author: JUDGE LEWE

text:
    Syd Romain, Appellee, v. Peter S. Lambros and Ariadne P. Lambros, et al., Appellants.
    Gen. No. 46,865.
    First District, Third Division.
    November 7, 1956.
    Rehearing denied November 28, 1956.
    Released for publication December 28, 1956.
    A. J. Refakes, George J. Mnrges, and Theodore P. Lambros, all of Chicago, for defendants-appellants.
    Ned Langer and Sheldon Belofsky, both of Chicago, for appellee.
   JUDGE LEWE

delivered the opinion of the court. Defendants appeal from an order denying their motion to set aside a default decree entered in a strict foreclosure proceeding. They appealed directly to the Supreme Court which, transferred the cause to this court. (7 Ill.2d 206.)

A special appearance was filed by defendants challenging the jurisdiction of the court over defendants on the ground that plaintiff did not meet the requirements of the statutes relating to service by publication. The issues formed by defendants’ motion were determined by the trial court on the pleadings and the facts as alleged in affidavits attached thereto.

Defendants’ major contention is that plaintiff’s counsel failed to comply with the provisions of sections 14 and 29 of the Civil Practice Act [111. Rev. Stats. 1955, ch. 110, §§ 14, 29] which require “due” and “diligent” inquiry be made to ascertain the residence of defendant Peter S. Lambros, deceased, the names of his heirs and their residences.

The essential facts as alleged in defendants’ affidavits are these. April 5, 1947, Peter S. Lambros, the owner of the property involved in the foreclosure proceeding, died intestate. At the time of his death, he resided at 1440 West Jarvis Avenue, in the City of Chicago, Illinois, as shown in the files of the Bureau of Vital Statistics in the Office of the County Clerk of Cook County at 130 North Wells Street, Chicago. He was survived by his wife Ariadne P. Lambros and four children.

At the time of the death of Peter S. Lambros and on October 16, 1952, when the complaint was filed in the foreclosure suit, Ariadne P. Lambros, the wife of the deceased, also resided at 1440 West Jarvis Avenue, Chicago. All of the children of the deceased were nonresidents of Illinois, except S. Peter Lambros who resided at 5432 West Ferdinand Street, Chicago. The estate of the deceased was not probated.

Ariadne P. Lambros was named in the complaint as a party defendant, but the children of the deceased were made parties as “Unknown Owners.” Simultaneously with the filing of the complaint, plaintiff’s attorney filed an affidavit of nonresidence of the Lambros’ and “unknown owners” defendants who allegedly on due inquiry could not be found so that process could not be served on any of them; that upon a diligent inquiry their places of residence could not be ascertained; and that the last known places of residence of Peter S. Lambros and Ariadne Lambros, his wife, was 130 North Wells Street, Chicago.

Plaintiff also filed an affidavit of “unknown owners” asserting among other things that Peter S. Lambros and Ariadne Lambros and “unknown owners,” if living, were interested in the action or claimed to have some right, title or interest or lien in, or to some part of the property which was being foreclosed; that it was unknown to plaintiff or his attorney if the named defendants be living or dead; and that the names of such persons who might be their heirs or devisees were also unknown to plaintiff and to plaintiff’s attorney after due and diligent search having been made; and that all such persons were therefore made parties defendant to this cause by the name and description of “unknown owners.”

October 22, 1952, the clerk of the court filed his certificate of mailing of notices to Peter S. and Ariadne Lambros at 130 North Wells Street. October 24, the returned envelopes were filed by him bearing a notation that the addressees were not at that address.

October 27, “Directions to Sheriff” were filed by plaintiff’s counsel directing service on Peter S. Lam-bros and Ariadne Lambros at 130 North Wells Street. The sheriff’s return shows Peter S. Lambros was not found at the last known address. Attached to the summons was a note stating he was “deceased.” The sheriff’s return on Ariadne Lambros was also marked “not there.”

November 1, 1952, a certificate of publication as to Peter S. and Ariadne Lambros, unknown owners, et al. was filed, and an order of default was entered November 28,1952. Subsequently, tbe cause was heard on the complaint and “the sworn testimony of Ned Langer, attorney for an agent of plaintiff, proofs and exhibits received therein.” February 9, 1953, the decree here sought to be set aside was entered and the master in chancery ordered to execute a deed to plaintiff unless redemption was made in 90 days. No redemption having been made, the property in question was conveyed to plaintiff. Later, plaintiff conveyed it to a third person who plaintiff alleges was a bona fide purchaser for value.

The trial court found that the plaintiff’s affidavits were not false, as alleged by defendants, and that the service by publication was in accord with the statute.

Several suggestions in the affidavits attached to defendants’ motion indicate the means by which plaintiff’s attorney could have ascertained all the facts with respect to the residence of Peter S. Lambros, his death, the names of his heirs and their residences.

In their affidavits defendants state that an examination of the records of the Bureau of Vital Statistics would have disclosed that Peter S. Lambros died in 1947, about five years before the foreclosure proceedings were instituted; that the last address of the deceased was 1440 West Jarvis Avenue, Chicago; and that Ariadne Lambros resided at that address. Other potential sources of information suggested by defendants were the Chicago Telephone Directory, where Ariadne Lambros was listed as “Lambros Mrs. P. S.” and the decedent’s son was listed as “Lambros S. Peter,” and the voters registration lists. In his argument, plaintiff’s counsel advanced reasons which he claimed justified his failure to examine the records of the Bureau of Vital Statistics, the Chicago Telephone Directory and the voters registration lists.

We shall not discuss these reasons since we think it is unnecessary to consider them in reaching our conclusion.

During the course of the oral argument in this court, plaintiff’s counsel admitted that he knew 130 North Wells Street, Chicago, was an office building and therefore was not the last known residence of Peter S. Lambros. Plaintiff’s counsel also conceded that no inquiry was made at the office of the building or its renting agent for the purpose of ascertaining the residence of Lambros. Nor was any inquiry made of the deputy sheriff as to the source of his information that Peter S. Lambros was deceased.

In Graham v. O’Connor, 350 Ill. 36 at pages 40-41, the Court said:

“The phrases ‘due inquiry’ and ‘diligent inquiry’ in that statute are not intended as useless phrases but are put there for a purpose. Those two phrases have a well understood meaning that cannot be reconciled with the taking of a chance or guessing that the names and addresses of unknown parties can not be ascertained. A perfunctory inquiry does not comply with the provisions of the statute. An honest and well directed effort must be made to ascertain the names and addresses of unknown parties. The inquiry must be as full as the circumstances of the particular situation will permit.”

(To the same effect, see Callner v. Greenberg, 376 Ill. 212; Robbins v. Salvin, 292 Ill. App. 479.)

Under the circumstances shown in the instant case, can it be said that there was an honest and well directed effort by plaintiff to ascertain the names and addresses of Peter S. Lambros and his heirs? We think not. It seems to us that the notation made by the deputy sheriff put plaintiff on notice that Lambros might have died and was sufficient to require further inquiry on plaintiff’s part of the deputy sheriff or sources of information, if any, that the deputy might have had. This apparent lack of diligent inquiry coupled with the statement in plaintiff’s affidavit relating to the alleged last known residence of Peter S. Lambros resulted in the entry of a decree against a dead man.

Plaintiff insists that the trial court’s findings are presumptively correct in the absence of a record to show the evidentiary basis for the findings. Here there is nothing in the record to indicate that the court heard evidence. The court’s order denying defendants’ motion to vacate the foreclosure decree merely recited that “arguments of Counsel” were heard and that the court was “now in all respects advised in the premises.” Since the facts appearing in the affidavits of the parties were not in dispute, the sole question presented to the trial court was purely one of law concerning sufficiency of process.

In our opinion, the defendants are entitled to their day in court, and for the reasons stated, the decree is reversed and the cause is remanded for further proceedings.

Reversed and remanded.

