text:
    Agnes G. Balasa, Appellee, v. Frank A. Balasa, Appellant.
    Gen. No. 46,806.
    First District, First Division.
    June 21, 1956.
    Released for publication September 12, 1956.

      Sol R. Friedman & I. S'. Friedman, of Chicago, for appellant.
    Nudelman, Malkin & Nudelman, of, Chicago, for appellee; Oscar M. Nudelman, and Harold M. Nudelman, both of Chicago, of counsel.
   JUDGE BURKE

delivered the opinion of the court.

Agnes Dohnal and Frank Balasa were married on April 10, 1937. They separated on December 7, 1944. No children were born of the marriage. She was the mother of two- children by a former husband and he was the father of two children by a former wife. On January 6, 1947, she filed an amended complaint for divorce in the Superior Court of Cook county. On February 26,1947, a decree was entered dissolving the marriage on the ground of desertion. Pursuant to a property settlement agreement the decree directed the defendant to’convey to plaintiff by qtiit claim deed his interest in farm land in Sawyer county, Wisconsin, and to deliver to.- her certain furniture, cash in the amount of $600, the sum of $125-for her attorney’s fees, $125 for one glass eye and one .plastic eye theretofore furnished to her, and that-he pay her the sum of $150 on the first day of July of each year thereafter for the purchase of plastic, eyes. The decree directed that the two minor children of the defendant remain in the custody of plaintiff and that he pay to her as and for ’her alimony, support and maintenance and the support and maintenance of his two minor children the sum of $30 per week.

In 1951 plaintiff filed a petition to enforce the provisions of the decree. In an answer the defendant stated that the decree “in so far as alimony is concerned” became “inoperative on account of the remarriage of the plaintiff.” The matter was referred to a master in chancery to take evidence and report his conclusions of law and fact. On May 31, 1951, the court entered an agreed order directing that the decree be modified to provide that the defendant pay to the plaintiff $1,150 for all sums past due thereunder and the sum of $150 per year on the first day of July of each year beginning July 1, 1952, as and for the plastic eyes for the plaintiff “and shall receive a receipt from the doctor to whom said sum is paid.” The order stated that plaintiff be barred from making any other or further claim against defendant under the decree.

On March 22, 1955, plaintiff filed a petition stating that defendant failed to make the payments of $150 each year for plastic eyes for the years 1953 and 1954. The petition asserts that she needs one plastic eye for use in the daytime and one for use in the nighttime. She asks that the defendant be ordered to pay the sum of $300 so due her by the terms of the decree and for such other and further relief as the circumstances may require. In an answer and counterpetition the defendant states that plaintiff “remarried about five years ago” and that the order of $150 per year, being in the nature of maintenance for the plaintiff, should be declared null and void in accordance with Sec. 18 of the Divorce Act. He asks that the petition be dismissed. Plaintiff’s answer to the counterpetition says that the provision for the payment of $150 per year for the purchase by her of plastic eyes was “in the nature of a property settlement” and should not be considered “in the nature of maintenance” for her. The court heard the matter on the petition, answer and counterpetitioti and the answer thereto and decreed that the prayer of the counterpetition he denied, that defendant pay to plaintiff forthwith the sum of $300 and that her prayer for attorney’s fees be denied. Defendant appeals.

Alimony arises out of the marital relation and is founded on the natural and legal duty of the husband to support the wife. The award of money for the plastic eyes is for an indefinite period of time and for an indefinite total sum. It is to be paid out of the husband’s income.' Each installment cannot vest until it becomes due. The $150 annually for the plastic eyes comes within the category of a medical expense. This periodic payment cannot be denominated a property settlement.

Section 18 of the Divorce Act (Par. 19, Ch. 40, Ill. Rev. Stat. 1955) provides that a party shall not be entitled to alimony and maintenance after remarriage, and the defendant insists that under this provision the court erred in refusing to sustain his position that the annual payments for the plastic eyes should be discontinued after her remarriage. The plaintiff meets this challenge by pointing out that the defendant consented to the entry of the agreed order of 1951 and by citing cases that a party who approves or consents to the entry of a decree loses the right to review. Plaintiff asserts that to allow the instant appeal would in effect allow an appeal from an agreed order, calling attention to the fact that the order appealed from goes no further than to enforce the agreed order of 1951.

In Stillman v. Stillman, 99 Ill. 196, the Supreme Court in affirming an order of the Circuit Court modifying a divorce decree in such a manner as to absolve the defendant from further payment of alimony and in lieu thereof decreeing that henceforth he pay his former wife $1 annually, said that “it would be difficult to suggest or conceive any cause that would present grounds more ‘reasonable and proper’ for suspending'! further payment of alimony than the subsequent marriage of the divorced wife”; that “it is unreasonable that she should have the equivalent of an obligation for support by way of alimony from a former husband, and an obligation from a present husband for an adequate support at the same time”; that “it is her privilege to abandon the provision the decree of the court made for her support under the sanctions of the law, for another provision for maintenance which she would obtain by a second marriage, and when she has done so the law will require her to abide her election”; that “it is a matter that affects her own happiness, and about which she is perfectly free and competent to make a choice. Whether she acts wisely in her election, or whether in every instance she obtains as good or as adequate a support by her marriage as that which she abandoned, are questions about which courts can have no concern. It is a matter of her own voluntary election.”

In Adler v. Adler, 373 Ill. 361, the court said (at p. 373):

“Prior to the amendment, the general rule adopted by the courts was, that remarriage of a woman, who was receiving alimony from her former husband, was such a change of condition as to authorize a modification of the decree to the extent of canceling the alimony payments. [Citing cases] The amendment merely adopted the general rule and made it mandatory upon the court to cancel alimony payments in all cases where the recipient had remarried, regardless of whether or not there had been a change in the financial condition of the former husband.”

In Miller v. Miller, 317 Ill. App. 447, the parties entered into an agreement about alimony and property rights, a copy of which was made a part of the decree. The agreement provided that the payments of alimony should not be affected by the remarriage of the wife. She remarried. The chancellor entered an order finding that the decree was not for “lump sum” payments in lieu of alimony but a decree for monthly alimony payments and that she was not entitled to any further payments after her remarriage. In affirming the order we said (at p. 451):

“In the instant case, the amendment to Sec. 18 made it mandatory for the court to cancel the alimony payments after the remarriage of the plaintiff; and the provision of the agreement entered into between the parties, which was made a part of the decree and which provided that the remarriage should not affect the monthly payments, was a nullity.”

The 1951 decree was entered by agreement of the parties and at that time the defendant knew that his former wife had remarried. Plaintiff says that to allow an appeal from the 1955 order would be to allow defendant to break his agreement (contained in the 1951 decree) by indirection, that the defendant could not appeal the 1951 decree because it was entered with his consent and cannot now appeal an order which merely enforces that decree. The defendant would be bound by the agreement he made in 1951 unless that agreement be against public policy. The public policy of this state is found in the Constitution, the statutes and the decisions of the courts. Section 18 of the Divorce Act states that a party shall not be entitled to alimony and maintenance after remarriage. The Adler case said that this amendment made it mandatory upon the court to cancel alimony payments in all cases where the recipient had remarried regardless of whether or not there had been a change in the financial condition of the former husband. In the Miller case we held that the provision of the agreement between the parties, which was made a part of the decree, that the remarriage should not affect the monthly payments was a nullity. We are satisfied that the provision of the consent decree of 1951 that the defendant shall pay for the two plastic eyes of the plaintiff each year violates the public policy of this state in requiring payment of alimony and maintenance after remarriage and is therefore a nullity. For that reason the decree of the Superior Court of Cook county entered' May 5, 1955, is reversed.

Decree reversed.

FRIEND, P. J. and NIEMETER, J., concur.


source: Caselaw Access Project

author: JUDGE BURKE

license: Public Domain

text:
    Melvin C. Peterson, Appellant, v. Montegna & Company, and Theodore Cigielski, Appellees.
    Gen. No. 46,837.
    First District, First Division.
    June 21, 1956.
    Released for publication September 12, 1956.

      Edward J. Bradley, and Thomas C. Bradley, both of Chicago, for appellant.
    Stanley R. Hanseman, of Chicago, for appellées; William S. Dunning, of Chicago, of counsel.
   JUDGE BURKE

delivered the opinion of the court.

On March 12, 1954, Melvin C. Peterson filed a complaint against Montegna & Company and Theodore Cigielski to recover damages for injuries suffered because of the negligence of the defendants while plaintiff was free from any negligence in a collision between two motor vehicles on April 28, 1947. At the time of the occurrence the plaintiff and defendants were under the Workmen’s Compensation Act. Defendants’ motion to dismiss on the ground that the Statute of Limitations barred the action as not brought within two years from the day of the occurrence was sustained and judgment entered accordingly. Plaintiff appeals. He maintains that he had no right to commence the suit until March 20, 1952, when in Grasse v. Dealers Transport Co., 412 Ill. 179, the Supreme Court held the first paragraph of Section 29 [Ill. Rev. Stats. 1947, ch. 48, § 166] of the Workmen’s Compensation Act unconstitutional.

