text:
    McCray v. Illinois Central Railroad Co.
    Gen. No. 46,981.
    First District, First Division.
    January 7, 1957.
    Released for publication February 11, 1957.

      Herbert J. Deauy, Robert S. Kirby, and William F. Bunn, all of Chicago, for appellant; J. H. Wright, of Chicago, of counsel.
    Michael A. G-errard, and Sehwartzberg & Barnett, both of Chicago, for appellee; Michael A. Gerrard, and Mark T. Barnett, both of Chicago, of counsel.
   JUDGE BURKE

delivered the opinion of the court.

Charles McCray sued the Illinois Central Railroad Company for damages under the provisions of the Federal Employers’ Liability Act. A trial resulted in a verdict finding the defendant guilty and assessing damages in the sum of $36,000. Judgment was entered upon the verdict. Upon denial of the defendant’s motions for judgment notwithstanding the verdict and in the alternative for a new trial, defendant appealed.

At the time of the trial plaintiff was 61 years old. In 1917 he commenced working at the Burnside Yards of the defendant, the entrance to which is located at 95th Street and Cottage Grove Avenue, Chicago. On Friday, February 9, 1951, he was employed in the capacity of a truck hand and his duties consisted in repairing and building railroad car trucks upon which sits the body of a railroad passenger car. He was then 57 years of age. After working that day until 4:30 P.M., he left the shop for home. The shop is located about two blocks from the shanty at the entranceway to the yard. "When he left the- shop at 4:30 P.M., he observed ice over the entire yard. From the shop to the gate he observed that the grounds of the defendant were covered with ice, which was also present on the box cars and buildings. As he was walking the two blocks to the gate he observed cinders on the road and saw men spreading cinders. These men were employees of the defendant. While walking from the shop to the gate he was able to see where he was walking. When he reached the shanty at the gate and entranceway to the defendant’s premises he observed ice over the entire sidewalk where it begins at the gate and the presence of this ice continued on the sidewalk all the way down to 95th Street. He observed ice on the road adjacent to and parallel with the sidewalk. Cinders were spread all over the ice on the road. The road and sidewalk are on the defendant’s premises. Cottage Grove Avenue runs in a northerly and southerly direction. The roadway and walk from the Burnside Yards run northerly to where 95th Street and Cottage Grove Avenue intersect. The road and sidewalk run in a northerly direction from the gate. They are the only method of ingress or egress to the yard. The road is just east of the sidewalk.

As he passed through the gate he observed the crossing gate to he up. He testified that as he was walking through the gate he saw ice all over the sidewalk and no cinders. As he continued walking down the sidewalk he saw no cinders there. He fell on the sidewalk after walking on it about 15 feet. He knew that the area just to the west, adjacent to and parallel with the sidewalk was made up of cinders. He said that although the sidewalk was covered with ice down to 95th Street he did not fall again; that there was no salt on the sidewalk; and that he could see the ice as he was looking down all the time. He did not examine the area where he fell. He testified that there were no cinders on the sidewalk that he observed as he was coming to work in the morning hut that he did not fall that morning. He had never, prior to 1951, fallen on this sidewalk nor, as he was walking down the sidewalk on February 9,1951, did he see any other man fall on the sidewalk. On February 9, 1951, he saw no cinders or ashes on the walk. In the eight years prior to 1951, he testified that in icy weather the defendant would put cinders on the sidewalk after first putting cinders on the road because the cars and trucks had to come up the road bringing materials to the storehouse buildings. Prior to 1951, in icy weather, plaintiff testified that when going to work in the morning he would see cinders on the sidewalk if the men had been spreading cinders long enough to have first fixed the road. He testified that there was so much ice because it rained on February 9, 1951; that there was ice before he went to work; that about noon it commenced raining and then freezing weather set in; and that after it rained the men started to put down cinders. A weather bureau report introduced by the plaintiff reveals that the temperature had been extremely cold; that on February 6, 1951 there was .44 inches of water and 3.8 inches of snow. Some snow, but very little, fell thereafter until the 9th. The temperatures were extremely cold on February 7, 8 and 9th. He saw no cinders or ashes on the walk.

Dominic Taglioli, called by plaintiff, testified that he was employed by the defendant at the Burnside Yards; that he knew the plaintiff; that he saw plaintiff as the latter was going home from work on February 9, 1951, which was a cold day; that there was snow on the ground with cinders scattered on the walk and the road; that the road and walk were icy, had snow and were slippery in certain spots; that the only way.into and out of the Burnside Yards is the entranceway at Cottage Grove Avenue and 95th Street; that the one sidewalk leading out of the yards is about 4 feet wide; and that its condition as he was leaving consisted of snow and cinders with here and there a few icy spots. He stated that plaintiff fell down and that he, the witness, assisted him to his feet. At that time the witness was accompanied by his brother-in-law, Frank Crocilla. On cross-examination, the witness testified that he reached the gate at approximately 4:45 P.M.; that plaintiff was 10 or 15 feet ahead of him and was walking with a limp; that the cinders he observed on the sidewalk wfere scattered and continued from the top of the gate all the way down to 95th Street; that cinders had been scattered on the roadway from the truck shop to the gate and were in the street; and that they had been placed there earlier that morning as he had observed them as he went to work. He testified further that he had no difficulty in seeing where he was going and he conld distinguish between the cinders, the ice and the snow.

Frank Crocilla testified that he waá employed as a blacksmith’s welder by the defendant at the Burnside Yards; that he worked in the same department with plaintiff; and that he left work about 4:30 P.M. and while it was dark, he could see where he was going. He identified an exhibit showing a picture of the sidewalk leading out of the yards and testified that it was the only way you could get into or out of the yards, that the sidewalk on February 9, 1951, was icy and slippery although he walked on the sidewalk all right. He testified on direct examination that he did not remember whether the sidewalk had any cinders or sand on it as he was walking down. As he left the shop, walked to the north gate and started down the sidewalk he had no trouble seeing where he was going.

Espard Brown, called by plaintiff, testified that his occupation was that of a welder for the defendant at the Burnside Yards; that he was working there on February 9, 1951; that he quit work at 4:30 P.M. and rode in an automobile from the shop past the sidewalk leading out of the premises and down to 95th Street. He did not see the mishap but testified that he paid attention to the sidewalk they were coming down and that it was quite slippery. On cross-examination he said he and two other men were riding from the truck shop to Cottage Grove Avenue in .an automobile and that during this ride he did not see any cinders on the road or around the gate as he was not looking for them; and that as he came down the. road he was not looking over on the sidewalk and does not know the condition of the sidewalk as it existed on February 9, 1951.

John Bartus testified for the defendant that he began working for the defendant on June 4,1906 at the Burnside Shops; that on February 9,1951, he was a foreman in the store department; that it was his duty to keep the road, sidewalk and entranceway to the Bnrnside Shops clear in the winter; that in case of a big snow a snowplow waS used on the roads and sidewalk; that if they were icy, cinders or salt were spread; that the manner of spreading the cinders or salt consisted of the nse of vehicles and men who would come down on the east side of the entranceway to the yards, spreading cinders on the east half of the roadway and then return to the shanty spreading cinders on the west half of the roadway and the sidewalk. He said that no records were kept as to the date cinders were put down. Henry Washington, a witness for the defendant, testified that he was employed by the defendant as a truck hand at the Burnside Shops; that he knew and worked with the plaintiff since 1922; that he observed the plaintiff walking with a limp from 1948 to 1950; that plaintiff’s use of a sledge hammer was restricted; and that plaintiff complained to him about pains in the joints. He did not witness the accident.

Following his mishap on Friday the plaintiff went home on the streetcar. He took a bath and the leg “felt sore.” After dinner he went to bed and “an awful pain hit” his right leg. He “stayed around the house until Monday” and “figured” that by Monday the pain would be less. He said that it got worse and that he went to the Illinois Central Hospital on Monday, February 12. At the hospital he reported that he fell and hit the leg. He remained at the hospital until February 21. There was testimony as to the medical treatment he received from then until the trial. There was evidence that prior to February 9, 1951, he had been suffering from arthritis which affected both of his legs. Physicians testified in support of the respective positions of the parties as to the physical condition of the plaintiff.

The defendant asserts that there was no substantial evidence of negligence presented to submit that question to the jury. In Urie v. Thompson, 337 U. S. 162, the court said (182) that “We recognize, with respondent, that the Federal Employers’ Liability Act is founded on common law concepts of negligence and injury, subject to such qualifications as Congress has imported into those terms.” Plaintiff insists that he established negligence on the part of the defendant by substantial and competent evidence. The defendant cites cases involving allegations of negligence caused by the accumulation of ice and snow. The cases cited by both parties cannot be understood without a recitation of the factual situation in each case. The defendant owed to its employees the duty of providing a reasonably safe place for the carrying on of their work and of ingress and egress to that place. The sidewalk was the proper place for the plaintiff to walk while leaving the yard. There was evidence that no cinders or ashes were spread on the walk. He was walking on the sidewalk when he fell. The sidewalk was the method of egress provided by the defendant for the use of pedestrians. The temperatures had been extremely cold since February 6, 1951. There was ice on the sidewalk in the morning when plaintiff went to work. It rained just before noon. After it rained employees of the defendant started to spread the cinders. Plaintiff testified, “I guess it was 14 below that day.” There was testimony that the cinders were also spread on the walk. In our opinion the court was right in submitting the issue of negligence to the jury. The defendant had notice of the condition of the walk. In view of the fact that all of the employees were required to leave the defendant’s premises by way of that exit, the jurors, acting as reasonable men and women, would have the right to say that the failure to spread cinders or other material on the walk constituted negligence. We cannot agree with the statement in some of the cases that to allow recovery would either require the railroad company to cease operation when there was ice or to compensate everyone who might he injured. It would not he unreasonable to require the railroad to spread cinders or other material within a reasonable time after the icy condition became apparent.

