his servants. Chicago and Indiana Central R. R. Co. v. Troesch, 68 Ill. 545 ; Noyes v. Smith, 28 Vt. 59; Chicago and Northwestern R. R. Co. v. Scheming, 4 Bradw. 540.
    In that class of cases sounding purely in damages, when the evidence is conflicting and presents a difficult issue, the instructions should be most accurate. Chicago, Burlington and Quincy R. R. Co. v. Van Patten, 64 Ill. 513.
    A servant takes the risk of the carelessness of his fellow servants. Chicago and Northwestern R. R. Co. v. Moranda, 93 Ill. 302; Valtez v. Ohio and Mississippi Ry. Co. 85 id. 506; Chicago and Alton R. R. Co. v. Murphy, 53 id. 536.
    The presumption of law between master and servant is, that the servants are all competent, and that the master has provided his servants with suitable machinery, engines, cars, and other appurtenances of the railroad. Pierce on Railroads, 370.
    Messrs. Monroe & Leddy, for the appellee:
    A master is bound to use reasonable care and diligence in providing and maintaining safe machinery to be used by his .servants, and he will be liable to a servant for any injury arising from any defect in such machinery, if he has actual knowledge of such defect, or might have known of the same by the use of reasonable diligence. Illinois Central R. R. Co. v. Welch, 52 Ill. 183; Chicago and Northwestern R. R. Co. v. Swett, 45 id. 197; Chicago and Alton R. R. Co. v. Shannon, 43 id. 338; Illinois Central R. R. Co. v. Phillips, 49 id. 234; Chicago and Northwestern R. R. Co. v. Jackson, 55 id. 492;
      Chicago, Burlington and Quincy R, R. Co. v. Gregory, 58 id. 272; Toledo, Peoria and Warsaio Ry. Co. v. Conroy, 61 id. 162; Toledo, Wabash and Western R. R. Co. v. Fredericks, 71 id. 294; Toledo, Wabash and Western R. R. Co. v. Ingraham, 77 id. 309; Indianapolis and St. Louis R. R. Co. v. Estes, 96 id. 470; Toledo, Peoria and Warsaio Ry. Co. v. Conroy, 68 id. 560; Cooley on Torts, 556, 557.
    The court will not inquire whether the court erred as to the first question to the' witness, as a general objection was made to it. There is no doubt of the relevancy of the evidence called by the question as being part of the res gestee. If it was obnoxious to a special objection, it should have been made. Buntain v. Bailey, 27 Ill. 409; Stone v. Great Western Oil Co. 41 id. 85; Graham v. Anderson, 42 id. 514; Howell v. Edmunds, 47 id. 79.
   Mr. Justice Mulicey

delivered the opinion of the Court:

In the month of March, 1879, John Bung, the appellee, was in the employ of the appellant, the Chicago and Eastern Bailroad Company, at Chicago, as a yard switchman. On the 7th of that month, while engaged in coupling some coal cars in the company’s yard, by a sudden and unexpected movement of the locomotive engine used in bringing the cars in position, occasioned by its throttle valve being out of repair, appellee’s right hand ivas caught and crushed between the dead-woods of the two cars, resulting in the loss of one of his fingers. He subsequently brought an action against the company in the Superior Court of Cook county, to recover damages for the injury thus sustained. There was a trial upon the merits before the court and a jury, resulting in a verdict and judgment for the plaintiff for $2000, which, on appeal by the company, was affirmed in the Appellate Court for the First District, and the company, by further appeal, removed the cause to this court.

The declaration charges, in substance, that on the date above mentioned the plaintiff was in the employ of the company, as a yard switchman, for the purpose of switching, coupling and uncoupling cars, etc.; that while he was so employed it was the duty of the company to keep its ears and locomotive engines in good repair and. manageable condition; that the company, not regarding its duty in this respect, did not use proper care and skill in keeping its cars and locomotive engines in good and safe repair, but, through its negligence and unskillfulness, the same became and were out of repair; that at the time in question, and while the plaintiff was engaged in coupling said cars, and was then and there using due care and caution, and without notice of the 'defective condition of said locomotive engine, occasioned by the throttle valve of the same being then out of repair, and of which the defendant then and there had notice, the said locomotive engine, by reason of the throttle valve thereof being so out of repair, violently started and pushed said cars, which he was then in the act of coupling, as aforesaid, and by means thereof the right hand of the plaintiff was then and there caught between the dead-woods of said ears, and three of the fingers of said hand were so badly crushed and bruised that one of said fingers had to be amputated, etc.; that said defendant knowingly suffered and permitted said throttle valve of said locomotive engine to be out of repair, or by the exercise of reasonable care and caution could have known the same was out of repair, etc. To this declaration the defendant filed the plea of the general issue, and upon the issue thus formed a trial was had, with the result already stated.

