author: JUDGE ROBSON"

text:
    Harry T. Mitchell, Appellee, v. Alma C. Mitchell, Appellant, and Phyllis J. Kyrides, Defendant.
    Gen. No. 46,902.
    First District, Second Division.
    May 29, 1956.
    Released for publication June 19, 1956.

      Arvey, Hodes.& Mantynband, of Chicago, for defendant-appellant; Howard Arvey, Robert 0. Mansell, and Walter N". Kaufman, all of Chicago, of counsel.
    Robert J. Dempsey, and Edward V. Donovan, Jr., both of Chicago, for plaintiff-appellee.
   JUDGE ROBSON"

delivered the opinion of the court.

This action was brought by Harry T. Mitchell, plaintiff, to recover certain real and personal property transferred to his wife, Alma C. Mitchell, defendant, either by plaintiff himself without consideration, or by others in consideration of plaintiff’s funds. Plaintiff alleges that the defendant had committed acts of fraud, undue'influence, and conversion in acquiring and in dealing with the property. (Codefendant Kyrides was subsequently joined in the action but she does not appeal.) The trial court without notice and without bond, based upon the verified complaint and petition, granted plaintiff’s motion, for temporary injunction restraining defendant from disposing of or dealing in any manner whatever with any of the real and personal property held in her name.. Defendant filed her motion to vacate and dissolve the injunction. This motion was overruled." Defendant appeals from the order.

Defendant’s contentions for reversal of the trial court’s order are (1) that the allegations of the complaint are insufficient to support an injunction issued without notice, and (2) that the allegations of the complaint do not support the conclusion that there was good cause shown for issuing the injunction without bond.

As to the first contention, the verified complaint in question is a lengthy one consisting of four counts. In substance, it alleges that the defendant and plaintiff were married in 1952 and lived together as husband and wife until about April 1, 1955; that at the time of their marriage plaintiff was wealthy; that shortly after their marriage plaintiff and defendant opened a joint checking account for the purpose of affording to the defendant convenient access to funds for paying for household and other ordinary and necessary family expenses; that defendant made no deposits in the joint account; that plaintiff was informed and believes that defendant wrongfully withdrew more than $75,000 between December 12, 1952, and August 31, 1955; that a certain parcel of real estate in Wisconsin was purchased with plaintiff’s funds and title taken in the name of the defendant; that subsequently the property was improved with a house; that certain stocks of a very substantial value of which plaintiff was the owner were transferred to the defendant without consideration; that certain life insurance policies having a very substantial cash value were transferred to the defendant without consideration; that these acts were done through the fraud and deceit of the defendant while she was married to the plaintiff and while occupying the status of a fiduciary; that she wrongfully converted the property to her own uses and deprived plaintiff of its benefits; that plaintiff had requested defendant to account to him for this property and that she had refused so to do; that at the time defendant accomplished these acts plaintiff was ill and enfeebled and this condition still persists, and is of such a nature that it will continue to persist and prevent plaintiff from future gainful endeavor; that the harm resulting to the plaintiff from the concealment or disposition by the defendant of his assets held in her name would be irreparable.

The verified petition for temporary injunction incorporates and adopts by reference each of the allegations of the complaint, and further alleges that plaintiff is seriously ill and under the care of a physician; that he is incapable of gainful employment; that the only assets he possesses beyond those in the complaint are three life insurance policies upon which he has borrowed to the full extent; that there remains of the proceeds of these loans only $8,000 which is being used by him for living expenses and for the expenses of this litigation; and that he is dependent upon the recovery prayed for in his complaint for his future support and livelihood.

In paragraph 6 plaintiff further alleges “that he is informed and believes and therefore states the fact to be that the defendant has already attempted to conceal and place beyond his reach the assets of which she has wrongfully deprived him, and that upon receiving notice of this litigation, or of the injunction prayed for herein, she will endeavor to conceal and dispose of all property under her control, and will deprive and defeat the plaintiff of any recovery to which he may be entitled by the decree of this Court.”

Plaintiff further alleges that the harm resulting to the plaintiff from the concealment or disposition by defendant of these assets would be irreparable; that the cost of a bond in the light of plaintiff’s present circumstances and the subject matter of this cause would be prohibitive. On the basis of the verified complaint and petition the trial court entered the injunction without notice and without bond.

Defendant contends that paragraph 6 of the petition is the most material allegation in support of the injunction and being on information and belief is not sufficient to support the injunctional order. She states that in this case, as in Board of Trade v. Riordan, 94 Ill. App. 298, 309, the “essential allegations of the bill, which are relied upon to entitle appellee to the orders granted, are in relation to the acts- of the appellants,” and since the “necessary allegations must be verified positively” the injunctional order, based upon material allegations verified only on information and belief, cannot stand. Defendant further contends this court has held that, as a matter of law, allegations made merely upon information and belief cannot support an injunction even when issued with notice. Crawford-Adsit Co. v. Bell, 95 Ill. App. 427, 428; Fox v. Fox Valley Trotting Club, Inc., 349 Ill. App. 132, 137-8. In each of these cases cited by defendant a substantial portion of the facts and circumstances urged in support of the issuance of the injunction were upon information and belief.

In the instant case we have set forth at some length the allegations of the complaint and petition. An examination shows that approximately five lines of the complaint and only paragraph 6 of the petition, as quoted, are stated on information and belief. A careful study reveals that paragraph 6 is merely a summation of what plaintiff believes would occur if defendant were to be given notice of this litigation. In fact, none of the elements alleged in paragraph 6 were susceptible of absolute knowledge and to so state would have been improper. If we were to follow defendant’s theory we would have to isolate this language from the many other allegations of the complaint and petition and consider it alone. This we cannot do. We must examine the complaint and petition as a whole and reach our conclusion on the basis of all the proper and necessary allegations. Applying this statement, it is clear that it was not this single paragraph which caused the court to issue the injunction, but it was the numerous other proper substantive allegations.

Defendant further states that an examination of the complaint does not clearly show that plaintiff’s rights would have been unduly prejudiced had notice to the defendant been required. She cites the per curiam decision of our court in Skarpinski v. Veterans of Foreign Wars of United States, 343 Ill. App. 271, and quotes the following language at pp. 273-5:

“. . . almost every opinion of this court which has had occasion to take notice of this question, has emphasized the need for great caution in the granting of such orders, whether for receivers or for injunction. Brin v. Craig, 135 Ill. App. 301; Crown Building Corporation v. Monroe Amusement Corp., 326 Ill. App. 430; Koelling v. Foster, 150 Ill. App. 130, 134; Kessie v. Talcott, 305 Ill. App. 627; Sprague v. Monarch Book Co., 105 Ill. App. 530; Chicago City Ry. Co. v. Montgomery Ward & Co., 76 Ill. App. 536. . . .

“Even when granted upon a full and final hearing, injunctions are considered extraordinary remedies. They are more than extraordinary when granted after notice for a temporary period without issue having been joined and a hearing had. How extraordinary then must be the circumstances under which they should be granted without notice to the opposing party. In the most primitive concepts of justice, one of the fundamental requisites for the exercise of judicial authority over the person or property of another is notice. The exceptions to this rule are rare, indeed. They embrace cases ivhere by a stroke of the pen, a movement of the hand, or a tour de force executed overnight the defendant intends to and can destroy the substance of the litigation and thus defeat the power of the court to do justice. Caution and circumspection must be the watchwords to guide the court’s action and any doubts as to its wisdom must be resolved against the action. Only where these standards are meticulously observed will such orders survive review, for when an injunction is issued without notice in a case where notice should have been given, this court will reverse the order upon that ground without regard to any other question. This has been the law as laid down in decisions of this court for more than half a century. . . .

“In the last analysis, to test the necessity for the issuance of an injunction without notice, the court must ash whether in the minutes or hours required to procure a defendant’s appearance, defendant could and would do that which would seriously obstruct the court’s power to deal justly and effectively with the issue in dispute.” (Emphasis ours.)

We do not in any way disagree with this statement but we believe the exception which we have emphasized and not the general rule applies. Our courts have repeatedly recognized that where the assets involved are of such a nature that defendant can destroy the substance of the litigation “by a stroke of the pen, a movement of the hand,” and where it appears from the pleadings that the plaintiff by reason of the past wrongful conduct of the party to be enjoined has good cause and reason to apprehend such action, the issuance of an injunction without notice will be allowed. A. Daigger & Co. v. Kraft, 281 Ill. App. 548; Anderson v. Hultberg, 117 Ill. App. 231; Loftis v. Loftis, 225 Ill. App. 478; Wanner v. Powell, 75 Ill. App. 297. Such was the instant case.

