author: JUSTICE BARDENS

text:
    Lillie Brokaw, Administratrix of Estate of Lester Brokaw, Deceased, Plaintiff-Appellant, v. East St. Louis Jockey Club, Inc., Defendant-Appellee.
    Term No. 56-M-8.
    Fourth District.
    October 9, 1956.
    Released for publication February 4, 1957.

      Morris B. Chapman, and John G-itchoff, both of Granite City, for plaintiff-appellant.
    Schaefer O’Neill, of Alton, for defendant-appellee.
   JUSTICE BARDENS

delivered the opinion of the court.

Plaintiff’s intestate, a 17-year-old hoy, was killed in a fall while riding as a jockey in a race at defendant’s track, Cahokia Downs, near East St. Louis, Illinois. A jury trial in the Circuit Court of Madison County resulted in a verdict for plaintiff. The trial court, however, entered judgment for defendant notwithstanding the verdict. Plaintiff appeals, contending that there was sufficient evidence of defendant’s negligence in the construction and operation of the track to require submission of the issues to a jury.

Cahokia Downs, a three-quarter mile track for running (as contrasted with trotting) races was built by defendant in 1953 and 1954. The racing strip was first used in April, 1954. Decedent started riding in races in June, 1954, and had been riding an average of two races a night at Cahokia Downs. For several days prior to the night of decedent’s death it had rained heavily, and the track had become quite muddy. On the night of October 29, 1954, while riding in a race, decedent’s horse suddenly went down, turned a somersault, and crushed decedent. Plaintiff’s contention was that the horse’s front hoofs went into a hole in the substructure of the track, causing it to fall. In support of such theory, plaintiff attempted to prove that the track was in an exceptionally hazardous condition on the night of the accident because it was (1) negligently and improperly constructed, and (2) negligently maintained.

With respect to the first allegation, we note that extensive evidence relating to the construction of the track was received from the architect, general contractor, and others connected with its construction. It appears that the substructure was hard packed clay. The actual running surface was the customary five or six inches of loose dirt or “loam” which provided a cushion for the horse’s hoofs. Evidence was introduced of various preliminary studies of construction, soil conditions, and track surfaces at other tracks throughout the country before construction at Cahokia Downs was started. The surface used was that recommended for running races by one versed in that subject after soil studies at Cahokia Downs. No evidence was offered by plaintiff to contradict the substance of defendant’s contention that the track was carefully constructed after preliminary studies and surveys at other tracks. Plaintiff’s case on this issue was predicated on the inference that a better type of track construction was available although no evidence of such preferred construction was produced, and a suggestion that those who built Cahokia Downs having not previously built a track, could not, therefore, have constructed this track properly and safely. Inference and suggestion afford no substitute for evidence. In this case there is no evidence permitting of the conclusion, directly or indirectly, that Cahokia Downs was negligently constructed, and the jury should not have been permitted to speculate on this issue.

Plaintiff’s evidence on the issue of track maintenance established that it had rained heavily for several days and the track was so muddy that no harrowing of the running surface had been attempted. One witness testified that he had ridden around the track the day before and his horse had stumbled and slipped in holes. This same witness described how, on the morning following the accident he traced the hoof prints of decedent’s mount near the spot of the accident and found two front hoof indentations about eight to ten inches deep rather than the normal five to six inches. On cross examination, he stated that there were other nine-inch deep hoof marks and some even deeper on the track. He also testified on cross examination that four horses for which he was trainer ran in races after he had observed various holes in the track. The track manager testified that on one occasion various jockeys refused to ride because of the muddy conditions; they also declined to ride any more races the night decedent was killed.

Prom all the testimony, it is clear that because of the heavy rain, the substructure, as well as the loose dirt on the surface of the track, was in very muddy condition. Plaintiff’s testimony indicates that the “holes,” or nine-inch-deep hoof prints, were to be found throughout the track. Therefore, it was the general condition of the track rather than an isolated hazard that caused decedent’s mount to fall.

We have examined the abstract of the record carefully and find no evidence or reasonable inferences of negligence on defendant’s part. The evidence simply establishes that the track was in a hazardous condition on account of continual rain, but it is not shown that such condition was unusual in the light of the prevailing weather. No standard of track care or condition is shown against which the defendant’s operation of Cahokia Downs can be measured nor is. any evidence offered to show there is any method of preventing the deeper sinking in of horses hoofs on a muddy track.

A factor to be considered in connection with the issue of maintenance and operation of the track is the fact, as brought out by defendant’s evidence, that the Illinois Eacing Board generally supervises racing at all tracks in the State of Illinois. A steward is assigned by the Board t,o each track for the racing season and, as agent of the Board, he is charged with supervision of the track and enforcement of the rules and regulations adopted by the Illinois Eacing Board. The steward assigned to Cahokia Downs, Judge Ealph Choisser, testified as follows:

“Eacing days are allocated by the Board on application of the track. The track pays a license fee of $500.00 to the Board before the meeting starts. The Eacing Board has a right to cancel the dates on which racing is allocated to a track. Any of the agents of the Board could cancel a race, including the steward, but the track cannot, without the approval of the Board. When application is made for racing, the Board examines the track to determine its fitness for racing.
“In 1954, prior to the opening of this track, the chairman of the Board and one of its members made an inspection of the track including the racing stretch. This was in the latter part of June. I don’t know the exact date. They made a determination that it was fit for racing prior to its opening, and also I had a duty to make an inspection and recommendation as to its fitness, which I did, and declared it fit' for racing.”

Therefore, plaintiff cannot charge defendant with negligence in failing to stop the racing program since it had no legal right to do so.

The testimony makes it clear also that a jockey was free to refuse to ride if he felt the track too hazardous. On certain occasions, several jockeys did refuse to ride. That such decision might affect demand for a jockey’s services subsequently, does not alter the fact. This freedom not to ride, together with the fact that a jockey would be in perhaps the best position to know the condition of the track, and the unusual hazards existing, lends further support to the decision of the trial court.

All witnesses agreed that horse racing is hazardous under normal conditions because of the nature of the sport. On a muddy, slippery track, it becomes extra hazardous. The defendant, under the laws regulating racing, had no right to call off a race because of track conditions. Further, the defendant had no superior knowledge because the decedent was in as good position as anyone to know the condition of the running surface, having ridden on the track for almost five months. He was free to refuse, but chose to ride on the night in question.

Both parties discuss the case of Gray v. Pflanz, 341 Ill. App. 527, 94 N.E.2d 693, decided by this court. In the Gray case the action was against an employer and we held the jockey assumed the risks involved in his trade. We base our decision here on the absence of proof of negligence coupled with equal knowledge of the conditions of the premises by plaintiff’s intestate.

Judgment affirmed.

SCHEINEM AN, P. J. and CULBERTSON, J., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE S CHEINEMAN

license: Public Domain

text:
    Adam Mernick, Administrator of Estate of Michael Mernick, Deceased, and DeWayne Davis, by Orville Davis, His Next Friend, Plaintiffs-Appellants, v. Ambrose Chiodini et al., and Helen Lindhorst, Administratrix of Estate of Carl Lindhorst, Deceased, Defendants-Appellees.
    Term No. 56-M-7.
    Fourth District.
    October 22, 1956.
    Released for publication February 4, 1957.

      Walker & Williams, and Robert F. Godfrey, of East St. Louis, for plaintiffs-appellants.
    Baker, Kagy & Wagner, of East St. Lonis, for defendant-appellee Ragon Russell, Pope and Driemeyer, of East St. Louis, for defendant-appellee Ambrose Cbiodini, Frank M. Rain, of East St. Louis, of counsel; Johnson, Johnson & Ducey, of Belleville, for defendant-appellee Helen Lindhorst; Cornelius T. Ducey, of counsel.
   PRESIDING JUSTICE S CHEINEMAN

delivered the opinion of the court.

This is an action by two plaintiffs, one in a representative capacity for wrongful death, and one, a minor by next friend for damages for personal injuries incurred in an automobile-truck collision.

On August 12, 1954, in daylight, Carl Lindhorst was driving a 1940 Dodge in a southwardly direction along Highway No. 3 just north of Columbia, Illinois. Riding as guests with him were three other teen agers, DeWayne Davis, Michael Mernick and Stanley Hudson. Proceeding in the opposite direction going northwardly were three passenger cars, the lead car being driven by defendant, Ambrose Chiodini. Following these three cars was a two ton truck loaded with 6 tons, or 600 watermelons, and driven by defendant Paul Miller, with whom defendant Hartsil Russell was riding. It is alleged by plaintiffs that at a point near a side road leading to the east called Woodland Lane, defendant Chiodini suddenly applied his brakes, giving no signal other than the flashing of his brake lights; that the sudden application of brakes caused the other passenger cars following to do the same in turn; that the truck driver likewise was caused to apply his brakes and, in doing so, swerved over the center line of the highway; that a collision between the Lindhorst car and the truck thereupon occurred resulting in the deaths of Carl Lindhorst and Michael Mernick and injuries to DeWayne Davis and Stanley Hudson.

The complaint joined as defendants, Paul Miller, alleging negligence in the operation of Ids truck; Ambrose Chiodini, driver of the lead car, alleging that his sudden application of his brakes was a proximate or contributing cause of the collision; Ragon Russell and Hartsil Russell on the theory they owned the watermelons and were liable on the principle of respondeat superior; and the Administratrix of the Estate of Carl Lindhorst, alleging wilful and wanton negligence of the deceased.