FEINBERG, P. J. and RILEY, J., concur.


source: Caselaw Access Project

author: JUDGE ROETH

license: Public Domain

text:
    C. David Pearson, Plaintiff-Appellant, v. Board of Education, Community Unit School District No. 5, Macoupin County, Illinois, Defendant-Appellee.
    Gen. No. 10,082.
    Third District.
    December 3, 1956.
    Released for publication December 19, 1956.
    D. A. McGrady, of Gillespie, for plaintiff-appellant.
    Elmer H. Droste, of Mount Olive, and Rinaker, Smith & Hebron, of Carlinville, for defendant-appellee.
   JUDGE ROETH

delivered the opinion of the court. On October 18, 1954 plaintiff filed a suit to recover damages in an amount claimed to be due him for salary as a teacher for defendant school district. By an amended complaint filed December 18, 1954 he alleged in substance, that he had been employed in the school system of defendant for the prior eight years and was entitled to continuous employment and the benefit of the Teachers Tenure Law; that in May 1954 the defendant school district entered into a written contract with him by the terms of which he was employed for a period of 9 school months commencing on September 1, 1954 at a salary of $4050; that on September 4, 1954, the defendant, without just cause and for reasons not authorized by the written contract, gave him notice that it had, on September 3, 1954, by unanimous vote, suspended him until November 4, 1954, on which date he would be discharged, and that such suspension and discharge was the result of the following:

“1. It is the opinion of the members of the Board of Education of Community Unit School District No. 5 that the suspension and discharge become effective because the best interests of the schools require it.
“2. Due to your uncontrollable temper you fail to have proper co-operation with the administrators, your fellow teachers and the students of Community Unit School District No. 5 High School.
“The State law provides that the salary of a teacher is not paid when he or she has been suspended and dismissed.”;

that said action was wrongful, illegal and in violation of his contract; that under the terms of his written contract, he was not subject to discharge except for incompetency, cruelty, negligence, immorality or violation of the stipulations of the contract, and that none of said reasons are recited in the notice of discharge; that he has been unable to obtain other employment; by reason of which he was entitled to recover the sum of $4050, the amount of his salary as specified in his contract.

To this amended complaint, defendant filed an answer admitting the prior employment and that plaintiff was entitled to the benefits of the Teachers Tenure Law; admitting the execution of the contract; admitting the notice of suspension and discharge; denying that the contract entitled plaintiff to rights over and above the Teachers Tenure Law; denying that plaintiff’s discharge was without just cause and not authorized; and denying other allegations, not here material. Defendant also filed three special pleas. These special pleas, while couched in varying language, in substance allege that at the time of filing this suit, plaintiff was pursuing his remedies under the Teachers Tenure Law and could not, therefore, maintain this action until final termination of those proceedings. Plaintiff then filed a reply to these special pleas, which does not deny the pendency of proceedings under the Teachers Tenure Law but which does deny that as a matter of law he was barred from proceeding with this suit until final termination of the proceedings under the Teachers Tenure Law. Defendant then moved to strike the reply of plaintiff to the special pleas and for judgment on the pleadings, and plaintiff countered with a motion to strike the special pleas. Both motions were denied by the court.

In this state of the pleadings the case was tried without a jury. Plaintiff was the only witness who testified. He was not cross examined and thereupon plaintiff rested. The record shows, that in support of defendant’s special pleas, defendant offered in evidence the records and files in the Administrative Review Proceedings between plaintiff and defendant. A stipulation was entered into, by which it was agreed, that there was incorporated in the evidence, the record of a certain suit heretofore heard and determined by the court, the original transcript of which was pending on appeal in this court. It was further stipulated that said transcript could be considered by the court in this cause. The transcript mentioned, is the one involved in the case of C. David Pearson v. Board of Education, Community Unit School District No. 5, Macoupin County, Illinois, General No. 10051, pending in this court. From the transcript aforesaid, it appears, that after receipt of notice of discharge, plaintiff requested a hill of particulars and hearing pursuant to the provisions of Sec. 24 — 3 of the School Code, Chap. 122, Illinois Revised Statutes, 1953. Upon a full public hearing the original action of defendant was approved unanimously; upon appeal to the Circuit Court the decision of the defendant was affirmed; and at the time of this trial, an appeal had been perfected to this court from the decision of the Circuit Court. The trial court thereupon entered an order finding that plaintiff was pursuing his remedies under the Teachers Tenure Law; that said law provides a full and adequate remedy to plaintiff and that the Circuit Court was without jurisdiction to entertain or consider this suit on the contract until final determination of the proceedings under the Teachers Tenure Law. The trial court’s order then adjudged that plaintiff take nothing by his suit and pay the costs thereof. From this order plaintiff has perfected this appeal.

Basically the question here involved is whether a teacher who has been given notice of discharge for cause and who has requested a hearing under the provisions of Sec. 24 — 3 of the School Code, Chapter 122, Illinois Revised Statutes, may sue for alleged breach of contract while the hearing on the charges is still pending and not finally adjudicated.

Plaintiff places great stress on the so called written contract of May 1954. The effect of the Teachers Tenure Law is to create a contract by operation of law. Anderson v. Board of Education of School Dist. No. 91, 390 in. 412, 61 N.E.2d 562. When a teacher has attained tenure status no written contract is necessary. The function of the contract in question, in our opinion, is to designate the salary of plaintiff and the period during which he will teach. It would appear from the allegations of plaintiff’s amended complaint that plaintiff contends that his discharge was wrongful because it was not for one of the causes set out in the written contract. The case of Hartmann v. Board of Education of Westville Tp. High School Dist. No. 220, 356 Ill. 577, 191 N. E. 279, is authority to the contrary. In that case the court had before it a written contract containing the identical language as contained in the written contract relied on by plaintiff. It was there held that the causes for discharge set out in the written contract were referable to the provisions of Sec. 6 — 36 of the School Code, Chapter 122, Illinois Revised Statutes, then Sec. 115 of the School Code, which provided the same specific causes of removal and that the provisions of Sec. 7 — 16, then Sec. 127 of the School Code, had to be read into the written contract.

Plaintiff places great reliance upon McNely, Exrx. v. Board of Education, 9 Ill.2d 143, 137 N.E.2d 63, where a recovery in a contract action was affirmed by the Supreme Court. Aside from the primary question of whether superintendents were included in the Teachers Tenure Law, the court held in this case that the superintendent had attained tenure status and therefore had a contract by 'operation of law. The discharge in the McNely, Exrx. case, supra, was not a discharge for cause. The discharge was bottomed solely on the elimination and discontinuance of the job of superintendent which job was not in fact eliminated. The essence of the court’s holding is that, having dismissed the superintendent on the ground of abolition of his job, when in fact the job was not abolished, his dismissal was wrongful and having a contract by operation of law under the Teachers Tenure Law, he was entitled to sue and recover damages for breach of that contract. One of the defenses raised in the case, was that plaintiff was barred from recovery because he did not seek review of the action of the board of education in accordance with the provisions of the Teachers Tenure Law. The court held that such was not necessary in view of the character of his attempted discharge. However the court did observe in this connection:

“If the dismissal is for cause, then the cause must be stated and the pertinent provisions of this section must be met relative to notice and hearing, and review of the decision of the board is under the Administrative Review Act, as provided for in section 24-8 of the School Code.”

This case does not support plaintiff’s contention that he may sue in contract while the discharge proceedings are still pending.

By the provisions of Sec. 24 — 3 and 24 — 8 of the School Code, Chap. 122, Illinois Revised Statutes, 1953 an elaborate procedure is set up for testing the validity of the discharge of a teacher where that discharge is allegedly for cause. The courts of this state have consistently held that the remedy thus afforded to a teacher is full, complete and adequate. Biehn v. Tess, 340 Ill. App. 140, 91 N.E.2d 160, Eveland v. Board of Education, 340 Ill. App. 308, 92 N.E.2d 182, Betebenner v. Board of Education, 336 Ill. App. 448, 84 N.E.2d 569. In the last cited case the court expressly held that the teacher would not have been entitled to the writ of mandamus, the awarding of which was affirmed, as long as the proceedings to dismiss him were pending.

We conclude that the statute provides a method for determining whether the dismissal of a teacher for cause was wrongful. If a teacher has exercised his right to a hearing as provided by statute, he cannot maintain an action at law for damages as long as the proceedings are pending and not finally adjudicated. When it is finally determined that no cause existed he may maintain an action for recovery of damages sustained by him as a result thereof. If, upon hearing, it is finally determined that cause for dismissal did exist then his contract rights are at an end.

The findings of the trial court in its judgment order were substantially correct. However the court then entered what amounts to a judgment on the merits. We are of the opinion that this was error. Upon the findings made the order should have been a dismissal of the suit without prejudice. Accordingly the judgment of the trial court is reversed with directions to vacate that part of the judgment order, ordering that plaintiff take nothing by his suit, and to enter an order dismissing plaintiff’s suit without prejudice at plaintiff’s costs.

Reversed and remanded with directions.


author: JUDGE KILEY

text:
    People of the State of Illinois ex rel. Joseph Varallo et al., Plaintiffs-Appellees, v. Edward Linskey et al., and William C. Griffin, as Chief of Police of the Department of Police of Village of Skokie, Defendants-Appellants.
    Gen. No. 46,881.
    First District, Third Division.
    December 5, 1956.
    Released for publication January 2, 1957.