Defendant asserts that the sole proximate cause of plaintiff’s fall was his own gross lack of care, pointing out that he was familiar with the area about the entrance to the premises; that as he walked he was able to see where he was walking; that he saw cinders spread all over the ice on the road to the right of him; that he knew the ground to the left of the sidewalk was made up of cinders; and that he saw the ice all over the sidewalk. Defendant points out that plaintiff voluntarily and knowingly took the one way fraught with danger and risk of injury to himself, although the risk of injury was obvious and such that a man of ordinary prudence would have avoided. Our remarks on the question of liability apply with equal force to this point. The road was used primarily for vehicular traffic. It is interesting to note that other employees also used the walk. We cannot say that the jury acted unreasonable in rejecting defendant’s theory that the sole proximate cause of plaintiff’s fall was his own gross lack of care.

Defendant maintains that the court erred in allowing plaintiff to contradict jand impeach his witness, Dominic Taglioli. On direct examination the witness testified that there were present on the sidewalk snow and cinders with a few small icy spots here and there. On cross-examination, the witness admitted observing cinders on the sidewalk as he went to work the morning of February 9, 1951. This testimony was consistent with his testimony on direct examination. On redirect examination, under the claim of surprise and for the ostensible purpose of awakening the witness’s conscience, and over the objections of the defendant, the court permitted the witness to be impeached and contradicted by use of an alleged prior inconsistent written statement. As a general rule, a party to a lawsuit voluntarily calling a witness to the stand vouches for his credibility and cannot impeach him except as that result may be incidentally accomplished by proving a state of facts differing from that sworn to by the witness. People v. Michaels, 335 Ill. 590; Chicago City Railway Co. v. Gregory, 221 Ill. 591. If a party’s witness unexpectedly gives surprising testimony at variance with an earlier statement, the party calling the witness has the right to call the attention of the witness to such statement for the purpose of refreshing his memory or awakening his conscience. Finch Bros. v. Betz, 134 Ill. App. 471; People v. Rongetti, 344 Ill. 278, 284; People v. Quevreaux, 407 Ill. 176. In People v. Michaels, 335 Ill. 590, the court said (592):

“The rule is, that when a witness unexpectedly gives testimony against the party calling him, such party has the right to examine him and by such examination show that the witness is giving unexpected testimony, and to specifically call the attention of the witness to former statements made by him for the purpose of refreshing his memory or awakening his conscience and cause him to relent and speak the truth if he was lying. If, however, the witness denies the alleged statements the party calling him must be concluded by his answers, and cannot show, either by the written statements of the witness or by other witnesses, that the witness did, in fact, make those statements, either for the purpose of impeachment or as original evidence of the facts sought to be proved. He may, however, prove by other witnesses the facts sought to be proved by the witness giving such unexpected testimony.”

The plaintiff had concluded his direct examination of Taglioli wherein the alleged damaging testimony was contained. He did not attempt to claim surprise until the completion of the cross-examination. It is apparent that plaintiff did not consider himself surprised by the testimony of the witness as to the presence of the cinders at the conclusion of the direct examination. We are of the opinion that the court erred in allowing the plaintiff to contradict and impeach Taglioli.

Espard Brown, a witness called by the plaintiff, testified that on leaving work on February 9, 1951, he had occasion to go past the shanty and sidewalk leading out of the premises and that he paid attention to this sidewalk as he was coming down and out of the premises and that it was quite slippery. Thereupon counsel for the plaintiff commenced questioning the witness concerning a statement given by him to counsel in February, 1954, and a conversation the witness had with counsel on the night before he testified. Plaintiff’s counsel, claiming surprise at the answer of the witness concerning the sidewalk, asked permission to show that there was another written and oral statement made to him in this matter. Following additional questioning of the witness concerning the authenticity of the written statement, plaintiff’s counsel was permitted to ask the witness whether or not the statement refreshed the witness’s recollection as to the condition of the sidewalk. There was no foundation to the claim that the witness needed his recollection refreshed. He had testified concerning the condition of the sidewalk. There was no inconsistency between the testimony given by the witness before the claim of surprise and the testimony given by the witness in response to questions based upon the alleged impeaching written statement. When a witness merely fails, when called, to testify in favor of the party calling him, as he was expected to do, but says nothing which tends to aid the case of the adversary party, he cannot be cross-examined or impeached by the party who calls him. See Randazzo v. United States, 300 F. 794; Marugg v. Kells, 146 Ill. App. 394. We find that the court erred in allowing Brown to be examined by the plaintiff concerning his alleged inconsistent written statement.

The defendant says that the trial court abused its discretion in unduly restricting defendant’s right of cross-examination of the plaintiff’s medical witnesses. The plaintiff had been examined and treated by the physicians who were in the employ of the defendant, and it was only from their testimony that his condition, history and treatment received at the time of his injury could be put into the record and described to the jury. The latitude to be allowed in cross-examination rests largely within the discretion of the court. We cannot say that the discretion was abused.

The defendant complains that the court erred in giving plaintiff’s instruction P — 1. This instruction, in effect, informed the jury that if they found the facts set out in the instruction, the finding of such facts constituted negligence as a matter of law. In so doing the court invaded the province of the jury. On a retrial the instruction should be modified so as to remove that objection. The defendant states that the court committed reversible error in giving plaintiff’s instruction P — 8 and in refusing to give defendant’s tendered instruction D — 12. The given instruction tells the jury to award damages for future losses without restricting such future losses to their “present value.” The tendered instruction, D — 12, reads:

“The award of damages for loss of future earnings, if any, must be reduced to its present cash value and adequate allowance must be made for the earning power of money, and future earnings should be calculated on the length of time the plaintiff would expect to be employed rather than on the time he would expect to live. You are entitled to consider all factors or circumstances such as illness, retirement either compulsory or voluntary, the nature and hazards of the employment of the plaintiff, accidents, the possibility of obtaining other suitable employment, death, or other like matters which might tend to increase or decrease the pecuniary loss.”

In Chesapeake & Ohio Ry. Co. v. Kelly, 241 U. S. 485, the court said: “. . . the question of the proper measure of damages is inseparably connected with the right of action, and in cases arising under the Federal Employers’ Liability Act it must be settled according to general principles of law administered in the Federal Courts.” Any damages for future loss of earnings must be reduced to their “present value.” See Southern Pacific Co. v. Gastelum, 297 P. 875; Gulf, Colorado & Santa Fe Ry. Co. v. Moser, 275 U. S. 133; Thompson v. Camp, 163 F.2d 396; Kennedy v. Boss, 213 Ill. App. 446; Allendorf v. Elgin, Joliet & Eastern R. Co., 8 Ill. 2d 164. The defendant does not contend that elements of damage, such as pain and suffering, physical disfigurement, etc., must be reduced to present values, and concedes that the decisions point out that reduction is not required except with regard to future loss of earnings. Plaintiff states that the defendant could have introduced mortality and actuarial tables. It was not incumbent on the defendant to introduce evidence of plaintiff’s damages. Plaintiff states that the case was tried five years after the occurrence and that at that time the jury could find from the evidence that he had suffered the loss of $18,000 in earnings, and that by their verdict the jury awarded the plaintiff what amounted to an additional five years’ pay. Plaintiff overlooks that the jury were required to consider what mitigating effect, if any, to give to contributory negligence, as required by federal law, and that a jury is not allowed to assess future loss of earnings to the date a man may die rather than on how long they feel he'may reasonably have been expected to work in the future. We agree with defendant that the court committed reversible error in giving instruction P — 8 and in refusing to give defendant’s instruction D — 12.

The defendant argues that the court erred in giving plaintiff’s instruction P — 10. We agree that the court erred in giving this instruction. Certain language therein authorized a recovery generally without limiting the negligence to that charge in the complaint. There was no error in refusing to give defendant’s instruction D — 13. The subject matter of the instruction was covered by defendant’s given instruction D — 14.

For the reasons stated the judgment of the Superior Court of Cook county is reversed and the cause is remanded for a new trial.

Judgment reversed and cause remanded for a new trial.

NIEMEYER, P. J. and FRIEND, J., concur.


source: Caselaw Access Project

author: JUDGE FRIEND

license: Public Domain

text:
    Sam Cutler, et al., Appellees, v. Leader Cleaners, Inc., Appellant.
    Gen. No. 46,984.
    First District, First Division.
    January 7, 1957.
    Released for publication February 11, 1957.

      Lawrence J. West, of Chicago, for appellant.
    Korean Movsisian, and Felix F. Gordon, both of Chicago, for appellees.
   JUDGE FRIEND

delivered the opinion of the court.

Defendant appeals from an order of the Municipal Court refusing to vacate a judgment by confession based on a lease for certain store premises in the City of Chicago.

Under date of December 5,1951 plaintiffs, as lessors, entered into a written lease with defendant, as lessee, for store premises at 4162 Archer Avenue, Chicago, for a term of five years commencing January 1, 1952 at a rental of $225 per month. Paragraph 15 of the lease contained a power of attorney to confess judgment “for the amount of rent which may be then due, by virtue of the terms hereof, or of any extensions or renewals hereof, or by virtue of any holdover after the termination hereof, and which may be in default, as aforesaid, together with the costs of such proceedings, and a reasonable sum . . . for plaintiffs’ attorney’s fees in or about the entry of said judgment . . .” Paragraph 24 of the lease reads as follows: “Anything in the printed portion of the within lease to the contrary notwithstanding, no forfeiture of this lease shall be declared or any legal action taken to enforce any breach on the part of the lessee, unless such breach shall continue for a period of five days after receipt of written notice thereof by the lessee.”