Of these five defendants, Hartsil Russell was voluntarily dismissed by plaintiffs during the course of the trial; not guilty verdicts were returned at the direction of the court in favor of Ragon Russell and Ambrose Chiodini at the close of plaintiffs’ evidence; the jury returned a verdict of not guilty as to Helen Lindhorst, Administratrix of the Estate of Carl Lindhorst, and found Paul Miller guilty and assessed damages of plaintiff DeWayne Davis at $40,000 and damages of plaintiff Adam Mernick, Administrator of the Estate of Michael Mernick at $10,000. The judgments entered on the guilty verdicts are not appealed from, nor has a cross appeal been filed by defendant Paul Miller.

Plaintiffs contend that the trial court was in error in directing not guilty verdicts in favor of Ragon Russell and Ambrose Chiodini on the basis that plaintiffs’ evidence made out a prima facie case against both said defendants, and the question of their liability should have been submitted to the jury.

As to defendant Helen Lindhorst, Administratrix of the Estate of Carl Lindhorst, plaintiffs contend that the trial court committed error in applying Section 2 of the Evidence Act so as to exclude from the jury’s consideration all evidence given by her co-defendants as to her liability.

Considering first the contentions relative to defendant Chiodini, we must start with the proposition that a verdict shall not be directed if there is any evidence which, taken with its intendments most favorable to plaintiff, tends to prove the complaint. Seeds v. Chicago Transit Authority, 409 Ill. 566.

Confining onr consideration of the evidence in the light of this rule and as applied solely to defendant Chiodini, we find from the testimony of defendant Chiodini himself, testifying under Sec. 60 of the Practice Act [Ill. Rev. Stats. 1955, ch. 110, § 60], that he was driving about 50 m.p.h. along said highway looking for a particular subdivision. As he approached Woodland Lane, the entrance to the subdivision, a guest in his car called his attention to it. He immediately applied his brakes, but was unable to slow down enough to turn into the drive. He then released his brakes and applied them again. He did not see the Lindhorst car approaching him, and did not know how close the car immediately behind him was.

Mr. Hollis, driver of the car immediately behind Chiodini, stated he was travelling 40 or 50 m.p.h. about 50 or 60 feet behind Chiodini; that Chiodini applied his brakes suddenly — a hard brake application; that he in turn had to lay on his brakes pretty hard; that he received no signal from Chiodini other than his brake lights; that Chiodini slowed down very fast to 20 m.p.h.; that both right wheels left the highway before he, Chiodini, “straightened up” and applied the brakes again, slowing down to 5 m.p.h. Hollis was within 12 or 15 feet of Chiodini at this point and it was then he heard the collision. He estimated that the Lindhorst car was going about 50 m.p.h. when it passed by him, with two wheels on the shoulder of the road. He was not sure, but he thought he saw the truck coming from behind about 500 to 600 feet back.

Mrs. Hollis, riding with her husband, stated that she noticed Chiodini’s brake lights go on all of a sudden and he eased his wheels off the pavement on the right side. He released his brakes for just a minute and then they went back on. She estimated the speed of her car and Chiodini’s at about 40 m.p.h. She stated that he slowed down first to 20 m.p.h., then to 4 or 5, at which time her car came within 6 or 7 feet of Chiodini’s. She stated that the Lindhorst car was travelling straight up the highway going about 40 to 50 m.p.h.

Stanley Hudson, riding with Carl Lindhorst, stated they were going 40 to 50 m.p.h., and had two wheels off the pavement on the shoulder. Also, that he saw the truck 2 feet over the center line.

Hartsil Bussell, passenger in the truck, stated they were going 35 or 45 m.p.h. about 75 to 100 feet from the last of the three passenger cars; that he saw the tail lights on the cars ahead go on, and they were stopping awful fast; that the driver of the truck put on his brakes, edged the truck over the center line 1 or 1% feet, then pulled back in his own lane, at which time he was about 75 feet from said cars. He saw the Lindhorst car off on the shoulder going 70 m.p.h. and sloped over; that the next thing “he hit us” when the truck was 25 feet from last car. The truck was going 15 or 20 m.p.h. at impact.

Two policemen testified that the truck and car in question were both in the southbound lane after the collision and that they were unable to tell the location of the point of impact.

Defendant, Chiodini, argues on the above facts that the collision was not the natural and probable result of his act, but that the independent and intervening acts of Lindhorst in driving 70 m.p.h. and losing control of his car, and of Miller in heedlessly driving over the center line of the highway, were the direct and efficient source of the occurrence.

In support of this theory many cases are cited on proximate cause and the effect of an intervening efficient cause. We agree with the principles set forth in such cases, but we do not believe that they are applicable in this instance. It is true that some witnesses placed the speed of the Lindhorst car at 70 m.p.h., but others estimated it at 45 or 50. One witness placed the truck at 500 or 600 feet back, but he wasn’t even sure he saw it; another witness placed it 75 to 100 feet back at the time the brake lights went on.

Some point is made of the fact that Ohiodini didn’t actually stop his car on the highway. But the' negligence charged includes a sudden decreasing in speed without an appropriate signal, and, with the exception that his brake lights went on, even Ohiodini admits this fact, that he made a sudden decrease in speed. A sudden slowing may easily have the same elements of danger as a sudden stop, and both come under the same principle of law: “Generally, a motorist intending to stop or suddenly slow down his vehicle must use due care for his own safety and for the safety of others, such as other vehicles following so closely behind him that they may be imperiled by a sudden stop.” ... “a sudden slowing up may amount to a practical stop so as to require the same precautions as would be necessary in case of an actual stop.” 60 C. J. S. “Motor Vehicles” Sec. 301.

In the case of Gleason v. Cunningham, 316 Ill. App. 286, two trucks stopped suddenly, the car following likewise stopped and another car then struck the latter car driving it into one of the trucks. On the question of proximate cause, the court said: “He (truck driver) could not help but anticipate that such stopping might probably and foreseeably cause injury to others behind, using this much travelled hard road. There was thus initiated a continuous succession of events linked together and traceable back to the first cause as the proximate cause of the injury. . . . the question of negligence and proximate cause must be determined from the particular facts of each particular case and are not questions of law for the court to determine hut questions of fact for the jury.”

In our opinion, this principle is applicable here under some versions of the occurrence. Since the testimony varied as to some of the pertinent facts, the trial court was obligated to consider only that evidence which weighed most strongly in favor of plaintiffs, when passing on the motion for directed verdict. Seeds v. Chicago Transit Authority, 409 Ill. 566. The testimony most favorable to plaintiffs, if believed and considered alone, could have been found by the jury to show negligence on the part of Chiodini which was a proximate cause of the collision. Accordingly, the order for directed verdict as to defendant Chiodini must be reversed.

On the question of the liability of Eagon Eussell on an employer-employee relationship between him and the driver of the truck, the evidence is confined to two witnesses.

Hartsil Eussell stated he is the son of Eagon Eussell, that his father raises watermelons on a farm in Charleston, Missouri, that they have hauled watermelons to St. Louis before, and on the way would stop at various places enroute to sell to customers. On the date here in question, his father’s truck was not in working condition, so his father made arrangements with Paul Miller, who owned a truck, to haul a load for him from Charleston to St. Louis for $40. He stated that there was something also said about Miller buying the load for $60, and “that is the way I understand it. What he was to do was his business.” He went along with Miller and they did stop at one of their old customers prior to the collision.

Paul Miller, testifying under Sec. 60 of the Practice Act, stated he was in the trucking business, and that he was to get $40 from Eagon Eussell for hauling the watermelons from Charleston to St. Louis. On cross examination by counsel for Eagon Eussell he remembered stating at the coroner’s inquest in October, 1954 that Hartsil Eussell went with him to help sell the watermelons, that Hartsil was to be paid back $60 that his father had coming for the melons, and that if the melons didn’t bring $60, he, Miller, would still have to pay $60.

Plaintiffs argue on these facts that a prima facie case of respondeat superior was made and a jury question presented; that the fact that Eussell’s son accompanied Miller gives rise to a presumption that the right to control and direct the work was thereby reserved to Eussell; and that to establish an independent contract relationship the burden was on Eussell to show he had no right of control over Miller.

We cannot agree with plaintiffs’ contentions. The right to control the manner of doing the work is an important if not the principal consideration which determines whether the worker is an employee or an independent contractor. Ferguson & Lange Co. v. Industrial Commission, 346 Ill. 632.

The evidence above outlined neither shows nor tends to show any control or supervision whatsoever in Eussell. To base an employer-employee relationship on the mere presence of his son in the truck with Miller is only a hopeful speculation, especially in view of the affirmative testimony of both witnesses pointing to at least an independent contract relationship, or perhaps even a sale of the melons.

We therefore hold that the trial court properly directed the verdict for defendant Eagon Eussell.

The trial court admitted the testimony of defendants, Chiodini and Miller, when called as witnesses by the plaintiffs, but on objection of the defendant administratrix of the Estate of Carl Lindhorst, instructed the jury to disregard such testimony as to such latter defendant.

Plaintiffs contend that this was error; that Par. 2, Ch. 51, Ill. Rev. Stat. is not applicable for the reason that no one of the defendants is adverse to the other within the meaning of snch statute.

The pertinent part of said statute provides as follows :

“No party to any civil action, suit or proceedings, or person directly interested in the event thereof, shall be allowed to testify therein of his own motion, or in his own behalf . . . when any adverse party sues or defends as . . . administrator ... of any deceased person . . . unless when called as a witness by such adverse party so suing or defending . . . .”

Plaintiffs argue that the other defendants have made no claims against the Lindhorst estate and the Lindhorst estate has made no claims against them, and that, therefore, their interests are not adverse. Further, it is stated that by being joined with other defendants the Lindhorst estate is in a better position since it thus has the opportunity to share responsibility rather than be exposed to the full responsibility attendant upon a suit against it alone.