While we are well aware that the propriety of the issuance of an injunction without notice and without bond must be determined solely upon the pleadings before the court when it entered the order, we believe the subsequent acts of the defendant in the instant case, as revealed by a petition of plaintiff for rule to show cause, emphasizes the reason for the exception. The petition discloses that the day after the injunction was issued by the trial court and served on the defendant, she withdrew $3,125 from a bank account; that twelve days thereafter she sold stock worth over $7,000; that three weeks thereafter she pledged stock as security for a $3,000 loan. Her answer to the petition admitted the acts. There had been no hearing on the petition and answer at the time the motion to dissolve the injunction was heard. The assets here involved were of a very fluid and disposable nature, and were clearly of the kind contemplated in the exception to the general rule.

Defendant’s second contention is that the allegations of the complaint and the petition do not support the conclusion that there was good cause shown for the issuance of the injunction without bond. The Injunction Act states that “bond need not be required when, for good cause shown, the court or judge is of the opinion that the injunction ought to be granted without bond.” Ill. Rev. Stat. 1955, ch. 69, sec. 9. The statute recognizes, and the opinions of this court have recognized, that making a bond a prerequisite to the issuance of an injunction is a matter in the sound discretion of the chancellor. Skelers v. Meyer, 246 Ill. App. 18; Grossman v. Grossman, 304 Ill. App. 507; Scholz v. Barbee, 344 Ill. App. 630.

It is apparent from reading the complaint that the trial court had the right to consider the allegations pertaining to the property of plaintiff in defendant’s possession; that he had been deprived of it by the fraud of the defendant; that he was seriously ill and under the care of a physician and incapable of gainful employment ; that the only asset he had was the remainder of funds from loans on insurance policies in the amount of $8,000; that the value of the assets of the plaintiff in the hands of the defendant was very substantial; that the amount of bond that would be required would be far in excess of the money that defendant had available, and that the ordering of a bond would therefore work an undue hardship on the defendant. On the basis of these allegations, we conclude that it was not an abuse of discretion to issue the injunction without notice and without bond.

The order of the trial court overruling defendant’s motion to vacate the order of temporary injunction is affirmed.

Order affirmed.

McCORMICK, P. J. and SCHWARTZ, J., concur.


source: Caselaw Access Project

author: JUDGE SCHWARTZ

license: Public Domain

text:
    Herbert I. Spitzer, Appellant, v. Bradshaw-Praeger and Company, Appellee.
    Gen. No. 46,723.
    First District, Second Division.
    May 29, 1956.
    Released for publication June 19, 1956.

      A. Bradley Eben, and Bichard F. Watt, both of Chicago, for appellant.
    McCarthy, Witry, Lyon & McCarthy, and Vogel & Vogel, all of Chicago, for appellee.
   JUDGE SCHWARTZ

delivered the opinion of the court.

This is a suit to recover damages arising from breach of warranty of the fitness of an ingredient supplied to plaintiff by defendant for use in the manufacture of hair lacquer. At the close of plaintiff’s case defendant presented motions to find the issues in its favor. The court sustained the motions and dismissed the suit. In so doing the court did not restrict its examination of the evidence to that which was favorable to plaintiff and to all reasonable inferences in favor of plaintiff to be drawn therefrom but, as clearly appears from his oral opinion, considered where the- preponderance of the evidence lay.

Defendant admits that with respect to jury cases the rule is that only evidence favorable to the plaintiff and reasonable inferences therefrom may be considered on such a motion, but argues that it ought to be different in cases tried by the court without a jury. That question has often been passed upon by our courts, and it has been specifically held that the same rule is applicable in nonjury as in jury cases. Helm v. Illinois Commercial Men’s Ass’n, 279 Ill. 570 (1917); Crerar v. Daniels, 209 Ill. 296 (1904); First Nat. Bank v. Northwestern Nat. Bank, 152 Ill. 296 (1894); Taber v. Defenbaugh, 9 Ill.App.2d 169. It is true that Adams v. Hall, 168 Ill. App. 569, cited by defendant in support of its position, does glance in the other direction. However, that myopia was definitely corrected by the subsequent decisions we have before cited.

Another assignment of error relates to a ruling by the court upon the evidence. Plaintiff offered the testimony of one Lerner as a witness to a conversation had with defendant’s deceased sales representative Allen. An objection was made on the ground that Section 4 of the “Deadman’s Statute” (Ill. Rev. Stat. 1955, Ch. 51, Sec. 4) applied. The court sustained the objection. The section in question provides that a party to a suit who has contracted with an agent of the adverse party — the agent having since died — shall not be a competent witness as to any admission or conversation between himself and such agent, except under conditions which are prescribed and which are not applicable here. In the instant case Lerner was not a party to the suit. In making his objections counsel for defendant said . . these gentlemen on the evidence were joint inventors, one the agent of the other, and the evidence is not competent.” The evidence does not support the statement contained in that objection but even if it did, the witness would still be competent. There was no basis for the court’s rejection of this evidence. Reilly Tar & Chemical Corp. v. Lewis, 326 Ill. App. 117 (1945); Warszawa v. White Eagle Brewing Co., 299 Ill. App. 509 (1939).

Defendant argues that there is a certain unfairness in the admission of testimony to a conversation with a man who is dead and who cannot deny it and that therefore the court ought to reject the offered testimony. This court cannot extend the area of disqualification. The fact is that in recent years the trend has been to the contrary — to remove the disqualification. We discussed this in Pink v. Dempsey, 350 Ill. App. 405 (leave to appeal denied 415 Ill. 631), where the plaintiff, whom we held to be disqualified, argued that the statute was unjust as to her. We felt there was still essential wisdom in the Deadman’s Statute and did not concur in the argument that its application ought to be attenuated by construction. On the other hand, we cannot enlarge it. On a retrial of the instant case the court should admit the testimony offered.

Defendant makes the point that the abstract of record does not reveal one of the necessary elements of plaintiff’s case, that is, that he was damaged by reason of a breach of warranty. We have looked at the record sufficiently to observe that there is a consid erable amount of evidence purporting to bear on the question of damages although it has not been abstracted for us. Plaintiff’s excuse is that the trial court specifically stated there was no need to consider the question of damages and did not pass thereon, basing its ruling on the grounds we have discussed. Therefore, plaintiff on taking his appeal submitted an abstract based upon those errors which he charged and which we have discussed. Under such circumstances plaintiff was justified in assuming it was not necessary to abstract that portion of the record relating to damages. This is a case in which the defendant should have filed an additional abstract if it desired to make an issue on damages, a point not decided in the court below. (Joyce v. Blankenship, 399 Ill. 136.) In Derkers v. Vaughan Co., Inc., 348 Ill. App. 407, cited by defendant, the appellant failed to abstract any of the evidence although an issue of fact was involved and argued. Monarski v. Greb, 407 Ill. 281, 291, and Village of Dolton v. Harms, 327 Ill. App. 107, 113, also cited by defendant, are authority for the proposition that courts will sustain a decree on any ground warranted by the record even though it is not one of the reasons asserted by the trial court. That is to say, where the trial court arrives at a correct conclusion but for the wrong reasons, a reviewing court will nevertheless affirm. That is not what the defendant is seeking in the instant case. Here, defendant seeks to take advantage of the fact that plaintiff did not abstract that portion of the record which had to do with damages. As we have stated before, however, there was good and sufficient reason for such omission.

Defendant also argues that it is not liable because plaintiff continued to sell the product in question after he knew the ingredient was harmful. That, under the circumstances of this case, would be an argument in mitigation of damages.

Applying the rules which we here hold to be correct, there can be no doubt there was ample evidence to sustain plaintiff’s case.

The judgment is reversed and the cause is remanded with directions to take such further proceedings as are consistent with the conclusions herein stated.

Judgment reversed and cause remanded with directions.

MoCORMIOK, P. J. and ROBSON, J., concur.


text:
    Robert H. Holmes, Appellant, v. Clarence Kammerman et al., Appellees.
    Gen. No. 46,833.
    First District, Second Division.
    May 29, 1956.
    Released for publication June 19, 1956.

      Favil David Berns, of Chicago, for appellant.

      Louis W. Reinecker, of Chicago, for Clarence Kammerman, appellee; C. B. McElhaney, Jr., of Chicago, of counsel.
   JUDGE SCHWARTZ

delivered the opinion of the court.

This is an action for false arrest and imprisonment growing out of a divorce case instituted by plaintiff in February 1948 against defendant Florence Garrett Holmes. The other two defendants, Clarence Hammer-man and Hugh E. Johnson, were Mrs. Holmes’ attorneys in that case.