      Myer H. Gladstone and Simon S. Porter, of Chicago, for defendants-appellants.
    McCarthy, Toomey and Reynolds, of Chicago, for appellees; John E. Toomey and John M. Kaveny, both of Chicago, of counsel.
   JUDGE KILEY

delivered the opinion of the court.

This is a mandamus action by three patrolmen of the Skokie, Illinois, police force, seeking to compel defendants to fill a vacancy in the position of Sergeant of Police, by promotion of one of three persons highest on the Civil Service eligible list. The writ issued, commanding defendant Griffin, Chief of Police, to notify the Commissioners of the existence of the vacancy for sergeant and commanding the Commissioners to fill the vacancy from the eligible register. Defendants Griffin and the Commissioners have appealed.

The Village of Skokie adopted the Pire and Police Commissioners Act (Chap. 24, Art. 14-1 et seq., Ill. Rev. Stat., 1953) April 17, 1945, and thereafter the Commissioners were duly appointed, and held office when suit was filed October 28,1955.

Relators on January 9, 1953, took a promotional examination, conducted by the Commissioners, for the position of sergeant. They were later notified they had passed and were placed on the eligible list as follows: Thiry, number 5; Herriman, number 6; Varallo, number 7; and Carlstedt, number 8. On July 17, 1955, the Commissioners by resolution cancelled the list and struck the names of the eligibles, including relators.

The resolution was passed pursuant to a rule of the Commission that “names remaining on eligible registers for two years and one day shall continue to remain . . . unless the same shall have been stricken . . . by the Commission.”

On October 28,1955, a new promotional examination for sergeant was held and a new eligible list was posted, but the relators did not take the examination and their names did not appear on the list. On August 15, 1955, a vacancy occurred in the office of sergeant and this suit followed.

The court sustained plaintiffs’ motion for judgment on the pleadings on the ground there was no issue of fact and no sufficient defense.

The decisive questions are whether the Commissioners had power to adopt the rule under which they can-celled the list on July 17, 1955, and if so, whether, the action under the rule was affected by a resolution prior to that date extending the life of the list to January 10, 1956.

Defendants admit that Article 14 of the Cities and Villages Act (Optional — Fire and Police Commissioners, Chap. 24, Ill. Rev. Stat.) does not expressly give the power to make the rule. They claim the power is implicit. They rely upon the rule of construction that an express grant of power includes “the express grant of power to do all that is reasonably necessary to execute the power” (Owens v. Green, 400 Ill. 380, 400); and upon Wood v. State Civil Service Commission, 155 P.2d (Colo.) 153. The rule of construction is fundamental and the Colorado case does hold that the Commissioners there “of necessity” had power to place a time limit upon the eligible list.

But relators argue that the power to strike lists was expressly granted to Commissions by the Illinois legislature in the 1895 Civil Service Act for Cities (Chap. 24%, Para. 48, Ill. Rev. Stat.); in the Civil Service Act of 1911 for Parks (Chap. 24%, Para. 122 [Ill. Rev. Stats. 1955]); in the Civil Service Act for the Chicago Sanitary District (Chap. 42, Para. 323.7 [111. Rev. Stats. 1955]); and in the State Civil Service Act (Chap. 24%, Para. 1 et seq. [111. Rev. Stats. 1955]).

The relators contend the legislature must have known of the express power in the Cities Act when it passed the Pire and Police Commissioners Aet eight years later in 1903, and must have had a purpose in withholding that power from the latter; also, that the Fire and Police Commissioners Act has been amended many times between 1903 and 1941, and the power still not granted though the legislature must have known of its express grants in the other acts mentioned; further, that the State Civil Service Act was amended in 1955, after fifty years, to grant the power and yet the power was still withheld from the Fire and Police Commissioners Act.

The arguments of relators are convincing and are not overcome by the decision in Wood v. State Civil Service Commission, 113 Colo. 135,155 P.2d 153. There the court said: “The mere fact that one takes an examination for a position and attains a preferential position could not well justify his retention in that position indefinitely. Examinations may be stiffened, additional qualifications be required by additional duties being attached to the position, those examined may deteriorate, others better qualified may knock at the door. Some limitation must of necessity be put upon these lists.” But that court also said there was no question of the power of the Commission, “under the Constitution and statutes,” to pass a rule providing for the expiration of eligible lists.

Defendants argue that necessary physical qualifications for positions may change with changing circumstances and leave the Commission helpless to keep apace of developments unless it .could reasonably limit the life of lists; also that in the absence of the power defendants would be unable to strike from the roster names of eligibles who are nearing the retirement age; and finally, that without the power the legislative purpose to prefer war veterans would be frustrated. These are practical problems which should be presented to the legislature. They cannot call up the power which was sought to be exercised here.

It is our opinion that the Commissioners had no power to adopt the rule under which they sought to cancel the sergeants list. We need not consider the other question. For the reasons given, the judgment is affirmed.

Affirmed.

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


text:
    George Vincent Menagh and Lillian Menagh, Appellees, v. Frances Hill, Appellant.
    Gen. No. 47,010.
    First District, Third Division.
    December 5, 1956.
    Released for publication January 2, 1957.

      Traeger, Bolger & Traeger and J ohn A. Kahonn, all of Chicago, for appellant.
    Bergstrom, Evans & Nelson and Benjamin J. Sachs, all of Chicago, for appellees; Edward H. Nelson, of counsel.
   JUDGE LEWE

delivered the opinion of the court.

Plaintiffs recovered a judgment before a police magistrate in a forcible entry and detainer suit. On appeal by defendant to the Circuit Court, the judgment was affirmed, whereupon defendant appealed to this court.

The facts are substantially as follows: Since October 1932, defendant has been living at 15005 Chicago Road, Dalton, Illinois. In 1932, these premises were improved with an old building formerly used as a real estate office. At that time, one Jacobson told defendant that she could live in the building if she partitioned it and replaced the doors and windows. About that time, defendant was also told by one Menn that he owned the building but not the land. Menn granted defendant permission to live in the premises in question without paying rent.

Plaintiffs claim ownership of the land and the right of possession under a quitclaim deed from plaintiff George Menagh’s father and mother dated in 1945. Over defendant’s objection, plaintiffs introduced in evidence a trustee’s deed and a contract for the sale of the premises from Union Bank of Chicago to plaintiff’s father. These documents were dated in the year 1925.

An attorney testifying in plaintiffs’ behalf, said that in 1950, he showed defendant the deeds held by plaintiffs and requested a monthly rent of $10. Two letters, one dated in August and one in September, 1950, were received in evidence, purportedly written to defendant requesting the rent payment and threatening legal action.

Over defendant’s objection, plaintiffs also introduced in evidence tax and special assessment receipts, showing payment by plaintiffs as owners of the property, and a survey of the property in question made in 1949.

The first question presented for determination is whether in the absence of a complaint in writing as required by Chapter 57, section 5, Ill. Eev. Stat. 1955 (State Bar Ass’n ed.), the police magistrate had jurisdiction of the subject matter.

The pertinent part of section five reads:

“On complaint in writing by the party or parties entitled to the possession of such premises being filed in any court of record, or with any justice of the peace in the county where such premises are situated, stating that such party is entitled to the possession of such premises (describing the same with reasonable certainty), and that the defendant (naming him) unlawfully withholds the possession thereof from him or them, the clerk of such court or such justice of the peace shall issue a summons.
“No further pleading shall be required in cases before justices of the peace.”

Since forcible entry and detainer is a statutory proceeding in derogation of the common law, a court entertaining such an action will be considered as a court of special and limited jurisdiction, and the procedure prescribed by the statute must be strictly followed. (See, 19 Ill. Law and Practice § 7, page 523.)

In the early case of Stolberg v. Ohnmacht, 50 Ill. 442, an action for forcible entry and detainer, it appears that the justice issued a summons without an affidavit having been previously filed, in accordance with the provisions of a statute substantially the same as that involved in the present case. The Court said at page 443:

“The affidavit is the foundation of the jurisdiction, and has been constantly so held in this court. The justice had no jurisdiction when he issued the summons, and could acquire none, for the purposes of that suit, by allowing an affidavit to be filed on the day of trial.”

In Abbott v. Kruse, 37 Ill. App. 549, this court held that in a forcible detainer proceeding before a justice, a complaint in writing is jurisdictional (citing Schaumtoeffel v. Belm, 77 Ill. 567, and Center v. Gribney, 71 Ill. 557) and if the justice had no jurisdiction of the case the court on appeal had none.