The cause of action stated in the complaint accrued on April 28, 1947, and after two years the defense of the Statute of Limitations was effectual. An unconstitutional statute is null and void as of the date of its enactment. It is not a law. It confers no rights, imposes no duties and affords no protection. It is, in legal contemplation, as inoperative as though it had never been passed. Norton v. Shelby County, 118 U. S. 425; People v. Schraeberg, 347 Ill. 392, 394. In contemplation of law plaintiff had the right to bring his action within two years of the occurrence. Paul C. Grasse brought his action against the Dealers Transport Company within two years. Plaintiff in the instant case had the same right as Grasse. We are of the opinion that the cases cited by plaintiff do not support his position. Section 23 of the Limitations Act (Par. 24, Ch. 83, Ill. Rev. Stat. 1955) which provides that when the commencement of an action is stayed by a statutory prohibition the time of the continuance of the prohibition is not part of the time limited for the commencement of the action, has no application to the instant case because the statutory prohibition, not being constitutional, conferred no right, imposed no duty and afforded no protection.

Finally, plaintiff states that Section 25 of the Workmen’s Compensation Act [Ill. Rev. Stats. 1953, ch. 48, § 138.25] stopped the running of the Statute of Limitations during the period intervening between the occurrence and the time of final adjudication of the unconstitutionality of the first paragraph of Section 29. Section 25 has no application to the case at bar because by its explicit language it is limited to a repeal or adjudication of unconstitutionality of a provision of the Act providing for compensation. Plaintiff is suing in tort for damages and not for compensation under the Workmen’s Compensation Act. See Govedarica v. Yellow Cab Co., 216 F.2d 499.

The case was correctly decided. Therefore the judgment of the Superior Court of Cook County is affirmed.

Judgment affirmed.

FEIEND, P. J. and NIEMEYEE, J., concur.


author: JUDGE NIEMEYER

text:
    Esther Williams, Appellee, v. Yellow Cab Company et al., Appellants.
    Gen. No. 46,746.
    First District, First Division.
    June 21, 1956.
    Released for publication September 12, 1956.

      Jesmer and Harris, of Chicago, for appellants; Charles D. Snewind, of Chicago, of counsel.
    Joseph M. Tobias, and James A. Thompson, both of Chicago, for appellee.
   JUDGE NIEMEYER

delivered the opinion of the court.

Defendants appeal from a judgment for $16,000 in a personal injury action arising out of a collision of a taxicab owned by defendant Yellow Cab .Company and operated in its behalf by defendant Chester Commack in an easterly direction in or near the eastbound streetcar track in the north half of West Cermak Road (22nd street) in Chicago, with plaintiff, a pedestrian crossing the street from south to north at a point not within a cross-walk as defined by statute (Ill. Rev. Stats. 1955, chap. 95½, par. 172) approximately 65 feet east of State street, a north and south street.

In the evening of January 1, 1954, about 8 o’clock, plaintiff and her 18-year-old son Wayne left an elevated train at 22nd street, intending to take a streetcar west to Chinatown to have supper. The elevated station is at the alley east of State street. A stairway descends from the station to the south sidewalk of 22nd street west of the elevated station and about 80 feet east of the east line of State street. Wayne preceded his mother and had crossed to the north walk of the street by the time his mother reached the sidewalk. She walked a few feet to the east and started directly across the street to Wayne. At that point 22nd street is 90 feet wide from curb to curb. East of State street it jogs to the south about 40 feet. West of State street the streetcar tracks are in the center of the street. They swerve slightly to the south as they approach State street and then continue directly east beyond the elevated structure. The south rail of the eastbound track east of State street is approximately 20 feet north of the center line of the street and in the part of the street reserved for westbound traffic. (Ill. Rev. Stats. 1955, chap. 95½, par. 151.) Plaintiff and Wayne testified that plaintiff had reached the eastbound track when she was struck by the Yellow Cab. They are corroborated by the passenger in the cab. Defendant Commack testified that he crossed State street from the west and was driving about 6 feet south of the tracks at the point of the accident. Harry Pink, a driver of a Checker Cab, testified that at the time of the accident the Yellow Cab was approximately 15 feet south of the car tracks. This witness was impeached by his contradictory statements in a discovery deposition.

Plaintiff further testified that before she left the sidewalk the traffic light on the northeast corner of the intersection of State and 22nd streets was red for Cermak (22nd) and she assumed it was green for State street. She did not look at the lights after she left the sidewalk. She was looking for traffic. She looked to the west, to the east and to the north and did not see any oncoming vehicle or streetcar. There was nothing to obstruct her view of a cab coming across State street. She got as far as the center of the eastbound car track when she first saw the Yellow Cab, about 25 feet from her. She froze in her tracks and was struck by the cab.

Wayne testified that he saw his mother on the south sidewalk, when she was in the street a few feet from the south curb, and again when she was about 2 feet from the eastbound car tracks. The cab was then about 25 feet from her. There was room for the cab to go by without- touching her.

Defendants moved for a directed verdict at the close of the evidence. The ruling on this motion was reserved and never made. Defendants also moved for judgment notwithstanding the. verdict, and in the alternative for a new trial. These motions were denied. On appeal they contend that as a matter of law plaintiff was guilty of contributory negligence,, that there is no evidence of negligence of the defendants, and, in the alternative, that, the verdict is against the manifest weight of the evidence.

Defendants’ contentions are based on the assumption that “the portion of Cermak Road, south from a point midway between the westbound and eastbound car tracks, is- necessarily used for eastbound traffic.” This position is in direct conflict with the statute (chap. 95½, par. 151), which reads: “(a) Upon all roadways of sufficient width a vehicle shall be driven upon the right half of the roadway, except as follows: . . .” The exceptions following have no application to the facts before us. We cannot add to these exceptions. It is true, as stated by defendants, that this construction of the statute creates an anomalous situation affecting westbound vehicular traffic and eastbound streetcar traffic. It does not create an unusual-or unfavorable situation affecting eastbound vehicular traffic, with which we are concerned. This traffic is given an unobstructed roadway 45 feet in width on the south side of the street. We must hold that driving eastward in the eastbound car track in the north half of the street is a violation of the statute. As hereinbefore shown, the evidence justifies the finding that defendants violated the statute in this respect. Such violation is prima facie evidence of negligence, so we cannot hold as a matter of law that defendants were free of negligence proximately contributing to plaintiff’s injuries. Neither can we say that plaintiff was guilty of contributory negligence as a matter of law in failing to see what she was not bound to look for — eastbound traffic in the westbound half of the street. Jones v. Standerfer, 296 Ill. App. 145, 154. Nor can we say that the finding of the jury adverse to the defendants on these questions is against the manifest weight of the evidence.

The case was given to the jury around 4:30 o’clock in the afternoon. The parties agreed that if a verdict was not reached by 10:30 the jury should be permitted to separate. A verdict was reached about that time and returned in court the following morning. It appears from the testimony of the bailiffs in charge of the jury that in response to questions from the jury as to how long they were to stay, a bailiff told them they were to stay until they reached a verdict, and later, around 10 o’clock, a bailiff jokingly said, “I’m going up to get the cots.” A few minutes after 10:30 a bailiff went to the jury room to dismiss the jury and was informed that they had reached a decision. Defendants concede that the conduct of the bailiffs was free from any improper motive, but contend that it coerced the jury into returning a verdict to their prejudice. The jury was polled the following morning and none repudiated his verdict. The statements complained of should not have been made by the bailiffs, but we find nothing to support the claim of coercion of the jury and prejudice to the defendants.

Defendants’ objections to plaintiff’s counsel belittling his skill and ability to try the case, and to the tears of plaintiff during cross-examination, are not grounds for the reversal of the judgment. Defendants were not prejudiced by plaintiff’s failure to establish the impeachment of defendants’ witnesses on all matters as to which a foundation for impeachment was laid. We do not consider the damages awarded so excessive as to show prejudice and bias on the part of the jury or to warrant a remittitur by this court. Plaintiff complained of pain in her back shortly after the accident and worked under difficulty for several days thereafter. She went to a health center where she was examined and X-rays taken. The doctors there directed her to the Southtown Hospital, where she was examined and further X-rays taken. She was then placed in a body cast for more than a week and thereafter fitted with a brace which she was wearing at the time of the trial. The physicians agree that plaintiff sustained a compression fracture of a vertebra, but differ, according to the interest of the party calling them, as to whether this fracture existed prior to the accident. The doctors advised her to be careful in her work, which is that of a charwoman at a Loop hotel. Defendants say that her loss of time, estimated most favorably to her, figured monetarily to slightly over $1000. Her doctor’s and hospital bills, X-rays and cost of the cast amount to approximately $800. The verdict is liberal but not so excessive as to require a remittitur or reversal of the judgment.

The judgment is affirmed.

Affirmed.