The court on motion dismissed the complaint June 21,1955. A motion to vacate that order was made by plaintiff and on September 12, 1955 the court entered an order denying the motion to vacate. Plaintiff appealed from that order. He has not appealed from the order of June 21, 1955 dismissing the complaint. The motion to vacate is unsupported by affidavit and does not present an adequate basis upon which the court could be required to vacate the order. Soverino v. Baltimore & O. R. Co., 2 Ill.App.2d 357. It merely asserts and argues matters which were or should have been presented to the trial court at the time of the hearing on the motion to dismiss. If dissatisfied with the court’s ruling on the motion to dismiss plaintiff should have prosecuted his appeal therefrom. A motion to vacate is not a proceeding to prolong or delay a final adjudication. But as defendants have undertaken to argue and discuss the questions involved on the motion to dismiss, we will here consider them.

The complaint charges that on February 17, 1948 plaintiff filed a complaint for divorce in Saline County, Hlinois; that subsequently Florence Garrett Holmes engaged defendants ClarenceKammerman and Hugh E. Johnson to represent her; that a decree of divorce was entered; that an appeal was taken to the Appellate Court; that while the appeal was pending the trial court on November 18,1948 wrongfully assumed jurisdiction and entered an order upon plaintiff to pay $450 as and for appeal costs and attorneys’ fees for defendant in connection with the appeal from the divorce decree. (Plaintiff had appealed from the money provisions and a cross-appeal from the provision granting the divorce had been filed by defendant Florence Garrett Holmes.) The complaint then charges that defendants wrongfully caused a mittimus to be issued for plaintiff’s arrest and that on December 18, 1952 plaintiff was taken against his will to the office of the Sheriff of Saline County and there imprisoned for several hours, during which time he suffered great indignity. The complaint further charges that on January 18, 1954 it was held that the order of November 18, 1948 was null and void and that thereby plaintiff sustained damages in the sum of $15,000.

To this the defendants filed their motion for involuntary dismissal. Among other grounds they alleged that the action in question was barred by a prior judgment. (Ill. Rev. Stat. 1953, ch. 110, sec. 172, subd. (2).) They contend that the order of November 18,1948, the invalidity of which is the basis of plaintiff’s action, had been repeatedly attacked by plaintiff in both the trial and appellate courts and that it continued to stand as a valid order which could not be attacked collaterally. They also contend that the decree entered January 13, 1954, whereby plaintiff paid the defendant attorneys’ fees constituted an accord and satisfaction and that the release of Florence Garrett Holmes then given released all the defendants. (Ill. Rev. Stat. 1953, ch. 110, sec. 172, subd. (g).) The motion to dismiss and the affidavit in support thereof reveal the facts which follow and which are unchallenged by any counter-affidavit.

After the filing of the divorce case in 1948 the matter was called for trial, a jury was impaneled, and at the conclusion of the first day’s proceeding the court called the parties into chambers for a conference. Defendant Florence Garrett Holmes agreed to a property settlement whereby her husband was to pay her $150 for certain clothing, $90 traveling expenses, $250 attorneys’ fees, and $150 in thirty days for the return of an engagement ring. The court heard testimony with respect to the grounds for divorce and on June 9, 1948 entered a decree embodying the property settlement and granting the husband a divorce. On June 14,1948 plaintiff: filed a notice of appeal to the Appellate Court from that portion of the decree ordering the money payments. Defendant Florence Garrett Holmes filed a cross-appeal from the divorce decree. On November 18, 1948, while the appeal was pending, the court on petition of Florence Holmes ordered plaintiff to pay his wife $150 in costs and $300 attorneys’ fees to enable her to defend against the appeal from the divorce decree. This was done pursuant to the statute which provides that:

“In case of appeal by the husband or wife, the court in which the decree or order is rendered may grant and enforce the payment of such money for her or his defense and . . . alimony during the pendency of the appeal. . .” (Divorce Act, Ch. 40, Sec. 16, Ill. Rev. Stat. 1955.)

Plaintiff never complied with this order although during the period of approximately six years in which this case was pending he sought to invalidate that order in five different proceedings and failed. We will here enumerate them.

First, on December 8, 1948 he sought a writ of mandamus from the Appellate Court for the Fourth District to compel the trial court to expunge the order of November 18, 1948 from its records. This writ was denied by the Appellate Court.

Second, following the denial of his petition for a writ of mandamus, plaintiff sought to amend the notice of appeal filed'June 14, 1948, before referred to, so as to include an appeal from the order of November 18,1948. The Appellate Court for the Fourth District dismissed this proceeding May 9, 1949. The court at the same time granted the cross-appeal of Florence Holmes and reversed the decree of divorce. (Holmes v. Holmes, 337 Ill. App. 648.)

Third, on November 21, 1950 a petition seeking to have plaintiff held in contempt for failure to comply with the order of November 18,1948 came up for hearing on plaintiff’s motion to dismiss. Plaintiff resisted on the ground that the appeal divested the court of jurisdiction. The court held against plaintiff, found him guilty of wilful contempt, entered minutes in the docket that plaintiff be assessed a fine of $500 payable in ten days or be committed to jail until the fine was paid, and further ordered that judgment be entered and execution issue for the amount due under the order of November 18,1948.

Fourth, on November 30, 1950 plaintiff took an appeal from the contempt order to the Appellate Court for the Fourth District which, upon motion, was dismissed.

Fifth, on June 1, 1951 plaintiff sought a rehearing on the contempt petition on which he was fined and ordered imprisoned until he paid the fine. His motion was overruled, a commitment order was entered of record, and plaintiff was ordered committed to jail for a period not to exceed six months, until he purged himself of contempt by paying the amount due under the order of November 18, 1948, and the fine against him, heretofore referred to, was duly assessed.

Notwithstanding all this, plaintiff never complied with the order of November 18, 1948 and apparently the only time he was taken into custody, according to his complaint, was on December 18, 1952, when he was taken to the office of the Sheriff of Saline County and there held for the space of several hours “during all of which time plaintiff suffered great indignity.”

Finally, on January 13, 1954, the divorce case (the original decree having been reversed, as before noted) was again called in the Circuit Court of Saline County. Plaintiff and his attorney were present as well as defendant Florence Garrett Holmes and her attorneys Hammerman and Johnson. Hammerman in his affidavit says in substance that in despair they then agreed to a property settlement whereby plaintiff agreed to pay defendant and defendant agreed to accept $450 payable to her attorney Clarence Hammerman, “$250 cash upon entry of decree, receipt acknowledged, and $200 within 90 days from date. . . .” The court heard the matter without contest, entered a decree of divorce embodying the settlement of property rights, and containing the following:

“. . . it is ordered, adjudged and decreed that all orders heretofore entered in the above entitled cause be and the same are hereby . . . declared null and void, and all pending matters, except the complaint, counterclaim and answers thereto be, and the same are hereby abated.”

The parties then exchanged mutual releases “of any and all other claims, including alimony and attorneys’ fees, that either may have or claim to have against the person or property of the other growing out of the marital relations heretofore existing between the parties, or by contract or otherwise.” The amount which plaintiff had agreed to pay for attorneys’ fees was duly paid. Then, on December 15, 1954 plaintiff instituted this suit against the defendants, his former wife and her attorneys, for false imprisonment.

Plaintiff appears to base his cause of action on two propositions: (1) that the trial court did not have jurisdiction to enter the order of November 18,1948, and (2) that, in any event, the order of January 13, 1954 made the order of November 18, 1948 void ab initio.

The question of whether or not the taking of the appeal from the divorce proceeding deprived the trial court of jurisdiction to enter the order of November 18, 1948 cannot now be raised and plaintiff cannot question the validity of that adjudication. If the question were open for our substantive determination, we would clearly agree with the prior rulings of the Appellate Court for the Fourth District. If plaintiff’s contention were true, the statute which provides that the trial court may order payment of funds for the defense of an appeal would be inoperative. Under the statute a party seeking such an allowance is required to go to the court which entered the decree. In Riddlesbarger v. Riddlesbarger, 341 Ill. App. 107, 348 Ill. App. 31 (a rival of the instant case in the intensity of its bitter, protracted and desperate litigation) we held that even after a decree had been fully satisfied a court could entertain a further petition seeking an allowance for expenses and fees incurred in connection with an appeal and that the trial court was not ousted of jurisdiction to entertain such a petition by the fact that the decree originally entered had been fully satisfied.

In Lind v. Spannuth, 8 Ill.App.2d 442, the court discusses the character of jurisdiction reserved in the trial court even after appeal to a reviewing court. In a specially concurring opinion Mr. Justice Feinberg said that the trial court does not lose jurisdiction of the subject matter or of the person and that the appeal only restrains the trial court from entering any order which would change or modify the judgment or decree appealed from or the scope thereof and from entering any order which would have the effect of interfering with the review of the judgment or decree. That principle is applicable here. Far from interfering with a review of the decree, the statute providing for an allowance'to cover- the costs of such an appeal is designed to aid a proper review.