We do not believe these arguments to be pertinent. The fact remains that the Lindhorst estate was joined as a party defendant together with others to answer a charge of alleged liability to plaintiffs. In such suit it was possible for the estate to be found solely liable, completely exonerated, or liable together with one or more others. To the extent that each defendant is interested in avoiding liability by whatever means legally available, including placing the blame on another of them, their respective interests are necessarily adverse. To have the Lindhorst estate attached with responsibility for the collision would be to the advantage of both Miller, the driver of the truck, and Chiodini, whose sudden decrease in speed is alleged to have caused the whole sequence of events, and they would benefit by a finding which attached the responsibility for the collision upon the Lindhorst estate.

The statute makes no distinction between law and chancery actions, but applies equally to “any civil action, suit or proceeding” and we deem it clearly applicable. The defendants were parties, directly interested and adverse to the administrator. It follows that the trial court did not err in instructing the jury to disregard the testimony of Chiodini and Miller as to the defendant administrator.

The judgment entered on the verdict of the jury finding for the defendant, Helen Lindhorst, Administrator of the Estate of Carl Lindhorst, deceased, is affirmed. The judgment on the directed verdict for Ragon Russell is affirmed. The judgment on the directed verdict for Ambrose Chiodini is reversed and the cause remanded for a new trial as to this defendant.

Affirmed in part and reversed in part and remanded.

CULBERTSON and BARDENS, JJ., concur.


author: JUSTICE CULBEBTSON

text:
    Oakdale Community Consolidated School District No. 1 et al., Plaintiffs-Appellants, v. County Board of School Trustees of Randolph County, Illinois, and Coulterville School District No. 1, DefendantsAppellees.
    Term No. 56-M-4.
    Fourth District.
    October 22, 1956.
    Released for publication February 4, 1957.

      House & House, of Nashville, and Farmer & Middleton of Pinckneyville, for plaintiffs-appellants.
    William A. Schuwerk, of Chester, and Kramer, Campbell, Costello & Wiechert, of East St. Louis, for defendants-appellees.
   JUSTICE CULBEBTSON

delivered the opinion of the court.

This is an appeal from the Circuit Court of Bandolph County, Illinois, in a cause involving the School Code and the Administrative Beview Act.

The cause arose in a so-called detachment proceeding initiated by a petition which prayed for a detachment of certain prescribed territory from five school districts and the annexation of such territory to the Coulterville School District No. 1, in Bandolph and Perry Counties, Illinois. The County Board of School Trustees granted the prayer of the petition after a public hearing. A complaint was filed under the Administrative Beview Act to review the decision of the County Board, and the Coulterville School District and the County Board were made parties defendant. The decision of the County Board was affirmed in the Circuit Court and the cause is now on appeal from the judgment of the Circuit Court.

The complaint requested a judicial review of the whole of the decision and contended that the County Board failed to take into consideration the school needs and conditions in the area, the ability of the districts involved to meet the standards of recognition, the educational welfare of the pupils, the duplication of bus service which would ensue in the territory, and also, that the decision was contrary to the manifest weight of the evidence.

It is contended, specifically, on appeal in this cause that the decision of the County Board of School Trustees and the ensuing judgment of the Circuit Court affirming such decision were wrong and should be reversed for the reason that the petition before the County Board was insufficient to confer jurisdiction upon the County Board. In connection with this jurisdictional dispute it is pointed out that the petition described the territory of the so-called Swanwick District as the “southeast quarter of Section 31, Township 3 South, Range 4 West, in Washington County, Illinois.” The record shows that the County Superintendent of Perry County kept a map which was identified as the original map of the Swanwick District which showed that the Swanwick territory in Washington County consisted only of the East Half of the Southeast Quarter of Section 31. In other words, an eighty acre tract rather than a one hundred and sixty acre tract. A certified copy of such map was admitted in evidence.

Petitioners, likewise, produced a map which was placed in evidence, purporting to show that all of the Southeast Quarter of Section 31 was in the so-called Swanwick District. The County Superintendent of Washington County testified as to a map of Washington County showing boundaries of school districts, and purporting to show that the district covered all of the Southeast Quarter of Section 31. Such map was sent out by the Illinois Tax Commission. The Secretary of the County Board of School Trustees, pursuant to Section 4B-4 of the School Code [Til. Rev. Stats. 1955, ch. 122, § 4B — 4], submitted a map to the County Board of School Trustees, together with a report of the financial and educational conditions of the districts involved and the probable effect of the proposed changes. In such map it showed all the Southeast Quarter of Section 31 as included in the Swanwick District. The defendant, County Board of School Trustees contend that this is the official map required to be kept by the Randolph County Superintendent as directed by statute. It is also stated that even if a mis-description was made in describing 160 acres instead of 80 acres in Section 31, no one was misled by it and no harm was done since all the rest of Section 31 is in the Oakdale District, and that all of Section 31 is included in the description of lands which the petitioners requested be annexed to the Coulterville District so that no territory would be left undetached and all of Section 31 would be annexed to the Coulterville District.

A mere error in description would not invalidate the proceedings where there could be no doubt as to the meaning and intent thereof (People ex rel. Carruthers v. Swift, 270 Ill. 532, 535; People v. Close, 301 Ill. 458, 460; People v. Summy, 377 Ill. 255, 259). The so-called description in the instant case, if erroneous, could not be misleading and is distinguishable from the type of description found in the case of Streator Tp. High School Dist. v. County Board of School Trustees, 5 Ill.App.2d 38, where a petition to detach was dismissed for insufficient description. In that petition the lands in the section were described as including a certain half of a quarter section “except five acres,” but the five acres were not located and could not be located. In the instant case the eighty acres in question are definitely described and regardless of whether the added eighty acres are located in the Oakdale or the Swanwick District, the territory described in the petition to annex is adequately described in the petition and the proceeding would not be invalidated by reason of this type of description which might include territory already in the Coulterville District.

In any event, the evidence which was offered on behalf of the objectors was no stronger than that offered on behalf of the petitioners, and failed to establish clearly that there was an error in the description of the territory described in the petition, sought to be detached from the Swanwick District.

As to the contention that the County Board of School Trustees acted contrary to and in disregard of the School Code covering a detachment and annexation proceeding, it is only necessary to observe that there were sufficient facts shown in the record to support the action of the Board.

A contention made by plaintiffs that the Coulterville District could abandon its high school department was without merit or foundation as the School Code makes ample provision for such situation by organization of an appropriate new district, or by arranging for the sending of children of high school age to a school in an existing district having a high school department (People ex rel. Dixon v. Community Unit School Dist., 2 Ill.2d 454, 466; People ex rel. Warren v. Drummet, 415 Ill. 411, 421).

Similarly, loss of assessed valuation by the districts as a result of detachment of a part of the territory should not be considered in a proceeding such as is now before us (People ex rel. Warren v. Drummet, supra; School Dist. No. 79 v. County Board of School Trustees, 4 Ill.2d 533, 541). In the latter case the Court stated that “it is recognized that in all matters concerning a change in school boundaries for annexation to or detachment from the territory of an existing school district, certain inequities to individual taxpayers will probably arise and disagreements over proposed changes are always involved.” It was stressed, however, that such disagreement cannot be used as a valid argument to overthrow a valid decision of the issues.

Under the school law the School Trustees were empowered to change the boundaries of the District to suit the wishes and convenience of the majority of the inhabitants of the territory sought to be annexed to the Coulterville District (School Dist. No. 79 v. County Board of School Trustees, supra). The Trustees saw the witnesses and received the report from the County Superintendent of Schools as to the school needs and as to whether it would be in the best interests of the schools in the area and the educational welfare of the pupils that the change in the territory he made as petitioned. Snch Trustees are more familiar with the local problems involved and better able to evaluate the numerous factors than a Court of Review (Community Unit School Dist. v. County Board of School Trustees, 9 Ill.App.2d 116, 127). In such discretionary matters the Court on appeal will not substitute its judgment for that of such Administrative Agency (Community Consol. School Dist. No. 201 v. County Board of School Trustees, 7 Ill.App.2d 98, 103). The decision of the County Board of School Trustees is binding and should not be reversed unless against the manifest weight of the evidence, or if the findings and decision are not supported by evidence in the record (School Dist. No. 79 v. County Board of School Trustees, supra; Community Unit School Dist. v. County Board of School Trustees, supra).

Upon a review of the entire record we must conclude that there is ample evidence in the record to sustain the order of the County Board of School Trustees, and that such findings are not against the manifest weight of the evidence. The judgment of the Circuit Court of Randolph County will, therefore, be affirmed.

Affirmed.

SCHEINEMAN, P. J. and BARDENS, J., concur.


author: PRESIDING JUSTICE S CHEINEM AN

text:
    Edna Kettle, Adm’r de bonis non with will annexed, of the Estate of Fred Rembka, Deceased, substituted for Fred Rembka and Rose Rembka, Deceased, Plaintiff-Appellant, v. Meyer Katz and Philip H. Cohn, Sr., Defendants-Appellees.
    Term No. 56-M-6.
    Fourth District.
    October 31, 1956.
    Released for publication February 4, 1957.
    James O. Monroe, Jr., and Joseph R. Bartylak, both of Collinsville, for plaintiff-appellant.

      Listeman and Bandy of East St. Louis, for Philip H. Cohn, Sr., defendant-appellee.
   PRESIDING JUSTICE S CHEINEM AN

delivered the opinion of the court.

This appeal arises out of a suit for an accounting against two real estate brokers for money alleged to be due on the sale of a house owned by Fred Rembka. The latter is now deceased and Edna Kettle, Administrator de bonis non with will annexed, has been substituted as plaintiff. The cause was referred to a Special Master, whose report found in favor of plaintiffs and concluded that defendants should pay to plaintiffs the sum of $3,287.90 with costs.

