text:
    The Chicago, Rock Island and Pacific Railway Company v. E. W. Felton, Admr.

      Filed at Ottawa June 16, 1888.

    1. Negligence—giving signal of danger—as causing passenger to leave a place of safety. Where the giving of a signal, by the whistle of an engine, is a proper one under the circumstances of the case, there can be no negligence in giving the same; and if a passenger be frightened thereby, and in consequence thereof leaves the car on which he has taken passage and runs upon another track, where he is injured, without the fault of the company, no recovery can be had for the injury.
    2. In order to render a railway company liable for a personal' injury to a passenger, caused by his alarm and apprehension of danger leading him to leave a place of safety for one of peril, it is not sufficient, merely, that he became alarmed by reason of appearances produced wholly or in part by the company, but it must appear that that which produced the alarm, and through it the injury, was negligence of the company or its servants. The burden is upon the plaintiff to prove this negligence.
    3. Instruction—assuming facts as being proven. In an action against a railway company to recover for a personal injury to a passenger from negligence, an instruction which assumes that there was evidence tending to prove that defendant’s servants negligently gave an alarm signal by blowing an engine "whistle, when in fact there was no such evidence, is erroneous.
    Appeal from the Appellate Court for the Second District;— heard in that court on appeal from the Circuit Court of Will county; the Hon. George W. Stipp, Judge, presiding.
    Late on Saturday night of March 19, 1881, the Chicago, Rock Island and Pacific Railway Company started a train, consisting of a sleeper, passenger car and baggage car, to pass' on its road from Bureau Junction to Chicago. There was at the time a violent storm of wind and snow, which had begun some twenty-four hours earlier. The storm had at some points so obstructed the railway track by drifting- snow, as to prevent the passage of cars, and all regular trains had, in consequence of the storm, been much delayed. The train arrived at Ottawa near two o’clock on the morning of Sunday, the 20th, and at that place Luke H. Goodrich and William Maltby got in the passenger car to go to Joliet. From Ottawa to Chicago there is a double track, being used, generally, that on the south side for trains passing east, and that on the north side for trains passing west. The train proceeded from Ottawa east, on the south track, to Morris, where House and Marshall, intending to go to Joliet, and perhaps others, entered the passenger car. At Morris there was a snow-plow that had been passing eastwardly on the south track, but which had gotten off the track so far as to prevent present passage by that track, and on that account the train was there switched on to the north track, and it then passed on eastwardly. About a mile west of Minooka, which is the next station east of Morris, the train ran into a snow bank, which stopped its passage. Trains had passed on that track late on the evening before, and it is hence to be inferred that the obstructing snow bank was piled up by the storm after that time. Whether Goodrich knew that the train had taken the north track, and left the snow-plow on the south track at Morris, does not appear, but it does appear that Maltby, who got in the passenger car with him at Ottawa, knew it, and that House and Marshall, who got in that car at Morris, knew it. Maltby testified, when recalled for further cross-examination : “I understood, at Morris, that our train switched off on to the other track. I think I got that understanding from the conductor in coming in the train. I understood that the snow-plow was off at that time, on the other track, and I understood from the conductor that that was the reason we took the other track coming through.” Maltby had previously said that Goodrich sat behind him in the car,—he could not recollect whether one or two seats. House testified: “After I got aboard of the train, the train backed off, and switched over on the other track, and proceeded towards Chicago; that would be the north track, or left hand track coming this way, and the right hand track going west. At that time the snowplow was on the track, up near the water-tank.” Marshall testified: “I knew, at Morris, that this train was going to take the north track. I heard the conductor say so. I did not hear him aboard the train, but heard it before I got on board. I heard him talking about it to the engineer, and I knew the snow-plow was off the track there, and it was on the track ahead, and would have to get on again. * * * I knew, at Morris, that if the snow-plow, which was the very one that subsequently passed us on the south track, got on the track, it was going to take the south track.”
    Not long after the train was stopped by the snow bank, House, who had been seated in the front end of the car, arose and passed down the aisle, by Goodrich and Maltby, to the rear end of the car, and thence out on to the steps at the rear end of the car. As he passed by Goodrich and Maltby he attracted their attention by some remark, and they then both arose and followed him. House, when on the steps, looked by the sleeper, to the rear, in the direction of Morris, and saw what he thought to be the head-light of an engine, coming right into the rear end of the train. Goodrich preceded Maltby, and looked in the same direction in which House had looked, and Maltby, reaching over the shoulders of Goodrich, also looked in the same direction, and he saw what he supposed was an engine coming into the rear end of the train. House immediately turned and re-entered the car. As he did so,, he remarked, “My God, gentlemen! the snow-plow is coming into us!” About the same time, one of the engines in front of the passenger train gave what Maltby, House and Marshall understood to be a whistle of alarm. House testified: “They were sharp, quick whistles, * * * signals of danger.” Maltby testified: “While standing on the platform I heard the engines in front of our train whistling.” And on being asked what sort of whistles they were, he answered, “whistles of alarm.” Marshall testified that he had got off the train on the south side, after it stopped, and gone forward toward the engines; that he heard a remark, not loud enough, how-over, to have been heard by Goodrich, to the effect, “it’s running into us,” which caused him to turn around; that he looked back, and saw the headlight of the engine to which the snow-plow was attached,—it looked as if it was coming directly into the train; that he then stepped up to the car to notify the conductor, and as he did so he heard from one of the engines a sort of sharp, quick signal, which he understood to be a danger signal. Marshall says there was one passenger,—a young gentleman from Minooka,—with him. There was also, besides, on the ground on the south side of the train, and on or near the south track, a brakeman and some other train-men. There is no other evidence in regard to the whistle of the engine. There is nothing explaining its purpose, or the meaning of such a whistle, any further than as has been quoted.
    Immediately after House re-entered the car, and after the whistle from the engine in front, Goodrich and Maltby jumped from the steps to the ground, intending, as Maltby testified, to cross to the bank south of the south track, but advancing parallel with, instead, of directly across, the track. The evidence also shows, that about the time, or perhaps a few moments earlier than they jumped, some train-men rushed from near the engines to the bank south of the south track, and that this was observed by Maltby. There is no explanation of what induced them to do so, and it is not shown that either of them Bad any care over the passengers in the train. The inference is that they were seeking to avoid danger from the advancing snow-plow. Maltby and Goodrich, just after alighting, were caught by the snow-plow, which rushed by at a rapid speed, and Goodrich thereby received wounds of which he died on the Monday night next following.
    One of the -witnesses describes the place where the obstructing snow bank was, as a “cut,” but the depth is not stated. He describes the snow as “banked up” on the north side of the track as high as the car, but said it was not very deep on the south side. The road curves, at a point a short distance west of the obstruction, to the south, and it is therefore impossible •for a person looking from the point of obstruction westwardly, to tell whether a ear beyond the commencement of this curve is upon the one track or the other. Snow was falling and a strong wind was blowing from the north or north-west, at the time. The hour must have been not far from three o’clock in the morning. No one who remained in the passenger car was in any degree injured, or even frightened. The snow-plow threw a large quantity of snow as it advanced, and this snow falling against the windows, knocked in one or two, but did no other injury. There is no evidence that any of the railroad employes had any knowledge of the existence of the snow bank until the train ran into it, and there is no evidence that those in charge of the snow-plow knew that the train was delayed there, until after they passed it.
    The declaration contains two counts. The negligence alleged in the first is, that the servants of the defendant so negligently and carelessly managed “the said locomotive engines and the said snow-train and passenger train, that the said snowplow, in passing, with great velocity, the passenger train then standing on an adjoining track, ran upon, struck and caught up the said Luke H. Goodrich, then and there being a passenger, * * * and while exercising due and reasonable care and prudence to avoid danger, and threw him, * * * with great force and violence, upon the ground and against the side of one of the passenger cars,” etc. The negligence is thus stated in the second: “And whereas, at the time and place aforesaid, the passenger train whereon the said Goodrich was a passenger, was standing still upon the north or west-bound track, by reason of the obstructions of snow thereon, and in a cut which, by reason of a precipitous wall or bank of snow on the north side of said track and closely approaching the same, made any escape from the cars in which said Goodrich was being conveyed as aforesaid, impossible to a passenger therein in case of occasion to attempt the same; and whereas, at the time and place aforesaid, while the said passenger train, which was' bound east, was so standing upon said west-bound track, and the said Goodrich was so being conveyed as a passenger therein, the said snow-train or locomotive engine, with snowplow attached, coming from the west on the south or east-bound track, with great velocity, passed the place where said passenger train was standing, being for the time being obstructed by the snow; and whereas, from the darkness of the night and falling snow the said Goodrich was unable to discern objects at a distance, and by reason of a curve in said railroad was unable to see whether said snow-train was approaching on the north or south track, and thereby becoming terrified and alarmed, as well by the apparent direction of approach of said snow-train as by the signal of danger sounded by the servants of said company by a prolonged blast from the whistle of one of said locomotive engines to which said passenger train was attached, then and there sought to escape from the supposed danger of collision between said trains by crossing over the south or west-bound track, the said defendant, by its servants and agents, then and there so negligently, ignorantly and unskillfully managed said engines, and with such want of concert- and knowledge between the servants of said company managing said trains, respectively, that the said Goodrich was struck with great violence by said snow-plow, and was thrown and flung by the impetus of the same, upon the ground and upon and against the side of one of the ears forming said passenger train, whereby he received mortal injuries to his person, because of which he afterwards, on the 22d day of March, 1881, died; that the said Goodrich, in leaving said passenger car in the manner and at the time and place aforesaid, exercised reasonable care and diligence to apprehend and escape said apprehended and apparent danger of collision.”