FRIEND, P. J. and BURKE, J., concur.


text:
    Charles R. Collins et al., Appellants, v. Myles E. Barry et al., Appellees.
    Gen. No. 46,817.
    First District, First Division.
    June 21, 1956.
    Released for publication September 12, 1956.

      Moore, Ming & Leighton, of Chicago, for appellants; George N. Leighton, of Chicago, of counsel.
    Linenthal & Scheyer, of Chicago, for appellees; A. C. Linenthal, of Chicago, of counsel.
   JUDGE NIEMEYER

delivered the opinion of the court.

Plaintiffs appeal from an order striking their second amended complaint, hereinafter called the complaint, and dismissing their action for a declaratory decree, for an injunction restraining defendants from conducting an unlawful strike and boycott against plaintiffs and for damages arising out of such illegal activities, the court finding that the complaint does not state a cause of action and that no actual controversy exists between the parties, the matters alleged in the complaint being moot.

This suit is brought as a class action. The present plaintiffs are duly licensed funeral directors, embalmers and morticians actively engaged in the undertaking business in Chicago. There are five named plaintiffs. Crook and Cox are sole owners of the respective funeral establishments operated by them. C. B. Waterford, Sr. and C. B. Waterford, Jr., sometimes hereinafter referred to as the Waterfords, are partners, conducting a funeral establishment under the name. ,of C. B. Waterford & Son. Collins is a supervisor and manager, employed by Crook. Crook has five employees, including Collins. The Waterfords have two employees. The class-plaintiffs are partners in or part owners of funeral establishments, or supervisory and managerial employees. The defendants are the president and secretary-treasurer of the Cemetery Workers, Greens Attendants, Institutional Employees’ Union, Local No. 106, of the Building Service Employees’ International Union, A. F. of L., hereinafter called the union, individually and as representatives of the defendant union and its members.

On August !,' 1950 the owner-plaintiffs, as members of The. Illinois Funeral Home Owners Association, an unincorporated'voluntary association, became parties to a collective bargaining agreement, retroactive to July 20, 1950 and expiring January 20, 1952, by the terms of which each employer recognized “the Union as the exclusive bargaining agent of all of his employees, including undertakers, embalmers, funeral directors, ■apprentices and chauffeurs,” and agreed that “All employees shall be members of the Union in good standing.” The owner-plaintiffs yielded to the insistence of defendants that managerial and supervisory employees and one of the part owners of or partners in the individual funeral establishments, where more than one person is interested in a funeral establishment, should become membérs of and pay dues to the union. Accordingly, Collins and Waterford, Jr. became dues-paying members.

In negotiating a new contract in January 1952 plaintiffs acquiesced in the request of defendants for an increase in pay and changes in other terms of the contract, but refused to continue the membership in the union of supervisory and managerial employees and part owners of or partners in individual funeral establishments. Collins and Waterford, Jr. ceased to pay dues'March 30,1952. On May 9th following, defendants called a strike against Crook and the Waterfords and picketed their places of business. May 15, 1952 this suit was commenced. An amended complaint was filed May 21,1952. During the strike Crook and the Water-fords were deprived of the supplies and services necessary for the conduct of their businesses, and were unable to conduct. burials or . funeral services in any ■ cemetery employing members of the union. In August 1952 Crook and the Waterfords yielded to the demands of the defendants. Collins and Waterford, Jr., resumed payment of their dues. Crook-and the Water-fords entered into separate collective bargaining agreements-with the union dated August 18, 1952. No changes were made in the terms of the prior agreement as to union recognition and union security, except to add the provision: “No member of the Union shall be required to perform services in connection with any burial where the persons holding the funeral are nonunion.” On August 21, 1952 the strike was terminated and the respective businesses of Crook and the Water-fords were resumed without interruption and interference by defendants.

February 24, 1954 plaintiffs filed a second amended complaint, referred to herein as the complaint. In this complaint there is no allegation of any change in the situation or conduct of the parties after the termination of the strike. In addition to allegations of the foregoing facts, the acts of defendants in directing the strike and picketing against the Waterfords and Crook are detailed and characterized as unlawful secondary boycotts and blacklists against plaintiffs, in aid of an improper labor objective — the unionizing of part owners of, partners in, and supervisory and managerial employees of funeral establishments. Plaintiffs pray for a judgment or decree determining and declaring the rights, liabilities and legal relations of the parties in the premises, for such injunctive relief as is necessary and proper to preserve the rights of the plaintiffs, and for damages in the sum of $50,000 to be awarded the plaintiffs, the Waterfords, Collins and Crook. .

Defendants moved to strike the cojnplaint, dismiss, the cause of action, and for judgment in favor of defendants. The motion was allowed. The principal ground urged in its support is that' the controversy between the parties had become moot. Defendants-alleged that Crook and the Waterfords, in consideration of the union abandoning its strike against them, entered into the "’above mentioned agreements of August 18, 1952, and thereafter, under date of December 7, 1953, entered into separate collective bargaining agreements with the union, effective as of July-15, 1953 until July 15, 1955, wherein each employer agreed;

■ “After the effective date of this agreement, all present employees and persons now members of the Union shall remain members of the Union, and all new employees shall become members of the Union and remain in good standing as a condition of employment. The Employer agrees to keep in employment only those persons who are members in good standing of the Union,”

and that at the time these agreements were entered into Collins and Waterford, Jr. were members in good standing in the union. These allegations are not denied. Plaintiffs, however, insist that the agreements were entered into without prejudice to the rights of plaintiffs to have the court determine whether the unionizing of part owners of, partners in, or supervisory and managerial employees of funeral homes is a lawful and proper labor objective. There is nothing in the record to indicate an agreement to this effect. Moreover, a reservation of the rights claimed was beyond the power of the parties to stipulate. As said in LaSalle Nat. Bank v. City of Chicago, 3 Ill.2d 375, 378:

“A case is moot when it does not involve any actual controversy. (Chicago City Bank and Trust Co. v. Board of Education, 386 Ill. 508.) Where the issues involved in the trial court no longer exist, an appellate court will not review a case merely to decide moot or abstract questions, to. establish a precedent, or to determine the right to, or the liability for, costs, or, in effect, to render a judgment to guide potential future litigation.” (Citations.) The court properly sustained defendants’ motion as to Count I of the complaint, wherein plaintiffs prayed for a declaratory decree and for injunctive relief.

In Count II plaintiffs ask for damages arising out of the alleged unlawful acts of defendants in directing the strikes against Crook and the Waterfords. There is nothing in the agreement before us or in defendants’ motion to strike the complaint purporting to show a settlement, waiver or abandonment of this claim by plaintiffs. On April 6, 1956 defendants filed a motion to dismiss the appeal, supported by the affidavit of the secretary-treasurer of the union and exhibits attached thereto, on the ground that under the provisions of Article XI, paragraph (c) of a collective bargaining agreement between the union and the State Association of Funeral Home Owners, Inc., of which Crook, Collins and the Waterfords are members, for and on behalf of its employer members, dated September'12, 1955 but not signed until January 4, 1956, each employer renounced and disclaimed any interest whatsoever as a named or class-plaintiff in this cause in the Superior Court of Cook county or in this court on appeal, and released the union and its officers of any and all liability arising out of the subject matter thereof. Decision on this motion was reserved to final hearing.

It appears from the affidavit in support of defendants’ motion that during the negotiation of the contract on December 8; 1955, thirty funeral home owners, including Crook and the Waterfords, advised the union by letter that the draft of the proposed collective bargaining agreement, containing paragraph (c) of Article XI, was not acceptable to the signers, and that the list of members of the association (29 in number) in good standing, who were bound by the agreement dated September 12, 1955 signed by the president of the association and submitted to the union February 14, 1956 to be attached to the agreement, did not contain the names of Crook or the Waterfords. Collins, in an affidavit in opposition to defendants’ motion, states that throughout the year 1955 to and including April 9, 1956, he and the other plaintiffs herein maintained that they were not hound by the provisions of the contract of September 12, 1955, even though they remained members of the union. In affidavits of members of the association attached as exhibits to the supporting affidavit, one member states positively, and each of three others says, “to the best of affiant’s knowledge and belief,” that Crook, C. B. Waterford, Sr., and Collins have not “offered protest to said collective bargaining agreement.” The power, if any, of the officers of the association to bind members against their will is not shown. The motion to dismiss is denied.

We must therefore consider the sufficiency of the complaint to sustain the claim for damages. No question of the right to maintain a class suit arises, as the claim for damages is limited to Crook, Collins and the Waterfords. There being no allegation of damages sustained by Collins, who is not a funeral home owner, the suit for damages is further narrowed to Crook and the Waterfords. Plaintiffs charge that on May 9,1952, when the strike and picketing began, the gross monthly business of Crook and the Waterfords, respectively, was $7,500 and $4,000, and that at the termination of the strike and picketing, on August 21, 1952, the gross monthly business of the respective plaintiffs had been reduced to $700 and $300 per month.