Objections by each of the defendants were overruled and allowed to stand as exceptions. The court thereafter sustained the exceptions of defendant Philip H. Cohn and dismissed the suit as to him for want of equity; defendant Katz was ordered to pay the sum of $675 with interest and costs.

On this appeal plaintiffs contend that Cohn was an agent for them by his own acts, or at least a sub-agent of Katz; that Cohn stood in a fiduciary capacity and used his position to obtain unjust enrichment for himself ; and that Cohn and Katz had falsely represented to plaintiffs that a foreclosure suit was about to be filed. Defendant Katz did not perfect an appeal, but Cohn has filed a brief contending that the evidence shows he was not an agent in any sense, but was a purchaser from plaintiffs.

The decree appealed from states that certain specified findings by the master are not supported by any evidence or are contrary to the manifest weight of the evidence. From our examination of the testimony we find that there is substantial evidence to support the essential findings in the master’s report.

The facts are that plaintiffs had become concerned over their financial condition, and had decided to sell their home. In August of 1951, they listed the house with Katz at 5% broker’s commission. It was eventually sold to Mr. Cashens for $7000. There was an installment mortgage on the house for the original sum of $1000 on which some payments had been made, and some were past due.

Plaintiff, Fred Rembka, had suffered a stroke and had been in a hospital for some time. The hospital bill had been placed in judgment, being approximately $475; there were unpaid taxes of $87 and the delinquent installments on the mortgage were about $125. But the Rembkas owed other bills, aggregating about $527, which were not liens. This was the financial condition which had them worried, but it is not clear that Katz was fully aware of all this when the property was first listed.

Katz soon found a buyer for the property, a Mr. Cashens, who signed a contract to purchase for $7500 and paid $1000 down, the cash being paid to Katz. Katz took his customer to a title company where the liens were disclosed. It is, of course, obvious that the down payment was more than adequate to pay off the judgment and tax liens, and to pay the past due installments on the mortgage. However, Katz did nothing more about it for a couple of months. Rembkas received another delinquency notice from the mortgagee, and Cashens was becoming impatient, asking for the return of his money if the deal could not be closed.

Finally, Katz telephoned to Cohn and told him of the situation, also arranging for a call at Cohn’s real estate office with the Rembkas. According to the testimony of Mrs. Rembka, Katz said they were going to see Cohn to keep the mortgage holder from “closing in on them,” and that this was the discussion at Cohn’s office. She understood that Cohn was going to assist in financing the sale, that he would pay them $1000, pay all.of the bills and then remit whatever was left to them. Cohn asserts that he only agreed to buy the Cashen contract for $1000 and payment of all bills of the Rembkas, the excess to be retained by him. This conversation occurred early in November.

Other circumstances and testimony tend to corroborate the testimony of Mrs. Rembka. It is apparent that there must have been some talk of foreclosure, for Katz testified that at one time he had been shown a letter threatening foreclosure.

Mr. Cashen testified that Cohn talked to him and his wife about completing their contract. At first he asked for his money back, but Cohn said Cashens had to look to Katz for that. Later he made a proposition of reduced price. Cashen asked Cohn how much Rembkas would get out of it, and Cohn replied about $1650. Mrs. Cashens said that was not enough and they left. Later they were persuaded by Cohn to go through with the deal at a price of $7000 and they would be credited with the $1000 paid down. In December the deal was completed on that basis.

During these negotiations, it is apparent that Cohn regarded himself as an agent or broker for Rembkas. He kept a book account in which he charged them with title examination, and with his personal traveling expense in seeing the Cashens, which a purchaser would have had no right to do.

In the final closing, Cashens gave a mortgage to Sparta Building and Loan Association for $4600, the net proceeds of which, $4507.90, was paid to Cohn, and they gave Cohn a second mortgage for $1400. Cohn paid off the old mortgage for $968.79, the taxes of $87.65, and the judgment of $493.30. He also paid off the open accounts of the Rembkas, and the various expenses, including his personal disbursements. The grand total came to $2270. He then tendered $1000 to Rembkas and demanded that they sign an agreement reciting that this was according to their previous arrangement. Mrs. Rembka says sbe was so shocked she conld not talk. The title officer who was present with Cohn and the Rembkas, testified that Cohn said to the Rembkas “If they had any other suggestions to make of any kind he would be glad to walk away from the transaction and have no part of it.” This witness had heard the talk about the possibility of foreclosure, and observed that, in signing this final document, the Rembkas thought they had to take it or they would lose their property and get nothing.

One of the master’s findings which the court held unsupported was, in substance, that the Rembkas’ fears of foreclosure were unfounded, there had been no threats or intention to foreclose. Katz had claimed he had seen a letter threatening foreclosure, and there was testimony that a man named Banks, formerly with the loan company, and now deceased, had talked of such action. On the contrary, the Rembkas produced the letters received from the loan company, and they were simply notices that installments were past due, requesting payment, but saying nothing about foreclosure.

The president of this loan company testified that he was the only one with authority concerning foreclosures, that he had not authorized such action, it had never been discussed by the company’s officers, nor any attorney consulted, and that they were never concerned about this loan.

We are unable to see any reason for a loan company to be concerned about a loan that had been reduced to less than the $1000 face value, on a property which another company regarded as security for a loan of $4600. In our opinion the weight of the evidence supports the finding of the master.

As a final result, for negotiating this sale from Rembkas to Cashens, after all disbursements are duly credited, and after Cohn paid $1000 to Rembkas, Cohn retains $1237.90 cash, plus a second mortgage for $1400 and Katz retains $1000. Thus the defendants retain a total of $3637.90 out of a sale price of $7000. They have performed only the ordinary routine services of real estate brokers, for which the regular commission would be $350. In our opinion the record here discloses that the large sum retained by defendants is unjust enrichment obtained by playing upon the fears and worries of unfortunate people.

It is not the policy of the courts to condone subterfuges and ingenious methods sometimes used by real estate brokers to acquire some interest in a client’s assets by taking on the appearance that they are acting as a purchaser. Many such attempts have been set aside by the courts. Stemm v. Gavin, 255 Ill. 480; Lerk v. McCabe, 349 Ill. 348; Johnson v. Bernard, 323 Ill. 527; Hyman v. Burmeister, 216 Ill. App. 98; Olson v. Eulette, 332 Ill. App. 178.

As a so-called purchaser, Cohn advanced no money of his own and took no risk. Early in the transaction he had the Rembkas deed the house to himself, for which he paid nothing whatever, he was simply acting as a “straw man.” Thereafter he performed the routine services of a broker, closing the sale with the purchaser that Katz had produced, and disbursing the proceeds. Out of the net balance of $4637 which remained after all liens and other bills were paid, Rembkas received only $1000.

“A person who has been unjustly enriched at the expense of another is required to make restitution.” Restatement on “Restitution” Section 1. The defendant Cohn should be required to make restitution by paying to plaintiff’s administrator the $1237.90 cash that he retained, plus any payments he has since collected on the second mortgage, and to assign the second mortgage and note (without recourse) to the administrator. In lieu of such assignment, the balance due thereon may be paid in cash.

The trial court has allowed Katz a commission of $375 and given judgment against him for $625 which is the balance of the $1000 he had received. That part of the decree is not involved in this appeal. The remainder of the decree is reversed and the cause remanded with directions to enter a decree against defendant Cohn in accordance herewith.

Reversed and remanded.

BARDENS and CULBERTSON, JJ., concur.


author: PRESIDING JUSTICE FEINBERG

text:
    Marie Reiter, Conservator of Estate of T. H. Reiter, Incompetent, Appellant, v. Illinois National Casualty Company, et al., Appellees.
    Gen. No. 46,943.
    First District, Third Division.
    December 28, 1956.
    Released for publication February 6, 1957.

      John A. Brown, of Chicago, for plaintiff-appellant.
    Heineke, Conklin & Schrader, for Hlinois National Casualty Company, appellee; Paul H. Heineke, of Chicago, of counsel. Sinon A. Murray, of Chicago, and Walter T. Day, of Springfield, for appellee, A. M. Fitzgerald.
   PRESIDING JUSTICE FEINBERG

delivered the opinion of the court.

Plaintiff appeals from an order entered December 29, 1955, overruling plaintiff’s exceptions to the master’s report and dismissing the cause for want of prosecution at plaintiff’s costs, and from an order entered February 20, 1956, denying the motion to vacate the order of December 29, 1955.

The original complaint in this cause was filed April 24, 1936. It was here on a previous appeal (Reiter v. Illinois National Casualty Co., 328 Ill. App. 234 (First Division), in which this court reversed a decree dismissing the complaint for want of equity and remanded the cause to the Superior Court with directions to enter a decree in favor of plaintiff.

We refer to that opinion for a statement of the facts. In view of the conclusion reached upon this appeal, we refrain from making any comment upon the evidence recited in the Appellate Court opinion.

The decree which was reversed was entered upon a report by Master O’Toole, who reported the evidence taken before him and his conclusions and recommendations. It appeared from his report that at the conclusion of plaintiff’s evidence, the defendants each moved for a finding by the master in their favor. The defendants introduced no evidence. The master sustained that motion and recommended the dismissal of the complaint based only on the evidence for plaintiff and the pleadings in the cause. This court, in reversing that decree, held that the motion for a finding made before the master at the conclusion of plaintiff’s evidence was tantamount to submission for a final determination of the cause upon the evidence for plaintiff, and further held that plaintiff was entitled to an accounting, and directed a decree be entered for plaintiff.

