text:
    (No. 33842.
    The People ex rel. Charles F. Carpentier, Secretary of State, Appellee, vs. Dale Lange, Appellant.

      Opinion filed March 22, 1956
    Rehearing denied May 22, 1956.

      Londrigan & Londrigan, of Springfield, for appellant.
    Latham Castle, Attorney General, of Springfield, (John L. Davidson, Jr., LEE D. Martin, and Myron Mills, of counsel,) for appellee.
   Mr. Justice Daily

delivered the opinion of the court:

Proceeding in the circuit court of Sangamon County under the authority conferred by section 13 of the Motor Vehicle Act, (Ill. Rev. Stat. 1951, chap. 95^, par. 14,) the Secretary of State filed a complaint in the name of the People seeking judgment against Dale Lange for $957.98, said sum allegedly representing unpaid motor vehicle fees and privilege taxes for the year 1952 which the secretary had a duty to collect. After defendant had unsuccessfully interposed a plea attacking the jurisdiction of the court and a motion seeking to dismiss the complaint, he filed an answer to which the plaintiff responded with a motion to strike and for judgment on the pleadings. The court sustained the motion to strike and, when defendant refused to answer further, entered judgment for the plaintiff in the amount prayed. The revenue being involved, defendant has appealed directly to this court for review.

The controversy reflected by the pleadings is substantially as follows: In 1951 the legislature amended section 9 of the Motor Vehicle Act to increase, with effect from January 1, 1952, the rates for the license and registration fees and privilege tax imposed upon owners of motor vehicles of the second class. (Ill. Rev. Stat. 1951, chap. 95%, par. 9.) On November 20, 1951, however, the circuit court of Sangamon County found the amendatory act to be unconstitutional and enjoined the Secretary of State and his successors in office from enforcing said act and from demanding and collecting any license and registration fees or privilege taxes imposed thereby. Pending an appeal of this decision, defendant, who was the owner of certain vehicles of the second class, made application to register them for the calendar year of 1952; the Secretary of State, by force of the injunction then in effect, was compelled to issue defendant registration certificates and license plates at the lower rates prescribed by the Motor Vehicle Act as it existed prior to the 1951 amendment. (See: Ill. Rev. Stat. 1949, chap. 95^2, par. 9.) Defendant paid the fees and taxes assessed in advance of receiving his licenses and certificates and thereafter operated his vehicles on Illinois highways. Subsequently, on May 23, 1952, this court reversed the decree of the circuit court and held that the amendatory act was constitutional. (Bode v. Barrett, 412 Ill. 204.) On further appeal to the Supreme Court of the United States our judgment was affirmed. (Bode v. Barrett, 344 U.S. 583, 97 L. ed. 567.) When defendant thereafter failed to pay the difference between the amount of fees and tax he had already paid and the increased amounts validly imposed by the 1951 amendment, this action followed. It is uncontroverted that the difference involved was $957.98.

The objections and defenses to the complaint which have been carried over into the assignments of error made by defendant in this court are, first, that the circuit court did not have jurisdiction to entertain the cause and, second, that since the payment of the fees and taxes is required by the Motor Vehicle Act as a condition precedent to the exercise of the privilege granted, defendant is not, after the expiration of the period for which the privilege was granted, liable for such fees and taxes in a civil suit.

Defendant’s claim that the trial court had no jurisdiction over the cause is, in more accurate terms, a plea that the suit was commenced in the wrong venue. The relevant provision of the Civil Practice Act directs that “every civil action shall be commenced in the county where one or more defendants reside or in zvhich the transaction or some part thereof occurred out of zvhich the cause of action arose, * * *.” (Italics supplied.) (Ill. Rev. Stat. 1953, chap. 110, par. 131.) Based upon the several broad meanings given to the term “transaction” in VanMeter v. Goldfarb, 317 Ill. 620, and upon the observation in Walters v. City of Ottawa, 240 Ill. 259, that a cause of action “includes every fact necessary for the plaintiff to prove to entitle him to succeed, — every fact that the defendant would have a right to traverse,” the italicized phrase of the section has been interpreted to mean that, for purposes of venue, the places where the transaction, or a part thereof, occurred out of which the cause of action arose include those where any significant negotiations were carried on between the parties, where an agreement was signed, the place where it was, or was supposed to be performed, or where matters occurred that plaintiff has the burden of proving. See: La Ham v. Sterling Canning Co. 321 Ill. App. 32; Heldt v. Watts, 329 Ill. App. 408; Schmelzle v. Transportation Investment Corp. 341 Ill. App. 639; Keystone Steel and Wire Co. v. Price Iron and Steel Co. 345 Ill. App. 305; Winn v. Vogel, 345 Ill. App. 425; Christopher v. West, 345 Ill. App. 515; 1954 LF 557.

In view of the interpretation given the statute, and particularly as it was applied in the La Ham and Heldt cases cited' above, defendant contends that no part of the transaction, out of which this cause of action arose, occurred in Sangamon County, thus causing venue to lie only in Piatt County where he resides. An examination of the cases relied upon reveals quite clearly, however, that the findings of lack of venue were predicated on the fact that only preliminary and insignificant details of the transaction involved, and which had no substantial bearing upon the ensuing cause of actions, had occurred in the counties where the suits were brought. The facts pleaded in the instant case are not so restricted. Here it is alleged without denial that defendant applied for, partially paid for, and received his licenses for the privilege of using the highways at Springfield, in Sangamon County, and that every step taken by the plaintiff in acting upon defendant’s application likewise occurred there. All these acts were an integral part of plaintiff’s cause of action and which he would have to establish in order to recover the disputed license fees and privilege taxes from defendant. Under such circumstances it appears that a very substantial part of the “transaction” out of which plaintiff’s individual cause of action arose took place in Sangamon County. (Cf. Christopher v. West, 345 Ill. App. 515; Schmelzle v. Transportation Investment Corp. 341 Ill. App. 639.) We conclude, therefore, that Sangamon County was the proper venue and that the circuit court did not err when it denied the plea which challenged the court’s jurisdiction on such grounds.

Section 10 of the Motor Vehicle Act directs that all annual license and flat weight fees for motor vehicles of the second class shall be paid to the Secretary of State from and after January 1 of each year, “Provided, however, that such fees shall be paid before the vehicles are used on the public highways of the State.” (Ill. Rev. Stat. 1951, chap. 95 J2, par. 11.) Because of the proviso which makes the payment of fees a condition precedent to the exercise and granting of the privilege to use the public highways, and because this action was not filed until June, 1953, after the calendar year of 1952 had passed, defendant claims that, since he has already exercised the privilege, he is not liable in a civil suit for such fees after the expiration of the period for which the privilege was granted. It is true that some jurisdictions have applied such a rule and that this court has recognized it by way of dicta in Munsell v. Temple, 3 Gilm. 93; others, however, hold to the contrary, and we have found no instance where the rule has been applied in this jurisdiction. (See: 33 Am. Jur., Licenses, sec. 77; 5 A.L.R. 314; 107 A.L.R. 653.) Regardless of the merits of the conflicting views on the rule, the cited authorities also establish that recovery may be had where a person fails to pay a required license fee or tax if the statute or ordinance involved expressly gives a remedy by civil action. Section 13 of our Motor Vehicle Act makes such a provision in the following terms: “The Secretary of State is hereby authorized and empowered to institute, in the name of the People of the State of Illinois, a suit or suits in any court of competent jurisdiction to enforce the collection of any registration fees, flat weight fees, mileage weight fees, fines, penalties or damages provided for in this Act.” Ill. Rev. Stat. 1951, chap. 951/2, par. 14.

Defendant contends that section 13 does not extend to the present action and argues that it is to be construed as authorizing the Secretary of State only to take legal action, by way of injunction or similar remedy, to enforce the collection of fees before vehicles are used on the public highways. To adopt the narrow construction contended for would be to ignore the clearly expressed intention of the legislature to authorize the institution of suits to enforce the collection of any fees provided for in the act, without limitation. Additionally, it would lead to the absurd result of putting the Secretary of State in the perilous position of being able to collect fees from those who ignore the proviso of section 10 by operating vehicles before they pay fees and taxes, only if he could anticipate their intention of disobeying the statute. It is axiomatic that statutes should be construed as to give them a reasonable meaning, and should not be interpreted as to lead to absurd consequences. (Stiska v. City of Chicago, 405 Ill. 374; City of Elmhurst v. Buettgen, 394 Ill. 248.) We hold, therefore, that the plaintiff had express statutory authority to collect the fees and privilege taxes in question.

There is still another factor to be considered in this cause. For reasons more fully stated in Willett Co. v. Carpentier, 4 Ill.2d 407, defendant, at the time he applied for 1952 registration and license, was bound by the class suit which had been brought to challenge the validity of the 1951 amendments and was chargeable with knowledge of all errors in the record of the pending appeal. He could not, therefore, retain any advantage obtained by the erroneous decree of the circuit court, for reversal left the case as though no such decree had ever been entered. (Willett Co. p. 413.) By applying for and accepting his licenses and registrations under the foregoing circumstances, defendant bound himself to comply with the law governing their issuance. Therefore his failure to pay the full amount due subsequent to the reversal of the decree of the circuit court was a failure to comply with the law and is a continuing failure at the present time. It cannot be said that the partial payment accepted by the Secretary of State under the legal compulsion of the erroneous decree, either excuses the defendant from complying with the law, or estops the Secretary of State from fulfilling his duties of enforcing collection.

The judgment of the circuit court of Sangamon County is affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Schaeeer

license: Public Domain

text:
    (No. 33821.
    Walter Bade et al., Appellants, vs. The Commissioners of Union Drainage District No. 2, Appellees.

      Opinion filed March 22, 1956
    Rehearing denied May 22, 1956.