In Redfern v. Botham, 70 Ill. App. 253, the transcript of the proceedings before the justice disclosed a “complaint filed,” but no complaint in writing as required by statute was transmitted by the justice to the Circuit Court. In the Circuit Court, as in the case at bar, no proof was made or offered that a written complaint did exist. The court said at page 254: “A written complaint is necessary to the jurisdiction of the justice in forcible detainer proceedings, and unless the justice has, jurisdiction, the Circuit Court on appeal has none.”

In the instant case, plaintiffs say “a written complaint was before the court.” An examination of the transcript on appeal from the police magistrate fails to disclose such a written complaint.

In any event, plaintiffs say this objection was waived by defendant because she did not raise it in the Circuit Court. No rule of law, statutory or decisional, is cited by plaintiffs to support this proposition. We think plaintiffs’ position is untenable, since the law seems well established that the filing of a written complaint before the police magistrate is jurisdictional. It follows, therefore, that the police magistrate and the Circuit Court had no jurisdiction over the subject matter.

We have considered the other points urged and the authorities cited in support thereof, but in the view we take of this case we deem it unnecessary to discuss them.

For the reasons stated, the judgment is reversed.

Judgment reversed.

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


author: JUSTICE EOVALDI

text:
    People of State of Illinois, Appellee, v. Don C. Howell, Defendant-Appellant.
    Gen. No. 10,961.
    Second District.
    December 10, 1956.
    Released for publication December 27, 1956.

      George H. Morton, of Lombard, for appellant.
    William L. Guild, of Wheaton, for appellee; Edwin L. Douglas, of Wheaton, of counsel.
   JUSTICE EOVALDI

delivered the opinion of the court.

This is a case in which the People filed an information charging the defendant with having committed a lewd and lascivious act in that he exposed himself in public. On his plea of not guilty, he was tried before the court without a jury on this charge, and though all of the evidence was heard, the court never ruled on the guilt or innocence of defendant. Subsequently in the same case the State filed a petition under Chap. 38, Secs. 820.01-825e, Ill. Rev. Stat., 1955, charging the defendant with being a sexually dangerous person, and after motions to dismiss the petition, the defendant was tried before a jury on said petition, and was found by the jury to be a sexually dangerous person, and was sentenced to the Department of Public Welfare of the State of Illinois, and has been by that Department sent to the State Institution at Menard, Illinois.

It is the defendant’s contention that once he was tried on the criminal information, the court should have made a finding of either guilty or not guilty and should have entered judgment in conformity with its finding, and that the court had no jurisdiction to try him on the petition charging him with being a sexually dangerous person after having tried him previously on the criminal charge. It is his further contention that, even assuming the court had jurisdiction to try him on the petition, the petition should have been dismissed because the psychiatrists appointed by the court did not agree in their reports preliminary to trial that the defendant was a sexually dangerous person; and that the evidence upon the trial was insufficient to convict the defendant.

It is the People’s contention that the court was not compelled to enter a finding and judgment on the criminal information; that it acted properly in entertaining the State’s petition under the Sexually Dangerous Persons Act; and that the court had jurisdiction to try the offender on the petition charging him with being a sexually dangerous person, as the defendant had not been tried on the criminal information within the context of the applicable statute. The People further contend that the statute does not require unanimous agreement by the two court appointed psychiatrists; as expert testimony is a question of fact to be ultimately determined by the court or the jury as the case may be. The People further contend that , whether or not the evidence presented at the trial on the criminal information was sufficient is a moot question; as the Sexually Dangerous Persons Act merely requires, that the defendant be charged with a criminal offense.

The evidence upon the trial was that the defendant, aged 54, was driving his car in the Village of Woodale, in DuPage County, on November 18, 1955, and at approximately 3:15 in the afternoon stopped his car near a school, but did not get out of his car, and from all appearances was fully clothed. At the time he stopped his car there were two eighth-grade girls, Jean Brown and Sharon Stoeck, who were on their way home from school, and he said “Hello” to them. The mother of one of the girls drove up at that time, the girls did not speak to him, and he spoke no further to them. As they went across the street to get into the mother’s car, he said “Goodbye.”

Apparently the girls or the mother became concerned and went to Jean Brown’s home and told her father about the occurrence, and he called the police. The police were busy, and Mr. Brown went to a corner of Woodale Boad and Irving Park in the Village to tell a corner police officer about what had occurred.

At that time the defendant was in his car outside of the postoffice, and shortly thereafter he drove the ear south on Woodale Boad, and Mr. Brown and his daughter followed him. The defendant was seen to have again stopped his car on the street in front of the school, and Sharon Stoeck was again at that place, having gone home and returned. He asked Sharon where Bernice Street was, and she said she didn’t know. Again on this occasion the defendant did not get out of his car, and was fully clothed. When Sharon told defendant that she didn’t know where the street was, Mr. Brown’s car came up behind the defendant’s car, and she then got into the Brown car, and they pursued the defendant out of town for a mile or two. Mr. Brown testified that he drove perhaps sixty or sixty-five miles an hour in chasing the defendant. During this period of time the crossing guard, Peter Tulp, who was a police officer of the Village of Woodale, had proceeded in a different direction in an effort to apprehend the defendant, and he finally retraced his course and came upon Brown, who had come upon the defendant at the side of the road.

Brown did not get out of his car when he stopped where the defendant was, (nor did. his daughter or Sharon Stoeck), and he testified that he did not see any part of the defendant other than his head and shoulders that he could see through the window of the car, and that he did not notice anything unusual about the defendant.

Peter Tulp, the officer, testified that when he got to where the defendant was, which was some distance from town, lie got ont of Ms car and walked over to the defendant’s car. The defendant had on a shirt, an overcoat and a pair of shoes, and blue jeans which were down around his ankles. He saw the defendant from his thighs down and did not see his private parts. No one other than Peter Tulp got out of his car at the time. The defendant gave his driver’s license to the officer. There were other clothes in the car at the time. The defendant pulled up his trousers and drove his car, and the officer and Brown drove their’s back to the fire station in Woodale. They then took defendant to jail at Itasca.

The defendant testified in his own behalf and stated that he was employed at the Hawthorne Race Track kitchen, and that he lived there; that he was in Wood-ale on the day in question looking for a man who was an inspector at the International Harvester Company where the defendant had formerly worked. He stated that his reason for stopping where the two girls were was to inquire the location of a street, and that he had no conversation with them other than that; that the trousers he had on had wax on them because he had been using a wax machine at his work, and that he drove out in the country and was in the process of changing Ms pants when the officer and Brown arrived; that he had previously changed his shirt when he left Villa Park; that he did not know anyone was following him when he had driven out in the country to change his trousers. He testified further that he was fully clothed when he talked to the girls. On cross examination he admitted that he had had some beer to drink that day. He further testified that his car was a 1948 Chevrolet and that it smoked badly, which might have been the reason, he stated, he did not know anyone was following Mm. He further testified that when he was arrested, he was tried for speeding in a Justice Court and paid a fine of $53, although he wasn’t sure whether it was for speeding, reckless driving, or drunken driving.

The People and the defendant rested their cases, and the court took the case under advisement, and continued same to December 27th. The defendant at the conclusion of the case made a motion for a finding of not guilty, which was denied. Nothing further occurred in the case until January 6, 1956 when the State’s Attorney filed the petition charging defendant with being a sexually dangerous person pursuant to the provisions of Chapter 38, Ill. Eev. Stat., 1955, sec. 820 et seq. The court, upon the filing of this petition, appointed Doctors John W. Hanni and Prank M. Lorimer, two psychiatrists, to examine the defendant to determine whether or not he was a sexually dangerous person, and to report their findings, conclusions and recommendations to the court. On January 20, Doctor Lorimer filed his report, which stated that it was his opinion that the defendant did classify as a sexually dangerous person, and he recommended that the defendant be tried under the Sexually Dangerous Persons Act. Dr. Hanni filed his report on February 2 in which he concluded that defendant was an exhibitionist, and that he did not believe that defendant was sexually dangerous.

Following the filing of these reports, the defendant filed a motion on February 27 wherein he moved the court to enter a finding and judgment on the evidence heard in the criminal case. The court entered an order on this motion continuing the hearing on the motion to March 2nd. On February 29, the defendant filed a motion to dismiss the petition charging him with being a sexually dangerous person. As reasons for his said motion, he stated that the criminal charge had been tried; and, because both psychiatrists did not agree in their reports that he was a sexually dangerous person, the court could not try him on the petition. The court reserved its ruling upon the motion, and a jury was impanelled on the same day and the defendant tried on the State’s petition charging him with being a sexually dangerous person, and the jury returned a verdict so finding on March 1st. The cause was continued to March 5th for the purpose of entry of formal order on the verdict. Also, on March 1st the court entered an order that the hearing on the criminal information should be stayed indefinitely. The defendant filed a motion on March 5 for judgment notwithstanding the verdict of the jury and for new trial, which said motions were denied and the order of commitment to the Director of Public Safety was entered.