Plaintiff next contends that the order of January 13,1954, embodying the property settlement which the parties agreed upon, made the order of November 18,1948 void ab initio. Hence, he says, the proceedings holding him in contempt were likewise void. The order entered January 13, 1954 was not an adjudication of the validity of the order of November 18, 1948 nor of the court’s jurisdiction to enter such an order. It followed an agreement between the parties settling their property rights, after which plaintiff proved up the grounds for divorce and the parties exchanged releases. All this is current practice in such cases. The inclusion of the phrase “holding all former orders void” was merely a way of saying that past controversies were ended. That is the only reasonable construction of that order.

If a court has jurisdiction to enter an order, as it did in the instant case, that order must be obeyed even if erroneously entered until it is reversed or set aside in a direct proceeding for that purpose. Cummings-Landau Laundry Machinery Co. v. Koplin, 386 Ill. 368; People v. Lee, 311 ILl. 552; Ash-Madden-Rae Co. v. International Ladies Garment Workers’ Union, 290 Ill. 301. The order of November 18, 1948 was a valid order and was such at the time plaintiff was taken into custody for contempt thereof.

Another ground for defendants’ motion to dismiss was that the mutual releases between plaintiff and defendant Florence Garrett Holmes, contained in the decree of January 13,1954 released her from liability for the wrongful conduct alleged in this action, and that the release is binding on plaintiff as to the other defendants. There can be no other conclusion than that plaintiff considered defendants to be joint tort-feasors. The release of one joint tort-feasor is a release of all. Manthei v. Heimerdinger, 332 Ill. App. 335; Bryan v. Creaves, 138 F.2d 377.

For the many reasons herein stated we find that the trial court did not err in denying plaintiff’s motion to vacate the order of dismissal.

Order affirmed.

McCORMICK, P. J. and ROBSON, J., concur.


author: PRESIDING JUSTICE FRIEND

text:
    Gordon A. Ramsay et al., Appellants, v. Robert S. Ramsay, and American National Bank and Trust Company, Appellees.
    Gen. No. 46,840.
    First District, First Division.
    June 7, 1956.
    Released for publication June 25, 1956.

      Mitchell and Conway, of Chicago, for plaintiffs-appellants; Robert J. Downing, Thomas J. Russell, and John F. Neylan, all of Chicago, of counsel.
    Kirkland, Fleming, Green, Martin & Ellis, of Chicago, for defendants-appellees; John B. Martineau, George L. Haggard, and Don H. Reuben, all of Chicago, of counsel.
   PRESIDING JUSTICE FRIEND

delivered the opinion of the court.

Plaintiffs appeal from an order of the Superior Court allowing defendants’ motions to dismiss, under section 48 of the Civil Practice Act (Ill. Rev. Stat. 1955, ch. 110 [§ 48]), a suit in equity for the establishment of a constructive trust on certain real and personal property.

The case was decided solely on the basis of the pleadings and affidavits. The complaint consists of two counts. Plaintiffs allege in count I that the testatrix, Edith Symonds Ramsay, died September 10,1948, leaving a last will and testament which had been executed on May 31, 1935 in the presence of defendant Robert S. Ramsay; that decedent reposed the utmost confidence in Robert and relied completely on him-, and was influenced, guided and controlled by him in all business affairs; that in reliance on his advice, and by reason of the fiduciary relationship between them, she informed him that she was devising all her property to him, with the understanding that he would hold it in trust for the benefit of Gordon A. Ramsay, her husband, and of Robert, Gordon, Jr., and Kenneth, her children; that Robert promised to so hold it; that she accordingly devised the property in that manner in her will; that he informed the plaintiffs of the trust and promised to fulfill it; but that he has since refused their repeated requests to do so. In count I plaintiffs sought the declaration and establishment of a constructive trust and the declaration of plaintiffs’ equitable rights in and to the property received by Robert.

Count II as amended alleges that in 1902 Gordon A. Ramsay, Sr., Robert’s father, was the legal owner of certain real property in Glencoe, Illinois, and that he had furnished all the consideration for the purchase thereof; that he transferred the property without any consideration to certain persons to hold it for his use and benefit; that in 1934 Robert advised and requested his father to transfer title to the property to a trustee for the use and benefit of Robert so as to relieve his father of the burdens and responsibilities of legal ownership, and promised him that the avails of the property would be held for the senior Ramsay’s use and benefit; that thereafter, in reliance on the promise, Ramsay, Sr., executed a deed with his wife, the decedent, transferring the property to the defendant, American National Bank and Trust Company, as trustee, for the use and benefit of Robert, under trust No. 2807; but that the request by Ramsay, Sr., of his son Robert to carry out his promise has been ignored. Count II likewise requested the establishment and declaration of a constructive trust in and to this real estate.

The motions of defendants set forth the defenses of res judicata and release as to count I, and the absence of a writing as required by the Statute of Frauds (Ill. Rev. Stat. 1955, ch. 59, sec. 9), as to amended count II. In support thereof defendants filed the affidavit of John B. Schmidt, who had represented Robert Ramsay in his capacity as" executor when the estate was probated; in addition they filed a copy of objections to the final account in the Probate Court, copies of receipts for specific bequests signed by the plaintiffs Gordon A. Ramsay, Jr., and Kenneth S. Ramsay, and a reproduction of the tract book for the real property in question. In opposition plaintiffs filed counteraffidavits and the transcript of proceedings before William F. Waugh, Judge of the Probate Court.

Additional facts necessary for consideration of the issues involved disclose that by the terms of her will decedent made various specific bequests to all her sons and her husband, and then bequeathed the remainder of her estate to Robert. The will named Gordon Ramsay, Sr., decedent’s husband, and Robert and Gordon, Jr., her sons, as co-executors; however, only Robert served.

Ramsay, Sr., was anxious that his wife’s will be probated without delay. Accordingly, to avoid the loss of time needed to publish for heirs, he filed his appearance in the Probate Court, waiving all notice and consenting to an immediate hearing. He also persuaded his sons Gordon, Jr., and Kenneth to file appearances of similar import with the court. As a result of this procedure, the will was .shortly admitted to probate.

After letters testamentary were issued, Ramsay, Sr., as surviving spouse, formally renounced the will and ultimately, upon distribution, received his statutory share consisting of one-third of all his wife’s net assets. Thereupon he executed the following instrument: “The above assets are received in full payment and satisfaction of the undersigned’s distributive share of the Estate. . .”

Gordon Ramsay, Jr., and his brother Kenneth also received a part of their mother’s estate; however, their respective distributions were as originally provided for in the will. Like their father, both brothers, upon receiving their legacies, executed instruments stating that the assets received by each were in “full payment of my distributive share under the Will of Edith Symonds Ramsay.” When the chancellor heard the motion to dismiss filed herein, Kenneth and Gordon Ramsay, Jr., in an effort to resist the plea that these instruments were in the nature of releases, filed affidavits alleging that they had executed the instruments solely at their brother Robert’s request, and they now claim that they signed only because they relied completely on Robert’s representation that the documents were mere receipts.

Late in 1949 when Robert as executor was ready to close his mother’s estate, he submitted his final accounts for the court’s approval. Ramsay, Sr., in his capacity as surviving spouse, filed various objections to Robert’s accounting. One of the objections was that Robert had paid too much Illinois inheritance tax because the tax was computed on the theory that Robert was “to receive his residuary legacy under the Will . . . unconditionally, whereas in truth and in fact this residuary legacy is to be held for the use and benefit of the members of the family; a disclosure of the true facts would result in a saving of Illinois Inheritance Taxes.” Hearing upon these objections was had in January 1950; early in the proceeding the Probate Judge stated that he had previously held “that there was no obligation under the Will to hold any of these assets in trust . . .” Accordingly, most of the hearing reported was concerned with the propriety of attorney and executor fees. Kenneth and Gordon Ramsay, Jr., both testified in support of their father’s objections. After proofs were closed, the Probate Court orally ruled upon each of the objections. Objection No. 3, relating to the computation of the Hlinois inheritance tax, was specifically overruled. No appeal was taken from that ruling. Decedent’s estate was closed in December 1953, and this suit was filed some thirteen months later.

It will be noted that count II involved a totally separate cause of action between Ramsay, Sr., as plaintiff, and his son Robert and the American National Bank as defendants. It appears that in 1902 Ramsay, Sr., acquired the realty located at 100 Beach Road, Glencoe, Illinois, taking title by warranty deed. He held this property until 1908, at which time he conveyed all his interest to his mother by warranty deed. His mother held the fee until 1912, when she conveyed by warranty deed to decedent, who retained ownership until 1934, and then, with her husband joining, conveyed the land by deed in trust to the present holder, the American National Bank and Trust Company. Robert has been the trust’s sole beneficiary since its inception.