      Donald D. Zeglis, of Momence, and Dyer & Dyer, of Kankakee, for appellants.
    Varnum A. Parish, of Momence, for appellees.
   Mr. Justice Schaeeer

delivered the opinion of the court:

This is an appeal by three land owners from a judgment of the county court of Kankakee County which assessed against their lands the amounts which had been extended by the commissioners of Union Drainage District No. 2 of the towns of Ganeer and Momence in a special assessment tax list. This court has jurisdiction of their appeal. Ill. Rev. Stat. 1953, chap. 37, par. 160; Bainum v. Comrs. of Randolph Drainage Dist. No. 1, 257 Ill. 486; Kline v. Barnes, 250 Ill. 404.

On June 29, 1955, the commissioners adopted a resolution upon which this proceeding is based. The resolution recited that prior to- January 20, 1955, the district had adopted a plan of drainage to- afford adequate drainage facilities to all land in the district; that upon completion of the work, it became apparent that the system previously adopted would not accomplish its original purpose because it did not provide sufficient drainage for much of the land lying in the district, and that in order to accomplish the purpose originally intended, it would be necessary to widen and deepen the main ditch of the district and to construct a new ditch 4200 feet in length and 4 feet deep. The resolution stated that on January 20, 1955, there were no funds available to do this work and the commissioners passed a resolution finding it necessary to raise $7949.92 for the purpose of doing the work described, by special assessment upon the lands of the district according to the classification of lands of the district confirmed on October 26, 1929. The resolution further stated that upon an appeal by the present appellants from the tax so levied against their property, the county court, on June 20, 1955, held that the assessment had not been legally made; that the commissioners had theretofore let a contract for the proposed work, a substantial portion of which had already been completed; that there would not be sufficient funds to complete the work in accordance with the contract unless the assessments levied against the lands of the appellants are collected in full in the aggregate amount of $1104. The resolution directed that $1104 be raised by special assessment upon the lands of the appellants according to the special assessment tax list filed on January 20, 1955, and the classification confirmed on October 26, 1929.

On June 29, 1955, a special assessment tax list was filed with the clerk of the district, showing assessments against the lands of the appellants, aggregating $1104. On July 6, the appellants, Walter Bade, George Bade, and Frank Luedtke, appealed to the county court of Kankakee County by filing their individual appeal bonds. Thereafter, they moved to dismiss the assessment levied by the resolution of June 29 upon the ground that the resolution showed on its face that the assessment was for new work and not for repairs to the existing system and that the assessment was therefore void because no new classification had been made. The motion was overruled. Evidence was heard, the motion of the commissioners for a directed verdict was granted, and the jury returned a verdict levying the aggregate sum of $1104 against the lands of the appellants. Judgment was entered on the verdict and this appeal followed.

In this court the appellants contend that the commissioners were without authority to levy a tax for widening and deepening the existing ditch and for constructing a new ditch without making a new classification of the lands of the district. The commissioners, on the other hand, maintain that a new classification was not required, and that in any event the county court lacked jurisdiction to consider that question.

Drainage districts derive their authority to make special assessments from section 31 of article IV of our constitution. Section 21 of the Farm Drainage Act provides for the classification of the lands of the district and their assessment for benefits as soon as the commissioners have determined the plans for work. The classification, when established, remains the basis for the levy of taxes needed for the lawful and proper purposes of the district. Section 23 provides for notice, and a hearing before the commissioners, upon objections to the classification. Section 24 authorizes an appeal to the county court from the order of the commissioners confirming the classification within 10 days after the order is filed. Upon such an appeal the classification of the land involved in the appeal may be reviewed. Section 27 provides for an appeal to the county court within 10 days after the tax list has been deposited with the clerk of the district, “but the appeal shall be upon the ground only that such tax is a greater amount than the benefits to accrue to the land in question by the proposed drainage.” (Ill. Rev. Stat. 1953, chap. 42, pars. 103, 105, 106, 110.) Section 41 provides that, after the completion of the original work, the commissioners shall keep it in repair, and if they find that by reason of error in locating or constructing ditches, or from other causes, the lands of the district are not drained or protected as contemplated, or some of them receive partial or no benefit, they shall use the corporate funds of the district to carry out the original purpose to the end that all of the lands, so far as practicable, shall receive their proper and equal benefits as contemplated when the lands were classified, and that if sufficient funds are not available, the commissioners shall make a new tax levy. Ill. Rev. Stat. 1953, chap. 42, par. 125.

This court has frequently had to determine whether particular work being done by a drainage district was repair work, for which an assessment could be made upon the basis of the existing classification, or was new work which required a new classification. In these cases, however, the question was presented either upon the application of the county collector for judgment of sale for delinquent assessments, (People ex rel. Crowe, v. Sullivan, 238 Ill. 386; People ex rel. Kellogg v. Brown, 253 Ill. 578, 582; People ex rel. Elliott v. Peeples, 291 Ill. 537, 541; People ex rel. Ormsby v. Gibson, 293 Ill. 80; People ex rel. Smith v. Barnes, 324 Ill. 93,) or by injunction to restrain the collection of assessments. (Reynolds v. Milk Grove Special Drainage Dist. 134 Ill. 268; Schwartz v. Comrs. of Big Lake Special Drainage Dist. 307 Ill. 209, 214-5.) The statutory limitation upon the scope of an appeal under section 27, like this one, appears to have been consistently applied. In Sisson v. Drainage Comrs. of Drainage Dist. No. 1, 163 Ill. 295, the objecting land owners contended that after the assessment was made the drainage commissioners determined to lay the tile at a greater depth than was contemplated by the engineer’s plans without recording the resolution so providing. This court held that the question could not be raised upon an appeal under section 27, saying: “The statute peremptorily declares the only question to be determined on the appeal. No discretion exists in the courts.” 163 Ill. at 298.

Appellants assert that since an assessment based upon a void classification of lands in a drainage district is likewise void, (People ex rel. Olmsted v. Prather, 322 Ill. 280, 283; People ex rel. Matter v. Larsen, 282 Ill. 501, 503,) an assessment which purports to be based upon an improper classification, as they argue is the case here, is in effect not based upon any classification, and so is void. A like contention was held not to be available on an appeal under section 27 in People ex rel. King v. Fulton, 280 Ill. 415. There the land owners resisted an application for judgment and order of sale against their lands for delinquent drainage assessments upon the ground that the assessments were void because the commissioners had allowed credits for payments made by certain land owners on a previous illegal assessment. The collecter contended that the question was not open on application for judgment of sale because the remedy of the land owners was by appeal under section 27 of the Farm Drainage Act. Holding the assessment void, this court said (p. 419) : “Defendants in error are making no contentions here on the question of benefits or that the amounts assessed are greater than the benefits to accrue to their lands. They are objecting that the assessment is void for the reason that it was levied, not to pay for work proposed to be done, but to pay for work which had already been completed. The appeal provided for by section 27 of the Farm Drainage Act being confined to the sole question that the tax was greater in amount than the benefit to accrue to the lands, the question here presented could not have been raised had such appeal been taken. This is the first opportunity defendants in error have had to raise this question.”

In accordance with the authorities cited, we hold that the validity of the classification is not open in this proceeding.

Appellants further contend that there was substantial evidence of nonbenefit to them, and that therefore a verdict should not have been directed against them. The evidence introduced by the commissioners showed the passage and filing of the resolution of June 29, 1955, and the filing of the tax list or assessment roll. This was sufficient to establish a prima, facie case. (Comrs. of Drainage Dist. No. 1 v. Goembel, 383 Ill. 323; Briggs & Frith v. Union Drainage Dist No. 1, 140 Ill. 53.) Neither the area of the district nor its location appears in the record. It does appear that the land owned by appellants is in the extreme northwest corner of the district near the outlet, and that the lands of the entire district drain toward the northwest. George Bade owns 159 acres; Walter Bade, 160; Luedtke, 12. The proposed improvement is to begin 112 rods upstream from George Bade’s farm, and to extend four miles upstream from that point. A large tile and a small open ditch enter Walter Bade’s tract on the east, turn north, then flow through George Bade’s adjoining farm on the north. Two hundred rods of main tile run through their lands. George Bade has at least two laterals draining into the district tile. Walter Bade has an 8-inch tile draining into the main tile of the district; he has at least 80 rods of lateral. He testified, “That tile benefits my land some.” In the five years preceding the special assessment, substantial repair work was done on the main tile where it passes through the Bades’ lands.

Each of the appellants testified that no water from his land would drain into the proposed improvement. Objections were sustained to questions calling for the conclusions of the witnesses as to whether or not their land would be benefited. George Bade testified that the improvements would cast more water upon his land, “probably run more water down there, run it over the ground. It will probably damage some of the crops.” He also testified, however, that without the lateral which drained his land into the district system, the water from the higher land to the east would run over his land.

At most, the evidence established that water from the appellants’ lands would not drain into the proposed improvement. There are ambiguous references to substantial improvements made to the main district tile where it passes through the Bades’ land at a time when the Bades were commissioners of the district, but it is impossible to determine the exact situation from the record filed here. What appears to have been a similar situation was presented in Briggs & Frith v. Union Drainage Dist. No. 1, 140 Ill. 53, which holds that persons whose lands have been drained by money raised by a first assessment cannot defeat a second assessment necessary to drain the lands of his neighbors in the same district upon the ground, alone, that their lands do not need any further drainage. One of the land owners was asked: “State whether, in your judgment, the ditch requires any additional work or repairing in order to drain your lands” and “Will your land be benefited by the additional work proposed by the commissioners?” Upon appeal, this court held that objections to these questions were properly sustained. Pointing out that what the objectors were seeking to show was that their lands would not benefit by the improvement proposed to be made from the funds raised by the second assessment, this court said (p. 58) : “Appellants, although these lands were drained by money raised by the first assessment, could not defeat a second assessment which was necessary to drain the lands of their neighbors who were in the same district, on the ground, alone, their lands did not need any further drainage.”