      The court, at the instance of the plaintiff, gave the following among other instructions to the jury:
    “5. If, from the evidence, the jury believe'that the engineer in charge of one of the engines attached to the passenger train, either from ignorance of the character of the approaching train, or any other cause, sounded signals of alarm such as are usually given to avoid collision on the track, and that the effect of these signals of danger was to produce fright amongst the passengers, or some of them besides the deceased, while within the passenger ear, and that immediately afterwards one or more of the employes of the defendant fled across the track with precipitation, followed by one or more of the passengers, as if to avoid danger, or in such a way as to naturally produce that impression on the mind of Goodrich, and that this conduct on the part of said engineer or other employes of the defendant, to the satisfaction of the jury, was the immediate and proximate cause of the effort of said Goodrich to seek safety in the same direction, if the jury believe, from the evidence, he made such effort, such facts may be weighed in conjunction with all the other evidence in the case in determining the question of the alleged negligence on the part of the defendant, even though the jury may further believe, from the evidence, its employes were themselves deceived by a false and misleading appearance of danger.”
    Mr. Thomas F. Withrow, Mr. James C. Hutchins, and Messrs. Snapp & Snapp, for the appellant:
    To enable the plaintiff to recover when the danger was apparent, not real, the deceased must have been placed by the negligence of the defendant in such a situation as obliged him to adopt the alternative of taking a dangerous step instead of remaining at certain peril. Jones v. Boyce, 1 Starkie, 189; Stokes v. Saltonstall, 13 Pet. 181; Railroad Co. v. Green, 81 Ill. 19; Railroad Co. v. Coultas, 67 id. 398; Frost v. Railroad Co. 10 Allen, 387; Hickey v. Railroad Co. 14 id. 429; Commonwealth v. Railroad Co. 129 Mass. 500.

      The proper place for a passenger is his seat, and a voluntary abandonment thereof subjects the passenger, and not the carrier, to the responsibility of the consequences. Pennsylvania Co. v. Zebe, 33 Pa. St. 318; 37 id. 420; Railroad Co. v. Clemmens, 8 Am. & Eng. Ry. Cas. 396; Stiles v. Railroad Co. id. 195; Railway Co. v. Miles, 13 id. 10; Railway Co. v. Hawk, 18 id. 194; Quinn v. Railroad Co. 51 Ill. 495; Merrill v. Railroad Co. 139 Mass. 238; Railroad Co. v. Lane, 83 Ill. 449; Abend v. Railroad Co. 111 id. 202; Railroad Co. v. Slatton, 54 id. 137; Railway Co. v. Scates, 90 id. 586; Taylor v. Railroad Co. 10 Bradw. 311; State v. Railway Co. 58 Me. 176.
    The fifth of appellee’s instructions is not based on any evidence in the record, and this is error. Railway Co. v. Robinson, 106 id. 142; Railway Co. v. Lewis, 109 id. 125.
    Mr. G. D. A. Parks, and Mr. C. W. Brown, for the appellee:
    As to how far mistakes growing out of the fright or folly of the party injured can be regarded in the light of contributory negligence, see Wharton on Negligence, sec. 304; Coal Co. v. Healer, 84 Ill. 129; Morse v. Sweenie, 15 Bradw. 491; Coulter v. Express Co. 56 N. Y. 585.
    A party having given another reasonable cause for alarm, can not claim that the person so alarmed has not exercised cool presence of mind, and thereby find protection from liability. Coal Co. v. Healer, 84 Ill. 129 ; Railroad Co. v. Yarwood, 15 id. 471; Railroad Co. v. Able, 59 id. 131; Railroad Co. v. Carr, 35 Ind. 510; Stokes v. Saltonstall, 13 Pet. 191; Wharton on Negligence, secs. 93, 94, 304, 375, 377; Schultz v. Railway Co. 44 Wis. 644; Gumz v. Railroad Co. 52 id. 672; Railroad Co. v. Becker, 76 Ill. 25; Lund v. Inhabitants, 11 Cush. 567; Caswell v. Railroad Co. 98 Mass. 204; Trowley v. Railroad Co. 69 N. Y. 158; Buell v. Railroad Co. 31 id. 318; Iron Co. v. Mowery, 36 Ohio, 418; Railroad Co. v. Pault, 24 Ga. 356; Filer v. Railroad Co. 68 N. Y. 124; Baley v. Railroad Co. 125 Mass. 63.

      A case where plaintiff, in crossing a railway, acted upon a misleading signal of the gate-keeper: Sweeney v. Railroad Co. 10 Allen, (Mass.) 376.
    Cases of plaintiff misled by flagman: Copley v. Railroad Co. 136 Mass. 9; Warren v. Railroad Co. 8 Allen, 233; Railroad Co. v. Sykes, 96 Ill. 175; Railroad Co. v. Hannon, 47 id. 307.
   Mr. Justice Scholfield

delivered the opinion of the Court:

Since the right of recovery here is based upon the negligence of the defendant, it is not sufficient merely that plaintiff’s intestate became alarmed by reason of appearances produced wholly or in part by the defendant,—it must appear that that which produced the alarm, and, through it, the injury, was negligence of the defendant. The burden is upon the plaintiff to prove this negligence, and that is not done by proof, alone, that a peculiar signal was given by an engine of the defendant, and that it caused or aggravated the alarm of the intestate. If the signal given was, under the circumstances, a proper one, it can not have been negligence to give it.

The instruction quoted in the preceding statement, assumes that there was evidence before the jury tending to prove that the defendant’s servants negligently gave an alarm signal by blowing an engine whistle. There is no such evidence in the record. As will be seen by reference to the facts in the preceding statement, the only evidence in regard to the blowing of an engine whistle is, that an alarm whistle was blown, or, as one phrases it, “a danger signal” was given by the whistle. There is an entire absence of evidence of the purpose of giving signals by the whistle, for whom they were intended, and the results they were expected to produce. Nor is there any evidence tending to show that the signal here was unnecessarily given.

If we are left to take judicial knowledge of the purpose of giving signals by the whistle, then we know that they are not intended for the passenger on the train at all. They are for those operating the road, and to notify those who, but for the signal, might come in collision with the train, of its presence. Communications are ordinarily made with passengers, in regard to matters affecting them personally, by the conductor, more rarely by porters or other employes; but the passenger is never required to understand and heed any signal given by the whistle of the engine. No witness testified, as this instruction assumes, that the signal given was such as is usually given “to avoid collision on the track.” If those in charge of the engine apprehended injury to the ears, or to the other property of the company, or to the passengers or train-men on or near the south track, by the too rapid movement of the snow-plow, it was not only prudent, but it was their duty, to give a danger or alarm signal by the whistle to those in charge of the snowplow, so that they might moderate its speed; and since, from all the evidence, it is apparent that those in charge of the train knew that the snow-plow was on the south track, and hence that there could be no collision, it is much more "reasonable to infer that this was its purpose than that it was to avoid a collision.