Count II, as originally filed, alleged that Ramsay, Sr., owned the land in fee simple from 1902 to 1934, that in 1934, in reliance upon the advice of Robert and solely to relieve himself “of the responsibilities and burdens” of holding legal title, he (Ramsay, Sr.) conveyed the land to American National Bank, naming Robert as beneficiary of the trust so created. Robert in turn, however, was alleged to hold his beneficial interest in trust for the benefit of his father. Ramsay, Sr., prayed that the legal and equitable titles be reconveyed to him, and that he be accorded an accounting. The complaint did not mention that Ramsay, Sr., had been out of title since 1908. In the circumstances the court allowed Robert Ramsay’s motion for an order requiring plaintiffs, pursuant to the then Rule 17 of the Supreme Court [Ill. Rev. Stats. 1955, ch. 110, § 101.17], to file a sworn list of documents. The list filed, like the complaint, contained no reference to any writing that would evidence the existence of a trust, as alleged by Ramsay, Sr. Thereafter, Robert filed a motion to strike and dismiss, pleading the Statute of Frauds, and the chain of title since 1902; the bank also filed a motion to strike and dismiss. Both motions were allowed, and an amended complaint was then filed which alleged that although Ramsay, Sr., had been out of title since 1908 he had always been the sole equitable owner of the property, thus averring that his mother and his wife were, and now the bank and Robert are, trustees, and that he is the bona fide owner of the property. The amended complaint also alleged that the sole purpose for the various conveyances made since 1908 was to relieve Ramsay, Sr., of the “burdens and responsibilities imposed on the legal title holder of the said property.” Motions to strike and dismiss the amended count II, pleading the Statute of Frauds, were allowed, and the action was dismissed as to both counts.

Defendants contend that res judicata bars count I. They argue that plaintiffs cannot claim that Robert Ramsay is trustee of the residuary assets of his mother’s estate because that issue was adjudicated against them in the Probate Court, and they rely upon two circumstances arising in that court during the course of an extended hearing. The first of these was a statement by Judge Waugh that “I have already ruled that there was no obligation under the Will to hold any of these assets in trust and this represents a prospective settlement of a controversy . . . between Mr. Ramsay and his son.” This statement was made by the court during an examination of John B. Schmidt, Robert Ramsay’s former counsel. The immediate question was whether these services were compensable out of the estate of the deceased or whether they were services for which Robert should pay in his individual capacity. Mr. Schmidt had testified that after Mrs. Ramsay’s death he had prepared the first draft of a testamentary trust calculated to produce harmony among the members of the Ramsay family, but the draft was not produced in court. While Mr. Schmidt was being examined as to the provisions of the draft Judge Waugh suggested that “the agreement itself would be the best evidence of what it contains if it is still in existence,” and subsequently expressed doubt as to whether the terms of the agreement were material. Counsel for defendants then stated that in his opinion they were not; that he merely wanted to show that such an agreement had been prepared, but that it had never been executed. It was at this point that the court made the quoted statement upon which defendants rely. Since an examination of the entire transcript of testimony taken in the Probate Court fails to disclose that any evidence was introduced or any hearing whatever had upon the question whether Robert Ramsay held the property devised to him by his mother as trustee for the benefit of defendants, it is difficult to conceive how Judge Waugh’s statement could be considered as an adjudication on that question. Affidavits filed by defendants in support of their motion to dismiss reveal that no hearing was ever had by the Probate Court with respect to the constructive trust sought to be enforced in count I. Obviously the reason no hearing was had to determine that issue was because the Probate Court had no jurisdiction to establish or administer a constructive trust, which was the only issue involved in count I. Judge Waugh evidently recognized this fact because in the course of the hearing before him, George A. Reilly, attorney for Gordon A. Ramsay, Sr., in calling the court’s attention to the fact that the parties had carried on settlement negotiations for about a year which were never consummated and never resulted in an agreement, sought to make the point that “where a party obtains a legacy from a decedent by representation on an agreement, that upon receiving that property, that party will dispose of it in a certain manner, that that is an agreement that is enforceable in a court of chancery,” to which Judge Waugh replied: “Yes, but we are not in a court of chancery at the moment”; he thus clearly indicated he recognized that such an issue could be determined only in a court of chancery, and not in the Probate Court.

The other circumstance relied on by defendants in support of their contention that res judicata bars count I was an order overruling Ramsay, Sr.’s, objection No. 3 to the executor’s report. This objection urged that because of the alleged existence of a trust Robert as an executor paid an excessive inheritance tax, and that he should have been made to account for the overpayment; and defendants argue that the Probate Court had to construe Mrs. Ramsay’s will to ascertain whether or not a trust was in fact created. It is urged that in overruling Ramsay, Sr.’s, objection No. 3 to the final account, the Probate Court unequivocally held that no trust whatever had been created by Mrs. Ramsay, and that plaintiffs now seek to make a collateral attack upon a Probate Court order from which no appeal was taken. Alcorn v. Alcorn, 309 Ill. App. 267, and Marshall v. New Amsterdam Casualty Co. of Baltimore (Abst.), 318 Ill. App. 636, are cited in support of this contention. In the Alcorn case the trust involved was sought to be enforced against the decedent, not against the legatee of the will of the decedent. Of course such a complaint would have to be filed as a claim against the estate of the alleged constructive trustee after his death, just as here plaintiffs would have to file a claim against the estate of Robert Ramsay if he were deceased at the time of the alleged breach of the constructive trust. In the Marshall case, a suit against a surety on an administrator’s bond was held barred by res judicata because no appeal was taken from the final account of the administrator. Clearly the Probate Court has jurisdiction to approve final accounts and acts of the administrator in his capacity as administrator; and findings in favor of the administrator as such may be availed of by a surety whose only liability depends on the liability of his principal, the administrator.

This evidence and the statement of Judge Waugh heretofore quoted do not meet the requirements necessary to bar plaintiffs from asserting the cause of action contained in count I. The rule is well established as stated by the Supreme Court in the early case of Board of Directors of Chicago Theological Seminary v. People ex rel. Raymond, 189 Ill. 439 (1901), that “the burden of proof is always upon the defendant, who pleads res judicata because of a former judgment, to set up that judgment, and show what was determined by it, and what is common to the subsequent action. The proof must be clear, certain and convincing.” See also Williams v. Williams, 265 Ill. 64.

Aside from these considerations, the Probate Court does not have jurisdiction to declare or administer constructive trusts. The jurisdiction of the court is restricted by section 20 of article "VT of the Illinois Constitution. It has been consistently held that the Probate Court has no jurisdiction over trusts constructive or expressed. Dingman v. Beall, 213 Ill. 238; Howard v. Swift, 356 Ill. 80; Teel v. Mills, 117 Ill. App. 97. A law which vested jurisdiction in the Probate Court to establish, supervise or control trusts created by wills proved and probated in the Probate Court was held ■unconstitutional in 1911 in In re Estate of Mortenson, 248 Ill. 520, as well as in Frackelton v. Masters, 249 Ill. 30. In the Mortenson case, with reference to the jurisdiction of a Probate Court to rule on trust problems, the court said: “If a testator devises various tracts of land to different persons and as to one of them deems it wise to create a trust, the control and supervision of that trust is no more a probate matter than it would be to' partition lands devised to tenants in common to see that each one obtains a just and proper share of the property according to the intention of the testator.” In the Frackelton decision the Supreme Court, holding that the Probate Court could not exercise jurisdiction over trusts, said that “the administration of testamentary trusts has no more relation to the settlement' of the estates of deceased persons than the foreclosure of mortgages executed by or in favor of the deceased, or bills for partition filed for the purpose of partitioning the real estate of the testator among those persons entitled thereto. If the legislature may transfer original jurisdiction to probate courts of testamentary trusts, it is difficult to see the limit of its powers in' that regard. We are of the opinion that the legislature is without constitutional power to invest probate courts with this general equity jurisdiction.” The doctrine enunciated in these opinions was followed in more recent cases: Rosen v. Rosen, 370 Ill. 173 (1938) ; London & Lancashire Indemnity Co. of America v. Tindall, 377 Ill. 308 (1941).

There is of course a clear distinction between the functions of an executor and those of a trustee. On its face the will unequivocally passes the property to Bobert as legátee, and it'is in this capacity that plaintiffs seek to impose upon him the obligation to hold the property in trust. Obviously no constructive trust could arise until after Robert received the distribution of the corpus of the trust; and this could not occur until he filed his final account, was discharged as executor, and the estate closed. This principle is made clear in the Mortenson case, wherein the court, in discussing the lack of Probate Court jurisdiction over trusts, said: “The settlement of an estate, in legal significance and common understanding, is the process by which letters testamentary or of administration are granted, assets collected, claims allowed, debts paid, real estate sold if necessary for the payment of debts, and the property distributed to those who are entitled to it by the laws of descent or by the will. Such settlement has no relation to the management or execution of trusts, which are either entirely independent of the administration of the estate by the executor or administrator to the same extent that a devise of real estate is independent of such administration, or, if the trust is in the residue of property committed to the executor, can only become operative after the settlement of the estate is completed and the trustee receives the property from the executor.” By its very nature a suit to impose or declare a constructive trust implies the existence of a trustee in whose hands the res of the trust are held; and of course until Robert R'amsay as executor of his mother’s estate rendered a final account, any proceeds therefrom would be held by him in the capacity of an executor. His role as trustee could not be assumed until the estate was closed, when the jurisdiction of the Probate Court over the matter would cease. Wylie v. Bushnell, 277 Ill. 484; Fenton v. Hall, 235 Ill. 552. These cases are illustrative of the separate and distinct functions and capacities characteristic of an executor and a trustee.