On October 7, 1955 plaintiffs had judgment by confession for rent for the months of August, September, and October of 1955, and attorney’s fees, based on a statement of claim which contained no allegation as to the receipt by defendant of written notice of default, as provided in paragraph 24 of the lease. On defendant’s motion, supported by its petition, that judgment was vacated December 1, 1955. Thereafter, on the same day, plaintiffs filed an amended statement of claim, on which the court entered a second judgment by confession in the same amount as the first judgment. The amended statement of claim was identical with the original, except that it contained an additional allegation that “on September 22, 1955, plaintiffs made a written demand for the past due rent.” Again, on defendant’s motion, supported by petition, the second judgment was vacated February 24, 1956, and on the same date plaintiffs filed a second amended statement of claim which differed from the prior one in that it added a new paragraph as follows: “4. On September 22, 1955, plaintiffs served upon defendant a written notice that defendant had breached its lease in that it had failed to pay rent of $450 due on said date; and, again, on the 4th day of October, 1955, plaintiffs served upon defendant a written notice that defendant will be held liable for all rentals accrued to date and for all rentals to accrue, as will more fully appear by the Affidavit of Korean Movsisian attached hereto and made a part hereof.” The affidavit of Korean Movsisian, one of plaintiffs’ attorneys, recited that on September 22,1955 a certain “Landlord’s Five Day Notice” was served on defendant, and that on October 4,1955 “a second written notice was served upon Leader Cleaners, Inc.” Based on plaintiffs’ second amended statement of claim, the court, on February 24, 1956, entered a third judgment by confession in the same amount as previously. As it had done twice before, defendant on March 5, 1956, filed a motion, supported by petition, to either vacate that judgment for want of jurisdiction or, in the alternative, to open the judgment with leave to plead and file a counterclaim. Thereafter, on March 22, 1956, defendant moved: (1) to withdraw its motion to vacate or, in the alternative, to open the judgment by confession; (2) to withdraw the petition theretofore filed by it in support of said motion; (3) to vacate the judgment for want of jurisdiction. The court allowed the defendant to withdraw its last previous motion and petition in support thereof but refused to vacate the last judgment by confession. It is from the last part of that order denying defendant’s motion to vacate the judgment by confession, entered February 24, 1956, that this appeal is prosecuted.

We are asked to decide whether the factual question of receipt of the required written notice of breach of the lease, as provided by paragraph 24 thereof, can be the subject matter of a judgment by confession. Defendant argues that the power of attorney cannot be exercised “unless such breach shall continue for a period of five days after receipt of written notice thereof by the lessee,” as provided in paragraph 24, and that the fact that such notice was received is dehors the written lease and the power of attorney, and therefore cannot be confessed.

Hymen v. Anschicks, 270 Ill. App. 202, is relied on as being decisive of the question here presented. In that case defendant was a tenant of plaintiff, under a written lease demising the premises for a term commencing October 1,1930 and running to September 30, 1931; the judgment was for rental for May, June and July 1932, which judgment plaintiff affirmed was authorized under the terms of the lease which provided for an extension or holdover as follows: after providing that the term should expire September 30, 1931, the lease said: “ ‘and from year to year thereafter, unless and until this lease shall be terminated at the date last above mentioned, or at a like date in any subsequent year thereafter, by the giving by either party to the other of not less than sixty (60) days’ notice in writing of such termination, which said notice shall be delivered in person or sent by registered mail, when to Lessor, at the place stipulated herein for the payment of rent, and, when to Lessee, at the address of the demised premises.’ ”

The power of attorney to confess judgment authorized judgment against the lessee “ Tor the amount of rent which may be then due, by virtue of the terms hereof, or of any extensions or renewals hereof, or by virtue of any hold-over after the termination hereof, and which may be in default, as aforesaid.’ ” The court observed that if the power existed to confess judgment for rental for a period subsequent. to September 30, 1931, it would be by virtue of the foregoing provisions of the lease, and then held that, “following Weber v. Powers, 213 Ill. 370, the power to confess judgment for rent for a period after the date stated in the lease as the termination, is invalid. This was the material question in the "Weber ease. It was said there that it was the settled doctrine of this court that the authority to confess judgment without process must be clear and explicit, and must be strictly pursued; and that, if there is no power to enter the appearance of the debtor and confess the judgment, such judgment is a nullity, binds no one, and may be attacked collaterally for want of jurisdiction in the court to render it. The crux of the decision was, that where a lease has expired by its terms, the character of the subsequent tenancy, if any, raises a question of fact, and that the power to confess judgment is not a power to confess such a fact but only to confess such facts as appear from the lease. The court said: ‘The fact of a renewal, or the fact of a holding over, is a fact dehors the written lease and the terms of the written power of attorney, contained in the lease. A judgment by confession must be for a fixed and definite sum, and not in confession of a fact, that can only be established by testimony outside of the written documents, required by' the statute to be filed in order to enter up a judgment by confession.’ ” The Appellate Court then decided that what was said in Weber v. Powers was applicable to the Hymen case, and concluded as follows: “By the terms of the lease the lessee had the option, by giving-60 days’ notice in writing, to terminate the lease on September 30, 1931; the power of attorney did not authorize a confession that such notice had not been given. This was a question of fact upon which defendant was entitled to a trial. [Citing Weiss v. Danilczik, 262 Ill. App. 551.]”

Relying on Hymen v. Anschicks and Weber v. Powers, defendant takes the position that whether notice of default was received by defendant is a fact not capable of being confessed under the power of attorney contained in the lease, and that this fact can be established only by testimony outside the written documents required by statute to be filed in order to enter up a judgment by confession. Plaintiffs’ reply to this contention is tbat tbe provision in tbe lease requiring a five-day notice of default before tbe commencement of legal proceedings was merely a condition precedent; tbat sucb a condition does not in itself nullify or void a confession by judgment; and tbat if tbe statement of claim alleges facts to show tbat tbe condition bas been complied witb, tbe confession is valid. In tbeir second amended statement of claim, plaintiffs alleged tbat tbey bad served a written notice of breach of tbe lease. Defendant argues tbat tbe allegations of tbe second amended complaint tbat plaintiffs “served” upon defendant a written notice are inadequate because plaintiffs failed to further allege tbat such demand was received by defendant. This is merely a play on words; proper service of notice implies receipt thereof. Webster’s New International Dictionary (2d ed., 1949) defines “serve” as: “24. Law. a To bring to notice, deliver, or execute, actually or constructively, in sucb manner as tbe law requires; to put into effect; as, to serve a summons or process is to deliver it, or to read it so as to give due notice, or both, as required by law; to serve an attachment or execution is to levy it by seizure or taking possession, b To make legal service upon (a person named in a writ, etc.).” “Receive” is defined as: “1. To take, as something tbat is offered, given, committed, sent, paid, or tbe like; to accept; as, to receive payment, a gift, a letter, homage. ... 7. To gain tbe knowledge of from some communication; as, to receive news or a warning; . . .” In legal contemplation of tbe term, a statement tbat defendant was “served” witb notice means tbat be “received” it.

In tbe Hymen case tbe lease bad terminated and could be revived only by a sixty-day notice in writing; and tbe court merely held tbat, where a lease bad expired by its terms, tbe character of subsequent tenancy, if any, raised a question of fact to be established by testimony outside the written documents, and the power to confess judgment was not a power to confess such a fact, but only to confess such facts as appear from the lease.

We think that the second amended complaint sufficiently alleged service of notice of default before proceedings were instituted, and justified the court in entering judgment by confession pursuant to the power of attorney in the lease. Accordingly, the judgment of the Municipal Court is affirmed.

Judgment affirmed.

NIEMEYER, P. J. and BURKE, J., concur.


author: JUDGE BOETH

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Walter A. Clinnin and Charles Cohn, Defendants, Charles Cohn, Defendant-Appellant.
    Gen. Nos. 10,078, 10,079, Consolidated.
    Third District.
    January 17, 1957.
    Rehearing denied February 5, 1957.
    Released for publication February 5, 1957.

      George M. Crane, of Chicago, for defendant-appellant, Charles Cohn.
    Joseph L. Rosenberg and Hilmer C. Landholt, both of Decatnr, special attorneys for the People.
   JUDGE BOETH

delivered the opinion of the conrt.

These two cases are before this court after being consolidated for purposes of appeal. They involve identical questions upon identical sets of facts. All references in this opinion to one case likewise apply to the other. Because counsel for plaintiff-appellee deemed it necessary to file a supplemental abstract and therein claimed certain inaccuracies and omissions in appellant’s original abstract, we have examined the original records filed herein.

From those original records it appears that on April 14, 1955, in Case No. 13865 and Case No. 13866 of the Circuit Court of Macon County, Walter A. Clinnin was indicted in the first case, for forgery of the signature of a public officer and in the second case, for forgery. Bail was fixed at $2,000 in each case and a capias was issued in each case. These capiases were served on May 9, 1955. From the report of proceedings it appears that the defendant was present in open court on that day with his attorney and entered into a personal open court recognizance without security, it appearing that he was already on bond with security under two prior indictments.

Subsequently, on July 1, 1955 Clinnin again appeared in open court and leave was granted to his counsel to withdraw and the Public Defender was named to represent him. Thereupon the court informed him that security on the bonds would have to be furnished and the following colloquy took place between the defendant, the court, appellant Charles Cohn and the special states attorney:

“Defendant: I have a bondsman here.
The court: Have him come forward. Is this satisfactory, Mr. Bosenberg?
Mr. Bosenberg: He qualified on the previous case, and as I understand is a licensed bondsman.
Bondsman (Charles Cohn:) Yes sir.
The court: This is Charles Cohn?
Mr. Rosenberg: Yes, this is the same gentleman.
The court: Is this satisfactory?
Mr. Rosenberg: Yes sir. It appears to be in effect until August 1st, 1955.
The Court: As I see it, the obligation on this bond continues whether they get a new license or not.
(Thereupon, defendant entered into recognizance in open court, in the sum of $2,000, with Charles Cohn as surety.)”

The common law record so far as material to the issue involved in this appeal, reflects the following:

“40th Day May Term, 1955
Jnly 1,1955
Friday Morning, July 1, 1955
Court met pursuant to adjournment
Present as on 1st day of term.
13865
The People v. Walter A. Clinnin
Forgery of the Signature of a Public Officer
It is ordered by the court that this cause be and it is hereby alloted for trial on August 8,1955 at 9:30 A.M.
And the said defendant Walter A. Clinnin together with his surety Charles Cohn and each of them admit and acknowledge each for himself to owe and be indebted unto the People of the State of Illinois in the sum of Two Thousand Dollars ($2,000) lawful money of the United States and to be levied of their respective goods and chattels, lands and tenements if default be made in the following conditions, to-wit: That said defendant Walter A. Clinnin shall personally be and appear before the Circuit Court of Macon County now being holden in the Court House in the city of Decatur from day to day and from term to term and from day to day of each succeeding term and abide the final order and judgment of this court and not depart the same without leave thereof, then this obligation to be void, otherwise to be and remain in full force and effect.”