It is not charged in the declaration that the train on which plaintiff’s intestate was riding, was through negligence upon the north track, and there is no evidence tending to sustain such an allegation had it been made; and it is clear, beyond all question, that the running into the snow bank was the result of an inevitable casualty. It is not claimed that the curve in the road, the darkness of the night, or the violence of the storm, can be regarded as evidence tending to establish negligence, and hence the jury must have accepted the fact that the whistle blew an alarm, as conclusive proof of negligence, and the giving of this instruction was therefore error.

The judgments of the circuit and Appellate courts are reversed, and the cause is remanded to the circuit court for a new trial. The clerk of this court will tax the costs made in the Appellate Court against the appellee, upon certificate of the amount to be filed by the clerk of the Appellate Court.

Judgment reversed.


source: Caselaw Access Project

author: Mr. Chief Justice Craig

license: Public Domain

text:
    Albert W. Jansen v. Cornelia B. Grimshaw.

      Filed at Springfield June 15, 1888.

    1. Joint obligations—judgment against a part of the obligors, as a bar to a recovery aginst the others. A judgment against a part of several joint promisors or partners will be a bar to a subsequent recovery against one or all of the remaining joint contractors.
    2. Same—practice—where some of the defendants withdraw their pleas, the pleas of others remaining. Where two of three defendants in an action ex contractu withdraw their pleas, the proper practice is to enter their default, and it is error to enter final judgment against them until the cause is disposed of as to the third defendant, whose pleas remain in the record.
    3. Amendment of record—at a subsequent term. After the adjournment of the term of court at which a judgment is rendered, the court may, at a second term, on notice, amend the record thereof in a merely formal respect, but after the term closes, the court has no power to vacate or set aside a judgment.
    4. Removal of cause—from State to Federal court—remaining jurisdiction in the State court. Where a State court has ordered the removal of a cause pending therein to the Circuit Court of the United States, even though such order is erroneous, until the cause is remanded back the former court will have no power or jurisdiction to enter any order or judgment in the case.
    5. Same—of proceedings after remandment. Where, at the same time and in the same order, judgment is rendered against two defendants by default, the entire cause is transferred to the Circuit Court of the United States on the application of a third defendant, the State court will have no power to vacate the judgment against the two defendants until the cause is sent back from the Federal court; but a motion to vacate such judgment on the first day of the next term after the cause is remanded back, will be in apt time, although an intervening term of the State court has passed.
    6. Payment—by renewal of note. The giving of one promissory note in renewal of another does not necessarily operate as a payment. In order to have that effect it must be so understood and intended by the parties.

    7. Practice—counsel reading and commenting on instructions, to the jury, in argument. While this court is not inclined to favor the practice of counsel in reading the instructions he proposes to ask, and commenting thereon, before the jury, in his argument, yet the court is not prepared to say there is error in allowing such course to be pursued.

      Appeal from the Appellate Court for the Third District;—■ heard in that court on appeal from the Circuit Court of Adams county; the Hon. William Marsh, Judge, presiding.
    This was an action of assumpsit, brought by Cornelia B. Grimshaw, against Albert W. Jansen, Frederick G. Jansen and Charles C. Jansen, to recover the amount of a promissory note executed by the defendants, under the firm name of F. W. Jansen & Son. On the 1st day of February, 1881, the three defendants, who were brothers, were engaged in business in Quincy, under the firm name of F. W. Jansen & Son, and on that day they borrowed from the plaintiff, Cornelia B. Grimshaw, $2000, and executed and delivered to her a promissory note, signed “F. W. Jansen & Son,” for the amount, due in two years, with interest at the rate of seven per cent per annum. In November, 1881, Albert W. Jansen withdrew from the firm, and notice of his withdrawal was published in a newspaper published in Quincy; but the plaintiff never saw the •notice, and the evidence tends to show that she had no knowledge of any change in the firm. After, Albert W. Jansen withdrew from the firm, the business was continued by Charles C. and Frederick G. Jansen, under the same firm name,—F. W. Jansen & Son,—until February, 1886, when they made an assignment. When the note became due, the interest was paid and a new note executed, bearing date February 1, 1883, due in two years, for $2000, with interest at eight per cent per annum, signed, as was the old one, “F. W. Jansen & Son.” When the new note was received the old one was surrendered. The interest seems to have been regularly paid until the firm failed and assigned, as stated before, in February, 1886.
    The declaration contained one count on the old note, and also a count on the new note, and the common counts. The defendant Albert W. Jansen pleaded the general issue and several special pleas, in which he denied the execution of the note dated February 1, 1883, upon which issue was joined. He also denied that he was a member of the firm when the note was executed. To this it was replied, that Albert W. Jansen had, previous to the execution of the note, been a partner in the firm of F. W. Jansen & Son, and that while he was such partner plaintiff had given credit to the firm, and at the time the note of February 1, 1883, was executed and delivered, she had no notice of his withdrawal from the firm, and that she accepted the note believing he was still a member of the firm. The defendant Albert W. Jansen also interposed a plea, which, in substance, declared that plaintiff accepted and received the promissory note of February 1, 1883, from Charles G. and Frederick G. Jansen, in full satisfaction of all indebtedness sued for, except the note of February 1, 1883. To this the plaintiff, in substance, replied, that she did not accept the second note in full satisfaction of such indebtedness alleged in the plea. The other two defendants filed pleas to the declaration, but as they were subsequently withdrawn, it will not be necessary to notice them here.
    The issues having been made up, and the cause being ready for trial when it should be reached on a call of the docket, on the 5th day of April, 1886, the defendant Albert W. Jansen, being a non-resident of the State, filed a petition for the removal of the cause to the Federal court. Two days later, on April 7, the other defendants,' Charles C. and Frederick G. Jansen, withdrew their pleas. Judgment by default was thereupon rendered against them, and on motion of the plaintiff her damages were assessed, and judgment entered for $2029.74 and costs. At the same time an order was entered sustaining the motion of defendant Albert W. Jansen to remove the cause to the Federal court, and an order was entered, that “this cause be removed to the Circuit Court of the United States for the Southern District of Illinois.” On the 15th day of May, following, court adjourned for the term. On the 7th day of June a transcript of the cause was filed in the Circuit Court of the United States. On the 21st of June, 1886, the circuit court of Adams county again convened, and adjourned for the term on the 2d day of July. On the 15th day of October, 1886, the Circuit Court of the United States, on motion of plaintiff, remanded the cause to the circuit court of Adams county. On the 25th day of October, which was the first day of the October term of the Adams circuit court, plaintiff entered a motion to vacate the judgment rendered against Frederick G. and Charles C. Jansen at the previous March term, and the three defendants entered a cross-motion to strike the cause from the docket. The court sustained plaintiff’s motion to vacate the judgment, and overruled defendants’ cross-motion. Afterwards, the defendants Charles C. and Frederick G. Jansen, by leave of court, filed a plea of former recovery, setting up the judgment recovered at the March term as a bar. To this plea plaintiff replied there was no such judgment remaining in full force and effect, and prayed that the same may be inquired of by the court by inspection of the record, upon which issue was joined. On the 12th day of .November, 1886, a trial was had before a jury, resulting in a verdict and judgment against all the defendants for $2125.75. On the appeal of Albert W. Jansen, alone, the judgment was affirmed in the Appellate Court. To reverse the judgment of the Appellate Court he has appealed to this court.
    Messrs. Carter & Govert, for the appellant:
    A judgment against one member of a firm, for a debt due from the firm, constitutes a bar to a recovery against the other members. Gray v. Gillilan, 15 Ill. 453; Thompson v. Emmert, id. 415; King v. Hoare, 13 M. & W. 494; Warm v. McNulty, 2 Gilm. 355; Sloo v. Lee, 18 Ohio, 279; Peters v. Sanford, 1 Denio, 224; Smith v. Black, 9 S. & R. 142; Ward v. Johnson, 13 Mass. 148; Mitchell v. Brewster, 28 Ill. 163; The Fire and Marine Bank, 13 S. & R. 288; Taylor v. Claypool, 5 Blackf. 558; Hoale v. Hollins, 11 G. & J. 11; Mason v. Eldrid, 6 Wall. 231.