The evidence before the jury on the State’s petition charging the defendant with being a sexually dangerous person was in many respects the same as the evidence heard in the criminal case on December 19th. In addition, however, the State had Doctors Hanni and Lorimer testify as to their examinations of the defendant and as to their opinions as to whether or not he was a sexually dangerous person. It was Dr. Lorimer’s conclusion that the defendant was a sexually dangerous person, and it was Dr. Hanni’s conclusion that defendant was not a sexually dangerous person. Dr. Hanni further stated that in his opinion the defendant’s conduct caused him to be a nuisance, but in terms of doing damage to another person he could not consider him dangerous.

Defendant testified in his behalf and gave a similar account of the occurrence in Woodale on November 18 as he had given in the criminal trial. The jailer of the DuPage County jail, Lawrence Murphy, a deputy sheriff, testified on behalf of the defendant and stated that for the past three or four months the defendant had been in jail and in his custody, and that he had observed him, and that there had been on an average of 125 or 130 prisoners through the jail from week to week, and that at any one time there were from 20 to 26 men confined there; that in their incarceration they were permitted to roam at large freely among each other during the day, using the bull pen, the open area; that the prisoners were not confined to any individual cell; that during that period of time defendant had been there and had mingled freely with the other prisoners and that there had been no trouble with defendant insofar as his contact with other people in the jail was concerned, and that he had caused no trouble, and that there had been no reports about abnormal sexual conduct on the part of' defendant during the time he had been there. On cross-examination the deputy sheriff testified that he had young children in jail in his custody, and that over the period of time of the last few months there had been probably sixty or sixty-five; that they ranged from fourteen to twenty-one, and that he spent eight hours of each twenty-four hour period in the jail; and that it was possible for things of the nature before the court to happen without his knowing it. On re-direct examination he testified that during the hours he was not on duty at the jail, it was the duty of other men to report to him any kind of activity other than the usual; that they had a form to fill out when anyone caused a disturbance and a report was made of it on inspection; that there was no report during the time that defendant was in jail as to anything of that character concerning defendant.

While the Sexually Dangerous Persons Act provides that the proceedings under same shall be civil in nature, we are not unmindful of the fact that a defendant in a criminal proceeding may have his liberties curtailed under the provisions of said Act even though he may not be guilty of the charge made against him in the information or indictment. In this case defendant actually was placed on trial. All evidence had been presented. Possibly the trial court was not convinced of the sufficiency of the evidence to sustain a conviction.

We have carefully reviewed the evidence in this case. We have noted the differences in the testimony of the two psychiatrists who testified on behalf of the People, one stating that defendant was a sexually dangerous person, the other stating that he was not. Particular attention has been directed to the testimony of the Deputy Sheriff, in whose custody defendant remained for several months prior to the trial. Although the jury is primarily the judge of the facts and the weight and credibility of the evidence, we should not hesitate to reverse a judgment where the evidence on which it is based is of an unsatisfactory character. A reviewing court will set aside a verdict which is against the manifest weight of the evidence. Donelson v. East St. Louis and Suburban Ry. Co., 235 Ill. 625; Fitzgerald v. Chicago & Erie R. R. Co., 144 Ill. App. 100. As was said in Donelson v. East St. Louis Ry. Co., supra, at 628:

“The constitution, which provides that the right of trial by jury as previously enjoyed shall remain inviolate, does not make the jury the final judges of the weight of evidence, and if a verdict is manifestly against the weight of the evidence it is the duty of the trial judge to set it aside and grant a new trial, and a failure to do so is error, for which a judgment must be reversed.”

We are of the opinion that the verdict of the jury is against the manifest weight of the evidence. Under this state of the record, it is unnecessary to consider the other matters urged in this appeal. The judgment is, therefore, reversed and the cause remanded with instructions to allow the motion of defendant for a new trial.

Beversed and remanded with instructions.

DOVE, P. J. and CBOW, J., concur.


author: PRESIDING JUSTICE EEINBERG.

text:
    Edward Alletto, Appellee, v. Eve Kyatt and Henry Kyatt, et al., Appellants.
    Gen. Nos. 46,999, 47,000.
    First District, Third Division.
    November 7, 1956.
    Rehearing denied November 28, 1956.
    Released for publication December 28, 1956.
    Jacob Stag-man, for plaintiff-appellee; Erwin H. Greenberg, of counsel; Eve Kyatt and Henry Kyatt, defendants-appellants, pro se.
   Opinion by

PRESIDING JUSTICE EEINBERG.

Not to be published in fuH.


author: PRESIDING JUSTICE FEINBERG.

text:
    Ruth Magid, Appellant, v. Noah Mulstein, Appellee.
    Gen. No. 46,924.
    First District, Third Division.
    November 7, 1956.
    Rehearing denied November 28, 1956.
    Released for publication December 28, 1956.

      Sherman & Lewis, for appellants; Irving S. Abrams, of counsel; Reubens Stiglitz, for appellee.
   Opinion by

PRESIDING JUSTICE FEINBERG.

Not to be published in full.


author: JUDGE LEWE.

text:
    In the Matter of the Estate of Ezekiel J. Morris, Deceased. Tanaquil Kimbrough Simmons, Appellant, v. Harriet Alberta Morris and Booker Taliaferro Morris, Executors, Appellees.
    Gen. No. 46,859.
    First District, Third Division.
    November 7, 1956.
    Released for publication December 28, 1956.
    Braden, Hall, Barnes & Moss, for plaintiff-appellant; George S. Barnes, of counsel; Brown, Brown, Cyrus and Greene, for appellees; Jesse B. Mann, of counsel.
   Opinion by

JUDGE LEWE.

Not to be published in full.


author: JUDGE KILEY.

text:
    Theresa Malczyk, Appellant, v. Edward Malczyk, Appellee.
    Gen. No. 46,866.
    First District, Third Division.
    November 7, 1956.
    Released for publication December 28, 1956.
    Paul F. Hayzlett, for appellant; Milton H. Wiess, for appellee.
   Opinion by

JUDGE KILEY.

Not to be published in full.


author: PRESIDING JUSTICE REYNOLDS.

text:
    Board of Education of Roodhouse Community High School District No. 108, Plaintiff-Appellant, v. County Board of School Trustees, Greene County, Illinois; Board of Education of Carrollton Community Unit District No. 1; Board of Education of Patterson Community Consolidated District No. 110; Board of Education of Pittsfield Community Unit District No. 2; Board of Education of Winchester Community Unit District No. 1; Board of Education of White Hall Community Unit District No. 2; and Board of Education of Hillview Community Consolidated District No. 111, Defendants-Appellees.
    Gen. No. 10,108.
    Third District.
    December 19, 1956.
    Released for publication January 4, 1957.
    Robinson, Foreman, Rammelkamp and Bradney, and Gilbert K. Hutchens, for appellant; L. A. MehrhofE, State's Attorney, attorney for County Board of School Trustees; McDonald and Roady and Norman P. Jones, attorneys for White Hall Community Unit District No. 2, for appellees.
   Opinion by

PRESIDING JUSTICE REYNOLDS.

Not to be published in full.


author: JUSTICE CROW

text:
    Board of Education of School District No. 20, Chillicothe, Peoria County, Illinois, Plaintiff-Appellee, v. Board of Education of Community Consolidated School District No. 315, Peoria County, Illinois, and Alice Allen Prentiss, Defendants-Appellants.
    Gen. No. 10,958.
    Second District.
    September 26, 1956.
    Rehearing denied January 14, 1957.
    Released for publication January 14, 1957.
    Leiter & Durfee, of Peoria, for defendants-appellants.

      London G. Middleton, and Carl E. Phillips, both of Peoria, for plaintiff-appellee.
   JUSTICE CROW

delivered the opinion of the court.

This is an appeal from a judgment entered by the Circuit Court of Peoria County against the defendants, the Board of Education of Community Consolidated School District No. 315, etc. and its treasurer, in favor of the plaintiff, The Board of Education of School District No. 20, etc., in the sum of $3,766.67. The defendants moved to dismiss the - complaint, but the motion was denied by the trial court, and, after a rule to answer, the defendants failed to answer, default was entered, evidence taken, and a decree entered in favor of the plaintiff.