The Supreme Court (Reiter v. Illinois National Casualty Co., 397 Ill. 141) reversed the judgment on the ground that the motion for a finding was not tantamount to a submission of the cause upon the plaintiff’s evidence, and remanded the cause to the trial court to allow the defendants to proceed with the taking of testimony in their defense, if so desired by them. Upon the filing of the mandate of the Supreme Court, the Superior Court on October 31, 1947, re-referred the cause to Master O’Toole for the taking of further evidence.

To explain the reasons for this protracted litigation (presently over 20 years), it is necessary to briefly outline in chronological order the proceedings following the decision of the Supreme Court.

On October 18,1948, plaintiff’s petition to cancel the reference to Master O’Toole, in which serious charges of prejudice on the part of the master were asserted, was denied and defendants ordered to close proofs before said master within six months from October 14, 1948.

On March 10, 1949, plaintiff filed a motion with the master that the cause be heard by some master other than Master O’Toole. Master O’Toole justifiably refused to hear the cause further, and on March 23,1949, the reference to Master O’Toole was vacated and the cause referred to Master Lantry. In the hearing before Master Lantry plaintiff refused to proceed with production of Ms evidence but insisted that tbe evidence taken before Master O’Toole should be received by tbe new master. Tbe master certified tbe question of procedure to tbe chancellor, who entered an order May 11, 1949, requiring plaintiff to proceed de novo before Master Lantry, and that tbe master do not consider tbe evidence taken before Master O’Toole.

Plaintiff then filed a petition in tbe Supreme Court for original mandamus against tbe chancellor, to expunge from tbe record tbe order of May 11, 1949. Tbe proceedings before Master Lantry were suspended pending tbe petition for mandamus in tbe Supreme Court. Tbe Supreme Court, in People ex rel. Reiter v. John J. Lupe, Judge, 405 Ill. 66, denied tbe writ, in which tbe court held that Master Lantry could not consider tbe evidence taken before Master O’Toole, since be bad no opportunity to see or bear tbe witnesses and judge their credibility, and therefore could not fully perform bis duties under tbe law. Tbe court stated:

“Thus, petitioner’s predicament of having to proceed de novo before Lantry is largely one of bis own creation, and not tbe result of any arbitrary or unreasonable action on tbe part of tbe trial court.”

March 14, 1950, Master Lantry having died, tbe motion to vacate tbe reference to Master Lantry was allowed. Reversing bis previous position, plaintiff then moved to re-refer tbe cause to Master O’Toole, which was denied on April 21, 1953, and tbe cause was then referred to Master Wescott, who set tbe cause for bearing on May 14,1953. Several continuances of tbe bearing before Master Wescott followed.

On July 17, 1953, plaintiff applied to tbe United States District Court for tbe Northern District of Illinois for a restraining order against defendants and Master Wescott, from proceeding with tbe bearing, and for a declaratory judgment in that court. On October 20, 1953, the United States District Court refused to allow the filing of the complaint for a declaratory judgment and declined to accept jurisdiction. An appeal was taken from that order in March, 1954, to the Circuit Court of Appeals for the Seventh Circuit, which court on June 10, 1954, affirmed the District Court.

On April 12, 1955, plaintiff moved in the instant cause for leave to file a supplemental complaint for a declaratory judgment. Defendants countered with a motion to dismiss the cause for want of prosecution. On June 24, 1955, the court refused leave to file the supplemental complaint and denied the motion to dismiss for want of prosecution without prejudice to the right to renew the motion.

Plaintiff filed a petition in the Supreme Court for leave to appeal from the order denying leave to file the supplemental complaint. That court upon motion on September 28,1955, dismissed the petition for leave to appeal.

The cause came on for hearing before Master Wescott on November 30, 1955, when plaintiff appeared and declined to proceed with his evidence, informing the master that on. November 14, 1955, a petition for a conservator had been filed in the Probate Court of Cook County to have plaintiff adjudged mentally ini competent, and that the hearing was set for January 9, 1956. Plaintiff’s counsel advised the master that plaintiff had been incompetent for more than five years and could not proceed before the master because he had no client, and asked that the master continue the hearing until the Probate Court had acted. Defendants then moved before the master that the cause be dismissed for want of prosecution. December 16,1955, the master filed his report, recommending the dismissal of the cause for want of prosecution.

December 29, 1955, the chancellor heard arguments upon the exceptions to the latter report, and an order was entered dismissing the cause for want of prosecution. On January 17, 1956, plaintiff moved that the cause be reinstated upon the docket, that the order of dismissal be vacated, and that Marie Reiter, who was appointed on January 9, 1956, conservator of T. H. Reiter, incompetent, be substituted as party plaintiff. February 20, 1956, the chancellor denied the motion, ruling that it was unnecessary to pass upon the motion for substitution of the party plaintiff, since there was no cause then pending.

In 1955 the Master in Chancery Act, Ch. 90, Ill. Rev. Stat. 1955, was amended, effective January 1, 1956. The pertinent provisions of the amendment are:

“5b. Evidentiary status of testimony taken before a master.] § 5b. Testimony taken before a master in chancery pursuant to a reference and certified to the court may be filed as evidence. If the testimony of a witness before a master in chancery has been completed and the master ceases to act for any reason before the testimony is certified to the court, the testimony of the witness may be proved and when proved may be ordered filed as evidence. The court in its discretion
(1) may hear the case on evidence filed pursuant to this section and any other evidence the parties may introduce;
(2) may refer the case to another master in chancery to take further evidence and certify the same to the court, and the court may then hear the case on the evidence filed pursuant to this section and the additional evidence certified to the court; or
(3) may refer the case to another master in chancery to hear the same on the evidence filed pursuant to this section and any other evidence the parties may introduce and to certify the evidence and report Ms findings of fact and conclusions of law thereon.”

The effective date of this amendment, it will be observed, was two days following the order of December 29, 1955, dismissing this cause. The hearing in the Probate Court was set for January 9, 1956, on which day the original plaintiff in this cause was adjudicated incompetent and the present plaintiff was appointed conservator.

At the time the order of dismissal was entered there was in effect Section 20, Chapter 1, Abatement, Ill. Rev. Stat. 1955, which reads:

“If, during the pendency of any action, proceeding or complaint, in law or equity, either party becomes insane, the cause may be prosecuted or defended by Ms conservator in like manner as by an executor or administrator in case of the death of a party, or the court may appoint a guardian ad litem, as the case may require.”

Chapter 3, par. 276, § 124, Ill. Rev. Stat. 1955, provides :

“The conservator of the estate of an incompetent shall appear for and represent his ward in all legal proceedings unless another person is appointed for that purpose as conservator or next friend. But this does not impair the power of any court to appoint a conservator or next friend to defend the interests of the ward in that court, or to appoint or allow any person as the next friend of a ward to commence, prosecute, or defend any suit in his behalf.”

It thus clearly appears from the foregoing sections that the legislature contemplated that, when a person becomes incompetent, his interests are' to be protected by a conservator appointed by the Probate Court, or a guardian ad litem to be appointed by the court in any proceeding wherein the incompetent is either plaintiff or defendant.

In People v. Scott, 326 Ill. 327, 343, it was said:

“The same rule in this regard applies to insane defendants, or those presumed to be insane, as is applicable to minors who have no guardian appointed for them. Minors who have no guardian must be represented by guardian ad litem whenever their personal or property rights are involved or all proceedings against them will be erroneous. . . . The same rule is applied in cases where it is represented that the defendant is insane.” (Citing Pyott v. Pyott, 191 Ill. 280.)

This court in Pyott v. Pyott, 90 Ill. App. 210, 224, said:

“It is the duty of the court upon proper suggestion or petition, made in a pending cause in equity, to appoint a guardian ad litem to any infant or insane defendant (if there is no conservator of the insane person) in such cause.
a
“The analogy in practice between infant and insane defendants seems to us to be complete.”

In Bellchambers v. Ebeling, 294. Ill. App. 247, upon the motion for new trial, after verdict, it was suggested to the court that the defendant was a minor, and a .guardian ad litem was then appointed, the trial court certifying that there was nothing brought to the attention, of the court to indicate that the minor had been deprived of any defense, or any rights or privileges as a minor, of which he could have taken advantage had a guardian ad litem been appointed at the time of the starting of the suit or any time thereafter. The judgment was reversed because no guardian ad litem was appointed before trial. (Followed in Chmielewski v. Marich, 350 Ill. App. 379, 382; affirmed 2 Ill.2d 568.)

In Simpson v. Anderson, 305 Ill. 172, 175, it was stated:

“It is well settled that a judgment or decree against a minor without the appointment of a guardian ad litem to represent him in the suit is voidable and may be set aside by a proper motion made in the court where the judgment or decree was rendered and the minor allowed to make his defense, and this may be done at a term subsequent to that in which the judgment or decree was rendered.”

In view of the statute and the holdings in the cases cited, and particularly the holding in the Simpson case, the motion made in the instant cause on January 17, 1956, to vacate the order of dismissal was made in term time and should have been allowed. That the former plaintiff was incompetent when the order of dismissal for want of prosecution was entered was adjudicated by the Probate Court on January 9, 1956. The dismissal of the action barred plaintiff from the statutory benefit of having the testimony already taken on behalf of plaintiff before Master O’Toole considered by the court or another master.

Cases cited by defendants, which hold that before one who is insane is entitled to have a judgment against him set aside, there must be a showing of either a meritorious claim or defense, as the case may be, are not applicable to the instant case, in view of the decision of the Supreme Court remanding the instant cause to allow the defendants to proceed with their defense.

We adhere to the principle announced by us in Kaufman v. Goldman, 8 Ill.App.2d 409, where we stated:

“We think there should be an end to the repetitious litigation.”

We pointed to the statement in Stoll v. Gottlieb, 305 U. S. 165:

“It is just as important that there should be a place to end as that there should be a place to begin litigation.”