Notwithstanding counsel on both sides have, to some extent, gone into a discussion of the facts in' this ease, it is clear we have no concern with them, except so far as' it may be necessary to pass upon legal questions arising on the instructions. By the affirmance of the judgment of the Superior Court in the Appellate Court, all controverted facts relating to the case are conclusively settled in favor of appellee and against appellant. Hence, in our consideration of the case here, we start out with the assumption that all the material allegations in the declaration are fully and conclusively established. This being so, it follows our labors will be confined exclusively to questions arising upon the admission or exclusion of testimony, and the giving or refusing of instructions, or other mere questions of law arising on the record.

Daring the course of the trial Charles Hill, the engineer in charge of the engine at the time the injury occurred, was examined as a witness on behalf of the plaintiff. He testified he was in the employ of the company about eight years; that he was working under Mr. Case, the foreman of the roundhouse ; that the throttle valve of the engine leaked considerably; that “the engine jerked ahead some way or other on account of steam in the cylinders; ” that it was hard to hold, and was dangerous; that he did not know how long he had run the engine previous to the accident, but it was quite a while; that he had often, before and after the accident, told the foreman of the round-house of the condition of the engine. After having made these statements, the witness was asked and permitted to answer, against the objections of appellant, the following question: “Was there any other man here, connected with the road, that had control of the machinery but Mr. Case, to report to?” The witness replied, “No other man, except Mr. Lyford.” It is objected this question assumes the existence of an important fact, which, outside of the implication contained in the answer to it, is not otherwise shown by the evidence, namely, that Case had control of the machinery, and was therefore the proper person to be notified of the dangerous condition of the engine. It must be conceded that appellant’s objection to this question is not without foundation, and that the general rule of law on the subject is as claimed by its counsel; and while we are of opinion the question should not have been allowed in the form put to the witness, yet, under the circumstances of this case, we can not think the error in question had any material effect on the verdict of the jury. It is a familiar principle that courts of review will not reverse for an error where it is clear the result would have been the same without regard to the error.

The undisputed facts in this controversy make out a clear case of gross negligence on the part of the company. As already seen from the testimony of the engineer, the engine was in a dangerous condition, and had been “for quite a while, ” and that he had frequently, before and after the 'accident occurred, told the foreman of the round-house of its condition. With these undisputed facts before them, we think the jury were fully warranted in finding, as they probably did, the company had implied or constructive notice of the condition of the engine, in which case of course it was immaterial whether the foreman of the round-house had control of the machinery or not. The engineer having frequently told his immediate superior (the foreman of the round-house) of the dangerous condition of the engine, upon the principle that every one is presumed to do his duty it is but reasonable to assume that through him the company obtained the requisite notice, whether he had immediate charge of the machinery or not.

A number of objections are made to the instructions given to the jury on behalf of appellee, none of which -we regard as well taken. The instructions, as a whole,- we think fairly presented the law of the case to the jury. Some of them, it is true, are not as well guarded as they might be, yet we think they are substantially correct, and under the evidence we do not think the jury could have been misled by them. In any view, the merits of the case seem so clearly with the, appellee, we think the judgment should be affirmed, which is-accordingly done.

Judgment affirmed.


author: Mr. Justice Craig

text:
    Morris Selz et al. v. Abijah Cagwin et al.

      Filed at Ottawa November 20, 1882.