It appears that on March 13, 1954 an election was held creating the new defendant Community Consolidated School District No. 315 by a consolidation of territory formerly comprising Common School Districts Nos. 32, 33, 34 and 39. Very shortly thereafter, on March 29, 1954, a petition was filed by the requisite voters of the territory formerly comprising Common School District No. 32, to detach that territory from the newly created District No. 315 and annex it to the plaintiff School District No. 20, which district had been in existence for some years. On April 10, 1954 an election was held for the' School Trustees of the new Dis=trict No. 315, and on April 12, 1954 the Board of that new district met and organized. On July 6, 1954, thé County Board of School Trustees acted on the petition, previously referred to, for detachment, and the territory formerly comprising Common School District No. 32 was detached from the new defendant Consolidated School District No. 315, and annexed to the plaintiff School District No. 20.

Upon the creation by consolidation of the defendant Community Consolidated School District No. 315, the funds of all the previous Common School Districts, including District No. 32, were consolidated as funds of District No. 315. It is the contention of the plaintiff, School District No. 20, that under the circumstances here, the funds, which were readily identifiable, formerly held by School District No. 32, in the amount of $3,766.67, at the time of the consolidation of Districts Nos. 32, 33, 34 and 39, and at the time of the detachment, upon detachment of that area follow the territory that was formerly Common School District No. 32, and now belong to the plaintiff School District No. 20. The trial court by its decree so found, and held that the plaintiff School District No. 20 is entitled to the funds of former School District No. 32. There are no disputed questions of fact.

The defendants’ theory is that upon the consolidation of the former School Districts to form the defendant School District No. 315 the funds of the Districts consolidated became the property of the defendant Consolidated School District No. 315, and, in the absence of express statutory direction to the contrary, the mere detachment of some of that territory, namely, former Common School District No. 32, from the new Consolidated District No. 315 and its annexation to another district, namely, School District No. 20, does not operate to transfer any funds from the defendant District losing the territory to the plaintiff District gaining it.

The trial court, by its decree, found that the area formerly comprising School District No. 32 was detached from Community Consolidated District No. 315 prior to the holding of any school, or the incurring of any bonded indebtedness by Consolidated School District No. 315, other than the continuation of the schools (for the balance of the current school year from March 1954) that were carried on before consolidation; that after consolidation the Township School Treasurer credited the funds of School District No. 32 with two receipts (each for $10.97) and charged that account with one disbursement of $.50 (evidently upon an order of one of the former Directors of District No. 32) leaving a balance of $3,766.67 therein at the close of the school term, June 1954; and that the allegations of the complaint are true, among which is the allegation that, after the consolidation and prior to the detachment, the funds of former School District No. 32 had not been used for school purposes. The proof seems to sustain the findings. It appears from the evidence that there had been no school held at the schoolhouse in District No. 32 for two years before the consolidation, that during that time the pupils of that District attended school as tuition pupils at the school of the plaintiff District No. 20, and that after the consolidation those pupils continued as tuition pupils at the school of the plaintiff District No. 20.

Under Article 4B, Creation of New Districts and Change of Boundaries of Existing Districts, of the School Code, Ch. 122, Ill. Rev. Stats., 1953, par. 4B — 1, it was provided that — “the boundaries of existing school districts . . . may be changed by detachment, annexation ... by the County Board of School Trustees . . . .” And it was provided under par. 4B-4 of that Article, Ch. 122, Ill. Rev. Stats., 1953, par. 4B — 4,—“The County Board of School Trustees . . . shall take into consideration the division of funds and assets which will result from the change of boundaries and shall determine whether it is to the best interests of the schools of the area and the educational welfare of the pupils that such change in boundaries be granted, . . . .” It must have thereby been contemplated by the Legislature that where the boundaries of existing school districts, — as, here, the defendant School District No. 315 and the plaintiff School District No. 20, — are changed by detachment and annexation, there shall be a division of funds resulting from the change of boundaries, and that such circumstance shall be one of the factors to be taken into consideration by the County Board of School Trustees in determining whether the boundaries shall be so changed. It must be presumed that the County Board of School Trustees here took that factor into consideration in making its determination for the detachment and annexation here involved and that the Board was well aware that there would have to be a division of funds resulting from such change of boundaries. That circumstance or factor is a part of the set of standards under which the Board’s discretion may be properly exercised, and which renders the statute constitutional and not an invalid delegation of legislative power: School Dist. No. 79 v. County Board of School Trustees of Lake County (1955), 4 Ill.2d 533.

Former Sec. 4-46 of the School Code, Ch. 122, Ill. Rev. Stats., 1949, par. 4 — 46, provided for a distribution of funds when a new district was formed from a part of a district or parts of two or more districts. That section, however, was repealed in 1951, Laws, 1951, p. 1807, prior to the events involved in the present case. And, in any event, in the instant case literally no new district was formed by the detachment of the territory concerned from the defendant School District No. 315 and its annexation or attachment to the plaintiff School District No. 20. The plaintiff District had previously been in existence for a number of years. So even if former Sec. 4-46 had been in effect at the time of the present cause it would not literally have applied.

All the parties have referred us to People v. Trustees of Schools of Tp. No. 4 North, Range No. 4 West of Fourth Principal Meridian (1952), 347 Ill. App. 330, Third District, where the court held, under very similar circumstances, that the funds such as are here in controversy belong to tbe district which gains the territory involved by attachment to it and detachment thereof from some other district. In that case Community Unit School District No. 180 had been created July 1, 1948, embracing Common School Districts 121, 123, 126, 200, and part of 122; on August 12, 1948, all the territory comprising former Common School Districts 121, 126, and 200, and part of 122 and 123 was detached from Community Unit District No. 180 and annexed to Community Consolidated School District No. 319; no school had been conducted and no bonded indebtedness incurred by District No. 180 before the detachment. District No. 180 brought a mandamus suit to obtain the school funds of the former common school districts and the writ was denied as to all of the funds of the territories which had been detached. The defendants here contend that that case turned entirely upon the construction and application of the former Sec. 4-46 of the School Code, heretofore referred to, which was in existence at the time of the events involved in that case, but was not in existence at the time of the present cause, and they urge that had there then been no See. 4-46 the court would have reached a different result. We cannot agree. In the opinion the court referred particularly to Ketcham v. Board of Education Community Consol. School Dist. No. 201 (1927), 324 Ill. 314, and School Directors Dist. No. 89, County of Winnebago and State of Illinois v. School Trustees Tp. No. 26, North, Range No. 10, East of Fourth Principal Meridian (1925), 240 Ill. App. 619, and said, pp. 332, 334, 336, and 338:

“There is no provision of the School Code of Illinois which applies clearly and unmistakably to the instant case. Section A-46 of the School Code (chapter 122, section 4 — 46, Ill. Rev. Stat. 1949) (Jones Ill. Stats. Ann. 123.748) provided for the distribution of funds when a new district was formed. . . .
“It is apparent from a reading of the provisions of section 4-46 that that statute does not provide specifically for this case, involving a detachment. Two cases dealing with situations similar to that presented here in that situations not precisely within the language of section 4-46 or its substantially identical predecessor, have held that section 4^46 and the following section, 4-47, applied, and have held that the personal property and funds followed a district being detached from a larger district of which it had formerly been a component. . . .”
“We view these decisions as decisive in this case. Thus in both the School Directors and the Ketcham cases, supra, the court applied the then equivalent to section 4-46 of the School Code to fact situations not precisely within its language. These cases gave effect to the policy of the State embodied in the various sections of the School Code that the funds and assets of schools should follow the liabilities and responsibilities attendant upon providing for an education system.
“In regard to the disposition of funds upon detachment we hold that when a Common School District is detached from a Consolidated Unit District prior to the holding of any school or the incurring of any bonded indebtedness by the latter, that the funds of the Common School District rightfully proceed with it on detachment, and that after the detachment the Consolidated Unit District has no right to the funds properly allocated to the Common School District.
“We reach this holding upon the basis of the Ketcham and School Directors cases, supra, an application of Section 4 — 46 to the case at bar, and a consideration of the common law.
“The detached territory having contributed to the unobligated fund existing at the time of the detachment, it is entitled to its benefit.”

In Ketcham v. Board of Education Community Consol. School Dist. No. 201 (1927), 324 Ill. 314, Common School Districts Nos. 91, 92, 94, 18, and 23, and certain others had been, on April 20, 1920, organized into Community Consolidated School District No. 201; after July 1, 1923 the territory comprising those named former common school districts was detached and reorganized, respectively, into five common school districts corresponding to the former Districts Nos. 91, 92, 94, 18, and 23; the school directors of those reorganized common school districts brought mandamus suits to compel a distribution of funds in the hands of the treasurer, to appoint appraisers, etc. The court held the writs of mandamus should be awarded, affirming the Appellate Court for the Second District, which had reversed the judgment of the trial court denying the writs.