We disapprove of litigation pending as long as the instant ease, and courts should, whenever possible, discourage procedure which would permit a condition like the one here revealed. However, we are impelled upon this state of the record, although reluctantly, to conclude that the court erred in dismissing the cause for want of prosecution and in denying the motion to vacate that order.

The orders appealed from are reversed and the cause remanded with directions that an appropriate order be entered re-referring the cause to a master, who should consider the evidence already taken on behalf of the former plaintiff before Master O’Toole, and allow the defendants to offer such evidence in their defense as they may desire, or on the same basis the cause be heard by the chancellor.

Eeversed and remanded with directions.

KILEY and LEWE, JJ., concur.


author: JUDGE KILEY

text:
    A. S. Thomas, Appellee and Cross-Appellant, v. Roman J. Kowalewski, et al., Defendants. On Appeal of Josephine E. Richards and K. A. Richards, Appellants and Cross-Appellees.
    Gen. No. 46,799.
    First District, Third Division.
    December 28, 1956.
    Rehearing denied February 6, 1957.
    Released for publication February 6, 1957.

      Franklin J. Stransky, Rathje, Kulp, Sabel & Sullivan, all of Chicago, attorneys for Josephine E. Richards and K. A. Richards, appellants and crossappellees.
    Joseph F. Elward and Edward S. Macie, both of Chicago, attorneys for A. S. Thomas, plaintiff-appellee and cross-appellant.
   JUDGE KILEY

delivered the opinion of the court.

This is a creditor’s suit to establish a lien upon real estate, on the alternative theories of a resulting or a constructive trust, and for sale of the property in satisfaction of the judgment. The decree was in favor of plaintiff and defendants have appealed. Plaintiff has cross appealed with respect to costs.

The real estate is at the northeast corner of 51st and Throop Streets in Chicago. It is improved with a two-story brick office and apartment building. The property was acquired by Nellie Kowalewski from the Sherman State Bank on June 3, 1925. As part of the purchase price she and her husband Roman gave back a mortgage of $20,000. On June 30,1925, they executed a second mortgage of $25,000 naming Sherman State Bank as trustee. On July 7, 1930, a $2500 check of the R. J. Kowalewski Real Estate Company, Inc., was applied upon the first mortgage.

On February 13, 1932, suit was filed in the Superior Court to foreclose the second mortgage, and the following August 4 the holders of the first mortgage sued to foreclose. Thereupon, the earlier foreclosure suit was abandoned. The decree in the first mortgage foreclosure suit was entered June 10, 1933, finding $19,080.88 due and the mortgage a prior lien on the property and its rents, issues and profits. The holders of the mortgage purchased the property at the sale under the decree on July 6, 1933. The sale was approved January 22, 1937, and a deficiency decree entered for $1,598.69. A master’s deed passed to the purchasers and there was no appeal from the decree.

In 1935 the second mortgage trust deed and note were owned and held by B. Byer and were exchanged for a note made by Nellie and Roman Kowalewski for $15,748 payable to Byer or order. Plaintiff, legal owner and holder of this note, confessed judgment in October, 1940, for $21,556.65 and costs. The instant proceeding was begun November 22, 1940, to subject the property to the satisfaction of the judgment. At the time of suit title was in defendant Josephine Richards, wife of a son of Nellie and Roman Kowalewski, having been conveyed to her in 1936 by the purchasers at the sale under the foreclosure of the first mortgage.

Plaintiff’s theory is that the conveyance to Josephine Richards created a resulting trust because it was purchased with funds of Nellie and Roman Kowalewski, or a constructive trust because it was the result of a conspiracy to hinder and defraud the creditors of Nellie and Roman Kowalewski, including plaintiff.

The record discloses that plaintiff’s judgment became dormant in October, 1947, and was revived in April, 1950, by an original proceeding. At the time of revival, Nellie Kowalewski was dead.

The decree found that the conveyance to Josephine Richards was induced by her husband with funds in his hands collected as rent from the premises prior to the approval of the foreclosure sale in January, 1937; and that the conveyance resulted in a trust in favor of Nellie Kowalewski and her creditors, including plaintiff. These findings were based on a finding that the transaction was the result of an “arrangement” between Nellie Kowalewski, her son Richard, and his wife Josephine to delay and defraud the creditors and that Josephine Richards held title for the benefit of the creditors, including plaintiff. The decree ordered that plaintiff’s judgment “be and is hereby declared a lien” on the property and on the legal title of Josephine Kowalewski, and that unless Richard and Josephine Kowalewski paid plaintiff $21,556.65, with interest at 5% from October 29, 1940, within thirty days, the property to be sold at public sale.

In their brief defendants pointed out that Nellie Kowalewski had died June 8, 1947, before the filing of the revival suit on February 27, 1950, that her death was not suggested nor her personal representative made a party in that suit. Her death was suggested before the master September 12, 1952, was noted in the master’s report, and consequently was before the chancellor.

The question is whether Nellie Kowalewski’s death prior to the revival of the judgment rendered that judgment void.

Plaintiff’s original judgment was entered October, 1940. The judgment was a lien upon the real estate of Nellie Kowalewski for “seven years, and no longer.” (Chap. 77, Par. 1, Ill. Rev. Stat. 1953.) The lien of the judgment expired in October, 1947, and was not revived until 1950, three years after Nellie Kowalewski’s death. The revival suit was an independent proceeding in which the court had no jurisdiction of her person, neither her personal representative nor her heirs at law were made parties, and the judgment of revival is accordingly void. (Claflin v. Dunne, 129 Ill. 241, 244; State Bank of Prairie du Rocher v. Brown, 263 Ill. App. 312, 315.)

Plaintiff contends, however, that the suit to revive the judgment was superfluous because the filing of the instant creditor’s suit in November of 1940 created an equitable lien at that time, and that this lien was not subject to the seven year limitation of a statutory lien and was unaffected by the death of Nellie Kowalewski. He relies upon Davidson v. Burke, 143 Ill. 139, and King v. Goodwin, 130 Ill. 102.

King v. Goodwin held that “the filing of a creditor’s bill, and the service of process, creates a lien on the equitable assets of the judgment debtor” and this lien is not extinguished by the death of the defendant. The case did not determine whether a lien created by the filing of a creditor’s suit is subject to the seven year limitation of statutory liens, and therefore, under the view we take of the instant case, King v. Goodwin is not in point here.

In Davidson v. Burke the creditor’s suit was filed within seven years of the judgment but the decree declaring plaintiffs lien was entered more than eight years after the judgment. The court said: “In a case where the plaintiff has no lien on the property sought to he reached, it is the filing of the hill in equity, after the return of the execution at law, which gives to the plaintiff a specific lien.” We think the court in that case treated the suit as a strict creditor’s bill under the Creditor’s Bill section of the then Chancery Act (Chap. 21, Par. 40, Statutes of Illinois 1869), now the discovery section of the Chancery Act (Chap. 22, Par. 49, Ill. Bev. Stat. 1953). This is plain from the court’s statement that Burke’s suit was not to enforce a judgment lien and therefore the question of the seven year limitation of the life of the statutory judgment lien did not arise. (Davidson v. Burke, 143 Ill. 139, 148.) This statement is not consistent with the distinction made in Rice Co. v. McJohn, 244 Ill. 264, between statutory creditors’ suits and suits in aid of a legal execution, hut that inconsistency need not concern us here. The statement implies that if Burke’s suit had been in aid of an execution in enforcing the statutory judgment lien a live judgment would have been necessary to support the suit. What the court in Davidson implied is expressed in Newman v. Willetts, 52 Ill. 98, Weis v. Tiernan, 91 Ill. 27, and Bennett v. Stout, 98 Ill. 47. A live judgment is a prerequisite to a suit in aid of a legal execution.

A statutory creditor’s suit is designed to reach a debtor’s assets which are not vulnerable to the Judgment Lien Act and cannot be reached by execution at law. (Rice Co. v. McJohn, 244 Ill. 264, 270.) Consequently, a statutory judgment lien is not a prerequisite to its effectiveness. (Bennett v. Stout, 98 Ill. 47.) But the statute requires as a prerequisite that an execution be returned nulla bona. (Chap. 22, Par. 49, Ill. Rev. Stat. 1953.) Plaintiff in the instant case did not corn-ply with this requirement hut we need not discuss this defect.

"When plaintiff filed his suit under the discovery section (Chap. 22, Par. 49) in November of 1940 and obtained service on defendants, an equitable lien was created in his favor. (Potter v. Couch, 141 U. S. 296; Pomeroy’s Equity Jurisprudence, Vol. 4, page 1062, note to Sec. 1413 (5th ed. 1941).) But suits under this statute are analogous to garnishment suits. (Fidelity Coal Co. v. Diamond, 322 Ill. App. 229.) “The object attempted to be reached in each case is practically the same.” (Addyston Pipe & Steel Co. v. City of Chicago, 170 Ill. 580, 585.) “Both an execution and the proceedings in garnishment derive their support from the main judgment. Under the decisions, if the main judgment fails, the rights acquired under the garnishment cease.” (Ring v. Palmer, 309 Ill. App. 333, 337.) In Jones v. Salinger, 329 Ill. App. 177, the analogy was relied upon by this court in holding that a creditor’s suit may not be brought where the judgment at law was dormant before the filing of the suit in equity. Likewise, using the analogy, it follows that if a garnishment proceeding commenced within seven years from the date of rendition of the judgment at law fails when the judgment becomes dormant during the pendency of the suit (Ring v. Palmer, 309 Ill. App. 333), a creditor’s suit will also fail under the same circumstances.