There is no charge of violence, threats or intimidation by the pickets. The claim for damages is based on plaintiffs’ contention that unionizing of part owners of, partners in, and supervisory and managerial employees of funeral homes is not a proper labor objective, and on charges that during the strike defendants directed members of the union, including supervisors and managers who were employees of cemeteries and burial associations with, whom plaintiffs had maintained amicable, cordial and profitable relations, to refuse to sell graves or render services to plaintiffs; that defendants threatened employees of persons with whom plaintiffs maintained good business relations and who supplied plaintiffs with flowers, food, milk and supplies with loss of employment if they continued to handle or work on any goods, articles, materials or commodities, or perform any services or burial orders taken by the suppliers for plaintiffs; that by threats of strikes and union reprisals defendants coerced suppliers of vaults, caskets, flowers, florist services and other services required and needed by plaintiffs in the conduct of their business to refrain from selling to plaintiffs; that as a consequence of the conduct and acts of defendants, plaintiffs were precluded from engaging in their business as funeral directors, conducting funeral and burial ceremonies in Chicago within the area of the jurisdiction of the union, and suffered the loss of business hereinbefore stated.

The question whether the unionizing of owners, in whole or in part, or supervisory and managerial employees of a business is a proper labor objective, authorizing peaceful picketing, has not been decided by the Supreme Court of Illinois. There are three Appellate Court decisions. These decisions are in conflict, as are the decisions from other jurisdictions cited by the parties. In Baker v. Retail Clerks’ International Protective Ass’n, Local Union No. 1000, Eldorado, Ill., 313 Ill. App. 432, the Appellate Court of the Fourth District reversed a decree of the trial court prohibiting the picketing of a small grocery store and delicatessen owned and operated by plaintiffs, husband and wife, without the aid of clerks or help of any kind. The picketing was instituted in aid of the union effort to procure the signatures of plaintiffs to a contract which it had entered into with a number of store owners regulating the hours of closing stores, including closing them entirely on Sundays and holidays. In Naprawa v. Chicago Mat Janitors’ Union, Local No. 1, 315 Ill. App. 328, the Appellate Court of the First District reversed an order granting a temporary injunction against picketing the apartment building of the plaintiffs, husband and wife, because the husband, who was doing the janitor work, refused to join the union. In Dinoffria v. International Brotherhood of Teamsters & Chauffeurs Local Union No. 179, 331 Ill. App. 129, the Appellate Court of the Second District reversed a decree of the trial court denying a temporary and permanent injunction and claims for damages against the defendant labor union and its secretary-treasurer. Plaintiffs were sole owners of gasoline service stations, which they operated without employees. Defendants insisted on plaintiffs joining the union and signing a contract which provided that owners of gasoline stations employ only union employees, pay specified wages, remain open only certain hours and adhere to prescribed business practices which barred the use of premiums to stimulate sales. The court remanded the cause with directions to enter a decree granting the injunction and to proceed to determine the plaintiffs’ damages.

The case of Senn v. Tile Layers Protective Union, 301 U. S. 468, was cited in the Baker and Naprawa cases, sustaining the defendants’ position. The case is analogous to the case at bar. The contracting tile layers, like the funeral home owners before us, were operating small businesses, employing few men, with whom the owners worked. Senn conducted his business from his home and employed one or two tile layers and the same number of helpers, as the business required. Because of this condition the union claimed it was necessary for the protection of the individual rights of its members in the prosecution of their trade to require employers agreeing to conduct a union shop to agree that no individual, member of a partnership or corporation engaged in the tile laying business would work with the tools or act as a helper, and that the installation of all materials covered by the contract should be done by the journeymen members of the union. Senn could not qualify as a tile layer under the union rules'because he had-not served the apprenticeship required by the union. He agreed to employ union men and to pay union wages, but insisted on his right to work as a tile layer or helper as he chose, or conditions required. The trial court denied the injunction to prohibit picketing by the union and dismissed the bill, holding that the rule adopted by the union was reasonable and lawful and for the protection of the members as workers and craftsmen in the industry. The Supreme Court of the state affirmed the decree. On appeal the question before the Supreme Court of the United States was whether the decisions of the state courts, on the facts found, took Senn’s liberty or property or denied him equal protection of the laws in violation of the Fourteenth Amendment. Senn’s right to work in his own business with his own hands, which the union regarded as harmful to the interests of its members, was opposed to the right of the workers to seek by lawful means to induce Senn to agree to unionize his shop and to refrain from exercising his right to work with his own hands. The judgment of the state Supreme Court was affirmed, resulting in the denial of an injunction against peaceful picketing. We concur in the decision. This conclusion necessarily results in rejection of the decision in the case of Safeway Stores, Inc. v. Retail Clerks’ International Ass’n, 41 Cal.2d 567, 261 P.2d 721, the only case cited by plaintiffs in support of their contention against unionizing supervisory and managerial employees. If unionizing of owners of businesses is a proper labor objective, the unionizing of owners’ agents is equally proper.

Equally untenable is plaintiffs’ contention that the union could not lawfully' direct its members to refuse to contract with or render services to plaintiffs during the strike. In Montgomery Ward & Co., Inc. v. Franklin Union, Local No. 4, 323 Ill. App. 590, members of the union refused to work on jobs done, in part, by nonunion craftsmen. Although the contract between the employer and union expressly reserved the right to refuse to work on such jobs, the right exists independent of contract, and this fact was recognized by the court when it said (p. 593):

“The employees of Cuneo and others had a right under the terms of the contracts entered into which were attached as exhibits, to refuse to work on jobs which were done in part by non-union craftsmen. If such employees had no right to refuse to work in such circumstances they have little or no rights at all which are of any value to union members. We agree with the statement of counsel for defendants when they say ‘that the primary object of the defendants in refusing to work upon or with products that have been worked upon or with by non-union craftsmen was to further their own interests and to secure to themselves whatever improvement in their working conditions had been brought about by their membership in their respective unions. Whatever injury was suffered by plaintiff, if any, by reason of any act of these defendants is merely incidental and not actionable. Fenske Bros. v. Upholsterers Union, 358 Ill. 239.’ ”

See Iron Holders’ Union No. 125 of Milwaukee, Wis. v. Allis-Chalmers Co., 166 Fed. 45 (CCA 7th, 1908).

The allegations of the complaint that defendants threatened employees of persons who were suppliers of plaintiff with loss of employment if they continued to handle or work on any goods, articles, materials or commodities, or perform any services or burial orders taken by their employers for plaintiffs, and that, by threats of strikes and union reprisals defendants coerced suppliers of vaults, caskets, flowers, florist services and other services required and needed by plaintiffs in the conduct of their business to refrain from selling to plaintiffs, are charges of illegal acts by defendants. As to the liability of the individual defendants — the president and secretary-treasurer of the union — in an action at law, if the allegations are proved there can be no question.

Technical and procedural questions are raised to the liability of the union in this action. The union is a voluntary unincorporated association of many members. It cannot be sued in its association name in an action at law. Cahill v. Plumbers’ Gas & Steam Fitters’ & Helpers’ Local 93, 238 Ill. App. 123. Plaintiffs rely on the Dinoffria case (331 Ill. App. 129) for their right to have their damages set in a court of chancery. The condition on which that right was predicated in the Dinoffria case — the granting of equitable relief — is absent here. Upon the allegations before us we cannot hold that plaintiffs may sue in equity for the damages claimed.

The decree is reversed and the cause remanded for further proceedings in accordance with this opinion.

Reversed and remanded.

FRIEND,, P, J. and BURKE, J., concur.


text:
    Superior Laundry & Linen Supply Co., Appellee, v. Edmanson-Bock Caterers, Inc., Appellant.
    Gen. No. 46,882.
    First District, First Division.
    June 21, 1956.
    Rehearing denied September 11, 1956.
    Released for publication September 12, 1956.
    Fisher, Hassen & Fisher, of Chicago, for appellant.
    Immenhausen, Banovitz & Balin, of Chicago, for plaintiff-appellee; Meyer C. Balin, of Chicago, of counsel.
   JUDGE NIEMEYER

delivered the opinion of the court.

Edmanson-Bock Caterers, Inc., hereinafter called defendant, purchaser of the assets of Edmanson-Bock Catering Co., Inc., hereinafter called the vendor, appeals from a judgment for $1,170 and costs entered in an action under the Bulk Sales Act (Ill. Rev. Stats. 1955, chap. 121½, pars. 78-80a) for linens and services furnished vendor prior to the sale.

The case was tried on an oral stipulation, and the sole issue is the statute of limitations. The indebtedness of vendor to plaintiff was incurred prior to September 30, 1950. In October 1950 defendant purchased the assets of vendor without giving plaintiff the notice required by section 1 of the Bulk Sales Act [Ill. Rev. Stats. 1955, ch. 121½, § 78]. Plaintiff knew of the sale and immediately thereafter began business dealings with defendant, which lasted for several years. On March 4,1953 plaintiff filed this suit against defendant and vendor.