In School Directors Dist. No. 89, County of Winnebago and State of Illinois v. School Trustees Tp. No. 26, North, Range No. 10, East of Fourth Principal Meridian (1925), 240 Ill. App. 619, Second District, Common School Districts Nos. 89, 95, 98, and 101, and certain others, were consolidated April 24, 1920 to form Community Consolidated School District No. 124; each then had certain funds; on August 4, 1923 the territory comprising those named former common school districts was detached from Community Consolidated School District No. 124 and respectively reorganized as common school districts; the school directors of those reorganized common school districts brought mandamus suits to compel distribution of moneys on hand, to appoint appraisers, etc. The trial court sustained a demurrer to the petition for mandamus and dismissed it, but the Appellate Court reversed and remanded. "We there said, p. 633:

“. . . From an examination of the books we have concluded that in the absence of legislation or an agreement to the contrary, property of a school district, which by reason of the alteration of its boundaries, falls within the boundaries, or within the jurisdiction of another school district, or a city having a board of education in which school property is vested, becomes the property of the district or city to which it is annexed.”

The funds of schools follow, upon detachment and annexation of territory, the liabilities and responsibilities attendant upon providing for an educational system, in the absence of legislation to the contrary, where such are readily identifiable, and the detachment and annexation occurs prior to the holding of any school or the incurring of any bonded indebtedness by the district from which the detachment is made, — the detached territory having contributed to the unobligated fund existing at the time of the detachment it is entitled to its benefit. Such funds become the property of the district to which the territory is annexed: Ch. 122, Ill. Rev. Stats., 1953, pars. 4B—1, 4B—4; People v. Trustees of Schools of Tp. No. 4, North, Range No. 4 West of Fourth Principal Meridian, supra; School Directors Dist. No. 89, County of Winnebago and State of Illinois v. School Trustees Tp. No. 26, North, Range No. 10, East of Fourth Principal Meridian, supra.

We are aware that Section 4B-13 of the School Code, as amended in 1955, Ch. 122, Ill. Rev. Stats., 1955, par. 4B — 13, provides now, inter alia, that “there shall be no accounting made after a mere change in boundaries when no new District is created.” That particular provision was added to Sec. 4B-13 in 1955, however, and was not in the law at the time of the happening of the events concerned in the present case. The defendant contends that such is the present public policy of Illinois. Whatever Sec. 4B-13 as so amended in 1955 may mean, and whatever the public policy of the State in this regard may he at the present time, it was not so expressed and provided by the Legislature at the times pertinent to the case at bar. Since in the instant case there was then no statutory provision contrary to the precedent of People v. Trustees of Schools of Tp. No. 4, North, Range No. 4 West of Fourth Principal Meridian, supra, that case correctly expresses, we believe, the law applicable under the circumstances here involved. The Legislature met in 1953 after that case had been determined. It is presumed to have been familiar with that case. It had an opportunity then to change the law by statute, if it so desired, but it did not then do so. The material public policy of the State in any instance can only be ascertained from the acts, or failures to act, of the Legislature, as interpreted, construed, and applied by the courts, as of the times pertinent to a particular case, not as of some later date.

We do not consider Kocsis v. Chicago Park District (1935), 362 Ill. 24, or People v. Chicago B. and Q. R. Co. (1953), 414 Ill. 419, referred to by the defendants, to be in point here.

The decree below is correct, under the circumstances, and will be affirmed.

Affirmed.

DOVE, P. J. and EOVALDI, J., concur.


author: PRESIDING JUSTICE ROBSON

text:
    James F. Fleming, Appellee, v. Robert Jones, Jr., and Juanita Jones, Appellants.
    Gen. No. 46,876.
    First District, Second Division.
    November 27, 1956.
    Released for publication January 8, 1957.
    Howard T. Savage, of Chicago, for appellants.
    Louis J. Hyde, of Chicago, for appellee.
   PRESIDING JUSTICE ROBSON

delivered the opinion of the court.

This is an appeal by defendants Robert Jones, Jr. and Juanita Jones from an order entered in the Municipal Court of Chicago on October 25, 1955, in favor of plaintiff, James F. Fleming, in a forcible entry and detainer action. The trial court taxed costs against defendants in the sum of $72, the expense incurred by plaintiff in having the bailiff evict defendants from the premises involved.

The record reveals that on July 8, 1955, judgment for possession was entered against defendants because of their failure to pay rent. The order also found plaintiff’s costs at $9. The issuance of the writ of restitution was stayed until August 1, 1955. Defendants failed to deliver up the premises to the plaintiff before that date and it was necessary to execute the writ. This was done by the bailiff of the Municipal Court of Chicago and the premises returned to the possession of the plaintiff. The bailiff’s return of August 4 found that the eviction fees of $72, which plaintiff had advanced, were unsatisfied. On October 25, 1955, without notice to defendants, an order was entered taxing said expense of the bailiff as costs to defendants. On November 14, 1955, defendants filed a petition to vacate the order of October 25, 1955, alleging that they had no notice of the entry of the order, that the costs were taxed more than ninety days after the cause was disposed of by judgment and therefore the court had no power to enter such order.

The trial court entered an order denying the petition to vacate. Defendants allege as reasons for reversal of this order the grounds set forth in their petition to vacate.

We are of the opinion that there is no merit in defendants’ contentions. In the judgment order of July 8, 1955, the issuance of the writ of restitution was stayed until August 1, 1955. This benefited the defendants. If they had moved from the premises before August 1, 1955, there would have been no additional costs. However, they failed so to do. In forcible entry and detainer, the statute provides that in addition to judgment for possession, the plaintiff may have a judgment for his costs. Ill. Rev. Stat. 1955, ch. 57, par. 13. The statute (ch. 53, par. 71) further provides that the sheriff shall be allowed the fee of $3.50 for serving the writ and when aid is necessary shall be allowed to tax in addition the costs thereof. The Municipal Court of Chicago is authorized by statute to charge the same costs as the Circuit Court of Cook County for the execution of writs of restitution and to tax the charges against the unsuccessful party. Ill. Rev. Stat. 1955, ch. 37, par. 416, sec. 56. The statute is definite as to the amount that may be charged and is specific that the unsuccessful litigant may be taxed the costs of executing the writ of restitution. It was impossible to ascertain on July 8, 1955, what the costs would be. The costs of the eviction did not become due and owing to the plaintiff until the bailiff made his return of the writ on August 4, 1955. The subsequent taxing of these costs on October 25 was a mere ministerial act and required no discretion on the part of the court. In fact, it could have been performed by the clerk of the court. Therefore, no notice of motion for taxing costs was necessary and it did not have to be entered within thirty days from the date of judgment. Schmidt v. Johnson, 224 Ill. App. 291, 296; Barkley v. Pool, 105 Neb. 203.

The order of the trial court is affirmed.

Order affirmed.

SCHWARTZ and McCORMICK, JJ., concur.


text:
    Pauline Thieme, Appellee, v. Union Labor Life Insurance Company, Appellant.
    Gen. No. 46,916.
    First District, Second Division.
    November 27, 1956.
    Released for publication January 8, 1957.

      Nash, Ahern & McNally, and Thomas D. Nash, Jr., all of Chicago, for appellant.
    McKinley and Price, and William Greene, all of Chicago, for appellee; Pañi E. Price, of counsel.
   PRESIDING JUSTICE ROBSON

delivered the opinion of the court.

Plaintiff brought this action as beneficiary named in an individual certificate of insurance furnished to Max Thieme, deceased, to recover insurance benefits in the sum of $1,500 under the provisions of a policy of group life insurance issued by defendant, The Union Labor Life Insurance Company, to International Photo Engravers’ Union insuring the life of every member in good standing of that union at the time of his death. The trial court, without a jury, found the issues for plaintiff and entered judgment against defendant for the sum of $1,500. Defendant appeals.

Defendant assigns a number of errors. We are of the opinion, however, that there is one issue that is determinative in this case. It is:-Does the insurance in question come within the provisions of the Illinois Insurance Code, as revised in 1947, regulating policies of group insurance issued or delivered in this State?

The facts relevant to our decision are that in 1928 defendant executed a master policy of group life insurance at its office in Washington, D.C. and delivered it to International Photo Engravers’ Union, located in St. Louis, Missouri. Chicago Photo Engravers’ Union No. 5 is a local of the International.