Aside from the absence of evidence in the Probate Court as to whether or not Robert, after the closing of the estate, repudiated a promise made prior to his mother’s death, we entertain no doubt as to the rule that the Probate Court had no jurisdiction to declare a constructive trust. Defendants argue that the Probate Court had to construe Mrs. Ramsay’s will to ascertain whether or not a trust was created. The will was clear and unambiguous and required no construction, since it unequivocally conveys the property to Robert. Moreover, a constructive trust, as alleged in the complaint, is not expressly created by the will but would arise from promises made by defendant prior to the execution of the will, which plaintiffs allege were later repudiated by the legatee. See Bogert, Handbook of the Law of Trusts (1921), p. 137.

Defendants take the position that count I should have been dismissed because of certain receipts for specific legacies signed by plaintiffs in the Probate Court. The decedent’s will, after directing that all debts and funeral expenses be paid, specifically bequeathed to Robert “my antique desk”; to Gordon, Jr., “my diamond bar pin and my diamond bracelet”; to Kenneth “my diamond engagement ring”; and to her husband the sum of $1000. All the rest, residue and remainder of her estate, real, personal and mixed, she devised and bequeathed to Robert, his heirs, executors and assigns forever. Exhibits received in evidence disclosed that Gordon, Jr., acknowledged that he had received from Robert as executor “full payment of my distributive share under the Will of Edith Symonds Ramsay . . . , namely (1) Flexible diamond and sapphire bracelet and (1) ‘bow knot’ diamond bar pin”; and that Kenneth, without describing the bequest, acknowledged that he had received from Robert as executor “full payment of my distributive share under the will of Edith Symonds Ramsay . . .” Of course these documents merely acknowledged receipt by the two sons of the limited bequest of personal property provided for in the will and cannot be held as releasing Robert from obligations which are not related in any manner to his duties as executor; such obligations as alleged in count I could not arise until after the close of the estate, and consequently the receipts could not operate as a release thereof. Moreover, plaintiffs are not attacking the will. As to Ramsay, Sr., renunciation of his rights under the will, by which he received one-third of the estate, bars him from claiming any further interest. The alleged constructive trust was intended to cover the residuary estate of the testatrix. By renouncing under the will, Ramsay, Sr., took from the residuary estate one-third of the property and cannot claim any interest in the remainder which went to Robert. The alleged constructive trust can be effective, if at all, only as between Robert and his brothers.

As to count II, defendants contend that the absence of a writing, as required by the Statute of Frauds, operates as a bar. Under this count, Ramsay, Sr., sought to obtain real property which he had not owned since 1908. He attempted to span this half-century lapse of title by asserting that all who owned the realty after him were acting solely as his trustees; namely, that his mother was his trustee from 1908 to 1912; his wife from 1912 to 1934; and Robert from 1934 to date. This latter averment is made despite the fact that since Robert holds only a beneficial interest in the realty, Ramsay, Sr., does and must claim that Robert is trustee of a trust interest. It is apparent that the allegations of count II do not plead a constructive trust; only an express trust is alleged. Both the 1908 and 1912 “trusts” are based solely upon promises allegedly made successively to the senior Ramsay by his mother and wife to hold the land in question for his use and benefit. Neither conveyance is claimed in any way to have been caused or provoked by reason of a fraud or an abuse of confidence and fiduciary relationship — the absolute prerequisites to a constructive trust. As a matter of fact, it is affirmatively alleged in count 11 that Ramsay, Sr., was the moving and dominant party in both transactions. The 1908 conveyance was initiated by him because he was making a foreign trip and did not want to hold title in the interim; the 1912 conveyance was made at his “special instance and request,” at which time he caused the deed to be prepared and recorded. A trust predicated upon a promise to hold land for the use and benefit of the grantor is express and can be enforced only by a writing. Potter v. Clapp, 203 Ill. 592. See also Roche v. Roche, 286 Ill. 336; Stubbings v. Stubbings, 248 Ill. 406; and Ryder v. Ryder, 244 Ill. 297. Obviously the 1908 and 1912 “trusts” are express trusts and are therefore void for want of a writing. The sworn list of documents filed pursuant to the trial court’s order makes no reference to any document that would satisfy the statute. Accordingly, we hold that count II was properly dismissed for failure to manifest and prove a writing.

Pending this appeal, defendants moved to transfer count II to the complaint to the Illinois Supreme Court on the ground that a freehold was involved; the motion was taken with the case. Since the issue involved in this appeal is whether the trial court was in error in sustaining a motion to dismiss count II, and not as to whether title to or ownership of land was involved, the motion is denied. See McCarthy v. McCarthy, 6 Ill.2d 52.

For the reasons indicated, the order of the Superior Court dismissing count I of the complaint is affirmed as to Cordon A. Ramsay, Sr., but reversed as to the other two plaintiffs, and the cause remanded with directions that defendants be required to answer that count as to the two latter plaintiffs; the order dismissing count II is affirmed; and the motion to transfer the cause to the Supreme Court is denied.

Order as to count I affirmed in part and reversed in part, and the cause remanded with directions; order as to count II affirmed; motion to transfer cause to Supreme Court denied.

BURKE and NIEMEYER, JJ., concur.


author: JUSTICE EOYALDI

text:
    John Henderson, Infant, by Charles L. Henderson, His Next Friend, and Charles L. Henderson, Individually, Appellants, v. James Shives, Appellee.
    Gen. No. 10,937.
    Second District.
    June 7, 1956.
    Rehearing denied June 26, 1956.
    Released for publication June 26, 1956.

      Gray, Mclntire, Petersen & Ackman, of Kankakee, for plaintiffs-appellants.
    Mann, Stifer & Snyder, of Danville, and Bell & Smith, of Watseka, for defendant-appellee.
   JUSTICE EOYALDI

delivered the opinion of the court.

This action was brought to recover damages for personal injuries sustained by John Henderson, a minor, and for damages sustained by his father, Charles L. Henderson, by reason of medical expenses and loss of his son’s services, occasioned by the alleged negligence of the defendant in the operation of his truck. The jury returned a verdict for the defendant, upon which the court entered the judgment from which this appeal is taken.

Plaintiffs’ motion for a new trial, and their supplemental motion for new trial, the latter being in the nature of a motion based upon newly discovered evidence, were denied. The plaintiffs’ theory is that the court erred in giving to" the jury defendant’s instruction 4; that the verdict is contrary to the manifest weight of the evidence; and that the court erred in denying plaintiffs’ supplemental motion for new trial.

Defendant’s theory of the events which occurred immediately prior to the collision involved in this suit is that the plaintiff, John Henderson, who was the driver of a 1941 Ford tudor sedan, had driven the automobile partially off the pavement to his right, and, in attempting to return to the pavement over a three or four inch drop-off, lost control of the automobile, crossed his traffic lane, and struck the left rear wheels of defendant’s cattle truck, which was in its own lane of traffic.

On June 29, 1953, at about 3:30 a. m., the plaintiff, John Henderson, who lacked a few days being nineteen years old, was driving a black 1941 Ford tudor sedan, containing himself and four other boys, northbound on U. S. Highway 54 near the outskirts of Thawville, Illinois, at which time a collision occurred between the plaintiff’s car and a Chevrolet truck, bound in the opposite direction, owned and operated by the defendant, who was returning from Chicago where he had delivered a load of cattle at the Chicago Stockyards about midnight.

The collision occurred in the south part of a long gradual S-curve, each part of which is eight-tenths of a mile long, the curvature being to the right for southbound traffic and to the left for northbound traffic. The point of impact was described in the evidence as being about thirty feet south of the intersection of a gravel road with U. S. Highway 54. Neither vehicle had been on, nor were they destined for, said gravel road. U. S. Highway 54 is, at that point, a concrete surfaced two-lane highway 24 feet wide, divided by a center line into lanes, and runs generally in a north and south direction.

Plaintiff, John Henderson, testified that he was driving at about 50 miles per hour, that the lights and brakes of his car functioned properly, that he was driving on the right side of the highway, and that he had no specific recollection of seeing the truck or of the impact itself.