Plaintiff seeks to distinguish Jones v. Salinger, 329 Ill. App. 177, on the ground that the creditor’s suit in that case was not commenced until after the judgment had become dormant. The distinction is not valid, however, because equity speaks as of the time of the entry of the decree. (Dennis v. Naegele, 11 Ill.App.2d 239, 136 N.E.2d 535.) We conclude, therefore, that since the judgment here was dormant when the decree was entered, there was no support for the order of sale and the decree was accordingly erroneous and must be reversed.

Logic and decisions in other jurisdictions support the analogies mentioned and require that a suit ancillary to an execution presuppose the existence of a judgment capable of supporting an execution, because the suit has as its main purpose the satisfaction of the judgment. Miller v. Melone, 11 Okla. 241, 67 Pac. 479, 482, and cases cited and quoted therein.

Our conclusion runs counter to the decision in the Davidson case upholding a decree on an unrevived judgment eleven years after its entry. We respectfully depart from that holding on authority of the Addyston case and the other cases cited, which make the analogy between creditors’ suits, under the statute, and garnishment proceedings, and which apply the implications arising from the analogy in the rules they have announced.

The policy of Illinois underlying the Lien section, Chap. 77, Par. 1, and the dormant Judgment section, Chap. 77, Par. 5, of the statute is the necessity of keeping property in the stream of commerce by unfettering it after seven years where the creditor has not been diligent in protecting his right. (Riggin v. Mulligan, 9 Ill. 50; Scammon v. Swartwout, 35 Ill. 326; Tenney v. Hemenway, 53 Ill. 97.) This policy is expressed plainly and forcibly in the statute sections and cases mentioned. To sustain the Davidson decision would be to enable equity not only not to follow the law, but to override an express law policy of Illinois. We think our conclusion supports the policy.

For the reasons given, it is our opinion that the decree should be reversed and the suit dismissed for want of equity.

We think it is no objection to this conclusion that the question of the validity of the revival judgment was not raised at the trial. The judgment of revival was void, and the jurisdictional fatality may be raised on this appeal from the decree necessarily resting on the void judgment. The original judgment was dormant, the defendants were unaffected by the void revival judgment, and neither it nor the original judgment supports this decree.

In view of our conclusions we need consider no other points raised on appeal or cross-appeal. For the reasons given the judgment is reversed and the cause remanded for further proceedings in accordance with the views expressed in this opinion.

Reversed and remanded.

FEINBERG, P. J. and LEWE, J., concur.


author: JUDGE LEWE

text:
    John Kosick, Appellee, v. Hospital Service Corp., An Illinois not-for-profit corporation, Appellant.
    Gen. No. 46,885.
    First District, Third Division.
    December 28, 1956.
    Released for publication February 6, 1957.

      Miller, Gorham, Wescott & Adams, all of Chicago, for appellant; Bobert T. Sherman and Joseph C. Lamy, of counsel.
    Hugh J. McCarthy, of Chicago, for appellee; Bobert Murphy, of counsel.
   JUDGE LEWE

delivered the opinion of the court.

Defendant appeals from a judgment in favor of plaintiff in an action to recover certain hospital expenses under the terms of a certificate for hospital care known as “Blue Cross” issued by defendant. Defendant’s motion at the close of the evidence for a finding in its favor was overruled.

Plaintiff was employed in the shop of one Fritz Muhlhauser as a pattern, molding and cabinet maker. While doing some work at his employer’s residence, plaintiff suffered a back injury. As a result of this injury, he required hospital care.

Plaintiff filed a claim under the Illinois Workmen’s Compensation Act. After a hearing the arbitrator found, inter alia, that Muhlhauser was operating under the provisions of the Illinois Workmen’s Compensation Act; that the relationship of employee and employer existed between Kosick and Muhlhauser; and that Kosick sustained accidental injuries arising out of and in the course of the employment. Upon review the Industrial Commission reversed the decision of the arbitrator. On appeal, the Circuit Court of Cook County found that the decision on review by the Industrial Commission was erroneous and remanded the cause to the Commission with directions to confirm the decision of the arbitrator. There was no appeal from the order of the Circuit Court confirming the decision of the arbitrator.

After plaintiff had successfully prosecuted his claim for monies due him under the provisions of the Workmen’s Compensation Act, including the sum of $1470.24 for necessary first aid, medical, surgical and hospital services, he petitioned the Industrial Commission in the same proceeding for a lump sum settlement of $5000. In accordance with the prayer of plaintiff’s petition an order was entered by the Commission reciting that “. . . a proper showing having been made, it appears to the Commission to be to the best interest of the parties that compensation herein be paid in a lump sum.” Plaintiff admits receiving the lump sum payment of $5000.

In the present case, the principal issue at the trial was whether plaintiff was barred from recovering his hospital expenses by an exclusionary clause in the certificate of insurance which reads,

“ ‘Hospital service’ does not include the following:
“Care of injuries or diseases for which the Member is entitled to hospital care, or for which he receives any award or settlement in any proceeding filed, under workmen’s compensation or occupational diseases law.” (Italics ours.)

The record shows that the trial judge rested his decision on the ground that the defendant had failed “to show that a portion of the settlement at least was in contemplation of the medical and hospital expenses.”

Plaintiff says that it is a question of fact whether his injury arose out of and in the course of employment since the evidence shows that (1) plaintiff, “a pattern and model maker,” was injured while helping his employer build his home, and (2) the “settlement contract” executed by defendant states as reasons for a lump sum settlement that

“there are disputed questions of law and fact, and respondents specifically deny that petitioner sustained an accidental injury arising out of and in the course of his employment and deny that petitioner’s disability is related to any accidental injury sustained while in respondent’s employment.”

An examination of the pleadings shows that the question whether plaintiff’s injuries arose out of or in the course of his employment was not raised in the statement of claim or defendant’s answer. In plaintiff’s reply he avers that the “settlement received pursuant to the Workmen’s Compensation Act was solely for the purchase of peace, and did not entitle plaintiff to hospital care.” (Italics ours.)

The denials in plaintiff’s reply that hospital charges for which recovery is here sought were paid pursuant to the Workmen’s Compensation Act and that the lump sum settlement was for the purchase of peace are legal conclusions.

A lump sum settlement merely provides for a different method of payment. It is a commutation of periodical payments into one single, all inclusive payment, thus enabling an employee to obtain the entire amount of compensation due at one and the same time as distinguished from weekly payments. The governing rules relating to lump sum petitions are stated in Volume 2 of Angerstein, Illinois Workmen’s Compensation § 1754 (Rev. ed. 1952), at pages 357-58. There it is said,

“ [A] hearing on a lump sum petition and the jurisdiction of the commission on such petition, is solely to determine if compensation should be paid in a lump sum and not to determine any other disputed questions. After the parties have agreed upon the amount of compensation payable, or in case of a dispute, after an award is entered by the arbitrator, or a decision on review by the commission, and the time for any review under the provisions of the Act has expired, or in eases in which there has been a final judgment, then either the employee or the employer may petition the commission to commute or order paid in a lump sum all compensation payments yet unpaid under such agreement or award.”

On the hearing of the petition for a lump sum the commission did not have jurisdiction to determine any disputed questions of law or fact with respect to liability for compensation. (Clark Co. v. Industrial Commission, 291 Ill. 561.) Therefore, reasons stated in the settlement contract as grounds for a lump sum settlement have no legal significance in that proceeding nor in the case at bar.

It should be noted that the arbitrator in his decision, which was subsequently affirmed by the Circuit Court, expressly found that plaintiff as petitioner in that proceeding “is now entitled to have and receive from the respondents [Muhlhauser] . . . the further sum of $1470.24 for necessary first aid, medical, surgical and hospital services . . .”

These items, though not segregated, are referred to in the “settlement contract.” The petition for settlement filed by plaintiff with the Industrial Commission recites that “the lump sum desired is $5,000 as a lump sum of all compensation provided in the settlement contract which, by reference, is made part hereof ??

From the undisputed facts, we think the inference can be justifiably drawn that the lump sum payment to plaintiff necessarily included his hospital expenses and we so hold.

Plaintiff insists that the exclusionary clause is ambiguous and that the word “or” in the clause should be construed to mean “and,” thus making only a single exclusion. Plaintiff admits that if the word “or” is so construed as a conjunctive, the effect would be to narrow the scope of the exclusionary clause. We think the mischief resulting from such a construction is clearly demonstrated in the illustration given by defendant of a case where the holder of a certificate for hospital care would be entitled to benefits under the Workmen’s Compensation Act. Obviously the insurer would have no defense to an action, against it upon the certificate unless there had been an award or settlement in the Workmen’s Compensation proceedings — prior to the trial of the action upon the certificate. There could then result the anomolous situation of payment of a judgment against the insurer prior to the final decision in the Workmen’s Compensation case, which in turn would require a subsequent action by the insurer to recover the payment to the certificate holder after the conclusion of the Compensation case.

In a recent case, People v. Vraniak, 5 Ill.2d 384, (cert. denied, 349 U. S. 963), involving the construction of the word “or,” the Court said at page 389,

“It is to be noted that the statute consists of a series of three separate clauses each joined by the disjunctive conjunction ‘or.’ As used in its ordinary sense, the word ‘or’ marks an alternative indicating that the various members of the sentence which it connects are to be taken separately.”

And so in the case at bar, we think the disjunctive conjunction “or” was clearly intended to mark an alternative designating both parts of the exclusionary clause to be read separately.

Plaintiff was entitled to hospital care for the injuries he sustained while employed by Muhlhauser; and since the arbitrator also determined, as confirmed by the Circuit Court, that plaintiff was to be awarded a specific sum for hospital and other services, either part or both parts of the exclusionary clause are applicable. Plaintiff is therefore precluded from recovering. And the trial court erred in denying defendant’s motion at the close of the evidence for a finding in defendant’s favor.