The decedent after having been suspended for some twelve years was reinstated to membership in good standing in the Union on November 1, 1943. On January 1, 1953, defendant issued to decedent a certificate of insurance which stated on its face that it was furnished in accordance with the terms of the group policy and subject to all the terms and provisions of it. Thereafter decedent paid his dues to the Local for the period from January, 1953, to March, 1954. The dues were payable monthly in advance but in no instance did he make the payments in advance. In fact, he made his payments in July of 1953, November of 1953, January of 1954 and March of 1954. On each of these occasions the payments included arrearages. He failed to pay his dues for the months of April, May and June of 1954. Of the dues received each month, the Local remitted to the International $3.75 per month, of which $2.25 was for insurance and benefits, and the balance was retained in the general fund. On June 10, 1954, the Local informed decedent by registered mail that its records indicated he was delinquent in payment of 'membership dues and, if he failed to respond, it would proceed with a recommendation of suspension. Decedent failed to respond and on July 6, 1954, he was suspended. On July 9, 1954“, the Local sent a notice of the action taken to decedent, together with a statement that he was privileged to be reinstated on the payment of arrearages. Decedent died on July 15, 1954.

To decide the issue, we must first ascertain whether the laws of the District of Columbia, Missouri, or Hlinois govern the policy. The master policy contains no statement as to what law should govern an interpretation of the liabilities of the insurer under the contract. In a well-reasoned article entitled, “A Rationalization of the Hlinois Conflict of Laws Rules Applicable to Contracts” by Russell S. Bernhard, 40 Ill. Law Rev. 165 (1945), the author states the following rule from a summary of Illinois conflicts of law cases (p. 184):

“When the substantive rights of the parties to a contract are at issue, and the public policy of Illinois is not involved, the court will resolve a conflict of laws problem by basing its selection of the applicable law on the intention of the parties, applying that law expressly or impliedly indicated by the parties to be controlling.”

See citations 40 Ill. Law Rev. 167-183.

In the case before us the master policy does not contain any provision setting forth the law applicable to an interpretation of the insurance contract. The certificate of insurance received by decedent was delivered to him by the defendant in this State. He became entitled to this by reason of his membership in the Local which had its office in this State. The public policy of the State with reference to the regulation of insurance is an issue. The parties to the action do not question this fact. We are of the opinion that under the conflict of laws doctrine in this State we are permitted to and should apply the law of Hlinois to an interpretation of the contract. In view of this conclusion we must now decide whether the certificate issued by defendant to decedent constitutes a part of the insurance contract.

The Supreme Court of the United States in the case of Boseman v. Connecticut General Life Ins. Co., 301 U. S. 196, held that where a master policy of group insurance stipulated specifically that the law of Pennsylvania was to control the rights of the parties to the contract, a certificate delivered to an insured employee in Texas did not constitute a part of the contract for the purpose of applying the law of Texas to the contract. In line with this decision, three United States district courts have held that a certificate containing no substantive provisions not already embodied in the master policy did not form a part of the insurance contract. Commercial Ins. Co. of Newark v. Burnquist, 105 P. Supp. 920 (D.C.-N.D. Iowa, 1952); Walls v. Connecticut General Life Ins. Co., 82 P. Supp. 421 (D.C.-D.C., 1949); Collier v. Metropolitan Life Ins. Co., 82 P. Supp. 529 (D.C.-D.C., 1949).

However, in the case of Parks v. Prudential Ins. Co. of America, 103 F. Supp. 493 (D.C. Eastern District of Tenn. 1951), the court in applying the law of Tennessee reached a contrary conclusion and found that the certificate established a definite contractual relationship between the insured and the insurance company despite an agreement between the insurance company and the employer to amend the policy. The facts on which the court reached this conclusion were that the employer and the company eliminated the disability provisions from the master policy and reduced the premium rates payable by the employees. No revision of certificates was made and the question was whether or not the plaintiff was entitled to the disability coverage set forth in his certificates, but eliminated from the master policy. In determining that he was so entitled the court made two distinct findings: (1) That under Tennessee law the contributions of premium payments by the employee to the employer established a definite contractual relationship between the employee and the insurance company, and (2) that a provision in the master policy for the issuance of a certificate setting forth the protection to which the insured was entitled rendered the protection as set forth in the certificate binding upon the parties. Where the certificate varies in substance from the terms of the master policy it forms a part of the contract of insurance. John Hancock Mutual Life Ins. Co. v. Dorman, 108 F.2d 220 (CA-9, 1939). A certificate purporting to insure the life of an employee so long as he remains in the employment of the company holding the master policy is in itself a policy of insurance. Metropolitan Life Ins. Co. v. Whitler, 172 F.2d 631 (CA-7, 1949).

In the case now before us the master policy and certificate differ in several respects. The amount of insurance in the master policy is $1,000; in the certificate it is $1,500. The effective date of the master policy is December 1,1928; the effective date of decedent’s coverage on the face of the certificate is January 1, 1953. There is a provision in the master policy for the issuance of a certificate setting forth a statement of the protection to which the insured is entitled.

The Illinois Appellate Courts for three different districts, while not having the precise issue before them, have determined the rights of an insured under a policy of group insurance by treating both the master policy and the certificate as integral parts of the contract. Thompson v. Metropolitan Life Ins. Co., 318 Ill. App. 235 (Second Dist.-1943); Kolodziej v. Metropolitan Life Ins. Co., 307 Ill. App. 657 (First Dist.-1940); Baker v. Prudential Ins. Co., 279 Ill. App. 5 (First Dist.-1935); Wisz v. Metropolitan Life Ins. Co., 277 Ill. App. 343 (First Dist.-1934); Hamson v. Travelers’ Ins. Co., 274 Ill. App. 80 (Third Dist.-1934). As we have heretofore stated, in the absence of a provision to the contrary in the master policy, we should apply the law of Illinois and under that law we are of the opinion that the certificate is a part of the contract.

We must next determine whether the date of execution of the master policy or the date of the delivery of the certificate is pertinent to a selection of the controlling statutory provision. The instant contract of term insurance was renewable annually. It is clearly the law in this State that a contract of annually renewable insurance forms a new contract at each renewal for the purpose of incorporating into the contract the statutory provisions enacted after the creation of the original contract relationship. Dickirson v. Pacific Mutual Life Ins. Co., 319 Ill. 311 (1926). See also Klinke v. Great Northern Life Ins. Co., 318 Ill. App. 43 (Fourth Dist.-1943). It is apparent, therefore, that neither the date on which the master policy was executed, nor the date on which the certificate was issued to decedent, is of any consequence in determining whether or not a specific statutory provision is applicable to tbe contract in question.

Prior to 1947, tbe Illinois courts have held that where the insured under a group policy died within thirty-one days after the termination of his employment without making application to convert to an individual policy, his coverage under the group policy terminated simultaneously with the termination of his employment. Crutchfield v. Continental Assurance Co., 336 Ill. App. 411 (Fourth Dist.-1949); Howard v. Aetna Life Insurance Co., 329 Ill. App. 248 (First Dist.-1946).

In 1947 our insurance code was amended. The following is a summary of the changes made that are relevant to this case. Chapter 73, Ill. Rev. Stats. 1955, sec. 843 (k) requires a policy of group life insurance issued in Illinois to contain a provision allowing a claim to be payable under the policy to an individual entitled under sec. 843(d) to convert to an individual policy, whether or not that individual has made application to convert, so long as the claim is made within the period during which he would have been entitled to have an individual policy issued. Sec. 843(d) allows a thirty-one day period of grace for conversion from group to individual insurance after the termination of the employment or membership of the individual in the group insured.

Section 842, subsection 2(c) states that life insurance covering the members of a labor union is group insurance within the meaning of the Illinois Insurance Code. The word policy as used in the code means an insurance policy or contract and includes certificates of fraternal benefit societies, assessment companies, mutual benefit associations, and burial societies. (Ch. 73, Ill. Rev. Stat. 1955, sec. 614(n).)

Defendant argues that since the group policy was issued in December, 1928, which was prior to the effective date of the statute, its provisions would not be applicable to decedent’s insurance. As we have heretofore stated, the law of Illinois affecting a contract of annually renewable term insurance is to the contrary. As to holders of group insurance certificates delivered in this State and issued under a master policy of annually renewable term insurance, the annual renewal of the master policy forms a new contract of insurance each year for the purpose of incorporating into that contract any statutory provisions relating to group insurance enacted prior to the date of renewal. Decedent’s membership in the union was terminated by resolution of the local on July 6,1954. Under the provisions of the insurance act as amended in 1947, defendant was required to maintain the insurance policy upon the decedent for at least thirty-one days after this date. Decedent died on July 15, 1954. We conclude, therefore, that he was covered by the terms of the policy.

Judgment of the trial court is affirmed.

Judgment affirmed.

SCHWARTZ and McCORMICK, JJ., concur.