Appellants insist, however, that the Briggs case is inapplicable because the proceeding there was under section 63, which authorizes an assessment for the completion of the proposed work where the original assessment proves inadequate. The reasons supporting the conclusion in the Briggs case, in our opinion, apply with like force to the present proceeding initiated under section 41. Here the evidence shows that appellants’ lands are benefited by the overall drainage project. Their unsupported denial that their property will benefit from the contemplated improvement fails to show that their assessments exceed their benefits.

Appellants say that the sole reason for the present assessment against their lands is to recoup an earlier assessment of $1104 which had been held illegal by the county court and thereby to effect collection of the full amount of $7949.92 originally assessed. Section 79 of the Farm Drainage Act declares that if any special assessment for the construction or repair of any work in any farm drainage district is annulled or invalidated on account of any matters not affecting the merits of the assessment, a new assessment may be made and the proceedings therefor shall be the same as for the prior assessment, “and if only a part of the said special assessment shall be so annulled, or be held not legally made, then in making the reassessment it will not be necessary to proceed in any way against the lands in reference to which the assessment has not been set aside, but the proceedings shall only be had with reference to the lands in reference to which the assessment has been annulled or held not legally made as aforesaid.” (Ill. Rev. Stat. 1953, chap. 42, par. 164.) So far as the record discloses, the assessment of January 20, 1955, against the lands of appellants may have been annulled because of matters not affecting the merits of the assessment. We can not assume the contrary in order to reverse the judgment of the trial court.

The appellants contend that their challenge to the array was improperly overruled. A special jury venire, including four women, was summoned to hear the case. Before the trial commenced, the appellants challenged the array of jurors upon the ground that some of the jurors were women. The challenge was overruled. It is argued that section 25 of the Farm Drainage Act (Ill. Rev. Stat. 1953, chap. 42, par. 107,) is applicable and requires that the jury be composed of men who are disinterested landowners. The propriety of impaneling women on the special jury in this case does not require disposition, however, because the verdict was directed. The presence of women on the jury could not, therefore, have substantially impaired the rights of the appellants. People ex rel. Greenwood v. Board of Supervisors of Madison County, 125 Ill. 334, 340. Cf. People v. Lieber, 357 Ill. 423; People v. Herkless, 361 Ill. 32.

32. The judgment of the county court of Kankakee County is affirmed.

Judgment affirmed.


author: Mr. Justice Bristow Mr. Justice Schaefer,

text:
    (No. 33925.
    The People ex rel. Latham Castle, Attorney General, Petitioner, vs. Warren E. Wright, State Treasurer, Respondent.

      Announced January 18, 1956
    Opinion filed March 22, 1956

      Rehearing denied May 22, 1956.

    Schaefer, J., and Hershey, C.J., dissenting.

      Latham Castle, Attorney General, of Springfield, (Werner W. Schroeder, George W. McGurn, John P. Mulvihill, and William C. Wines, of counsel,) for petitioner.
    William J. KilEy, and Halfpenny & Hahn, both of Chicago, (Edwin S. D. Butterfield, of counsel,) for respondent.
   Mr. Justice Bristow

delivered the opinion of the court:

The Attorney General has filed, pursuant to this court’s leave, this original petition for mandamus against the State Treasurer to compel the latter officer (a) to receive and accept the northern Illinois toll highway revenue bonds, described in the said petition, from the Illinois State Toll Highway Commission; (b) to deliver said bonds to or upon the order of Glore, Porgan & Co. and Halsey, Stuart & Co., Inc., or any of their assignees or agents; and (c) to accept from said Glore, Porgan & Co. or Halsey, Stuart & Co., Inc., or their agents or assigns, the payment in cash for said northern Illinois toll highway bonds, at the purchase price provided for in the contract entered into between the said Toll Highway Commission and the said underwriters, and that summons issue herein as provided by law.

The State Treasurer has declined to deliver the bonds and to accept the purchase price thereof, assigning as the reason for his refusal that there is pending in the circuit court of Cook County an action by one Harold M. Quincer, an Illinois citizen and taxpayer, for a writ of mandamus against the Toll Highway Commission and its members, to compel those officers, inter alia, to rescind or expunge the resolution authorizing the issuance of the bonds and to rescind the purchase contract with certain underwriters, and to compel the State Treasurer to refrain from receiving the bonds from the commission, from delivering them to the underwriters and from accepting any sums of money in payment for the bonds.

This court sustained the constitutionality of the statute involved in People v. Illinois Toll Highway Com. 3 Ill.2d 218, 120 N.E.2d 35, decided on May 24, 1954.

In early December, 1954, the commission announced that it would make an offering of bonds in January, 1955. On December 17, 1954, one Combs and others filed a suit against the Illinois Toll Highway Commission in the Federal court, which was tried before a Federal court of three judges. With the filing of this suit, the offer and issuance of the bonds was necessarily postponed because of the pend-ency of that litigation. Judgment against Combs and others was entered on February 9, 1955, based upon an opinion of the three-judge court. Combs v. Illinois Toll Highway Com. 128 Fed. Sup. 305.

No appeal was immediately taken from that decision. On March 7, 1955, prospective bidders met with representatives of the commission in New York to work out new plans for the offering for sale of said bonds. On the day of said meeting, Combs and others filed an appeal from the three-judge-court decision to the Supreme Court of the United States.

The appeal was disposed of in the United States Supreme Court by an affirmance on the ground that the Federal questions presented were so- insubstantial as to require no further argument. (Combs v. Illinois Toll Highway Com. 349 U.S. 942.) A petition for rehearing was filed on June 3) 1955) and denied on July 6, 1955. 349 U.S. 969.

New cost and engineering studies were necessary and were completed in August, 1955, and the commission announced that it would on September 2, 1955, set a date for the offering and sale of the bonds. On August 31, 1955, Combs and others filed their motion in the Supreme Court of the United States for leave to file a second petition for rehearing. Again the offer of bonds was necessarily postponed. The motion to file the second petition for rehearing was denied (76 S. Ct. 401), on October 10, 1955.

After leave to file the second petition for rehearing was denied by the United States Supreme Court, the commission again announced that said bonds would be offered for sale on October 25, 1955. The day before said sale, a petition for writ of mandamus was filed in the circuit court of Cook County by one E. R. Humrich, as relator, acting in the capacity of a citizen and taxpayer of the State of Illinois and one interested in having the laws properly executed. While this mandamus proceeding was pending and undetermined in the circuit court of Cook County, a petition by the Attorney General for a writ of mandamus was filed in this court in the case of People ex rel. Castle v. Taylor, 7 Ill.2d 501, and the same Humrich was granted this court’s leave to file a petition, similar to his petition then pending in the circuit court, asking (a) for a separate financing of the three routes, and (b) that the resolutions of October 25, 1955, (Nos. 13 and 14,) providing for an issue of bonds aggregating $415,000,000 be expunged. Both causes were heard in this court. A writ of mandamus was issued in the Taylor case but was denied in the case filed by Humrich as relator. In neither case was a petition for rehearing filed.

After the decision of this court above referred to, the petition of Humrich as relator was dismissed by the circuit court of Cook County on motion of respondents, and a final order of dismissal entered on December 7, 1955.

After the disposition of said causes in this court, and in obedience to its writ of mandamus, the bonds were signed and the date of delivery was set for December 21, 1955.

A few days before that date, namely, on December 15, I955? one °f the attorneys who had appeared in the circuit court and in this court on behalf of relator Humrich filed another petition' for writ of mandamus in the circuit court of Cook County with a different relator, the above-mentioned Harold M. Quincer, who is a resident of Boone County, and who brings his action as a citizen and taxpayer of the State of Illinois and one interested in having the laws properly executed. The Quincer petition again seeks the expunging of Resolution No. 14, authorizing the issuance, execution, authentication and delivery of the $415,000,000 northern Illinois toll highway revenue bonds above referred to and considered by this court in cases No. 33861 and 33862 decided at the November term of this court. (7 Ill.2d 501.) Said Resolution No. 14 specifically directs delivery of the bonds in compliance with the contract to Clore, Porgan & Co. and Halsey, Stuart & Co., Inc.

Because of the necessity of a nonlitigation certificate, it was impossible to make delivery on December 21, 1955.

The Quincer petition appears to be another chapter in a chronicle of litigation instigated by persons who, whether acting in concert or separately and each upon his own initiative, have made it their object to have some litigation pending at all times when the bonds might be offered for sale or might be ready for delivery to the prospective purchasers thereof.

The full text of the Quincer petition is before us.

The State Treasurer contends that the petition raises issues of law and fact, that he should not be compelled to accept the bonds from the commission, deliver them to the underwriters and receive the purchase price thereof until those issues have been adjudicated, and that the issues of fact proffered by the Quincer petition cannot be tried in this court without departure from our inveterate rule that this court does not try issues of fact in original mandamus or habeas corpus proceedings.

But the Attorney General replies and we hold that all of the issues, whether of law or of fact, tendered by Quincer’s petition either were or could have been litigated in the consolidated cases of the People ex rel. Castle v. Taylor, and People ex rel. Humrich v. Toll Highway Commission, 7 Ill.2d 501, decided at the November term of this court, and in the case of People ex rel. Humrich v. Toll Highway Commission, circuit court of Cook County No. 55C-16053. The two Humrich cases, cited above, that is, the original action for mandamus entertained by this court at the instance of Humrich and Humrich’s similar action for a writ of mandamus in the circuit court of Cook County, sought the expunction of the resolutions authorizing the sale of the $415,000,000 worth of toll road bonds and sought judicial pronouncements of this court and the circuit court of Cook County that would invalidate the bonds should they be issued.

Quincer seeks the same relief as did Humrich. He asks the invalidation of the same resolution, and the same contract for the sale of bonds which was involved in the Humrich case. To be sure, Quincer asserts grounds and reasons for the relief that he prays different from those relied upon by Humrich.