We have not discussed the authorities cited in the briefs since none are precisely similar to the present case.

For the reasons stated the judgment is reversed.

Reversed.

FEINBERG-, P. J. and KILEY, J., concur.


author: JUDGE ROETH

text:
    Merle Hoagland, et al. d/b/a Hoagland Transfer Company, Plaintiffs-Appellees, v. Joseph D. Bibb, as Director of the Department of Public Safety of the State of Illinois, and William H. Morris, as Superintendent of the Division of State Highway Police, Department of Public Safety of the State of Illinois, Defendants-Appellants.
    Gen. No. 10,119.
    Third District.
    January 8, 1957.
    Released for publication January 24, 1957.
    Latham Castle, Attorney General, of Springfield, for defendants-appellants; Richard W. Husted, Assistant Attorney General, of counsel.
    DeBoice, Greening & Ackerman, of Springfield, for plaintiff s-appellees.
   JUDGE ROETH

delivered the opinion of the court.

This is an appeal from an interlocutory order denying a motion to dissolve a temporary injunction. On October 29,1956 plaintiffs filed a complaint against the Director of Public Safety and the Superintendent of the Division of State Highway Police of the Department of Public Safety praying for a declaratory judgment declaring Section 121.02 of the Uniform Act Regulating Traffic on Highways, being Section 218b of Chapter 95% Hlinois Revised Statutes 1955 unconstitutional and for temporary and permanent injunction enjoining enforcement of the act. The act in question is commonly referred to as the Splash Guard Act. The amendatory act was passed at the 1955 session of the Legislature and was approved July 15, 1955. It became applicable to certain trucks on September 1, 1955 and applicable to all trucks on January 1, 1957. On October 30,1956 plaintiffs gave notice to defendants that on November 1, 1956 they would appear in the Circuit Court of Sangamon County and move for a temporary injunction in accordance with the prayer of the verified complaint. On November 1, 1956 the Circuit Court with the Honorable Clem Smith presiding granted the motion and ordered a temporary injunction, restraining the defendants from enforcing the act in question during the pendency of the suit and until further order of the court. The order recites that the parties appeared by their respective attorneys and that the court was fully advised in the premises. While the record does not show any of the proceedings that occurred on this hearing, it was conceded by the Attorney General on oral argument before this court, that a full hearing was had and that the same propositions urged by the Attorney General on the subsequent motion to dissolve, were urged and considered by the Circuit Court at this hearing. No appeal was prosecuted from this order although the same was authorized by Section 78 of the Civil Practice Act [Ill. Rev. Stats. 1955, ch. 110, § 78].

On November 13, 1956 defendants filed a motion to dissolve the temporary injunction, setting up therein, the same grounds as a basis for the motion as were concededly urged orally at the hearing on November 1, 1956. This motion came on for hearing on November 21, 1956 before Honorable Creel Douglas, Acting Circuit Judge. After argument it was taken under advisement and subsequently on November 27, 1956 denied. This appeal was perfected from the order denying the motion to dissolve the temporary injunction. Subsequently one of the Judges of this court entered a stay order pending this appeal.

The primary purpose of notice of an application for temporary injunction is to afford a defendant an opportunity to show, if he can, that an injunction should not issue. I.L.P. Injunctions Par. 123. Here defendants have had two such opportunities before two different Judges. However, we have treated the motion to dissolve as properly made and the case properly before us for a determination of the questions ordinarily raised by such a motion and as are particularly raised by the motion in the case at bar.

It is to be observed at the outset that we may not concern ourselves with the constitutionality of the statute in question. We are limited in our inquiry to the question of whether plaintiffs’ verified complaint was sufficient to sustain the order of the trial court denying the motion to dissolve. The actual merits of the cause are not before us on this appeal.

In support of their motion to dissolve defendants contend (1) the complaint does not state a cause of action, (2) there is no allegation in the complaint showing that the amendatory act is effective as to plaintiffs prior to January 1,1957, (3) there is no actual controversy so as to make the provisions of the Civil Practice Act on declaratory judgments applicable, (4) that the allegations in the complaint of threatened enforcement by defendants are on information and belief and (5) that the temporary injunction instead of maintaining the scatus quo in effect defeats this purpose.

To properly evaluate these contentions it is necessary to examine the complaint. The complaint alleges that plaintiffs are owners and operators of motor vehicles of the second division consisting of various named types of trucks, trailers and tractors; that they hold a valid Certificate of Public Convenience and Necessity issued by the Commerce Commission; that they have equipped all of their trucks with and are now maintaining, rear fender splash guards in accordance with the requirements of the law as it existed prior to the enactment of the amendatory act in question; that they are informed and believe that defendants will proceed to enforce said amendatory act of 1955 against them so as to subject them to fines and penalties; that said act is unconstitutional in that it violates Section 22 of Article IY, Section 2 of Article II and Article m of the Constitution of the State of Illinois and the 14th Amendment of the Constitution of the United States; that the amendatory act delegates legislative power to administrative officers without prescribing the rules, standards or limitations for its exercise; that the amendatory act is not a valid exercise of police power for eleven designated reasons; that as holders of a Certificate of Public Convenience and Necessity plaintiffs enjoy a valuable property right which they will be deprived of unless an injunction is issued because of the fact that they cannot comply with the terms of the amendatory act and at the same time continue the operation of their business; and that plaintiffs are without an adequate remedy at law.

An analagous situation was present in the case of Thillens, Inc. v. Cooper, 345 Ill. App. 145, 102 N.E.2d 562. That case involved an amendatory act to the Community Currency Exchange Act. Prior to the passage of the amendatory act, the Community Currency Exchange Act did not apply to the ambulatory exchange business. The amendatory act brought such businesses under the act. Plaintiff who conducted an ambulatory exchange business filed suit against the Auditor of Public Accounts, the Attorney General and the State’s Attorney of Cook County, the officers charged with enforcing the act, for declaratory judgment as to the constitutionality of the amendatory act and for temporary injunction claiming, that unless enforcement was restrained pending final adjudication of its constitutionality, plaintiff would be forced to discontinue his business since it was impossible for him to comply with the amendatory act and that irreparable injury would follow. A temporary injunction was issued and appeal was prosecuted from the temporary order. Defendants in that case on appeal, urged as they do here, that the complaint did not state a cause of action, that no actual controversy existed as contemplated by the section of the Civil Practice Act on declaratory judgments and that the complaint set forth no irreparable injury. We do not deem it necessary to compare the complaint in that case with the complaint at bar. Suffice it to say, they are comparable. The Appellate Court in that case affirmed the order granting the temporary injunction. The decision of the Appellate Court had tacit approval in Thillens, Inc. v. Hodge, 2 Ill.2d 45, 116 N.E.2d 886, when the same case reached the Supreme Court after the trial court entered judgment on the pleadings, after answer, holding the amendatory act unconstitutional. The Supreme Court reversed on the ground that the complaint and answer raised questions of fact requiring the introduction of evidence in order to resolve the factual issues before deciding the legal questions. Much the same situation would be present in the case at bar especially with reference to the claimed unreasonable, arbitrary and unnecessary exercise of the police power of the State.

The courts of Hlinois have recognized that a declaratory judgment action is a proper method of testing the constitutionality of a statute. Elgin Storage & Transfer Co. v. Perrine, 2 Ill.2d 28, 116 N.E.2d 868, Johnson v. Halpin, 413 Ill. 257, 108 N.E.2d 429, Dean Milk Co. v. City of Aurora, 404 Ill. 331, 88 N.E.2d 827. Nor does the fact that, so far as the allegations of the complaint are concerned, the amendatory act in question does not affect plaintiffs until January 1, 1957, impose any obstacle on a court in such a declaratory judgment action. A declaratory judgment action will lie to determine rights under a statute even though the act is not yet in effect. Anderson on Declaratory Judgments Sec. 291, page 676, Acme Finance Co. v. Huse, 192 Wash. 96, 73 P.2d 341 and annotation following report of case in 114 A.L.R. 1365; Department of Financial Institutions v. General Finance Corp., 227 Ind. 373, 86 N.E.2d 444. The amendatory act was certain to take effect. In the absence of an adjudication declaring its invalidity, it is to be presumed that those officials charged with its enforcement will do their duty and enforce it. If, as alleged, such enforcement will substantially affect plaintiffs’ property rights, a declaration may be sought before the legislation becomes effective. But, the defendants contend, a Certificate of Public Convenience and Necessity is not, as such, a valuable property right. However, the right to continue in the business and to obtain the fruits of labor in so doing, is a property right and is none the less so, albeit the State has seen fit to require the certificate before so doing. Generally speaking persons engaged in a business directly affected by a statute are considered to have sufficient interest to maintain a declaratory judgment action testing the validity of the statute. See Annotation 174 A.L.R. 558. That such is the law in Hlinois may be assumed from an examination of Elgin Storage & Transfer Co. v. Perrine, supra.

Finally defendants contend that the temporary injunction instead of maintaining the status quo in effect defeats this purpose since it leaves the State with no effective Splash Guard Act. It is axiomatic that the purpose of a temporary injunction is to maintain the status quo pending a final determination of the case on the merits. What may be the status quo may vary under varying circumstances. Here it has reference to preventing a threatened injury; to maintain the situation of the parties in the condition it was at the time of granting the injunction so as to protect the rights involved from a threatened wrong. The injunction does just this.

For the reasons stated we are of the opinion that plaintiffs’ verified complaint was sufficient to sustain the order of the trial judge. Accordingly the order denying the motion to dissolve will be affirmed and the stay order vacated.

Affirmed.