There also appears in the common law record a printed form of “Recognizance in Open Court” in the body of which, Walter A. Clinnin is named as principal and Charles Cohn as surety but which is signed:

“Walter A. Clinnin
Principal
The Summit Fidelity and Surety Co.
Charles Cohn
Attorney in Fact”

This instrument bears the approving signature of the Trial Judge under date of July 1, 1955 and bears the file mark of the Circuit Clerk under the same date. There was also filed on this date with the Circuit Clerk, a power-of-attorney from The Summit and Fidelity Surety Co. to Charles Cohn authorizing execution of a bail bond on behalf of Walter A. Clinnin for not to exceed $2,000.

On August 8, 1955, the trial date, the defendant failed to appear. The report of proceedings and the common law record both show that Clinnin was three times called and that Charles Cohn was three times ordered to produce Clinnin whereupon the recognizance of Clinnin and Charles Cohn was ordered forfeited and a scire facias ordered to issue against both, returnable on September 12, 1955. The scire facias as issued, recites the giving of a recognizance by Clinnin and Charles Cohn on July 1, 1955 for $2,000, “which said recognizance was duly entered of record in said Court on the day and year first aforesaid,” recites the forfeiture and directs both to show cause, on September 12, 1955, why such forfeiture should not be made absolute. The scire facias was served on Charles Cohn personally on August 17, 1955.

On September 12, 1955, Charles Cohn appeared by-attorney and filed a verified motion for continuance. No mention is made in this verified motion of The Summit and Fidelity Surety Co., or that Charles Cohn was agent or attorney-in-fact for it. On the other hand the motion alleges among other things:

“2. That the said Walter A. Clinnin was admitted to bail on the 1st day of July, 1955, with Charles' Cohn as surety on his bond, which said bond was set at Two Thousand Dollars ($2,000).
4. That thereafter the recognizance of Two Thousand Dollars ($2,000) was declared forfeited and the defendant, Walter A. Clinnin, and Charles Cohn, as surety, were ruled to show cause by September 12, 1955, why the forfeiture of the bond should not be made absolute.
10. That if granted a continuance until November 14, 1955, Charles Cohn respectfully represents that he will produce the body of the defendant in open court on said day; or produce in open court positive evidence of the death of the defendant; or he will appear in open court and pay the judgment and costs on the bond forfeiture.”

The motion was granted and the cause continued to November 14, 1955.

On November 14, 1955, present counsel entered his appearance for Charles Cohn and filed an answer to the writ of scire facias. The People then filed a motion to strike the answer and the matter was set for hearing on November 16, 1955. The answer of Charles Cohn alleged that in entering into the recognizance of July 1, 1955 he was acting as agent for The Summit Fidelity and Surety Co., and not in his individual capacity and that the company is the proper party defendant and not himself as an individual. The motion to strike this answer is based upon the fact that the record shows on its face that Charles Cohn individually entered into an open court recognizance and that therefore the answer does not state a defense. At the hearing on this motion counsel for Charles Cohn sought to have produced, the bonds given in the two prior indictments as well as those given before a Justice of Peace, to show the manner in which they had been executed. This motion was denied. The court then examined the record, held that the answer did not set forth a defense, sustained the motion to strike, denied leave to file a further answer and entered an order showing the cause heard on the record and judgment for $2,000 and costs. To reverse that order this appeal was perfected.

Counsel for appellant Cohn makes two principal contentions, (1) that there is a fatal variance between the scire facias and the recognizance, and (2) that the answer raised a question of fact, namely that Cohn did not intend to bind himself personally, to prove which, he was entitled to show that all prior bonds had been executed by Cohn as attorney-in-fact for The Summit Fidelity and Surety Co. Both of these contentions are bottomed on the assumption that there is no record of a recognizance entered into by Cohn individually; that the only record of a recognizance that can be considered is the written one filed and approved July 1,1955 in the body of which Cohn is named as an individual and which is signed by Cohn as attorney-in-fact for The Summit Fidelity and Surety Company. Hence counsel for appellant Cohn insists in both his brief and reply brief that the answer set up the defense of nul tiel record which is a proper defense to a scire facias action.

Certain principles of law applicable to a proceeding of this kind are well established. A suit of this kind is not a suit upon a writing obligatory. It is a suit upon a record. The record imports absolute verity. A recognizance, when entered of record cannot be averred against — it is truth itself. People v. Watkins, 19 Ill. 117; Welborn et al. v. People, 76 Ill. 516; Peacock v. People, 83 Ill. 331. A plea of nnl tiel record is a proper plea where there is a variance between the scire facias and the original record. If the scire facias describes a record different from the true record, that fact should be brought to the attention of the court by a plea of nul tiel record. Slaten v. People, 21 Ill. 28; Farris v. People, 58 Ill. 26.

The case of McNamara v. People, 183 Ill. 164, 55 N. E. 625, is probably the leading case in Illinois dealing with procedure and pleadings in an action of this character. This case involved an open court recognizance which had been forfeited. It was there held that the scire facias performed the dual function of process and a declaration; that a scire facias which shows a recognizance properly entered into by the principal and his sureties, a default, judgment of forfeiture and the issuance of the writ, was legally sufficient. The scire facias in the case at bar conforms to these requirements. In McNamara v. People, supra, it was further held that pleas of non est factum, nil debet, and nul tiel recognizance were not good pleas, the basic reason being, that a defendant could not dispute the record by saying that it was not his deed or that he was not indebted or that there was no such recognizance. The case is further authority for the principle that where a plea of nul tiel record is filed the case, from a procedural standpoint, is determined by the court by examination of the record. To the same effect is Petty v. People, 118 Ill. 148, 8 N. E. 304.

Counsel for appellant strongly relies upon Neil v. Morgan et al., 28 Ill. 524, Vincent v. People, 25 Ill. 500, and O’Brien v. People, 41 Ill. 456. In Neil v. Morgan et al., supra, a bond was signed by two sureties, whose names did not appear in the body of the bond as recognizors. Recovery was permitted against the sureties despite this omission. In Vincent v. People, supra, the recognizance as executed by the surety bound him for the appearance of George Vincent and William Kelly. The correct name of the one defendant was William Vincent. Thereafter the Justice of Peace changed the name “George” to “William” in the body of the recognizance. The court held that the Justice of Peace had no authority, without the consent of the surety, to make the change and that if a mistake had occurred it had to be relieved in equity. In the O’Brien v. People case, supra, the recognizance was signed by Sylvester Empie as principal. In the body of the recognizance the principal was designated as John Empie. The scire facias, by appropriate allegations, averred that Sylvester Empie was in fact the principal and that he had been described in the body of the recognizance as John Empie through an error of the scrivener. It was held in this case that the recognizance was admissible in evidence under the averment, to be considered with the other evidence, that Sylvester executed the recognizance and was described in the instrument by the name of John. The court rejected the holding in Vincent v. People, supra, to the effect that resort had to be made to equity, as being too broad a statement. The decision is apparently predicated upon the general rule, that where a person executing an instrument under seal is described therein by a different name, an action may be maintained against him upon the instrument, upon averring in the declaration, and making proof, that he executed the instrument, but was described therein by the name there appearing.

In the case at bar, if the forfeiture had been declared on the written recognizance which is signed by Charles Cohn as attorney-in-fact for The Summit Fidelity and Surety Company and in which Charles Cohn individually is named in the body of the recognizance, these cases- would appear to sustain appellant’s contention. Such, however, is not the situation in the case at bar.

The record does in fact show, an open court recognizance entered into by Cohn individually which is separate and apart from the written recognizance filed with the clerk and signed by him as attorney-in-fact. Counsel for appellant is in error when he says that this is merely a docket entry erroneously made by the clerk. It is not a docket entry, but is the record, expanded by the clerk, either from his minutes or the Judge’s docket entry, on the common law record. It is certified to this conrt as part of the record in the cause by the clerk. Consequently there is no variance between the scire facias and the recognizance appearing of record and declared upon in this case. The answer of appellant, therefore, did not set up a defense. The trial court was correct in entering the judgment in each case, from which these appeals were prosecuted.

Counsel for appellant Cohn finally contends that the trial court erred in refusing to grant his motion for leave to plead over after the motion to strike his answer was sustained. The motion for leave to plead over was oral. The court requested counsel to indicate the nature of the pleading he intended to file. This request was not complied with. While the rules with reference to granting leave to file amended pleadings are quite liberal, and are liberally construed, we cannot say that the action of the trial court was arbitrary.

The judgment of the Circuit Court of Macon County in each case is accordingly affirmed.

Affirmed.-


author: JUSTICE CROW

text:
    Irene B. Michels, Administrator of Estate of William A. Michels, Deceased, Plaintiff-Appellee, v. Alvin Bezley and Dominic Rivara, Defendants-Appellants.
    Gen. No. 10,990.
    Second District.
    January 25, 1957.
    Released for publication February 12, 1957.

      Phelphs & Blodgett, of Princeton, for appellant.
    L. D. Spaulding, Jr., of Princeton, for appellee.
   JUSTICE CROW

delivered the opinion of the court.

This is an appeal in an allegedly wrongful death suit by one defendant, Alvin Bezley, from a judgment of November 28,1955 for the plaintiff entered against him in the sum of $5,000. A separate judgment of the same date for the plaintiff was also entered against the other defendant, Dominic Rivara, for $6,000. Although a notice of separate appeal by co-party was filed by the defendant Rivara, he evidently took no further steps to follow up such separate appeal. In the briefs of both the present defendant-appellant Bezley and the plaintiff-appellee they say the defendant Rivara did not perfect an appeal. So, for the present purpose, we shall proceed on the assumption the defendant Rivara did not perfect an appeal, or has abandoned the same, and that the separate judgment entered against that defendant is not before us for consideration.