      It is held that the entry of a nolle prosequi as to a defendant who pleads the general issue, in an action ex contractu against several, discharges all. Tolman v. Spaulding, 3 Scam. 13.
    Judgment must be taken against all who are served, or none. The cause of action is merged in the judgment, those not included in it are released, and the judgment is a complete bar to any further recovery. Gribbin v. Thompson, 28 Ill. 61; Kimmel v. Shultz, Breese, 169; Russell v. Hogan, 1 Scam. 552; Hoxey v. Macoupin County, 2 id. 36; McConnel v. Swailes, id. 571; Tolman v. Spaulding, 3 id. 13; Wight v. Meredith, 4 id. 360; Wight v. Hoffman, id. 362; Towle v. Bailey, 43 Md. 18; Schuler v. Israel, 27 Fed. Rep. 851; People v. Harrison, 82 Ill. 84; Byers v. Bank, 85 id. 423; Felsenthal v. Durand, 86 id. 230; Faulk v. Kellums, 54 id. 188; Kimball v. Tanner, 63 id. 519; Goodale v. Cooper, 6 Bradw. 81.
    Even where the obligation is both joint and several, if the defendants are sued jointly, the rule as to joint contracts will govern, and separate judgments can not be rendered. Gould v. Sternburg, 69 Ill. 531.
    The court had no power to set aside the judgment after the term at which it was rendered. Garner v. Crenshaw, 1 Scam. 143; Rider v. Twiss, 3 id. 4; Cook v. Wood, 24 Ill. 295; Cox v. Brackett, 41 id. 222; Messervey v. Beckwith, id. 452; Lill v. Stookey, 72 id. 495; Becker v. Sauler, 89 id. 596; Coursen V. Hixon, 78 id. 339; McKindley v. Buck, 43 id. 488; Knox v. Bank, 57 id. 330; Baptiste v. Transportation Co. 29 Fed. Rep. 180.
    A former judgment rendered for the same cause of action may be given in evidence under the general issue, and when thus given, will bar further recovery. Judgment will be held conclusive, even under the general issue. Gray v. Gillilan, 15 Ill. 453, and cases cited.
    Where a new note is given in lieu of an old one, and the old one is surrendered and cancelled, the old note is no longer in force for any purpose, and will be regarded as paid. Wicken

      kamp v. Wickenkamp, 77 Ill. 96; Wilkinson v. Stewart, 30 id. 48; Yates v. Valentine, 71 id. 643; Tucker v. Conwell, 67 id. 552; Fridley v. Bowen, 5 Bradw. 191; Morrison v. Smith, 81 Ill. 221.
    Mr. John H. Williams, for the appellee:
    The giving of a promissory note in lieu of another, unless intended and understood by the parties as a payment, is no payment, and does not discharge the maker from liability on the first note. Hill v. Marcy, 49 N. H. 268; Thompson v. Briggs, 28 id. 40; Yates v. Valentine, 71 Ill. 643.
    A retiring partner is liable for debts contracted by the firm after his retirement, with those who have had prior dealings with the firm, unless they have had actual notice of his retirement. Warren v. Ball, 37 Ill. 80; Meyer v. Krohn, 114 id. 580.
    A party can not allege errors which relate exclusively to other parties who are not complaining, and who are not before the court. Clark v. Marfield, 77 Ill. 258; Henrickson v. Van-Winkle, 21 id. 274; Horner v. Zimmerman, 45 id. 14; Cromine v. Tharp, 42 id. 121; Richards v. Greene, 78 id. 526.
    When a State court has ordered a removal of a cause to the Federal court, although erroneously, its jurisdiction is at an end until restored by the action of the Federal court; and in such case, on the order of the Federal court remanding the case, the jurisdiction of the latter court re-attaches, and it may proceed therewith. Dillon on Removal of Causes, (3d ed.) p. 406, sec. 87; Thatcher v. McWilliams, 47 Ga. 306; Fire Ins. Co. v. Francis, 52 Miss. 457.

      See, also, Belleville Savings Bank v. Bornman et al. 124 Ill. 200, and Cheltenham Stone and Gravel Co. v. Gates Iron Works, id. 623.

   Mr. Chief Justice Craig

delivered the opinion of the Court:

It is first contended by appellant that the circuit court erred in sustaining the motion of plaintiff, made at the October term, 1886, to vacate the judgment rendered against appellant’s co-defendants in this cause at the previous March term, and in overruling the cross-motion of appellant and his co-defendants to strike the cause from the docket.

This action was brought against the three defendants as partners,—as joint promisors; and where an action is brought upon a liability of that character, the law is well settled that a judgment against one or two of the joint promisors will be a bar to a future recovery against one or all of the remaining joint contractors. (Wann v. McNulty, 2 Gilm. 355; Thompson v. Emmert, 15 Ill. 415; Mitchell v. Brewster, 28 id. 167; Peters v. Sanford, 1 Denio, 224; Ward v. Johnson, 13 Mass. 148.) The action of the court, therefore, in vacating the judgment when it was vacated, materially affected the rights of appellant, because no recovery could be had against him so long as the judgment remained in full force against the other two defendants. It becomes important, therefore, to determine whether the court had the power to set aside the judgment at the October term, 1886.

It will be remembered that the judgment had been rendered against the two defendants at the March term, and that a June term had intervened, no steps having been taken at the March or June term to vacate the judgment. The general rule is, where a judgment has been rendered at a term of court, and the court adjourns for the term, the court may, at a second term, on notice, amend the judgment in a mere formal respect; but after the term closes, the court has no power to vacate or set aside a judgment. (Cook v. Wood, 24 Ill. 295.) There are cases where it has been held, where the motion to vacate a judgment is made at the same term at which it is rendered, and the motion is continued until a subsequent term, the court has power at such subsequent term to allow the motion and vacate the judgment. Hibbard v. Mueller, 86 Ill. 256, and Hearson v. Graudine, 87 id. 115, so hold. But the doctrine of those eases has no application here, as no motion to vacate was made at the term when the judgment was entered. When the two defendants, at the March term, withdrew their pleas, the court might properly have entered their default; but the court had no authority to render a judgment against them until. the cause was disposed of as to the third defendant, and there can be no doubt but the judgment was erroneous.

There is, however, one consideration which, in our judgment, has a material bearing on the question. Albert W. Jansen, one of the defendants, on April 5, 1886, entered a motion to remove the cause to the United States Circuit Court for the Southern District of Illinois. In connection with the motion a petition, bond and affidavit were filed. No further steps were taken in the case until the 7th day of April, two days later, when the other defendants, Frederick G. Jansen and Charles C. Jansen, withdrew their pleas and appearance, and then default was entered, and judgment rendered against them for the amount of the note and interest, upon which the action was brought. At the same time, and as a part of the same order wherein judgment was rendered against the two defendants, the court entered an order, as follows: “And this cause now coming on to be heard, upon the motion of the defendant Albert W. Jansen to remove this cause to the Circuit Court of the United States for the Southern District of Illinois, heretofore entered herein, and the court * * * doth order that said motion be sustained. And it is further ordered by the court, that this cause be removed to the Circuit Court of the United States for the Southern District of Illinois.” It thus appears that by one order the court rendered a judgment against two of the defendants, and at the same time removed the cause to the Federal court. The cause was not removed as to the defendant Albert W. Jansen alone, but the entire cause,—the action as originally commenced,—was transferred to the Federal court. It is true, the order of removal was erroneous, as 'held in Fraser v. Jennison, 16 Otto, 191; but that does not affect the question involved. After the order of removal had been entered, the jurisdiction of the circuit court in the cause was suspended. That court thereafter, and while the cause was pending in the Federal court, had no power to enter any order or judgment in the cause. Had a motion been made at the March term to vacate the judgment against the two defendants, the court would have been powerless to entertain it, (Dillon on Removal of Causes, sec. 87,) because the cause had been transferred to the Federal court, and was pending in that court. The order of removal suspended all power or jurisdiction over the cause until such time as the cause should be transferred from the Federal back to the circuit court. This occurred on October 15, when the cause was remanded to the circuit court. On October 25, the first day of the October term of the circuit court, the plaintiff entered her motion to vacate the judgment rendered against the two defendants at the March term of court. This was the first time after the judgment was rendered that the circuit court could entertain jurisdiction to hear and determine the application to vacate the judgment, and we think the motion, under the facts of this case, was in apt time. When the cause was remanded the court assumed the same jurisdiction over the cause that it had at the time of removal, and could then entertain any motion which would have been proper before removal. In conclusion, we are of opinion that the court did not err in vacating the judgment.