Defendant’s position is that the action against it is for a statutory penalty and must be brought within two years. (Ill. Rev. Stats. 1955, chap. 83, par. 15.) Plaintiff contends that the suit may be brought within five years. (Ill. Rev. Stats. 1955, chap. 83, par. 16.) The liability of defendant arises solely from its violation of section 1 of the Bulk Sales Act in failing to give the statutory notice of the purchase of the assets of the vendor. The judgment against it is punishment imposed for that violation. In Diversey v. Smith, 103 Ill. 378, the court said (p. 390):

“In Potter’s Dwarris on Statutes, 74, it is said: A penal statute is one which imposes a forfeiture or penalty for transgressing its provisions or for doing a thing prohibited.’ It is the effect, not the form, of the statute that is to be considered, and when its object is clearly to inflict a punishment on a party for violating it — i. e., doing what is prohibited, or failing to do what is commanded to be done, — it is penal in its character, and the circumstance that in punishing, remedy is likewise afforded to those having an interest in the observance of the statute, is unimportant.”

To the same effect is the statement of the court in Woolverton v. Taylor, 132 Ill. 197, 206, that:

“A penal statute is defined to be ‘one which imposes a forfeiture or penalty for transgressing its provisions, or for doing a thing prohibited.’ (Potter’s Dwarris on Statutes, p. 74.) A penalty ‘is in the nature of punishment for the non-performance of an act or for the performance of an unlawful act. It involves the idea of punishment, whether enforced by a civil or criminal procedure.’ ”

The Bulk Sales Act is a penal statute. Coon v. Doss, 361 Ill. 515. The action against defendant, arising out of violation of the statute, must be brought within two years, notwithstanding an action against vendor for the linens and services rendered it may be brought on the contract within five or ten years, depending upon whether the contract is oral or written.

The judgment is reversed.

Reversed.

FRIEND, P. J. and BURKE, J., concur.


author: PRESIDING JUSTICE McCORMICK

text:
    Ronald Watkins, Appellee, v. Thomas Sullivan, and David Hickey, Appellants.
    Gen. No. 46,825.
    First District, Second Division.
    June 26, 1956.
    Released for publication September 11, 1956.

      John C. Melaniphy, Acting Corporation Counsel, of Chicago, for appellants; L. Louis Karton, Head of Appeals and Review Division, Harry H. Pollack, and Sidney R. Drebin, Assistant Corporation Counsel, all of Chicago, of counsel.
    Frank H. Kirk, of Chicago, for appellee.
   PRESIDING JUSTICE McCORMICK

delivered the opinion of the court.

Ronald Watkins, a minor, brought an action against Thomas Sullivan and David Hickey for false imprisonment. Laura Bumpus was also joined as a defendant in the complaint. and charged with false imprisonment and malicious prosecution. Prior to the trial Laura Bumpus died, and the suit abated as to her. The case against Sullivan and Hickey was tried before a jury, which returned a separate verdict against each defendant for $2,500. The court entered judgments on the verdicts. At the close of all the evidence the defendants moved that the court instruct the jury to find the defendants not guilty, and after judgment made a motion for judgment notwithstanding the verdict and motion for new trial, all of which motions were denied. Prom the judgments and orders entered the defendants take this appeal.

The defendants here contend that the court erred in denying their motions for a • directed verdict' at the close of all the evidence and for a judgment notwithstanding the verdict; that'the court erred in entering separate judgments against the defendants; and that the judgments are excessive.

On December 28, 1949 the defendant detectives Sullivan and Hickey, working as a team, were ordered on the complaint of Laura Bumpus, cashier, to investigate the robbery of a theater at 410 South Michigan avenue, Chicago, Illinois. On January 3, 1950, as a result of their investigation, they arrested plaintiff who., on questioning, denied having committed the robbery. Laura Bumpus signed a complaint charging the plaintiff with the robbery, and on a hearing in the Municipal Court she again identified the plaintiff as the robber. The judge of the Municipal Court found probable cause for filing the complaint, ordered the issuance of a warrant against the plaintiff and fixed bail. On January 20, 1950 the grand jiiry brought in a no bill as to the plaintiff, who was thereupon discharged. No further action with reference to the plaintiff was taken by the defendants.

The defendants contend that the action against them for false imprisonment cannot be sustained since their arrest of plaintiff made without a warrant was a proper arrest inasmuch as a felony had been committed and théy had reasonable ground for believing that the person to be arrested had committed the offense in question. Section 4 of division VI of the Criminal .Code (Ill. Rev. Stat. chap. 38, par. 657) provides:

“An arrest may be made by an officer . . . without warrant . . . when a criminal offense has in fact been committed, and he has reasonable ground for believing that the person to be arrested has committed it.”

When a felony has in fact been committed and ah officer has reasonable ground for believing that the person to be arrested has committed the offense, he is expressly authorized to arrest that person without warrant and his authority is the same as if he held a warrant commanding him to make the arrest. People v. Brown, 354 Ill. 480.

The plaintiff argues that the commission of the robbery was not proved. The uncontradicted evidence in the record is that on December 28, 1949, after a report of the robbery was made to the police, the police immediately went to the scene of the robbery. The defendants Hickey and Sullivan made an investigation and determined that the robbery had taken place about 8:45 p. m. They got a description of the robber and at that time made a formal routine report. Nowhere in the record does there appear anything that would question in any way the fact that a robbery had actually been committed.

The ground for believing that the person arrested is guilty of an offense must be such as would influence the conduct of a prudent and cautious man under the circumstances, and in determining that question each case must be considered upon its own facts. People v. Kissane, 347 Ill. 385; People v. Exum, 382 Ill. 204. The justification for arrest must be judged by the circumstances at the time of the arrest and does not depend upon the actual guilt or innocence of the person arrested. Shelton v. Barry, 328 Ill. App. 497. There is no formula for determining what is a reasonable belief. It must be decided upon the circumstances in each case. People v. Tillman, 1 Ill.2d 525.

It is uncontradicted that on December 28th when the defendant police officers first went to the theater they were informed by Laura Bumpus that a robbery had been committed and they were given a description of the robber; that at that time she told them she thought she knew who had robbed her but that she was not sure; and that on December 30th she told the defendant Sullivan that the plaintiff Watkins, whom she knew and who knew her, was the one who had robbed her. The physical description of the plaintiff given to the defendant officers by Bumpus, which was recorded by them in their routine report and arrest slip, was substantially that of the plaintiff. It is also worthy of note that the uncontradicted testimony shows that after the arrest Bumpus identified the plaintiff as the robber; that she subsequently signed a sworn complaint against the plaintiff; that a hearing was had in the Municipal Court of Chicago and that at the hearing before the Municipal Court of Chicago she again positively identified the plaintiff, and an experienced judge, after hearing the evidence, found there was probable cause for filing the complaint, issuing a warrant and holding the plaintiff to the grand jury.

The only basis upon which defendant police officers, acting in their official capacity, could be held liable in a civil suit for false imprisonment would be that the original arrest was improper. Since the evidence as to the commission of the felony and the grounds upon which the defendant officers made the arrest was uncontradicted, the only question presented to the trial court on the motion for a directed verdict at the close of all the evidence and on the motion for judgment notwithstanding the verdict was as to whether the jury could properly find that the existing circumstances were such as would not justify a prudent and cautious police officer in making the arrest. Under the statute and under the uncontradicted facts in evidence the police officers not only had the right but the duty to arrest the plaintiff. The trial court should have directed a verdict for the defendants at the close of all the evidence or should have entered judgment in their favor notwithstanding the verdict.

The cases cited by the plaintiff in support of his contentions are not applicable because of the different factual circumstances therein involved. There is no set formula which an officer must use in making an arrest. Here the evidence clearly indicates that the plaintiff was arrested by the officers upon a reasonable belief, based upon their investigation, that he had committed the robbery.

The court erred in denying the motions for directed verdict and judgment notwithstanding the verdict. We do not find it necessary to consider the other contentions raised by the defendants. The judgments of the Superior Court are reversed.

Judgments reversed.

ROBSON and SCHWARTZ, JJ., concur.


author: PRESIDING JUSTICE MoCORMICK

text:
    John B. Brenza, County Treasurer for Cook County, Illinois, Plaintiff, v. Green Jordan et al., Defendants. On Appeal of Green Jordan and Amelia Jordan, Appellants.
    Gen. No. 46,856.
    First District, Second Division.
    June 26, 1956.
    Released for publication September 11, 1956.
    Heber T. Dotson, of Chicago, for appellants.
    Joseph Z. Willner, of Chicago, for Herman S. Land-field, defendant-appellee.
   PRESIDING JUSTICE MoCORMICK

delivered the

opinion of the court.

This action grew out of an order entered in the Circuit Court of Cook county in a consolidated condemnation proceeding for certain property and a bill of interpleader filed by the county treasurer. An order of distribution was entered on January 20,1955 by the Circuit Court finding in favor of Herman S. Landfield, hereafter referred to as Landfield, and adversely to Green and Amelia Jordan, hereafter referred to as Jordans.- The Jordans filed a motion for new trial and a petition to vacate the order, which were overruled. They then filed a petition for correction of errors of fact, together with a complaint entitled “Bill of Review for Errors Apparent on the Face of the Record.” On June 29,1955, an answer having been filed by Land-field, the court,' after hearing, denied Jordans’ motion to correct errors of fact and dismissed the “bill of review” for want of equity.