But it is well settled in this State that the general principles of res judicata are applicable to suits brought by taxpayers, voters, or other residents of the State for the vindication of alleged public rights. In particular, this rule has been applied in litigation assailing the validity of public bonds. In Harmon v. Auditor of Public Accounts, 123 Ill. 122, certain resident property owners and taxpayers filed a suit attacking the validity of a proposed issue of county bonds. The “same indebtedness” had been attacked in a previous representative suit by certain “then resident property owners and taxpayers.” But in the subsequent (Harmon) litigation, additional grounds were urged for the invalidity of the bonds. This court held, first, that the antecedent representative suit, although brought by different “residents and taxpayers,” was conclusive upon the plaintiff in their subsequent or Harmon suit, and second, that the decree in the earlier case was res judicata, not only of the issues actually tendered by that case but of all issues that could have been raised. This court said at page 135: “As was said in Preble v. Board of Supervisors, supra: The complainants could not divide their cause of action, setting up one ground of illegality in that suit, and if they failed in that, bring a second suit for a like purpose, setting up another ground of illegality. They should have disclosed the entire wealth of their case at once.” The court so held even though the plaintiffs in the Harmon, or second, case were not the same as the plaintiffs in the earlier case and even though the plaintiffs in the second case assign new grounds and reasons for invalidating the bond issue. As late as 1949 the Harmon case was followed in People ex rel. Furlong v. Election Comrs. 404 Ill. 326, although the vitality of the Harmon case was somewhat diluted by the fact that the questions determined in the Furlong case were identical with those previously decided in the case of People ex rel. Lipsky v. City of Chicago, 403 Ill. 134. The fiscal policies of the State or its subdivisions are not to be frustrated by a succession of suits by different taxpayers, voters or other citizens after one of such suits has been adjudicated. The doctrine of the Harmon case is particularly applicable where successive suits, such as those filed in connection with the toll road program, are for the purpose of delay and vexation.

In People ex rel. Harrison v. Kelly, 391 Ill. 136, this court, speaking of the discretion that controls the grant or denial of a writ of mandamus, said at pages 138-39: “In the exercise of its discretion, the court looks to existing facts and views the whole case with due regard to the consequences of its action. (People v. Ketchum, 72 Ill. 212.) In People ex rel. Stettauer v. Olsen, 215 Ill. 620, it was said: ‘When a writ of mandamus is asked the court may inquire whether it will operate impartially, create confusion and disorder, and whether it will or will not promote substantial justice. Courts, in the exercise of the discretion with which they are vested, may, in view of the consequences attendant on the issuing of a writ of mandamus, refuse the writ, though the petitioner has a clear legal right for which mandamus is a proper remedy.’ See, also, Michigan-Grand Building Corp. v. Barrett, 35 Ill. 291; People ex rel. Lyle v. City of Chicago, 360 Ill. 25.”

In People v. Olsen, 215 Ill. 620, this court held that a citizen or taxpayer could not defer a suit for mandamus with respect to the determination of a tax rate until so late a date that the issuance of the writ would be inimical to the public welfare. In that case the taxpayer delayed filing his suit until after a large portion of the taxes to be collected had been extended and tax warrants had been issued. We said at page 622: “The writ of mandamus is not a writ of right, and it was largely within the sound discretion of the trial court to refuse to issue it. When a writ of mandamus is asked the court may inquire whether it will operate impartially, create confusion and disorder, and whether it will or will not promote substantial justice. Courts, in the exercise of the discretion with which the}' are vested, may, in view of the consequences attendant on the issuing of a writ of mandamus, refuse the writ, though the petitioner has a clear legal right for which mandamus is a proper remedy. (People v. Board of Supervisors, 185 Ill. 288.) The court may act on existing facts and view the case with reference to the consequences of its action, (People v. Ketchum, 72 Ill. 212,) and may consider whether the petition has been presented to settle mere abstract rights, unaccompanied by practical or substantial benefits. North v. Trustees of University of Illinois, 137 Ill. 296; People v. Masonic Benevolent Assn. 98 id. 635.” Under the facts in the case at bar, we find that a writ of mandamus should issue.

It is a common usage to provide in indentures contemplating the sale of public bond issues that there shall not be any litigation pending which assails the validity of the bonds at the time of the consummation of the sale. It is likewise a custom in the sale of bonds for the treasurer or custodian of the fund of the governmental agency issuing such securities to deliver the bonds and give his receipts for the proceeds of the sale thereof. And this court will take judicial notice of such custom and usage. Kile v. Town of Yellowhead, 80 Ill. 208; Munn v. Burch, 25 Ill. 21.)

We take note of the respondent State Treasurer’s assertion that he is “not a member of the Commission,” which is true, and of his contention that he has “no legal duty to receive, accept and otherwise dispose of the Commission’s bonds.” Section 14 of the act provides that “The Commission shall have power, by resolution, to issue and sell bonds from time to time * * * to finance * * * the cost of the acquisition, purchase, construction * * * of any toll highway * * *.” This section also provides that “The proceeds from the sale of said bonds shall be paid to the Treasurer of the State of Illinois as ex-officio Custodian.” The latter part of that section contemplates that the commission shall by resolution provide for the sale and delivery of the bonds. (Ill. Rev. Stat. 1955, chap. 121, par. 3i4a39.) The act contains no specific provision directing the respondent to receive, accept and deliver the bonds, however, custom and usage would give rise to such expectation. And the commission assuming he would so act adopted certain resolutions to implement the provisions of the statute relative to the sale and delivery of the bonds.

The commission, by Resolution No. 13, section 2.16, directed as follows: “* * * said Bonds shall be delivered, by the Treasurer or on his order, to-or upon the order of the purchasers named in said Supplemental Resolution or Resolutions, but only upon payment to the Treasurer of the proceeds of sale of such bonds.” This resolution is before this court, both by pleadings herein and by judicial notice.

By Resolution No. 14 (also before this court in the same manner), it is provided:

“Section 11. That the Continental Illinois National Bank and Trust Company of Chicago, as Trustee, be and it is hereby requested and directed to authenticate the Bonds, in the aggregate principal amount of $415,000,000, as provided by the Resolution, and deliver the same to or upon the order of the Treasurer for delivery to the purchasers thereof.

“Section 12. That, when the Purchase Contract shall" have been executed and delivered, the Treasurer be and is hereby ordered to deliver the Bonds to or upon the order of Clore, Porgan & Co. and Halsey, Stuart & Co., Inc., on behalf of themselves and the other purchasers named" in the Purchase Contract, upon payment of the purchase price therefor to the Treasurer, in accordance with the terms of the Purchase Contract.”

The respondent now declines to participate with the commission in the sale and delivery of the bonds. There is authority in the commision to issue, sell and deliver the bonds, and we need not determine in this proceeding whether the respondent has the legal duty to so do. The act imposes a clear legal duty upon him to accept the proceeds from the sale of the bonds, and it is his duty to cooperate with, rather than to obstruct, the efforts of the commission in connection with the completion of the sale of the bonds. In order to accomplish this end we ordered that writ of mandamus issue directing the respondent:

“(1) To deliver to the Illinois State Toll Highway Commission the custody and control of $415,000,000 of the Illinois State Toll Highway revenue bonds, Series of 1955, if the same are in his actual custody; (2) to release unto the Toll Highway Commission any and all right that he might have to the custody and control of the bonds in question, by virtue of the Toll Highway Act or any Resolutions enacted pursuant thereto; and (3) to receive from the Toll Highway Commission, in cash, the funds derived from the sale of said Toll Highway revenue bonds, in accordance with the terms of sale of such bonds as provided for in the purchase contract referred to in the petition for writ of mandamus herein. Opinion to follow.”

We take judicial notice of the acute and ever increasing congestion of traffic upon the highways of the State and nation and of the ever mounting toll of injuries and deaths that are due to that congestion. The necessity for consummating the program enacted by the Toll Highways Act is urgent. If countenanced by this court, the Quincer suit and other litigation that would doubtlessly follow, so obviously motivated by a desire to obstruct and harass, would serve only to delay progress and thwart a road building program that is so essential to the convenience and safety of millions.

Therefore, it is the State Treasurer’s duty to obey the writ heretofore issued in accordance with the court’s judgment.

Writ awarded.

Mr. Justice Schaefer,

dissenting:

It seems to me that in its eagerness to reach a result which it considers desirable, the majority has disregarded settled principles and overridden the rights of litigants.

The case is decided upon the ground that the issues it presents have already been adjudicated. The issues in this case have not, of course, ever been actually determined by any court, nor was the respondent in this case a party to the previous actions which are said to have adjudicated these issues. Under the normal operation of the doctrine of res judicata, therefore, the parties and the issues in this case would not be affected by the result of the earlier actions. For its extension of the normal boundaries of res judicata in this case, the majority relies upon Harmon v. Auditor of Public Accounts, 123 Ill. 122.

In the Harmon case this court held that certain contentions advanced by a taxpayer could not be raised because they had been presented by the pleadings in an earlier suit filed by another taxpayer, and could have been determined in the earlier proceeding. That the doctrine of the Harmon case is not applicable here is made clear by our decision in Johnson v. Daley, 403 Ill. 338. We there held that although certain sections of the Cigarette Tax Act had been held valid in Routt v. Barrett, 396 Ill. 322, which was a taxpayer’s suit, the decision in that case did not bar another taxpayer from challenging the validity of certain other provisions of the Cigarette Tax Act, because his contentions were not within the issues framed by the pleadings in the Routt case.

In Johnson v. Daley we said of the Harmon case: “In a previous suit certain taxpayers had unsuccessfully sought to enjoin a town and its officers from issuing certain bonds. The Harmon case was a bill seeking to enjoin the town officials from collecting taxes to pay the principal and interest thereof, and praying that they be decreed to be null and void. In the latter suit an additional ground was advanced for attacking the validity of the election authorizing their issue. We there held that the former decree was ‘conclusive as to all questions within the issue whether formally litigated or not.’ In that opinion, we pointed out that ‘the point now raised against the bonds was presented by the pleadings and issues in the Pinckney suit (Chicago and Iowa Railroad Co. v. Pinckney, 74 Ill. 277) and might have been raised and determined in that suit.’ In Routt v. Barrett, on the other hand, the constitutionality of the present clause in section 1 of the Cigarette Tax Act was not presented by the pleadings and issues, and could not have been litigated.” 403 Ill. at 340-341.