From what has been said, it follows that the ruling of the court on the admission of evidence and the instructions to the jury on this branch of the case, was correct.

It is also contended that the court erred in admitting in evidence the note of February 1, 1881, which had been surrendered when the new note was given in renewal. The giving of one promissory note in lieu of another does not necessarily operate as a payment. In order to have that effect it must be so understood and intended by the parties. (Yates v. Valentine, 71 Ill. 644; Thompson v. Briggs, 28 N. H. 40; Hill v. Morey, 49 id. 268.) In the last case cited, where the facts are quite similar to the facts in this case, it is said: . “In the case of the dissolution of a firm by the retirement of some of the members, and a continuance of the business by the others in the same name, the giving and receiving of a note by the new firm, for a debt of the old firm, will not be payment, unless it was so agreed by the parties.” We think the court was right in deciding that the note was competent evidence for the jury. Whether it was paid or not was a question to be determined from all the evidence.

Several other questions have been raised in regard to the admission and exclusion of evidence, but they are all of a technical character, and have no direct bearing on the merits of the case, and it will serve no useful purpose to consume time in a discussion of them here. On the whole, the ruling of the court on the admission and exclusion of evidence we think was substantially correct.

It is also claimed that the court erred in permitting counsel for plaintiff to read to the jury, in his argument, the instructions which he proposed to ask the court to give to the jury, and in making comments thereon. We are not aware that the course pursued in the argument has been practiced to any extent in any part of the State, and we are not inclined to favor it; but at the same time, we can not say that what counsel did was error for which the judgment should be reversed. Much latitude is always allowed in the argument of causes before a jury. Counsel have the right to state to the jury the propositions of law involved in the case upon which they rely, and predicate the argument upon such propositions. If this may be done, upon the same principle we see no good reason why counsel, in the argument, may not read to the jury the instructions which they intend to ask, and insist before the jury that such instructions contain the law involved in the case. Where this course is pursued, the attorney takes the risk of having his argument condemned by the refusal of the court to give the instructions.

The decision of the court in giving, refusing and modifying instructions, is relied upon as error. After a careful consideration of the instructions and the questions raised by counsel, without entering upon a critical review of objections urged to the decision of the court, we deem it sufficient to say that we find no substantial error in the ruling of the court in this regard. All the law involved in the ease was fully given to the jury, and we see nothing in the instructions calculated to mislead, and although slight errors may have been committed, nothing of such magnitude occurred as to authorize a reversal of the judgment.

The judgment of the Appellate Court will he affirmed.

Judgment affirmed.


author: Mr. Justice Scott

text:
    Virginia B. Holmes v. Augustus A. Parker.

      Filed at Ottawa June 16, 1888.

    1. Judgment by confession—opening to let in defense. A judgment by confession will not be vacated to let in a defense, when the affidavits filed in support of the motion fail to show that a defense can be successfully made. And when there is no defense to the principal indebtedness, there can be none to a note given as collateral security for the same by a third person.
    2. Warrant of attorney—to confess judgment—construed as to person for whose benefit it is given. H. & E. being indebted by note to P., and pressed for payment, H. induced his wife to give her note of the same amount, payable to H. or order, and upon the same paper a warrant of attorney authorizing the confession of judgment thereon in favor of “H. & Bro., or their assigns.” There had been such a firm as H. & Bro., but it did not appear it was then in existence: Held, that the note and warrant of attorney should be construed together, and that it was the intention of the maker of the note and power of attorney, that judgment might be confessed in favor of the payee of the note, or his assignee. In such case, the words, “& Bro.,” contained in the warrant of attorney, should be rejected as surplusage.
    3. The rule that a power to confess judgment must be clearly given and strictly pursued, like all other rules, has its reasonable limitations, and must not be applied with such strictness as to defeat the obvious intention of the party granting the power.

      Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. John P. Altgeld, Judge, presiding.
    Messrs. Bisbee, Ahrens & Decker, for the appellant.
    Mr. Henry S. Monroe, for the appellee.
   Mr. Justice Scott

delivered the opinion of the Court:

At the March term, 1887, of the Superior Court of Cook county, there was a judgment entered by confession against Virginia B. Holmes, and in favor of Augustus A. Parker, for the amount due on a certain promissory note made by defendant to Ira Holmes, and by him indorsed to plaintiff, together with attorney’s fees therein provided, amounting in the aggregate to the sum of $5649.38. . With the declaration on the note there was filed the note itself, with the power of attorney attached, an affidavit proving the signature to the power of attorney, and a cognovit, in the usual form, by which the attorney confessed judgment for the amount due on the note, with attorney’s fees. At the April term next thereafter of the court in which the judgment was entered, defendant appeared and entered her motion to vacate and set aside that judgment, and for leave to' plead, and for a trial of the cause, for reasons set forth in writing, and for other reasons that would be stated upon the argument of the motion. Affidavits were filed by the respective parties, both in support and against the allowance of that motion. On the hearing of the cause the court refused to vacate and set aside the judgment, but ordered that it be reduced to $5285.80, to which ruling of the court defendant excepted. The judgment of the Superior Court was affirmed in the Appellate Court for the First District, and defendant brings the case to this court on appeal.

The grounds of defendant’s motion to vacate the judgment and for leave to plead are stated in several propositions, but the substance of all of them is the following: First, that defendant has a good defense, upon the merits, to the whole of plaintiff’s demand upon the note upon which the judgment was entered; and second, that there is no sufficient warrant of attorney filed in the cause to authorize the entering of judgment by confession against defendant.

On looking into the affidavits in support of and against the motion, it does not appear there is any sufficient ground for opening the case to allow defendant to plead to the merits of the cause. It appears Ira Holmes and Frederick S. Eames were indebted to plaintiff in the sum of $6093.75, for which they gave him their note, payable on demand, and bearing date December 10, 1883. Afterwards, when plaintiff was urging payment of the note, Ira Holmes induced his wife, the defendant, to make her note to him for the exact amount of the note of Holmes & Eames to plaintiff, and bearing the same date, and delivered the same to plaintiff as collateral security for the note of Holmes & Eames to plaintiff. It was accommodation paper, and no doubt it was made to be used as it was. To this note of defendant was attached the power of attorney by virtue of which the judgment was confessed. The affidavits do not show that there is or can be any defense successfully made by Holmes & Eames, or either of them, to their note to plaintiff, and if that is so, of course defendant could make no successful defense to her note in suit. There was no error in the judgment of the court in disallowing the motion to plead to the merits of the case.

The question of most difficulty is, whether there is any sufficient warrant of attorney filed in the cause to authorize the entering of the judgment by confession. The objection taken is, the note is made payable to Ira Holmes, or order, and the warrant of attorney authorizes the judgment to be confessed in “favor of said Holmes & Bro., or their assigns.” There had been such a firm as “Holmes & Bro.,” but the affidavits do not disclose there was any such firm in existence at the date of this transaction. Undoubtedly the blank used for making the note and power of attorney was one of the kind that had been used by the firm of Holmes & Bro. when engaged in business. It will be seen, the note and warrant of attorney are both on the same paper, and are both above the signature of defendant, there being but one signature. They should therefore be considered as constituting a single instrument. When that is done, it seems plain it means the attorney may confess judgment in favor of the said “Holmes or his assigns,”—that is, the payee-of the note. The firm of “Holmes & Bro.,” if any such firm existed at the time, had not the slightest interest in the transaction, and it would be an unreasonable construction to hold it was intended the judgment should be confessed in favor of strangers to the parties holding or owning the note.