The Jordans in apt time filed a notice of appeal from the order entered by the court on June 29th, and they filed with the clerk a praecipe for record which, among other things, specified the report of proceedings at the June 29th hearing. Landfield filed a praecipe for additional record requesting that three other hearings be included therein. Within fifty days from the time the Jordans filed their notice of appeal, notice having been given to the Jordans, the court on motion and affidavit of Landfield entered an order giving him leave to present the report of the proceedings, which was marked presented, and continued the certification and approval thereof to September 26, 1955. On August 19,1955 the fifty days allowed under the rules of court for the Jordans to file their transcript in the trial court expired, and August 29, 1955--was the last day for the Jordans to transmit their record to the Appellate Court. On September 19,1955 the court entered an order approving Landfield’s report of proceedings, which order was dated July 25th, the date on which the report was marked as presented. The report was filed on September 19th.

On September 22, 1955 Landfield made a motion to dismiss the appeal for failure of the Jordans to file a cost bond, and a rule was entered on the Jordans to show cause.-why they should not file a cost bond, which rule was made returnable October 10,1955. On September 27th Landfield filed a motion to dismiss the appeal because of the failure of the Jordans to file the record within the prescribed time in the Appellate Court and because of their failure to file the report of proceedings in the trial court, and also filed a motion for an order on the clerk of the trial court not to file the record in the Appellate Court during the pendency of these motions, all of which motions were continued for disposition until October 10,1955. On October 10th Landfield withdrew his motion for the Jordans to file an appeal bond, for the rule to show cause, and the petition to enjoin the clerk from filing the record in the Appellate Court. No order had been entered on the petition to order the clerk not to file the record. To Landfield’s motions to dismiss the appeal answers were filed by the Jordans. On October 10,1955, after hearing, the court dismissed the appeal of the Jordans by an order which recited as grounds that the Jordans “have failed to file their report of proceedings within the time prescribed by law and have also failed to file their record on appeal with the Clerk of the Appellate Court of Illinois, First District, the said periods required by law for the filing of said report of proceedings and said record on appeal having expired.” From this order of the Circuit Court of Cook county this appeal is taken.

The Jordans contend that since a transcript of the hearing which took place on June 29,1955 had been incorporated in the record of proceedings which was presented by Landfield on July 25, 1955 with leave of court, and since on the same date an order was entered by the court continuing the certification and approval of the report of proceedings to September 26, 1955, they were under no duty to present any further report of proceedings to the trial court and the order of the trial court continuing the certification and approval to September 26th should be interpreted as meaning an extension of time for the Jordans to file their report of proceedings in the trial court. They contend that since the report of proceedings was filed within the extended time the provisions of the rules of court had been complied with as far as the Jordans are concerned. Under the view we take of the case it is unnecessary to pass on this contention.

The Jordans also strenuously urge that once a notice of appeal is filed the trial court completely loses jurisdiction in the case and that consequently it had no right to dismiss the appeal either for their failure within the proper time to have the report of proceedings certified, approved and filed in the trial court or for their failure within the proper time to transmit and have filed in the Appellate Court the record on appeal. They contend that the order of the trial court of October 10, 1955 dismissing the appeal was a void order.

Rule 36 of the Supreme Court (Ill. Rev. Stat. ch. 110, par. 259.36) and Rule 1 of this court, in force at the time, required that the report of proceedings consisting of the testimony and the rulings of the trial judge and all matters upon which such rulings were made, and other proceedings which the appellant desires to incorporate in the record on appeal, shall he procured by the appellant and submitted to the trial judge for his approval, and filed in the trial court within fifty days. It provides that upon application made before the expiration of the original or extended period allowed by the rule any judge of the court could, on good cause shown, extend the time for filing the same, and the rule also provides that a failure by the appellant to file the report of proceedings within the time originally allowed or extended, where the praecipe filed by the appellant has specified any of the proceedings at the trial, shall authorize a dismissal of the appeal and states that such order may he made by the trial court on the application of the appellee. The rule further provides that the record on appeal shall he transmitted to the reviewing court not more than sixty days after the notice of appeal has been filed, and that in ease the trial court has extended the time allowed for filing the report of proceedings then the time in which the record on appeal shall be transmitted to the reviewing court shall be correspondingly extended, and this has been interpreted by the Supreme Court to mean an additional extension of ten days. Finn v. Williams, 376 Ill. 95. The rule also provides that upon failure of the appellant to transmit the record to the reviewing court within such time the trial court may dismiss the appeal.

Section 76 of the Civil Practice Act (Ill. Rev. Stat. ch. 110, par. 200) provides that the appeal is deemed to be perfected when the notice of appeal is filed in the lower court and thereafter it shall not be dismissed without notice, and that when the notice of appeal has been filed the case proceeds in the court of review, not as a new case, but as a continuation of the one that was pending in the trial court and the jurisdiction- of the Appellate Court then attaches. This does not mean that the trial court is then divested from entering any and all orders with reference to the ease. Under the rules of the Supreme Court it is the duty of the trial court to enter certain orders with reference to the carrying forward of the appeal and to dismiss the appeal in case of failure of the appellant to comply with the rules. The Jordans contend that when the jurisdiction of the Appellate Court attaches the trial court has no right- to enter any orders whatsoever. If that were true, it would negative most of the provisions of. Rule 36. The provisions of the Practice Act and Rule 36 of the Supreme Court-, when considered together and properly applied, make for a speedy and final determination of the case according to'the substantive rights of the parties. Francke v. Eadie, 373 Ill. 500, 503. It has been held that when the appellant has failed to file the report of proceedings in the trial court within the time fixed by the rule, the trial court has not only the right but .the duty to dismiss the appeal. People v. Wabash R. Co., 388 Ill. 312.

Even if it were assumed that the Jordans were correct in their contention that they could take advantage of the order entered by the trial court on motion of Landfield on July 25th continuing to September 26th the certification and approval of the report of proceedings presented by him, which included a transcript of the hearing of June 29, 1955, and if it could further be assumed that the order of July 25th was an order which extended for the benefit of the Jordans the time to file the report of proceedings in the trial court to September 26th and that approval of it by the court and the filing of it by Landfield could be considered as absolving the Jordans from the requirement of filing a report of proceedings in the trial court, it would also be necessary to hold that the time for filing the record in the Appellate Court was by the order of July 25th automatically extended for ten days beyond the time therein allowed for filing the report of proceedings in the trial court, or until October 6, 1955. No record on or before that date, or at any other time, was transmitted to or filed in the Appellate Court, nor did the Jordans in compliance with the Supreme Court rules try to have the time extended. The trial court entered its order on October 10th dismissing the appeal on that ground as well as because of the failure of the Jordans to file a report of proceedings in the trial court within the proper time. It is only necessary for us to consider whether the trial court properly dismissed the appeal on the former ground. Counsel’s contention that the trial court had been divested of jurisdiction and had no power to dismiss the appeal cannot be given any weight in view of the fact that the Supreme Court rules specifically and categorically state that it has such jurisdiction and right. Under the circumstances before it the trial court had not only the right but the duty to dismiss the appeal.

In their brief the Jordans state that their failure to file the record in the Appellate Court was caused by the dilatory tactics of Landfield. No affidavit was filed by them nor does anything appear in the record to support that contention.

The order of the Circuit Court of Cook county dismissing the appeal is affirmed.

Order affirmed.

ROBSON and SCHWARTZ, JJ., concur.


text:
    Charles R. Barrett, Catherine M. Barrett, S. A. Healy Company and M. J. Boyle & Company, Appellants, v. City of Chicago, John F. Ward, as Purchasing Agent of City of Chicago, Richard J. Daley, as Mayor of City of Chicago, Carl H. Chatters, as Comptroller of City of Chicago, Grafe-Callahan Construction Company, Tecon Corporation, Mittry Constructors and Johnson, Drake & Piper, Inc., Appellees.
    Gen. No. 46,883.
    First District, Second Division.
    June 26, 1956.
    Released for publication September 11, 1956.

      Lloyd D. Iieth, Daniel M. Healy, and John J. Flynn, all of Chicago, for appellants.

      Concannon, Dillon & Snook, of Chicago, for GrafeCallahan Construction Company, Tecori Corporation, Mittry Constructors, and Johnson, Drake & Piper, Inc., certain-appellees; William H. Dillon, of Chicago, of counsel. John C. Melaniphy, of Chicago, Corporation Counsel of City of Chicago, for City of Chicago, John P. Ward, Richard J. Daley and Carl H. Chatters, appellees.
   PRESIDING JUSTICE McCORMICK

delivered the opinion of the court.