The plaintiff, administrator of the estate of William A. Michels, deceased, filed a complaint against both defendants, consisting of two counts, both defendants being defendants in both counts. The suit arises out of the alleged death of the plaintiff’s intestate in an intersection automobile collision March 13, 1954 in Spring Valley between an automobile allegedly owned and operated by the defendant Rivara in which the deceased was allegedly a passenger, and another automobile allegedly owned and operated by the defendant Bezley. Count I alleged that the defendant Bivara was guilty of wilful and wanton acts and that the defendant Bezley was guilty of one or more negligent acts and omissions. Count II charged the defendant Bivara with negligent acts and omissions, and charged the defendant Bezley with wilful and wanton acts. In each count the plaintiff demanded judgment against the defendants for the sum of $20,000. During the progress of the trial, on the plaintiff’s motion, count II was dismissed. The jury (motions of the defendants, so far as material, for directed verdicts being denied) returned its verdicts as follows:

“We, the jury, find the defendant Alvin Bezley guilty and assess damages for the plaintiff in the sum of $5000.”
“We, the jury, find the defendant Dominic Bivara guilty and assess damages for the plaintiff in the amount of $6,000.”

The court entered separate judgments, as above, against each defendant on the separate verdicts. Motions of the defendant Bezley (and, we gather, also of the defendant Bivara) for new trial and judgment notwithstanding the verdict were denied. Among the grounds stated in the defendant Bezley’s motion for new trial are these: the verdict is contrary to law, and the verdict is erroneous and void be.cause the jury attempted to apportion damages between the two defendants. The defendant appellant’s notice of appeal asks the judgment against him be reversed, or reversed and remanded for a new trial.

The theory of the defendant Bezley, the only appellant, is that the plaintiff failed to prove the essential elements of her case, that the separate verdicts and judgments were improper and void, under the circumstances, and that there was reversible error during the trial.

It is clear from the nature of the complaint that the plaintiff elected to sue the defendants jointly under each count, and the plaintiff, therefore, has treated their liability as joint. For example, in paragraphs 7 and 10 of count I, it was alleged, respectively: “Defendant Rivara wilfully and wantonly drove his automobile and defendant Bezley negligently drove his automobile so that as a direct and proximate result thereof their automobiles collided and William Michels was injured causing his death,” and “as a direct result of the wilful and wanton conduct of defendant Rivara and as a direct result of negligence of defendant Bezley, plaintiff’s intestate sustained injuries of which he died on March 13, 1954.” In her brief here, in fact, the plaintiff-appellee concedes that the defendants are (allegedly) joint tort feasors.

Under the common law rule, which has not been affected by Section 50 of the Civil Practice Act, the jury may not, by separate verdicts against two or more joint defendants each of whom is found liable, apportion damages between joint tort feasors and assess them severally: Stoewsand v. Checker Taxi Co. (1947) 331 Ill. App. 192. It is true that under Section 50 of the Civil Practice Act (Ch. 110, Ill. Rev. Stats., 1953, par. 174) more than one judgment may be rendered in the same cause, but only, of course, where it is otherwise proper under the substantive law to do so. That section also provides that judgment may be entered in such form as may be required by the nature of the case. Substantive law is not affected by the Civil Practice Act. In Stoewsand v. Checker Taxi Co. there were two joint tort feasor defendants, the jury returned two separate verdicts of guilty, one against each defendant, fixing damages in each, two separate judgments were entered thereon, one defendant did not appeal, the other did, and the Appellate Court reversed and remanded for a new trial the judgment against that defendant-appellant. The case is almost identical to the case at har. See also: Pardridge v. Brady (1880) 7 Ill. App. 639; Teazel v. Alexander (1871) 58 Ill. 254; Consolidated Ice Machine Co. v. Keifer (1890) 134 Ill. 481; St. Lonis, Alton & Terre Haute R. R. Co. v. South (1867) 43 Ill. 176; Koltz v. Jahaaske (1942) 312 Ill. App. 623. In Aldridge v. Fox (1952) 348 Ill. App. 96, although the defendants were not sued as joint tort feasors, and although there was involved an entirely different problem of separate judgments in varying amounts against a defendant employer and a defendant employee of that employer, the Court observed that it has long been the law in this State that a jury may not apportion damages among joint tort feasors, and that Section 50 of the Civil Practice Act does not change the substantive law.

The only case we’ve been referred to even containing any language to the contrary is Shaw v. Courtney (1943) 317 Ill. App. 422, affirmed 385 Ill. 559. That was a suit against several joint tort feasor defendants. Several separate verdicts of guilty were returned against such of the defendants as the jury found against, each assessing different respective amounts against particular defendants. Several separate judgments were entered thereon against the respective defendants. The Appellate Court reversed and remanded the judgments for a new trial because of erroneous instructions and because they were against the manifest weight of the evidence. But in the course of the opinion the Appellate Court observed that, although the plaintiff conceded that prior to the Civil Practice Act it was not permissible for the jury to apportion damages among joint tort feasors, Section 50 thereof now permits more than one judgment to he rendered in the same cause and under that the court did not abuse its discretion in entering the several judgments on the several verdicts. The Supreme Court affirmed the order of reversal and remandment of the Appellate Court because, under the circumstances, there was no question that could be considered by the Supreme Court on the appeal to it. The Supreme Court did not pass on the Appellate Court’s comment as to the separate verdicts of guilty and separate judgments, but expressly stated: “This opinion should not be considered as giving sanction to, or disapproval of, any of the questions of law considered by the Appellate Court, . . . .” The foregoing indicated comment of the Appellate Court was, under the circumstances, dicta, and was not necessary to its decision, which was simply that the judgments had to be reversed and remanded, for other reasons. Its actual decision was in conformity with the conclusion indicated by the principles we’ve previously stated. No Illinois cases were cited in support of its observation. The case was in the Appellate Court for the First District. Stoewsand v. Checker Taxi Co., supra, and Aldridge v. Fox, supra, later cases in the same court, have not followed that observation of Shaw v. Courtney.

Under the complaint here and the allegations thereof indicating a joint liability, and the admitted circumstances that these defendants are (allegedly) joint tort feasors, the judgment and verdict, if for the plaintiff, must be for a single sum against all or such of the defendants who are found responsible. There is no line of separation between the liability of joint tort feasors. Each is liable for the whole. There can be but one assessment and it must be for the same amount against all who are found guilty. The damages cannot in such a case be severally assessed. The degree of culpability cannot be compared as between two defendants both of whom are found liable as joint tort feasors. The jury, under the circumstances here, cannot apportion the damages between the defendants found liable by separate verdicts of guilty, fixing the damages in each, at particular amounts, in an attempt to sever and apportion the damages as to the two joint tort feasor defendants.

In her brief here the plaintiff-appellee concedes that the separate verdicts and separate judgments here returned and entered are erroneous, but says that she may be permitted an election as to which of the judgments she shall satisfy (and which she shall retain), and in her brief requests that, if all other matters raised here by the defendant-appellant were resolved in the plaintiff’s favor, the judgment for $6,000 against the defendant Eivara be reversed and the judgment for $5,000 against the defendant-appellant Bezley be affirmed. The plaintiff cites for that: Stoewsand v. Checker Taxi Co., supra, Shaw v. Courtney, supra, and Aldridge v. Fox, supra, principally relying on Aldridge v. Fox. The cases of Stoewsand v. Checker Taxi Co. and Shaw v. Courtney, to both of which we’ve previously referred, do not sustain the plaintiff’s views in this respect, do not so hold, and do not discuss that contention. In Aldridge v. Fox, the defendants were not sued as joint tort feasors, and there was involved an entirely different problem, not at all here concerned, of separate judgments for $300 against the defendant employee and $2,500 against the defendant employer of that employee in a suit for false imprisonment,, the defendant employee having done the false imprisoning, and the defendant employer being liable, if at all, only under the doctrine of respondeat superior. The court held that, under those circumstances, the plaintiff may be permitted an election as to which judgment .he shall satisfy, and reversed and remanded the judgments with directions to enter a judgment on whichever verdict the plaintiff elected within a certain time, following which the plaintiff elected in the Appellate Court to have the $2,500 judgment against the defendant employer and hence that judgment was affirmed and the $300 judgment against the defendant employee was reversed. That is not the case at bar. It may also he observed, for such significance as it has, that in the Aldridge case both defendants had appealed from both judgments, whereas here we are proceeding, under the circumstances, on the assumption that the defendant Rivara did not perfect an appeal, or has abandoned the same, and that the separate judgment entered against that defendant is not before us for any consideration. We have been referred to no Illinois authority pursuant to which a plaintiff in the position of this plaintiff may (assuming his judgments were otherwise to stand) be permitted, after the judgments are entered and after the 30 day period following their entry has passed, an election either here, or in the trial court, as to which of the judgments she shall satisfy (and which she shall retain).

It is not necessary to pass on other errors assigned, for it is our opinion that the separate verdict and judgment as against the defendant-appellant Bezley are erroneous, cannot stand, and must he reversed and remanded for a new trial.

Judgment reversed, and cause remanded, for new trial.

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


author: JUDG-E CULBERTSON

text:
    C. C. Fenwick and Zula B. Davis, Plaintiffs-Appellees, v. Blue Bird Coal Company, Defendant-Appellant.
    Term No. 56-O-5.
    Fourth. District.
    January 28, 1957.
    Released for publication February 14, 1957.

      Rumsey & Dennis, of Harrisburg, for defendant-appellant.
    Arlie O. Boswell, Sr., of Harrisburg, for plaintiffsappellees.
   JUDG-E CULBERTSON

delivered tbe opinion of tbe court.

Tbe plaintiffs, C. C. Fenwick and Zula B. Davis, filed an action as against defendant-appellant, Blue Bird Coal Company, a Corporation, and another coal company, Delta Collieries Corporation, to recover damages to growing timber upon tbe land owned by plaintiffs by reason of mineral impurities wbicb plaintiffs contend were permitted to drain upon tbe premises of plaintiffs from tbe coal mines of defendants. It is asserted that as tbe result thereof timber owned by plaintiffs was killed.