The rule that the power to confess a judgment must be clearly given and strictly pursued, otherwise the judgment may be set aside at the instance of the defendant, like all other rules, has its reasonable limitations, and must not be applied with such strictness as to defeat the obvious intentions of the party granting the power. (Keith v. Kellogg, 97 Ill. 147.) Construing the note and warrant of attorney as a single instrument, in the light of this reasonable rule, no one can be in doubt as to its meaning. It was the evident intention of defendant the judgment should be confessed in favor of the payee or his ■assigns. The words, “& Bro.,” contained in the warrant of .attorney, may be rejected as having no meaning in that connection, and it should be construed as it would be had they been omitted, and it contained only the words “said Holmes or his assigns.” Any other construction would defeat the evident purpose of defendant in making the note, and would impute to the parties the doing of a useless and even absurd thing, which the law will not do when a reasonable construction will .effectuate their manifest intention.

The judgment of the Appellate Court will be affirmed.

Judgment affirmed. -


author: Mr. Justice Mulkey

text:
    The Chicago, Santa Fe and California Railway Company v. De Witt Phelps.

      Filed at Ottawa June 16, 1888.
    1. Eminent domain—right of entry pending petitioner’s appeal. Where-a railway company prosecutes an appeal from the assessment of compensation and damages, and gives the bond provided for in section 13 of the Eminent Domain act, conditioned for the payment of such compensation as may be finally adjudged in the case, it will have the right to enter upon the use of the property pending the appeal, and it will be error in the trial court to refuse the petitioner an order authorizing such entry and use.
    2. Same—conditional acceptance by land owner of compensation money deposited as a condition to granting'right of entry pending appeal—effect upon the appeal itself. Where a railway company seeking a condemnation, for right of way and for depot grounds, appealed from the assessment of compensation and damages, and was required to deposit the amount of the assessment with the county treasurer before the court would make an order giving a right of entry pending the appeal, and the land owner, before the trial of the appeal, received the condemnation money of the treasurer upon condition he would return the same to the company in case of a reversal of the judgment, it was held, that the receipt of the money under such circumstances was not such a satisfaction and extinction of the judgment as that no appeal would lie from it, and consequently no ground for dismissing the appeal. In such case, the payment was not intended by the parties as a payment of the judgment appealed from.
    3. Same—damages as to land not taken—burden of proof—evidence in rebuttal. The petitioner, in seeking to condemn land for railway purposes, is not bound to assume that land not taken will be damaged, and go on and make proof in respect of it, nor, in the absence of proof by the land owner tending to show such damage, is it bound to assume the burden of proving a negative.
    4. On the assessment of the compensation for land sought to be condemned for a railroad depot and right of way, the petitioner gave evidence as to the value of the land sought to be taken, but none as to damage to-land not taken. The land owner gave evidence on the question of compensation, and also as to damages to the land not sought to be taken, and the court refused to allow the petitioner to give evidence in rebuttal on the question of such alleged damages: Held, that the court erred in excluding the evidence offered in rebuttal in relation to the damages claimed as to the land not taken.

      Appeal from the County Court of Warren county; the Hon. J. H. Stewart, Judge, presiding.
    Messrs. Grier & Stewart, for the appellant:
    Appellee had no right to have damages assessed to the north half of the south-west quarter of section 26, without bringing it in by proper cross-petition. Mix v. Railway Co. 67 Ill. 319; Jones v. Railway Co. 68 id. 380; Railway Co. v. Sawyer, 71 id. 361; Railroad Co. v. Hopkins, 90 id. 316.
    The court erred in refusing to allow petitioner to rebut the evidence of damages to the land not taken, especially that brought into the case by cross-petition. As to the land actually taken, the court will presume it has value, being actual property, but the court can not presume that the market value of the balance not taken will be diminished. Suver v. Railway Co. 123 Ill. 293.
    The money was paid to the county treasurer to enable the appellant to enter upon the land pending the appeal, and by him to the appellee, under an agreement it should be repaid in case of a reversal. The transaction was not a payment and satisfaction of the judgment. Railway Co. v. Coal Co. 79 Ill. 121; Prickett v. Madison County, 14 Bradw. 454.
    Mr. A. McKenzie, for the appellee:
    The petitioners had no right to rebut the proof of damages as to the part not taken of the two eighties named in the petition. It is only as to additional land a cross-petition is required. Railroad Co. v. Hopkins, 90 Ill. 316; Mix v. Railroad Co. 67 id. 319; Railway Co. v. Birkbeck, 70 id. 208; Rev. Stat. chap. 47, secs. 8, 9.
    The damage to land not taken, when there is such damage, is as much a part of the just compensation as is the value of the land taken. The petitioner has the opening and closing to the jury. It first exhibits its evidence of what the “just compensation” is, and it would be hardly fair to let petitioner put in proof of a part of what the compensation would and should be, and then, if no other evidence was offered, get off with but a part, but if the rest of the true and “just compensation” is shown by other evidence, then come in with reserve evidence to rebut.
    - The petitioner must, in the first instance, show what is a "just compensation.” He is bound to go into the whole matter of compensation as to lands mentioned and described in his petition. There is no good reason why he can reserve evidence proper in chief, and which honesty would require him to introduce in chief if no defense was made, and then call it rebuttal.
    The petitioner should be compelled to bring forward proof of “just compensation,” and there is no more reason or justice in saying he can keep back one branch as rebuttal, than another.
    The court had no right, under the statute, to grant petitioner’s motion to be let into possession without first paying the compensation.
    The statute provides what the order shall be: “The judge or court shall, upon such report, proceed to adjudge and make such order as to right and justice shall pertain, ordering that petitioner enter upon such property, and the use of the same, upon payment of full compensation, as ascertained, as aforesaid.” Rev. Stat. sec. 10, “Eminent Domain.”
    “Private property shall not be taken for public use without just compensation.” Const. 1870, art. 2, sec. 13.
    The language and plain intent of the statute are, that no right to the land shall inure to the corporation until payment of the compensation. Cook v. South Park Comrs. 61 Ill. 121.
    Under the statute and constitution, the petitioners can not occupy the land until the damages assessed are paid. In no other mode can an owner be deprived of his land through the exercise of the power of eminent domain. (People v. Williams, 51 Ill. 63.) He can not be referred to a corporation of doubtful responsibility, and a judgment (or bond) which may never be paid. Cook v. South Park Comrs. 61 Ill. 115.
    The appellant can not voluntarily pay an amount adjudged as compensation, and at the same time prosecute an appeal from the judgment fixing the amount of such compensation.
   Mr. Justice Mulkey

delivered the opinion of the Court:

The appellant, on the 19th of July, 1887, presented its petition, under the Eminent Domain act, to the judge of the county court of Warren county, praying for the condemnation of a strip of land for right of way, one hundred feet wide, extending across a. part of the south half of the south-west quarter, and the west half of the south-east quarter, of section 26, township 10 north, range 3 west, being the property of appellee. The judge made an indorsement on the petition, stating the time it was presented, and fixing the 3d of August for hearing the same. Pending the hearing, which commenced on the day stated, by leave of the court, and with the consent of the parties, it was agreed that the petition should be amended so as to embrace not only the strip of land required for right of way, but also an additional strip for the purposes of depot buildings, switches, side-tracks, etc. To meet this change in the scope of the petition, which appellee claimed would injuriously affect the north half of the south-west quarter of section 26,—a part of his farm not mentioned in the petition,—it was further agreed that appellee should file a cross-petition, setting forth his claim to damages for the alleged injury to the latter tract. With a view of facilitating the trial, it was agreed between counsel that the hearing of the evidence should proceed as though the cross-petition was on file, and that counsel for appellee might prepare it and place it on file at their leisure. It appears, however, that although it was prepared while the trial was going on, yet it was never filed by the clerk, or incorporated into the record, until after the present appeal was taken. Indeed, the original cross-petition was lost altogether; yet, upon notice in the lower court to amend the record, its contents were proved, and a substantial copy of it substituted in its stead. It is quite clear the case was tried upon the theory that there was a cross-petition in it, and this was so understood by the court and the counsel on both sides, and, as just seen, when it was discovered the transcript did not contain the cross-petition,'the record, upon due notice, was amended. The jury, .by their verdict, fixed the value of the land taken at $955.52, and assessed the damages to the land not taken at $1658, making altogether $2613.52, and judgment was entered upon the verdict for that amount. The company prayed an appeal to this court, which was allowed “on petitioner filing bond, on appeal, in the sum of $5000, with approved security, the said bond to be approved by the judge of the county court, and filed in thirty days from that date, * * * the condition of said bond to be for the payment of such compensation as might be finally adjudged in this case.” The court, however, refused to make an order permitting the petitioner to go into possession of the premises sought to be taken, upon the execution of such bond, to which ruling of the court the petitioner at the time excepted.