A complaint was filed in the Circuit Court of Cook county by the plaintiffs, as taxpayers, against the City of Chicago and certain of its officers, and GrafeCallahan Construction Company, Tecon Corporation, Mittry Constructors and Johnson, Drake & Piper, Inc. (hereafter referred to as the Grafe group), to have declared illegal and void a contract entered into between the City of Chicago and the Grafe group for the construction of water tunnels and shafts constituting a part of the New Central District filtration plant to be erected north of the Municipal Pier in Lake Michigan, and for a permanent injunction restraining the city from performing the said contract. The defendants filed motions to strike and dismiss which were sustained. The complainants, who are Charles R. Barrett, Catherine M. Barrett, and two unsuccessful bidders for the contract, the S. A. Healy Company and M. J. Boyle & Company (hereinafter referred to as the Healy group), elected to abide by their amended bill and a decree was rendered dismissing the bill for want of equity at plaintiffs’ costs, from which decree plaintiffs take this appeal.

The material allegations in the amended complaint germane to this decision are that the plaintiffs are owners of real estate and taxpayers in the City of Chicago; that the City of Chicago has for many years past owned and operated a water works and water distribution system .by means of wbicb it supplies water to householders and businesses located in and adjoining the City of Chicago and that for such services it charges water rates which are kept in a certain water fund; that such funds are used to pay the cost of operating, maintaining, extending and improving the said water system; that waterworks certificates of indebtedness and water revenue bonds are issued for such extensions and improvements, the principal and interest on which are paid out of the said fund; that by an ordinance passed on November 29, 1949 the City of Chicago selected as the site for the proposed Central District filtration plant an area in the Chicago harbor, which location is under the jurisdiction of the United States of America as to any structures to be constructed thereon; that on January 19,1951 a permit was issued by the Secretary of the Army to construct the said filtration plant (which permit was attached to the complaint as an exhibit); that as a part of the construction of the filtration plant it was necessary to construct underground tunnels and vertical shafts, which vertical shafts will be built within the confines of a cofferdam, the construction of which is not involved in this suit; that the shafts when completed will constitute an integral and indispensable part of the said filtration plant; that the filtration plant and the government permit are the same as those involved and described in Bowes v. City of Chicago, 3 Ill.2d 175.

It is further alleged that on April 18, 1955 the purchasing agent of the City of Chicago advertised for bids for the construction of said tunnels and shafts and pursuant to such advertisement the city furnished sets of specifications and contract documents relating to the three sections upon which prospective bidders were required to submit their bids and which, if accepted and executed, would constitute the contract; that the specifications and contract documents called for lump sum bids on certain material to be furnished and work to be done, and for unit bids on other portions thereof, and particularly called for a unit price bid per million gallons for pumping water from the tunnels and shafts; that the amount of water to be pumped was estimated in the specifications as a total of 39 million gallons for the three sections, and the specifications further state that the unit price set by the contract was to apply whether the actual quantities are greater or smaller than the assumed quantities; that the assumed quantities are approximate and in general exceeded the Commissioner’s estimate and are inserted solely for the purpose of enabling the city to canvass the bids and determine the amount of the performance bond; that the bidder should visit the site and familiarize himself with the physical conditions in the vicinity of the work; that there were in the office of the Commissioner records of borings which had been made, together with materials taken therefrom, as well as a laboratory analysis of the soil; that there was also in the office of the Commissioner information with respect to previous waterwork and tunnel construction performed by the city; that the “bidder must form his own opinion of the character of the materials to be excavated and put his own interpretation upon the borings made by the City, or make such other investigations as he may deem necessary for the calculation of his bid”; that the contract documents and specifications contained a provision that within” 60 days after the opening of the proposals the purchasing agent will accept in writing one of them or will reject all, and that “unbalanced bids and bids embodying prices plainly below the cost for which the work can be done or for which materials can be furnished may be rejected”; that in response to the advertisement for bids the purchasing agent received sealed bids from a number of “competent and responsible bidders,” including the Grafe group, the Paschen group, and the Healy group; that the bids were opened on June 10, 1955 and a tabulation thereof prepared by the city; that from the tabulation it would appear that the Grafe group is the lowest bidder, the Paschen group the second and the Healy group the third lowest.

The complaint also alleged that the engineers in preparing the plans and specifications for the city had erred in estimating a total pumpage of 39 million gallons, whereas the proper pumpage was a minimum of 900 million gallons; that the city, its purchasing agent and each of the bidders knew or by the exercise of reasonable care should have known that fact; that pumpage such as required to be performed can be performed at a profit at a unit price of $500 per million gallons; that the Grafe group submitted a unit price of $2,000 per million gallons, the Paschen group a unit price of $5,000, and the Healy group a unit price of $500 per million gallons, the latter two based on the award to them of the construction of all three sections involved; that under a proper minimum estimate of pumpage of 900 million gallons the Healy group would have been the lowest bidder and should have been awarded the contract; that subsequent to the opening of the bids prior to the award of the contract the Healy group, through its attorney, notified the purchasing agent of the City of Chicago of the discrepancy in the estimated pumpage and pointed out the minimum pumpage to be expected was 900 million gallons and that the Healy group was therefore the lowest bidder, which notice was attached to the complaint as an exhibit; that on information and belief the engineer employed by the Department of Public Works in the City of Chicago under whose supervision and direction the specifications were prepared rechecked the estimated pumpage and reported to the Commissioner of Public Works and the purchasing agent that the estimates of the total of 39 million gallons were in error and that such pumpage would be at least ten times that much, or 390 million' gallons, and that under such estimate the Healy group would still be the low bidder; that the City of Chicago and its purchasing agent permitted the Grafe group to amend its bids after the same had been submitted and opened and before the contracts were awarded, by changing the unit price for pumpage from $2,000 per million gallons to $2,000 per million gallons for the first 39 million gallons “and actual cost, or $400 per million gallons, whichever was less, for the remaining pumpage, and said change in bids was embodied in a supplemental agreement,” a copy of which is attached to the complaint and made an exhibit; that the^ city awarded the contracts for the three sections to the Grafe group; that under the contracts awarded the City of Chicago, unless restrained by injunction, will disburse more than $13,000,000 “out of the Water Fund of the City of Chicago, or out of the proceeds of the sale óf Water Works Certificates of Indebtedness, the principal of which, together with interest therein, must be paid out of said W ater Fund”; that the lefty, in spite of the fact that the contract documents' and specifications provided “payments for the work will be made from the Water Fund or from funds obtained from the sale of Water Works Certificates of Indebtedness,”, nevertheless has obligated its general fund inasmuch'as the permit issued by the Secretary of the Army provides that if future operations by the United States require alteration in the position of the structure or work authorized, or if in the opinion of the Secretary of the Army it shall cause unreasonable obstruction to free navigation of the said water, the city will be required, upon due notice, to remove or alter thA'structural work or obstructions caused thereby at its own expense, and that these expenses, if incurred, must be paid from the general

funds of the City of Chicago and thereby the city has assumed an “immediate and irrevocable liability, payable out of its general funds, by commencing under the terms of said permit the construction” of said filtration plant, of which the work to be done under the contract documents and specifications here involved constitutes an integral and indispensable part.

The plaintiffs prayed that the court may adjudge and decree that the Grafe group is not the low bidder and is not entitled to be awarded the contracts in question; that the court adjudge that the action of the purchasing agent permitting the amendment of the Grafe group bid after bids were opened is illegal, fraudulent and void, and that no contracts be awarded thereupon; that a permanent writ of injunction issue to the defendants City of Chicago, et al., restraining them from executing a contract or contracts with the Grafe group for the work above described or any part thereof under the advertisement and bids above described, or if said contracts have been executed, from performing such contracts, or any part thereof, and “in particular from expending any sums of money from the Water Fund, or from the sale of Certificates of Indebtedness payable out of said Water Fund, by reason thereof.”

The City of Chicago and its officers and the Grafe group moved to strike the complaint and dismiss the cause, and set up in their amended motions as grounds, among others, that the public improvement to be constructed is to be paid for solely out of revenue derived from the sale of water to consumers and not out of any taxes levied or to be levied; that the plaintiffs as alleged taxpayers have no equitable or legal right, title or interest in the water fund or any part thereof, and have no liability to replenish the water fund in the event of misappropriation; that the allegedly wrongful acts cannot be assailed in a court of equity since they cannot result in an increase in the taxes of the plaintiffs and there is nothing in the complaint which shows that the plaintiffs will suffer any loss or damage by reason of any matters therein set forth; that the matters alleged in the complaint with reference to the possibility of involvement of the general corporate funds of the City of Chicago under the permit issued by the Secretary of the Army could not be considered since the permit refers only to the construction of the cofferdam, which is the only construction which could have interfered with navigation and that this and all other matters alleged in the complaint have been adjudicated against the plaintiffs and taxpayers generally in Bowes v. City of Chicago, supra; that the plaintiffs have failed to show in their complaint that they as taxpayers have suffered any injury by reason of the performance of the contract awarded to the Grafe group.

The court on October 31, 1955 sustained the motions of the defendants and ordered the amended complaint stricken. The plaintiffs thereupon elected to abide by their amended complaint and on November 4,1955 the court entered the final decree appealed from.