So in this case, the issues presented are not within the issues framed in the earlier cases in which they are said to have been adjudicated. A reading of the opinion in People ex rel. Castle v. Taylor, and People ex rel. Humrich v. Illinois State Toll Highway Com. 7 Ill.2d 501, and reading of the pleadings in People ex rel. Humrich v. Illinois State Toll Highway Com., circuit court of Cook County No. 55C— 1:6053, makes it clear that the sole question raised in those cases was this: “Does the Illinois Toll Highway Act authorize the issuance of a single series of bonds to finance the construction which the Commission proposes, or does it require the issuance of three separate series of bonds?” 7 Ill.2d 503.

One of the cases relied upon as an adjudication of the merits of this case is People ex rel. Humrich v. Illinois State Toll Highway Commission, No. 55C-16053, in the circuit court of Cook County. At the suggestion of the attorneys for the Commission, and in an effort to cooperate to secure speedy determination of the case, the relator abandoned his action in the circuit court and refiled it in this court as an original action. In this court it was consolidated with People ex rel. Castle v. Taylor, and both cases were decided together. The only decision on the merits was that rendered by this court in the consolidated cases, which appears at 7 Ill.2d 501. As has been stated, that case involved a single issue of law.

This case presents entirely different issues. They are not mentioned in the majority opinion, and therefore it is necessary to describe some of them briefly here. For example, the Quincer petition, which was incorporated in the pleadings in this case, alleges that Clore, Forgan & Co. and Halsey, Stuart and Co., the contract purchasers of the bonds, had been previously appointed to advise the Toll Highway Commission with respect to the terms and conditions that were to be incorporated in the bonds ultimately offered for sale. It alleges that they therefore stood in a fiduciary relationship to the Commission and to the people of the State of Illinois, and were thereby precluded from becoming interested, directly or indirectly, in the purchase of the bonds. Similarly, the State Treasurer alleges that the managing underwriters imposed a secret condition precedent to their offer, that the commission should concurrently with the delivery of the bonds, purchase $30,000,000 in specified bonds from a designated insurance Company, with the result that the sale of $30,000,000 of toll highway bonds was actually a trade rather than the sale for cash required by the statute.

Whether the truth of these charges could ultimately be established is of no significance in the decision of this case. What is important is that they involve issues of fact. It has long been settled, for adequate reasons that need not be restated here, that this court does not take jurisdiction of an original action which presents issues of fact. (See, for example, People ex rel. Jones v. Robinson, 409 Ill. 553; Monroe v. Collins, 393 Ill. 553.) This court thus has no jurisdiction to determine the issues presented in this case. Moreover, it had no jurisdiction to determine those issues in any earlier action. The net of it is that litigants are deprived of their day in court on the ground that the issues which they seek to raise have been decided against them in an action to which they were not parties, in a case which did not present the issues they seek to raise, and by the judgment of a court which lacked jurisdiction to decide those issues.

Mr. Chiee Justice Hershey concurs in the foregoing dissenting opinion.


author: Mr. Justice Maxwell

text:
    (No. 33803.
    Joseph Parrino et al., Appellees, vs. Margaret Landon et al.—(Elmer R. Pike, Appellant.)

      Opinion filed March 22, 1956
    Rehearing denied May 22, 1956.

    Bristow, J., dissenting.
    Rathje & Woodward, of Wheaton, (John S. Woodward, of counsel,) for appellant.
    Lloyd C. Moody, of Chicago, (William C. Wines, of counsel,) for appellees.
   Mr. Justice Maxwell

delivered the opinion of the court:

Leave to appeal has been granted for the purpose of reviewing a default judgment for substantial sums for plaintiffs, Joseph and Marjorie Parrino, rendered in the circuit court of Du Page County and affirmed in the Second District Appellate Court. Suit was originally brought against the appellant, Elmer R. Pike, and Margaret Landon for injuries and damages suffered in an automobile collision. Plaintiffs alleged, inter alia, that defendant Landon drove the automobile of defendant Pike with the latter’s knowledge and consent and that Landon was negligent in various respects.

Landon was never served with process but Pike was served. Pike did not enter his appearance and a default judgment was entered against him. After the court heard the evidence as to the occurrence, the nature and extent of the injuries and damages of plaintiffs, Pike’s ownership of the automobile and his knowledge and permission relative to his sister, Landon, driving the car immediately prior to the collision in question, the damages were assessed. Although a second count based on alleged wilful and wanton misconduct was included, neither the Appellate Court nor this court regard reference to it as of importance in the decision of this case. The complaint joined the owner and the permissive user of the automobile, alleged misconduct of only the driver, contained no express allegation of a principal-and-agent or master-and-servant relationship, averred knowledge and permission on the part of Pike and prayed for damages against both Pike and Landon. The specific point for decision presented is whether such allegations of a complaint will sustain a default judgment against the defendant Pike.

Grounds for reversal of the judgment are reassertions of the substance of the dissenting opinion below. Contrariwise, plaintiffs restate the pronouncements of the majority opinion. (See 6 Ill. App.2d 375.) In final analysis there appears to be a basic agreement in both opinions as to the fundamental rules of law which are applicable to the problem. As is often the case, there exists a sharp difference as to the application and interpretation in a specific situation. After a thorough examination of the cited and other authorities on the question we feel it is not an over-simplification of the problem to state at the outset that had the author of the complaint (in referring to defendant Landon) inserted the words “as the authorized agent and servant of the defendant Pike,” there could have been no objection on the part of Pike. (And presumably Pike then would have appeared by motion or otherwise for his defense on the merits in respect to the question of his liability.) The issue then is — is the omission of such words fatal to the complaint so that it cannot support the default judgment?

It is unquestioned that, as a matter of evidence, mere proof of one defendant’s ownership of an automobile driven by another defendant is prima facie proof of agency, which if not rebutted will support a judgment for plaintiff, insofar as the proposition of agency is concerned. (Howard v. Amerson, 236 Ill. App. 587.) It is urged by defendant, however, that this rule of evidence based upon a presumption cannot be projected into the field of pleading. The prime purpose of pleading must never be hidden in a morass of technicalities. Pleading must inform and notify both adversary and court of the charges and defenses of the pleader. The desire to avoid extremes does not give license to mislead. Courts must look to substance and apply basic rules of other fields of the law when deemed necessary. If the law in one breath can say that all persons are presumed to know the law it cannot refuse to recognize that a mere proof of ownership of an automobile can result in judgment when the principles of the law of agency apply. This consequence results in a liability and judgment — a matter of substance and no mere idle theory. On the other hand, it is equally well established that the family-purpose doctrine is not the law in this State. White v. Seitz, 342 Ill. 266.

Section 33 (Ill. Rev. Stat. 1953, chap, 110, par. 157,) of our Civil Practice Act, in force during these proceedings, provided that all pleadings shall contain a plain and concise statement of the pleader’s cause of action, counterclaim, defense or reply. Section 42 (Ill. Rev. Stat. 1953, chap, no, par. 166,) of the same act provides in substance that the court may order a fuller or more particular statement if any pleading is insufficient in substance or form and may order new pleadings if those filed do not sufficiently define the issues; that no pleading shall be deemed bad in substance which shall reasonably inform the opposite party of the nature of the claim or defense which he is called upon to meet; and that all pleading defects, in form or substance, not objected to in the trial court shall be deemed to be waived. Section 6 of the Amendments and Jeofails Act (Ill. Rev. Stat. 1953, chap. 7, par. 6) in substance provides, as pertains to the present problem, that judgment shall not be arrested or stayed after verdict, nor shall any judgment upon verdict or finding by the court, or upon confession nil dicit (or non sum informatus) or upon any writ of inquiry of damages be reversed, impaired, or in any way affected, by reason of any of the following imperfections, omissions, defects, matters or things in the process, pleadings, proceedings or records, namely: for the want of any allegation or averment on account of which omission a motion raising an objection to such omission in the pleading could have been maintained.

There are numerous foreign and Illinois cases which have dealt with the problem of whether certain complaints have stated a good cause of action defectively or stated no cause of action at all. A careful analysis of a great many of these cases gives rise to a serious doubt as to the proper basis for decision and one becomes somewhat confused by conflicts that appear irreconcilable. A black or white label can be applied either way. The path of proper direction for future travelers along this course is rendered no less hazardous by compounding the confusion by a mere choice of labels. The consequence of such condition is a greater liberality in legislation governing procedure and practice in both Federal and State courts. The delays and injustices which occurred in the common law were recognized and remedies appropriately fashioned. The law has always favored prompt and fair hearings of issues on their merits and whenever possible has placed practice and procedure in its proper place of secondary importance— as the means employed to accomplish the ends of justice. The law in its wisdom, in order to prevent abuses and unjust surprise, afforded to litigants rights of pretrial discovery, the right to obtain particularization by motion or demand in order to become apprised of anything concerning which there may exist honest doubt.

What can a defendant, such as Pike here, reasonably conclude from the type of information contained in the filed complaint? As to the proposition of his ownership of the automobile and the question of his knowledge and her permission to use his automobile prior to the collision, it must be conceded that such matters were particularly within his own knowledge. The complaint notified him that the plaintiffs alleged they were injured and damaged by his automobile negligently driven by his sister; that she did so with his consent and knowledge and that each of the plaintiffs sought money damages both from him and his sister. A layman without benefit of legal counsel would ordinarily believe that there was a liability on his part if one existed as to his sister. In the hands of an attorney such a complaint could conceivably be subject to question. If the law, however, places the burden óf knowledge of the law upon laymen that burden must be at least equally borne by attorneys. The law of agency, family-purpose doctrine, negligence and pleading are presumptively within the province of their knowledge. Diligence has always been a requirement of the courts. The means of informing court and plaintiff that a defendant urges he has been improperly joined in an action or that no liability has been asserted against him is very simple. It is the duty of both party and counsel to inform the court of such a condition at the earliest possible moment. When a party has been sued without any proper cause or reasonable basis the law provides for him certain remedies which need not here be discussed.