The 13th section of the Eminent Domain act, and under which said order was asked, provides as follows: “In cases in which compensation shall be provided, as aforesaid, if the party in whose favor the same is ascertained shall appeal such proceeding, the petitioner shall, notwithstanding, have the right to enter upon the use of the property, upon entering into bond, with sufficient surety, payable to the party interested in such compensation, conditioned for the payment of such compensation as may be finally adjudged in the case; and in case of appeal by the petitioner, petitioner shall enter into like bond, with approved surety.” While this section does not, in express terms, provide that the petitioning company, on its own appeal, shall, upon filing the bond therein provided for, have the right to enter upon the use of the property pending the litigation, nevertheless we think this was the intention of the legislature, and any other construction of it would subject the petitioner "to great loss and inconvenience in the case of an oppressive .and unjust judgment, from which an appeal would afford the only relief. Upon a careful consideration of the question, we are of opinion that the county court erred in not making the •order in question. By such entry the petitioner only acquires "the temporary use of the premises pending the litigation; and so far as any constitutional question is concerned, we perceive mo difference, on principle, between a case like this and one where a railway company enters upon the land of another for the purpose of making preliminary surveys and locating its line of road, and the right to do this is not questioned.

It further appears, that the petitioner, failing to obtain the ■order in question, deposited the amount of the judgment with the county treasurer,' who executed to the company his receipt therefor, and thereupon the treasurer paid the same over to appellee, upon the terms and conditions set forth in the subjoined receipt, which, after being entitled in the cause, proceeds as follows:

“Received of W. T. Gossett, county treasurer of Warren county, Illinois, $2613.52, being the full amount of money deposited with him by the above company, under order of court in the above entitled cause, which I hereby agree to refund to the Chicago, Santa Fe and California Railway Company in ■case the judgment in the above entitled cause shall be reversed by the Supreme Court of this State, on appeal or writ of error.
“Dated September 1, 1887.
DeWitt Phelps.”

Appellee, proceeding upon the hypothesis that the delivery of the money deposited by the company with the county treasurer to appellee, notwithstanding the conditions upon which such delivery was made, operated as. an absolute satisfaction and extinction of the judgment, so that no appeal would lie from it, has entered a motion in this court to dismiss the appeal upon the stipulated facts, as just stated. That it was not the intention of the parties that the transaction should have such an effect, is manifest. Nor do we think the law, in contravention of the manifest understanding of the parties, attaches to it the serious consequences which appellee’s counsel ascribe to it. The motion has little, if anything, to commend it, view it-as we may, and it will therefore be overruled.

The petitioner, on- the trial, offered no evidence in chief except as to the value of. the land to be taken. The- appellee then offered evidence not only in respect to the value’of the land taken, but also for the purpose of showing damages in respect to the land not taken, including that mentioned in the petition as well as the cross-petition.' The appellant then introduced as a witness'J. W. Robertson, who, after stating he-was acquainted with the manner in which appellant’s road runs through the land in question, and how appellee’s farm and buildings are located, was asked the following questions:

“What effect, in your judgment, will the construction and operation of that railroad, where .it is proposed to construct and operate it, with a station on the ground of Mr. Phelps, have upon the market value,—the selling value,—of the land that is not taken ?”
“Will the market value of the south half of the south-west quarter of section 26, and the west half of the south-east quarter of section 26, be in any way affected, in your judgment, by the construction and operation of the railroad, with a depot on the ground ?”
“In your judgment, will the construction and operation of this railroad across the south half of the south-west quarter of section 26, and the west half of the south-east quarter of Section 26, diminish the market value of the balance of these two eighties not included in the right of way ?”

" On objection by appellee, these questions were all held by the court improper, on the ground, as we gather it, that the evidence should have been offered in chief, and not in rebuttal. Many questions of like character, propounded to other witnesses, were excluded by the court on the same grounds, to all of which rulings the appellant, by its counsel, excepted. We think the court erred in not permitting the witness to answer the above questions, and in holding other questions of like character improper.

While we fully recognize the general rule, that a plaintiff will not be permitted to reserve a part of his evidence in chief, to be brought forward in rebuttal, and thereby obtain an undue advantage over his adversary, yet; at the same time, we do not think the appellant, by reason of this rule, was bound, at its peril, to assume that the land not taken was damaged, and to go on and try to make proof of it. Nor was appellant, on the other hand, in the absence of any proof tending to show such damage, bound to assume the burden of proving a negative. The appellant’s right to the relief asked did not depend at all upon its showing that the land not taken was damaged. Such proof would not have been in support of any allegation in the petition, yet, under the decisions of this court, the appellee had the right to offer such evidence, under the petition, as to all lands mentioned in it, without filing a cross-petition. Having availed himself of this right by offering new and independent evidence, we think it clear the appellant had the right to be heard in rebuttal.

For the errors indicated, the judgment of the court below will be reversed, and the cause remanded for further proceedings in conformity with this opinion.

Judgment reversed.


author: Mr. Justice Shope

text:
    The Russell and Allison Drainage District v. A. J. Benson et al.

      Filed at Mt. Vernon June 16, 1888.

    1. Construction or statutes—-whether to be given a retrospective operation. While the legislature has the power to pass statutes of a retroactive effect, yet, as a general rule, they are intended to operate in futuro, only, and a retrospective effect will not be given unless it clearly appears that such was the intention of the legislature, particularly if the rights of the public or of individuals may be injuriously affected thereby.
    2. Drainage law—discharging lands from, assessment—time within which to file petition. Section 43 of the Drainage act of 1883 limited the filing of petitions for amending the assessment roll so as to discharge lands not subject to overflow, to one year after the confirmation of the assessment. By the act of «1885 this section was re-enacted, giving additional grounds of discharge, and providing.that.the petition “for the correction of any assessment heretofore made” should be filed within one year-after the latter act should take effect: Held, that the act of 1885 applies only to that class of cases where the bar of the prior statute was yet incomplete when the later act took effect.
    Appeal from the County Court of Lawrence county; the Hon. M. F. Hoskinson, Judge, presiding.
    Messrs. Huffman & Gee, for the appellant:
    After a cause of action has been once barred, it can not be revived by statute or constitutional amendment. Girdner v. Stephens, 1 Heisk. 280; Yancy v. Yancy, 5 id. 353; 7 Wait’s Actions and Defenses, 227.
    A retrospective effect will not be given a statute, especially where injustice or inconvenience will result, unless it clearly appears that such was the intention of the legislature. And such intention must be manifested by clear and unequivocal expressions, and not be left to inference or conjecture. If there is any doubt as to the real design, the statute must be construed to have a prospective effect, only. It is indeed a serious question whether the legislature possesses the constitutional power to enact laws of such character. Marsh v. Chestnut, 14 Ill. 223; Hyman v. Bayne, 83 id. 256.
    But we insist, that if it was the intention of the legislature to give section 43 of the Laws of 1885, above referred to, a retroactive effect, it is unconstitutional and void, as impairing the obligation of contracts. Const. of U. S. art. 1, sec. 10; Bush v. Shipman, 4 Scam. 190.
    The Russell and Allison drainage district is a private corporation. Board of Directors v. Houston, 71 Ill. 318.
    Messrs. Bell & Green, and Mr. William Robinson, for the appellees:
    The power of the legislature, in a proper case, to pass a retrospective statute, can not be questioned; and where the language is clear and unmistakable, the courts never hesitate to enforce the law as they find it. Hyman v. Bayne, 83 Ill. 256; Marsh v. Chestnut, 14 id. 223; Thompson v. Alexander, 11 id. 54.
    Public corporations are at all times subject to legislative control. Bush v. Shipman, 4 Scam. 186; Richland v. Lawrence, 12 Ill. 1; 1 Dillon on Mun. Corp. sec. 30.
    As the act of the legislature under which the Russell and Allison drainage district was incorporated, was not a contract, the argument of appellant’s counsel, that section 43, as amended by the act of 1885, so as to apply to assessments made and confirmed before that act took effect, impairs the obligation of a contract, has no force. And as to the extent of legislative control, and the distinction between public and private corporations, see, also, the following cases: People v. Wren, 4 Scam. 273; Coles v. Madison County, Breese, 154; Holliday v. People, 5 Gilm. 216; Gutzweller v. People, 14 Ill. 142; Trustees v. Tatman, 13 id. 30.
   Mr. Justice Shope