In order that plaintiffs, as taxpayers, may maintain an action to restrain a municipality from awarding or proceeding with the contract, two elements must be present: first, that the plaintiffs are actual taxpayers within the corporate boundaries of the municipality; and second, that the action of the municipality which' they seek to restrain or abrogate is such that if the allegations in their complaint are true a loss to the general taxpayer would ensue. In the case before us it is admitted that all payments for the construction of the tunnels will be made from the water fund of the City of Chicago or from funds obtained from the sale of water certificates of indebtedness, and will not come from the tax funds or the general public funds. In the complaint it is alleged that the City of Chicago, unless restrained by injunction, will disburse moneys “out of the Water Fund of the City of Chicago, or out of the proceeds of the sale of Water Works Certificates of Indebtedness, the principal of which, together with interest thereon, must be paid out of said Water Fund,” and the relief prayed in particular that the city be restrained from expending any sums of money, by reason of the contract, from the water fund or from the proceeds of sale of certificates of indebtedness, payable out of said water fund.

The plaintiffs in their brief argue that under the permit issued by the Secretary of the Army the city has obligated itself to pay “specified costs, elements of damage and reimbursement to the United States, which expenditures could not legally be paid out of the Water Fund, but under the law had to be paid out of the general fund of the City of Chicago,” and that therefore the plaintiffs as taxpayers have a right to maintain the instant suit.

The complaint does not seek to restrain the city from constructing the filtration plant or from contracting generally for the construction of tunnels as a part of the said plant. The only contention made by the plaintiffs is that the city improperly awarded the contract for the construction of the tunnels to the Grafe group, and that thereby the amount of money to be paid by the city from the water fund or from water certificates of indebtedness was greater than it would have been if the contract had been given to the Healy group. There is no showing, nor has it been urged before us either in the briefs or upon oral argument, that the contract as awarded would result in any expenditure of money from the general corporate fund. The right of a plaintiff to sue as a taxpayer rests upon a misappropriation of the general public funds and is founded upon the proposition of his equitable ownership of such funds and his liability as a taxpayer to replenish the treasury in case of misappropriation. His complaint must establish this situation, otherwise it is fatally defective. Golden v. City of Flora, 408 Ill. 129; Jones v. O’Connell, 266 Ill. 443; Fergus v. Russel, 270 Ill. 304. In the instant case, no matter to whom or upon what terms the city awarded the contract for the construction of the tunnels in question, payment for the ¡"same would be made from the water funds or out of the proceeds of sale of water works certificates of indebtedness and could not result in the use of the taxpayers’ money. In Golden v. City of Flora, 408 Ill. 129, taxpayers filed a suit to enjoin the City of Flora from carrying out the provisions of an allegedly void ordinance, which permitted the city to enter into a collective bargaining agreement with a labor union representing the employees of the municipally owned and operated light, water and sewage disposal systems. The Supreme Court held that since the wages involved did not come out of tax funds, but from the revenue of the utility involved, the plaintiffs as taxpayers had no right to maintain their suit, and the court said:

“This right of the taxpayer to sue is founded on the proposition of his equitable ownership of such funds and of his liability to replenish the treasury in case of misappropriation. His complaint must establish this situation, otherwise it is fatally defective. Jones v. O’Connell, 266 Ill. 443; Fergus v. Russel, 270 Ill. 304.”

In Price v. City of Mattoon, 364 Ill. 512, cited with approval in Bowes v. City of Chicago, 3 Ill.2d 175, taxpayers brought an action questioning the legality of a bond issue of the City of Mattoon for the purpose of buying the water system of a local utility company and to start construction of a softening and filtration plant. The bond issue was to be financed solely out of revenue derived from the sale of water to consumers and not out of any tax or taxes levied. The Supreme Court held that plaintiffs had failed by their complaint to show their right to sue as taxpayers since the purchase under the circumstances created no liability against the general funds of the city and no special liability on the city. It would not result in the use of taxpayers’ money and hence plaintiffs had no fight to maintain the action. See also Dudick v. Baumann, 349 Ill. 46; 64 C. J. S. Municipal Corporations, sec. 2143; Dillon, Municipal Corporations (5th Ed.) sec. 1579.

In their briefs the plaintiffs base their right to sue as taxpayers squarely upon Bowes v. City of Chicago, supra, contending that the Supreme Court in its decision held that the plaintiffs therein, suing as taxpayers, had the right to bring an action to enjoin the city from constructing the Central District filtration plant because of the irrevocable liability imposed upon the city under the Federal permit, which would require the city to make payments out of the corporate funds in the fulfillment of such obligations. After determining that the plaintiffs in that case had the right to bring the suit, the court then considered the matter on its merits and dissolved the injunction against the city on the ground that the construction of the filtration plant would constitute no material substantial interference with navigation. The allegations in the plaintiffs’ amended complaint upon which they rely as giving them the right to sue as taxpayers are substantially the same as those set out in the complaint in the Bowes case. It is the law that a judgment for or against a governmental body in a suit instituted by a taxpayer as a representative of his class is binding and conclusive on all residents, citizens and taxpayers with respect to matters adjudicated which are of general and public interest (50 C. J. S. Judgments, sec. 796(b); People ex rel. Castle v. Wright, 8 Ill.2d 454), and this is true whether or not the taxpayers in a second suit are the same plaintiffs as those in the case first decided. In Harmon v. Auditor of Public Accounts, 123 Ill. 122, it was held that a decree in an earlier taxpayers’ suit was res judicata not only of all issues which were actually tendered in that case but of all issues which could have been raised. The court in the Bowes case held that the plaintiffs in that case had a right to sue as taxpayers because of the obligation which by virtue of the Federal permit irrevocably attached to the corporate funds of the City of Chicago. Their right was predicated squarely on the fact that the suit was brought to prevent the construction of the filtration plant in toto. If such construction had been enjoined by the court, it would relieve the city from any involvement of the corporate funds. The court in that case on the merits held that the allegations with reference to interference with navigation, which were necessary to support a possible depletion of the corporate funds, lacked substance, and the writ of injunction was dissolved. After that decision no second action could have been brought by a taxpayer to restrain the City of Chicago from proceeding with the construction of the filtration plant. If such an action could not be brought, then certainly the plaintiffs in this case cannot be helped by the fact that in the Bowes case it was originally held that taxpayers had the right to maintain the action therein brought. Nor would the basis on which the Supreme Court held that the taxpayers had the right to sue in the Bowes case aid the plaintiffs in this action, even though they brought their suit before there was a decision on the merits in the Bowes case. The fact that under the Federal permit the city had assumed certain obligations which involved the corporate funds could have no possible application to the case before us. The right to maintain this suit must be derived solely, from the allegations in the complaint, and we have shown that they were not sufficient to maintain this action. The plaintiffs cannot rely on allegations raising issues which would have been of no value to them in the first instance and which the Bowes case decided adversely to their contentions.

In their brief the plaintiffs say that the defendants by their motion “challenged the right of the plaintiffs, as taxpayers, to maintain this suit, on the ground that the construction of the water filtration plant is to be financed entirely out of the Water Fund and proceeds of Water Works Certificates of Indebtedness, and not from the general funds of the city. This contention was not passed upon by the trial court in sustaining the defendants’ motions, but since it is raised in defendants’ motions we will discuss it.” The issue was raised in the trial court by the defendants’ motions to strike. The record shows the statement made by the trial court at the time he rendered his decision. It is true that in that statement he made no reference to this point. However, the trial court dismissed the plaintiffs’ cause for want of equity. In Scharlau v. Lombard State Bank, 278 Ill. App. 487, the court says, quoting from the case of Chicago Title & Trust Co. v. Schwartz, 339 Ill. 184:

“ ‘Where the chancellor reaches a correct conclusion in dismissing a bill for want of equity it can make no difference what led him to such conclusion. (Morse v. Seibold, 147 Ill. 318.) It is the decree, and not the statement of the chancellor, which is before us for review. Error cannot be assigned on the statement and its import is of no determining force here. Appellees have the right to sustain this decree upon any facts in the record, whether the reasons given in the chancellor’s statement are good or not. (Pelouze v. Slaughter, 241 Ill. 215; Froehlich v. Minwegen, 304 Ill. 462.)’”

It is immaterial whether the court in his oral statement at the time that he sustained the motions to strike did or did not refer to this issue. It is a well settled rule of law that a decree of the trial court may be sustained on any basis appearing in the record. Becker v. Billings, 304 Ill. 190; In re Estate of Leichtenberg, 7 Ill.2d 545; Hazel v. Hoopeston-Danville Motor Bus Co., 310 Ill. 38; Mulvihill v. Shaffer, 297 Ill. 549. The decree of the trial court must be sustained.

Because of the view which we take, it is not necessary to discuss or advert to any of the other numerous points raised by the plaintiffs. The decree of the Circuit Court of Cook county is affirmed.

Decree affirmed.

ROBSON and SCHWARTZ, JJ., concur.