    • 1. Taxation—personal property of manufacturers—where assessed. Where manufacturers of. boots and shoes in the city of Joliet carried on that business there through one of their number, and by an agent, the other members of the firm residing in the city of Chicago, except one, whose residence was in Springfield, Illinois, those living in Chicago being there engaged in the business of wholesale jobbers, it was held, that their stock and machinery employed in the manufacture at Joliet were properly assessed at that place for taxation, that being the situs of the property.
    2. ' Same—statute construed. Section 7 of the Bevenue law, which provides, “that personal property, except such as is required in this act to be listed and assessed otherwise, shall be listed and assessed in.the county, town, city, village or district where the owner resides,” has no application to the property of manufacturers which has its situs at a different place, and is managed by an agent at such other place.
    3. Same—property to be assessed with reference to amount on hand on the first day of May. Where manufacturers residing and doing business ill the city of Chicago, are also engaged in a manufactory in Joliet, in this State, from which last named place goods, after their manufacture, are forwarded to the house in Chicago, all the property on hand in Chicago belonging to the firm on the first day of May in each year should be assessed for taxation at that place, and all personal property on hand at Joliet on the first day of May in each year, in the hands of agents, is liable to assessment in that place. By this means the same property is not subject to double assessment, or taxation in both places. '
    Appeal from the Circuit Court of Will county; the Hon. Josiah McRoberts, Judge, presiding.
    Mr. Egbert Phelps, and Mr. G-. D. A. Parks, for the appellants :
    Section 13, chap. 120, Rev. Stat. directs that personal property of merchants and manufacturers shall be assessed in the town, county, etc., “where their business is carried on,” except when situated elsewhere, “in the hands of agents.” The headquarters of appellants’ business was in Chicago, and not in Joliet.
    Prior to the act of 1853 the personal property of manufacturers, like all other personal property, followed the residence of the owner, and was there, only, taxable. Sangamon and Morgan R. R. Co. v. County of Morgan, 14 Ill. 163King v. McDrew, 31 id. 418; Mills v. Thornton, 26 id. 300; Tazewell County v. Davenport, 40 id. 197.
    This rule of the situs of personal property for taxation was, aside from our statute, in accordance with the rule in other States. Moore v. Wilkins, 10 N. H. 452; 8 R. I. 341; State v. Bishop, 34 N. J. 45; State v. Ross, 3 Zabr. 517; Bailey v. Buel, 59 Barb. 158.
    Statutory regulations fixing the situs of personal property for purposes of assessment, must be essentially arbitrary as to' details. Cooley on Taxation, 270.
    A payment under process, to an officer having process of law in his hands with which he can coerce it, and is proceeding to coerce it, is a payment under duress. Bradford v. City of Chicago, 25 Ill. 419; Rickerson v. Ryan, 14 id. 74; Logsdon v. Spivey, 54 id. 105; Stevens v. Gary, 33 Wis. 95; Connah v. Hatch, 23 Wend. 468; Valpey v. Bate, 50 E. Com. L. 602.
    Messrs. Hill & Dibell, for the appellees:
    Section 7 of the Bevenue law requires personal property to be assessed at the place where the owner. resides, and section 9 requires that property of manufacturers and others, in the hands of agents, shall be listed “at the place where the business of such agent is carried on. ” That the situs of personal property for taxation depends upon various circumstances, and can not be determined by any uniform rule, see Irvin v. Railroad Co. 94 Ill. 109; First National Bank v. Smith, 65 id. 53; Munson v. Crawford, 65 id. 187; Tappan v. Merchants’ National Bank, 19 Wall. 499.

      For a case where the place of sale of articles manufactured elsewhere by the seller, was held not to be the situs of the property for taxation, see The Parker Mills v. Commissioners, 23 N. Y. 242.
    If this property was in the hands of an agent, it is no defence that it was not assessed in his name. Union Trust Co. v. Weber, 96 Ill. 349; Lyle v. Jacques, 101 id. 650.
    Where the law furnishes an adequate remedy in law for determining questions arising under the Revenue law, and a party fails to avail himself of it, he can not have relief in equity. Adsit v. Lieb, 76 Ill. 201.
   Mr. Justice Craig

delivered the opinion of the Court:

This was a bill in equity, brought by Selz, Schwab & Co. against the collector of the town of Joliet, and the town, to enjoin the collection of á tax assessed on certain personal property of the firm for the year 1879. It appears from the bill, and the evidence introduced on the hearing, that Selz, Schwab & Co. were, in 1879, manufacturers of boots and shoes at the penitentiary at Joliet, by convict labor. They were also wholesale jobbers, in Chicago, of the goods manufactured at Joliet, and also of goods purchased in the eastern markets. In 1879, the assessor of the town of Joliet assessed the personal property of the firm, on hand May 1 at the manufactory in Joliet, at $100,000. This was reduced by the board of equalization to the sum of $85,140, upon which taxes were levied for that year, and a warrant issued to the collector, under which he was proceeding to collect the taxes when the bill was filed.

The members of the firm all reside in Cook county, except Bunn, who resides in Sangamon county, and it is contended as the goods of the firm are all sold in Chicago, and the books and accounts of the firm are kept there, the assessment in Will county, on personal property there, is void,— in other words, the position is, that the personal property of merchants and manufacturers is taxable where their business as merchants is carried on. This position is predicated mainly on section 13 of the Eevenue law, which reads as follows: “The personal property of banks or bankers, brokers, stock jobbers, insurance companies, hotels, livery stablés, saloons, eating houses, merchants and manufacturers, ferries, mining companies, and companies not specially provided for in this act, shall be listed and assessed in the county, town, city, village or district where their business is carried on, except such property as shall be liable to assessment elsewhere, in the hands of agents. ” It is no doubt true that the personal property of bankers is taxable where the business of banking is transacted, of hotels where that business is carried on, and of merchants where that branch of business is transacted; but we do not think it follows, where one firm is engaged in merchandizing at one point and manufacturing at another, that the assessment should be made at the point where the mercantile business is transacted. It will not be contended that if one firm was engaged in selling goods at one point, keeping hotel at another, and insurance at another, the assessment of all the personal property of the firm required in each branch of business should be made at one place. The statute will not warrant such a position, and for the same reason, and upon the same principle, a firm engaged in merchandizing at one point and manufacturing at another, can not claim the right to have all its personal property, engaged in both branches of business, assessed at one place.