delivered the opinion of the Court:

On July 23, 1883, a petition was presented to the county court of Lawrence county, praying for the formation of the Russell and Allison drainage district, for the purpose of levying, to protect certain lands from overflow from the Wabash river, as provided by the act of May 29, 1879. (Starr & Curtis, sec. 26, p. 919.) Such proceedings were had as that the district was organized, and commissioners appointed to construct the levee proposed. The assessment roll of said drainage district was duly presented to the county court for confirmation, on the 4th day of June, 1884, and on that day said assessment roll, as returned by the jury, after adjustment by the court of objections thereto filed, was confirmed by the court. It is not claimed that any of the proceedings up to and including the confirmation were illegal or irregular. On the 11th day of May, 1886, appellees filed their petitions in said county court, asking to be released from the assessments for benefits of certain of their lands described in the petition, for the reason that the same had been erroneously assessed for benefits, because the same were not subject to overflow, etc. Upon hearing of such petitions, the court entered its order of record, amending said assessment roll, and discharging from all assessments certain of appellees’ lands in said order mentioned and described.

At the date of the organization of said district, and of the return and confirmation of the assessment roll thereof, the act of 1883, in force July 1, 1883, was in force. By the 43d section of that act it was provided that the owner of any tract of land within a drainage district might petition the county court for the release of his land from an assessment made or to be made, if such lands were not subject to overflow, or had not been overflowed; and on the hearing, on issue joined, if the court found that any part of the lands named in the petition had not been overflowed by the highest water known, from the stream against which the levee was being constructed, it might enter an order of record amending the assessment roll returned by the jury, in conformity with the facts by it found, ■and discharging such lands from all assessments. But the section contained'this proviso: “That said petition shall be filed within one year- after the confirmation of the assessment, and not thereafter.” It is manifest, that as the assessment roll had in this case been confirmed on June 4, 1884, the right given to present such petition would, under this proviso, be barred June 4, 1885. The legislature, however, by act approved June 30, 1885, in force July 1, 1885, re-enacted the 43d section of the act of 1883, with certain additional grounds for petitioning for the discharge of lands in drainage districts from assessment, • and in which it was “provided that a petition for the correction of any assessment heretofore made, shall be filed in a year after this act shall take effect; and as to assessments thereafter made, such petition shall be filed within one year ■after the confirmation of the assessment: And provided, that whére said petition shall be for the correction of an assessment heretofore made, the proceedings had thereon shall be at the cost of the petitioner.” It is contended, that by virtue of this act the right of appellees to file their petitions in the county court to release and discharge their lands from said assessment, was revived, and the time in which they might present such petitions extended one year from the 1st day of July, 1885, when said last act took effect; that the language of the proviso being, that a petition for the correction of any assessment heretofore made shall he filed within a year after this act shall take effect, is sufficiently broad and comprehensive to include all assessments theretofore made, whether previously barred or not, and that therefore the language must be construed as removing the bar, which had become complete under the act of 1883, before the act of 1885 came into force.

The right of the legislature to pass statutes of retroactive effect has repeatedly been sustained. As a general rule, however, statutes are intended to operate in futuro only, and a retrospective effect will not be given unless it clearly appears that such was the intention of the legislature, particularly if the rights of the public or of individuals may be injuriously affected thereby. (Hymen v. Bayne, 83 Ill. 256; Thompson v. Alexander, 11 id. 54; Marsh v. Chestnut, 14 id. 223; Dwarris on Stat. 163-9.) While it must bo conceded that the language employed by the legislature is sufficiently broad t.o cover all previous assessments made at any time since the organization of drainage districts in this State, we are not prepared to hold that the proviso manifests a clear intention on the part of the legislature to include therein assessments other than those in respect of which the right of release from the assessment existed at the time of the taking effect of this act. Ample scope is found for the application of this provision of the statute to that class of cases where the bar of the prior statute was yet incomplete. To hold that the proviso in question is applicable to the case at bar, requires that such construction be put thereon as would make it applicable to the first, or any subsequent act, for the organization of drainage districts in this State. To do this would open wide the door to litigation, long since closed, and unsettle the various drainage districts organized in pursuance of law. ' The intention of the legislature that the questions arising under these acts should be speedily concluded, is evinced by the short period of limitation given by the several acts conferring the right upon the owners of land included within the assessment roll to open up the proceedings for the various purposes and reasons for which it is permitted to be done. This act of 1885 provides that all petitions to release lands from the assessment thereafter made, shall be filed within one year from the confirmation of such assessment. These drainage districts are authorized by law to incur indebtedness, and may; for specified purposes, issue bonds of the district, as was here done ? and the. public and individuals are interested in an early determination of the question as to what lands shall be embraced in the district, and liable to assessment for the payment of its indebtedness, and of the principal and interest of its bonds. We are called upon to say, by the construction contended for, that drainage districts, whenever created, or how longsoever after the confirmation of the assessment upon which its indebtedness is predicated, may be dismembered, and that the most valuable portions, possibly, of the land embraced in its assessment roll, be discharged from liability, although its indebtedness may have been incurred after the bar of the statute then in force had become perfect. This we are called upon to do in construing the general language employed in this proviso.

We are of opinion that it is clearly manifest, from the legislation under consideration, that the paragraph of the proviso relied upon by appellees as extending their right of petition to the county court for release of their lands from the assessment roll, was intended to apply only in cases where the time prescribed by the prior statute had not fully run when the present statute under consideration went into force, thereby saving the right given by the former statute, and extending the time for one year from the time'of taking effect of the present statute. No reason existed for the extension of the time within which to file a petition in respect to an assessment theretofore confirmed, that did not exist in respect of assessments to be confirmed thereafter, except, that as to assessments theretofore made within less than one year before the taking effect of the act of 1885, a question might have arisen as to the right to file the petition after the last named act should be in force; and also to provide that the full period of one year after the taking effect of the act of 1885 should be allowed, in respect of all assessments to which the right of petition then existed, in which the land owner might avail of the additional grounds upon which such petitions might be filed, as provided in the latter act. It was in view of the additional reasons or grounds upon which such petition and right of release could be based, that it was provided that where said petition should relate to an assessment theretofore made, the proceeding should he at petitioners’ costs. This construction is the only one consistent with the policy indicated in the several acts of the legislature respecting the organization .of drainage districts, or reasonable, when considered in view of the general purpose and object of the law.

The views here expressed will render unnecessary the discussion of any other of the questions presented by counsel.

The order and judgment of the county court of Lawrence county, entered upon said petitions of appellees, are reversed, and the cause remanded to that court with instructions to dismiss said petitions, at petitioners’ costs.

Judgment reversed.