Our decisions in Wagner v. Kepler, 411 Ill. 368, and Gustafson v. Consumers Sales Agency, Inc. 414 Ill. 235, although containing factual differences, reflect the recent trend of all courts to make form inferior to substance. We believe both justice and reason command the conclusion that such pleading as gives enough information to indicate a ground for liability is sufficient to support a judgment. Even under common-law rules, because of many injustices that would result by reason of technicalities which arose, the doctrine of aider by verdict was employed by the courts. In Pennsylvania Co. v. Ellett, 132 Ill. 654, at 662, this court declared, quoting Tidd’s Practice: “At common law, when anything is omitted in the declaration, though it may be matter of substance, if it be such that, without proving it at the trial, the plaintiff could not have had verdict, and there be a verdict for plaintiff, such omission shall not arrest the judgment.” Eor examples of cases upholding judgments after verdict where a substantial allegation was lacking in the complaint, see Baltimore and Ohio Southwestern Railway Co. v. Then, 159 Ill. 535, Chicago, Rock Island and Pacific Railway Co. v. Clough, 134 Ill. 586, and Illinois Central Railroad Co. v. Simmons, 38 Ill. 242. The reasoning in Lasko v. Meier, 394 Ill. 71, is equally applicable in the present case. It is also noteworthy that the holding in Klawiter v. Jones, 219 Ill. 626, distinguished in the Lasko opinion, is also overruled under our Civil Practice Act by our opinion in Metropolitan Trust Co. v. Bowman Dairy Co. 369 Ill. 222. The latter case is a landmark in this State for liberal construction of our Civil Practice Act and it was there held that even though an original complaint did not state a cause of action it could nevertheless be amended after the statutory time for bringing the action had expired (a condition precedent to bringing a wrongful death action in this State rather than a limitations period) as long as it grew out of the same transaction.

Plaintiffs here urged that defendant was given more information than he would have had by plaintiffs merely alleging a principal-and-agent or master-and-servant relationship. They further assert that “agency” is a conclusion which would be subject to objection if offered in the form of testimony. Ordinarily where specific facts are set out in a pleading, the pleader need not state the legal conclusion to be drawn from such facts. In other words, it is sufficient if the pleader states the facts and leaves the court to find the law. (71 C.J.S. 38, Pleading, sec. 15.) A general averment of the relationship of master and servant, or principal and agent, is usually held to be a conclusion of law, as is an averment that a person was an independent contractor. 71 C.J.S. 69-70, Pleading, sec. 27b.

What then, after due consideration of the foregoing authorities, must a court say concerning the information contained in the present complaint? And what can reasonably be implied therefrom ? What is the reasonable intendment of the allegation that defendant Pike knowingly permitted his sister to drive his automobile ? Defendant urges that no charge of misconduct on his part has been averred. Similarly he must know, by entire absence of expression, that he is not charged with knowingly permitting and entrusting his automobile to be driven by one unfit and unskilled thereby creating a hazard and danger to persons rightfully on the public highways. Therefore the only reasonable conclusion must be, since he knows of his joinder in the suit as a codefendant and that a judgment for damages was sought by plaintiffs against him by reason of his sister’s negligent conduct, that a vicarious liability is asserted against him. Knowing, presumptively, that the family-purpose doctrine affords plaintiffs no basis for recovery, he should also presumptively know that other normal types of vicarious liabilities exist in this State as a result of a principal-and-agent or master-and-servant relationship. The fact that ultimately defendant might clearly establish his freedom from liability for the reason that the vicarious relationship did not exist is of no importance so far as principles of pleading are concerned. It is as though one would stubbornly refuse both to plead and offer evidence (after a prima facie case was made) solely because the named defendant in the particular action claimed he had no connection with the alleged occurrence.

Where the legislature and courts have given to a defendant so many safeguards for his protection it would appear to be more than naivete to permit one who has been served with process, notifying him of a pending action wherein he has been named a defendant, to stand by, refuse to plead, permit a judgment to be entered, give the court no information in any respect as to any claim he might assert concerning his defense and then to permit valuable time of the courts to be consumed in post-judgment procedures and appeals. A somewhat liberal rule is frequently applied in construing a declaration or complaint where the objection is made for the first time after verdict or judgment, and it may be sufficient if the facts essential to a cause of action appear by reasonable implication only, or that the allegations are in the form of a legal conclusion which merely implies the necessary material facts. (41 Am. Jur. 576, Pleading, sec. 407.) We believe the complaint in question meets the foregoing tests discussed in the case and text authorities.

For the foregoing reasons we are of the opinion that the complaint was sufficient to support the default judgment in this case and the judgment of the Appellate Court, Second District, affirming the judgment of the circuit court of Du Page County is affirmed.

Judgment affirmed.

Mr. Justice Bristow, dissenting.


author:
Mr. Justice Maxwell
      Mr. Justice Davis,

text:
    (No. 33779.
    Donald McCann, for the use of Kenneth Osterman, Appellant, vs. Continental Casualty Company, Appellee.

      Opinion filed March 22, 1956
    Rehearing denied May 22, 1956.

    Hers hey, C.J., took no part.
    Davis and Bristow, JJ., dissenting.
    Joseph Barbera, of Chicago, (Charles D. Snewind, of counsel,) for appellant.

      Eckert, Peterson & Lowry, of Chicago, (A. R. Peterson, Owen Rare, Harold W. Huee, and Herbert C. Loth, Jr., of counsel,) for appellee.
   Mr. Justice Maxwell

delivered the opinion of the court:

Petition for leave to appeal from a judgment of the Appellate Court reversing a judgment of the circuit court of Cook County, favorable to petitioner, has been granted. Garnishment action against respondent, Continental Casualty Company, hereinafter referred to as insurer, was based upon a judgment recovered by one Osterman against Donald McCann. Osterman will hereinafter be referred to as plaintiff and one Kenealy will hereinafter be referred to as the insured.

The insurer had issued its policy to the insured covering a certain motor scooter. Although the original policy included a standard omnibus clause, by special endorsement and rider the coverage was purportedly restricted to the insured and any relatives of and residents of his household while using the vehicle with the permission of the insured. It appears that McCann was neither a relative nor member of the insured’s household and was using the scooter by permission of the minor son of the insured and while engaged in its operation caused injury to plaintiff. Original action brought by plaintiff against the insured and McCann resulted in a default judgment being entered against Mc-Cann in the sum of $7500. At the conclusion of the evidence in the subsequent garnishment suit, the trial court directed the jury to return a verdict against the insurer in the sum of $5000, said sum being the limitation of coverage of the policy in question. From a judgment entered upon said verdict the insurer appealed here, and the cause was transferred to the Appellate Court. McCann v. Continental Casualty Co. 4 Ill.2d 170.

The policy in question provided that insurer agreed to pay on behalf of the insured all sums which he became legally obligated to pay as damages due to bodily injury or property damage caused by accidents arising out of the ownership, maintenance, or use of the motor scooter. The rider referred to, amending the definition of insured in the policy, reads as follows :

“The unqualified word ‘insured’ wherever used in Coverages A and B and in other parts of this policy, when applicable to such coverages, includes the named insured and, except where specifically stated to the contrary, also includes any relative of and a resident of the household of the named insured while using the vehicle described in the policy provided the actual use of the vehicle is with the permission of the named insured.”

As pointed out by the Appellate Court opinion, reported in 6 Ill. App.2d 527, the scooter was bought for the use of the minor son of the insured and the evidence revealed the insured gave his son permission to allow his friends to drive the scooter if they were dependable. On the date of the accident, the son permitted McCann to operate the scooter and it appeared that McCann was also the owner of his own scooter and regarded as dependable by the insured’s minor son.

The principal issue in this case arises because of clause 8 of the policy containing the following provision:

“Financial Responsibility Laws — Coverages A and B:

“Such insurance as is afforded by this policy for bodily injury liability or property damage liability shall comply with the provisions of the motor vehicle financial responsibility law of any state or province which shall be applicable with respect to any such liability arising out of the ownership, maintenance or use of the automobile during the policy period, to the extent of the coverage and limits of liability required by such law, but in no event in excess of the limits of liability stated in this policy. The insured agrees to reimburse the company for any payment made by the company which it would not have been obligated to make under the terms of this policy except for the agreement contained in this paragraph.”

Another clause of the policy also provides that: “Terms of this policy which are in conflict with the statutes of the State wherein this policy is issued are hereby amended to conform to such statutes.”

The present problem brings into focus various provisions of the Illinois financial responsibility law, sections 42 — 2 to 42 — 11, inclusive, of the Motor Vehicle Act. (Ill. Rev. Stat. 1947, chap. 95^4, pars. 58b to 58k, inch) It is this law which gives the power to the Secretary of State to suspend the operator’s license, registration certificate and license plates issued to a person named as judgment debtor, where the judgment grows out of the operation of a motor vehicle and is not satisfied within thirty days of its rendition; unless the party against whom the judgment is rendered satisfies it and makes proof of financial responsibility to respond in damages for any liability for personal injuries, etc., incurred as a result of the ownership, maintenance, use and operation of the motor vehicle. Proof of financial responsibility may be satisfied by a policy of insurance. It is provided in section 42 — 11 (par. 58k) of the act that a motor vehicle liability policy “shall insure the person named therein and any other person using or responsible for the use of said motor vehicle or vehicles with the express or implied permission of said insured.”