Defendant testified that he noticed the lights of a car approaching him, but hadn’t noticed anything unusual about its position on the roadway until it was within 100 to 150 feet of his truck; at that time the car was partially off the pavement and coming back on; defendant tried to avoid the oncoming car; and, to keep it from hitting him, took to the shoulder of the road, but could not get out of its way. He testified that the car driven by plaintiff, John Henderson, hit the left rear dual wheel of the truck, pushed the rear axle far enough back that the hydraulic brake hose was pulled in two and the truck rolled 400 to 425 feet down an embankment and along the right-of-way, without any brakes. After the collision, the plaintiff’s Ford continued in a northerly direction, coming to rest on its right side in the southbound lane at a point about 215 feet from the point of impact and was found headed south.

Plaintiffs’ witnesses, Leonard Worden and Elmer Nelson, the latter a state highway policeman, testified that there was on the surface of the highway at about the point of impact a dual wheel skidmark which continued on and was traceable to the defendant’s truck where it had come to rest, and that this skidmark at about the point of impact was between 1 and 1% feet over the center line in the northbound lane. Worden further testified that he had seen the defendant and two other men standing by this skidmark after the collision and that one or more of them had been scuffing at the mark with their feet. Defendant denied the presence of said tire mark and the alleged scuffing. Defendant was corroborated by the witness, Russel Weakley.

While the witnesses for defendant were measuring the distance that the 1941 Ford slid on its side, they also noticed a black tire mark alongside the drop-off on the side of the pavement on which John Henderson was driving, which was 152 feet long and ended 40 feet before the point of impact.

The plaintiffs contend that the verdict was against the manifest weight of the evidence. The jury saw and heard the witnesses. Where disputed questions of fact are presented to a jury and the jury passes upon them, unless palpably erroneous, the finding of fact will not be disturbed by the reviewing court. Griggas v. Clauson, 6 Ill.App.2d 412; People v. Hanisch, 361 Ill. 465; Krug v. Armour & Co., 335 Ill. App. 222; Becherer v. Belleville-St. Louis Coach Co., 322 Ill. App. 37; Rembke v. Bieser, 289 Ill. App. 136; Leahy v. Morris, 289 Ill. App. 99. To be against the “manifest weight of the evidence” requires that an opposite conclusion be clearly evident. Griggas v. Clauson, supra, at p. 419; Olin Industries, Inc. v. Wuellner, 1 Ill.App.2d 267; Schneiderman v. Interstate Transit Lines, Inc., 331 Ill. App. 143, 147. We have examined the record and do not find that the verdict is manifestly against the weight of the testimony. Under these circumstances we have no right to set aside the jury’s finding.

The plaintiffs further contend that their supplemental motion for new trial should have been granted on the ground of newly discovered evidence. In support of same, they submitted the affidavit of Paul Eshleman, one of the witnesses who testified on behalf of defendant at the trial; the affidavit of Paul F. Davidson, attorney engaged by Robert Stephens, the owner of the Ford automobile involved in the collision, which was being driven by plaintiff, John Henderson; and the affidavit of Elmo F. Petersen, one of plaintiffs’ attorneys in this cause.

In his affidavit, Paul Eshleman stated that he was proprietor of the Tower Service Station at Thawville, Illinois, on June 29,1953, and for sometime thereafter; that the 1941 Ford sedan driven by John Henderson on said date which was involved in the accident, was stored at said service station in the custody of affiant immediately after the accident and that the said vehicle was still at said station. Affiant further stated that on or about the 30th day of June 1953, a certain person who represented himself to be an adjuster for Country Mutual Casualty Company and who represented that the said company then had a policy of liability insurance in force covering the liability of James Shives, the defendant in said action, requested said affiant to detach from the said motor vehicle the right rear tire thereof and that pursuant to this request, the affiant caused the right rear tire of the said vehicle to be removed from the said vehicle and replaced it with another tire furnished by the said person who represented himself as such adjuster, and that the tire which was on the said vehicle thereafter was not the same tire which was on the vehicle at the time of the accident.

Affiant further stated that the original tire was taken to the home of affiant at the request of said person.-

The affidavit of attorney, Paul F. Davidson, is that on or about the 29th or 30th of June 1953, he was engaged by Robert Stephens to represent said Robert Stephens with respect to a claim which the said Robert Stephens had against one James Shives growing out of the accident which occurred on the 29th day of June 1953, near Thawville, Illinois, with a 1941 Ford sedan automobile being the property of said Robert Stephens, involved in a collision with a certain motor truck operated by said James Shives. Affiant further stated that the accident out of which said claim arose was the same accident which was the subject matter of the instant cause. Affiant further stated that the said Robert Stephens was on June 29, 1953, and still is, to the affiant’s knowledge, the owner of the said 1941 Ford sedan automobile, and that the affiant had represented him at all times since said date; that neither the affiant nor the said Robert Stephens at any time, to affiant’s knowledge, authorized Country Mutual Casualty Company, or any representative thereof, or Paul Eshleman, to remove from the said automobile any tire, tires, or other parts thereof, and that the removal of a tire, or tires, if any, and the substitution of another tire or tires for those removed, if any, was done without the knowledge, consent, or authorization of the owner of the said vehicle to affiant’s knowledge, or of said affiant, and that the fact of such removal of a tire from the said vehicle and the substitution of another tire therefor was unknown to the affiant prior to September 9,1955.

The affidavit of Elmo F. Petersen, one of plaintiffs’ attorneys, is to the effect that his firm was retained to represent John Henderson and Jerry Sigler and their respective fathers on or about July 2, 1953; that on July 3, 1953, the affiant personally inspected the 1941 Ford automobile which the said John Henderson was driving at the time of the accident, which was the subject matter of the said cause, which was the property of one Robert Stephens; that at the time of such examination the said automobile was fully equipped with tires, including the tire on the right rear wheel thereof. The attorney further stated that since that date, he had investigated the said accident and tried the said lawsuit, but until August 31, 1955, more than two months after the trial of the said cause, affiant was unaware that the right rear tire of the said vehicle had been removed and another tire substituted therefor, prior to this affiant’s examination of the vehicle, and that the affiant had never seen any tire purporting to be the original tire on the vehicle at the time of the accident; that on August 31, 1955, John Johnson, who was on June 29, 1953, and for a short time thereafter, an adjuster for the Country Mutual Casualty Company, advised the writer that such removal of the original tire and the substitution of another tire had actually been made shortly after the accident in question, and that such removal and substitution was arranged by the said John Johnson with Paul Eshleman upon orders given to said John Johnson by his superiors in the Country Mutual Casualty Company.

There is no showing in either the motion or in the affidavits that the production of the tire will serve to either impeach or discredit the testimony of defendant, or of his witnesses, Eshleman and Walter Milligan, all three of whom testified that the right rear tire on the inside of the 1941 Ford was scuffed. Said witness Eshleman made a detailed affidavit covering two pages as to the reasons for the removal of the tire. There is no showing by the affidavits of the attorneys attached to the supplemental motion for new trial that said witness refused to allow them to see the tire in question. There is no showing in any of the affidavits that the tire did not contain the scuff marks as testified to. There is no showing that defendant had knowledge of, participated in, or sanctioned the action of the adjuster for the insurance company in having the tire removed and in allowing it to remain in the possession of witness Eshleman, who has had possession of the car during all the time since the collision. Defendant has a substantial interest in the outcome of this case for not only this, but other suits might have been filed and may be pending as a result of the collision. In the affidavit of plaintiffs’ attorney Petersen, it appears that his firm was also retained by Jerry Sigler, who was in the Ford, and by his father, in the prosecution of their claims. In the affidavit of attorney Davidson it appears that he was retained by Robert Stephens, the owner of the automobile, who also was riding in the car being driven by plaintiff, to enforce his claims. Defendant might be compelled to pay over and above the limits of his policy of insurance. We most emphatically disapprove of the aforesaid actions of the adjuster for the insurance company in this case. However, there is not sufficient showing of diligence on the part of plaintiffs as would justify granting their motion for new trial based on the ground of newly discovered evidence. Had plaintiffs been diligent, they would have inquired of their witness, Elmer Nelson, state patrolman, as to his conversations with the defendant at the scene of the accident immediately after the accident, and would have followed up their inquiry. Officer Nelson testified on direct examination that he came to the scene within minutes of the accident, and had a conversation with James Shives at that time. “I asked him in reference to the marks and the tire track going off the road to where his truck was at and I asked him if he was on the wrong side of the road. He said no, they had run off the pavement and when they pulled back on the pavement they hit him in the side, meaning the hoys’ car. He showed me a black tire mark on the edge of the north-bound lane of traffic on the East edge. He could never show me where it came back on the road. He took me to what would be an angle there. We call it north and south. It would be south of where the accident happened, about 50 feet. He showed that to me, said that was where the tire rubbed against the pavement, hut could never show me where the tire come back on the pavement.”