In tbe trial, before a jury, tbe jury returned a verdict for plaintiffs and as against tbe defendant, Blue Bird Coal Company, in tbe sum of $3,000 in favor of Zula B. Davis, and $6,000 in favor of C. C. Fenwick. Tbe Circuit Court of Saline County entered judgment on such verdicts and an appeal is taken to this Court from such judgments.

Tbe complaint wbicb was filed in this cause contended that tbe timber bad died over a period of five years immediately prior to tbe time of tbe filing of tbe complaint, and that defendants permitted water from tbe mines wbicb contained mineral impurities to be drained upon tbe land of plaintiffs by reason of wbicb tbe timber was killed. A bill of particulars was filed in tbe case at tbe request of defendant, Blue Bird Coal Company, wbicb stated that tbe plaintiffs claimed damages to the growing trees which had been killed and blighted by mineral impurities.

It is the contention of the defendant on appeal in this cause that plaintiffs are not entitled to recover, as a matter of law, and that the Court should have directed a verdict in favor of defendant, Blue Bird Coal Company on the theory that there was no evidence upon which a determination as to damages can legally rest. It is also contended that a new trial should be granted in any event because of errors in the trial of the cause arising from admission of improper evidence, on the failure of proof of damages, and in the giving of instructions, and on the ground that the verdicts were excessive.

It appears from the record that defendant, in 1939, constructed a coal washer and placed the washer in operation continuously after that time. While no coal was mined after May 3, 1949, nearly a quarter million tons of coal per year was washed at the plant after that. The coal was brought to the washer in railroad coal cars. There was evidence to the effect that the run-off water that drained from defendant’s works into the drainage ditch to the west of defendant’s works, drained into and upon the land of plaintiffs. There was evidence that the water was polluted and caused or contributed to the damage complained of.

Every owner of land through which water flows either as surface water or in a stream, has the right to have the same flow in its natural state, which extends to the quality as well as the quantity of the water. One who pollutes or contaminates the water is liable to those injured thereby (Thomas v. Ohio Coal co., 199 Ill. App. 50; Tetherington v. Donk Bros. Coal & Coke Co., 232 Ill. 522).

Defendant had offered in evidence a complaint filed by plaintiffs as against another Coal Company which had previously operated in the territory. In that corn-plaint the plaintiffs had alleged that the timber killed on their lands was of the value of $100.00 per acre. The complaint was introduced into evidence without qualification and read to the jury by the defendant. There was no instruction to the jury limiting the scope of such evidence or the purpose for which it was requested by the defendant. The jury consequently had the right to consider it for all purposes including, incidently, the question of determining the value of the timber killed. Evidence which is competent for one purpose does not become incompetent because the jury might improperly consider it in some other capacity (Eizerman v. Behn, 9 Ill.App.2d 263; Dill v. Widman, 413 Ill. 448; Morris v. Central West Casualty Co., 351 Ill. 40). A sawmill man testified he purchased plaintiffs’ timbers at a price of $1 per hundred, or $10 a thousand feet in the standing tree, which could be used for lumber. This amounted to 40,000 feet and was all of the available timber that could be used for lumber. The smaller trees not yet large enough for lumber could have a value for props, posts, and as a growing crop. While it is contended that the 170 acres of timber on the basis of the testimony of the sawmill man would come to a value of only $26% per acre, or a total of $4,533%, and that consequently a verdict of $9,000 was excessive, a computation based upon the $100 per acre valuation (or if consideration were given to the smaller trees), the amount of damage would total in excess of the $4,500 figure, and conceivably, in excess of the total figure of $9,000 which the jury found as the amount of damages.

The Appellate Court, in Thomas v. Ohio Coal Co., supra, at page 56, stated that “the mere fact that the amount of damages may be difficult to ascertain is no reason why damages should not be allowed.” In that case the particular damage done by specific oil companies could not be definitely ascertained as to their exact extent. It is obvious that where parties are sued for contributive action in damaging a plaintiff’s timber or land, where there is no concert of action, or action by so-called “joint tort-feasors,” the action may be brought against each one separately for the damage caused by such particular defendant. While such damages may be difficult to ascertain the jury could measure the injury of each and make an estimate of the same.

It is obvious that in the instant case there is sufficient evidentiary basis for the jury’s verdicts, and that the motions for directed verdicts and for judgment notwithstanding the verdicts were properly denied (Weinstein v. Metropolitan Life Ins. Co., 389 Ill. 571). The jury and the Trial Judge who saw and heard the witnesses are in better position to judge of the truth of the matter in controversy than the Appellate Court on review (Allanson v. Frieder, 305 Ill. App. 232; Allen v. Chicago Transit Authority, 351 Ill. App. 194).

It is notable that in the case before us two juries found the issues the same way, and there is a second consistent verdict. A Court of Appeals should be slow to set aside a verdict of a second jury consistent with the original verdict which had been set aside prior to the retrial (Farr v. Chicago & E. I. R. Co., 8 Ill.App. 2d 168; Silberman v. Washington National Ins. Co., 329 Ill. App. 448).

A number of objections are made to instructions given in this case. Some of these objections were cured by the giving of like instructions by defendant, or eliminated by the giving of defendant’s instructions covering issues omitted or not clearly expressed.

In connection with the issue of damages, the jury was clearly instructed that plaintiffs were limited to the damage to the growing trees upon the land of plaintiffs as shown by the evidence. There was no other damage requested in the pleadings. While the instructions objected to were general in nature, in light of all other instructions given, the jury could not have been misled by such instructions since no damages were claimed other than damage to growing trees.

As has been observed by our Supreme Court (People v. Storer, 329 Ill. 536, at 542, “The object of the review of judgments of Trial Courts by Courts of Appellate jurisdiction is, not to determine whether the record is free from error, but to ascertain whether a just conclusion has been reached, founded upon competent and sufficient evidence, in a trial in which no error occurred which might be prejudicial to the defendant’s rights.” We are much impressed by the fact that this is a second consistent verdict by a jury. The evidence clearly sustains the right of recovery, and while there is some difficulty in ascertaining the precise measure of damages, the verdicts are consistent with the evidence and are not excessive so as to justify a reversal.

The case has been fairly tried and accordingly should be affirmed.

Affirmed.

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


author: JUDGE BURKE.

text:
    Thomas J. Burrell, Appellant, v. Evelyn Burrell, Appellee.
    Gen. Nos. 46,850, 46,918.
    First District, First Division.
    November 19, 1956.
    Released for publication February 11, 1957.
    Joseph H. and Norman Becker, and William Levine, for appellant; Prescott, Burroughs, Taylor & Carey, and Howard T. Savage, for defendantappellee; Euclid Louis Taylor and Howard T. Savage, of counsel.
   Opinion by

JUDGE BURKE.

Not to be published in full.


text:
    Catherine Georges, also known as Catherine Georgiakakis, Appellant, v. Stevi Georges, also known as Stevi Georgiakakis, Appellee.
    Gen. No. 46,863.
    First District, First Division.
    November 19, 1956.
    Released for publication February 11, 1957.

      Norman Peters, and John G. Phillips, for appellant; William C. Wines, and Jerome S. Cohn, of counsel; William P. Gerber, for appellee; Paul C. Meier, of counsel.
   Opinion by

JUDGE BURKE.

Not to be published in full.


text:
    C. Vernon Thompson, Appellee, v. William P. Taylor, Appellant.
    Gen. No. 46,915.
    First District, First Division.
    November 19, 1956.
    Rehearing denied January 11, 1957.
    Released for publication February 11, 1957.
    Irving Goodman, Smietanka Garrigan, for appellant; William Scott Stewart, for appellee.
   Opinion by

JUDGE BURKE.

Not to be published in full.


author: JUDGE FRIEND.

text:
    Mary B. Doornbos, Appellee, v. George Doornbos, Appellee. On Appeal of People of State of Illinois, Intervener, Appellant.
    Gen. No. 46,855.
    First District, First Division.
    November 19, 1956.
    Released for publication February 11, 1957.
    John Gutknecht, for intervener-appellant; Gordon B. Nash, Vineent P. Flood, William S. White, Francis X. Riley and Charles D. Snewind, of counsel; Edward S. Cody, for defendant-appellee.
   Opinion by

JUDGE FRIEND.

Not to be published in full.


text:
    People of State of Illinois, Appellee, v. Angelo Tarranto and Peerless Casualty Co., Appellants.
    Gen. No. 46,824.
    First District, First Division.
    November 19, 1956.
    Released for publication February 11, 1957.

      T. Renfroe Eaton, for defendants-appellants; John Gutkneeht, for appellee; Gordon B. Nash, Selig Drezner, Charles D. Snewind, Francis X. Riley, and William Sylvester White, of counsel.
   Opinion by

JUDGE FRIEND.

Not to be published in full.


text:
    In Matter of Estate of Reuben Joseph Thikoll, also known as Joseph Reuben, Deceased. Rhea Reuben, Appellee, v. Edwin M. Katz, Appellant.
    Gen. No. 46,947.
    First District, First Division.
    November 19, 1956.
    Released for publication February 11, 1957.
    Ben Gopple, for appellant; William Allen Nathenson and Kenneth W. Bellile, for appellee.
   Opinion by

JUDGE FRIEND.

Not to be published in full.


text:
    In Matter of Estate of Ernest Uhlich, Jr., Deceased. Helen L. Koch and Alice R. Langenbach, Objectors, Appellants, v. William C. Doepp, Administrator, Appellee.
    Gen. No. 46,921.
    First District, First Division.
    November 19, 1956.
    Released for publication February 11, 1957.
    Appellee’s request that attorneys’ fees be assessed against plaintiffs, denied. Klein and Thorpe, for appellants; Kinne and Scovel, for appellee.
   Opinion by

JUDGE FRIEND.