The Appellate Court was of the opinion that the trial court erred in incorporating section 42 — 11 (par. 58k) in the policy in conformity with clause 8 of said policy. The Appellate Court pointed out that the original policy contained an omnibus clause which extended insurance to any person using the vehicle with the insured’s permission but that the rider was substituted in lieu of the omnibus clause and narrowed and limited the coverage as above stated. The opinion further points out that the laws of certain States require the inclusion of the omnibus clause in every such policy but that in other States such a clause is only required in an insurance policy produced as proof of financial responsibility. A difference is then noted in these two types of statutes, namely, that in the former the purpose is to protect the public against negligent operation of vehicles by permissive users thereof, and in the latter type the chief purpose is to regulate the provisions of such policies as proof of financial responsibility for the future by the owners of a vehicle who, by prior accident or otherwise, have fallen within the scope of the financial responsibility law. The opinion further states that the fundamental basis for both type of statutes is the protection of the general public as well as providing compensation to persons injured by vehicles negligently operated on the public highways.

It is, of course, true that no Illinois law requires the purchase of insurance as a condition precedent to the use of Illinois highways by most automobiles and pleasure vehicles in the first instance. It is to be noted, however, that the Illinois financial responsibility law specifically requires the inclusion of an omnibus clause in insurance policies issued thereunder. In the instant case, the insurance policy in question was a standard form formulated for the purpose of complying with the laws of all States wherein the company did business.

It was the conclusion of the Appellate Court that in order to bring a person within the scope of the financial responsibility law, requiring him to prove his financial responsibility so that he could continue to operate a motor vehicle in this State, it is necessary that there be an unsatisfied judgment against him and that one of the methods of proving his financial responsibility was to show that he was covered by a policy of insurance including an omnibus clause. It was also the conclusion of the Appellate Court that the Illinois financial responsibility law specifically limits the provisions of section 42 — 11 (par. 58k) to liability policies issued under the provisions of the act and that the provisions of the act are not applicable unless the insured has by his previous conduct brought himself within its purview. There is no evidence in the record that the insured had a previous accident or that there was any unsatisfied judgment growing out of an accident against him. Therefore, reasons the Appellate Court, the insured was not required to make proof of financial responsibility under the act.

The Fourth District Appellate Court’s opinion in Landis v. New Amsterdam Casualty Co. 347 Ill. App. 560, dealt with a similar problem in a garnishment suit brought against an insurance company based upon a policy issued to a garage operator under the Illinois Truck Act. The act made it compulsory for the operator to obtain such a policy. The operator’s policy contained no omnibus clause but contained a provision that the policy must comply with the financial responsibility laws of any State which might be applicable respecting any liability arising out of the use of the insured’s vehicle. The operator was the only named insured. The garage operator’s employee, while driving the vehicle with the owner’s permission, departed from instructions and was driving the truck on a mission of his own when plaintiff was injured. The court in the Landis case held that by virtue of the clause of the policy concerning compliance with the financial responsibility law, the omnibus clause of that act was included in said policy and that therefore the coverage was extended to the driver of the truck.

The First District Appellate Court points out that the policy involved in the Landis case was a compulsory one and that under the reasoning of Illinois Casualty Co. v. Krol, 324 Ill. App. 478, mandatory insurance legislation is enacted for the protection of the general public in the use of the highways and the insurance carrier will not be relieved from liability to parties injured in their person or property by reason of the insured’s unlawful operation of a truck because of the existence of defenses such' as noncoverage. However, the First District Appellate Court in the instant cause states that it does not agree with nor will it follow the reasoning used as a basis for the decision in the Landis opinion to the effect that a policy provision, as present in this case, requiring compliance with the financial responsibility law of any State which should be applicable, would, by itself, require the inclusion in the policy of the omnibus clause contained in section 42 — 11 (par. 58k) of our act without a showing of the applicability of the financial responsibility law.

The First District Appellate Court stated that its conclusion was sustained by both reason and overwhelming authority and cited various cases of foreign jurisdictions in support thereof. (See pp. 535-6 of the opinion.) It distinguished the cases favorable to petitioner’s viewpoint on the ground that the policies in question were compulsory.

It is fundamental that where the terms of an insurance policy are clear and unambiguous the court must give effect to the intent of the parties to the contract in accordance with the clear expression of agreement. The case of Henderson v. Trans-Continental Mutual Insurance Co. 227 F.2d 106, dealt with a problem similar to that which now confronts this court. Judgment for personal injuries was rendered for plaintiff injured by an assured’s permissive driver. When suit was brought against the insurance company of the owner it was pointed out by the company that although the policy contained a general omnibus clause there was a specific endorsement annexed to the policy confining coverage to the named insured (owner) or a member of his immediate family. The plaintiff argued there, as does plaintiff here, that the policy conditions, providing that such insurance as is afforded by the policy for bodily injury liability or property damage liability shall comply with the provisions of the motor vehicle financial responsibility law of any State or province which shall be applicable, render void the express restrictive coverage of the endorsement. The court in the Henderson case, in holding for the insurance company, declared, "It is sufficient to say that the argument is based upon a misconception of the policy provision. The language of the ‘condition’ does not unqualifiedly state that the coverage under A and B shall comply with the provisions of the motor vehicle financial responsibility laws, but that ‘such insurance as is afforded by this policy’ shall comply with the financial responsibility law of any state ‘which shall be applicable, etc.’ Obviously, the inclusion of the provision does not extend liability óf the insurer over to situations not covered by the policy. Here, the situation covered is expressed in the language of the limiting endorsement * * *.”

Many of the cases holding for insurance companies’ contentions for restricted coverage are based on policy words as "which shall be applicable” in concluding that a policy condition such as condition 8 in the case at bar does not incorporate an omnibus clause provision of a financial responsibility law by reference unless the named insured had theretofore been required to furnish proof of his financial responsibility. We agree with the foregoing opinon that “insurance afforded by this policy” does not include omnibus coverage for the operator of this particular vehicle and that the express restrictive endorsement must be given effect. The contractual intention of the parties seems clear and omnibus coverage under the Illinois financial responsibility law was not required under the facts in the instant case.

The judgment of the First District Appellate Court is affirmed.

Judgment affirmed.

Mr. Chief Justice Hershey took no part in the consideration or decision of this case.

Mr. Justice Davis,

dissenting:

I dissent with the views of the majority relative to the construction of this insurance contract. The opinion finds the terms of the policy unambiguous and purports to give effect to the intention of the parties in accordance with the clear expression of the agreement. In so doing, it is my belief that the majority have placed a construction on the contract dependent upon the alleged circumstance that the policy was obtained to satisfy the requirement of a showing of financial responsibility after an accident resulting in an unsatisfied judgment, a matter dehors the instrument. The effect of this construction of the policy is to relieve the insurer of liability to victims of a first accident in connection with non-relative-household permissive use of the motor vehicle of the assured even though condition 8 of the policy incorporated the omnibus clause of section 42 — 11 of the Motor Vehicle Act. Ill. Rev. Stat. 1947, chap. 95 par. 58k.

The problem presented is that of ascertaining the intention of the parties from the policy. The rules for the construction and interpretation of insurance contracts are the same as those applicable to other contracts. (Capps v. National Union Fire Ins. Co. 318 Ill. 350; Old Colony Life Ins. Co. v. Hickman, 315 Ill. 304.) “The circumstances which courts may consider in determining the construction of a contract are those arising in the contract itself — that is, before a court may look at the surrounding circumstances there must be ambiguity in the language of the instrument. Unless such be found in the language of the contract the meaning must be determined from the words used and from no other source.” Englestein v. Mintz, 345 Ill. 48; Jones v. Sacramento Avenue M. E. Church, 198 Ill. 626.

The majority relied on the case of Henderson v. Transcontinental Mutual Ins. Co. 227 F.2d 106. I cannot agree with the reasoning of the Henderson case or the majority statement that the “contractual intention of the parties seems clear” and that the contract is free from ambiguity. If this is true, then the majority are in the anomalous position of deciding this case on the basis of circumstances outside the policy, even though they consider its terms to be certain. While the rider attached to the policy purports to limit the original comprehensive omnibus clause, section 8 of the policy provides that such insurance shall comply with the Financial Responsibility Act of any State or Province which shall be applicable. Section 42 — 11 of the Motor Vehicle Act requires that a motor vehicle liability policy as therein defined “shall insure the person named therein and any other person using or responsible for the use of said motor vehicle or vehicles with the express or implied permission of said insured.” (Ill. Rev. Stat. 1947, chap. 95^2, par. 58k.) These provisions are inconsistent, conflicting and ambiguous, and should be strictly construed against the insurer and to afford the most protection to the insured. (Mosby v. Mutual Life Ins. Co. of New York, 405 Ill. 599; Moscov v. Mutual Life Ins. Co. of New York, 387 Ill. 378.) Application of these recognized principles of construction of insurance contracts leads to the conclusion that by the incorporation of the omnibus clause of the financial responsibility law in the policy, the insurance afforded was extended to any person using the motor vehicle with the permission of the assured.

It is the majority opinion which reads the omnibus provisions of the financial responsibility law into the contract, if, and only if, the policy is used as proof of financial responsibility after an accident has occurred resulting in an unsatisfied judgment. The policy does not so provide. Section 23 of the policy conditions provides that the terms of the policy which are in conflict with the statutes of the State wherein the policy is issued are thereby amended to conform to such statutes. Thus any conflicts of the terms of the policy, or of any rider, with the omnibus statutory provisions are specifically resolved in favor of the statute. The majority concede, “It is to be noted, however, that the Illinois financial responsibility law specifically requires the inclusion of an omnibus clause in insurance policies issued thereunder.” The rationale of the majority, whereby the omnibus provision flashes alternately inoperative, then operative, as motivated by facts dehors the contract, is most difficult of comprehension; and the magnitude of this difficulty is surpassed only by the improbability that the contracting parties contemplated or intended such result. I find nothing in the words, “insurance afforded by this policy,” which excludes omnibus coverage for the operator of this particular vehicle and requires the application of the restrictive endorsement.