On cross-examination Officer Nelson testified that he was at the scene between 3:30 or quarter to 4:00 the morning of the accident. “I asked Jim Shives what happened and he told me he was on his own side of the road and that the other fellows had cramped from being on the wrong side, having been off the road. He did not take me over there and show me on the other side of the pavement where there is a drop-off of 6 or 8 inches. It may he 3 or 4 inches. Jim Shives told me that the boys had pulled back on the road. I won’t say the exact distance. He never told me that in bringing the car back on the pavement, it had struck the hack end of his truck. He told me that when it done that, it bumped the hack wheels of his truck and that destroyed the braking efficiency of his truck.” In Bemis v. Horner, 165 Ill. 347, at p. 353, the court stated:

“The rule is well settled that when the new evidence tends merely to discredit or impeach another witness it will not satisfy the requirements of the law for a new trial.”

To the same effect is People v. McCullough, 210 ILl. 488, at p. 518, and Chicago & N. W. R. Co. v. Calumet Stock Farm, 194 Ill. 9, the latter case stating, at page 16: “The law is well settled that a new trial will not be awarded on the ground of newly discovered evidence when the evidence is cumulative or by way of impeachment merely, and in its nature is not conclusive.” Applications for new trial on the ground of newly discovered evidence are not looked upon with favor by the courts, but such applications are to be subjected to the closest scrutiny. The burden is on the applicant to rebut the presumption that the verdict is correct and to show that there has been no lack of due diligence. People v. LeMorte, 289 Ill. 11, at pp. 21-22; Powers v. Browning, 2 Ill.App.2d 479. On page 486 of its opinion, the court, in Powers v. Browning, supra, quotes from People v. Dabney, 315 Ill. 320, as follows:

“ ‘The evidence must fulfill the following requirements: First, it must appear to be of such conclusive character that it will probably change the result if a new trial is granted; second, it must have been discovered since the trial; third, it must be such as could not have been discovered before the trial by the exercise of due diligence; fourth, it must be material to the issue; and fifth, it must not be merely cumulative to the evidence offered on the trial (citing eases).’ Stocker v. Scherer, 1 Ill.2d 405.”

In Cohen v. Sparberg, 316 Ill. App. 140, the court on pages 142-143 quotes from Chicago & A. R. Co. v. Raidy, 203 Ill. 310, 317, as follows:

“It cannot be the practice of courts to allow important matters to go to trial, and because one party is not satisfied with the results of it, let him go out and try to get facts which will enable him to do better at another trial, and rely upon such after-ascertained matters as a basis for a new trial.”

As stated in Stocker v. Scherer, 1 Ill.2d 405 at p. 409:

“The disposition of motions of this nature is largely discretionary with the trial court, and the exercise of its discretion will not he disturbed except in a case of manifest abuse.”

Even treating appellants’ affidavits in support of their supplemental motion for new trial in a generous light, they still fail to establish other than by conjecture what the condition of the tire involved actually is now or was at the time it was taken from the Ford. As previously pointed out, appellants do not in their motion, and affidavits attached thereto, state that the tire in question had no scuff marks on it; they do not state that said witness Eshleman or anyone else have at any time refused them access to same. Plaintiffs’ attorney Petersen, from his affidavit, stated that he learned on August 31, 1955, about the removal of the tire. He had at least from that date to September 12, 1955, the date the supplemental motion for new trial was filed, to make a thorough investigation as to the conditions at that time. Yet his affidavit makes no mention of the condition of the tire then. Eshleman’s affidavit attached to said motion does not contradict his testimony offered at the trial on behalf of defendant that the tire had scuff marks on the inside. No positive statement contradicting defendant’s evidence is made in the affidavits which would warrant this court in holding that the lower court abused its discretion in denying the supplemental motion for new trial based on the affidavits attached thereto.

At the request of the defendant the court gave his instruction No. 4, as follows:

“The jury are instructed that, even though they find from the preponderance of the evidence that the defendant, James Shives, was guilty of negligence which contributed to the injury in question, yet if they also believe from the preponderance of the evidence that the plaintiff, John Henderson, could have avoided the injuries to himself by the exercise of ordinary care on Ms own part, and that said plaintiff did not exercise such care, then the said plaintiff cannot recover in tMs case, and on the question of care for his own safety, the burden of proof is on the plaintiff.”

This instruction must be read in connection with the plaintiffs’ instructions Nos. 6 and 7, as follows:

“No. 6

“You are instructed that the only care and caution required of the plaintiff John Henderson was such due care and caution for his own safety as a reasonably prudent and cautious person would have exercised under the same or like conditions and circumstances which surrounded him before and at the time of the alleged accident. He was not required to exercise extraordinary care and diligence for his own safety.

“No. 7

“The jury are instructed that if you find from the preponderance of the evidence in tMs case that the plaintiff John Henderson at the time of his injury, if any, was under the age of 21 years then in such event you are instructed that the degree of care required of him was such care as a boy of his age, intelligence, capacity and experience would exercise under the same or similar circumstances.”

Instructions are taken as a connected series, and the jury cannot single out one instruction and disregard others, but must take all of the instructions together as the law. When we compare defendant’s instruction 4 with plaintiffs’ instructions 6 and 7, it is apparent that if any fault appeared in said instruction 4 of the defendant, it was overcome by plaintiffs’ instructions 6 and 7. We do not see where the jury could have been misled by the instruction complained of. In the recent case of Allied Mills, Inc. v. Miller, 9 Ill.App.2d 87, wherein the court was dealing with a peremptory instruction, the court held that principles of law missing in one instruction may be supplied by others.

Finding no material error in the record, the judgment of the circuit court will be affirmed.

Judgment affirmed.

DOVE, P. J. and CROW, J., concur.


author: JUDGE ROBSON.

text:
    La Salle National Bank, as Trustee Under Trust No. 17851, Appellee, v. Alva Wilson, Appellant.
    Gen. No. 46,787. (Abstract of Decision.)
    First District, Second Division.
    May 29, 1956.
    Released for publication June 19, 1956.
    Arthur J. Bernstein, for appellant; Brown, Brown, Cyrus & Greene, for appellee; A. Donald Bourgeois, of counsel.
   Opinion by

JUDGE ROBSON.

Not to be published in full.


author: JUDGE SCHWARTZ.

text:
    Emily Weiner, William Weiner, and Barbara Weiner, a Minor, by William Weiner, Her Father and Next Friend, Appellants, v. Patrick Battista and Arlene Battista, Appellees.
    Gen. No. 46,810. (Abstract of Decision.)
    First District, Second Division.
    May 29, 1956.
    Released for publication June 19, 1956.
    Arthur S. Gomberg, and Joe Reiff, for appellants; Samuel Nine-berg, of counsel; Crowe, Tates, Abrahamson & Fisk, for appellees; Burt A. Crowe, of counsel.
   Opinion by

JUDGE SCHWARTZ.

Not to be published in full.


author: JUSTICE EOVALDI.

text:
    Edna Chittum, Appellee, v. William Joseph, and Michael Joseph, d/b/a Joseph Bros. Super Market, a Partnership, Appellants.
    Gen. No. 10,925. (Abstract of Decision.)
    Second District.
    June 4, 1956.
    Released for publication June 21, 1956.
    Cassidy, Sloan & Cassidy, for defendants-appellants; Louis P. Knoblock, for plaintiff-appellee.
   Opinion by

JUSTICE EOVALDI.

Not to be published in full.


author: JUSTICE EOYALDI.

text:
    Willie Mae Holmes, Appellee, v. Joseph Holmes, Appellant.
    Gen. No. 10,938. (Abstract of Decision.)
    Second District.
    June 4, 1956.
    Released for publication June 21, 1956.
    James P. Moore, for appellant; Lidsehin & Puein, for appellee.
   Opinion by

JUSTICE EOYALDI.

Not to be published in full.


author: PRESIDING- JUSTICE DOVE.

text:
    Jerry Secor, a Minor, by Edward Secor, His Father and Friend, and Edward Secor, Plaintiffs-Appellees, v. Charles Hyde, Defendant-Appellant.
    Gen. No. 10,896. (Abstract of Decision.)
    Second District.
    June 11, 1956.
    Released for publication June 28, 1956.
    Putnam, Johnson & Alschuler, for appellant; Sam Alschuler, Ralph C. Putnam, Jr., and Edward J. MeWethy, of counsel; O’Brien, Burnell & Puckett, for plaintiffs-appellees; William C. O’Brien, Wilson D. Burnell, Donald L. Puckett, and Joseph H. Barnett, of counsel.
   Opinion by

PRESIDING- JUSTICE DOVE.

Not to be published in full.