Not to be published in full.


author: PRESIDING JUSTICE NIEMEYER.

text:
    Lewis C. Brown, Appellee, v. Motor Cargo, Inc., and Albert E. Rodgers, Appellants.
    Gen. No. 46,925.
    First District, First Division.
    November 19, 1956.
    Released for publication February 11, 1957.
    Thomas K. Gifford, and Mark H. Ellis, for defendants-appellants; Thomas C. Angerstein, George W. Angerstein, Charles Wolff, and Sidney Z. Karasik, of counsel; Piacenti and Cifelli, and Edward Wolfe, for plaintiff-appellee; Edward Wolfe, of counsel.
   Opinion by

PRESIDING JUSTICE NIEMEYER.

Not to be published in full.


text:
    People of State of Illinois, Appellant, v. Melvin Brown, Appellee.
    Gen. No. 46,928.
    First District, First Division.
    November 19, 1956.
    Released for publication February 11, 1957.

      John Gutkneeht, for appellant; Gordon Nash, Roger G. Seaman, Francis X. Riley, Charles D. Snewind, and William Sylvester White, of counsel.
   Opinion by

PRESIDING JUSTICE NIEMEYER.

Not to be published in full.


text:
    Eusebius J. Biggs, Appellee, v. City of Chicago, a Municipal Corporation, Appellant.
    Gen. No. 46,978.
    First District, First Division.
    January 7, 1957.
    Rehearing denied January 28, 1957.
    Released for publication February 11, 1957.
    John C. Melaniphy, Corporation Counsel of the City of Chicago, for defendant-appellant, Sydney R. Drebin, and Joan C. Miller, Assistant Corporation Counsel, of counsel; E. J. Biggs, for appellee.
   Opinion by

PRESIDING JUSTICE NIEMEYER.

Not to be published in full.


text:
    Virginia Drobina, Administrator of Estate of Frank Garczynski, Deceased, Appellant, v. Jan Bujak and Jozefa Bujak, Appellee.
    Gen. No. 46,959.
    First District, First Division.
    January 7, 1957.
    Released for publication February 11, 1957.
    Bartley, Powell & Skarzynski, for plaintiff-appellant, Harry F. Skarzynski, Melvin B. Lewis, and Walter R. Bartley, of counsel. No brief filed for appellee.
   Opinion by

PRESIDING JUSTICE NIEMEYER.

Not to be published in full.


text:
    Italo American National Union, etc., Plaintiff and Counter-defendant, Appellee, v. Mead Cycle Company, etc., et al., Defendants. Mead Cycle Company, and Joseph I. Bulger, as Trustee under Trust Deeds recorded as Documents Nos. 15371672 and 15403595, Defendants and Counter-defendants, Appellees. On Appeal of Motiograph, Inc., Defendant and Counter-plaintiff, Appellant.
    Gen. No. 46,892.
    First District, First Division.
    January 7, 1957.
    Released for publication February 11, 1957.
    Stanley Werdell, for appellant; Francis A. Fanelli and G. J. Devanna, for Italo-Ameriean National Union, an Illinois Fraternal Corporation, and Joseph I. Bulger, trustee pro se.
   Opinion by

PRESIDING JUSTICE NIEMEYER.

Not to be published in full.


text:
    People, for Defendant in Error, v. Thomas Shanahan, Plaintiff in Error.
    Gen. No. 47,034.
    First District, First Division.
    January 7, 1957.
    Released for publication February 11, 1957.
    S. Edward Bloom, for plaintiff in error, Maxfield Weisbrod, of counsel; John Gutknecht, State’s Attorney of Cook county, for defendant in error, Gordon B. Nash, Charles D. Snewind, Joseph R. Kerwin, and Edward J. Fleming, Assistant State’s Attorneys, of counsel.
   Opinion by

PRESIDING JUSTICE NIEMEYER.

Not to be published in full.


author: PRESIDING JUSTICE NIE-MEYER.

text:
    People ex rel. John T. McNamara, Appellant, v. Timothy J. O’Connor, Commissioner of Police of City of Chicago, Stephen E. Hurley, Albert W. Williams and John J. Ahern, Civil Service Commissioners of the City of Chicago, William J. Milota, Treasurer of the City of Chicago, and J. H. Dillard, Comptroller, Appellees.
    Gen. No. 47,001.
    First District, First Division.
    January 7, 1957.
    Released for publication February 11, 1957.
    Lester Jankowski and Stephen Lee, for appellant; John C. Melaniphy, Corporation Counsel of the City of Chicago,'1 for defendants-appellees, Sydney R. Drebin, and Harry H. Pollack, Assistant Corporation Counsel, of counsel.
   Opinion by

PRESIDING JUSTICE NIE-MEYER.

Not to be published in full.


text:
    Thomas L. Boucher, Appellee, v. Michael S. Nuccio, Appellant.
    Gen. No. 46,972.
    First District, First Division.
    January 7, 1957.
    Rehearing denied January 28, 1957.
    Released for publication February 11, 1957.
    Cherry & Morse, for appellant, Louis Rosenfeld, of counsel; Mitchell & Conway, for plaintiff-appellee, Robert J. Downing, of counsel.
   Opinion by

JUDGE BURKE.

Not to be published in full.


text:
    Carla B. Hatheway, et al., Plaintiffs-Appellees, v. Stella La Zelle Barnhart, individually and as trustee etc., et al., Defendants-Appellants. In re Petitions of Morgan L. Fitch, etc., Intervenor-Appellee, Hiram P. Barnhart, Jr., et al., Defendants-Appellees, Willis Judson Barnhart, et al., Defendants-Appellees, Stella La Zelle Barnhart, etc., et al., Defendants-Appellants, Carla B. Hatheway, et al., Plaintiffs-Appellees.
    Gen. No. 46,873.
    First District, First Division.
    January 7, 1957.
    Rehearing’ denied February 11, 1957.
    Released for publication February 11, 1957.
    William M. Doty, and J. Allan Lind, for defendants, Stella La Zelle Barn-hart, et al., defendants-appellants, Clarence Edelson, of counsel; Chapman and Cutler, George H. Jirgal, for plaintiffs-appellees; Daniel A. Costigan, and William C. Wines, for Hiram P. Barnhart, Jr., et al., defendants-appellees; John William Chapman, for Willis Judson Barnhart, defendant-appellee; Petit, Olin, Overmyer & Fazio., for Morgan L. Fitch, intervenor-appellee.
   Opinion by

JUDGE BURKE.

Not to be published in full.


text:
    Robert W. Geiermann, Appellant, v. Marilyn M. Geiermann, Appellee.
    Gen. No. 46,967.
    First District, First Division.
    January 7, 1957.
    Released for publication February 11, 1957.
    Lawrence C. Boyle, for appellant; Defrees, Fiske, O’Brien & Thomson, for appellee, Thomas J. Johnson, Jr. and John W. Hupp, of counsel.
   Opinion by

JUDGE

FRIEND.

Not to be published in full.


text:
    In Matter of Estate of Ida Sneider, Deceased. Julius Sneider, Administrator of Estate of Ida Sneider, Deceased, Appellee, v. Sallie Schwartz and Mary Snyder, Appellants.
    Gen. No. 46,710.
    First District, First Division.
    January 7, 1957.
    Rehearing denied February 11, 1957.
    Released for publication February 11, 1957.
    Edward A. Sinden, for appellants; Jerome J. Nudelman, for appellee, Dan Brusslan, of counsel.
   JUDGE FRIEND

delivered the opinion of the court. Not to be published in full.


author: JUSTICE CROW.

text:
    James Carbone, Administrator with the Will annexed of the Estate of Liborio, Deceased, et al., Appellants, v. Robert E. Sparks, doing business as Streator Motor Company, Appellee.
    Gen. No. 10,967.
    Second District.
    January 23, 1957.
    Released for publication February 9, 1957.
    Hollerieh & Hurley, Kevin D. Kelly, and William C. Wines, for appellants; Berry & O’Conor, for appellee.
   Opinion by

JUSTICE CROW.

Not to be published in full.


author: JUDGE ROETH.

text:
    In Matter of Petition to Detach Territory from Catlin Township High School District No. 230, in Vermilion County, Illinois, and to Annex same to Adjoining District known as Jamaica Consolidated High School District No. 237, in Vermilion and Edgar Counties, Illinois. Catlin Township High School District No. 230, in Vermilion County, Illinois, et al., Plaintiffs-Appellants, v. County Board of School Trustees of Vermilion County, Illinois, an Administrative Agency, et al., Defendants-Appellees.
    Gen. No. 10,096.
    Third District.
    January 28, 1957.
    Released for publication February 14, 1957.
    Carroll E. Snyder, and Bookwalter, Carter, Gunn & Hickman, for plaintiffeappellants; John T. Allen, State’s Attorney, and Acton, Baldwin, Bookwalter & Meyer, for defendants-appellees, W. M. Acton, of counsel.
   Opinion by

JUDGE ROETH.

Not to be published in full.


author: JUDGE McCORMICK

text:
    Lillian V. Moore, Appellee, v. J. Edward Jones, Appellant.
    Gen. No. 46,913.
    First District, Second Division.
    December 27, 1956.
    Released for publication March 5, 1957.

      J. Edward Jones, of River Forest, pro se.
    Euclid Louis Taylor, and Richard K. Cooper, both of Chicago, for appellee.
   JUDGE McCORMICK

delivered the opinion of the court.

This is an appeal from an order of the County Court of Cook County denying defendant’s motion to vacate a default and judgment theretofore entered against him. The case grew out of an action for damages filed against the defendant based upon a dispute concerning the rental of an apartment.

There is no dispute that the defendant was initially properly served. The appearance of the defendant was due April 4, 1955 and a pro se appearance was filed by him on April 5th. He filed no answer. On August 29, 1955 the court entered a judgment against the defendant in the amount of $1,000.

The judgment order recited the proper service of summons; that the answer and appearance of the defendant were due April 4th; that defendant filed an appearance on April 5th without leave of court; that “it further appearing to the court that notice of motion for an order of default was served on the said defendant,” which notice also asked for judgment, and the defendant not having appeared, the cause was proved up as a default. The court found that it had jurisdiction of the subject matter and the parties; that the defendant was in default because he filed no answer and failed to file his appearance within the time provided for by the rules of court; that the plaintiff had appeared and established the allegations of her complaint. The court ordered the appearance of the defendant stricken from the files and entered judgment for the sum of $1,000 against the defendant.