There is the added consideration that under section 42 — 6, (par. 58f) of the law, proof of financial responsibility may be voluntarily made by or on behalf of any person prior to the offense or accident under which any conviction, judgment or order arises. In such case the privilege of operating any motor vehicle shall not be suspended if such proof, at the time of such conviction, judgment or order is valid and sufficient under the law. Such prior proof of financial responsibility may be made by a proper policy or policies of insurance, bond, or deposit as provided in section 42 — 5 (par. s8e). It is therefore untrue that the only policies of insurance contemplated by the law pertaining to financial responsibility are those which are given after an accident has resulted in an unsatisfied judgment.

The problem here presented is one of construction and interpretation of the policy. The majority have construed the provisions of the financial responsibility law rather than those of the policy, and in so doing have made a new contract under the guise of construing the old. I submit that the majority, sustained by respectable authority in other jurisdictions, have sought to ascertain the intention of the legislature in passing the financial responsibility law, rather than that of the the parties to this contract. I do not believe that the insured intended to purchase, or the policy provides for, insurance coverage under the omnibus clause for the purpose of furnishing proof of financial responsibility for the future and not the present.

“The law undertakes to enforce reasonable expectations which arise out of conduct, relations and situations.” (Cardozo’s Growth of the Law, page 102.) Can it be said that the opinion of the majority enforces a reasonable expectation determined from the provisions of the policy?

Mr. Justice Bristow concurs in the foregoing dissenting opinion.


author: Mr. Justice Klingbiel

text:
    (No. 33788.
    Mary Eileen Bodin et al., Appellants, vs. James Joseph Mattingly et al., Appellees.

      Opinion filed May 23, 1956.

      John H. Galgano, and Patrick A. Barton, both of Chicago, (Louis A. Rosenthal, of counsel,) for appellants.
    Charles F. Grimes, Leonard HiglEy, and Walter L. Montgomery, all of Chicago, for appellees.
   Mr. Justice Klingbiel

delivered the opinion of the court :

Mary Bodin and her husband appeal from a decree of the circuit court of Cook County dismissing for want of equity their suit to set aside a deed U> certain real estate.

Mary Bodin’s parents — Dr. Joseph Mattingly, a dentist, and Emma, his wife — jointly owned and resided in a four-flat brick building, the subject of this suit. They had two children, Mary and her brother James. In 1935 Mary resigned her job and married Edward Bodin, who was a roomer at the time in the Mattingly apartment. They continued to reside with her parents, Mary doing the cooking and housework and taking care of her mother. The mother was a heavy woman, suffering from diabetes and arthritis, and required frequent attention. In March, 1952, the plaintiffs had an argument or quarrel with Dr. Mattingly and moved out of the building. The son James, and his wife and two children, who had occupied a basement apartment in the building since 1949, then moved into his parents’ apartment. Dr. Mattingly consulted an attorney, to whom he was referred by a friend, about arranging title to the property so that upon his death it would go to- Mrs. Mattingly, upon her death to James and. his wife, and upon their deaths to the latters’ children. Before anything was done, however, Dr. Mattingly died in the month of June, 1952.

A few weeks thereafter his widow as surviving joint tenant expressed to James a desire to place title in joint tenancy with him and his wife. At the request of James, a real estate broker visited the home of his mother, explained the procedure necessary to accomplish her purpose, and drew a deed to one Lucille Otte, an employee of a bank, as conduit of title. After Mrs. Mattingly signed the instrument the broker took it to the bank, where a proposed return deed was drawn from Lucille Otte to Mrs. Mattingly, James and his wife as joint tenants. Another employee of the bank then brought the two proposed deeds to the home of Mrs. Mattingly, took her acknowledgment, returned to the bank where the second deed was executed by the conduit of title, Lucille Otte, and then caused the two deeds to be recorded. Mrs. Mattingly died about three weeks later at the age of 68.

Plaintiffs contend there was a fiduciary relationship between the grantor and her son James, imposing on him the burden of showing an absence of fraud or undue influence. To support the contention they rely on the mother’s age and physical illness, the fact that James resided with her, and the fact that he called in the real estate broker and inspected the deeds. It is evident that the testimony in this record falls far short of the clear and convincing proof required to establish a confidential or fiduciary relationship. Such a relationship does not obtain between a parent and child as a matter of law, nor is a conveyance between them presumed to be the product of fraud or undue influence from the mere fact of the relationship. (McCrillis v. Utterback, 397 Ill. 550.) There is a complete failure to prove that James in fact occupied a position of dominance or influence over his mother, that she reposed in him special confidence or trust, or that she customarily relied on him to handle her business and financial affairs. The present contention must fail for lack of support in the record.

Plaintiffs next seek to show an oral agreement by the parents to convey an undivided half interest to them, and a performance on their part of services in caring for Mrs. Mattingly and making repairs on the premises. It is unnecessary to consider evidence of the alleged performance of services, or the defendants’ contention of abandonment. The evidence fails to show, by the clear and satisfactory character required in such cases, the existence of the agreement itself. It is based entirely on statements by the deceased parents. It appears that around Christmas of 1941, after a quarrel with her parents, Mary and her husband went to' a hotel for the night. On the following day, according to the testimony of plaintiff Edward Bodin, the parents told them that if they would come back they would share in the property, at least one half. Bodin further testified that in 1945 Dr. and Mrs. Mattingly told him and his wife they would share in the property after the parents’ death. A sister of Dr. Mattingly testified that around Thanksgiving Day in 1946 both the doctor and his wife expressed intentions of leaving the property to their two- children equally.

This testimony fails to show the terms of the agreement with sufficient clearness and certainty to warrant the decree prayed for. It does not indicate how long the plaintiffs were to reside with the parents, or what duties, if any, they were to perform. The testimony is not sufficiently certain and specific to show an obligation on plaintiffs’ part, and could not warrant the relief sought. (Wilger v. Wilger, 409 Ill. 58.) Nor is the remainder of plaintiffs’ evidence of a character sufficient to remedy the deficiency. The rule is well settled that mere expressions of intention that plaintiffs should share in the property after the owners’ death do not evidence the existence of a contract. Stocker v. Scherer, 1 Ill.2d 405.

The decree of the circuit court is affirmed.

Decree affirmed.


author: Mr. Justice; Davis

text:
    (No. 33789.
    The People of The State of Illinois, Defendant in Error, vs. Payne Hurt, Plaintiff in Error.

      Opinion filed May 23, 1956.

    Payne Hurt, pro se.

    Latham Castle, Attorney General, of Springfield, and Frank H. Masters, Jr., State’s Attorney, of Joliet, (Fred G. Leach, and Edwin A. Strugala, of counsel,) for the People.
   Mr. Justice; Davis

delivered the opinion of the court:

Upon his plea of guilty in the circuit court of Will County to an indictment charging escape from the penitentiary in violation of section 17 of the Illinois State Penitentiary Act (Ill. Rev.,Stat. 1953, chap. 108, par. 121,) the defendant was sentenced to a term of not less than one year nor more than ten years, in accordance with the provisions of the act.

The defendant, appearing pro se, prosecutes this writ of error and assigns as error that the record does not show that the grand jury which returned the indictment was properly summoned and empanelled, and that a plea of not guilty was entered; and that the indictment does not allege the place of the offense as required by law.

The record before us fails to show that the question relative to the grand jury was raised in the trial court by motion to quash, challenge to the array, or otherwise. Since this question was not presented in the trial court it will not be considered for the first time upon appeal. People v. Max, 391 Ill. 310; People v. Hawkins, 306 Ill. 29; People v. Knox, 302 Ill. 471.

The defendant contends that a plea of not guilty to the indictment is necessary to the validity of the judgment of conviction. This is true where there is a trial before a jury or a court. A person indicted for a criminal offense cannot be put on trial without a plea of not guilty, for without such a plea, there is nothing to try. However, the defendant in the case at bar was properly arraigned; his rights were explained to him; he voluntarily entered a general plea of guilty, persisted in such plea after its consequences were fully explained, and the plea was accepted, all in accordance with section 4 of division XIII of the Criminal Code. (Ill. Rev. Stat. 1953, chap. 38, par. 732.) For the purpose of joining issue, a plea of guilty operates in the same manner as a plea of not guilty and a judgment entered upon such a plea, where properly and understandingly made, will be sustained. (People v. Shoffner, 400 Ill. 174.) Defendant’s plea of guilty admitted the facts alleged in the indictment and no further or other plea was necessary to sustain the validity of the judgment and sentence. People v. Day, 404 Ill. 268; People v. French, 387 Ill. 16.

Defendant also contends that the indictment lays the venue of the crime at Stateville, Illinois, which is nonexistent, there being no incorporated or recorded locality of that name; and that therefore, the indictment is fatally defective. The defendant, however, has failed to abstract count I of the indictment which count is shown in the supplemental abstract of the People and which reads as follows:

“And the Grand Jurors aforesaid, upon their oaths aforesaid, do present that the said Payne Hurt, after so received as a prisoner at the Illinois State Penitentiary, Joliet Branch, and while the judgment and sentence of said Circuit Court of Cass County, Illinois, was in full force and effect, on, to-wit, the 3rd day of January, 1953 at and within the County of Will, State of Illinois, he, said Payne Hurt, then and there a prisoner in said Illinois State Penitentiary, Joliet Branch, and subject to the rule and regulations thereof, unlawfully and feloniously did escape and depart from said Illinois State Penitentiary, Joliet Branch, and from the officers, guards and attendants of said Illinois State Penitentiary, Joliet Branch, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the said People of the State of Illinois.”

Venue was properly laid in the indictment and the crime charged was shown by the record to have been committed in the Illinois State Penitentiary, Joliet Branch, Will County, Illinois. (People v. Burke, 400 Ill. 240; People v. Lavendowski, 329 Ill. 223.) The defendant’s general plea of guilty was directed to the whole indictment, (People v. Creviston, 396 Ill. 78,) and where one of several counts of an indictment is sufficient to sustain the judgment, the conviction will stand. People v. Hamm, 415 Ill. 224; People v. Donaldson, 341 Ill. 369.

The assignments of error are without merit and the judgment of the circuit court of Will County is affirmed.

Judgment affirmed.