■ But, independent of this view, in order to arrive at a correct construction of section 13, it will be necessary to consider other sections of the same act bearing upon the same question. Section 7 declares: “Personal property, except such as is required in this act to be listed and assessed otherwise, shall be listed and assessed in the county, town, city, village or district where the owner resides. ” Section 9, of the same act, provides: “The property of manufacturers and others, in the hands of agents, shall be listed and assessed at the place where the business of such agents is carried on. ” It is manifest that section 7 has no application to the property of manufacturers situated as is the property in question, and hence complainants in the bill can set up no claim to relief under that section of the law. It will be observed that by the terms of section 9 all property of manufacturers in the hands of agents shall be assessed at the place where the business of such agent is carried on. An examination of the evidence in this case will, we think, show, beyond controversy, that the property upon which the assessment was made came directly within the terms of section 9.

Morris Selz, one of the complainants, in his evidence says: “The business of the firm in manufacturing boots and shoes was carried on at the State prison in Joliet. The material used at the factory is bought in Milwaukee, Sheboygan, Chicago, Buffalo, New York, Pennsylvania, Ohio and Boston, and is shipped direct to Joliet, and does not pass through the Chicago house. The stock on hand at any given time at the Joliet penitentiary has not previously passed through our Chicago house. ” As to the amount of stock kept at the factory, he says: “The total amount of stock on hand at the Joliet penitentiary Christmas, 1878, including machinery, tools, etc., was $130,000 or $140,000, and I can not tell whether it was more or less on May 1, 1879, as the stock varies, and comes in $20,000 and $30,000 at a time.” The witness gives it as his judgment that the firm at no time in 1879 had, at Joliet, over $175,000. As to the authority of any one to manage the business at Joliet as an agent, the witness in substance said: “In all that would pertain to manufacturing, Henry J. Sawyer did in and about our business in Joliet, when I was absent, all that I would have done if present. He had general control of the manufacturing business, and of all the stock then oh hand at Joliet, and of all the machinery, and. of all the men that were employed, placing them and directing them how to work. He controlled that part of the business much more than I did myself. That was the condition of things in 1879, and is now. ”

From this evidence it is plain that the complainants, as manufacturers, keep on hand at Joliet a large quantity of goods in the hands of agents, and by the express terms of section 9 the property was liable to assessment at Joliet. Here was an extensive business, in which was invested from $100,000 to $200,000 capital, and from four to five hundred men were constantly employed, and it has no more relation to the business carried on in the Chicago house than a similar factory would if located in Maine or upon-the island of Cuba. The property of complainants upon which the assessment was made had-its situs at Joliet. There it received the protection of the law, and there it should bear the burden of taxation.

It is however said, in the argument, that complainants, if required to list their property in Joliet, may be liable to double taxation on the same property. The argument is, that no two assessors call for an assessment of property at the same date, and the property at Joliet might be assessed by the assessor there, then shipped to Chicago, and again assessed when the assessor called upon complainants to list their personal property in Cook county. This position is founded on a clear' misapprehension of the law. It is immaterial at what date an assessor makes an assessment. He assesses such property, and only such, as the owner had on hand on the first day of May. For example: all the personal property on hand in Chicago belonging to the firm on May 1 should be assessed at that place, and all personal property on hand at Joliet on the first day of May of each year, in the hands of agents, is liable to be assessed at that place. If this course is pursued the supposed difficulty will be removed. No part of the property on hand at Joliet on May 1, after it is assessed, will be liable to be assessed again, although it may be shipped to the house in Chicago, and be there at the time the assessor makes the assessment in that place, as complainants can only be required to list such property in Chicago as they may have on hand there on the first day of May.

We think it plain, from the evidence, that the property at Joliet was, within the meaning of section 9 of the Revenue law, property of manufacturers in the hands of agents, and as such it had its situs at Joliet, and was liable to be assessed at that place.

The decree of the circuit court will be affirmed.

Decree affirmed.