On November 23, 1955 the defendant filed a motion, supported by affidavits, to vacate the said judgment. Objections to the motion were filed, and upon a hearing thereon the court entered an order denying the motion of the defendant. No reply or counter-affidavit was filed by the plaintiff to the motion and affidavits filed by the defendant.

In his affidavit supporting the motion to vacate the defendant stated that after filing the pro se appearance and prior to the date of the entry of the judgment he had cabed one of the attorneys for the plaintiff and told him that the plaintiff had signed a lease for the apartment, of which the defendant was part owner, at 1251 South Miller street, Chicago, that she had refused to go ahead with the lease and that he felt that she had no claim against him; that she had instituted proceedings against him at the fraud division of the state’s attorney’s office where he appeared and the matter had been dropped; that he would like the attorney for the plaintiff to take no further steps in the case without getting in touch with him; that the attorney for the plaintiff said he would look into the matter and get in touch with the defendant before proceeding further; that defendant heard nothing from the attorney and first learned that a judgment had been taken against him on November 11, 1955 when an execution was served upon him; that he did not receive the notice and motion purportedly mailed to him on August 25, 1955; that he previously had had letters sent to him which were inadvertently addressed to him at 1426 West Monroe street, Chicago, and such letters, because of the character of the building at such address, were not usually returned nor did he receive any of them. The motion also attacks plaintiff’s proof of service of motion as insufficient because the rules of the County Court were disregarded, and the defendant sets up a meritorious defense to the claim.

The defendant’s theory of the case is that at the time of the entry of the default against him, which default served as the basis for the judgment, there was insufficient proof of service of the notice and motion under the rules of the County Court.

The plaintiff’s theory is that upon the defendant’s failure to file his answer he was automatically in default and the court could have entered an order of default and judgment against him without notice; that the proof of service of the notice and motion served on the defendant was in substantial compliance with the rules of court; that the trial court did not have jurisdiction to entertain defendant’s motion to vacate the judgment since the motion alleged an error of law and was filed more than 30 days after the entry of the judgment.

The rules of the County Court relied on by the defendant provided that no motion or order shall be made in any case without notice after a party has entered his appearance, and that a defendant who has appeared, even though in default for want of an answer, shall be entitled to notice unless a default has been entered against him after notice, but that a defendant who is in default for failure to appear is not entitled to notice (Eule 11). The rules also provided that proof of service of a notice should be effected, in case of service by mail, by affidavit of the person depositing the paper in the mail “in which affidavit shall be stated the time and place of mailing, the complete address which appeared on the envelope and the fact that proper postage was prepaid” (Eule 14).

The rules of court in question were binding upon the court and the parties (North Avenue Building & Loan Ass’n v. Huber, 286 Ill. 375; People v. Callopy, 358 Ill. 11), and if the rules were here applicable, any order of the court made without compliance might be set aside.

The first question to be determined here is as to whether the defendant in this ease was entitled to any notice whatsoever. It is admitted that the appearance was filed one day late. It is the law that “a party defendant is usually accorded the right to appear at any time, either before or after judgment, so long as there are any proceedings in which he has any rights or interests to protect, and avail himself of all the rights he would otherwise have except those dependent on the time of his appearance” (6 C.J.S. Appearances, Sec. 8); and an appearance filed late would give the court jurisdiction of the person of the defendant. The rules of the County Court provided that where an appearance is on file notice must be given to the opposite party, and it is further provided that a defendant who is in default for failure to appear is not entitled to notice. Apparently the plaintiff construed this rule as requiring notice to be given to the defendant even though his appearance was filed late, before a default could be entered. We believe that that is the proper construction of the rule. The fact that the appearance was filed late does not mean that it can be completely disregarded. If it had been intended that such would be the case, the rule could have so stated.

Plaintiff’s affidavit proving service was not in substantial compliance with the rule. The affidavit stated that the affiant placed a true and correct copy of the notice in a properly addressed envelope. The rule provides that the proof of service must be by an affidavit which shall state the complete address which appeared on the envelope. The fact that the notice to which the affidavit of proof of service is attached contains the correct address of the defendant does not aid the defective affidavit. The address set ont in the notice itself cannot by implication be construed as a part of the affidavit.

The plaintiff questions the power of the court to set aside a default judgment after 30 days on the showing made in defendant’s motion and affidavits. In' Paramount Paper Tube Corp. v. Capital Engineering & Manufacturing Co., 11 Ill.App.2d 456, where a question was raised with reference to the late filing of an answer, where the defendant first appeared to vacate the default and judgment after execution had been served upon him a year and a half later, this court said:

“Many decisions are cited by the parties to this cause relating to proceedings of this character, but as we said in Lichter v. Scher, 4 Ill.App.2d 37, 123 N.E.2d 161, all these must be reconsidered in the light of Ellman v. DeRuiter (1952), 412 Ill. 285, 106 N.E.2d 350, reviewing a decision of the Appellate court, first district, 344 Ill. App. 557. In that case our Supreme court had before it a situation corresponding in its substantial aspects to the case at bar. It appears that process had been served but the defendant, through mistake or misunderstanding as to the return day of the summons, failed to file his appearance on time. Default was taken and an ex parte judgment was entered at the same time the plaintiff was negotiating with the defendant for settlement. The defendant was not informed of the judgment until more than 30 days after its entry. The trial court granted a motion to vacate the judgment. On appeal, the Appellate Court held that the failure to advise the court of certain other proceedings which had a bearing on the question and of the fact that a firm of attorneys had procured a copy of the complaint in the defendant’s behalf was not concealment of snch facts as would have precluded the court from entering the default judgment. The court also said that the error of a docket clerk employed by the defendant’s attorney was no ground for the vacation of a judgment, since no act or omission of the adverse party had contributed to the error. The Appellate court then held that however lacking in fairness the plaintiff’s counsel’s conduct may have been, it was not ground for vacating the judgment, as a petition of that sort was not addressed to the equitable powers of the court. The Supreme court reversed the Appellate court and laid down the principle that the common law restrictions on a motion of this character were no longer applicable; that while the Civil Practice Act has not effected a complete amalgamation of practice and procedure in common law and suits in equity, there has been a fusion sufficient to enable a court of law, when the occasion demands it, to apply equitable principles in determining whether relief should be granted in such proceedings. The Supreme court thought that on that basis it was ‘within the spirit of the Civil Practice Act, and within the scope of the function of the motion which has replaced the writ of error coram nobis, that defendant be given summary relief in this proceeding.’ In the opinion which this division rendered in Lichter v. Scher, supra, we referred to the great impact of the decision in Ellman v. DeRuiter, and to the many instances in which it had already been cited, which have since multiplied. It would serve no purpose to repeat our views.
U
“Other points are made by plaintiff and cases cited in support, but they are so inconsonant with the views expressed by the court in the Ellman case that we can no longer consider them persuasive. . . .”

In Admiral Corp. v. Newell, 348 Ill. App. 180, the court again follows the rule laid down in Ellman v. DeBuiter, supra. The appearance filed in that case violated section 20 of the Civil Practice Act [Ill. Bev. Stats. 1951, Ch. 110, § 144] because it failed to state the address of the attorney at which notice of motion could be served in person or to which it could be mailed. The plaintiff mailed a notice to the attorney but the affidavit of service did not disclose any address to which the notice was mailed nor contain any recital that postage was prepaid, and the court held that the proof of service was not in compliance with the rules of court, and said:

“While the practice of filing an appearance by an attorney, without stating an address, is not to be sanctioned or encouraged, we cannot say in the instant ease that the failure to state an address, as required by the rule, was intentional. However, when one seeks a judgment by default, which could result in the seizure of property, and in the instant case involved garnishment of a bank account, it is imperative that substantial compliance be had with the rules mentioned as to notice for a default and judgment. It is clear to us that had the court been apprised, at the time it entered judgment by default, of the failure of compliance with the rules referred to in the service of the notice for such a judgment, it would not have entered the judgment. Under these circumstances, defendant’s motion in the nature of a writ of error coram nobis should afford the relief sought and is fully justified by the rule announced in Ellman v. DeBuiter, 412 Ill. 285 .. . .”

We are of the opinion that under the rule laid down in Ellman v. DeBuiter, supra, the trial court had before it a sufficient petition upon which it might have based an order vacating the default and judgment previously entered. If the court had known of the failure to comply with the rule governing the service of notice and motion it would not have entered the default and judgment. The court should have sustained the petition and taken affirmative action thereon.

A rule of the County Court (Rule 6, Sec. 6) also provides that an order of default or judgment by default will not be set aside unless the failure of appearance by defendant which had occasioned the default was not due to any lack of diligence on his part. The statement of the defendant in his affidavit, which stands admitted, that he was informed by the attorney representing the plaintiff that no action would be taken in the case until the defendant had been contacted by him, together with the fact that the petition was filed promptly after execution had been served, was a sufficient showing of diligence to bring the defendant within the rule. It is, of course, true that the defendant might by an inspection of the records have determined that a judgment had been entered against him, but this court must take into consideration the conditions under which attorneys work in practicing in a metropolitan center such as Chicago with its multiplicity of courts and administrative agencies. There is nothing in the record before us which would indicate that giving the defendant his day in court and a right to present his defense would result in any injustice to the plaintiff.

There also was in force a rule of the County Court (Rule 6, Sec. 8) which provided that when any application to set aside a default judgment is sustained the court may in its order open such judgment, grant leave to the defendant to plead, and direct that the judgment shall stand as security for the plaintiff’s demand and execution thereunder be stayed until further order of the court. The order of the County Court of Cook County denying the motion to vacate the judgment is reversed, and the cause is remanded with directions to the trial court to enter an order to open the judgment, grant leave to the defendant to plead, and direct that the judgment shall stand as security for the plaintiff’s demand and that execution thereunder shall he stayed until further order of the court, and assess against the defendant a reasonable attorney’s fee to be paid to the plaintiff as a condition for the entry of such order.

Reversed and remanded with directions.

ROBSON, P. J. and SCHWARTZ, J., concur.